Sabean and Sabean
[2010] FMCAfam 714
•15 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SABEAN & SABEAN | [2010] FMCAfam 714 |
| FAMILY LAW – Children – interim parenting orders – recovery order – two children currently with father – where applicant claims that respondent father refused to return the younger child after spending time with him – best interests of the children – parental responsibility. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 68L |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 Marvel & Marvel (No.2) [2010] FamCAFC 101 Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MS SABEAN |
| Respondent: | MR SABEAN |
| File Number: | SYC 2325 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 May 2010 |
| Date of Last Submission: | 13 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy |
| Solicitors for the Applicant: | Anne Day & Associates |
| Counsel for the Respondent: | Mr Costigan |
| Solicitors for the Respondent: | Central Coast Family Law |
ORDERS UNTIL FURTHER ORDER
The Respondent Father is to do all things necessary to return the child [Y] born [in] 2002 to the care of the Applicant Mother within seven (7) days.
The said child [Y] is to live with the Mother.
The said child [Y] is to spend time with the Father:
(a)Between 10:00am and 4:00pm on Fathers’ Day; and
(b)For the first half of each of the mid year school holiday periods from 10:00am on the first Saturday and concluding at 5:00pm on the middle Saturday;
(c)From 10:00am to 4:00pm on Boxing Day; and
(d)For a period of two (2) weeks in the January 2011 school holidays commencing at 10:00am on 2 January 2011.
The child [X] born [in] 1994 is to live with the Father.
The Father is to have sole parental responsibility for the said child [X].
The interests of the children [Y] and [X] are to be independently represented by a lawyer and the Legal Aid Commission of New South Wales is requested to arrange such representation.
The parties’ legal representatives are to forward copies of all applications, responses and affidavits to the Legal Aid Commission for the use of the Independent Children’s Lawyer within seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Sabean & Sabean is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2325 of 2010
| MS SABEAN |
Applicant
And
| MR SABEAN |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for a recovery order by the Mother of a boy named [Y], who was born [in] 2002. The parents are separated and the child had been staying with his father and elder brother on the Central Coast of New South Wales. It is the Mother’s case that arrangements had been made for [Y] to stay with his father and brother over Easter, but when she went to pick him up the Father would not let him return with her.
The Mother claims that it is not in the child’s best interests to stay permanently with his father as he is at risk from his elder brother [X].
Counsel for the Father, Mr Costigan, has submitted that the child is not in immediate danger where he is and the matter should be transferred to the Family Court for inclusion in that Court’s Magellan List.
Evidence
The Mother and Father met in 1989 and were married [in] November that year. There are two children of the marriage:
a)[X] was born [in] 1994; and
b)[Y] was born [in] 2002.
The parties separated in June 2008.
The Mother deposed in her affidavit of 16th April 2010 that the parties’ elder son [X] commenced school in 1999. By the following year there were complaints about his disruptive behaviour, leading to the parents being approached by officers from the Department of Community Services.
[X] was diagnosed as having Attention Deficit Hyperactivity Disorder in about 2002 and was eventually prescribed the drug Ritalin. He continued to exhibit behavioural difficulties at school.
The Mother deposed that [X] commenced attending [P] High School in 2007, but was expelled after two weeks because of his behaviour. She reported that he was diagnosed with Asperger’s Syndrome in May 2007 by a specialist, Dr C, who told her that the earlier diagnosis of ADHD was a misdiagnosis.
The Mother also deposed that [X] would hit and punch the younger child, [Y]. She became concerned about his interest in violent computer games and on one occasion, in about March 2008, she took his X Box console from him. There was an altercation between them.
The Mother described the incident in this way:
As I went back into the house I shut the door. [X] pushed his hand on the other side of the door and his arm went through the glass…I took [X] and we went to [omitted] Hospital. [X]’s arm was bandaged and he had stitches to his arm. [1]
[1] Affidavit of Ms Sabean 16.4.2010 at paragraph [41]
The Father called the police. The parties went to [omitted] Police Station but the police took no action.
The Mother also described another incident in about March 2008 when she and the Father were arguing. She claims that he hit her on the back of the head, which led to her going to the police, who applied for an apprehended violence order.
The parties separated in June 2008.[2] The Father went to live with his mother.
[2] Affidavit of Ms Sabean 16.4.2010 at [43]
The Mother stated that [X]’s behaviour became worse after the Father left. He left in February 2009 to live with his father after an altercation with her.
[Y] began to get into trouble at school. The Mother arranged for him to see a clinical psychologist, Dr J, and annexed a copy of her report dated 5th May 2009 to her affidavit.
In September 2009 [Y] was placed in an ED support class at [G] Public School for four days a week with one day at [N] Public School.
[X] continued to exhibit behavioural problems at school.
[Y] spent time with his father over Christmas 2009 and in January and February 2010. The Mother deposed that she telephoned the Father in March to make arrangements for [Y] to spend some time with him. The Father made no arrangements. The Mother arranged with her mother in law to take [Y] to the Father’s for a few days from Easter Sunday.
The original arrangement was that the child would be returned to the Mother on the following Wednesday, however, when she rang him on the Wednesday he said “Leave it for a few days”. [3]
[3] Ibid at [76]
The Mother went to collect the child from the Father’s home on Friday 9th April. However, when she arrived, the Father said “You are trespassing. The child doesn’t want to leave”. The Father rang the police, who attended the house. The child was not handed over and the Mother left.[4]
[4] Ibid at [78] & [79]
The Mother stated that she rang [Y] on Tuesday 13th April and the child said “Dad won’t let me come home. He won’t bring me down”.[5]
[5] Affidavit of Ms Sabean at [81]
The Mother denies that she ever hit, punched, kicked or verbally abused the child. She expressed this concern:
If [Y] is to attend a new school on the Central Coast, I am concerned that they will not be given the correct background by [Mr Sabean]. [Mr Sabean] will ignore any problems.[6]
[6] Ibid at [88]
The Mother also states that she is “concerned that [Y] is not safe in the house with [X]”.[7]
[7] Ibid at [90]
The Father’s account, as set out in his affidavits of 30th April and
12th May 2010, is significantly different. He deposed that [Y] now attends [T] Primary School and [X] attends [W] High School.
The Father claims that when [X] left the Mother’s home in March 2009 he asked the Mother what had happened and she said:
Well I took a knife out and threatened him and he is coming up to your place. You will have to go to the station to meet him. He should be there.[8]
[8] Affidavit of Mr Sabean at paragraph [7]
The Father stated that he met [X] at [T] railway station and they had this conversation:
“What happened? Mum called and told me that you had a fight”.
He said: “She was full on trying to stab me. I don’t want to go back to live with her. I want to stay with you.”[9]
[9] Ibid
The Father deposed that [X] has lived with him ever since and has had no further contact with her.
The Father stated that, whilst [X] initially had some trouble at [W] High School because of his disruptive behaviour, he organised for [X] to see a psychologist for counselling. He stated that the child is “now much more settled’ and calm than when he was living with [Ms Sabean].”[10]
[10] Affidavit of Mr Sabean at [9] & [10]
The Father also expressed the opinion that the Mother has a significant anger management problem. He reported her as having in the past:
a)broken plates and crockery;
b)pushed chairs over;
c)thrown items at the children;
d)thrown a frying pan full of food at him;
e)pushed [X] between the closed screen door and the front door of the house;
f)thrown a 1 kilogram block of cheese at him;
g)thrown [Y] against a wall; and
h)hit [X] in the face; and
i)chased the children and hit them with a cricket bat.[11]
[11] Ibid at [13] & [14]
The Father also claims that the Mother suffered from post-natal depression after [X] was born and had become obsessed with the delusion that there was something wrong with him, despite being told by various doctors that there was nothing wrong with him.[12]
[12] Ibid at [15]-[18]
As to the matter currently before the Court, the Father claims that the Mother would often cancel arrangements for the children to spend time with him after they separated, and even after [X] came to live with him she would regularly cancel arrangements for [Y] to see him.[13]
[13] Ibid at [35] & [36]
When [Y] came to stay with him in April, the Father deposes that [Y] said various things to him about the Mother’s behaviour, including:
Mum is bad. I don’t want to live with her anymore.
I don’t want to talk to her again.
Mum has been getting really angry a lot.
She dug her fingernails into me and scratches me.
No, she is being violent again. I don’t want to go back.[14]
[14] Affidavit of Mr Sabean at [40] &[41]
The Father stated that he formed the opinion that [Y] was afraid of his mother and decided that he would not send [Y] back to a situation where he was at risk of abuse or violence.[15]
[15] Ibid at [42]
Counsel for the Mother, Ms Kennedy, tendered a plethora of documents produced on subpoena, from [W] High School, [N] Public School and the Department of Community Services, relating to disruptive behaviour and difficulties at school by [X] and [Y].
The report from Dr J, previously referred to, described [Y] as “a sad little boy, who has difficulty understanding and expressing his emotions, and relating appropriately to the world around him.”[16]
[16] Report of Dr J dated 5th May 2009
Dr J went on to state:
He appears to be frightened of [X], expressing a wish that [X] would stop punching him. He also appears to feel overwhelmed at times at school, when he is being given more information than he is able to process.
Summary, Formulation & Management
In summary, [Y]’s world appears to be a dangerous and frightening place for him. This has developed in the context of an unsafe home environment, to which he had been exposed for the majority of his life as a result of the unhealthy relationship between his parents and the aggressive behaviour directed towards him by [X].[17]
[17] Ibid
Issues
The Mother considers that [Y] is not safe in his father’s home because of [X]’s aggressive behaviour and his father’s unwillingness to address the issues of [X]’s violence.
For his part, the Father is of the view that [Y] refused to return to his mother’s home because he is frightened of his mother’s violent behaviour and that it is in his best interests to remain living with him and [X].
The Parties’ Proposals
The Mother seeks a recovery order returning [Y] to her care and that he should live with her. She also seeks orders that the child should spend time with the Father on alternate weekends and half of the school holidays. No order relating to parental responsibility is sought on an interim basis.
The Father seeks orders that both children should live with him and that they should be independently represented by a lawyer under s.68L(2) of the Family Law Act 1975. He also seeks an order that he should have sole parental responsibility for the children. The Father further seeks orders that the Mother’s time with [Y] should take place at a contact centre and a single expert’s report be obtained to advise as to whether she should spend time with the child unsupervised.
Mr Costigan of counsel, who appeared for the Father, submitted that there was no urgent reason for the interim orders sought by the Mother. He submitted that there is a need to appoint an Independent Children’s Lawyer to continue the relationship of the Mother with [Y]. It was also suggested that the matter should be transferred to the Family Court for inclusion in the Magellan List.
The Relevant Law
In deciding whether to make a parenting order in relation to a child, the child must regard the best interests of the child as the paramount consideration (Family Law Act, s.60CA). The Court determines what is in the child’s best interests by considering the matter set out in s.60CC of the Act. The primary considerations are set out in s.60CC(2):
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm from abuse, neglect or family violence.
Additional considerations are set out in s.60CC(3) and include any views expressed by the child, subject to the child’s maturity and level of understanding, the nature of the child’s relationship with parents and other persons, including grandparents, the willingness and ability of each parent to encourage a close relationship with the other parent, the likely effect of changes in the child’s circumstances and the capacity of each parent and other person to provide for the child’s needs.
In any interim hearing the Court must consider whether the presumption in s.61DA of the Act this it is in the best interests of the child or children for the parents to have equal shared parental responsibility does apply (Goode & Goode[18]), even if it is not argued by the parties (see Marvel & Marvel (No.2)[19]).
[18] [2006] FamCA 1346; (2006) FLC 93-286
[19] [2010] FamCA 101
If a parenting order provides that a child’s parents are to have equal shared parental responsibility, the court must consider whether it is in the best interests of the child to spend equal time with the child (s.65DAA).
[20] (1994) 17 Fam LR 537; FLC 92-461
The Full Court of the Family Court considered the question of independent, or separate, representation of as long ago as 1994 in
Re K[20],which still provides a useful guide to a court dealing with this question.
Conclusions
The evidence is conflicting in several key areas. However, there is clear evidence that [X] has had a history of disruptive behaviour at school. He is living with his father and appears to be alienated from his mother. Whether his behaviour is presently a threat to his brother is unclear.
[Y], the younger boy, appears to be a troubled little boy. There is some evidence that he has previously been subject to aggressive behaviour by [X], which both his parents have attempted to stop. The evidence is in direct conflict on whether:
a)He does not wish to return home to his mother because he is frightened of her; or
b)He is being kept back by his father against his will.
However, the Father seems to have taken the law into his own hands by keeping [Y] and not returning him to his mother at the end of the visit. The Father did not commence any proceedings until he filed a Response on 3rd May 2010. The Mother had already commenced by filing her application on 19th April 2010.
This is a matter that needs to be resolved by the Court and not by a party making a unilateral decision without consultation. The child [Y] should be returned to the mother so that he may recommence at his old school.
I am not satisfied that this is a matter that should be transferred to the Family Court.
It is a matter that warrants the appointment of an Independent Children’s Lawyer. A number of the Re K guidelines appear relevant:
a)There are conflicting allegations of abuse in relation to both children;
b)There appears to be an intractable conflict between the parents;
c)
The child [X] appears to be alienated from his mother and, at
16 years of age, is of an age where he can express a view about with whom he wishes to live;
d)The Mother alleges that [X]’s conduct impinges on [Y]’s welfare; and
e)The Mother’s proposal would separate [X] and [Y].
An order will be made under s.68L that the children should be legally represented.
Turning to the question of equal shared parental responsibility, there are allegations of family violence, albeit conflicting. I am not satisfied that the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility applies.
Further, on the evidence that [X] has no contact with his mother at all, equal shared parental responsibility would be completely unworkable. I propose to order that the Father have, until further order, sole parental responsibility for [X] and that [X] live with his Father until further order.
I will make no order in respect of parental responsibility for [Y].
In any event, the question of parental responsibility will be considered at the final hearing, when the evidence has been tested and the Court will be able to make factual findings.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 8 July 2010
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