FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Perez & Sherman [2023] FedCFamC1F 1134
File number(s): NCC 562 of 2023 Judgment of: SMITH J Date of judgment: 22 December 2023 Catchwords: FAMILY LAW - CHILDREN – Interim Hearing – best interests of a child - with whom a child lives – parental responsibility – father unilaterally withheld children alleging child made disclosure to medical practitioner – objective evidence to the contrary - concerns regarding father’s credibility and protective capacity – father did not inform Court Child Expert or mother of a further different disclosure made by the child about a step sibling to a teacher – where mother was primary carer – where children have suffered disruption from primary attachment - where court cannot make findings of fact – assessment of risk.
FAMILY LAW – Orders – Mother to have sole parental responsibility in relation to educational and medical or health issues – otherwise parties to share parental responsibility – children live with mother – children spend supervised time with father – mother to obtain referral for child to undergo full paediatric assessment – changeover – conditional recovery order if father fails to hand the children over.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC, 60DA, 61DA, 65AA, 65D, 65DAB, 68B, 69ZL Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
M & M (1988) 166 CLR 69; [1988] HCA 68
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 20 December 2023 Place: Newcastle Solicitor-advocate for the Applicant: Ms Garay Solicitor for the Applicant: The Family Law Co For the Respondent: Litigant in person Solicitor-advocate for the Independent Children's Lawyer: Ms Fielden Solicitor for the Independent Children's Lawyer: Fielden & Associates - Family & Relationship Lawyers ORDERS
NCC 562 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PEREZ
Applicant
AND: MR SHERMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.The matter be listed for mention on Wednesday, 21 February 2024 at 10.00 am by Microsoft Teams.
2.Grant liberty to the parties to apply to mention the matter at short notice.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
3.Ms Perez born 1999 (“the Mother”) have sole parental responsibility for X born 2017 and Y born 2020 (“the children”) in relation to any educational issues and any medical or health issues.
4.Otherwise the Mother and Mr Sherman born 1997 (“the Father”) shall share parental responsibility.
5.The Mother shall notify the Father of any long-term educational or health decision in relation to either child…
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CaseChat Overview and Summary
The court had to decide several legal issues, including determining the best interests of the children, assigning parental responsibility, and deciding the living arrangements for the children. The court also needed to address the father's failure to inform the court and the mother of another disclosure made by the child to a teacher. In determining the best interests of the children, the court considered factors such as the primary attachment, the father's credibility, and the risk assessment. The court found that the mother should have sole parental responsibility for the children's educational and medical or health issues, while the parents would share responsibility for other matters. The court also decided that the children should live with the mother, with supervised time with the father.
The court's reasoning was based on the best interests of the children, the primary attachment with the mother, and the concerns about the father's credibility and protective capacity. The court found that the father's unilateral decision to withhold the children and his failure to inform the court and the mother of another disclosure made by the child to a teacher raised concerns about his credibility and protective capacity. The court also considered the risk assessment and the need to protect the children from potential harm. Based on these factors, the court decided that the children should live with the mother, with supervised time with the father. The court also ordered the parents to undergo therapeutic counselling, attend parenting courses, and comply with various other conditions to ensure the children's safety and well-being.
The court's final orders included granting the mother sole parental responsibility for the children's educational and medical or health issues, while the parents would share responsibility for other matters. The children were ordered to live with the mother, with supervised time with the father. The court also imposed various conditions on the parents, such as undergoing therapeutic counselling, attending parenting courses, and complying with restrictions on communication, alcohol and drug consumption, and exposure to family violence. The court further ordered the parents to facilitate communication between the children and the father, obtain medical assessments for the children, and undergo hair follicle testing to detect illicit substance use. These orders aimed to protect the children, ensure their safety and well-being, and promote their healthy development.
Orders
Orders of the court
NCC 562 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS PEREZ
Applicant
AND:
MR SHERMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1. The matter be listed for mention on Wednesday, 21 February 2024 at 10.00 am by Microsoft Teams.
2. Grant liberty to the parties to apply to mention the matter at short notice.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
3. Ms Perez born 1999 (“the Mother”) have sole parental responsibility for X born 2017 and Y born 2020 (“the children”) in relation to any educational issues and any medical or health issues.
4. Otherwise the Mother and Mr Sherman born 1997 (“the Father”) shall share parental responsibility.
5. The Mother shall notify the Father of any long-term educational or health decision in relation to either child in writing within 7 days of making the decision.
6. The children shall live with the Mother.
7. Pending further Order the children shall spend supervised time with the Father at the B Contact Centre at Suburb C ("B Contact Centre") each alternate weekend for (3) three hours, and such time shall be implemented as follows:
(a) Each of the parents shall promptly contact B Contact Centre to engage with B Contact Centre for the purpose of the Father spending supervised time with the children, and to complete any required intake procedures.
(b) The Mother shall facilitate the children's attendance at B Contact Centre at such times and on such days as B Contact Centre advises are available.
(c) The Father shall spend time with the children at B Contact Centre on such days and at such times as nominated by B Contact Centre.
(d) Each of the parents shall pay half of any fees requested to be paid by them for B Contact Centre to supervise the children's time spent with the Father.
(e) Subject to B Contact Centre policies, the Father may have his partner Ms D and her children E and F attend.
8. Within 14 days of these Orders the Mother shall take all reasonable steps to obtain a GP referral for the child Y to undergo a full Paediatric Assessment including any related Speech Pathology and Hearing Assessments as follows:
(a) The Mother shall be responsible for arranging an appointment for Y with his GP to obtain the necessary referrals and upon the date and time of such appointment being confirmed the Mother shall promptly notify the Father of such appointment details.
(b) Upon referrals being obtained for Y's Paediatric Assessment including any related Speech Pathology and Hearing Assessments, the Mother shall be responsible for arranging such appointments.
(c) Upon completion of such Assessments, the parents shall Authorise and Direct the attending clinicians to send copies of Y's Assessments to the Independent Children's Lawyer.
9. Both parties be permitted to receive from any school, day-care, extra-curricular organisation, counselling, or medical facility the children attend, any documents or information ordinarily provided to parents, at each parent’s cost, and a copy of these orders may be provided to any such organisation and be a good authority for that organisation to act.
10. Within 28 days of the ICL making a request to either party, that party shall undergo Hair Follicle Testing to test for their consumption of illicit substances and they shall each Authorise and Direct, the Hair Follicle Testing facility to forward their Hair Follicle Test results to the Independent Children's Lawyer via email sent to: …@....
11. Pursuant to section 68B of the Family Law Act 1975 (Cth), the following injunctions are made for the protection of the children, and each of the parents and their agents are restrained from:
(a) Denigrating or criticising the other parent or any member of their extended family, in the presence or hearing of either of the children and from permitting the children to remain in the presence or hearing of another person engaging in such conduct.
(b) Discussing these proceedings or any related Local or other Court proceedings in the presence or hearing of the children or in the presence of any other children who are members of their household and from allowing any other person to do so.
(c) Discussing any risk of harm allegations in the presence or hearing of either of the children or in the presence of any other children who are members of their household, and from allowing any other person to do so.
(d) Questioning the children about any disclosures of sexual harm made by either of them.
(e) Publishing negative, critical or denigrating comments, memes or other social media posts or "stories" on any social media forum that could be interpreted as referring to the other parent or a member of their extended family.
(f) Using any form of physical chastisement to manage the behaviour of the children and from allowing any third party to do so.
(g) Consuming alcohol to the level that a reasonable person would expect that they would return a Blood Alcohol Level of greater than or equal to 0.05 if breathalysed, for any period whilst either children are in their care/ or for twenty-four (24) hours prior to such time.
(h) Consuming illicit or prescription drugs outside the prescribed dose, whilst either of the children are in their care or for twenty-four (24) hours prior to such time.
(i) Allowing the children to be exposed to or remain in the presence of family violence as defined in Section 4AB of the Family Law Act 1975.
(j) Photographing injuries, scratches, bruises or other marks on either of the children.
(k) Using the children or either of them to pass on messages or to communicate about parenting matters with the other parent.
(l) removing, withholding or otherwise retaining the children from the other parent any third party to whom the other has delegated their care of the children, during any period of time that the children are due to be in the care of the other parent pursuant to these Orders.
Therapeutic Assistance and education
12. Within 28 days of the date of these Orders, the parents are each to attend upon their GP to obtain a Mental Health Care Plan and referral to for therapeutic counselling and thereafter each party is to engage in therapeutic counselling for as long as recommended in respect to their diagnosed mental health issues and documented polysubstance use.
13. Within 28 days of the date these Orders, each of the parents shall enroll in a six-to-eight week "Parenting After Separation" course and as soon as reasonably practicable thereafter, each parent shall complete such course and file and serve a Certificate of Completion.
14. Within three months of these Orders each of the parents shall enroll in a Circle of Security parenting course and thereafter each parent shall complete their Parenting After Separation course as soon as reasonably practicable, and file and serve a Certificate of Completion.
Audio-visual contact
15. The children shall have audio-visual communication with the father on Christmas Day and twice per week at times to be agreed between the parties.
Communication Between Parents
16. Unless in the case of an emergency, the parents shall communicate in writing via text message.
17. The parents shall keep the other informed at all times of their current residential address and mobile telephone number and shall advise the other of any change to their contact details within 12 hours of such change occurring.
18. All communications between the parties will be polite, civil and related to the children.
Hand-over
19. At 5.00pm on Friday, 22 December 2023 Mr Sherman (“the Father’) must deliver the children X born 2017 AND Y born 2020 (“the Children”) to the Mother at McDonald’s Restaurant, Suburb H.
20. The hand over shall be inside the McDonald’s.
21. The mother shall attend by 4.45pm. The father shall attend at 5.00pm with Ms D. The mother shall leave first with children. The father shall wait 10 minutes and then leave to avoid any issues in the mother removing the children. All parties will communicate in a positive and respectful manner.
22. To the extent that this order may be inconsistent with any current ADVO between the parents the Court considers it sufficiently safe and appropriate, and in the best interests of the children for this contact between the parents to occur.
Conditional Recovery Order – if there is a failure to hand the children over
23. If Order 19 is not complied with, then pursuant to section 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the children X born 2017 AND Y born 2020 (“the Children”) and to deliver the said children to the Applicant Mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
24. Order 23 herein commences at 6.30pm on Friday, 22 December 2023, but is subject to a precondition of, and only commences if, the Children not having been delivered to the Mother as required by and in compliance with order 19 herein, and if commenced in those circumstances remains operative for 12 months from that commencement.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Legal Principle Established
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