Sanada & Sanada
[2025] FedCFamC1F 369
•3 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sanada & Sanada [2025] FedCFamC1F 369
File number(s): ADC 4720 of 2021 Judgment of: BAUMANN J Date of judgment: 3 April 2025 Catchwords: FAMILY LAW – PARENTING – Where the father, despite orders restraining unilateral relocation, unilaterally relocated the children’s residence some two hours’ drive away – Where the father contended the mother had brought at least one of the children into contact with the maternal grandfather against an injunction restraining same – Where the whole of the evidence supports a finding that the father does not value the children’s relationship with the mother – Final orders made for the children to live with the mother and spend time with the father after a moratorium of just over one month Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Division: Division 1 First Instance Number of paragraphs: 93 Date of hearing: 31 March and 1 & 2 April 2025 Place: Adelaide Solicitor for the Applicant: Mr O’Dea, O’Dea Lawyers Solicitor for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Boehm Solicitor for the Independent Children's Lawyer: Legal Services Commission South Australia ORDERS
ADC 4720 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SANADA
Applicant
AND: MR SANADA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders be discharged.
2.That the parents exercise joint decision making for the major long term issues for the children, X born in 2013, Y born in 2015, Z born in 2017, V born in 2019 and W born in 2019 (“the children”).
3.That the children live with the mother from 4.00pm 15 April 2025, with the father to deliver the children to the mother’s residence at B Street, Suburb C.
4.That the children shall not spend time nor communicate with the father, unless otherwise agreed by the mother, until Friday, 23 May 2025.
5.That unless otherwise agreed in writing between the parents, the children shall spend time with the father:
(a)from after school Friday, 23 May 2025 to 4.00pm Sunday, 25 May 2025;
(b)from after school Friday, 20 June 2025 to 4.00pm Sunday, 22 June 2025;
(c)for the period from 12 noon 12 July 2025 to 12 noon 19 July 2025 during the end of term two (2) school holidays;
(d)thereafter, for two (2) weekends each school term as agreed and failing agreement on the fourth and eighth weekend of the school term from after school Friday to 4.00pm Sunday;
(e)for one (1) week during the end of term three (3) school holidays from 12 noon Saturday, 4 October 2025 to 4.00pm Saturday, 11 October 2025;
(f)for the second half of the end of term four (4) school holidays in 2025, but with the children to be returned to the mother by 4.00pm on the Thursday before the commencement of the next school term; and
(g)from commencement of school in 2026 and thereafter, the children shall spend time with the father for two (2) weekends each school term as agreed, but failing agreement on the fourth and eighth weekends from after school Friday to 4.00pm Sunday.
Telephone communication
6.That unless otherwise agreed in writing between the parents, commencing Wednesday, 21 May 2025, the children shall communicate with the father each Wednesday (unless the children are in the care of the father) by telephone/video or other electronic means between 6.00pm and 6.30pm, and for this purpose:
(a)the father shall initiate a call to a mobile number provided to him by the mother;
(b)the children shall be afforded privacy during the call with the father;
(c)the mother shall ensure her phone is charged and in mobile reception area; and
(d)all calls shall be unrecorded and uninterrupted.
School holidays
7.That the children shall spend time with the father for the first half of each school holiday period in 2026 and each even numbered year thereafter, and the second half in 2027 and each odd numbered year thereafter.
Special occasions
8.That the children shall spend the weekend that includes Mother’s Day with the mother.
9.That the children shall spend the weekend that includes Father’s Day with the father, and if that weekend would otherwise be spent with the mother under these Orders, then an adjustment to the weekends will be made by the parents on the basis that there are still only two (2) weekends per term in the father’s care.
Changeover
10.That unless otherwise agreed in writing between the parents, changeovers shall occur:
(a)at the commencement of school term time with the father, at the children’s school;
(b)at the conclusion of the school term time with the father, at a restaurant in Town E; and
(c)during school holiday periods at a restaurant in Town E.
Parental communication
11.That the parents keep each other informed in writing of their telephone number, email address and residential address, and advise each other within twenty (24) hours of any changes.
12.That except in the event of an emergency, for the purposes of communicating and sharing information regarding the children, the parents shall use the services of “AppClose”.
13.That in the event of an emergency involving the children, the parents are to communicate with each other via mobile telephone.
14.That the parent with the care of the children shall inform the other parent of any serious illness or injuries suffered by the children and of any medical or dental treatment required by the children while the children are in their care, as soon as reasonably practicable by way of writing or telephone call.
Schooling
15.That the parents shall do all things and sign all such documents necessary to enrol the children at F School and facilitate the children’s attendance for the remainder of the 2025 school year until the children are to be enrolled and shall attend G School for their secondary schooling.
16.That the mother be at liberty to provide a copy of these Orders to the children’s school/s.
17.That the parents be permitted to liaise directly with the children’s school/s in order to receive notices, reports, newsletters and other information or documentation relating to the children (at their own expense).
18.That the parents are permitted to attend parent-teacher interviews, other school events, sporting and extra-curricular activities and events to which parents are ordinarily invited to attend.
Other
19.That each parent is restrained from bringing the children into contact with the maternal grandfather in any circumstances, and the parents must use their best endeavours to ensure the children do not contact the maternal grandfather on any social media platform.
20.That the parents do all such things and sign any relevant documents to obtain a passport for each of the children.
21.That subject to the Independent Children’s Lawyer obtaining a limited grant of aid to permit the family assessor, Mr H, to explain these Orders to the children as soon as possible, the parents shall take all reasonable steps to present the children to Mr H to allow him to explain the Orders to the children, pursuant to s 65L of the Family Law Act1975.
22.That the Independent Children’s Lawyer be discharged.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanada & Sanada has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
INTRODUCTION
After entering into final parenting Orders by consent for week-about time for their five children in July 2022 when both parents were living in the suburbs of Adelaide, by the end of that year, litigation had recommenced. The reasons why that happened and the torturous litigation pathway that concluded with a three-day hearing that finished yesterday, is explained shortly in these Reasons delivered orally.
The competing proposals of the parents focused on where the children should live, the Applicant mother, Ms Sanada, now aged 38 years, proposing they live with her in Suburb C, Adelaide, whilst the father, Mr Sanada, now aged 47 years, proposed that children live with him at Town J, oustide of Adelaide.
As is demonstrated, issues of risk are raised which shape ultimately the orders for decision‑making, and time between the children and the parent they do not primarily reside with, that are found by the Court as being in the children’s best interests.
STATUTORY PATHWAY
Since 6 May 2024, the statutory pathway for parenting orders has altered. Now, there are just two objects in Section 60B of the Family Law Act 1975 (Cth) (“the Act”):
(a)s 60B(a) is to ensure the best interests of the children are met; and
(a)s 60B(b) is to give effect to the Convention on the Rights of the Child.
During my term as a judicial officer, I have navigated the changing landscape for parenting orders from s 68F through s 60CC of the Act, the additional and primary considerations, and now a new regime contained within four sections of a new s 60CC of the Act. The destination, however, has never altered. It is what is in the best interests of the children.
The very expansive s 60CC(2) and (3) which had primary and additional considerations has been very much shortened. I note as well as the orders provided the presumption of equal share for responsibility no longer applies in parenting cases.
Section 60CC provides that when determining a child’s best interests, certain things must be considered:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
I am satisfied that I have considered the prescribed obligations of a Court when determining a child’s best interests, and subject to s 60CC(4), the Court must consider the matters set out in s 60CC(2), which I will refer to in a moment, being the general considerations.
The general considerations contained in s 60CC(2) prescribe that, for the purposes of the best interests consideration, the Court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
The additional consideration, which has a heading of the right to enjoy Aboriginal or Torres Strait Islander culture is subsection (3) which is in these terms:
Additional considerations—right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii)to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
MATERIAL RELIED UPON
The mother was represented by a solicitor-advocate, Mr O’Dea, and her outline of case identified that she relied upon her trial affidavit filed 10 March 2025 and an affidavit by the maternal grandmother Mrs L also filed 10 March 2025.
The father did not file a case outline but relied upon his affidavit filed 12 March 2025. He also filed an amended Response the same day which is referred to later.
The Independent Children’s Lawyer (“ICL”) primarily relied upon two family reports by social worker Mr H, as well as some tender of documents which are referred to in the transcript.
COMPETING PROPOSALS
The ICL, who is represented by Mr Boehm of Counsel, proposed in filed submissions that the children should live with the mother; there should be joint decision-making, and that there be a moratorium of three months before the children would begin again spending time with the father, which would occur during half of all school holiday periods and some weekend school term time.
The mother, as I say, represented by Mr O’Dea, adopted the ICL’s broad proposals, with some amendments, save that the mother did seek an order that she have the sole decision-making power with an obligation to consult.
The father was unrepresented at trial. This occurred when the father’s solicitor, Mr Cooper, was given leave to withdraw the first day. As per his further amended Response filed 12 March 2025, the father sought that the children continue to live with him on a final basis; that he have sole decision-making power, and that time with the mother graduate from day-only time for 12 weeks, in the presence or at the home of the maternal grandmother, for over a period of approximately six months, graduating then to time being each alternate weekend from 4.30pm Friday to 6.00pm Sunday. Perhaps as an error, the orders in his amended Response did not make any provision for school holiday time.
CONTEXTUAL HISTORY
It is important in this matter to understand how we got to the position and arrangements the children find themselves in. Statements of fact which now follow should be construed as findings of fact.
In 2007, the parties began cohabitation, and the five children were born thereafter, being X in 2013, Y in 2015, Z born in 2017, and twins V and W born in 2019.
On or about July 2021, when the parties were still an intact couple, the police interviewed Z as a result of allegations and disclosures made by her about the conduct of the maternal grandfather, Mr K, also known as “[…]”.
On 17 August 2021, the parties separated, with the children at that stage being aged eight, six, four, and the twins were two years old. Conflict between the parents post-separation was apparent and on 29 September 2021, the mother brought her first application to the Court seeking a recovery order, which suggests that the father at that stage retained the children in his care. I note, of course, there were no orders at that stage.
Interim Orders were made by a Judicial Registrar on 10 May 2022, it seems by consent, that the children should live in a week-about arrangement. The first order injuncting the parents from bringing the children into contact with the maternal grandfather were made in that Order.
By 20 July 2022, the parents had decided to perfect the interim arrangements as a final order, and Orders were made by Judge Cole in Division 2 at that time. Also in those Orders, the parents were ordered to have equal shared parental responsibility, and week-about time continued.
On or about November 2022, a new complaint was notified to the police and/or the child protection service alleging that Z had been the subject of abuse by the maternal grandfather again. The inference was that the mother must have allowed the children, and particularly Z, to come into contact with her father after the injunctions made initially in May 2022.
Somewhat belatedly in these proceedings, but thankfully so, documents were tendered and marked Exhibit 6 which had been viewed by the Court and by the parties. That included an interview of Z. A report by the child protection department at that time indicated in November 2022 that no specific criminal disclosures had been made, but concerning incidents were disclosed of naked sleepovers with “[Mr K]”.
In early December 2022, Z was interviewed by a police officer. As I will soon mention, for reasons which were not adequately explained to me, that interview, which had been available to the parties since April 2023, had not been viewed by the parties (including the ICL) until I required it to be played in open court before me.
In any event, the history shows that, on 18 December 2022, the mother and father agreed to a safety plan with the child protection department – a way of not requiring the department to initiate proceedings in a State Court for a child welfare order, which was an option no doubt open to the department. The effect of the safety plan, which had been put into effect some weeks earlier, was that the children would remain in the “custody” of the father. The safety plan, which is before me, makes clear that it was based on concerns the children were having contact with the maternal grandfather, contrary to Court orders.
The mother, as she is perfectly entitled to do, on 20 December 2022 filed a new application in this jurisdiction (Division 2) seeking that the children live with her. The father’s response on 3 February 2023 asserted that the children should, as they were at that stage under the arrangements put in place with the department, live with him.
I will refer further in these Reasons to an important document dated 22 March 2023, described as a Confidential Assessment Report by CPS (part of Exhibit 6). Notwithstanding that apparent report being available to the Court and to the parties, on 31 March 2023 a Senior Judicial Registrar formally suspended Orders 1 to 4 of the final parenting Orders (being the orders that provided for the children to live effectively in a week-about arrangement) and made orders that the children live with the father and that they spend supervised time with the mother for four hours each Sunday. An order for a family report or family assessment was also made by the Senior Judicial Registrar at that time.
I note that a subpoena that collected a range of documents, including, it seems, the interview of the child Z with police, was returned on or about 13 April 2023. I was told, but I am not certain if this is the case, that little attention had been given to inspecting those documents and putting them before the Court.
Nonetheless, other events were occurring in the household of the father. In mid-2023, an interim intervention order was made by a local court in South Australia against the father and in favour of his then partner, Ms M (see Exhibit 3). Some time later, the father was charged with an offence and breach of the intervention order, with the bail arrangements varied in mid-2023. The importance of these events will be referred to shortly.
On 11 August 2023, it appears that the mother, aware of what might have been difficulties in the father’s household as best she knew it, filed an Application in a Proceeding seeking, again, that the children live with her. The father responded to that Application on 18 August 2023 asserting that the children should continue to live with him.
On or about 5 October 2023, the ICL filed a report by social worker Mr H, dated 4 October 2023. The report could not be more clear – it recommended there be effectively an immediate change of residence for the children, to live with the mother.
Somewhat surprising to me, perhaps looking in hindsight, on 26 October 2023, with the history that I have now given and with that report, a Senior Judicial Registrar effectively maintained the interim arrangements that had been put in place at a much earlier time in this case, namely, that the children’s time with the mother would continue to be supervised. The Orders on the Court record suggest the Order was made by consent. How that can be, mystifies me.
The Orders indicate that a request to have the matter listed for a compliance and readiness hearing so as to progress the trial as early as possible was refused. The apparent urgency of this matter is not apparent from the Orders I have read. The matters were urgent.
Despite the mother filing a Contravention Application on 14 February 2024, and a further Contravention Application on 8 April 2024, no attempt in Division 2 to get this matter on for a final hearing was apparent. Rather, on or about 9 April 2024, the matter was transferred to Division 1 and subsequently allocated to a trial pool. The record shows that the Contravention Applications were withdrawn by the mother, I infer so as not to impede the early trial of the substantive proceedings.
On 8 October 2024, the father caused his lawyers to send a letter to the lawyer on the record for the mother, the effect of which was to give to the mother, for the first time, notice of his intention, perhaps already in place, to unilaterally relocate to the Town J area, some drive away from Adelaide.
The decision by the father was clearly contrary to an Order made on 26 October 2023 by the Senior Judicial Registrar (see Orders 8 and 9) which provided that:
8.The Father be injuncted from any possible relocation of the children from metropolitan Adelaide until such time as the substantive proceedings are finalised in this Honourable Court.
9.The Father will ensure the children attend school unless they are unwell and will also not change the children’s present school, that being [N School].
Hardly surprisingly, on or about 19 November 2024, the mother filed an Application in a Proceeding seeking the children return to the Adelaide area urgently and for the children to live with her. In the face of the father admitting he had relocated and changed the children’s school, ultimately this matter came before me after I was asked to come to Adelaide to hear an Adelaide matter urgently, and this was the matter that I was ultimately allocated, and by the time it came to me, I had formed the view that a substantive trial was required as quickly as possible.
What I did was to bring the matter on earlier than the trial date originally given, properly so by the Case Management Judge in May 2025, so that I could hear this matter, as I did, commencing 31 March 2025.
Although the father sought to obtain some retrospective relief by seeking to discharge Orders 8 and 9 referred to earlier, as I say, I dealt with this matter in a case management hearing on 4 December 2024 when, apart from bringing the matter on earlier, I ordered that a specific issues report in relation to the children’s wishes be prepared by Mr H. I am appreciative of the efforts of the ICL in obtaining funding for and facilitating the preparation of that additional report which was filed on 6 March 2025.
The trial began before me on Monday, 31 March 2025, and as noted, the father’s lawyer sought leave to withdraw as legal aid funding had apparently been terminated on Friday, 28 March 2025. Reluctantly, I allowed the father’s solicitor to withdraw. It left the father to represent himself, which he did to the best of his ability and, on my observation, with courtesy both to the Court and to the legal practitioners engaged in the trial.
There is much I could say about the case management history and the failure of the practitioners on the record to properly inspect early subpoenaed records, including the child interview made in December 2022. The fact that three hours of Court time on 1 April 2025, and a further one hour of Court time on 2 April 2025, was lost because parties/legal practitioners on the record had not inspected or viewed documents, is extremely disappointing.
However, the obvious failures in this matter to engage with the forensic issues, to apparently bring to the attention of the Court the evidence (although untested) that has caused these children to have moved from a week-about arrangement to limited supervised time with the mother for over two years, such that the children’s best interests were not being served, is frankly damning.
As I will soon observe, the fact that these five delightful children have presented to the assessor in such a well-balanced, emotionally robust way, is almost a miracle.
As I will now seek to explain to the parents, the orders I propose to make (although unable to nullify the pain these children have endured over the last two years) are designed to achieve an outcome for the children that will see them given the opportunity to reach their potential, as is their right.
THE ISSUES RELATING TO THE MATERNAL GRANDFATHER
The parents said that in June 2021, shortly before separation, the child Z made a disclosure that the maternal grandfather had sexually abused her. The child was interviewed by police in July 2021, and the maternal grandfather was charged, but those charges did not proceed to trial, and it appears at some stage they were withdrawn. The father, at paragraphs 38 to 48 of his trial affidavit (which I note had been prepared by his solicitor on the record at that time), details his understanding of these allegations and says that:
(a)prior to the disclosure, the parents had no concerns about the maternal grandfather;
(b)as soon as the disclosure was made, the parents immediately stopped the children spending time with the maternal grandfather; and
(c)the mother at the time “acted protectively over the children and I have no doubt that she has taken the situation seriously”.
An injunction restraining the parties from “bringing the children or any of them into contact whatsoever with the maternal grandfather” was first made, as indicated, by consent, on an interim basis in February 2022 and has been confirmed in all parenting orders since then, including the final parenting Orders made in 2022.
In these circumstances, the events of November 2022, which so dramatically led to the abrupt cessation of an equal time arrangement, and for the children’s time to remain both limited and supervised for over two years, became a significant issue at the final hearing.
The father asserts, and still believes, that the mother breached the injunction and brought Z into contact with the maternal grandfather. The mother, in cross-examination and in her trial affidavit, supported also by the evidence of the maternal grandmother who was not required for cross-examination (and the Court being told that the mother’s parents separated when she was a 12 year old child), strenuously denied any contact had occurred.
Exhibit 7 includes reports of the investigations undertaken by the police and the child protection department in November 2022. Whilst an unnamed “notifier” (protected under State legislation from being disclosed, understandably) alleged the child had disclosed contact with the maternal grandfather and some attendance at a “nude sleepover”, the child’s police interview played in Court did not reveal such clear disclosure.
I accept Z was five years old at the time of those interviews. She was difficult to understand at times during the interview. She was certainly distracted playing with Play-Doh and drawing through the one-hour interview. The one-hour interview was interrupted on four occasions by the police officer apparently getting information from somebody. The police officer was suitably persistent and caring in her interview technique. However, my overall view of the child’s interview is that she revealed no specifics and much confusion.
A confidential assessment report by the child protection department dated 22 March 2023 was procured through some form (either subpoena, or s 69ZW order earlier in the proceedings). I have read the report. It is tendered as part of Exhibit 6. In summary, the report:
(a)identified that Z’s reported comments were somewhat unclear;
(b)identified that Z, during the interview, demonstrated significant delays in speech;
(c)revealed, when questioned, that the father “suspected the matter related to her previous disclosures about her maternal grandfather rather than a new disclosure”;
(d)suggested the father’s position of his then partner Ms M (who, for reasons that will become apparent, has given no evidence to this Court) was she had been told by the children they had sleepovers at the home of the maternal grandfather;
(e)records that the mother conceded some incidental contact with the maternal grandfather had occurred when the maternal grandfather was helping her with preparing the former family home for sale, and that that was technically a breach of the injunction; and
(f)confirmed the mother’s evidence given during the trial that the children had had no unsupervised contact with the maternal grandfather and certainly no sleepovers, although Z had a sleepover at the home of the mother’s friend Ms O.
The report concludes with a summary, again I mention available since March 2023, which confirmed that “the contention [Z] had been exposed to subsequent occasion of sexual abuse could not be clarified. Neither could it be clarified that she had spent unsupervised time with her grandfather”.
Considering this report was available to the parties in early 2023, I find it perplexing that in the absence of additional evidence, and in the face of the mother’s constant denials, that the time has remained supervised for two years, with significant effect upon these children’s rights.
The father said he had other evidence about the time the children spent with the maternal grandfather, but during the trial on more than one occasion when asked by the Bench, he confirmed that he had not produced it to the Court.
The mother’s evidence in cross-examination was compelling and believable. I am not satisfied that the children have been brought into contact with the maternal grandfather, although I accept incidental contact may have occurred because of what seems to be the maternal grandfather’s persistence in seeking to see his grandchildren.
I accept, on the evidence, the mother has done everything in her power to ensure the children do not come into contact with the maternal grandfather, going as far as to seek an intervention order against him, which a State Magistrate refused to make on some form of jurisdictional basis. I am completely satisfied the mother, as at March 2023, knew the importance of keeping her father away from the children, and that if there was any doubt, the events since then to the trial before me, have reinforced that obligation.
It is, in all respects, in my view, a matter of significant regret that the children’s time with the mother has been so restricted on such a weak foundation.
FAMILY REPORT
The Court, of course, is not obliged to accept an opinion of a report writer, however experienced. However, in this case, and after the cross-examination of Mr H, I am content to attach significant weight to his opinions. The first report (perhaps unhelpfully in a style that does not have paragraph numbers) summarised his opinion at page 32 of 33 (using the pagination of the sealed affidavit) when he said:
It is apparent that the children will need to be in the primary care of one parent. At this point, the writer regards [Ms Sanada] as the most credible of the two parents. This confidence in the mother is subject to any new evidence from [Mr Sanada]. It is unknown to the writer if the Department for Child Protection will take any action if the children are placed in the fulltime care of [Ms Sanada]. This is a matter that would bear further investigation.
The writer has lost confidence in [Mr Sanada]. He has misrepresented his relationship with [Ms M]. He has concealed the abusive dynamic in his relationship with [Ms M] and he has concealed any abuse that the children have witnessed or been exposed to. [Mr Sanada] appears to have completely underplayed the changes that will have taken place in the children’s lives with the collapse of his relationship with [Ms M]. The problems in the relationship between [Mr Sanada] and [Ms M] did not take place in a vacuum. These five children and [Ms M’s] daughter would have been well aware of what was happening. It remains to be seen how the children will make their own sense of this.
In the following paragraphs, the report writer, noting appropriately that the father asserted he had more evidence to produce (and I note none has been produced), said that the father needed to provide more evidence that he could provide the children with a stable and settled home environment if he is to have the children in his full-time care.
It is to be noted that that recommendation was made over 18 months ago. Since then, and for reasons which will become apparent in my further Reasons, the father, during the hearing and in final oral submissions, contends he has demonstrated that the children have a settled home at Town J and that he has provided a stable home and environment for them.
Mr H, retained by my Court Order to complete a specific issues report around the children’s wishes, expressed, in my view with some foundation, frustration that the Court had not taken up his recommendation for a change of residence made some 18 months earlier.
The second assessment of the children’s wishes is seen in the context that the children, by this time of interview on 22 December 2024, had:
(a)been having limited time with the mother for two years;
(b)moved to Town J in October 2024 and had been required to adjust to a new school and community; and
(c)been involved in travelling every Sunday to Adelaide since moving to Town J that involved hours of travel for them.
In recommending the children “be placed in the fulltime care of the mother”, Mr H recorded that:
(a)X expressed a wish to spend more time with the mother, perhaps fifty-fifty, although he understood this was impractical given where the parents live;
(b)Y expressed a view that he is not seeing his mother enough, and also that equal time would be best;
(c)Z indicated she would like to live with the mother; and
(d)the twins were not formally interviewed, and in the opinion of Mr H, which I accept, remain too immature to understand the issues.
I take into account the evidence of Mr H.
WILL THE FATHER SUPPORT THE CHILDREN’S RELATIONSHIP WITH THE MOTHER?
The expressed lack of confidence in the father by the report writer has, in my view, some foundation. I find that the father did not honestly disclose the nature of his relationship with his partner Ms M during the first interview on 21 July 2023 when she joined him in that interview. They appeared to seek to present as a united, loving, committed couple, able to provide a stable environment to the five children. In my view, this was a complete farce. On 21 July 2023 when the interview was taking place, the evidence now before the Court reveals, and the father, in my view, well knew, that:
(e)an incident between the father and Ms M had occurred prior to mid-2023, where an intervention order on an interim basis had been taken out by police; and
(f)the father would most likely have appeared in the Magistrates Court in in mid-2023.
Two days later after the interview, in mid-2023, the father was charged with an offence and a breach of the intervention order. When Ms M did not join the father for the interviews on 6 August 2023, the father simply said that he had separated from Ms M.
Now, I am aware that the intervention order has since been revoked. I am aware that the criminal charge was not proceeded with. Concerningly, however, the father, when asked about these matters by the ICL’s Counsel, indicated that, in fact, Ms M had committed the offence against him and not the other way around. It seemed to be lost on him that this sort of conflict, whoever was the agitator and whoever was the alleged victim, was something that occurred in a home that the children were primarily living in. As Mr H says, “You cannot see those events in a vacuum”.
The father, in an attempt to paint a positive picture of his parenting, denies that the obvious tensions that developed in the relationship with Ms M had any effect on the children. Mr H disputes this, and I agree.
Although the mother’s two Contravention Applications were not pursued, nonetheless there is evidence of the father failing to comply with Orders as the mother alleges. The father’s attempts to say he was doing what the children wanted to do and/or to put the children under the pressure in negotiating a different arrangement than the Orders provided, does him no credit at all.
As if that was an issue upon which Mr H might have failed to have some confidence in the father, worse was to come, in my view. The unilateral move, firstly, of the children’s schooling, and then the significant change that arose from the move to Town J, cannot so easily be explained, as the father attempted to do, by his lack of rental accommodation anywhere in the Adelaide suburbs. Rather, he chose to move to Town J –hours’ drive away.
He did not explain or inform the mother of the move and, in my view, showed limited insight into the effect of the move on the children, including changing schools in the last weeks of the final term of 2023, and creating a travel burden on the children. There is no evidence that he sought to explore any options with the mother, as he should have done.
These actions of the father, and the earlier findings that I make, support a finding which I make on the whole of the evidence that the father does not value the children’s relationship with the mother. Whilst he might have mostly complied with Orders, I remain concerned that when the evidence of the lack of risk to the children was clarified, as it should have been obvious to him (having been properly represented), he seemed to continue up to the hearing to argue risk was established to enable him to effectively control the situation and to improve his relationship with the children that arises from being effectively a full-time parent. I say that in circumstances where the father no longer works and is reliant on Centrelink benefits.
I also find, more likely than not, that the father’s decision to purchase the vacant land in Town J with most of his available funds that arose from the final property Orders made by the Court, was the first step in an undisclosed plan to move to that region, and the difficulty he had with his rental accommodation in Adelaide simply was the catalyst and a trigger for him to put his plan into action. On this issue, I agree with the ICL’s submissions. The father is showing little child focus or insight, and his overall credit has been significantly diminished.
WHERE SHOULD THE CHILDREN LIVE?
I am comfortably satisfied it is in the best interests of these five delightful, yet robust and resilient children, that they return to the mother’s primary care. This should occur during the forthcoming end of term one school holidays. So as to enable the children to say their “goodbyes” at school next week, and give the mother some opportunity to prepare and to complete enrolment for their new school, I have set a date of changeover as being 15 April 2025.
For completeness, to the extent that the father, at paragraphs 107 to 118 (of his affidavit filed 12 March 2025), raises criticisms about the mother’s parenting capacity, those concerns are not established on the evidence, and to some degree I accept the submission of the ICL that they were, in any event, quite trivial. It was almost as if the father was looking for a reason to criticise the mother.
I do accept that the change will mean another major adjustment for the children, who have been in the primary care of their father now since the department’s intervention in November 2022. The father has, on my assessment, devoted himself to meet the physical and emotional needs of the children when they were in his care to the best of his ability. The children love him, and he deeply loves them. I think there is a reasonable prospect that in time the father may decide to return to Adelaide. If he does so, and establishes suitable accommodation, I would urge the parents to try and negotiate a more inclusive care arrangement which is not available now when the parties live where they live.
I agree a period of time for the mother to be able to settle the children into a new living environment is indicated but regard a period of three months as too long. I am satisfied the children will settle quickly in the mother’s attentive care, and hopefully, if my order (subject to legal aid funding) allows Mr H to explain my final orders to the children, that will assist.
I agree with the submissions of the ICL that, just as the parents identified in the Orders by consent in July 2022 that it was in the best interests of the children that both parents share equally in decision-making for major long-term issues, such an order should continue.
As to the other orders which I pronounce today, I find that the change of residence shall, as I say, occur at 4.00pm on 15 April 2025, with the father delivering the children to the mother’s home. This was something which the father was prepared to do and the mother, through her Counsel, was prepared to accept. It gives the children, perhaps for the first time in many years, an opportunity to see their parents acting like mature adults and where they can demonstrate then that they have put the children’s interests first.
A moratorium will occur from 15 April 2025 to Friday, 23 May 2025. In that regard, although I have not ordered it, I see no real benefit for the children being required to spend time with the mother this Sunday.
Weekend time with the father shall begin on 23 May 2025. It will occur two weekends a school term, from after school Friday to 4.00pm Sunday. I have decided that the father should collect the children at the commencement of weekend time from their school, which will give him a regular opportunity, if he chooses to take it, to engage with the children’s school and teachers. I would urge him to do so. At the completion of weekend time, there shall be a changeover at the midway point, nominated by the father. That shall be at 4.00pm on a Sunday, which will allow the children (particularly the twins) sufficient time to rest and have a good night’s sleep before school or kindergarten the following day.
Changeovers during school holidays are prescribed by my order, unless the parents agree otherwise in writing, though effectively at the midway point. To the extent the father might say, by collecting the children from school two weekends a term he is carrying more of the financial and travel burden, whilst this is correct, I note that the father is reliant on Centrelink benefits and has not worked for some time. He is not, therefore, in my view, likely to be able to pay any significant child support to the mother. The mother will meet all of the children’s travel needs in Adelaide. I regard such a burden of travel shared in this way as appropriate. Of course, as I made mention during the trial, wherever these parties might meet for changeover, the children must always travel the whole distance.
School holidays will be shared broadly equally, with the children being with the mother for the first half of the 2025 school holidays, which will include Christmas Day 2025. The father, to his credit, indicated that it was appropriate that the children spend Christmas this year with their mother, he having had the children in his care for at least the years 2022, 2023 and 2024. The father shall have the first half of the holidays in 2026, which, of course, will then include Christmas 2026, and even numbered years thereafter. Because the parents live hours apart, trying to shape some order about sharing the Christmas experience between Christmas Eve, Christmas Day and Boxing Day is problematic. In a similar way, trying to accommodate birthdays for the five children, although there are only four birth dates, whilst I accept they are important days, are also problematic and unachievable when the parents live hours apart. I make no provisions for the children’s birthdays as a result.
I do make provisions for Mother’s Day and Father’s Day. Mother’s Day 2025 is scheduled to take place on 11 May, which will be a time when the children are in the mother’s care.
It is not necessary for the children to speak with the father three times a week. I would hope that the mother will facilitate additional communication between the children and the father if a reasonable request to do so is made by the children. However, I prescribe an order for weekly telephone video calls with the usual protections at order 6.
The mother’s suggestions for future schooling for the children if they live with her were not seriously challenged by the father. As a result, in an effort to reduce further applications, those arrangements are set out in order 15.
Finally, I take on board the ICL’s submission that it is not necessary to provide in the orders a mechanism for future negotiations if the father decides to permanently relocate back to the Adelaide area. I make the point, of course, that like all citizens of Australia, they have freedom of movement. I can no more require the father to relocate to Adelaide than I can order, or could have ordered, the mother to relocate to Town J.
Section 65DAAAof the Act prescribes that the orders I make on a final basis today can be varied if the Court is satisfied a material change of circumstances since today has occurred, and further, if it can be demonstrated that it is in the best interests of the children to vary those orders.
The mother properly conceded, in my view, that if the father moved back to Adelaide, the frequency of time should be reconsidered. I note the cautionary comments of Mr H about his concerns about the parents’ capacity now, with what has transpired over the last two-year period, to make an equal time arrangement work effectively. What arrangements are in the best interests of the children if the father returns to Adelaide permanently is a matter to be considered on the evidence at that time.
In that same genre, I refuse to make an application sought by the mother that there be a recovery order which lies in the registry. In my view, such orders are really extraordinary and should not be made on a final basis because they, of their nature, almost invite further proceedings. A court is not able to predict into the future what events might arise that could cause a recovery order to be issued and whether that would be, on the evidence at that time, in the best interests of the children. To presume in some sort of penal approach to include such an order is not, in my view, appropriate except in exceptional circumstances, and I elect not to make such an order.
I discharge the ICL.
Otherwise, for completeness, the orders pronounced today and set out at the commencement of these published Reasons (now settled) are in the children’s best interests.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 5 June 2025
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