HERRIOT & FODOR

[2016] FCCA 646

FEDERAL CIRCUIT COURT OF AUSTRALIA

HERRIOT & FODOR [2016] FCCA 646

Catchwords:
FAMILY LAW – Children – Recovery of child from Father by Mother – Mother has been the primary caregiver since birth.

FAMILY LAW – Children – With whom a child lives – Best interests of child.

FAMILY LAW – Children – Parental responsibility – Presumption of equal shared parental responsibility – Presumption rebutted – Father does not have capacity to provide for the needs of the child – Not practical or realistic for shared parental responsibility.

FAMILY LAW – Children – With whom a child spends time – No order for equal time or significant and substantial time – No time for child and father at this state – Child returned to Mothers care.

FAMILY LAW – Children – Risk to the child by one parent – Order made against child’s wishes – Child must return to Mother’s care – No structure, no proper role model, no discipline in father’s home and child now bordering on being uncontrollable.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS HERRIOT

Respondent: MR FODOR

File Number: SYC 6427 of 2015

Judgment of: Judge Henderson

Hearing date: 17 March 2016

Date of Last Submission: 17 March 2016

Delivered at: Sydney

Delivered on: 17 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Battley

Solicitors for the Applicant: Newtons Law

Counsel for the Respondent: Mr Newton

Solicitors for the Respondent: Paramonte Legal

Counsel for the Independent Children’s Lawyer: Mr Christaki

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW (omitted) Family Law

ORDERS

1. The child [X] born 2003 be returned to the mother forthwith.

2. The father cause the child to be returned to his mother no later than 3:30pm 17 March 2016 delivering the child to the mother outside (omitted) Police station.

3. The child live with the mother.

4. The mother have sole parental responsibility for the child.

5. In the event the father fails to comply with Orders 4 and 5 herein a Recovery Order will issue with such warrant is to lie in the Registry until such time as the Independent Children’s Lawyer contacts the Court to say the child has not been returned.

6. The child dispute conference be vacated.

7. The parties attend up a child inclusive conference on 31 May 2016 at 9:00am.

8. The parties attend a conciliation conference with a Registrar on 22 July at 2:15pm.

9. A joint balance sheet is to be filed by 24 June 2016.

10. The matter be listed on 20 October 2016 at 9:30am following the child dispute conference and conciliation conference.

11. If the parties do not agree on the value of any asset in dispute they are to obtain the services of a joint valuer to prepare a valuation report with such report to be filed at least 7 days prior to the conference.

12. Arabic interpreters be ordered for both parties for the child inclusive conference, the conciliation conference and the next mention date.

13. Leave be granted to all parties to issue more than 5 subpoenas.

14. Both parties be injuncted and restrained from discussing the proceedings or denigrating the other party in the presence or hearing of the child, or allowing any other person to do so.

15. Both parties are to complete and post the Independent Children’s Lawyer’s questionnaire to Legal Aid within 14 days.

16. Leave be granted to all parties to release the family report to any medical professional for the child and/or the family.

17. Orders are made in accordance with the document marked “Exhibit 1”, dated 17 March 2016, as attached hereto.

18. Each party shall within 24 hours telephone the rooms of Dr S, telephone number 9649 8742, to arrange an urgent appointment in respect of the child.

19. Each party is at liberty to provide to Dr S all records from the (omitted) High School, including all negative incident reports dated 23, 25 and 26 February 2016.

20. Each party is at liberty to discuss any diagnosis by Dr S and any medication prescribed by him for the child.

21. Thereafter when the child is in the mother’s care she is to bring him the Independent Children’s Lawyer to discuss the living arrangements.

22. The child is to spend no time with the father until he has returned from a holiday with his mother in the July school holidays after which the father’s time will recommence on Sunday 24 July 2016 from 10am until 6pm each Sunday.

IT IS NOTED that publication of this judgment under the pseudonym Herriot & Fodor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6427 of 2015

MS HERRIOT

Applicant

And

MR FODOR

Respondent

REASONS FOR JUDGMENT

1. In the matter in Herriot & Fodor the mother has made an application seeking the return of her son, [X], to her care. Mr Battley of counsel represents the mother, Mr Newton, solicitor, the father, and Mr Christaki represents the boy [X] born 2003. [X] has always lived with his mother. He lived with his mother and father up until separation in September 2015.

2. In January 2016 the child was rung by his father asking to assist him at the Vet as his dog had been run over and he needed his son’s English to assist him. The mother agreed. Off [X] went to assist his father with the dog and he never returned to his mother’s care. The mother brought her application as speedily as she could to have the child returned to her care.

3. The father’s response and the reasons why he says the child should live with him is that he believes or asks me to accept that his son has disclosed poor behaviour, neglect and violence of him in his mother’s home by his mother being unable to prevent [X]’s older brother [Y] from physically disciplining and hurting him. [X]’s older brother [Y] has filed an affidavit in which he sets out his affection for his little brother and denies any allegations of hurting or harming his little brother as his little brother has alleged.

4. The mother has filed an affidavit saying she has never observed this behaviour. I accept [X] is an exceedingly difficult child to control. He would test boundaries and that is clear from the material filed in the mother’s affidavit from the school. He was suspended for 20 days in February 2016 because of his behaviour towards another student. He has thrown books at class mates; he will not accept the instructions of his teachers. He swears at students and teachers, taunts other students, leaves class when he wants to and repeatedly turns up to class late.

5. He does not appear to accept authority so I have no doubt his mother struggles at times to discipline him and make him do what he should do as he is only a child. So I do not dispute that there are times when [X] does not like the authority his mother, perhaps assisted by her son [Y] for which I make no criticism endeavours to impose on [X] for his own benefit.

6. However, the father holus bolus believes that his son has been kicked and hit, thrown out of the house by his big brother that the mother did not care that she told him to go and live with his father. These complaints have come from [X] through telephone conversations with his father. The father has never raised with the mother as far as I can see on his own affidavit material which he has filed 12 March 2016 any concerns he had regarding the treatment [X] says he receives at her house.

7. With a boy who has such a troubled past when the parties were together, whilst he was in the sole care of his mother, and escalating whilst in the sole care of his father given his suspension from school for 20 days in February 2016 it behoves a parent to carefully filter what a child such as [X] is telling them and apply some common sense, reality and practicality to stories that [X] may tell. [X] is clearly a troubled child. He has been diagnosed with ADHD and prescribed Ritalin. In his father’s care, that filtering simply has not happened.

8. I gave the father a test when the matter first came before me in late January early February to parent his son. I often do so in these matters where I am concerned about a child being abused in one parents home and cannot yet test any evidence. The father told me he was concerned about his son being exposed to violence and wanted the best for his son, I gave him an opportunity to do the best for his son and directed him he to get the child back to see his paediatrician Dr S to determine whether he should be back on Ritalin medication. The father failed to do that. Now, his reasons, he says, he failed were that when he went to the medical centre where the child attends he was told Dr S was now at (omitted) and he could not get there he has no drivers licence.

9. That is insufficient, even if Dr S was at (omitted) this is not a reasonable excuse not to comply with my direction. The father then said he went about organising different paediatrician a Dr Z who is not doubt a fine paediatrician but does not know this boy from Adam. Dr S is his paediatrician. He is the person who knows the boy and that’s where he should have gone. As it transpired Dr S has not moved from his rooms in (omitted).

10. The father has attached a report of Dr Z dated 3 March 2016. The fairy tale the father told me about being informed Dr S was now at (omitted) is perpetrated in this report as the information given to Dr Z can only have come from the father and/or [X] and it is as follows:

    “[X] is a new patient to me. He has been diagnosed with ADHD. His parents are going through a bitter Family Court custody battle. He has not been on regular medication for ADHD for many months. His performance at school, group sports and home-based activities is not worse than when he was on Ritalin.

    [X] does not want to take Ritalin and his father does not want him on any psycho-stimulants unless necessary.”

11. This is the gravamen. The father does not accept [X] needs medication to control his behaviour and [X] is using this. This is not [X]’s choice.

    “Based on verbal father and [X]’s reports he appears to be an average student, well-functioning, sporty boy and his teachers do not have concerns about his performance.”

12. This statement is incorrect. It is not a fabrication, a misunderstanding or misinterpretation, it is wrong as attached to the mother’s affidavits are negative incident behaviour reports from [X]’s school.

13. 23 February 2016 some 10 days before this interview with Dr Z paediatrician:

    “[X] continued to hit a girl with his bum bag repeatedly over a period of five minutes. This was a deliberate violent attack which resulted in bruises to the girl and her phone was broken. He then attacked a second girl in the same manner. He then picked up a stick and struck the first girl a number of times with it. He got a 20 day suspension. It was recorded on video and when [X] was remonstrated about this he denied the incident.”

14. 23 February 2016:

    “[X] was on the stairwell between D and E block. I was walking past. I witnessed [X] push from behind a girl, push from behind making her drop her books and pencil case she was holding. He grabbed the pencil case and threw it and picked up her diary and walked away with it. I asked [X] to bring it back but he ignored me. I reported the incident. As I walked past [X] he again threw the diary at me which I picked up and handed to a teacher.”

15. This report was completed by the head teacher.

16. [X] told a member of the staff on 26 February 2016:

    “That I was a c … and I read c… as meaning a cunt-faced, red-faced pitbull.

    On 17 February 2016, [X] came late into the classroom. He then started to seek attention by being silly and disruptive.”

17. On 12 February 2016 he was late to class. These incidents are described as insolence, bullying, persistent lateness not just getting to school on time but going between one class to another.

18. 12 February 2016:

    “Behaviour: [X] was defiant for most of computers. Late to class. Feet up on the furniture. Swearing. Rude to teacher. Disturbing others, insufficient class work.”

19. 11 February 2016:

    “[X] and another boy punched each other during today’s lesson aggressively. Looked at [X] and [X] said, “I dare you to kick me.” I ignored at first but then [X] stood over him and punched him in the cheek. So the boy reacted and punched [X] in the chest. Reports were written.”

20. 5 February:

    “Today was our first travel day for the year. We decided to go over some rules in the classroom as a reminder of what – how children should behave. [X] refused to listen to any instructions about removing his hat in class, phone, rolling pants down. He got up and walked out of class.”

21. This has all happened on the father’s watch. I accept poor behaviours have occurred on the mother’s watch but [X]’s poor behaviour is escalating and this is the time where the father, if he was able to focus on his child’s needs, should have known full well that his son was struggling in class, with his peers, with discipline, with school work. If his father did not know these facts he is neglectful of his son’s needs and if he did know these facts and gave that description of his son to Dr Z he simply lied to the doctor.

22. Whatever way I look at it, the father has limited capacity to provide for the needs of this child either because of his work commitments, for which I do not criticise him; his limited language skills, for which I do not criticise him; or because he lacks insight into the needs of his son.

23. Going, as I now must, to address the matters under the Family Law Act, I propose today to rebut the presumption of equal shared parental responsibility. I do not see that the father has any capacity to provide for the needs of this child, it is not practical or realistic it be shared at this time and I will give that responsibility to the mother.

24. Having so rebutted that responsibility, I need not consider whether there will be an order for equal time or significant and substantial time. I will not make any order for time for the child and the father at this stage and he is to be returned forthwith to his mother’s care.

25. Only in his mother’s home has he any chance of redemption and becoming a functioning citizen in our society as opposed to what is happening now which is a boy who is headed down a pathway of criminality and being in the criminal courts. The father’s uncritical acceptance of what his son tells him causes me significant concern. This is a troubled child. He requires medication and he has been troubled for many years.

26. He requires his parents to be on the same page and provide a consistency in his treatment, not one parent to allow this child to do what he wants when he wants and that is what is happening in the father’s care. When his son told him these concerning events about what he said his big brother [Y] was doing, the father should have instantly, contacted the mother and let her know what was happening. He chose not to do that and took advantage of the situation and got the boy into his care. That is not child-focused, it is not in the child’s best interests, and it borders on abuse of his son.

27. There is no doubt the child benefits from a meaningful relationship with each of his parents and I accept his wishes are clear – he wants to live with his father. That may not be surprising given his father has very little control or authority over him or puts in place very little structures or arrangements for him. He is totally out of control this year at school.

28. I am not sure whether the child has been subjected to abuse, neglect or family violence in either parent’s home. The allegations are there and it may well be he has. However, he has no structure or proper role model or no discipline in his father’s home and the child is now bordering on being uncontrollable. His father failed to take him back to his own paediatrician and whether he misunderstood or was given misinformation, is not the point. He was directed by this court to do this, to take his child back to the doctor that knew him well and the father should have known how important that action was and he failed to do that.

29. I am making an order going against the child’s wishes and I am not sure what that will mean. However, the risk to this child of remaining in his father’s care is, as I see, significant. It is at minimum that he will not be properly medicated and treated in a manner such that his behaviour can tame down so he can be assessed and perhaps given psychological treatment and cognitive behaviour therapy or whatever is required. He may continue on a pathway of doing what he wants. His father has an implacable and negative attitude towards the mother’s family and the son [Y] and there are some real difficulties in promoting the mother’s relationship with the child whilst he lives with his father.

30. His father works long hours. He is simply not there to care for this child. I do not know who cares for this child. The child is left to his own devices and there is very little structure in the father’s home.

31. Although there are clearly difficulties and have been difficulties in the mother’s household with the child’s behaviour, he has been suspended from school whilst his mother has had his sole care, the child has told his father that his big brother has hurt him and there are clearly issues in the mother’s household. The mother is the one, even on the father’s own evidence, who has been his primary carer, has always taken him to the medical appointments and always done that hard yards parenting and he was attending school and the mother was engaging with the school whilst the child was in her care.

32. The father has not engaged with the school and he really needs to. This is very concerning behaviour.

33. For all those reasons this child I agree with the position of the ICL that [X] be returned to the care of his mother forthwith.

34. I order the father to cause the child to be returned to the mother’s care no later than 3.30 today, 17 March, by the child being returned to the mother outside (omitted) Police Station by the father.

35. In the event the father fails to comply with this order, I issue a warrant for the arrest of the child to cause compliance with my order that the child be returned to live in the care of his mother, with such warrant to lie in the registry and to be activated upon a phone call from the independent children’s lawyer to my associate that the father has failed to comply with my order for the child to be returned to his mother’s care.

36. Thereafter, when the child returns to the mother’s care, she is to bring him to the independent children’s lawyer to discuss the living arrangements. The child is to spend no time with the father until he has returned from a holiday with his mother in the July school holidays, after which the father’s time will recommence on Sunday, 24 July, from 10 am to 6 pm each Sunday.

37. I have made the order for there to be no time with the father to give the mother the best opportunity I can to put in place the structures and regimes and medical treatment she needs for this child to get him back on track and to not have any interference run by the father, if in fact he be doing that. Only the mother is able to care for this child at this stage. 

38. It is hope that when back on Ritalin and he will be able to participate in normal activities of 13 year old boys.

39. In addition I make the orders sought by the independent children’s lawyer 1 through to 7, and I note the notations about the parents’ undergoing some Unifam counselling to assist them to parent this very difficult child.

40. Further I make the orders sought by the mother that each party shall telephone Dr S’s rooms within 48 hours to arrange an urgent appointment in respect of the child and that they may provide to Dr S all material, including school reports and the like, that is required and that each may attend any appointment with Dr S and their son.

41. The parties will undertake to the court to use their best endeavours to ensure medication that is prescribed for the child is taken by the child and each party is restrained from encouraging the child not to take prescribed medication.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 17 March 2016