MOTHER SEEKS RECOVERY OF 1 YEAR OLD CHILD AND FOR THE CHILD TO LIVE WITH HER AND NOT THE FATHER
Pearcy & Radden [2020] FCCA 2657 (22 September 2020)
This case involves a mother’s urgent application for a recovery order in respect of the parties’ only child, X, who is only 1 year and 9 months old and seeking orders on an interim basis for the child to live with her and spend alternate weekends with the father.
Facts:
The mother’s urgent application for a recovery order in respect of the parties’ only child, X, who is only 1 year and 9 months old.
While the mother’s application sought a recovery order pursuant to s.67Q of the Act, she clarified her position during the urgent hearing that she was seeking orders on an interim basis for the child to live with her and spend alternate weekends with the father. In summary, the father sought orders for the child to live with him and spend time with the mother on a supervised basis.
On 27 August 2020, there was a text message exchange between the parties following which the father attended the mother’s home. There was then an altercation between the parties. The police were called, and the father left with the child;
The father says that the mother’s behavior is erratic and volatile, such that it poses an unacceptable risk of harm to the child if he was to be returned to her full-time care. The mother denies that her behavior poses any risk of harm to the child and says that the reason for her text messages on 27 August 2020 was to gain the father’s attention. She says that it is in the child’s best interest that he lives with her, that she is his primary carer and primary attachment figure such that it may be a risk to the child if he was to remain separated from her.
Issue: Should the child be returned to the mother?
Law:
- S67V- In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Analysis:
The Court does not find that the mother (or her behavior) poses an unacceptable risk of harm to the child. She has been the child’s primary carer and is no doubt the child’s primary attachment figure. There is no evidence as to the impact on the child of the separation, however, in the Court’s experience such impact might be significantly negative.
It is in the child’s best interest that he be returned to the mother and remain living there whilst spending regular time with the father. The fact is Court orders will likely lessen the tension between the parties insofar as arrangements that need to be made between them as to when the child is to spend time with the father.
Conclusion: the child shall be returned and live with the mother and spend regular time with the father