MACARTHUR & DICKSON

[2013] FamCA 1170

FAMILY COURT OF AUSTRALIA

MACARTHUR & DICKSON [2013] FamCA 1170

CHILDREN – Application for recovery order – Department of Family and Community Services not involved in proceedings despite some involvement with family – Evidence of some risks if child recovered into mother’s care – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: MS MACARTHUR

RESPONDENT: MR DICKSON

FILE NUMBER: PAC 4260 of 2013

DATE DELIVERED: 4 October 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 4 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Self-represented Litigant

Orders

1. The mother’s application for a recovery order is dismissed.

2. The remainder of the mother’s orders sought on an interim basis are dismissed.

3. The substantive proceedings are adjourned to before the Magellan Registrar for mention on Thursday 17 October 2013 at 10.30 am.

4. The Applicant is to file and serve any Amended Application by close of business on Monday 14 October 2013.

5. The Respondent is to file and serve any Response by close of business on Wednesday 16 October 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Macarthur & Dickson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4260 OF 2013

MS MACARTHUR

Applicant

And

MR DICKSON

Respondent

REASONS FOR JUDGMENT

1. This is an application made by Ms Macarthur (“the mother”), who is the mother of X who is seven years old (“the child”), seeking an order that X live with her, that she have sole parental responsibility for him and that a recovery order be made. The Respondent to the application is Mr Dickson (“the father”), who is X’s father. The principle that governs all of these applications, that is a recovery order and also parenting orders, is that the best interests of the child is the paramount consideration. So I will be governed by the best interests of the child and those matters set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”).

2. The application is accompanied by a fairly limited affidavit, and I do not mean that in any way to criticise the Applicant, but it is supported also by some oral evidence that she gave today.  There was also some information provided – though I do not treat it the same as evidence - by a Ms B from the Department of Family and Community Services.

3. It appears to me that there have been concerns raised – whether or not they are substantiated at this stage – about a range of issues relating to X’s welfare. They are that he has not been fed properly, that he has not been attending school and certainly there are assertions made to police in the proceedings for the Apprehended Violence Orders that are in place that X has not been attending school for a matter of many months.  There is also the issue that has been raised by the father about safety concerns of the mother’s partner.

4. I am concerned at the way in which the Department of Family and Community Services has approached the matter, in that they seem to have been involved to a very limited degree and are relying upon Apprehended Violence Orders to secure the safety of the child.  This is a method that, in some cases, is acceptable, but I am concerned that they have not been as involved as they ought to be.  Be that as it may, I need to deal with the application before me today on its merits.

5. Essentially, the mother is saying that X has been in her care for the entirety of his life and that, as far as she understands it, the problems that the Department of Family and Community Services had in relation to her care of X have now been overcome.  She also added, even though she did not give evidence about it, that it is clear that she has a large rent debt on the home that she has been living in.  She understands that locks are going to be changed tomorrow and she wants to go to her family in Melbourne on a temporary basis but promises that she will return in something like four to five weeks and says she will also bring X up to Sydney to see his father.

6. It emerged in the cross-examination of the father, (and unfortunately the father did not cross-examine the mother upon this, nor did the mother give evidence about it herself, but I think it is a very relevant issue to X’s wellbeing and best interests,) that there have been periods over the last 10 years where the mother has travelled without X, from time to time, as she described it in her question of the father:

   It is true in the last 10 years I’ve travelled to Melbourne a lot because I have family there?

7. The mother, which the father agreed with, described leaving X in the home between March and June 2013.  It may be that for some of that period X was not attending school.  I do not know, but certainly when the mother asserts on one hand, she has been his primary carer, it is clear from her own questions that in fact there are matters of months where she leaves X in the father’s care, which she obviously is comfortable with.  In fact, that was the exact tenor of those questions. 

8. I think it is somewhat strange and I have concerns about the explanation that has been given as to why the father has not been present in person today.  The version of events that he has put forward is that even though he came to this Court to make an application yesterday, he then drove all the way to Queensland in order to get some money, and that he saw his parents for a matter of hours and now is on his drive back.  I am not sure why money could not have been transferred through the bank but, in any event, I find it quite strange.  It certainly is the case, and the father was not cross-examined about it, that he intends to return to Sydney tonight and will resume care of X at the home where the child is presently staying.

9. And even though, as I say, I find the whole issue of the father travelling to Queensland quite odd, it certainly is not as concerning as I first thought it was, in that he did not take X with him.  I am concerned however that, in effect, someone is looking after X and nobody knows exactly who it is and whether his safety is satisfied.  In any event, the father is arriving back in Sydney tonight.  He is X’s father.  The mother seems to not be worried about leaving X for a matter of months in the father’s care so, in my view, the issue of the child has been in her primary care is not quite as clear as asserted.

10. It appears that the Department of Family and Community Services did tell the mother that X would be returned on Wednesday last, and it seems that whilst they may have had some particular concerns, and it appears to be suggested those concerns were in relation to the mother’s drug use, that what has in fact happened since then is that other matters have emerged.  I am concerned that there is currently a real concern about the transience of the mother.  She intends leaving the state with an $8,000 rent debt behind her and had intended to simply take X with her.

11. I am very concerned about his stability, especially when he is a child who has been referred to as not having regularly attended school.  I do not think the mother appears to appreciate that you do not simply take children away for a few months and go back and forth, returning some four to five weeks later, and leave a large debt.  I think that a lot of matters in relation to X’s care and protection need to be resolved.

12. It would appear to me that the Department of Family and Community Services are probably the best placed to resolve those matters, and if the Court were to issue the recovery order to place X back in his mother’s care, there would be some risk.  In fact, the mother has made it clear that she will be leaving and going to Victoria.  It appears to me that X has a reasonably satisfactory relationship with both of his parents.  I would be concerned about what would happen if the recovery order were made, particularly that he would be taken interstate.  It seems that, as far as the capacity of the parents are concerned, there have been some concerns about providing for X’s needs and both parents are responsible.

13. In my view, there is some risk to X’s wellbeing that has been raised in this hearing.  The Department of Family and Community Services unfortunately perhaps have not taken the most appropriate action but, in any event, X does have another parent who, on the evidence given on oath, will be returning to X today.  In all of the circumstances, I am not satisfied that it would be in X’s best interests to make the orders sought by the mother and her application for a recovery order is dismissed.

14. I also do not intend making the other orders the mother seeks on an interim basis.  I do not think they are appropriate to be made today, on the evidence before me, for the reasons given.  However, I am concerned if the matters are simply dismissed and if the Department of Family and Community Services takes no other action in relation to X, there still may be some risk factors for X.

15. I therefore list the matter before the Magellan Registrar for consideration in the Magellan program and for further directions to progress the substantive proceedings.

16. The orders that I otherwise make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 4 October 2013.

Associate: 

Date:              17 October 2013