SANDWELL & SANDWELL - [2018] FamCA 1030

FAMILY COURT OF AUSTRALIA

SANDWELL & SANDWELL

[2018] FamCA 1030

FAMILY LAW – CHILDREN – Interim Hearing – Where there have been multiple interim hearings - Where the father seeks retention of existing interim orders – Where the mother seeks fresh interim orders – Where the mother seeks sole parental responsibility for the children, for them to live with her, and for the time they spend with the father to be professionally supervised – Where the Independent Children’s Lawyer supports the mother’s application – Separation of siblings.

FAMILY LAW – CHILDREN – Parenting Responsibility – Where findings about the occurrence of past family violence cannot be made – Where the presumption of equal shared parental responsibility is rebutted due to the parties’ inability to cooperate – Where the single expert recommended sole parental responsibility be allocated to the residential parent – Ordered mother have sole parental responsibility for the children.

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the father has a history of unstable psychological health – Where the single expert considered the father had an insistent fixed and delusional belief the mother was harming the children – Where there is a real risk the father will make further false reports of the mother’s abuse of the children – Where there is insufficient evidence to enable a finding the children need protection against neglect or physical abuse while in the mother’s care – Ordered the children live with the mother and spend supervised time with the father.

Family Law Act 1975 (Cth) ss 60CC, 61DA

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marriage of B & B (1993) FLC 92-357
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100

Whitby & Zeller (No.2) [2014] FamCAFC 239

APPLICANT:

Ms Sandwell

RESPONDENT:

Mr Sandwell

INDEPENDENT CHILDREN’S LAWYER:

Foat Roberts Lawyers

FILE NUMBER:

NCC

3665

2017

DATE DELIVERED:

26 October 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

26 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page SC & Mr Kelly

SOLICITOR FOR THE APPLICANT:

Karen Rands Legal

COUNSEL FOR THE RESPONDENT:

Mr Rugendyke

SOLICITOR FOR THE RESPONDENT:

Mullane & Lindsay

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Not Applicable
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Foat Roberts Lawyers

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

All former orders relating to the following children are discharged:
a.X, born … 2016; and
b.Y, born … 2017.
The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.
The children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend supervised time with the father:
a.Each Sunday from 2:00 pm to 5:00 pm; and
b.Each Wednesday from 2:00 pm to 5:00 pm.
For the purpose of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SANDWELL & SANDWELL

Details

AGLC: SANDWELL & SANDWELL [2018] FamCA 1030
Case: [2018] FamCA 1030
Decision Date: 26 October 2018

CaseChat Overview and Summary

In the matter of SANDWELL & SANDWELL, Austin J of the Family Court of Australia considered applications by both the mother and the father concerning their two children. The mother sought fresh interim orders, including sole parental responsibility, that the children live with her, and that their time with the father be professionally supervised. The Independent Children’s Lawyer supported the mother's application. The father sought the retention of existing interim orders.

The court was required to determine several legal issues, including whether the presumption of equal shared parental responsibility should be rebutted due to the parties' inability to cooperate, and how to allocate parental responsibility and living arrangements for the children. The court also considered the father's history of unstable psychological health, including a fixed and delusional belief that the mother was harming the children, and the consequent risk of further false reports. The court needed to assess whether the children required protection from neglect or abuse while in the mother's care.

Austin J found that while findings about past family violence could not be made, the parties' inability to cooperate rebutted the presumption of equal shared parental responsibility. The court accepted the single expert's recommendation for sole parental responsibility to be allocated to the residential parent, noting the father's delusional beliefs and the real risk of further false allegations. Given the absence of evidence that the children needed protection from the mother, and the father's psychological state, the court ordered that the children live with the mother and spend supervised time with the father.

Consequently, the court discharged all former interim orders and made new orders. The mother was granted sole parental responsibility for major long-term issues, and the children were ordered to live with her. The father was ordered to have supervised time with the children on Sundays and Wednesdays, with specific provisions for supervision, venue, and costs. The father was also restrained from photographing or videoing the children for the purpose of verifying injury, from approaching within 100 metres of the mother's residence, and both parties were restrained from denigrating each other in the children's presence. The children were placed on an Airport Watch List for 12 months. All other interim applications were dismissed, with no order as to costs.

Orders

Orders of the court

PENDING FURTHER ORDER, IT IS ORDERED THAT

All former orders relating to the following children are discharged:

a. X, born … 2016; and

b. Y, born … 2017.

The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.

The children shall live with the mother.

The parties shall take all reasonable steps to ensure the children spend supervised time with the father:

a. Each Sunday from 2:00 pm to 5:00 pm; and

b. Each Wednesday from 2:00 pm to 5:00 pm.

For the purpose of the preceding order:

a. The supervisor of the time spent by the children with the father shall be staff at “F Centre”, or some other person or entity nominated by one of the staff members of F Centre (“the supervisor”);

b. Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

c. The venue at which the time is to be spent by the children with the father shall be designated by the supervisor;

d. The father shall pay the costs of the supervisor;

e. The parties shall comply with all reasonable requests and directions of the supervisor; and

f. Leave is granted to the parties and Independent Children’s Lawyer to provide a copy of these Orders to the supervisor.

For the purpose of implementing these orders, the parties or their nominees shall arrange the exchange of the children at the McDonald’s Restaurant, B Street, …, NSW.

The father is restrained from photographing or videoing the children, or either of them, for the purpose of verifying their physical injury.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of the mother’s residence.

10.

Each party shall forthwith inform the other, and keep the other informed, in writing of their mobile telephone number and email address.

11.

Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the children from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on that Watch List for a period of 12 months.

12.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13.

Save as to costs, otherwise:

a. The Amended Application in a Case filed on 23 October 2018 is dismissed;

b. The Response to an Application in a Case filed on 11 October 2018 is dismissed;

c. The application for interim orders set out within Exhibit ICL1 is dismissed; and

d. Any and all other applications for interim relief are dismissed.

14.

No order as to costs.

BY CONSENT, IT FURTHER ORDERED THAT

15.

Leave is granted to the father to furnish to his intended treating psychiatrist, Dr E, a copy of the single expert report dated 8 August 2018.

NOTATIONS

A. The applicant mother and Independent Children’s Lawyer do not require the publication of Reasons for Order 14 hereof.

B. The proceedings remain listed before the Registrar at 9:30 am on Wednesday, 13 February 2019, for further procedural directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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