Withholding of child invokes a Recovery Order

A father has failed in his bid to resist the making of a Recovery Order where he fails to return a child contrary to a Parenting Plan:

Solos & Michaud [2018] FCCA 3050 (1 October 2018)

  1. In this application the mother has sought orders in the nature of a recovery order for the return of the child of the relationship who was not returned to the care of the mother following the provision of the child to the father most recently. The basis upon which the father resists returning the child is apprehension of risk to the child by reason of what he says is the mother’s self-confessed and proven drug-taking activity.
  2. I am not satisfied that there is merit in the father’s application. To the contrary. I am satisfied that it would orchestrate greater trauma to the child for the child to continue to live with the father having regard to the fact that the child was in the care of the mother until this application.
  3. Let me explain my reasoning.
  4. Some time ago the parents entered into a parenting agreement without the need of court involvement pursuant to which they agreed on a regime for each parent to have time with their child. One parent lives in Queensland. The other lives in Victoria. Pursuant to that arrangement the mother made the child available to the father in the state of Victoria. The time for the return of the child under the parenting arrangement required the child to be returned to the mother by a particular time. The father did not agree to that. Then followed an exchange between the parents culminating in an agreement by the father to return the child.
  5. For reasons not adequately explained the father the very next day brought this proceeding in this court in which he sought a rearrangement of the time regime.
  6. The evidence in respect of the so-called drug taking is unproven. It involves a great many allegations and counter-allegations, none of which are tested. Today, Mr Bunning of counsel handed to me a document from the Drug Detection Agency that indicated that the mother had returned a clean report in respect of drug-taking activities as recently as 24 September 2018. On behalf of the father, Mr Roberts said that the mother was a frequent and habitual user of a variety of drugs. That did not appear to be borne out by the evidence, albeit that the evidence is untested on the point.
  7. Ultimately, in a consideration of the application that is before me today the primary consideration is the best interests of the child. Both parties contended that the balance tipped in his or her favour. It seemed to me that the father, without the approval of the mother and without court sanction, failed to comply with his parenting arrangements as recorded in the parenting agreement. He instead has purported to rely on an historic examination of the mother’s drug-taking history, which, as I have indicated is based on the recent drug detection agency report and is not borne out.
  8. I am not in a position to assess the ability of either parent to adequately care for the child by reason of drug-taking activities or other factors. That can only be done with the benefit of a full investigation into the matter. But at this interim level it seemed to me that the most compelling factor that bore upon this case was obviously the best interest of the child underpinned by the time with whom the child has spent the most time thus far in the child’s short life.
  9. The mother has been the primary carer. I am satisfied that it would orchestrate much greater hardship to the child not to return to the mother than the reverse and, in those circumstances, it seemed to me that it is best to act in the child’s best interests at all times by making an order for the recovery of the child to the care of the mother.
  10. The price, of course, for that order is an absolute prohibition forthwith on any drug taking by the mother of any drugs of any description and I will forthwith prohibit her from so doing and I will require her to submit herself for fortnightly screening and verification. I will make a recommendation to the judge to whom this case is ultimately transferred to entertain an application if any one of the reports as to fortnightly screening is in the positive. In other words, the slightest indication of drug taking (or a resumption of drug taking if any pre-existed) will be visited sanguinely upon the mother.

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