Palermo and Ingham (No. 3) - [2008] FMCAfam 197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PALERMO & INGHAM (No.3)

[2008] FMCAfam 197

FAMILY LAW – Parenting orders – further non-compliance by the father of orders made for the child aged sixteen to spend time with his mother whom he had previously lived with – recovery order issued – residence order reversed.

Family Law Act 1975, ss.65E and 67Q

Applicant:

MS PALERMO

Respondent:

MR INGHAM

File number:

ADC 171 of 2008

Judgment of:

Lindsay FM

Hearing date:

25 February 2008

Date of last submission:

25 February 2008

Delivered at:

Adelaide

Delivered on:

25 February 2008

REPRESENTATION

Counsel for the Applicant:

Ms T. Lewis

Solicitors for the Applicant:

Angela Ferdinandy

Counsel for the Respondent:

Mr D. Moore

Solicitors for the Respondent:

KJB Law

ORDERS

UPON NOTING THAT the effect of this Order made today is the revival of the Order made by the Family Court of Australia on 3 August 2004, which provides that the said child do live with the mother,

THE COURT ORDERS THAT:

Pursuant to section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the child of the applicant and respondent N born in 2001; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found,
and to deliver the child to the mother MS PALERMO at such a place as the mother and the person effecting such recovery agree to be appropriate.
Paragraphs 1, 2 and 3(b) of the Order made on 6 February 2008 be discharged.
Further consideration of this matter be adjourned to 3 March 2008 at 9:15am (SA time).

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 171 of 2008

MS PALERMO

Applicant

And

MR INGHAM

Respondent

REASONS FOR JUDGMENT

This is a matter that came before me last week. The reasons I gave last week dealt with the history of the matter, as indeed did the reasons I gave the week before that.
I have made two orders now that provide for the child to spend some time with his mother and siblings. He has lived with them since the parties separated three or four years ago.
I have dealt with in my previous reasons why it is that I thought we ought to fall in with his wishes, pro tem, in relation to where he wanted to live, notwithstanding that the order I made had the effect of changing his living arrangements. We gave weight to his age and the need to respect the level of cognitive behaviour one would expect of a 16 year old.
We also had before us on the previous occasions the fruit of a session the child had with a psychologist. The child focused upon his concerns relating to his attendance at S School. His concerns did not relate principally to his mother; they only related to his mother in terms of what he said was his inability to discuss with her those and related problems.
For a time, at an earlier interlocutory hearing, it was adumbrated that we would be hearing some more serious or more substantive criticisms of the mother’s parenting as it related to her relationship with the child but they did not materialise, so we have a position where we have changed the living arrangements.
The child has the security of knowing he will return to where he wants to live for the time being, but balancing that we made orders that provided for the child to resume the relationship with his mother and brothers that he has known since before the parties separated.
We now have a position where the child simply refuses, after some prevarication relating, I infer now, to some quite specious allegations on the child’s part as to his health. We now cut to the chase, as it were, and we find that the child is simply intending not to have a relationship with his mother and his siblings, at least in the short term.
All of that suggest that the child’s presentation to the psychologist and to his parents is masking what must be other imperatives associated with his decision-making. There is no point in speculating about them. They might relate to some personal difficulties he has in Adelaide. They may relate to some personal difficulties he has in facing his brothers with the decision he has made to live with his father. Perhaps he anticipates being challenged by his brothers or by his mother in relation to his decision-making, but he is 16.
His decision has the imprimatur, now, of an order of the Court and it is important, as I indicated in my previous reasons, that we balance up all of the matters relating to his welfare and not just fall in with the preferences of a 16 year old whom we are told is quite impressionable and quite shy and quite reticent in coming forward.
Goodness only knows what sorts of matters are impacting upon his decision-making at the present time. All we can do is to frame orders that give effect firstly, to respecting his living preferences and secondly, providing a mechanism for him to resume a normal level of communication with all members of his family.
There have been no difficulties in him having a relationship with both parents whilst he has lived with his mother. It did not even require any great degree of specificity in the orders providing for him to spend time with his father during school holidays. The first time an obligation has been cast upon the father to ensure that the child spends time with his mother whilst living with him he fails to get the child to the starting gate, as it were, and not just once but now on a couple of occasions.
I do not want to be too critical but the facts I think speak for themselves. The child either perceives that he has a licence to behave as he wants to behave, irrespective of Court orders, whilst in his father’s care or the father does not have the natural authority that needs to be exercised in relation to children of this age.
I am really going into matters I have already canvassed in previous reasons. Everyone was on notice on the last occasion that the Court expected its orders to be given compliance. The only additional fact now is that we have the child alleging what the mother vehemently denies: that she behaved in a wholly inappropriate way in a telephone conversation with N after I made my last order.
I cannot give any weight to that. It is a matter that is significantly in dispute, although of the two versions, it must be thought that the mother’s version, conveyed through her instructions to her counsel today, is more likely to be true. It is highly unlikely in these circumstances that she would behave in a way that would undermine the likelihood of the child returning to her. There are all sorts of reasons to believe why the child, who is behaving in this way at the present time, would invent allegations relating to his mother’s conduct, to try to excuse the decisions he is making at the present time.
In all of the circumstances the Court cannot expect its orders to be given compliance unless it is done through the mechanism of a recovery order. I do not interpret a recovery order, strictly speaking, to be a parenting order and therefore it is not a matter that, strictly speaking, s.65E of the Family Law Act 1975 applies to, but I think that is a distinction without a difference.
N’s best interests will be my paramount consideration in determining whether to issue a recovery order. It is because it is in his best interests to spend time with his mother and siblings, and to ensure there is not a permanent rupture in their relationship, whilst recognising the preference he has to live with his father at the present time, that it is in his best interests that a recovery order issue.
My orders of 18 February provided that there should be a return of the child to live with the mother. The reasons I gave for making that order in many respects apply a fortiori in the present circumstances. The reason that order was made was the prospect of the child being unable to have a meaningful relationship with both parents if the present arrangement, where he lives with his father, was to continue.
All of the reasons I gave for making that order continue to apply in the present circumstances, with the added concerns that arise now from the growing intransigence of the child to spend time with a parent with whom he had been living for some years, and to spend time with siblings with whom he had been regularly interacting for some years.
To the extent that the adoption of that part of my reasoning of 18 February was tacit rather than express, in the reasons I gave earlier this morning, I think it is appropriate to formally articulate them as being part of the reasoning process today.
I made a recovery order this morning. It seems to me, rather than leave the return to the previous Family Court orders as something that occurs tomorrow, there is just no reason why that should not happen today. I do not know what the exigencies of the enforcement of the recovery order are. Perhaps it makes no difference. But I think the matter should be put beyond doubt.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 11 March 2008