Sappington and Sappington (No 2)

[2020] FamCA 754

FAMILY COURT OF AUSTRALIA

SAPPINGTON & SAPPINGTON (NO. 2) [2020] FamCA 754

FAMILY LAW – CHILDREN – where parties reached final agreement on the first day of trial – where these will be the third set of final parenting orders for this family – final orders made for the child to live with the mother in the first instance but otherwise as agreed by taking the child’s views into consideration

Family Law Act 1975 (Cth)

APPLICANT: Ms Sappington

RESPONDENT: Mr Sappington

FILE NUMBER: CSC 383 of 2010

DATE DELIVERED: 20 August 2020

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Baumann J

HEARING DATE: 20 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr A Hawkes
Hawkes Lawyers

THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr N McGregor

INDEPENDENT CHILDREN’S LAWYER: Ms R Bassano, Bassano Law

Orders

1. That all previous Orders be hereby discharged.

2. That the mother and father have equal shared parental responsibility for the child, X born … 2006 (“the child”) in relation to:

   (a)the child’s education (both current and future);

   (b)the child’s religious and cultural upbringing;

   (c)the child’s health;

   (d)the child’s name; and

   (e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent NOTING:

   (i)there is an injunction against the parents relocating the child’s residence outside the State of Queensland contained in these Orders; and

   (ii)that the parents agree that the child shall live with one of the parents notwithstanding that the mother intends to live in the E Region area and the father intends to live in the Town S area.

Child’s living arrangements

1. That the child live with the mother or the father as the parties agree and in the first instance the child live with the mother.  In reaching their agreement the parents will take into account the child’s views.

2. That the child will spend time with and communicate with the parent with whom she is not living at all such reasonable times as agreed between that parent and the child.

Authorities

1. That this Order acts as an authority for any doctor, hospital and/or other health professional to provide information about the child’s health to both parents, with the parent making the request for such information to be responsible for any costs associated with same.

2. That the parent with whom the child is residing shall provide an authority to the school for the school to provide directly to the other parent copies of the child's school reports and school photographs (at the requesting parent’s expense) and direct the school to provide such reports and photographs to him or her promptly after they issue and in the event the “resident” parent fails to provide such authority, this Order acts as such authority.

3. That the parents keep each other informed as soon as reasonably practicable (but in any event no less than seven (7) days), in writing, of any serious medical procedure or operation to be performed on the child except in the case of an emergency when in such circumstances the parent shall inform the other parent within no more than four (4) hours.

4. That in the event of any serious illness or accident concerning the child, the resident parent shall inform the other parent, in writing, as soon as is reasonably practicable.

5. That leave be given for a copy of these Orders to be provided to the child’s, school, medical practitioner and any allied health provider.

Restraints and injunctions

1. That neither mother nor the father is permitted to remove the child from the Commonwealth of Australia unless there is prior written agreement between the parents.

2. That the parents are restrained, and an injunction issues, from relocating the child’s residence outside the State of Queensland until the child has completed her grade twelve (12) education or attains the age of eighteen (18) years, which every is the earlier unless prior written agreement is reached between the parents.

3. That the parents are hereby restrained, and an injunction issues, from causing (whether by act or omission) the child’s name to be known as anything other than X Sappington or X [middle names] Sappington and the mother and father are to ensure the child’s name remains as it is recorded on the child’s birth certificate and neither parent is to change the child’s name or is to permit the child to be known by another other name.

4. That neither party shall discuss or permit discussion with the child, of any aspect of these proceedings (except for the effect of the terms of these Orders insofar as the Orders affect the child).

Other orders

1. That each parent keep the other informed of their mobile phone and any available email addresses and shall advise the other parent of any change within twenty four (24) hours of such change.

2. That in the event the child expresses a wish to access counselling the parent with whom the child is living with will facilitate such counselling occurring and will notify the other parent, in writing, of the focus of such counselling and the provider of such counselling NOTING THAT the child is of an age where an allied health professional may not disclose information provided during counselling.

Passport

1. That within one-hundred and twenty (120) days of a written request from the parent seeking to have the child’s passport issued, the parents shall sign all such things and do all things reasonably necessary to obtain issue of the passport for the child, with the mother to be responsible for the costs associated with the passport application.

2. That the child’s passport shall be held in the first instance by the mother and thereafter by the parent who most recently travelled overseas with the child and that parent shall:

   (a)release the passport to the other parent within five (5) days of agreement between the parties that the child is able to travel with the travelling parent; and

   (b)that parent shall retain the passport thereafter until further travel has been agreed between the parents.

3. That the mother and father agree the child should not obtain a tattoo.

4. That subject to any Appeal, the Independent children’s Lawyer is discharged at the expiration of twenty-eight (28) days of the date of these Orders.

IT IS NOTED:

A.That the Court has invited the parents to arrange for the family report writer, Ms C, to explain the Orders to the child before she leaves North Queensland, which the Court is informed will occur at the end of school term.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sappington & Sappington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 383 of 2010

Ms Sappington

Applicant

And

Mr Sappington

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. Having read all the material, it is my view that there is a need to say something about the orders I make today by consent, and so I do so.  Although the parties in this matter have produced final orders for X, for which I congratulate them, this is a matter in my view where there is every chance, at some stage of the three girls’ lives, that they may wonder why the orders today were made.  As such, it is necessary in my view, to take account the fact that at some point in time the comments which I now make and which I will call to be published for the benefit of the mother and father, may be seen by the children as adults.  I am not suggesting they be provided to the children, even the adult children, but I have no control over that.

2. Inevitably, children usually work out that parents are not always right and that they make mistakes.  This may come to be the case in this family.  Having read the material for this trial, which has been urgently listed, it was abundantly apparent to me that there was some similarity with the events post-January 2020 with events considered by Tree J and set out in his Reasons for Judgment, as having occurred prior to his trial in April 2019.  Prophetically, for example, at paragraph 76 his Honour said:

   “It cannot be overlooked that during 2017, X spent each alternate week with the father, and there were, it seems, no notifications to the Department made in that time.”

3. The evidence suggests before me, noting it is untested, that in the six month moratorium ordered by Tree J when X lived with the father and the mother remained living in the E Region, there were no significant issues in the father’s care of the child raised then.  Furthermore, Tree J, at paragraph 66, also relevantly found:

   “… the mother has sought to place considerable obstacles in the path of the father spending time with X after January 2018, comprising firstly, making allegations of physical abuse of X by the father, which are offered as pretexts for not making the child available to spend time with him, and secondly, arranging attractive activities which clash with the father’s proposed time with X, which necessarily at once motivate the child not to spend time with the father, and create different experiences for the siblings if X does nonetheless spend time with him.”

4. Almost with Nostradamus-like certainty, at paragraph 67 his Honour continued to say in his Reasons:

   “…but I do not accept that.  I am well satisfied that she has, and likely will continue to, actively impede and undermine not only X’s, but all three children’s, relationship with the father.”

5. This observation weighs heavily in my obligation to be satisfied that the orders offered by the parties today – I know with the hope that this will bring litigation to an end, which has been ongoing for over 10 years in different phases – are in the child’s best interests.  I am satisfied they are in her best interests.  In so doing, I have turned my mind, of course, to what Tree J said at paragraphs 122 and 123 of his Reasons.  I incorporate them in this Judgment.  I am sure that both the mother and father recall them:

   “122.Ultimately, weighing the relevant considerations in the balance tells generally in favour of the Independent Children's Lawyer and father’s proposal.  I place particular weight upon the fact that the elder two children have lost their relationship with the father, and that X’s will nigh inevitably go the same way, unless her primary residence is changed.  The cost of that is to dislocate her relationship with her mother and siblings.  However, with great reluctance, I assess that cost as being outweighed by the benefit which she will obtain from a relationship with her father.

   123.There will therefore be an order that the child live with the father, and it follows therefore that sole parental responsibility should flow to him.  Although this outcome is far from ideal, it is, as compared with the alternative, more in the best interests of X, and hence I will so order.”

6. The orders proposed today seek to, as the father has indicated, bring to end the litigation.  The overwhelming benefit to X that these orders, if complied with, achieve is to take enormous pressure off this young girl.  It is a pressure that she has had to endure for most of her life.  It is a pressure which, at different times, her older siblings have also had to endure.  In my view it is important, for the reasons I have indicated, to make the observation which I do, that these orders should not be seen as:

   a)a reward to the mother for her behaviour which has been condemned by Tree J in his Reasons for Judgment, which were not the subject of appeal; and

   b)in any way an acceptance of the mother’s claim the father represents a risk to the child, X; has treated her poorly or has acted inappropriately.  I do not believe he has.

   The orders reflect, in my view, the most courageous yet difficult acceptance by Mr Sappington, as a loving father of his three daughters, Ms Z, soon to turn 19, Y, soon to turn 17 and X, that there is little more he can do and that he should now, in the best interests of X, accede to her wishes to live with her mother.  Frankly, it would have been much easier for him to stop fighting for the child’s best interests years ago, but I regard his commitment to do so as a fine example of his love for his daughter.  I give him credit for that.  It would have also been easier for him to expect the Court to make a decision.  In fact, the Court probably could not have made this decision, for the reasons which are apparent and which Mr McGregor – who was a Counsel in the first trial and who is now, helpfully, the Counsel today – knows.  It is plain from the evidence.  Often people require courts to make the decisions so they have someone to blame.

7. It would be wrong for the mother to see this as some sort of win.  I have no doubt she truly loves her daughters, but her lack of respect, bordering on hatred at times, for the father who she chose to be the father of the three girls, as identified in the Reasons of Tree J, has not changed in my view.  Tree J’s Orders, particularly the moratorium for six months, he hoped might have caused the mother to reflect on her actions and how she has influenced her daughters, simply did not work.  In making these Orders, even with the concerns raised now, I draw some comfort from the continued positive educational and social development, not only of X but also her older siblings.  They are clearly talented and high achievers.

8. Whilst the mother might seek to take the majority of the credit for that, that would unfairly minimise the role the father has played from their birth until the estrangement has occurred.  My hope for X is that in time she will better understand the dynamics of her family in a balanced and mature way, which she could not possibly do at this stage, so that she will see the benefit of accepting her parents with all their human faults and vulnerabilities, as both capable of adding richness to her life and sensible guidance through their big love for her.  She should not have to be required to make a choice of one parent over the other.  But to the extent she has, in time I hope she can find a way to maintain a relationship with both parents.

9. For the reasons I have indicated, I propose to publish these Reasons to the parties.  I make the orders and discharge the Independent Children’s Lawyer, with the thanks of the Court.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 20 August 2020.

Associate: 

Date:  11 September 2020