Keane and Keane

[2008] FamCA 464

FAMILY COURT OF AUSTRALIA

KEANE & KEANE [2008] FamCA 464

FAMILY LAW – CHILDREN – Application for recovery order for seventeen year old child

APPLICANT: Mrs Keane

RESPONDENT: Mr Keane

INDEPENDENT CHILDREN’S LAWYER: Mr Pithouse

FILE NUMBER: MLC 6543 of 2007

DATE DELIVERED: 4 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 June 2008

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Dwyer Robinson Pty Ltd

Orders

1. That the mother’s application for a recovery order in relation to the child M born … November 1990 shall be and is hereby dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6543 of 2007

MRS KEANE

Applicant

And

MR KEANE

Respondent

REASONS FOR JUDGMENT

1. I have before me today the mother's application for a recovery order seeking to recover her son, M, who is currently 17½. 

2. There has been litigation over M off and on for many years.  Throughout his life, virtually at all times, he has lived with his maternal grandparents.  In 1996 there were court orders to the effect that his mother was to have some contact with him.  His father has apparently not been involved throughout his life. 

3. In the current round of litigation, the mother is seeking that M now come to live with her.  Her mother, the maternal grandmother, passed away in March of this year, and her father who is the other party to the proceedings is terminally ill with bowel cancer. 

4. The mother’s application today is based on a very scant affidavit filed on the same day as her application, that is, 30 May 2008.  She sets out that M is currently residing in regional Victoria, that there is no primary carer, and there is now no-one looking after him.  She swears that M suffers from developmental delay so that his mental capacity is that of a 12 to 13 year old.  He needs medication, he is forgetting to take it, and there is no-one else living at the house looking after him.  She swears that "there is no primary carer living there other than myself who is his biological mother."  I must say that last aspect makes no sense at all.  On her submissions today, she is making it quite clear that she does not live at the house with the boy. 

5. The mother wants M picked up and brought to live with her.  I have letters in front of me today from both the solicitor for the maternal grandfather and the solicitor for the Independent Children's Lawyer.  Both have explained why they have not attended today.  They have explained that although the wife has been legally represented and her solicitors remain on record, she has brought this application on her own accord.  They explain the problems with their Legal Aid funding and the implications if they were to attend court today.  They make detailed submissions as to why this order should not be granted, including by directing me to the judgment of Guest J of 7 December 2007 and the order of Cronin J of 28 April 2008.

6. The judgment of Guest J, made at a time when he had the benefit of a Family Report, was quite forthright in its criticism of the mother and in setting out how strongly M felt against living with her. 

7. The application before Cronin J on 28 April 2008 apparently related to listing matters and his Honour was unpersuaded that the matter should be listed quickly.  The only order that his Honour made was, "That all outstanding applications await a final hearing before a judge on a date to be determined."  The gloss that the solicitors put on that in the letters that I have received is that his Honour made it absolutely clear that there was no basis upon which the matter should urgently be heard, even though it was likely that by the time the case was reached M would be over 18 and out of the jurisdiction of this court.

8. In the course of her submissions this morning, the mother, who obviously feels passionately and keenly about these issues, and is obviously upset at the way the proceedings have gone so far, did concede that the Independent Children's Lawyer’s information that her sister is currently living at the home with M, is in fact correct.  Although that might be an arrangement with which the mother is unhappy, the Independent Children's Lawyer is at this point not taking any action about it, and it is quite a different situation from the assertion in the mother’s affidavit to the effect that M has no-one at all caring for him. 

9. During interim proceedings in this case, there has evidently been no concluded view by the Court that in the interim this young man should suddenly go to live with his mother.  I do not propose granting the recovery order today. It is M’s best interests that I need to take into account.  I am satisfied that it cannot be in his best interests to be precipitously removed by police from where he is living, to live with the person he has virtually never lived with, and about whom he has expressed adverse comments and wishes.

10. The order that I will make is that the mother's application for a recovery order in relation to the child M, born in November 1990 shall be and is hereby dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  4 June 2008