PILLAI & SHARMA

[2015] FCCA 1710

FEDERAL CIRCUIT COURT OF AUSTRALIA

PILLAI & SHARMA [2015] FCCA 1710

Catchwords:
FAMILY LAW – Children – parenting orders – recovery order – family violence issues – best interests of the child – parental responsibility – sole parental responsibility – Watch List Order – injunction for the personal safety of the applicant mother.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 67Q, 67V, 68B

Applicant: MS PILLAI

Respondent: MR SHARMA

File Number: SYC 3948 of 2015

Judgment of: Judge Scarlett

Hearing date: 18 June 2015

Date of Last Submission: 18 June 2015

Delivered at: Sydney

Delivered on: 18 June 2015

REPRESENTATION

Solicitor for the Applicant: Mr Hawkins

Solicitors for the Applicant: Legal Aid NSW

Respondent: No appearance

ORDERS

1. Leave is granted to proceed ex parte.

2. The Applicant Mother is to have sole parental responsibility for the child [X] born [omitted] 2014. 

3. The child [X] is to live with the Mother.

4. The Respondent is to return the Child to the care of the Mother forthwith.

5. Pursuant to section 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child [X] born [omitted] 2014 and to return the said child to the Applicant and for that purpose 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 said child may be found.

6. Until further order the Applicant MS PILLAI born [omitted] 1987 and the Respondent MR SHARMA born [omitted] 1988 their servants and/or agents are hereby restrained from removing the child [X] (a male) born [omitted] 2014 from the Commonwealth of Australia AND IT IS REQUESTED THAT the Australian Federal Police give effect to this Order by placing the name of the child [X] on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders it’s removal or until 17 June 2017.

7. An injunction for the personal protection for the Applicant Mother is to issue under the provisions of section 68B of the Family Law Act 1975 against the Respondent Father and accordingly he is restrained from assaulting, molesting, approaching or intimidating or entering in the mother’s place of residence or going within 100 metres of said place of residence.

8. The Application is adjourned to 1 July 2015 at 10am for further mention before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

9. The parties are granted liberty to apply on 48 hours’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 3948 of 2015

MS PILLAI

Applicant

And

MR SHARMA

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother of a little boy called [X] who was born on [omitted] 2014.  She seeks a recovery order against the child’s father.  The mother has a child from a previous relationship called [Y] who was born on [omitted] 2011 and that child lives with the mother.  This application is brought in circumstances of urgency.

Evidence 

1. I have read the mother’s affidavit which she affirmed today and I have heard her give oral evidence.  Her solicitor, Mr Hawkins, drew the Court’s attention to the fact that there was a reasonable explanation for the delay in commencing these proceedings due to the misapprehension of the mother that Legal Aid New South Wales do not undertake applications for recovery orders under the Family Law Act 1975 (Cth). It is, of course, the fact that they certainly do and that officers and lawyers from that particular office have a considerable degree of experience and expertise in that area, which is well known to judges of this Court.

Background

1. The circumstances are that the father took the child from the care of the mother on 27 May and she has not seen the child since.  This little boy is only nine months old.  The mother has been the child’s primary care giver and it would be a matter of concern to the Court that he has not been able to spend time with his mother since then.  It appears to me to be quite clear that he should be returned to his mother’s care. 

2. A child of such tender years really belongs in the care of the mother unless there were some extraordinary circumstances that disqualified the mother from undertaking the primary care of a young child.  There are no such circumstances in this case.  I have heard the mother give evidence and I have observed her in the witness box.  The relationship was marked by family violence and there is currently an apprehended domestic violence order in force made by [omitted] Local Court on 10 March this year.  A copy of that document is annexed to the mother’s affidavit. 

3. The father has also been convicted of assault occasioning actual bodily harm and was placed on a good behaviour bond for a period of 12 months.  The mother has given detailed evidence of assaults and violent and intimidating behaviour by the father, some of which, regrettably, has taken place either whilst she was pregnant with [X] or when the baby was only a few months old.  Regrettably too, some of this violent behaviour took place in the presence or hearing of the older child, [Y]. 

4. It is well established that children being exposed to violence can have a serious detrimental effect on them and indeed under section 60CC of the Family Law Act the Court is mindful of the importance of a primary consideration in subsection 60CC(2) of the need to protect children from physical or psychological harm caused by being subjected to or exposed to abuse, neglect or family violence.  Family violence is important in other areas, for instance in the area of parental responsibility. 

5. If there is evidence that satisfies the Court there has been family violence then that would mean that the presumption under subsection 61DA(1) that equal shared parental responsibility is in the best interests of the child would not apply.  I am satisfied that there is persuasive evidence of family violence not only from the affidavit evidence and the photographic evidence but from the findings of the appropriate local courts in dealing with assault and assault occasioning actual bodily harm and in imposing apprehended violence orders. 

6. The mother has given evidence of her fears for her safety in the presence of the father and her fears for the safety of her children and has expressed the wish the father do not come anywhere near where it is that she might be living. In my view there are sufficient grounds for the Court to make an order for the personal protection of the mother under the provisions of section 68B of the Family Law Act. 

7. The mother has also expressed the concern that the father may seek to leave the country with the child and return to his native India. The father is not a permanent resident of Australia and there may well be some difficulties with his visa, especially if he is not of good character. It is a legitimate fear in my view and there are reasons why the Court should make an order placing the name and particulars of the child on the Family Law Watch List maintained by the Australian Federal Police.

8. The Court must think carefully before issuing a recovery order under the provisions of section 67Q of the Family Law Act 1975. In fact section 67V, which is at times overlooked, provides that in deciding whether to make a recovery order in relation to a child a Court must regard the best interests of the child as the paramount consideration. Indeed that brings us right back to section 60CA of the Act which also imposes that obligation.

9. I am satisfied that it is in the best interests of this child for him to reside with the mother and to be returned to the care of the mother forthwith.  I am satisfied that it is in the best interests of this child for a recovery order to issue for his apprehension.  It is for those reasons that I make the following orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  19 June 2015