FAMILY COURT OF AUSTRALIA
| HICKSON & GREEN | [2019] FamCA 678 |
| FAMILY LAW – CHILDREN – Parenting – Best interests – With whom the children live – With whom the children spend time and communicate with – Where there are four subject children aged between 13 and nine years – Where one child is not a biological child of the father – Where the most recent interim orders provided for the four children to live with the father and spend supervised time with the mother at a contact centre – Where the applicant father sought orders for the children to remain living with him and for the mother’s time to be supervised or unsupervised subject to her meeting strict conditions – Where the respondent mother is seeking a reversal of residence and for the father’s time with the children to be dependent on a finding of risk – Where the Independent Children’s Lawyer submitted supervised time is not a long term solution – Where the children are not at risk of harm in the care of the father – Where there is an unacceptable risk of emotional harm and possible physical harm to the children in the mother’s household – Where the mother has a history of substance use and mental health issues – Where the children have a meaningful relationship with both parents – Where the mother is unable to protect the children from her feelings – Where the mother attempted to undermine the relationship between the father and the non-biological child – Where the Court appointed single expert identified significant restrictions on the mother’s ability to parent the children – Where factors under s 60CC of the Family Law Act 1975 (Cth) are considered – Where a change in residence is considered as destructive of stability for the children – Ordered the children remain living with the father – Ordered the mother spend time with the child four occasions per year, supervised at a contact centre until each child attains 14 years of age – Ordered no direct communication between the mother and the children – Ordered various restraints and injunctions, including restraining the mother from bringing the children into contact with her current partner. FAMILY LAW – CHILDREN – Parental responsibility – Where the father seeks sole parental responsibility – Where the mother sought an order for equal shared parental responsibility – Where equal shared parental responsibility is not in the best interests of the children – Where allegations of family violence unsubstantiated – Where high level of conflict during the parties’ relationship, fuelled by drugs and alcohol – Where the children will be living with the father and spending little time with the mother – Ordered the father have sole parental responsibility for the children, with the provision of information to the mother of decisions taken by the father. |
| Family Law Act 1975 (Cth) ss 64B, 60CC Family Law Rules 2004 (Cth) Ch. 15, Div. 15.5.2 |
| Betros & Betros [2017] FamCAFC 90 Hickson & Green [2016]… |
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- Case
- [2019] FamCA 678
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children, specifically with whom they should live and spend time, and the appropriate form of parental responsibility. Key legal issues included assessing the risk of emotional and physical harm in the mother's household, the impact of a change in residence on the children's stability, and whether equal shared parental responsibility was in the children's best interests, particularly given the high level of conflict during the parties' relationship. The court also considered the submission by the Independent Children’s Lawyer that supervised time was not a long-term solution.
Cleary J reasoned that the children were not at risk of harm in the father's care, but there was an unacceptable risk of emotional and possible physical harm in the mother's household. The court found that the mother had significant restrictions on her parenting capacity, as identified by a court-appointed single expert. Applying the factors under s 60CC of the *Family Law Act 1975* (Cth), the court concluded that a change in residence would be destructive of the children's stability. Consequently, the court ordered that the children live with the father and that the father have sole parental responsibility, with provisions for the mother to be kept informed of long-term decisions. The mother was ordered to have supervised time with the children at a contact centre on four occasions per year until each child turned fourteen, with no direct communication permitted. Various restraints and injunctions were also imposed on the mother.
Orders
Orders of the court
1.
That all prior parenting orders made in this Court and in the Federal Circuit Court of Australia in relation to C (born … 2006), B (born … 2008), E (born … 2010) and D (born … 2010) (together known as “the children”), are discharged.
2.
That the father have sole parental responsibility for the children with the father to keep the mother advised in writing of all decisions made by him about the long term care and welfare of the children, including but not limited to change of enrolment at school, progression to high school, specialist medical treatment and religious instruction if any.
3.
The children live with the father.
4.
That the mother have no direct communication with the children.
5.
The mother is at liberty to send cards, letters and gifts to any of the children provided that the father may inspect such cards, letters or gifts prior to the children receiving them so as to determine whether it is in the child’s best interests to receive them.
6.
The children spend time with the mother supervised at a contact centre on four occasions per year, failing agreement otherwise on the first Sunday of the month in September, December, March and June, with such time to continue until each child reaches the age of 14 years and thereafter at the discretion of the father in consultation with each child.
7.
In the event that the mother does not attend for a period of contact without prior written notice, time shall thereafter cease and be at the discretion of the father.
8.
Should any of the children leave the father’s care without his prior consent or knowledge and attempt to go into the mother’s care, other than in accordance with these orders, the mother must forthwith ensure:
(a) That she or someone on her behalf informs the father of the child or children coming into her care; and
(b) Forthwith, cause the return of the child or children to the father’s care.
9.
Each parent is restrained and an injunction is granted restraining each of them from denigrating the other parent or members of the other parent’s household in the presence or hearing of any of the children or allowing any of the children to remain in the presence or hearing of any third person who is denigrating the other parent or any member of the other parent’s household.
10.
The mother is restrained and an injunction is granted against the mother from discussing these proceedings or any consequent orders with any of the children or causing any third party to do so, without the prior written consent of the father.
11.
The mother is restrained and an injunction is granted against the mother from attending any school, sporting event or cultural event in which any of the children participates without the prior written consent of the father.
12.
The mother is restrained and an injunction is granted against the mother from allowing any of the children from coming into contact with Mr M.
13.
The parties shall keep each other informed of their residential addresses, telephone numbers and email addresses, and shall notify each other within 24 hours of making any changes to them.
14.
The father has leave to provide a copy of these orders to the principal of each of the schools which the children attend.
15.
The mother has leave to provide to Dr J (or any psychiatrist treating the mother) the following:
(a) Report of Dr K dated 13 October 2017;
(b) These orders and reasons for judgment.
16.
The Registrar of this Court shall provide a copy of the report of Dr K dated 13 October 2017 and a copy of these orders and reasons for judgment to the Secretary of Department of Communities and Justice.
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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