Yeddich and Meier and Anor (No 2)

[2014] FamCA 54

FAMILY COURT OF AUSTRALIA

YEDDICH & MEIER AND ANOR (NO. 2) [2014] FamCA 54

FAMILY LAW – CHILDREN – Oral application to discharge a recovery order and vary existing parenting orders – Where the Independent Children’s Lawyer seeks to have the child returned into the mother’s care despite the reports of expert witnesses – Where there has been no appeal against the making of the recovery order – Where the recovery order is upheld by the Court and the application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Yeddich

RESPONDENT: Ms Meier

INTERVENOR: Mr B of the Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Ms Youssef

FILE NUMBER: PAC 2194 of 2012

DATE DELIVERED: 5 February 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 5 February 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Browns The Family Lawyers

THE RESPONDENT: In person

SOLICITOR FOR THE INTERVENER:	Crown Solicitors Office
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Rafton Family Lawyers

Orders

1. Leave be granted to the Independent Children’s Lawyer to make an oral application with respect to the Recovery Order dated 4 February 2014 and parenting Orders in relation to the child.

2. The oral application of the Independent Children’s Lawyer made today be dismissed.

Further Recovery Orders made under section 67U of the Family Law Act1975 (Cth):

1. The mother is prohibited herself or through any person acting on her behalf from removing or taking possession of the child.

2. If the mother removes or takes possession of the child, personally or through another person acting on her behalf, she may be arrested without a warrant.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yeddich & Meier and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2194 of 2012

Mr Yeddich

Applicant

And

Ms Meier

Respondent

And

Department of Family and Community Services
Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an oral application made with leave by the Independent Children's Lawyer that I revoke a Recovery Order that I made yesterday directing the child be returned to his father.

2. It is also an application for an order to suspend all existing parenting Orders and for an order that the child reside with the mother and that the mother be permitted to recover the child from where he currently is, which is, to my knowledge, Suburb I Police Station.

3. In my view, the application is quite an extraordinary one when one has regard to the history of this matter, including all of those matters which I placed on the record in my Judgment yesterday.  These include that the Orders which currently prevail, that is, that the father have sole parental responsibility for the child, that the child live with him and have defined time with the mother, (which is currently, as of yesterday, in suspension for a month,) were made, firstly, following a fully contested hearing in 2007, at which the mother was legally represented, and based on a very comprehensive report of a psychiatrist at the time, that Orders in almost exactly the same terms, or very similar terms, made as recently as October last year, were by consent, and those Orders were underpinned by another comprehensive report by another psychiatrist who made virtually the same recommendations and had the same views about what was the best interests of the child, and then, supported by a third psychiatrist’s report obtained very recently and following interview with the child.

4. All of the expert evidence is consistent that it is not in the best interests of the child to be residing with his mother and that it is in the best interests of the child for his father to be not only the residential parent, but to be the sole parent who exercises parental responsibility.

5. It would be a most extraordinary set of circumstances if the Court were to reverse that on the basis of, really, no evidence other than an affidavit filed by the father to the effect that everything seemed fine last night as between him and the child, that the child received a phone call late in the evening, that the child went off to school today and went immediately to the train station.

6. The rest of the circumstances are not clear but certainly it appears from the information given, and again, this was not on affidavit but was simply given by the legal representatives on the best information known to them, that it involved the half-brother of the child, who accompanied the child and the mother to Court yesterday and has certainly had some involvement in what has been described, I think accurately, as the mother’s camp.

7. To make the order that is sought would have to go against all of the expert evidence.  It would fly in the face of, really, a whole day’s hearing yesterday over the Recovery Order itself, a careful consideration by myself of the previous decisions and, really, on a very, very similar basis, almost identical to that which was put yesterday and which I essentially rejected, and that is that it is simply insufficient, in light of all of the evidence, to simply say, “Well, there have been practical difficulties,” and that is the reality of what has been put again.

8. It has been put by Ms Rafton on behalf of the Independent Children’s Lawyer that there is an added factor, and that is that the child has placed himself in danger.  I do not know that for a 13 year old to travel on a train during daylight hours in Sydney is placing oneself in danger.  I think it was a foolish act by the child and it does reinforce that he does not have the sort of maturity that has been attributed to him.

9. It certainly appears that he had someone else assisting him.  The very fact that he is now in a police station makes it clear that he has not placed himself in danger and I accept the submission that was made on behalf of the Director-General that the obvious solution to remove him from any suggestion of danger is for the Orders that have been made by the Court after very careful consideration over a lengthy period of time to continue to be reinforced.

10. In effect, this is an effort by a 13 year old, a pseudo-mature 13 year old, who has maintained a consistent position and, despite that consistent position, all experts have continued to recommend that it is not in his best interest for him to get what he wants.  I think for the Court to, in effect, do a complete about-turn and support a position that as recently as yesterday the evidence said was not in the child’s best interests, would be entirely inconsistent and it there is no basis upon which the Court should do that. 

11. I agree with the submission made on behalf of the father, no one expected this to be a quick process and the most important thing is that a consistent message is conveyed to all of the parties, including the child himself, that he cannot, and the Court will not tolerate, him continuing to simply be the one who dictates what is happening.

12. If he continues to do so, it may very well end up that the place that will protect his best interests will be placement with the Director-General.  He certainly ought not be led to understand that these sorts of actions will lead to him being placed back with his mother, especially where the evidence is that that would be contrary to his best interest.

13. In all of the circumstances, and being guided by the best interests of the child and the evidence that supports it, I dismiss the oral application made by the Independent Children’s Lawyer.

14. I do propose making some additional orders.  It was an oversight on my behalf not to have made them yesterday. 

15. The mother, in my view, demonstrated that she clearly understood what the additional proposed orders were, that she consented to them and that she understood what the consequences would be if she breached them, and she has told the Court, consistent with what she told the Court yesterday, that she has played no part in removing or in any retaining of the child or any part of the events.

16. I agree with the submission made on behalf of the Independent Children's Lawyer that to specifically name the half-brother without him being heard on that issue would be to not afford him procedural fairness, but I do make the orders that I had contemplated, and that is that the mother is prohibited herself or through any person acting on her behalf from, again, removing or taking possession of the child, and that if the mother, again, removes or takes possession of the child personally or through another person acting on her behalf, she may be arrested without a warrant.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 February 2014.

Legal Associate:       

Date:    10 February 2014