RAYNER & MACDONALD
[2013] FMCAfam 8
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAYNER & MACDONALD | [2013] FMCAfam 8 |
| FAMILY LAW – Children – parenting – Interim orders – Recovery Order – Notice of Abuse – family violence allegations – best interests of the child – child aged 16 months – where applicant primary caregiver to the child since child’s birth – allegations of substance abuse – allegations of excessive consumption of alcohol – parental responsibility – presumption of equal shared parental responsibility does not apply where reasonable grounds to believe parent of the child has engaged in family violence – sole parental responsibility. PRACTICE AND PROCEDURE – Urgent application – leave granted to proceed ex parte – orders made until further order. PRACTICE AND PROCEDURE – Notice of Child Abuse, Family Violence, or Risk of Family Violence – Court must take action as soon as practicable after notice filed – where orders made the same day the Notice was filed. WORDS AND PHRASES – “any other person concerned with the care, welfare or development of the child” – similar meaning in Family Law Act 1975 (Cth) s.67T(d) as in s.65C(c) – threshold test. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 64B, 65C, 67Q, 67T, 67ZBA, 67ZBB Federal Magistrates Court Rules 2001, rr.5.01, 5.03 |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 KAM v MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847 |
| Applicant: | MS RAYNER |
| Respondent: | MR MACDONALD |
| File Number: | SYC 13 of 2013 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 January 2013 |
| Date of Last Submission: | 3 January 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 January 2013 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | No appearance |
ORDERS
UNTIL FURTHER ORDER
Leave granted to proceed ex parte.
The Applicant Mother is to have sole parental responsibility for the child [X] born [in] 2011.
The child [X] is to live with the Applicant Mother.
A Recovery Order is to issue pursuant to section 67Q of the Family Law Act 1975.
The Marshall, the Deputy Marshall, all officers of the Australian Federal Police and al 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 Applicant must serve a sealed copy of the Application, her affidavit in support, the Notice of Child Abuse, Family Violence, or Risk of Family Violence and these orders on the Respondent by 8 January 2013.
The Application is adjourned to Thursday 10 January 2013 for further mention in Court 3A at 10:00 am
IT IS NOTED that publication of this judgment under the pseudonym Rayner & MacDonald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 13 of 2013
| MS RAYNER |
Applicant
And
| MR MACDONALD |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of a little girl called [X] for a recovery order against the child’s father, the Respondent to this Application. The child was born [in] 2011, so she is only 16 months old.
The Mother states that the Father asked to spend time with the child on New Year’s Day and is refusing to return her to the Mother, unless the Mother signs a document agreeing that the child should spend equal time with each parent on a week about basis and that the Mother cease her relationship with her current partner.
The Mother has expressed concern for the child’s safety because she claims that:
a)The Father has a drug problem;
b)The Father regularly drinks alcohol to excess;
c)The Father has difficulty managing his anger;
d)The Father has been diagnosed with a mental illness, bipolar disorder, but refuses to take the medication prescribed for him by his psychiatrist;
e)The Father has spent very little time with the child since she was born; and
f)The child suffers from food allergies but the Father continues to give her food to which she is allergic.
Evidence
The Mother relies on her affidavit affirmed today, which was prepared for her by a lawyer from Legal Aid NSW. She has also filed a Notice of Abuse, Family Violence or Risk of Family Violence under s.67ZBA of the Family Law Act 1975.
The Mother gave oral evidence and affirmed the truth of the matters in her affidavit and the Notice.
The Law to be applied in Applications for Parenting Orders and other Applications Concerning Children
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 contained in subsections (2) and (3) of s.60CC of the Act, giving greater weight to the primary consideration set out in paragraph (b) of s.60CC(2):
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
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 (see s.61DA(1)). However, s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence.
Where, as in this case, a party 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 and, in any event, within 8 weeks after the notice is filed. In this case, orders have been made today, the same day as the Notice was filed.
A recovery order under is made under s.67Q of the Act, and is an order made by the Court requiring the return of a child to:
(i) a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child.
The persons who may apply for a recovery order are described in s.67T. Interestingly, the list of persons who may apply for a recovery order in s.67T is not identical to the list of persons in whose favour a recovery order may be made under s.67Q(1).
Section 67T states:
A recovery order in relation to a child may be applied for by:
(a)a person with whom the child is to live under a parenting order; or
(b)a person with whom the child is to spend time under a parenting order; or
(c)a person with whom the child is to communicate under a parenting order; or
(caa)a person who has parental responsibility for the child under a parenting order; or
(ca) a grandparent of the child; or
(d)any other person concerned with the care, welfare or development of the child.
Thus, a grandparent can apply as of right, but a parent cannot, unless there is already a parenting order in existence in favour of that parent. It would appear that the legislature intended the same threshold test to apply in s.67T(d) as applies in identical wording in s.65C(c).
The description of a “threshold test” was first used by Burr J when discussing s.65C(c) in KAM v MJR[1] at 667:
5.1.3In order to proceed beyond the mere making of the application, the applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.
[1] [1998] FamCA 1896; (1998) 24 Fam LR 656[ (1999) FLC 92-847
The same consideration must apply in s.67T(d). In reality, it would usually not be difficult for a parent who has been the primary caregiver of a child to demonstrate that he or she is a “person concerned with the care, welfare or development of the child”.
Conclusions
The Application has been brought in circumstances of urgency by the Applicant. 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:
(f) why the making of the order is a matter of urgency and why an abridgment of time for service of the application and the fixing of an early hearing date would not be more appropriate.
I am satisfied that the reasons for urgency have been established, because of the need to protect the child from harm from being exposed to abuse, neglect or family violence.
I am satisfied that the Applicant Mother is a person who is concerned with the care, welfare or development of the child, as she has been this little girl’s primary caregiver since the child was born.
I am satisfied that a recovery order should issue requiring the return of the child to the Mother.
The Mother has applied for an order that the child should live with her, which is a parenting order as set out in s.64B of the Act. As set out in Goode v Goode[2] at [43], the Court is therefore required to apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility under s.61DA(1), unless:
a)the presumption does not apply because one of the child’s parents has engaged in abuse of the child or family violence (s.61DA(2));
b)where the Court is making an interim order, it would not be appropriate in the circumstances to apply the presumption (s.61DA(3)); or
c)the Court is satisfied that it would not be in the child’s best interests to apply the presumption (s.61DA(4)).
[2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The circumstances of this matter, the allegations of family violence, drug abuse and alcohol abuse lead to the conclusion that, in making interim orders, the presumption of equal shared parental responsibility:
a)does not apply;
b)would not be appropriate in the circumstances; and
c)is rebutted because it would not be in the child’s best interests.
It would be in this child’s best interests to make a parenting order in favour of the mother, providing that the child should live with her until further order.
The documents and a sealed copy of the Orders made today must be served on the Respondent by Tuesday 8 January 2013.
The Application will be adjourned to Thursday 10 January for further mention, at which time the Respondent may make any submissions he considers appropriate about parenting orders.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 8 January 2013
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