FAMILY COURT OF AUSTRALIA
| BUTTERS & BUTTERS | [2017] FamCA 801 |
| FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the father sought to vary the current interim orders so that the children live with the father and spend time with the mother under “light” supervision – Where the father contends that there has been a change in circumstances in relation to all three children and raised concern in relation to the mother’s parenting capacity – Court finds that there is no justification for revisiting previous parenting orders that currently apply to the two youngest children – Court finds that it would not be appropriate for the presumption of equal shared parental responsibility to be applied in these interim proceedings – Where the eldest child has expressed a reluctance to return to her mother’s care – Where there are concerns that the eldest child would run away in the event that she is forced to return to her mother’s care – Where there are concerns the eldest child may be alienated from the mother if not returned to her mother’s care – Court finds that there is an unacceptable risk that the child would be exposed to emotional distress and potentially psychological harm in being required to resume living with her mother – Orders made for the child to remain living with the father and for time with the mother to resume on a graduated basis – Orders made for the children to continue therapy. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA |
| B and B (1993) FLC 92-357 Salah & Salah (2016) FLC 93‑713 Sigley v Evor (2011) 44 Fam LR 439 | ||
| APPLICANT: | Ms Butters | |
| RESPONDENT: | Mr Butters |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW | ||||
| FILE NUMBER: | SYC | 7398 | of | 2014 | |
| DATE DELIVERED: | 11 October 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 28 August 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Kyle of Kyle Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Campton SC |
| SOLICITOR FOR THE RESPONDENT: | Gordon & Barry Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shae of Legal Aid NSW |
Orders
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Interim parenting
That pending further order, the Orders made on 5 February 2015 and 12 August 2016 be varied so that:
(a)The child, B born … 2006, live with the father.
(b) B spend time with the mother, during school term, as follows:
(i)For two consecutive Tuesdays following the…
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- BUTTERS & BUTTERS [2017] FamCA 801
- Case
- [2017] FamCA 801
- Decision Date
CaseChat Overview and Summary
The court was required to determine the interim living arrangements for B, specifying the time B would spend with each parent during school terms and holidays. Additionally, the court needed to consider and make orders regarding restraints on the parents' conduct towards each other and in the presence of the children, and to address the ongoing therapy arrangements for the children.
McClelland J made orders varying previous parenting orders to provide that B live with the father. The court also set out a detailed schedule for B to spend time with the mother during school terms, ensuring this time coincided with B spending weekends with her siblings. Orders were made restraining both parents from denigrating the other parent or discussing the proceedings with the children. Existing therapy orders were discharged, and new orders were made requiring both parents to facilitate the children's attendance and participation in therapy with C Group, and to comply with C Group's recommendations, including counselling if directed. The Independent Children's Lawyer was granted leave to liaise with C Group and to obtain reporting letters regarding the children's progress. The parties were to share equally the costs of therapy.
The court noted that the Independent Children's Lawyer was requested to explain the orders to B, and that the matter was listed for a final hearing. The parties had also agreed for a single expert report to be prepared.
Orders
Orders of the court
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Interim parenting
1.
That pending further order, the Orders made on 5 February 2015 and 12 August 2016 be varied so that:
(a) The child, B born … 2006, live with the father.
(b) B spend time with the mother, during school term, as follows:
(i) For two consecutive Tuesdays following the date of these orders, from after school until 6.00pm.
(ii) Thereafter, for a period of two weeks, from after school on Friday until 5.00pm on Saturday.
(iii) Thereafter, each alternate weekend from after school Friday until before school Monday.
2.
The time that B spends with her mother pursuant to Order 1(b)(iii) shall coincide with “week one” referred to in the orders made on 12 August 2016, so that B spends each weekend with her siblings.
3.
B live with each parent during school holiday periods in accordance with Orders 13 and 14 of Exhibit 1 of the Orders made on 12 August 2016.
Restraints
4.
That each parent be and hereby is restrained from:
(a) Denigrating or making critical or derogatory remarks about the other parent to or in the presence or hearing of any of the children; and
(b) Discussing these proceedings, or any of the issues raised in these proceedings, with any of the children, or in the presence or hearing of any of the children.
Therapy
5.
That Orders 7, 8, 9, 10, 11 of Exhibit 1 of the Orders made on 12 August 2016 be discharged.
6.
The mother and the father shall facilitate the children’s attendances upon C Group at such times and at such places as reasonably proposed by C Group from time to time and shall do all things to encourage the children to attend upon and participate in therapy with C Group.
7.
The mother and father shall each comply with all reasonable requests, referrals and recommendations of C Group including:
(a) for them to participate in counselling if so directed; and
(b) steps that should be taken to facilitate B spending time with her mother in accordance with these orders.
8.
The Independent Children's Lawyer has leave to liaise with C Group from time to time and be provided with information regarding the children’s attendance, compliance, progress and any recommendations and is at liberty to obtain a brief reporting letter, in relation to those matters only, which can be provided to the parties and to the Court.
9.
The mother and father are equally responsible for any costs associated with the children attending on C Group.
10.
Leave is granted to the Independent Children’s Lawyer to provide a copy of the Family Report prepared by Ms D on 17 February 2016 to C Group.
AND THE COURT NOTES THAT:
A. It is requested that the Independent Children’s Lawyer explain the effect of these orders to B.
B. The matter remains listed for final hearing for 5 days commencing on 7 May 2018.
C. The parties have agreed for a single expert report to be prepared by Ms E.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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