We have recently completed two proceedings on behalf of our client. The first being proceedings pursuant to the Domestic and Family Violence Protection Act 1989 and the second being pursuant to the Family Law Act 1975. The factual circumstances were that up to January 2010 the parties had agreed on the parenting arrangements for their son. This included in January 2010 the son going to live with our client, his father.
The child lived with our client until January 2011 when the mother retained the child and refused to make the child available to spend time with our client.
In an attempt to prevent our client from spending time with his son the Mother commenced proceedings for a Protection Order pursuant to the Domestic and Family Violence Protection Act 1989. Prior to the Application coming on for Trial the Magistrate Hearing the matter refused to make any Temporary Protection Orders however the Mother persisted.
When the Application for a Protection Order came on for Hearing the Application was dismissed. The learned Magistrate determined that the Mother gave deliberately false evidence to the Court and thereafter made an Order that the Mother pay part of the costs of the Father fixed in the sum of $ 1,500.00. The $ 1,500.00 was the maximum amount that the Magistrate could award for costs and it should be noted that costs in Application for Protection Orders can only be granted if an Application is dismissed on the basis that it was malicious, frivolous, vexatious or deliberately false.
In relation to the Family Law proceedings when the matter first came before the Federal Magistrates Court Orders were made for the Father to be able to spend weekend time with his son and subsequently further Orders were made to enable him to spend school holiday time with his son.
Prior to the matter being set down for Trial a Child Inclusive Report was prepared by a Court Counsellor. This report clearly identified the child’s wish to be living with his Father.
The Mother refused to allow the child to live with the Father.
The matter was listed for Trial and the Directions for Trial included the preparation of a Family Report. The Family Report, whilst prepared by the same Court Counsellor, now having carried out interviews with a wider number of people for the child inclusive report including the child’s older brother and others. The Family Report again supported the child’s view that having regard to his age that he wished to live with his Father and should be acceded to. The child’s half -brother supported his view.
The Mother still would not allow the child to live with the Father.
The matter came on for Trial and the evidence which was presented to the Federal Magistrate included:-
- That during the time that the child lived with the Father if for any reason the agreed time for the Mother to spend time with the child could not be accommodated then that time was always made up usually during the school holidays. On the other hand when the Mother retained the child she refused to allow the Father to spend time with the child for approximately 5 months.
- That when the child went to live with the Father this was by agreement and when the child was retained by the Mother this was a unilateral decision by the Mother.
- The Mother alleged substantial family violence which was denied by the Father and in respect of which the Mother in fact produced no evidence.
The recommendations of the Family Report writer, whilst the recommendations did not bind the Federal Magistrate, there had be clear compelling reasons as to why the recommendation should not be followed. There were no clear and compelling reasons why the recommendations should not be followed. The Mother did not accept the recommendations contained in the Family Report and even claimed that her son, the step-son, had given false information to the report writer.
Needless to say the Court quickly came to the conclusion that it was in the best interests of the child that he go and live with his Father and so Ordered.