FAMILY COURT OF AUSTRALIA
| SALLER & DANELL | [2015] FamCA 391 |
| FAMILY LAW – INTERIM PROCEEDINGS – PARENTING – Application by father for overnight unsupervised time – Where the children live with the mother – Where there is a high conflict relationship between the parties– Where the father seeks interim orders be made, despite the existence of a family violence order, pursuant to s 68P of the Family Law Act 1975 (Cth) –Where the expert report recommends that the children spend the majority of their time with the father – Orders for weekly supervised overnight time with the father. |
| Family Law Act 1975 (Cth), ss 60CC, 68P |
| APPLICANT: | Mr Saller |
| RESPONDENT: | Ms Danell |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 575 | of | 2015 |
| DATE DELIVERED: | 22 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 18 May 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom |
| SOLICITOR FOR THE APPLICANT: | Rossi Simicic Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell |
| SOLICITOR FOR THE RESPONDENT: | Newnhams Solicitors |
| Ms Connor | ||
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : | Legal Aid NSW |
Orders
PENDING FURTHER ORDER
The Orders made 25 February 2015, as hereunder set out, are to continue subject to the extensions and alterations as are provided for later in these Orders:
1. The children [B] born … 2007 and [C], born … 2010 live with the mother at all times otherwise than when they are with the father pursuant to the orders made today.
2. The children are to spend supervised time the father each Wednesday and Friday for up to three hours commencing at 4.30 p.m., and on each Saturday and Sunday for four hours commencing at 11.00 a.m.
3. On each occasion of Wednesday and Friday time the father is to provide the children with their evening meal. On each occasion that the children spend time with the father on a weekend, the father is to provide their lunch meal.
4.The changeover of care from the mother to the father is to be as follows:
a. The mother is to deliver the children to the supervisor at the McDonald’s family restaurant at [Suburb D] (“the changeover venue”) at the time the children are due to commence time with the father. The father is not to approach the changeover venue or be within a 1 kilometre radius of that place until 15 minutes after the time appointed for the commencement of his time with the children and having first complied with Order 6 on any scheduled occasion pursuant to these orders.
5.The changeover of care from the mother to the father is to be as follows:
a. At the conclusion of the father’s time with the children he is to ensure their return to the changeover venue by the appointed time for the conclusion of his time and he is to depart from that place before the conclusion time, and is to be no closer than 1…
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- Saller & Danell [2015] FamCA 391
- Case
- [2015] FamCA 391
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CaseChat Overview and Summary
The court was required to determine whether to make interim orders for unsupervised overnight time with the father, pursuant to section 68P of the *Family Law Act 1975* (Cth), which permits contravention of a family violence order in certain circumstances. The court also needed to consider the children's best interests in the context of the existing family violence order and the high conflict between the parents.
Le Poer Trench J reasoned that while the expert report recommended significant time with the father, the existing family violence order and the high conflict necessitated a cautious approach. The court applied the principles of the *Family Law Act* concerning the best interests of the child, balancing the father's desire for increased time with the need for the children's safety and well-being. The court ultimately made orders for weekly supervised overnight time with the father, with provisions for increasing the duration of this time if supervision could be consistently arranged and deemed appropriate. Strict conditions were imposed on changeovers and the father's conduct during his time with the children, including prohibitions on physical chastisement, yelling, and kissing the children on the mouth. The court explicitly noted that these were interim measures and that the parenting proceedings were expedited.
Orders
Orders of the court
PENDING FURTHER ORDER
1.
The Orders made 25 February 2015, as hereunder set out, are to continue subject to the extensions and alterations as are provided for later in these Orders:
1. The children [B] born … 2007 and [C], born … 2010 live with the mother at all times otherwise than when they are with the father pursuant to the orders made today.
2. The children are to spend supervised time the father each Wednesday and Friday for up to three hours commencing at 4.30 p.m., and on each Saturday and Sunday for four hours commencing at 11.00 a.m.
3. On each occasion of Wednesday and Friday time the father is to provide the children with their evening meal. On each occasion that the children spend time with the father on a weekend, the father is to provide their lunch meal.
4. The changeover of care from the mother to the father is to be as follows:
a. The mother is to deliver the children to the supervisor at the McDonald’s family restaurant at [Suburb D] (“the changeover venue”) at the time the children are due to commence time with the father. The father is not to approach the changeover venue or be within a 1 kilometre radius of that place until 15 minutes after the time appointed for the commencement of his time with the children and having first complied with Order 6 on any scheduled occasion pursuant to these orders.
5. The changeover of care from the mother to the father is to be as follows:
a. At the conclusion of the father’s time with the children he is to ensure their return to the changeover venue by the appointed time for the conclusion of his time and he is to depart from that place before the conclusion time, and is to be no closer than 1 kilometre from the changeover venue by the time the changeover to the mother is due.
6. In any event the father is not to attend the changeover point for the commencement of his time with the children until:
a. He has received a text message from the supervisor advising that the children have been delivered, and
b. 15 minutes have elapsed after receiving such a text message.
7. At the conclusion of the father’s time with the children, the mother is not to approach the changeover venue until:
a. She has received a text message from the supervisor advising that the children have been delivered, the father has left the venue, and
b. A period of 15 minutes has elapsed after receiving the text message from the supervisor.
8. In the event of the father refusing or failing to comply with any request made by the supervisor of him during the period of supervised time with the children, the supervisor is to notify the mother of such failure and as and from such notification the orders providing for the children to spend time with the father will stand suspended.
9. Pursuant to section 68P of the Family Law Act, it is noted that section applies to these orders in that they are in part contrary to the provisions of a Family Violence Order made 5 February 2015 of E Town.
10. The court notes that the orders made for the children to spend time with the father in the manner set out in these orders are an interim measure having regard to what is considered to be in the children’s best interests at the time of making the orders.
11. The father is permitted to spend the time allocated to him with the children pursuant to these orders at any place in the [F Town] area which is approved by the supervisor, including at the home in which he resides.
12. Prior to the jointly agreed supervisor, [Ms G], of [H Street, Suburb I] commencing her role as a supervisor of the father’s time with the children, she is to be supplied with 2 copies of these orders, one of which she is to sign to acknowledge receipt and knowledge of the orders and return same to the father’s solicitor, who is to provide a copy of same to the mother’s solicitor.
13. In the event of [Ms G] not being available to act as supervisor of the father’s time with the children pursuant to these orders, then a supervisor supplied by [J Org] or any other supervisor agreed to in writing by the parents shall supervise the father’s time with the children.
2.
Order 2 made 25 February 2015 is varied to provide that the time for the father to spend with the children each Wednesday and Friday is to commence at 4.00 pm and conclude at 7.00 pm. The time the children spend with the father on each Saturday and Sunday is to commence at 10.00 am and conclude at 4.00 pm.
3.
In the event that the father can provide supervisors acceptable to the Independent Children's Lawyer and the mother (or the Court in the case of a dispute) who can supervise his time with the children for overnight time then Order 2 of 25 February 2015, together with the amendments to that Order contained herein, shall be suspended (subject to the later provisions herein contained) and the children shall spend the following times with the father:
(i) In week 1 from 4.00 pm on Monday until the commencement of school/pre-school on Tuesday; and
(ii) In week 2 from 4.00 pm on Friday until the Sunday morning at 10.00 am.
4.
For the purpose of Order 3 hereof week 1 will commence on the first occasion the father is able to exercise overnight supervised time with the children on a Monday during the school term. If the first time the father can exercise overnight supervised time with the children is a Friday then the cycle will commence with week 2 as and from that time.
5.
The supervised time the father is to spend with the children pursuant to Order 3 (ii) hereof is to increase so that it concludes at the commencement of school/pre-school on the following Monday upon the father having exercised the time provided for in Order 3(ii) on three occasions within a period of 12 weeks.
THE COURT NOTES:
6.
The purpose of allowing for the exercise of the father’s time pursuant to Order 3(ii) on three occasions over a period of 12 weeks is to allow for the contingency that the father may not be able to arrange supervision consistently for weekend periods.
7.
The Court intends by these Orders that the children spend frequent time with the father. To that end, if the father is able to exercise overnight time with the children on an alternate weekend basis as provided for in these Orders, then the children will have alternate weekends in the mother’s care. If the father is unable to exercise overnight weekend time with the children then they are to have time during the day with the father on weekends as provided for in Order 2 of 25 February 2015 as modified by Order 2 hereof. Likewise, if the father is unable to arrange supervision for overnight time on Monday nights, then the Orders are to operate as provided for in Order 2 of 25 February 2015 as modified by Order 2 hereof.
8.
The father is not to physically chastise the children nor leave them unsupervised at any time.
9.
The father is not to chastise or strike the family dog.
10. The father is not to yell at the children or in their presence.
11. The father is not to allow the children to watch any visual presentation which does not have a “G” rating.
12. The father is not to kiss the children on the mouth.
13. Neither party is to change the children’s places of education unless agreed to in writing or further order of the Court.
14. The father is not to consume alcohol to excess or to consume or administer any non-prescribed medication/drug to himself at any time when the children are in his care or within a period of 12 hours prior to the children coming into his care.
15. The mother is not to consume alcohol to excess at any time when the children are in her care or within a period of 12 hours prior to the children coming into her care.
16. The mother is not to interfere with the father’s occupancy of the property at K Street, Suburb L in the State of NSW unless he agrees in writing or there is a further order of the Court.
17. The interim financial/property orders sought by each of the parties, including the issue of occupation of the property at K Street, Suburb L are to be listed for hearing in the duty list at 9.30 a.m. on 17 August 2015.
18. The parenting proceeding herein is expedited.
19. Each party has liberty to restore the matter to the list on seven days’ notice.
20. The mother may take the children to Melbourne for one week during the July school holidays.
21. Changeover of children, except where it is specified to take place at school, is hereafter to take place at Suburb M McDonalds.
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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