S and C
[2004] FMCAfam 711
•25 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & C | [2004] FMCAfam 711 |
| FAMILY LAW – Children – recovery order – teenage child –interim residence. |
Family Law Act 1975 (Cth), s.67V
AM Cowling & JH Cowling [1998] FamCA 19
Cilento & Cilento (1980) FLC 90-847
| Applicant: | AS |
| Respondent: | DC |
| File No: | PAM4691 of 2004 |
| Delivered on: | 25 October 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 25 October 2004 |
| Judgment of: | Emmett FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Reeve, Marsdens Law Group |
| Solicitors for the Respondent: | Mr Massey, Barber & Massey |
ORDERS
The Applicant father’s Application for a Recovery Order is refused.
Direct the Applicant father to deliver to the child DS born 12 January 1989 all school uniforms and school books in his custody.
The current Orders are varied pending further order to provide that the child DS will reside with the Respondent mother and have contact with the Applicant father as agreed between the parties and in accordance with the wishes expressed by the child DS.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM4691 of 2004
| AS |
Applicant
And
| DC |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant father seeks a Recovery Order from this Court for the return of the child DS (“the Child”), to the Applicant father who has an Order for residence in respect of DS.
Background
Pursuant to contact Orders, DS and his siblings, BS, and JS, had enjoyed holiday contact with their mother which concluded on 4 October 2004. On that day the Applicant father arrived at the Respondent mother’s residence to collect the children and was told that DS was still at work. DS has a job at the HJ at the MC near to the Respondent mother’s place of residence. He commenced that job in about July 2003 on a part-time basis.
The Respondent mother deposes in her Affidavit, sworn 20 October 2004, at paragraph 4, that when DS returned back from work she said to him:
“When are you going home?”
And DS replied:
“I’m not going back. I’ve had enough.”
The mother said she then said:
“Well, what about school? You’ll have to get your books and uniform. You have to go to school. We’ll have to ring your Dad and let him know.”
To which DS replied:
“Well, whatever. You can ring him.”
The Respondent mother then deposes that she sought to telephone the Applicant father, first on his home number and then on his mobile. The Respondent mother said that she got on to the Applicant father later in the night and told him that DS did not want to come home.
School resumed for DS on 11 October 2004 and the Respondent mother said that she said to DS:
“You have to go to school.”
And he said he would look silly without uniform and books.
DS returned to school on 13 October 2004.
The evidence before me from both parties is that the Applicant father is a relatively strict disciplinarian and does not allow DS to go out with his friends after dinner time and the Applicant father submits that the freedom provided by the Respondent mother is part of the reason that DS has not returned to his father.
The Applicant father submits that DS has not actually said anywhere in the evidence that he does not wish to live with his father, until 4 October 2004 when he says that he’s had enough.
The Applicant father further submits that there is no evidence to explain how strongly DS may not wish to return to his father, save for that conversation on 4 October 2004.
The Applicant father further submits that there is no evidence that the Child is at risk if he returns, that the Child would run away, or that being forced to return to his father may precipitate any self destructive behaviour.
Relevant law
The Applicant father submits that, in accordance with AM Cowling & JH Cowling [1998] FamCA 19 (“Cowling”) and Cilento & Cilento (1980) FLC 90-847 (Cilento”), in considering what interim orders are in the best interest of the child, that:
a)there are no reasons to change arrangements that have been settled;
b)the Court must have regard to the fact that there are many disputed questions of fact;
c)the Court has no family report to assist; and
d)there are no submissions from the children’s representative to assist the Court in determining whether or not the settled arrangements should be changed.
The Respondent mother submits that whilst the Court must have regard to what the Courts in Cowling and Cilento say about the settled arrangements, they are no more than a guidance to the Court to assist in determining what is ultimately in the best interests of the child. Certainly s.67V of the Family Law Act states that in deciding whether to make a recovery order in relation to the Child, the Court must regard the best interests of the child as the paramount consideration.
Findings
In this matter I have regard to the fact that the Child turns 16 in January 2005, an age at which the Court will be slow to depart from any wish expressed by the Child.
I also have regard to the fact that on the evidence, I accept that the Respondent mother is aware of her responsibilities under the Orders and has made some attempt to comply with the Order by asking DS on 4 October 2004 when he was going to return home and by taking steps to telephone the Applicant father to let him know that he was not intending to come back to live with the Applicant father.
I accept that the Respondent mother appears to have taken few steps since then to push DS into returning to his father and has rather accepted that there are factors of his life that make it more appropriate that the current Orders be varied to allow him to continue to live with her, particularly in regard to the proximity of the Applicant mother’s home to DS school and work and that DS otherwise travels from Ingleburn to both those locations.
I also have regard to the consequences that would flow from a Recovery Order in forcing an adolescent of DS age and attitude to return to his father prior to a final determination of the issues.
The Applicant father submits that the Court could make a Recovery Order and allow for that Order to lie in the Registry for some short period of time pending compliance by the Respondent mother in ensuring the return of DS to the Applicant father’s care.
The Applicant father submits that DS may be at greater risk not being returned to his care because of the more lenient attitude of the Respondent mother in relation to DS social life.
I am concerned about the affect on DS of making an order in the nature of a Recovery Order that would appear to bring him into direct conflict with both his mother in seeking to comply with the Order and his father in seeking to enforce the Order.
The ongoing conduct of the proceedings will undoubtedly involve the preparation of a family report and the appointment of a children’s representative.
Whilst I have had regard to the general principles about maintaining a settled arrangement as referred to in Cowling [at paragraphs 22 and 23], I also have regard to the fact that Cowling [at paragraph 13] is the authority for the proposition that no orders contrary to the wishes of the child 14 years and over should be made except in special circumstances.
I am satisfied that by his actions and words, DS has expressed a desire to remain with his mother and I consider that the least harm is done to the Child when allowing him to continue to live with his mother, pending final resolution of this matter.
In the circumstances, the Application for a Recovery Order is refused.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 17 November 2004
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