Case Study: Family Law Matters
Urgent Recovery Application
Parenting Matter: Successful Outcome
Melbourne Federal Circuit and Family Law Court.
This matter involved an urgent recovery application seeking that the child be returned immediately to the Applicant Father. Our client was the Applicant Father in this proceeding.
There is an extensive history of family violence and DFFH involvement in this matter. Both parties had a documented history of drug and alcohol abuse, and our client also had an extensive criminal history. After being removed from the Respondent Mother two years prior by the Department of Families Fairness and Housing, Child Protection (“the Department”), the child had been living with the Applicant Father. The Respondent Mother has been spending time with the child sporadically for the first year that the child lived with the Applicant Father and had chosen to cease initiating time for a year.
Five weeks prior to our involvement, the child had spend time with the Respondent Mother for a weekend (after a year of no contact) and upon the agreed time to return the child to the Applicant Father, the Respondent Mother refused. The Applicant Father made a report to DFFH and Victoria Police but was informed that a welfare check was conducted and it was determined that the child was not at risk while in the Respondent Mother’s care.
The Applicant Father engaged our services two days after the Respondent Mother refused to return the child. Our office sent the Respondent Mother an initial letter requesting that she return the child pending the parties agreeing on final parenting arrangements. Fourteen days later, our office sent the Respondent Mother a Notice of Intention, putting her on notice that we would commence proceedings if she did not return the child. Both letters were met with no response. Following this, our office filed an urgent Initiating Application for the recovery of the child in the Federal Circuit and Family Law Court and the matter was listed for a hearing within 7 days from the date our office filed court documents.
There were also Intervention Order proceedings (“IVO”) on foot against our client and his mother, as the Respondent Mother had made an application (listing the child as a protected person also) alleging that both our client and his mother posed a risk to her and the child. These applications were made on the day that our Notice of Intention was served on the Respondent Mother. There were allegations of risk against both parties and both had filed a notice of child abuse, family violence or risk. We alleged that the Respondent Mother posed a risk to the child with regards to her mental health concerns, drug abuse, and neglect of the child, as she did not send the child to school for approximately five weeks. The Respondent Mother made allegations against our client regarding historical family violence (physical and verbal) against the child and drug abuse. There is a history of family violence between the Respondent Mother and Applicant Father.
Process of the Application for a Recovery Order:
As a notice of child abuse, family violence or risk had been filed, the Department prepared a report on the matter. This report was highly persuasive to our client’s case and revealed that there had been 10 incidents of family violence that the Department was aware of in relation to the safety of the child in the Respondent Mother’s care, including incidents last year where the Respondent Mother’s partner had committed acts of family violence against her in front of other children in her care. The report also expressed concerns about the Respondent Mother’s mental health diagnosis.
The Department report was also persuasive to dismiss the risk concerns raised against our client’s mother (the child’s paternal grandmother) in the Respondent Mother’s IVO application, as the Department investigated the matter and liaised with the child’s school to confirm the paternal grandmother’s role and supportive influence in the child’s life. The report supported that the child’s paternal grandmother is supportive of the child and deeply involved in his life, including taking the child to and from school and facilitating changeovers.
Upon reading the court documentation filed by our office and the Department report, the Senior Judicial Registrar (“SJR”) immediately indicated that the child should be returned to our client to maintain the status quo whereby the child had been living solely with the Applicant Father for two years. She also indicated that the child should return to school as soon as possible and highlighted her concern regarding the child not attending school for 5 weeks.
Upon hearing the SJR’s initial opinion, the matter was stood down, we negotiated with the Respondent Mother’s solicitors and consent orders were drafted.
The Court made Orders in the following terms:
- That the child be returned to the Applicant Father by 4:00pm that day;
- That a Child Impact Report be completed before the next hearing in this matter;
- That an independent children’s lawyer be appointed;
- That the Respondent Mother undertake a hair follicle test to establish her drug and/or alcohol abuse;
- That the parties are prohibited from having a BAC above 0.05 or using any illicit substances;
- That the Respondent Mother can speak to the child for thirty minutes via phone call, twice a week, pending supervised time becoming available for one session per week (with a wait time of approximately 6-8 weeks);
- That the interim IVO against the paternal grandmother does not impact her role to take the child to and from school and live in the same place of residence as the child, which was previously prohibited by the interim IVO. This was possible as family law orders supersede Magistrates’ Court Orders; and
- Both parties agreed on general injunctions to address both parties’ alleged risks including prohibition on parties exposing the child to family violence, to not discuss the family law proceedings with the child, not speak negatively about the other party to the child and to not corporally punish the child.
This was a perfect outcome for our client as there were no major restrictions against him, problematic interim IVO conditions were mitigated, and most conditions were only applicable to the Respondent Mother to minimise her risk to the child.
Ultimately, the child was returned to our client’s care by 4:00pm on the afternoon of the court hearing.
The Next Step
If you would like advice about your family law matter and wish to obtain an understanding of the options available to you, contact 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next. We look forward to speaking with you.