DONALDSON & SORRELL - [2017] FCCA 2488

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONALDSON & SORRELL

[2017] FCCA 2488

Catchwords:
FAMILY LAW – Parenting – dispute over parenting orders – children live with mother – what time children should spend with father – chronic inability to communicate and co-operate – evidence of family report writer – position of Independent Children’s Lawyer – final orders in children’s best interests.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61DA

Cases cited:

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Hall & Hall [1979] FLC 90713
Friscioni & Friscioni [2010] FamFAFC 108
Heath & Hemming (No.2) [2011] FamCA 749
Andrews & Nicola (No.2) [2014] FamCA 167

Applicant:

MS DONALDSON

Respondent:

MR SORRELL

File Number:

MLC 3463 of 2012

Judgment of:

Judge O'Sullivan

Hearing dates:

27 & 28 September 2017

Date of Last Submission:

28 September 2017

Delivered at:

Melbourne

Delivered on:

28 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr McDermott

Solicitors for the Applicant:

James McDermott and Associates

The Respondent:

Appeared in person

Counsel for the Independent Children's Lawyer:

Ms Wiener

Solicitors for the Independent Children's Lawyer:

Cathleen Corridon and Associates

ORDERS

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The children [X] born (omitted) 2008 and [Y] born (omitted) 2010 (“the children”) live with the mother and the mother have sole parental responsibility for the children.
The mother advise the father in writing of any decision she intends to make regarding health, education or religion and he be given an opportunity to respond. In the event of a disagreement the mother shall make the final decision.
The children spend time and communicate with the father as follows:
(a)so long as the father resides within 30 minutes of the children’s school, then they spend time with him from after school Monday until Tuesday morning in week 1 commencing 9 October 2017 and each alternate week thereafter and from 10:00am Sunday to Tuesday morning before school or 9:00am in week 2 commencing 15 October 2017 and each alternate week thereafter;
(b)should the father reside more than 30 minutes from the children’s school, then the children spend time with the father from after school Friday to 6:00pm Sunday evening each alternate week, provided that the father can facilitate the children’s extra curricular activities.
(c)the father be at liberty to telephone the children on two occasions per week and the mother be at liberty to telephone the children on at least one occasion during any period of consecutive nights with the father;
(d)for one half of the mid year school holidays and for two weeks during the long summer vacation, to be taken in two non-consecutive day blocks with a break of at least 7 days between the 2 blocks, provided that the father is to give the mother 28 days notice of his ability to take such holidays and his ability to take more.
(e)for Christmas as follows:
(i)in 2017 from 5:00pm 24 December to 5:00pm Christmas Day and in each alternate year thereafter;
(ii)in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DONALDSON & SORRELL

Details

AGLC: DONALDSON & SORRELL [2017] FCCA 2488
Case: [2017] FCCA 2488
Decision Date: 28 September 2017

CaseChat Overview and Summary

This matter concerned parenting arrangements for two children, [X] and [Y], before Judge O'Sullivan. The dispute arose following the parents' final separation in September 2011, with existing consent orders from December 2012 governing the children's living arrangements and time with their father. The mother had significantly inhibited the father's time since early 2016, citing protective concerns related to alleged emotional and physical abuse. Two Intervention Orders were reportedly in place against the father, one protecting [X] and the other protecting the mother and [Y], which the father had agreed to without admissions.

The court was required to determine the future parenting arrangements for the children, including where they would live, the extent of parental responsibility, and the specific time the children would spend with each parent. Key issues included assessing the alleged protective concerns against the father, the impact of these concerns on the children's welfare, and the appropriate level of communication and decision-making power for each parent. The court also needed to consider the father's alleged history of violence and the mother's reported anxieties.

Judge O'Sullivan discharged all previous parenting orders and made new orders that the children would live with the mother and that she would have sole parental responsibility. The mother was required to advise the father in writing of any decisions regarding the children's health, education, or religion, providing him an opportunity to respond, with the mother retaining the final decision-making authority in cases of disagreement. The orders detailed specific arrangements for the children to spend time and communicate with the father, with variations depending on the father's residential proximity to the children's school. The court also imposed injunctions restraining the father from recording telephone conversations with the children and from using physical discipline. Both parents were restrained from denigrating the other parent in the children's presence, discussing court proceedings with the children, and were limited to written or SMS communication with each other, except as otherwise provided. The father was ordered to obtain counselling for impulse control and conflict resolution, and both parents were directed to engage in counselling and dispute resolution services.

The court ordered that the children live with the mother and that she have sole parental responsibility. The father was granted specific time with the children, subject to various conditions and communication protocols. Injunctions were imposed on both parents regarding communication and conduct in the presence of the children. The Independent Children's Lawyer was discharged, and all other applications were dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

All previous parenting orders be discharged.

The children [X] born (omitted) 2008 and [Y] born (omitted) 2010 (“the children”) live with the mother and the mother have sole parental responsibility for the children.

The mother advise the father in writing of any decision she intends to make regarding health, education or religion and he be given an opportunity to respond. In the event of a disagreement the mother shall make the final decision.

The children spend time and communicate with the father as follows:

(a) so long as the father resides within 30 minutes of the children’s school, then they spend time with him from after school Monday until Tuesday morning in week 1 commencing 9 October 2017 and each alternate week thereafter and from 10:00am Sunday to Tuesday morning before school or 9:00am in week 2 commencing 15 October 2017 and each alternate week thereafter;

(b) should the father reside more than 30 minutes from the children’s school, then the children spend time with the father from after school Friday to 6:00pm Sunday evening each alternate week, provided that the father can facilitate the children’s extra curricular activities.

(c) the father be at liberty to telephone the children on two occasions per week and the mother be at liberty to telephone the children on at least one occasion during any period of consecutive nights with the father;

(d) for one half of the mid year school holidays and for two weeks during the long summer vacation, to be taken in two non-consecutive day blocks with a break of at least 7 days between the 2 blocks, provided that the father is to give the mother 28 days notice of his ability to take such holidays and his ability to take more.

(e) for Christmas as follows:

(i) in 2017 from 5:00pm 24 December to 5:00pm Christmas Day and in each alternate year thereafter;

(ii) in 2018 from 5:00pm Christmas Day to 5:00pm Boxing Day and in each alternate year thereafter

(f) on Father’s Day from 6:00pm the Saturday prior to 6:00pm father’s Day should it be a day when the children are not in his care, provided that if the children are with him on Mother’s Day then his time be suspended at 6:00pm on the Saturday preceding Mother’s Day;

(g) on the boys’ birthdays as agreed in writing, for 2 hours during a school day and in default of agreement from 4:00pm to 6:00pm and for 3 hours on a weekend as agreed and in default of agreement from 3:00pm to 6:00pm, should they not be in his care and should they be with him then his time be suspended for 2 hours on a weekday and for 3 hours on a weekend, and in default of agreement 4:00pm to 6:00pm on a school day and from 10:00am to 1:00pm on a weekend; and

(h) as otherwise agreed from time to time in writing, which shall include SMS or whatsapp.

The children be at liberty to telephone either parent when they are in the other parent’s care, at their discretion.

The time provided for in Order 4(a) and (b), as the case may be, be suspended during any term or long summer holiday period and recommence upon the same schedule as if the holiday had not intervened.

That the father be restrained by injunction from:

(a) recording the children’s telephone conversations with himself or the mother.

(b) using any form of physical discipline or chastisement on the children or either of them.

That neither parent question the children about time spent at the other parents home.

That each parent be restrained by injunction from:

(a) denigrating or criticising the other parent in the hearing or in the presence of either child or allowing any other person to do so;

(b) discussing these proceedings or any other court proceedings or any issues relating thereto with the children or either of them; and

10.

The father advise the mother by SMS 48 hours prior to any spend time arrangement in order 4 as to whether or not he intends to avail himself of the time with the children in these orders.

11.

The Independent Children’s Lawyer be authorised to explain to the children these orders.

12.

That changeover for the purposes of these orders shall take place at the children’s school on school days or otherwise the carpark area of the (omitted) Petrol Station in (omitted) or as otherwise agreed.

13.

For the purposes of 4(c) that the father purchase a non-smart mobile phone for the children and pay for all charges in respect of it and such phone shall travel with the children, and the parent with whom the boys are with shall ensure it is charged and within range and the boys shall be at liberty to use it to phone the other parent and each parent shall use it to phone the children but not after 7:00pm.

14.

The parents set up an online communication tool such as www.mymob.com or such other no fee charging service as may be agreed.

15.

The children be engaged with counselling as required through CatholicCare or their local mediation centre or by referral from their doctor and such counsellor be entitled to read the two family reports prepared in these proceedings.

16.

The father obtain a referral from his doctor for individual counselling assistance relating to his current stressors, capacity for impulse control and conflict resolution skills and for that purpose such counsellor be entitled to read the two family reports prepared in these proceedings.

17.

The mother continue to attend upon her counsellor as directed.

18.

The father be at liberty to attend all relevant extra curricular activities in which the children participate provided he gives the mother reasonable notice of his intention to do so.

19.

The father be at liberty to attend the school the children attend from time to time for all activities to which parents are normally invited and he also be at liberty to correspond directly with the school and to attend parent teacher nights and to receive school reports, photos and like material at his expense if any.

20.

The parents to attend upon Child Inclusive Family Dispute resolution at a Family relationship Service prior to issuing proceedings if in the future they experience difficulties.

21.

The parents keep each other informed of any medications to be administered to the children or either of them prior to any changeover of the children into his/her care and advise the other as soon as possible of any health emergency affecting the children when they are in their care.

22.

The father inform the mother of any change of residential address within 24 hours of the change taking effect.

23.

Each party keep the other informed of his/her contact telephone number and any change thereto within 24 hours of the change taking effect.

24.

The appointment of the Independent Children’s Lawyer be discharged.

25.

All applications otherwise dismissed.

26.

Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.

Background

Background to the litigation

In accordance with the interim orders, the parties and the children attended a section 11F conference with a family consultant Ms D on 8 August 2016. The memorandum produced as a result provided as follows:“Brief BackgroundThe current dispute relates to the parenting arrangements for 8 year-old [X] and 6 year-old [Y]. The parents separated on a final basis in September 2011. There are Final Parenting Orders by consent dated 12th December 2012. The above parenting orders allowed for the children to live primarily with their mother and spend time with their father from Monday until Wednesday in one week, and from Sunday until Wednesday in the alternate week. The mother has inhibited the father’s time with the children since the beginning of 2016, due to reported protective concerns associated with emotional and physical abuse by the father.There are two current Intervention Orders (IVO) reported against the father. One order protects [X] and was reportedly applied for by the police. The other protects the mother and [Y]. Mr Sorrell agreed the IVO’s without admissions for one year, provided that his time with the children was able to continue. The IVO application(s) related to a reported incident that occurred on 8th December 2015, whereby it was alleged that the father pushed [X] onto chair, resulting in a mark on his back. The Department of Health and Human Services (DHHS) and the Sexual Offenses and Child Abuse Investigation Team (SOCIT) of Victoria Police were notified. However, the allegations of risk were not substantiated due to lack of evidence.The mother further asserted that there was a previous IVO against the father in 2014 due to similar violence towards [X], whereby the father allegedly grabbed [X] around the neck. Again, these concerns were not substantiated, however, the father was reportedly ordered to undertake a Men’s Behaviour Change Program and the children received counselling at (omitted) Family Services. The counsellor from (omitted) Family Services reportedly made a notification to Child Protection. This information has reportedly been subpoenaed, but was not read by the writer. There were no substantiated risks reportedly identified by the Department of Health and Human Services (DHHS).Given that the mother has not made the children available for the time-spent arrangements with their father for the entirety of this year, Mr Sorrell has been visiting the children each Monday and Tuesday at their school, given this is during his Court Ordered time. He has also been taking the children’s younger half brother [A] to see them at school each Monday to maintain this relationship. …Future directionsPending further assessment through a Family Report, it is recommended that the parents maintain joint parental responsibility for [X] and [Y].That the children continue to live primarily with their mother.Due to the claims of ongoing denigration and inappropriate discussions by the father, the children may benefit from their time with Mr Sorrell initially being supervised. It may also assist the mother’s elevated anxiety for this time to be evaluated through a Private Supervision Report, prior to the commencement of unsupervised time. In this regard, it is recommended that the children spend time with their father each Saturday or Sunday for a period of one month, as supervised by an agency such as (omitted) Family Services. In the event of a positive report, and in the absence of risk, thereafter the children’s time with their father should be unsupervised and gradually increase. It is recommended that the parents share the cost of engaging (omitted) Family Services, and that both [A] and Ms I are able to also attend.The Court will benefit from the appointment of an Independent Children’s Lawyer (ICL).It will be imperative that the children and their father receive appropriate therapeutic assistance in order to rebuild their relationship. This will be best achieved through a practitioner who specialises in Family Law. The involvement of the mother in receiving similar assistance will also be critical, given her ongoing anxieties in relation to Mr Sorrell, and her role as the children’s primary carer. For example; the family attending upon a private practitioner such as Dr J, Mr V, or Ms L. Or through the parents attending upon a Parenting Orders Program at Catholic Care, and counselling through an agency such as the Family Mediation Centre. The appointment of an appropriate service may be assisted by the ICL.The children will benefit from their father also attending a parenting program such as Tuning Into Kids (ph. (omitted)), in order to gain greater insight into the impact of his behaviour, and to develop additional skills around the children’s emotional needs.Without admitting necessity, the father should also refrain from any use of physical punishment or excessive force during play with the children.Both parents should refrain from discussing the parental conflict or Court involvement with the children, or from denigrating the other parent.A Full Family Report is further recommended to evaluate the longer-term parenting arrangements and risk factors related to each parent.”

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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