Sabean and Sabean - [2010] FMCAfam 714

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sabean and Sabean

Details

AGLC: Sabean and Sabean [2010] FMCAfam 714
Case: [2010] FMCAfam 714
Decision Date: 15 July 2010

CaseChat Overview and Summary

The Federal Magistrates Court of Australia heard an application by Ms Sabean (Mother) for a recovery order for her son [Y], born in 2002, who had been staying with his father and elder brother on the Central Coast of New South Wales. The parties had separated in June 2008. The Mother sought an order for [Y] to return to her care, while the Father sought sole parental responsibility for both children and that they live with him. The Mother alleged that [Y] was not safe with his father due to the aggressive behaviour of his elder brother [X], born in 1994. The Father, on the other hand, claimed that [Y] refused to return to his mother because he feared her violent behaviour. The Court had to decide whether [Y] should be returned to his mother's care, and whether the parents should have equal shared parental responsibility.

The Court found that the evidence was conflicting in several key areas. While there was evidence of [X]'s history of disruptive behaviour at school and aggressive conduct towards [Y], it was unclear whether his behaviour currently posed a threat to his brother. The Court also found that [Y] appeared to be a troubled boy, and that both parents had attempted to stop the aggressive behaviour of [X]. However, the Court was not satisfied that the Father's unilateral decision to keep [Y] and not return him to his mother at the end of the visit was appropriate. The Court decided that the matter warranted the appointment of an Independent Children's Lawyer. The Court was not satisfied that the presumption that it was in the best interests of the children for the parents to have equal shared parental responsibility applied, given the allegations of family violence and the fact that [X] had no contact with his mother. The Court ordered that the Father have, until further order, sole parental responsibility for [X] and that [X] live with his Father until further order. The Court made no order in respect of parental responsibility for [Y], as the question would be considered at the final hearing, when the evidence had been tested and the Court would be able to make factual findings.

The Court ordered that [Y] be returned to his mother's care within seven days, and that he live with her. The Court also ordered that [Y] spend time with the Father on alternate weekends and half of the school holidays. The Court requested that the Legal Aid Commission of New South Wales arrange for the children to be independently represented by a lawyer.

Orders