Lerner and Lerner

[2008] FamCA 270

FAMILY COURT OF AUSTRALIA

LERNER & LERNER [2008] FamCA 270

FAMILY LAW  -  CHILDREN - recovery order  -  allegations of removal of child in course of violent confrontation  -  risk to child  -  interim residence to mother  -  no time or communication with father pending further order.

Family Law Act 1975 (Cth)

MOTHER: Mrs Lerner

FATHER: Mr Lerner

FILE NUMBER: HBC 327 of 2008

DATE DELIVERED: 3 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 3 April, 2008

REPRESENTATION

SOLICITOR FOR THE MOTHER:

Mr. Herd

Blissenden Lawyers

THE FATHER: In person

Orders

1. That all times be abridged to allow the matter to proceed ex-parte.

1. That until further order K born … May, 2005 and D born … March, 2006 (“the children”) live with the mother.

1. That until further order the respondent father spend no time with and have no communication whatsoever with the children.

1. That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the child K born … May, 2005 and deliver the said child to the mother forthwith, she being the person entitled to have the said children live with her, pursuant to orders made in the Family Court of Australia this day.

1. That until further order the father, by himself, his servants or agents be and is hereby restrained from removing or attempting to remove the said children K born … May, 2005 and D born … March, 2006 from the Commonwealth of Australia  AND IT IS FURTHER ORDERED  that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until further order of the Court. 

1. That upon execution of the Recovery Order the father be and is, by himself, his servants and agents restrained from removing or attempting to remove K and D from the mother’s possession and in the event he does so remove or attempt to remove a child he may be arrested without warrant.

1. That as soon as practicable the solicitor for the mother serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne,  AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order. 

1. That as soon as practicable the mother serve the father with the following documents :

   (a)applications filed by her this day;

   (b)affidavit sworn by her and filed this day;  and

   (c)sealed copy of this order.

1. That the form 2 application filed this day be otherwise adjourned to 10:00 am. on 28 April, 2008 in the judicial duty list in Hobart.

1. That on or before 24 April, 2008 the father file and serve :

   (a)any response to an application filed by the mother;  and

   (b)any affidavit in support of such a response.

1. That either party have liberty to apply on short notice to the other party.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That the preparation of these orders be expedited forthwith.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  HBC 327 of 2008

MRS LERNER

Mother

And

MR LERNER

REASONS FOR JUDGMENT

1. This case comes before the court by way of an urgent ex-parte application.  The applicant is the mother of the parties' two sons, K, born in May 2005 and D, born in March 2006.  The respondent is the children's father.  The mother also has two children from an earlier relationship, who live with her.

1. The parties were in a turbulent relationship for some time.  The evidence of the mother, contained in affidavit sworn by her and filed today, is that while their final separation dates from July 2007, the father did not live with her and the children on a permanent basis after November 2006, partly because he spent considerable periods of time in gaol and partly as a result of various separations and reconciliations.  Her evidence is that he was in gaol for much of the period between May 2007 and 21 February 2008, serving time in respect of convictions for violence.  He is currently awaiting trial in the Supreme Court for an alleged violent assault upon his brother.

2. There is evidence of a previous family violence order, which expired in November 2007.  The mother's evidence is of not renewing it, as the father was in gaol at the time.  Her evidence, which I will not detail, is of a long history of domestic violence and abuse, including head butting, kicking, punching, backhanding and pulling her hair.  Her evidence is of the husband abusing alcohol and drugs and of displaying problems consistent with psychiatric illness.

1. The mother’s evidence is that on 20 March this year, the father violently assaulted her and removed the children from her care.  She has not seen K since that day.  Her sister managed to take possession of D on 1 April 2008, and return him to the mother's care.

1. The mother’s evidence is that police were sufficiently concerned for her safety and that of her children that on 1 April 2008 they intervened and placed her in emergency accommodation overnight, with her two children from the earlier relationship and D.  She is presently seeking accommodation in a safe house.  The department is involved but to what extent I cannot say.  The mother’s evidence is that after her sister managed to retrieve D on 1 April, the husband and associates vandalised and damaged her sister's car, and smashed the windows of her home.  In the course of that attack on property, glass was embedded in the eye of one of her sister's children.

LEGAL PRINCIPLES

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

1. I am satisfied it would be premature to consider whether the presumption has been displaced.  On the wife’s evidence, it would not apply but a decision should be postponed until the father has had an opportunity to respond to the allegations made by her.

1. The mother’s evidence is that she has been the primary carer of the children since birth.  This is an ex-parte application.  The court must always be cautious in acting when the respondent to the litigation is not in a position to be heard.  However, based on the evidence before me, I am satisfied a recovery order should issue to return K to the care of the mother, and she should have the interim residence of both children, pending further order.  The children’s best interests require such orders.

1. The evidence raises concern about K’s safety and well-being whilst in his father's care.  Given the evidence that police are looking for the father, there must also be a risk of flight;  orders will restrain the father from taking K from the Commonwealth of Australia. 

1. I propose to otherwise adjourn the matter to 28 April 2008 in the Hobart Registry, which I am advised is the first available date in a judicial duty list.  Liberty to apply will allow an urgent application for an earlier listing, if necessary.  

I certify that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.