Mother Seeks Recovery Orders Against Father
Kavran & Vinko [2022] FedCFamC2F 193 (28 April 2022)
The Father refused to return the child to the applicant mother, being the primary care giver. The Mother seeks interim application for recovery orders. The Court, in determining whether the recovery orders are in the best interests of the child, considered the Father's issues of mental health and family violence.
Facts:
These proceedings were commenced on 10 February 2022 by way of an Application in a Proceeding, in which the Applicant Mother sought, relevantly, recovery orders in relation to the child of a relationship with the Respondent Father, born in 2012 (“the Child”), now being nine years of age.
The Court proceeded with the contested interim hearing at 1:00 pm and pronounced orders for the Child, effectively, to be returned to the Applicant Mother, to live with the Applicant Mother, and for the Applicant Mother to have sole parental responsibility, pending the Respondent Father putting on satisfactory evidence of his mental health regime and insight as to the best interests of the Child. The Mother is the primary carer for the Child.
The Father visits the Child at the Mother’s house, under the Mother’s supervision. Each visit is only a few hours. By December 2012, the parties ended their relationship, and the visiting schedule ends. In April 2013, the Child commenced spending time with the Father at his home in Suburb B supervised by the Father’s parents. The usual routine is that the Father would collect the Child from the Mother’s house every second Sunday and the Father would drop the Child off at the Mother’s house the following Monday afternoon.
On 18 November 2013, the Father refused to return the Child to the Mother due to arguments about Child Support payments. The Child was subsequently returned to the Mother’s care on the same day. The parties attended a Family Dispute Resolution Conference to come to an agreement about parenting consent orders but are unable to reach an agreement. The Applicant Mother requested urgent recovery orders requiring the Respondent Father to return the Child into her primary care.
Issues:
I. Whether or not the recovery orders are in the best interests of the child.
II. Whether or not denying the recovery orders imposes an unacceptable risk of harm to the child.
Applicable law:
Family Law Act 1975 (Cth) s60CC, 65AA(3) - provides that the Court must consider making an order for the Child to spend substantial meaningful time with the Respondent Father, as defined under s 65AA(3) of the Act, unless contrary to the Child’s best interests as a result of a consideration of one or more of the matters in s 60CC of the Act.
Barnham & Timbrell [2021] FedCFamC1F 36 - relied upon by the Court in holding that whilst this is an Interim Hearing only, there is sufficient evidence of coercive behaviour by the Respondent Father as would amount to child abuse and fall within the meaning of family violence as defined in s 4AB of the Act, so as to displace the presumption referred to earlier, and by reason of which it is in the best interests of the Child for the Court to make the orders identified.
Analysis:
The Applicant Mother indicated that she noticed that, in her interactions with the Child since 1 January 2022, including Facetime, the Child does not seem herself and seems less lively and more cautious and reserved. The Applicant Mother identified concern that the Respondent Father has told the Child something to make her fearful for her role in her life or something that has happened to overburden her psychologically. The Applicant Mother then addressed the Respondent Father’s capacity to care for the Child and made reference to his diagnosis of schizophrenia, and that the Respondent Father struggles to accept his diagnosis and does not always take his medication. The mental health issues identified, the ones touched upon in the Notice of Risk of Family Violence filed by the Applicant Mother on 10 February 2022, refer to the holding of the Child, and that the same amounts to family violence that exposes the Child to an unacceptable level of psychological harm.
The Notice of Risk also refers to the Child being removed from regular school and that the Child is believed to have been giving the Respondent Father his medication for schizophrenia.
Conclusion:
The Applicant Mother has sole parental responsibility of the child X (DOB in 2012, aged 9) (“the Child”). The Child live with the Applicant Mother. The Applicant Mother is to collect the Child from Suburb B School by the end of today’s school day. The Respondent Father, by himself his servants or agents, is restrained from attending Suburb B Public School or in any way interfering with the Applicant Mother’s collection of the Child today. The Applicant Mother, if she sees fit to do so, is at liberty to re-enrol the Child at Suburb C Public School immediately.