Nagata and Feist
[2012] FMCAfam 1437
•31 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAGATA & FEIST | [2012] FMCAfam 1437 |
| FAMILY LAW – Children – parenting – recovery order – Notice of Abuse – family violence – best interests of the child – child less than 12 months old – child born [in] 2012 – where child has a half brother born [in] 2009 – where mother primary caregiver of the subject child since birth – allegations of substance abuse – allegations of alcohol abuse – injunction for personal protection of the mother – presumption of equal shared parental responsibility does not apply where reasonable grounds to believe parent has engaged in family violence – sole parental responsibility. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 67Q, 67ZBA, 67ZBB, 68B Federal Magistrates Court Rules 2001 rr.5.01, 5.03 |
| Applicant: | MS NAGATA |
| Respondent: | MR FEIST |
| File Number: | SYC 7853 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 December 2012 |
| Date of Last Submission: | 31 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Cantrell, Duty Solicitor, Legal Aid NSW |
| Solicitors for the Respondent: | NA |
ORDERS
UNTIL FURTHER ORDER
The Applicant is granted leave to proceed ex parte.
The father must forthwith return the child [X] born [in] 2012 to the mother.
In the event that the father fails to return the child [X] to the mother a Recovery Order is to issue for the child pursuant to section 67Q of the Family Law Act 1975,
The Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police are authorised and directed with such assistance as they require and if necessary by force:
(a)To stop and search any vehicle, vessel or aircraft and search any premises or place for the purpose of finding the child;
(b)To recover the child;
(c)To deliver the child to the mother;
(d)To arrest, without warrant the father in the event that the father again removes and takes possession of the child.
The mother is to have sole parental responsibility for the child [X] born [in] 2012.
The child [X] is to live with the mother.
The Respondent father is restrained from:
(a)Assaulting, molesting, harassing, threatening or otherwise interfering with the Applicant;
(b)Stalking the Applicant;
(c)approaching within 100 metres of the Applicant’s residence; or
(d)approaching or contacting the Applicant except through his legal representative or as permitted by an Order of the Court.
The Applicant is serve on the Respondent by Monday 7 January 2013 sealed copies of:
(a)the Application;
(b)the affidavit in support; and
(c)these Orders.
The Application is adjourned to Thursday 10 January 2013 in Court 3A at 10:00 am for further mention.
IT IS NOTED that publication of this judgment under the pseudonym Nagata & Feist is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7853 of 2012
| MS NAGATA |
Applicant
And
| MR FEIST |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application brought on an urgent basis by the mother of a little girl called [X] who is just under 12 months old for a recovery order for her return. The mother does not work and has been the child’s primary caregiver since she was born.
Background
The mother claims that on 27 December 2012 at [omitted] Railway Station the father took the child from her pram and walked off to the other end of the station. He then sent her a text message saying “we r done. Over”. The mother and her son [Y], a child of a previous relationship who was born [in] 2009, made their way home to the maternal grandmother’s home.
The following day, the mother went to the father’s home to retrieve some of her belongings, accompanied by the Police. After some negotiation, as a result of which the mother was required to hand over the parties’ Foxtel Card, the mother was able to hold Baby [X]. She observed the child to be very red in the face and rather “clingy”. The father would not allow her to take the child away with her and the police were unable to make him do so, as there was no parenting order under the Family Law Act to give them authority.
The mother deposed in her affidavit that the father said that the next time that she would be able to se the child would be on the child’s birthday, which is [date omitted] 2013.
Evidence and Submissions
The mother relied on a detailed affidavit that had been prepared for by the duty lawyer from Legal Aid NSW, Ms Cantrell. The mother gave oral evidence.
The Law to be applied in Parenting Applications
Section 60CA of the Family Law Act requires the Court, when considering making a parenting order, to regard the best interests of the child as the paramount consideration.
The Court determines what is in a child’s best interests by considering the matters in subsections (2) and (3) of s.60CC of the Act. Subsection 60CC(2) contains the primary considerations, one of which, and the one to which the Court must give greater weight, is set out in paragraph (b) of s.60CC(2);
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Family violence is also an additional consideration under paragraph (j) of subsection 60CC(3):
any family violence involving the child or a member of the child’s family.
The Court, when making a parenting order, must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA(1)). However, s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence.
Conclusions
This Application has been brought in circumstances of urgency by the Applicant, who has sought a Recovery Order. Rule 5.01 provides for urgent applications to be made and requires the Court to make an order until a specified time or until further order.
Urgent applications must be supported by an affidavit of the Applicant under Rule 5.03, which establishes the reasons for urgency, including:
(e) the nature and immediacy of the damage or harm which may result if the order is not made; and
(f) why the making of the order is a matter of urgency and why an abridgement of the time for service of the application and the fixing of an early hearing date would not be more appropriate.
Here the mother has filed a Notice of Child Abuse, Family Violence or Risk of Family Violence under s.67ZBA of the Act, alleging family violence by the Respondent. Section 67ZBB requires the Court to take action as soon as practicable after the notice is filed.
The Court has complied with the requirement of s.67ZBB by listing the Application for an urgent hearing on the same day the notice and the Substantive Application were filed and making orders that the Court considers appropriate.
There are a number of matters of concern, including:
a)the circumstances of the father taking such a young child from the care of the mother and refusing to return her to the mother;
b)the mother’s evidence of the father’s use of illicit an substance, marijuana;
c)the mother’s evidence of the father’s abuse of alcohol; and
d)the mother’s evidence of the father’s violence towards her when affected by alcohol, including punching her in the face when she was holding the child.
All of these matters are sufficient to persuade the Court that the Applicant should be given leave to proceed ex parte. The father must return the child to the mother forthwith or, if he fails to do so, then a Recovery Order under s.67Q of the Act will issue for the return of the child.
The child [X] will live with the mother until further order. I note that the child has half-brother, aged three. The mother has given evidence that [Y] has been asking where his sister is. She told the Court that he has a good relationship with his baby sister.
In my view, there is evidence upon which the Court can find that there are reasonable grounds to believe that the Respondent father has engaged in family violence. Consequently, the presumption of equal shared parental responsibility does not apply. An order will be made until further order that the mother is to have sole parental responsibility for the child [X].
In the circumstances, no parenting order will be made in favour of the Respondent. The Application will be adjourned until 10 January for further mention at 10:00 am, when the father can attend and make whatever submissions he wishes.
Finally, the mother’s evidence of the father using violence towards her is disturbing. The mother attended Court and it was clear that she is a slightly built young woman. She gave evidence of being fearful of the Respondent when he uses violence towards her.
The Court will not tolerate family violence. Consequently, an injunction under s.68B of the Act will issue for the personal protection of the mother, restraining the Respondent from assaulting the Applicant, approaching within 100 metres of her residence or approaching or contacting her except through his lawyer or as ordered by the Court.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 10 January 2013
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