Dansey & Dansey

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FAMILY COURT OF AUSTRALIA

Dansey & Dansey [2021] FamCA 462

File number(s): SYC 3614 of 2021
Judgment of: BERMAN J
Date of judgment: 30 June 2021
Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Relocation – Interim – Where the mother unilaterally relocated the children’s residence intrastate – Where the father seeks a recovery order for the delivery up of the children – Where the mother opposes any time spending with the father –Where there are allegations of family violence – Where findings cannot be made at this stage – Where it is in the best interests of the children to maintain a meaningful relationship with the father – Where orders can be made to ameliorate any risk – Orders.  
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 67Q
Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Marvel v Marvel (2010) 43 Fam LR 348

Number of paragraphs: 79
Date of hearing: 4 June 2021
Place: Heard in Sydney, delivered in Adelaide
Counsel for the Applicant: Mr Barnett
Solicitor for the Applicant: Pearson Emerson Family Lawyers
Counsel for the Respondent: Mr Romaniuk SC
Solicitor for the Respondent: Martin Street Lawyers

ORDERS

SYC 3614 of 2021
BETWEEN:

MR DANSEY

Applicant
AND:

MS DANSEY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

30 JUNE 2021

THE COURT ORDERS:

1.That the parties have equal shared parental responsibility of the children X born … 2012 and Y born … 2013 (collectively “the children”).

2.That the children live with the mother.

3.That the children spend time with the father supervised by the paternal grandparents in the week commencing 12 July 2021 as follows:

(a)From after school or 3.00 pm for a period of four (4) hours once each week and failing agreement each Wednesday from after school or 3.00 pm until 7.00 pm; and

(b)For a period of eight (8) hours each weekend and failing agreement from 9.00 am until 5.00 pm each Sunday.

4.That for the purpose of the time which the children spend with the father, the paternal grandparents shall facilitate changeover with the mother where such changeover does not take place to and from the children’s school.

5.That the parties be restrained and an injunction granted restraining each of them from:

(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence of the children;

(b)Using physical discipline on the children or either of them;

(c)Discussing the proceedings or the contents of any documents filed in the proceedings with or in the presence of the children; and

(d)Relocating the children’s residence outside of a 10 km radius of Suburb B Public School except in the event of written agreement between the parties.

6.That upon the advice of the mother that she intends to return with the children to take up residence at F Street, Suburb B, New South Wales, the father shall vacate the premises within forty eight (48) hours of such notice.

7.That the father be restrained and…

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Details
Case
[2021] FamCA 462
Decision Date

CaseChat Overview and Summary

In *Dansey & Dansey*, Berman J of the Family Court of Australia considered an application by the father for a recovery order for the children, X and Y, following the mother's unilateral relocation of their residence intrastate. The mother opposed any time spending with the father and raised allegations of family violence. The father sought the return of the children to his care.

The central legal issues before the court were whether to grant a recovery order for the children, how to facilitate the children spending time with the father, and what measures were necessary to ameliorate any identified risks to the children's welfare, particularly in light of allegations of family violence and concerns regarding the paternal grandparents' involvement. The court was required to determine the best interests of the children, balancing their need to maintain a meaningful relationship with both parents against the potential risks and disruptions arising from the relocation and the allegations.

Berman J declined to make findings on the allegations of family violence at this interim stage, noting that both the mother's and father's accounts were equally open to such findings. The court determined that it was in the children's best interests to maintain a meaningful relationship with their father. To address potential risks, the court ordered that the children live with the mother but spend time with the father under the supervision of the paternal grandparents. The court also imposed injunctions restraining both parents from denigrating the other in the children's presence, using physical discipline, discussing proceedings with the children, and restricting the children's relocation outside a specified radius without agreement. The court considered the disruption of a further move and found that the mother's return to Sydney with the children, allowing them to resume their schooling at Suburb B Public School, would minimise disruption.

Consequently, the court made orders for the children to have equal shared parental responsibility, live with the mother, and spend supervised time with the father. The father was ordered to vacate the premises upon the mother's return to Sydney. No recovery order was made, as the court found no indication that the mother would not comply with the orders.

Orders

Orders of the court

SYC 3614 of 2021

BETWEEN:

MR DANSEY

Applicant

AND:

MS DANSEY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

30 JUNE 2021

THE COURT ORDERS:

1. That the parties have equal shared parental responsibility of the children X born … 2012 and Y born … 2013 (collectively “the children”).

2. That the children live with the mother.

3. That the children spend time with the father supervised by the paternal grandparents in the week commencing 12 July 2021 as follows:

(a) From after school or 3.00 pm for a period of four (4) hours once each week and failing agreement each Wednesday from after school or 3.00 pm until 7.00 pm; and

(b) For a period of eight (8) hours each weekend and failing agreement from 9.00 am until 5.00 pm each Sunday.

4. That for the purpose of the time which the children spend with the father, the paternal grandparents shall facilitate changeover with the mother where such changeover does not take place to and from the children’s school.

5. That the parties be restrained and an injunction granted restraining each of them from:

(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence of the children;

(b) Using physical discipline on the children or either of them;

(c) Discussing the proceedings or the contents of any documents filed in the proceedings with or in the presence of the children; and

(d) Relocating the children’s residence outside of a 10 km radius of Suburb B Public School except in the event of written agreement between the parties.

6. That upon the advice of the mother that she intends to return with the children to take up residence at F Street, Suburb B, New South Wales, the father shall vacate the premises within forty eight (48) hours of such notice.

7. That the father be restrained and an injunction granted restraining him from attending or remaining in the vicinity of the mother, her place of residence and her place of employment save as may be necessary to give effect to these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

It is understood that the parties are able to agree for the delivery up of the wife’s possessions and belongings and no order is required.BACKGROUND The parties commenced cohabitation in or about 2007 and were married on 22 March 2008. Prior to the parties’ separation, both children attended Suburb B Public School. The parties are not agreed as to the extent of their respective involvement with the children. The father contends that he was highly involved in the children’s day to day care and participated in their daily routine involving both curricular and extracurricular activities. The mother rejects the extent of the father’s involvement with the children and contends that soon after the birth of X the father did not provide any assistance or care for her but rather was engaged in his employment, leaving home early in the morning and returning late in the evening. Similarly, the father had little to do with Y, although the mother alleges that the father’s adverse behaviour towards Y escalated to the father becoming physically abusive. The father contends that his parents played a significant role in the care of the children. It appears that the paternal grandparents looked after the children to assist each of the parties to engage in their preferred employment. The mother is critical of the father’s family and the extent to which they place the children at risk. The mother considers that she has been uncomfortable leaving the children in the care of either the paternal grandparents or the father’s brother. The mother lists her concerns at paragraph 68 of her affidavit filed 3 June 2021. The concerns can be summarised as follows:(1)That the paternal grandfather has anger management issues in respect of disciplining children and that the mother believes that on at least one occasion the paternal grandfather has hit Y; (2)When four years of age Y declared that he wanted to be a vegetarian, the paternal grandparents ignored his wishes and would force him to eat meat; (3)That all members of the father’s family would “inflict arbitrary violence against the family dog”[1]; (4)That the father’s brother would consume alcohol to excess, become aggressive and demonstrate aggressive behaviour towards the children; and(5)The father’s brother would make inappropriate comments to X such as “oh it’s lucky you’re pretty.”[2][1] Affidavit of the mother filed 3 June 2021, paragraph 68(c). [2] Ibid, paragraph 68(e). It is conceded that the paternal grandparents played a significant role in caring for the children. The father disputes the mother’s allegations made in respect of his family. The mother relocated with the children to her current premises in G Town on 10 May 2021. The mother agreed that she sought advice and counselling from the New South Wales Domestic Violence line on 8 May 2021. It is her position that following the discussion with the operator, she was advised to make plans to leave the family home but to act in way that would appear to the father to be normal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I bring to account the allegations made by the mother in respect of the father being the perpetrator of family violence. As discussed, I am not able to make a finding and at this stage consider that the father’s rejection of the allegations are as open to a finding as are the mother’s allegations of sexual assault and family violence perpetrated by the father.CONCLUSION I find that it is in the best interests of the children that they maintain a meaningful relationship with the father. Further, I consider that an order should be made which restores the children spending time with the father but in circumstances where the Court can be satisfied the risk to the children is ameliorated. I have given careful consideration to the potential disruption to the mother but in particular the children of yet again another significant move, namely from the H Region back to Sydney. The father proposes to vacate the Suburb B property upon the mother and children returning to Sydney. I consider that this is a significant factor in lessening the disruption to the children of leaving H Region. The children have only been in their current circumstances for a little more than a month and it could not be said that they are settled either in terms of their school or living circumstances and environment. The children are able to return to Suburb B Public School and resume their education and peer relationships with little further disruption. The mother has held highly skilled employment in Sydney and has the capacity to obtain appropriate remuneration, particularly if she is able to return to the Suburb B property. For those reasons I consider that the orders sought by the father that the children spend time with him, supervised by the paternal grandparents, are in the best interests of the children and should be promoted. I do not propose to put in place a recovery order. There is no indication that the mother does not intend to comply with orders made. It is reasonable that the mother have an opportunity to return the children to Sydney during the upcoming New South Wales school holidays thereby enabling the children to resume third term at Suburb B Public School. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.