Moysey and Withers
[2010] FMCA 1454
•15 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOYSEY & WITHERS | [2010] FMCA 1454 |
| FAMILY LAW – Parenting – Contested recovery order. |
| Family Law Act 1975, ss.11C, 11F, 60CA, 60CC, 62B, 64B, 65DA, 67U, 67V |
| Applicant: | MR MOYSEY |
| Respondent: | MS WITHERS |
| File Number: | WOC 877 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 15 December 2010 |
| Date of Last Submission: | 15 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Verekers Lawyers |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Self Represented Litigant |
THE COURT ORDERS THAT:
Pursuant to s.11F of the Family Law Act 1975 (“the Act”), the parties attend a Child Dispute Conference with a Family Consultant in this Registry today and, pursuant to s.11C of the Act, such conference be reportable.
All extant applications be adjourned to this Court on 12 January 2011 at 9:30am for mention before Federal Magistrate Howard on an urgent basis (“the urgent mention hearing”).
The Respondent facilitate the return of [X], born [in] 1998, and [Y], born [in] 2001 (“the children”) to the Applicant by no later 12 noon on 29 December 2010.
Each party be restrained from taking either or both of the children to any psychologist, psychiatrist or like health professional without the express written consent from the other party.
The Respondent enter into an undertaking to comply with all current parenting orders and indicate that undertaking to the Court in writing on or before the urgent mention hearing.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to ensure the Respondent’s compliance with these Orders and all existing parenting Orders and, in the event of non-compliance by the Respondent with paragraph 3 herein, the Court will be at liberty to make an urgent Recovery Order in relation to the children.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Moysey & Withers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 877 of 2010
| MR MOYSEY |
Applicant
And
| MS WITHERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR MOYSEY (“the father”) against
MS WITHERS(“the mother”) seeking a recovery order and injunctions in respect of the children, [X], born [in] 1998, and [Y], born [in] 2001 (“the children”). The father asserts that the mother is retaining the children contrary to the orders made by Altobelli FM on 18 November 2009. His Honour delivered the reasons for that decision on 23 January 2009, following a two-day defended hearing on 17 and 18 November 2008.
The father’s Application is supported by his affidavit sworn on
11 November 2010, filed on 18 November 2010, and he is legally represented by Ms Kensell as agent today.
The respondent appears in person today. She has not filed a Response but has today filed two affidavits following advice received from the duty solicitor. She opposes the recovery order and also seeks, it would appear, changes to the existing orders to enable the children to live with her.
Background
The matter has had a long history before this Court. The relevant background appears in the written decision of Altobelli FM and, in particular, paragraphs 1 to 18 inclusive. The parties agree that the mother has retained the children in her care since 26 October 2010. The mother acknowledges that she has enrolled them “on a temporary basis” (using her words) in [B] School, and she admits that they are living with her in her home in [F].
The father’s version of the events that occurred before and subsequent to 26 October 2010 is contained in his affidavit.
The mother asserts that the children are not safe in the father’s care and do not wish to live with him, factors which, she says, explain her actions in withholding the children. It would appear the mother filed an appeal in relation to his Honour’s decision, but subsequently withdrew that appeal. The mother asserts there have been multiple breaches of the orders by the father but acknowledged that, firstly, she has not brought any contravention proceedings against the father and, secondly, she has not commenced any proceedings seeking a variation of the existing parenting orders.
Issues
The issues to determine today are whether the children should return to the father’s care and, if so, how and when, and if the mother does not return them to the father’s care, whether a recovery order should facilitate that return.
Family Consultant’s Memorandum
The Court made an order earlier today requiring the parties to attend a child dispute conference pursuant to s.11F of the Family Law Act 1975 (“the Act”) on an urgent basis. The parties subsequently attended this morning with family consultant Ms G. Ms G thereafter provided the Court with a detailed memorandum where she indicates that the summary of agreements reached was “nil”. As to the issues in dispute, she describes it as follows:
“The father seeks a recovery order for the return of the children to his care[.] The mother seeks that the children live with her, and spend supervised time only with their father.”
As to issues impeding resolution, Ms G makes the following comments:
“Poor parental relationship with no cooperation or communication; The father alleges that the mother has not accepted the previous Court decision has been unpredictable in her time with the children, emotionally abusive and rejecting of the children. He essentially feels that the mother has attempted to ‘drive a wedge’ in the relationship between the children, himself and his partner, Ms M. The mother alleges that the children are unsafe in the father’s care due to: exposure to family violence in the father’s household (between the father and his partner, and the children’s older brother, and the father’s partner’s son), exposure to essentially pornographic photographs (on the computer) of the father and his partner, and excessive alcohol consumption by the father. The father essentially denies that there are any safety concerns within his home. The mother indicated that the children wish to live with her but the father suggested that the children might be negatively influenced by their mother. He suggested that the children are not likely to be concerned about returning to his care.”
As to recommendations, Ms G does not recommend that the parties have any further family dispute resolution. She has noted that there are significant allegations of family violence in this matter, but notes there is no notification of child abuse risk, although the mother seemed to indicate to me today that there had been a complaint made to the Department of Community Services. As to specific recommendations, apart from saying that further family dispute resolution was unlikely to assist the parties, Ms G did indicate that, if the matter proceeds, for any final hearing there should be a family report. However, Ms G notes that the mother has indicated she does not want the family consultant, Ms K, to prepare any prospective family report because of her previous involvement in these proceedings. Ms G also suggests that if the matter proceeds, an independent children’s lawyer be appointed. The Court notes that an independent children’s lawyer was appointed when these proceedings went before Altobelli FM.
Parties’ Submissions
Ms Kensell, as agent, gave submissions for the father, and the mother gave submissions for herself. Given that this is a busy duty list and given also that the Court has other matters seeking time, it is not proposed to summarise those submissions herein but, of course, those submissions would be reflected in today’s transcript.
Law and Discussion
Clearly, all parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in s.64B of the Act, and parenting orders deal with issues such as where a child is to live, the time the child is to spend with another person and otherwise allocate parental responsibility in relation to a child. At this point, let me note that the principle enunciated in s.60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to the child, the court must regard the best interests of the child as the paramount consideration.”
Under s.67U of the Act, the Court has the power to make a recovery order in respect of a child as it thinks proper. This provision is subject to s.67V of the Act in that, in deciding whether or not to make the order, the Court must regard the best interests of the child as the paramount consideration.
Section 60CA through s.60CC of the Act deal with how the Court determines the best interests of the child; clearly, of most pertinence today would be the primary considerations in s.60CC(2) and any additional considerations under s.60CC(3), where relevant.
Primary considerations: s.60CC(2)(a)
Section 60CC(2)(a) requires the Court to consider the benefit of the child having a meaningful relationship with both of the child’s parents. At this point, let it be noted that “meaningful” does not mean “equal”, but it clearly signifies that both parties should be involved with their children and, consequently, signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is the right of the child’s.
The Court is also required, under s.60CC(2)(b) to consider the need to protect the children in this case from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence.
This was clearly a feature of the hearing before Altobelli FM in late 2008. It is clear that comprehensive orders were indeed made by the Court just two years ago. They followed a two day contested hearing where the children were represented by an independent children’s lawyer, and where a family report and the relevant evidence was considered by the Court. Both parties assert contraventions of the orders since the orders were made. Yet, to the Court’s knowledge, neither party has filed a contravention application in this Court or in the Family Court. The mother is clearly withholding the children, contrary to the current orders, and acknowledges that. She asserts justification, but did not seek to file an application to vary the existing orders since the children came into her full time care seven weeks ago.
Conclusion
Having considered the respective applications and submissions in light of the available evidence, and the relevant statutory provisions, the Court is satisfied that the current orders should remain in full force and effect and, consequently, the children will need to be returned to the father’s care, and the Court will allow the mother two weeks to effect this. In other words, they are to be returned to the father’s care by
29 December 2010. To ensure compliance, this matter will be listed into the duty list of this Court on 12 January 2011 before Howard FM. In the event of non-compliance, the father will have liberty to request the Court to make a recovery order in respect of the children.
The Court urges the parties to avoid the need for such an order. The mother will be required to enter into an undertaking that she will comply with orders. If that undertaking is not received by the Court on or before 9:30am on 12 January 2011, the father will be at liberty to seek the suspension of the relevant spend-time orders.
There will be Orders of the Court to reflect this decision and the right to settle the reasons for this decision is reserved.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 10 January 2011
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