FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sachin & Sachin (No 2) [2024] FedCFamC2F 51
File number(s): MLC 10441 of 2020 Judgment of: JUDGE BURT Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – Parenting – where the trial judge declined to make final orders after four day final hearing – interim orders made – unacceptable risk – three children aged 14, 11 and nine – middle child with Autism Spectrum Disorder – mother primary carer of the children – children exposed to mother’s strongly formed views of the father – history of high conflict changeovers – mother alleging history of serious family violence perpetrated by the father – no findings of family violence – held – interim change of residence to father – facilitated handover by Court Children’s Services – sole parental responsibility to the father – moratorium of time with mother for a period of three months, thereafter, supervised time – family therapy – adjourned for a period of six months. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited: Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 67 Fam LR 92; (2017) 91 ALJR 402; (2017) 341 ALR 179; (2017) 259 CLR 662
Grella & Jamieson [2017] FamCAFC 21
In the Marriage of Hall [1979] FamCA 73; (1979) FLC 90-713; (1979) 5 Fam LR 609
Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092, (2022) 65 Fam LR 288
Johnson & Page [2007] FamCA 1235; (2007) FLC 93-344
Sachin & Sachin [2023] FedCFamC2F 1337
Masson v Parsons [2019] HCA 21; (2019) 59 Fam LR 503; (2019) 368 ALR 583; (2019) 266 CLR 554
Mazorski & Albright [2007] FamCA 520; (2008) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405; (2009) 41 Fam LR 483
Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC 94-017; (2021) 63 Fam LR 88
Potter & Potter [2007] FamCA 350; (2007) FLC 93-326; (2007) 37 Fam LR 208
Scott & Scott [1994] FamCA 12; (1994) FLC 92-457; (1994) 17 Fam LR 420
Division: Division 2 Family Law Number of paragraphs: 252 Date of hearing: 26 and 27 October 2023; 10 November 2023 Heard at: Dandenong Delivered at: Melbourne Counsel for the Applicant: Mr Gates Solicitor for the Applicant: Bentleys Barristers and Solicitors The Respondent: In person Counsel for the Independent Children's Lawyer: Ms Villella Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 10441 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SACHIN
Applicant
AND: MS SACHIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged save for the appointment of the independent children’s lawyer.
2.All extant applications be adjourned to 29 July 2024 at 9.30am at Suburb G for mention.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Live with
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CaseChat Overview and Summary
The court had to decide several legal issues, including the best interests of the children, the risk of unacceptable harm, and the need for supervised contact between the children and the mother. The court found that the children should live with the father and that there was an unacceptable risk of harm if they lived with the mother. The court also found that supervised contact between the children and the mother should be implemented after a three-month moratorium.
The court's reasoning was based on the evidence presented, including the views of the children, the history of high conflict changeovers, and the mother's alleged history of family violence. The court found that the mother's allegations of family violence were not substantiated, but that there was still a risk of unacceptable harm to the children if they lived with her. The court also found that the children's relationship with the father was positive and that he was better able to meet their needs.
The court made several orders, including that the children live with the father, that there be a facilitated handover by Court Children's Services, and that the father have sole parental responsibility. The court also ordered supervised contact between the children and the mother after a three-month moratorium, family therapy, and that the children be placed on the airport watch list to prevent them from leaving the country. The case was adjourned for six months to allow for a further family report and to assess the impact of the orders on the children.
The final orders made by the court included the discharge of all previous parenting orders except for the appointment of the independent children's lawyer, the adjournment of all extant applications, and the implementation of the orders outlined above. The court emphasised the importance of the children's safety and well-being and the need for the parents to cooperate in making decisions about their care.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged save for the appointment of the independent children’s lawyer.
2. All extant applications be adjourned to 29 July 2024 at 9.30am at Suburb G for mention.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Live with
3. The children X born in 2009, Z born in 2012 and Y born in 2014 (collectively, “the children”) live with the father.
THE COURT ORDERS THAT:
Facilitated handover
4. The mother is directed to leave the Court precinct immediately.
5. Pursuant to s.65L of the Family Law Act 1975 (Cth) (“the Act”) IT IS REQUESTED THAT a Court Child Expert be available to meet with the children to:
(a) facilitate the children’s change of residence in accordance with these orders;
(b) explain the orders to the children;
(c) provide assistance, in accordance with his/her professional expertise and opinion, to the parties and the children with respect to the children’s change of residence; and
(d) provide a brief memorandum pursuant to s.11F of the Act to the Chambers of Judge Burt by email to … within 14 days of the facilitated handover as to the outcome of the handover and any matters of relevance for the Court to note. That memorandum will be held on the Court file and released to the parties upon receipt, unless otherwise directed.
6. The independent children’s lawyer meet with the children at the facilitated handover, to assist in explaining the orders to the children.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Parental responsibility
7. The father have sole parental responsibility for the children provided that:
(a) the father shall notify the mother in writing of his intention to make a long-term decision for the children, not less than 14 days prior to making such a decision;
(b) the mother advise the father in writing of her views with respect to the issue within seven days of receipt from the father;
(c) the father is to consider the mother’s response (if any) when making his decision; and
(d) the father to advise the mother in writing of his decision once made.
Communication with medical professionals
8. Within seven days of these orders, the mother provide the father in writing with a list of all medical professionals upon whom the children have attended for the last six months, including but not limited to:
(a) Ms H;
(b) Ms J;
(c) Dr K;
(d) Dr L;
(e) Dr M; and
(f) Dr N.
9. Within 28 days of the mother’s compliance with Order 8 herein, the father contact each of the medical professionals identified by the mother in order to ascertain whether and when each professional considers that the children or any of them should attend upon that professional.
10. Having communicated with each medical professional in accordance with Order 9 herein, the father shall:
(a) in the event that he considers that it is not in the best interests of the children, or any of them, to attend upon a medical professional pursuant to the view expressed by that professional, he shall forthwith consult with the independent children’s lawyer; and
(b) notify the mother via OurFamilyWizard within seven days of each appointment attended by the children, or any of them, with any of the medical professionals.
Supervision and spend time with the mother
11. The parties do all acts and things required to register with O Contact Centre, or any other agreed supervision service (“the supervision service”) within 14 days of these orders.
12. On a date to be identified by the supervision service in consultation with the parties and no less than three months after these orders, the children spend time with the mother supervised by the supervision service as follows:
(a) once per week for a period of no less than three hours at times and venues as agreed between the parties and the supervision service;
(b) changeover to be determined by the supervision service in consultation with the parties; and
(c) the father pay the initial costs associated with the supervision service until those costs reach $1,000 with the costs to be paid by the mother thereafter including the cost associated with the report pursuant to Order 11 herein.
13. Pending the commencement of the time pursuant to Order 12 herein, the children have no contact or communication with the mother.
14. The mother obtain a report from the supervision service at the conclusion of no less than eight periods of time spent with the children and such report to be filed at least 14 days prior to the adjourned date specified in Order 2 herein.
Medical
15. In the event the mother attends upon a psychologist, the mother provide the psychologist with the following:
(a) a copy of these Orders and reasons for judgment delivered today;
(b) a copy of the family report prepared by Ms P dated 7 November 2022;
(c) a copy of the reasons for judgment delivered by his Honour Judge McGinn on 18 October 2023; and
(d) copies of the affidavits of Ms C filed on 10 May 2022 and 24 November 2022.
16. The father engage forthwith with Z’s treating paediatrician, Dr K, and follow all recommendations of Dr K.
17. Within 14 days of these orders, the mother do all things and sign all documents required to remove herself as the NDIS nominee for Z and nominate the father in her place.
Family therapy
18. The father and children to attend upon Ms C for the purpose of family therapy and to assist with the transition of the children into the father’s care, at such times, duration and frequencies as recommended by Ms C with the cost to be borne by the father AND IT IS REQUESTED THAT Ms C conduct the therapy face to face.
Communication between the parents
19. The parents communicate by the parenting application OurFamilyWizard only in relation to the care and welfare of the children and the father bear the cost of using this application, or otherwise use a free parenting application as agreed between the parties.
20. Each parent shall keep each other informed of their current address, email and telephone number, and inform the other parent of any change within 48 hours of change.
21. The father keep the mother informed via OurFamilyWizard of any significant injury or illness experienced by the children or any of them.
Miscellaneous
22. If one or more of the children, while in the father’s care, runs away from the care of the father to the mother (or to a location of which the mother is otherwise aware):
(a) the mother forthwith contact the father to inform him that the child/ren have arrived in her care or at the relevant location; and
(b) the mother forthwith return the child/ren to the father at Suburb B Police Station.
23. The mother, her servants and agents, be and are hereby restrained from attending at any school that the children attend.
24. Without admitting necessity for same, each party, by themselves, their servants and/or agents be restrained from denigrating, abusing, insulting or belittling the other party or his/her extended family to or in the presence and/or hearing of the children.
Airport watch list
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
25. The father and his servants and agents be restrained from removing or attempting to remove X born in 2009, Z born in 2012 and Y born in 2014, or any of them, from the Commonwealth of Australia,
26. The mother and her servants and agents be restrained from removing or attempting to remove X born in 2009, Z born in 2012 and Y born in 2014, or any of them, from the Commonwealth of Australia,
27. X born in 2009, Z born in 2012 and Y born in 2014, or any of them, be restrained from leaving the Commonwealth of Australia.
THE COURT REQUESTS THAT:
28. The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include X born in 2009, Z born in 2012 and Y born in 2014 on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain X, Z and Y on the airport watch list until further order of the court .
Updated family report
THE COURT ORDERS THAT:
29. Pursuant to s.62G(2) of the Act, the parties and the children attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 12 July 2024 AND IT IS REQUESTED THAT Ms P prepare the family report, if available.
30. The family report address:
(a) any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b) the matters set out in ss.60CC, 61DA and 65DAA of the Act;
(c) the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the father;
(d) the impact upon the children and upon their relationship with the father if the Court made orders as sought by the mother;
(e) any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
31. Each party do all things necessary to ensure the children attend upon to the Family Consultant pursuant to s.62G(3A), unless otherwise determined by the Court Child Expert that s.62G(3B) applies.
32. The parties and the children attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
33. The Family Consultant be at liberty to inspect any material filed by the parties, and:
(a) the family report dated 9 November 2022;
(b) the report from the Department of Families, Fairness and Housing dated 19 February 2021;
(c) the reasons for judgment delivered by his Honour Judge McGinn on 18 October 2023;
(d) the reasons for judgment delivered by her Honour Judge Burt on 23 January 2024; and
(e) any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.
34. Upon the family report being provided to the Court, the Court release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any independent children’s lawyer in the proceedings.
35. Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children:
(a) a Children’s Court;
(b) a child protection authority;
(c) a State or Territory legal aid authority; and
(d) a convener of any legal dispute resolution conference.
36. Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
37. Pursuant to s.65DA(2) of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A. Pursuant to s.62B of the Act, information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A.
B. At the date on which a copy of the family report is provided to any of those identified above, it may not have been admitted into evidence and may be untested and if admitted would only form one part of the evidence in the proceedings.
C. If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Act apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F. If s.102NA of the Family Law Act 1975 (Cth) applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
G. Section 121 of the Act provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
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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