STEPFATHER SEEKS THE RETURN OF THE CHILD FROM THE FATHER
COTTEY & BACKE
FEDERAL CIRCUIT COURT OF AUSTRALIA
[2020] FCCA 1558
This case is the determination of Mr. Cotty’s (the stepfather) urgent proposed #Recovery order in relation to X (the child), born in 2012.
FACTS:
The child’s mother died in a motor vehicle related accident in 2019. Thereafter, the child continued to live with the stepfather and E (step sibling), and spent time with the father each alternate weekend and half the school holiday as had been the arrangement for the past seven years.
Mr. Backe (the father) asserted that after the mother’s death, he wanted the child to come and live with him, but the stepfather did not agree. He agreed that the child could stay living with the stepfather for a while as he was persuaded that further disruption would not be good for the child at that time. Through his solicitor, he agreed to continue the arrangement until such time as a report was prepared by a psychologist on the best way for the child to transition from living with the stepfather to living with the father and his partner. However, psychologists they appointed advised them that they would not prepare a report on family law issues or in relation to where the child should live.
After the child spent time with the father at the end of term 1, 2020 school holidays, the father told him that he was not sending the child back to live with the stepfather and E. The stepfather asserted that he and E have not seen the child since that time.
The stepfather filed an Application for recovery order wherein he proposed interim orders that the child be returned to him and live with him. He made allegations that the child is exposed to family violence when spending time with the father in the past, which was disputed by the father. Also, he contends that the child has a very important sibling relationship with E. Finally, he contended that the father’s capacity to care for the child on a primary basis is untested.
ISSUE:
Whether or not the Court should grant the stepfather's application for recovery order.
HELD:
In making a parenting order in relation to a child, a court must regard the best interest of the child as the paramount consideration. [1] The primary considerations are the benefit to the child of having a meaningful relationship with both the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. [2]
The child, who has spent regular time with the father while being in the primary care of the mother and the stepfather, appears to have a meaningful relationship with the father, and it would appear that the child would benefit from a continuance of that relationship. The Court opined that there is a real risk that the further and timely development of the child’s meaning relationship with the father may be adversely compromised should it make the stepfather’s proposed recovery order.
Regarding the second consideration, the Court observed that there is no health professional evidence suggesting that there is a significant risk that the child will suffer psychological harm in not living with the stepfather and E. The child has made new friends at school; the child has many close family members living in the town, and the father and his partner play with the child. Further, the father does not wish to prevent the child from spending time with the stepfather. The father proposed that the child spend an alternative weekend with the stepfather.
The Court found that it is in the best interests of the child that the child live with the father pending further order and spend time with the stepfather by agreement.
[1] Sect 60CA, Family Law Act 1975.
[2] Ibid. Section 60CC(2).
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Cameron McKenzie Under the FLA, 65K What happens when parenting order that deals with whom a child lives with does not make provision in relation to death of parent with whom child lives
(1) This section applies if:
(a) a parenting order is in force that provides that a child is to live with one of the child‘s parents; and
(b) that parent dies; and
(c) the parenting order does not provide for what is to happen on that parent‘s death.
(2) The surviving parent cannot require the child to live with him or her.
(3) The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.
(4) In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.
Newton & Whiteman [2013] FCCA 754 at [150] & [151], apply 65K in the situation where the maternal grandmother challenges the father and seeks the child reside with her. Child’s best interests under Goode v Goode [2006] FamCA 1346, were considered and the issue of relocation: AMS v AIF (1999) 199 CLR 160. The grandmother was unsuccessful, and orders made for the child to reside with the father and have regular contact with maternal grandmother.