Dansey & Dansey (No 6)

Case [2024] FedCFamC1F 165

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dansey & Dansey (No 6) [2024] FedCFamC1F 165

File number(s): SYC 3614 of 2021
Judgment of: ALTOBELLI J
Date of judgment: 19 March 2024
Catchwords: FAMILY LAW – Interim parenting – Where final orders were made in December 2023 – Significant change in circumstances – Where the final orders are clearly not working for the subject children – Where the older child is self-presenting to the police station – It is ordered that time be suspended between the children and the mother for a fixed period.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68L, 69ZW
Cases cited:

Acheson & Begbie [2023] FedCFamC1A 240

Dickens & Dickens [2016] FamCA 11

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Horner & Horner [2018] FamCA 487

Marsden & Winch (2009) 42 FamLR 1; [2009] FamCAFC 152

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Walter & Walter [2016] FamCAFC 56
Division: Division 1 First Instance
Number of paragraphs: 97
Date of hearing: 7 March 2024
Place: Sydney
Counsel for the Applicant: Ms Vohra SC
Solicitor for the Applicant: Pearson Emerson Lawyers
The Respondent: Litigant in person
Solicitor for the Independent Children's Lawyer: G & D Lawyers

ORDERS

SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DANSEY

Applicant
AND:

MS DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

19 MARCH 2024

THE COURT ORDERS THAT:

1.Orders 6, 7, 13, 14, and 22 made on 13 December 2023 be suspended until 14 August 2024.

2.The children are to live with the applicant father (“the father”) and spend no time with the respondent mother (“the mother”) until 14 August 2024.

3.From 7 April 2024, the father shall facilitate a five-minute telephone or video call with each child (ten minutes in total) and the mother once weekly on Sundays between 6.00 pm and 7.00 pm or at any other times as may be agreed between the parties.

4.The father’s Fourth Amended Initiating Application filed 5 March 2024 is listed for mention on 25 June 2024 at 9.00 am.

5.The Independent Children’s Lawyer has leave to relist the matter on seven days’ notice. 

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or…

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Dansey & Dansey (No 6) [2024] FedCFamC1F 165
Case
[2024] FedCFamC1F 165
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the court was asked to consider further interim orders in a complex parenting dispute between Mr Dansey (the father) and Ms Dansey (the mother) concerning their two children, X and Y. The final orders had been made in December 2023, but the court was now being asked to make further interim orders due to a significant change in circumstances. The final orders provided that the children would live with the father and have no contact with the mother until 2 February 2024, after which they were to have time with the mother each alternate weekend. However, the father had applied for further interim orders, alleging that the final orders were not working for the children, and that the older child had self-presented to the police station.

The court needed to determine whether the significant change in circumstances justified further interim orders and, if so, what those orders should be. The court had to consider the evidence and arguments from both parties and determine whether the final orders were not working for the children and whether there was a need to suspend time between the children and the mother for a fixed period. The court also had to consider the welfare and best interests of the children in making its decision.

In reaching its decision, the court considered the evidence and arguments from both parties and the welfare and best interests of the children. The court found that the final orders were not working for the children, and that the older child had self-presented to the police station, indicating that the current arrangements were not suitable. The court was satisfied that the father had a genuine concern for the welfare of the children and that the mother's mental health issues and allegations of sexual abuse against the father were not substantiated. The court found that suspending time between the children and the mother for a fixed period was necessary to allow the children to rebuild their relationship with the father and to address the concerns about the current arrangements. The court made orders suspending the final orders until 14 August 2024, during which time the children would live with the father and have no contact with the mother. The father was also ordered to facilitate weekly telephone or video calls between the children and the mother.

The court made orders suspending the final orders until 14 August 2024, during which time the children would live with the father and have no contact with the mother. The father was ordered to facilitate weekly telephone or video calls between the children and the mother, starting from 7 April 2024. The father’s application for further orders was listed for mention on 25 June 2024, and the Independent Children’s Lawyer was granted leave to relist the matter on seven days’ notice.

Orders

Orders of the court

SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DANSEY

Applicant

AND:

MS DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

19 MARCH 2024

THE COURT ORDERS THAT:

1. Orders 6, 7, 13, 14, and 22 made on 13 December 2023 be suspended until 14 August 2024.

2. The children are to live with the applicant father (“the father”) and spend no time with the respondent mother (“the mother”) until 14 August 2024.

3. From 7 April 2024, the father shall facilitate a five-minute telephone or video call with each child (ten minutes in total) and the mother once weekly on Sundays between 6.00 pm and 7.00 pm or at any other times as may be agreed between the parties.

4. The father’s Fourth Amended Initiating Application filed 5 March 2024 is listed for mention on 25 June 2024 at 9.00 am.

5. The Independent Children’s Lawyer has leave to relist the matter on seven days’ notice.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These reasons for judgment explain the further interim orders that the Court has made in this complex parenting dispute between the applicant father (“the father”) and the respondent mother (“the mother”) in the best interests of two children, X aged 12 and Y aged 10 (“the children”).BACKGROUND The parenting aspect of this matter proceeded for final hearing for 14 days before me last year on 14–16, 22–23, 26–27 June 2023 and 3–5, 11–13 October 2023. Final orders were made on 13 December 2023 (“the final orders”) accompanied by extensive reasons for judgment (“my final reasons for judgment”). They provide for the father to have sole parental responsibility for the children and for the children to have no contact with the mother until 2 February 2024 (a period of approximately seven weeks). Thereafter, the final orders provide for the children to live with the father and spend time with the mother each alternate weekend from after school on Friday until the commencement of school on Wednesday. The spend time arrangements were to graduate to a week about arrangement in 2026. My final reasons for judgment made several relevant findings in relation to the parties to these proceedings. At [13] of my final reasons for judgment I noted that it was an undisputed fact that X does not hold, and has never held, a belief that she has been sexually abused by the father. I further noted that throughout the history of these proceedings, the mother made allegations in respect of sexual abuse and/or grooming of X but withdrew those allegations upon “reflection”. At [113], the Court found that a meaningful relationship between the children and the father did not exist at the time of the orders but the necessary preconditions of one existed based on the children’s historical views and experiences of the father and the paternal family. I traversed my concerns at [135] that whilst the mother outwardly encouraged X’s relationship with the father, it was clear that the mother still believed, to some extent, that the father was a risk of harm to the children. In that context, it was difficult to see how the mother could truly encourage and facilitate a meaningful relationship in light of such a belief. Therefore, the Court concluded that a period of no contact between the children and the mother was necessary in order to rebuild the relationship between the children and the father. The Court was presented with conflicting expert evidence in relation to the mother’s mental health. I ultimately determined that it was unlikely that the mother suffered from a delusional diagnosis and was instead exhibiting symptomology due to her PTSD (at [159]). In relation to the allegations of sexual abuse that the mother made against the father, the Court found that the mother had failed to discharge the onus of satisfying the civil standard of proof for a positive finding to be made that she had been sexually abused (at [175]). There was no unacceptable risk of abuse arising from X spending time with the father. However, the Court found at [202] that it was likely the father had anger issues to the extent that the children witnessed the father yelling at the mother and held some concern about his lack of insight into his behaviour.

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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