Sanders & Sanders
[2025] FedCFamC2F 914
•18 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sanders & Sanders [2025] FedCFamC2F 914
File number(s): MLC 15940 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 June 2025 Catchwords: FAMILY LAW – Parenting – Interim hearing – Where parties settle all but one issue on interim basis – Remaining dispute over when overnight time to commence with the mother – Where father ceased time between children and mother for significant period – Where father alleges children at risk in mother’s care – Where mother acquiesced in supervised time in order to see children – No significant risk identified in untested child impact report – Overnight time to commence at earlier date – Psychological reports of parents ordered. Cases cited: Goode & Goode [2006] FLC 93-286 Division: Division 2 Family Law Number of paragraphs: 22 Date of hearing: 18 June 2025 Place Warrnambool Counsel for the Applicant: Ms Bonney Solicitor for the Applicant: HBH Legal In house counsel for the Respondent: Ms Hellberg Solicitor for the Respondent: Victoria Legal Aid Solicitor for the Independent Children's Lawyer: Mr Kennedy, Melville Orton & Lewis ORDERS
MLC 15940 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SANDERS
Applicant
AND: MR SANDERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 JUNE 2025
THE COURT ORDERS BY CONSENT THAT:
1.X born in 2010 and Y born in 2014 live with the Father.
Spend Time
2.That the children spend time with the Mother as follows:
(a)Each alternate weekend as follows:
(i)Commencing 28 June 2025, each Saturday and Sunday for a period of three hours as agreed between the parties and failing agreement from 11:00am until 2:00pm.
(ii)Commencing 26 July 2025, each Saturday and Sunday for a period of six hours as agreed between the parties and failing agreement from 10:00am until 4:00pm.
AND THE COURT ORDERS THAT:
(iii)Commencing 23 August 2025, from 10:00am Saturday until the commencement of school Monday, or 3pm if a non-school day.
AND THE COURT FURTHER ORDERS BY CONSENT THAT:
(iv)Commencing 4 October 2025, from the conclusion of school on Friday until the commencement of school Monday, or 3pm if a non-school day.
(b)On each of the children’s birthdays as follows:
(i)If the birthday falls on a school day, from the conclusion of school until 6:30pm; or
(ii)If the birthday falls on a non-school day, for a period of four hours as agreed between the parties and failing agreement from 10:00am until 5:00pm
(c)On the Mother's birthday as follows:
(i)If the birthday falls on a school day, from the conclusion of school until 6:30pm; or
(ii)If the birthday falls on a non-school day, for a period of four hours as agreed between the parties and failing agreement from 10:00am until 5:00pm.
(d)Any other times as agreed between the parties.
3.Except in exceptional circumstances, should the Mother not be able to spend time with the children she is to provide the Father with 48 hours’ notice of her inability to spend that time.
4.In the event that the Mother is unable to spend time with the children she be permitted to have make-up time which the Father is not to unreasonably refuse.
5.The Applicant Mother’s time shall be suspended:
(a)On each Child’s birthday, should the relevant date fall on a date the children are in the Applicant Mother’s care, from the conclusion of school until 6:30pm;
(b)On Father’s Day, if Father’s Day falls on a date the children are in the Applicant Mother’s care, from 10:00am to 5:00pm;
(c)On the Father’s birthday, if the Father’s birthday falls on a date the children are in the Applicant Mother’s care, from 10:00am to 5:00pm;
Changeover
6.Changeovers occur at the B School in City C when the children are in attendance at the school and the front entrance of the City C Children’s Contact Centre, D Street, City C on non-school days or such other location as agreed between the parties in writing.
Psychological Assessment
7.The Mother and Father undertake mutual psychological assessments with a psychologist as agreed between the parties and provide a copy of their respective assessments to the other parties AND IT IS REQUESTED that Victoria Legal Aid fund such assessments.
8.For the purpose of paragraph 7 herein:
(a)The psychologist be at liberty to inspect subpoenaed material
(b)The father be at liberty to provide the psychologist with a report from his GP at E Clinic.
(c)The parties be at liberty to provide a copy of all documents filed in these proceedings as well as the Child Impact Report.
Communication
9.When in the father’s care, the children communicate with the Mother by telephone or other electronic means at all reasonable times as requested by the children and the Father facilitate such contact between the children and the Mother.
10.When in the mother’s care, children communicate with the Father by telephone or other electronic means at all reasonable times as requested by the children and the Mother facilitate such contact between the children and the Father.
11.When parties communicate with each other in a polite and respectful manner via the parenting application AppClose in relation to child arrangements.
Medical
12.Each party advise the other as soon as practicable of any serious injury to the child or children, major health issues or significant medication treatment of the child or children and each party is entitled to the release of any medical information concerning the children from any health service provider.
13.The parties do all things necessary to authorise any Medical Practitioner or any other Medical or Allied Health professionals that the children may attend from time to time to provide to the other party at that party’s expense and request with any information or documents in respect of the child.
14.Both parties be at liberty to separately attend medical and/or allied health appointments with or without the children, at their own expense, provided it is permitted by the medical practitioner(s) or allied health professional(s).
15.Each party is to keep the other advised of any medical practitioners treating the child including but not limited to doctors, dentists, counsellors or specialist practitioners.
Education
16.The children continue enrolment at B School in City C.
17.The Mother and Father be authorised to obtain from the child’s school all information concerning the child including but not limited to school order forms, reports, all notice as to events, functions, sporting and social events and parent/teacher interviews and access to the school apps.
18.The parties do all acts and thins to authorise to the effect that the Mother and Father may attend all school functions that is usual for parents to attend including but not limited to sports days, working bees, parent-teacher interviews, concerts and Father’s/Mother’s Day functions with both parents to notify the other at least 24 hours prior to the function or event if they are attending.
Remainder Provisions
19.The Applicant Mother complete the Triple P Parenting – Fear-Less parenting program, for children with anxiety.
20.Both parties complete the Triple P Parenting – Stepping Stones program, for children with disability.
21.The parties are hereby restrained by injunction from:
(a)belittling, rebuking, abusing, insulting or otherwise denigrating each other or any member of the party’s household in the presence or hearing of the children and from allowing the children to remain in the presence or any other party who may be so doing;
(b)discussing these proceedings, family law or parenting issues, to with or in the presence or hearing of the children or showing any documents filed in these proceedings to the children and from permitting any other person to do so;
(c)posting information as to the other party, these proceedings or allegations raised on any social media or allowing any other person to do so;
(d)involving the children in the parenting dispute;
(e)exposing the children to any family violence;
(f)passing messages through the children; and
(g)physically disciplining the children.
22.The parties, their servants and/or agents be restrained from:
(a)consuming alcohol to excess, or being affected by same, during any time spent with the children
(b)Knowingly exposing the children to cigarette smoke during any time spent with the children.
23.Each keep the other informed at all times as to their current residential address and mobile phone contact numbers and notify forthwith of any changes to these details.
24.The parties be at liberty to provide a copy of these Orders to the staff of any education facility and medical professionals attended by the children.
AND THE COURT ORDERS THAT:
25.The Independent Children’s Lawyer be and is requested to provide a copy of these orders and a copy of the Child Impact Report to Mr G.
26.The matter be listed for a Compliance and Readiness Hearing in the October 2025 sitting of the Warrnambool circuit before Judge O’Shannessy.
AND THE COURT NOTES THAT:
A.The report/letter from the father’s GP was requested by the father’s lawyer on 26 May 2025. The GP required funding for the preparation of the letter/report. Such funding was obtained from Victoria Legal Aid on 12 June 2026 and the report/letter will be prepared upon payment of the Invoice.
B.There was no objection to Order 25 by the parties.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Annexure A and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the court and then 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.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
Proceedings in the matter of Sanders were issued in December of 2024 and the first return to Court was in February of 2025. The proceedings concern X, who is 14, and Y, who is 10. The mother of those boys, Ms Sanders (‘the Mother’), is a community worker and is 41 years of age, and the father, Mr Sanders (‘the Father’), is 46 years of age and was formally employed in public service matters but has, for some time, been in receipt of WorkCover due to a work-based injury. The Mother’s history of employment includes, for some considerable time prior to separation, working night shift.
The Mother’s position as applicant in these proceedings was, and remains, that the children should live with her and should stay with the Father on five nights per fortnight, being Thursday to Monday in one week, as well as the following Thursday overnight. That can sometimes be described as a four plus one per fortnight arrangement. Of course, five nights per fortnight in that form would mean that the Father, on the Mother’s application, would spend time with the children over six days on every fortnight. The Father’s position has been that there is some real risk to the children’s welfare by spending time with the Mother.
The Mother left the matrimonial home on 31 July 2024. She alleges that she was fleeing family violence and sets out detail in her material about the family violence that she suffered. The Father denies that family violence, or denies at least the bulk of that family violence, and alleges that he, in fact, was the victim of family violence and that he had attempted to avoid those confrontations.
The events soon after separation are highly controversial. The Father alleges the Mother attended the home where the children were, in a distressed state, and abused him and was generally disruptive in the house. The Mother denies the same, but the end result was that there were, soon after, applications for intervention orders of each parent against the other. Those applications were resolved sensibly and, to the credit of the parties, relatively quickly in the Magistrates’ Court with the respective orders being intervention orders providing that the respondent to the order must not commit family violence, and each were consented to but with a denial of the allegations of the other party.
The children’s time with the Mother did not advance very far in the context where, almost immediately after separation, there were mutual intervention order applications between the parents.
There was, then, from September to October 2024, some limited time by agreement between the parents that the Mother spent with the children. The Father ultimately determined that he would cease that time following two incidents that concerned him. He was concerned that, on two occasions, the child, Y, had returned from time with the Mother (which had involved her parent’s home) with a traditional men’s razor and razor blades on one occasion, and a (butter type) knife on another. It is not suggested that the Mother provided the child with either implement but the inference I draw is that the Father was suggesting a lack of appropriate supervision of the children during that time that resulted in the child returning home so armed.
Hence, time ceased and the Mother then spoke to one of the children on Christmas day but otherwise did not see the children until March of 2025 at the supervised contact centre, pursuant to orders made in February 2025.
Supervised time ordered
In February, the matter was adjourned to this sitting of the Court, with a child impact report to be undertaken, and for there to be supervised time between the Mother and the boys in the meantime. The Mother’s position then was that she agreed to the supervision on the basis that she was acquiescing in the circumstances to ensure that she spends some time with the children. The Father’s position, I infer, was that the supervision was necessary because of the nature of the risk to the children. I also ordered the appointment of an Independent Children’s Lawyer (‘ICL’) in February. I accept the opinion of the ICL that the reports of the children’s time with their mother at the supervised contact centre was positive and without any significant concern.
Interim hearing
At this interim hearing, I must have regard to the procedure and the law followed on an interim hearing in the decision of Goode & Goode [2006] FLC 93-286[1] where at [81] and [82] states:
[1] As adapted to the current provisions of the Family Law Act 1975 (Cth).
[81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[82] In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
The long and the short of it is that the Court should be circumspect about making factual findings of disputed facts on an interim hearing.
The parties have spent some time today, when the matter was listed for an interim hearing, and were able to largely resolve the matters in issue this day.
The scheme of the interim orders that are agreed to is that, commencing very soon, the children will spend unsupervised time each Saturday and Sunday for a period of three hours, and then after about a month, commencing 26 July 2025, each Saturday and Sunday for a period of six hours with their mother. It is then agreed that, at some point thereafter, time should move to from 10 am Saturday until the commencement of school Monday, or 3 pm if not a school day, and then for the next scheme, from 4 October 2025, from the conclusion of school on Friday until the commencement of school on Monday, or 3 pm if not a school day.
The proposed consent interim orders also provide that, at the expense of the Legal Aid Commission, the parties undertake psychological assessments with the same psychologist who would be provided with the various material. A suite of sensible orders about courses, involvement at school, extracurricular activities, and special occasions are also included.
The children have special needs and are supported by the NDIS scheme. A witness in the Father’s case, Mr G, is either an employee or a contractor to that scheme and is significantly involved with the boys. He sees one of the boys weekly and the other twice weekly. Mr G has had significant involvement with the Father and has been able to observe his parenting and is very positive about the nature of the boys’ parenting by the Father. Mr G deposes that he had only been able to speak to the Mother prior to separation on one occasion. It may be that Mr G is supportive of the Father’s position in the proceedings (as it has been up to this day) which was that there was some risk to the children in their Mother’s care and it was their experiences of events that had caused them to tell him that they did not wish to spend time with their mother on various occasions.
It may be that Mr G is entirely independent and would have prepared the same affidavit, whether he was asked to do so by the ICL or the Mother. In those circumstances, I raised with the parties whether Mr G should have the benefit of the Child Impact Report as background to his significant involvement with the boys, but on the basis that that was an interim, or preliminary, report and the observations contained therein have not been tested, nor has there been the opportunity for those to be tested. After raising it with the parties, the Mother’s counsel sought orders to that effect and the other parties, the ICL and the Father, did not oppose that.
The Child Impact Report, dated 5 June 2025, is, I repeat, an interim report and the observations in it have not been tested, nor has there been an opportunity for testing. Nonetheless, I place some weight on that report on the basis that it has been undertaken by an independent expert, albeit on an interim, or for the time being, basis but with the benefit of being able to speak to each of the boys, as well as each of the parents. Relevant parts of that report include the following:
10. [Mr Sanders] withheld the children from spending time with their mother between August and September 2024 and again from October 2024 until professionally supervised time commenced in February 2025. [Ms Sanders] asserts difficulties in parenting arrangements began when [Mr Sanders] became aware she had no desire to resume their relationship. [Mr Sanders] asserts he withheld the children due to concerns for their safety.
…
12. [X] shared that he has autism and Attention Deficit Hyperactivity Disorder (ADHD) and began experiencing anxiety earlier in the year, for which he is prescribed medication. He explained he can become silly without his medication for ADHD and will annoy his brother and father. When asked about his autism, [X] shared that he is good with hands on building and technology. It is reported that [X] also has an intellectual disability. [X] stated his anxiety commenced after seeing his mother at a carnival earlier this year. He reported he did not wish to see her at that time as he was angry due to his belief she ended the relationship with his father to enter another relationship
13. [X] presented as an emotionally conflicted young person who it seems has developed alignment with his father. He spoke fondly about his father and expressed a desire for his father to “win” his case. His comments relating to his mother were inconsistent and at times critical. Despite initially stating he misses his mother and understands she loves him, [X] repeatedly stated she did not care for him and was not there for him, even as an infant. He referred to his maternal half sibling who sadly died before his birth and indicated a belief that his mother prioritised spending time with his maternal cousin and maternal aunt. He seemed to suggest that this was related to the death of his maternal half-brother. Nonetheless he expressed anger and upset about his mother leaving the home and a desire for her to return.
14. In contrast [X] indicated a belief his father has always been there for him “even as a baby”. Recalling when his parents lived together, he reported both parents would get “grumpy”. He indicated their methods of discipline differed, reporting his mother would hit him on the leg with the back of her hand and pinch him, whereas his father places him in the bathroom for time out. He shared that he was not fearful of his parents. [X] appeared defensive of his father when recalling how his parents would argue about finances. He suggested his father would challenge his mother about her spending. [X] repeatedly commented that he would like his mother to “realise she should have saved money and stayed”.
15. [X] recalled spending time with his maternal extended family when their parents lived together and reported it was “fun”. He indicated his views changed following his parents separation when he “realised” his maternal family do not care about him. He was unable to elaborate on this comment, nonetheless [X] continued to be critical of his maternal family, alleging his maternal grandparents were drunk in his company, their finances are spent on the maternal aunt and being aware that [Y] had returned from their home with a knife.
16. [X] reported he initially enjoyed spending time with his mother when his parents separated. He appeared ambivalent about the time he currently spends with her. He advised he declined a recent session with his mother as he had been socialising with friends. He described his time at the contact centre as ‘boring” before indicating a preference for this to continue reporting that his mother’s sole focus is on him and [Y] during their supervised to together. [X] contemplated on various potential parenting arrangements which included living with each parent before commenting “if it’s meant to be its meant to be”.
…
30. [Mr Sanders] appeared eager to present himself as protective parent who is trying to encourage the children’s safe relationship with their mother. However, his comments indicated he identifies as being the only capable parent whilst speaking critically of [Ms Sanders] throughout his interview and feedback discussion. He appeared reluctant to progress the current arrangements and seemed to lack trust in her parenting skills and her capacity to make safe decisions for the children. It is difficult to anticipate how he has shielded the children from his fixed negative perception of their mother. [Mr Sanders] considered himself to be an advocate for the children by allowing [X] to speak to the contact service directly to tell them he did not want to spend time with his mother. He seemed unable to consider how this may be identified as him triangulating [X] into the adult issues. Neither did he appear to consider that placing responsibility for decisions on to the children in relation to the time they spend with their mother, may result in emotional confusion for them and could create feelings of being stuck in the middle of their parents. He did not appear to understand how facilitating [X]’s time with his friends prior to his scheduled time with his mother may have influenced [X]’s decision making rather than a resistance to have a relationship with her.
…
Commencement of overnight time
The controversy here is whether the move to overnight time should commence on 6 September or 23 August 2025. The Father contends that it should commence on 6 September 2025 because it is anticipated, provided the Legal Aid Commission agrees to fund it, that the parties would be interviewed for psychological assessment on or about 7 July, and that it is preferable that that report be available prior to the commencement of overnight time. That is a sensible and logical approach. It is in that context that the Father asserts that it should be the later date, not the earlier August date. The effect of that is that would give him the backup and security of the report in determining whether or not he should attempt, by further application, to interfere with the progress to overnight time. It is common ground that, regardless of the report, these orders will provide for a move to overnight time, including the progression of that time, on 4 October 2025.
I take into account that the Father has, this day, consented to orders that mean the children immediately move to unsupervised time with their mother and a pathway to overnight time, which is significantly different, in effect, from the situation between August 2024 and February 2025.
The ICL asserts that the commencement of the overnight time should occur at the earlier date. The Father’s solicitor has, in articulate terms, set out a rational path and reason as to why the times would start at the later date. The Mother’s case is that after such a long period of the restricted time of only supervised time, following a long period of no time at all, and the absence of the child impact report being able to point to a solid basis for any concern about safety to the children, that it should be the earlier date. And, further, that the sooner the time moves to be school to school changeovers rather than between the parents, the better, in the context of the respective allegations of violence.
In all of those circumstances, but primarily because of the long period where the children did not see their mother at all, and the long period of supervised time, I am satisfied it would promote the children’s interests for the commencement of overnight time to be at the earlier time.
I will also add an order to the effect that the ICL be and is requested to provide a copy of the orders and the child impact report to Mr G, on the basis that the child impact report observations have not been tested and are preliminary, and on the basis that, save for provision to NDIS records, the contents of the child impact report should remain confidential.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 3 July 2025
0
0
0