Zammitt & Lennon (No. 3)

[2009] FamCA 394

FAMILY COURT OF AUSTRALIA

ZAMMITT & LENNON (NO. 3) [2009] FamCA 394

FAMILY LAW – CHILDREN – urgent application seeking delivery up of the child and a recovery order – where interim consent orders were recently made by the Court – welfare of the child – mother to return the child to the father – recovery order issued pursuant to s 67Q – where it is not in the child’s best interests for police to be required to enforce the order – mother to be given the opportunity to obey the order before steps are taken pursuant to the recovery order

FAMILY LAW – INJUNCTION – mother restrained from removing the child from the father’s care

Family Law Act 1975 (Cth) s 60CC & 67Q

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Zammitt

RESPONDENT: Ms Lennon

INDEPENDENT CHILDREN’S LAWYER: Ashley M. Kent

FILE NUMBER: ADF 196 of 2004

DATE DELIVERED: 11 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R.L. Croydon

SOLICITOR FOR THE APPLICANT: Croydons

COUNSEL FOR THE RESPONDENT: Ms M.S. Wright

SOLICITOR FOR THE RESPONDENT: Women’s Legal Services

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr A Kent

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

Orders

1. The mother return the child L born … October 2000 to the father forthwith and in any event by 4.00 pm today.

2. Pursuant to S67Q of the Family Law Act 1975 (as amended) a Recovery Order do issue authorising all members of the Police Force of the Commonwealth of Australia and all members of the Police Forces of the States and Territories of Australia to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place, and if necessary by force, to recover the child L born on the … October 2000 and deliver him to the father Mr Zammitt PROVIDED THAT such steps are not to be taken pursuant to the Recovery Order until 4.00 pm today.

3. The mother be restrained and an injunction be granted restraining her from removing the child L from the care of the father until further order.

4. Paragraph 2 of the Order of the 6 May 2009 be suspended until further order.

IT IS NOTED that publication of this judgment under the pseudonym Zammitt & Lennon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 196 of 2004

MR ZAMMITT

Applicant

And

MS LENNON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application which comes on before me urgently, at the request of the solicitors for the father, concerning the welfare of the infant child L.  The matter has been before me over a period of time, and I have commenced what is called the trial under the less adversarial trial process, with the parties being directed as recently as 6 May 2009 to prepare the matter for trial before me by way of final hearing in August of this year.

2. On 6 May 2009 the parties appeared before me.  The mother was represented by counsel, as was the father and the Independent Children’s Lawyer.  The orders were on that occasion made by consent in relation to interim orders in relation to the child L.  The orders of 6 May 2009 provided that the child live with his father and spend time with the mother on specific occasions, the first of which was to be the weekend that has just gone; namely, 9 and 10 May, from 11 am Saturday to 4 pm on Sunday; another weekend in late May and one in early August, together with school holiday time in July.  There were specific orders associated orders.

3. That consent order was made after the parties and the Court had received the detailed further updated report of Ms N dated 5 May 2009.  Ms N is a psychologist who is well qualified and experienced in matters before the Court.  This was a further assessment carried out at the direction of the Court and followed on her earlier report.

4. Specifically, L and the mother were interviewed and the time between the child and the mother was observed by the psychologist.  I do not refer to all of the report, but it is significant in this matter that the psychologist identified key issues and, in particular, the child’s withdrawal of comments that he had previously made concerning his mother's care.  The conclusion which Ms N reached was to recommend that L live with his father and spend time every third weekend and for half the school holidays with the mother.  After that report, I made the consent orders to which I have previously referred.

5. I now have before me the urgent application in a case by the father, seeking orders for L to be delivered up to the father forthwith and for a recovery order to issue with associated injunctions by way of a restraining order.

6. The matter comes on before me at short notice on the urgent request of the father's solicitors. The mother is aware of the application, having been informed by telephone of the application and given instructions to her solicitor, who is present in Court today.  Also present at short notice is the Independent Children’s Lawyer. 

7. This matter is brought to the Court under Part VII of the Family Law Act 1975 (Cth). The Full Court in the matter of Goode & Goode (2006) FLC 93-286 requires the Court to give full consideration to all of the matters in relation to the provisions of Part VII so far as they relate to determining the best interests of the child L.

8. Significantly, however, the material that needs to be considered is the reports of Ms N and the history of this matter, involving as it does L moving from the home of one parent at the instigation of the other parent.  Specifically, the mother has in the past delivered L up to the father for him to care for the child and then arranged for the child to be collected without notice to the father.  The arrangements have then been that L has spent time with the father, who has not returned the child to the care of the mother, and the Court has made orders in relation to changing the arrangements for the ongoing care of the child.

9. Significantly, L’s sisters have now resided with the father for a considerable period of time.  Reference has been made in earlier reasons I have given about the concern of the breakdown in the relationship between the mother and the parties' daughters.

10. L was born in October 2000; he is therefore only eight.  It is of concern that the child’s arrangements have been so disruptive and this has involved changes of school, brought about either by the mother attempting to hide L from the father or by a change of school necessitated by L going to reside with his father in P.

11. I carefully weigh up the factors in section 60CC. In particular I am concerned about the need to provide stability for the child and the risks there may be to the welfare of the child as referred to in Ms N’s reports. There appear to be, on the face of it, no significant factors which have arisen which would require the Court to change the consent order entered into as recently as 6 May, albeit it may appear from submissions made by counsel for the mother at the bar table that L has changed his mind and now wants to stay with the mother. In view of the reports of Ms N, I do not consider that to be a sufficient basis upon which the order of the Court should be changed.

12. I am also concerned for the welfare of the child, should it be necessary for the police to carry out a recovery order.  However, I am heartened by the statements from the solicitor for the mother in which she refers to the fact that, if the mother is ordered to return the child to the father, she will do so and it will not be necessary for the police to intervene.

13. I therefore propose to make orders in terms of those sought by the father, save and except that paragraph 2 will be "that the mother return the child [L] to the father forthwith and, in any event, by 4 pm today" and paragraph 3 will be "that pursuant to 67Q, a recovery order do issue authorising all members of the police force", et cetera, in terms of paragraph 3, but to add afterwards, in brackets "save that the police should not take steps pursuant to the recovery order until 4 pm today".  Paragraph 4 reads "that the mother be restrained, and an injunction be granted restraining her, from removing the child from the care of the father until further order".  I suspend the previous orders for the mother to spend time with the child as sought in paragraph 5 and make paragraph 6. 

14. In relation to the order I have made in relation to the steps to be taken pursuant to the recovery order until after 4 pm today, that is on the basis that it would not be in the child's best interests for the police to have to be required to enforce this order and gives the mother an opportunity to obey it in that time.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  15 May 2009