SAPPINGTON & SAPPINGTON

[2020] FamCA 436

FAMILY COURT OF AUSTRALIA

SAPPINGTON & SAPPINGTON [2020] FamCA 436

FAMILY LAW – CHILDREN – Interim – where final parenting orders were made in May 2019 for change of residence for the 14 year old child to live with the father in North Queensland– where the child has self-placed with a friend of the mother in the North Queensland region – where the father seeks a recovery order and the mother seeks that the child live with her – where the matter is listed for trial in three months – interim orders made for the child to live with the mother or the mother’s friend in North Queensland and for the child to spend time with the father

Family Law Act 1975 (Cth), s 60CC

Sappington & Sappington [2019] FamCA 244
Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637

APPLICANT: Ms Sappington

RESPONDENT: Mr Sappington

FILE NUMBER: CSC 383 of 2010

DATE DELIVERED: 2 June 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 28 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr A Hawkes
Hawkes Lawyers

SOLICITOR FOR THE RESPONDENT: Self-represented

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

INDEPENDENT CHILDREN’S LAWYER: Ms R Bassano
Bassano Law

The Court orders until further order:

1. That in respect of the Orders made 3 May 2019,

   (a)Orders 2; 8(b)(ii) to (v); 8(c)(i) and (v); 9; 10; 11; 12 and 13 are suspended until further order; and

   (b)Orders 3; 14; 15; 16; 17; 18 and 19 remain in full force and effect.

2. That the child, X born … 2006 (“the child”) live with the mother or Ms Q in the Town B/Town D region and shall not move residence outside this area without Court order.

3. That the child continue to attend and be enrolled in R School.

4. That each parent, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the child to leave the Town B region (including Town D).

5. That unless otherwise agreed between the parents in writing, the child spend time and communicate with the father as follows:

   (a)each alternate weekend from after school Friday to before school Monday, commencing Friday, 5 June 2020;

   (b)for one (1) half of the June school holidays, from 10.00am on the first Saturday until 10.00am on the second Saturday; and

   (c)by telephone at all reasonable times to be initiated by the child.

Counselling

1. That the:

   (a)Independent Children’s Lawyer is to do all acts and things to obtain at least two (2) names of appropriately qualified child Psychologists in the Town B/Town D region for the child and then provide, in writing, to the mother and father the names of the proposed Psychologists; and

   (b)mother and father are to email to the Independent Children’s Lawyer the name of the chosen preferred Psychologist from the list provided in the above Order within seven (7) days of the receipt of such names.  In the event there is no agreement of the name chosen between the mother and the father of such Psychologist, the Independent Children’s Lawyer is to nominate the proposed treating Psychologist and to remove all doubt the Independent Children’s Lawyer will select the name and the mother and father will be bound by such selection (“Child Psychologist”).

2. That once the above Order has been completed, the mother is to do all necessary acts and things to:

   (a)obtain a mental health referral for the child to see such Child Psychologist;

   (b)once the referral has been made, forthwith make an appointment for the child with the Child Psychologist; and

   (c)continue to take the child to the Child Psychologist until such time as the Child Psychologist is satisfied the child has met the therapeutic goals.

3. That the mother be permitted to attend with the child at a doctor’s surgery to seek to obtain a mental health plan for the child.

4. That pursuant to s 121 of the Family Law Act 1975, the mother be granted leave and shall provide to the doctor and any subsequently retained Psychologist for the child, a copy of the family report prepared by Ms C dated 1 May 2020.

Trial directions

1. That these proceedings remain listed for Final Hearing for not more than two (2) days commencing at 10.00am on 20 August 2020 in the Family Court of Australia at Cairns.

2. That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 23 July 2020.

3. That each party file and serve on each other no later than 4.00pm on 30 July 2020:

   (a)one (1) consolidated Affidavit of evidence in chief limited to matters that have arisen since April 2019; and

   (b)       one (1) Affidavit of each witness intended to be relied upon at trial.

4. That each party file and serve on each other no later than 4.00pm on 13 August 2020, a case outline setting out:

   (a)       a precise minute of the final orders sought;

   (b)       a brief relevant chronology; and

   (c)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.

5. That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without leave of the Court.

6. That the Independent Children’s Lawyer shall provide written notice to Ms C of her requirement to be available for cross-examination at trial, as soon as reasonably practicable, but by no later than 4.00pm on 16 July 2020.

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 BRISBANE

FILE NUMBER: CSC 383 of 2010

Ms Sappington

Applicant

And

Mr Sappington

Respondent

REASONS FOR JUDGMENT

Introduction

1. X’s parents have been in conflict as to arrangements for her care (and previously also in respect of her older siblings Z (now aged 18 years) and Y (now aged 16 years)) since her parents separated in January 2010.

2. X, who is now aged 14 years, was not yet four years of age when her parents separated.

3. These reasons which dealt with competing interim parenting arrangements are truncated because:

   a)the parties had a final hearing before the Honourable Justice Tree in April 2019, resulting in Reasons published on 18 April 2019 and Orders in the following terms; made 3 May 2019:

   “1.All previous parenting orders relating to the child X born … 2006 (“the child”) be forthwith discharged.

   2.The child live with Mr Sappington (“the father”).

   3.The father have sole parental responsibility for the child.

   4.Ms Sappington (“the mother”) is to cause the child to be delivered at 3:00pm on 23 April 2019 to Cairns Family Court registry.

   5.In the event the child is not delivered up to the Cairns Registry at 3:00pm on 23 April 2019, then the father has liberty to seek a Recovery Order, or such other order effecting the change of the child into his care as he may see fit.

   6.   The Family Report Writer (by telephone) and the Independent Children’s Lawyer will meet with the child as soon as possible after her going into the father’s care to explain these Orders to her.

   7.   The child is to neither spend time nor communicate with the mother until 30 August 2019 (“the moratorium”).

   8.   From the conclusion of the moratorium, the mother may spend time with the child as follows:

   (a)In 2019:

   (i)In the September/October school holidays from 10:00am Tuesday 1 October until 4:00pm Friday 4 October such time to be spent within a radius of 100km of Town B (“the Town B Region);

   (ii)In the Town B Region in the Christmas school holidays from 10:00am Monday 16 December until 10:00am Friday 20 December;

   with all changeovers to occur at the Centre A.

   (b)In 2020 and each alternate year thereafter:

   (i)In the first half of the Easter school holidays from 10:00am on the first Saturday until 10:00am on the second Saturday;

   (ii)In the first half of mid-year school holidays, from 10:00am on the first Saturday until 10:00am on the Second Saturday;

   (iii)In the first half of third term holidays from 10:00am on the first Saturday until 10:00am on the second Saturday;

   (iv)For the first half of the Christmas school holidays from 10:00am on the first Saturday until 10:00am on the middle Saturday;

   (v)For no more than four weekends to be nominated by the mother, provided that:

   (a)The time is to be spent in the Town B Region;

   (b)The time is to commence at 10:00am on Saturday and conclude at 5:00pm on the Sunday;

   (c)   The weekend must not coincide with the child’s birthday, Father’s Day, Easter or Christmas;

   (d)  The mother advises the father of her nominated weekend no less than 28 days in advance.

   (c)In 2021 and each alternate year thereafter:

   (i)In the second half of the Easter school holidays from 10:00am on the second Saturday until 10:00am on the last Saturday;

   (ii)In the second half of mid-year school holidays, from 10:00am on the second Saturday until 10:00am on the last Saturday;

   (iii)In the second half third term holidays from 10:00am on the second Saturday until 10:00am on the last Saturday;

   (iv)For the second half of the Christmas school holidays from 10:00am on the middle Saturday until 10:00am on the last Saturday;

   (v)For no more than four weekends to be nominated by the mother, provided that:

   (a)        The time is only spent in the Town B Region;

   (b)The time is to commence at 10:00am on Saturday and concluding 5:00pm on the Sunday;

   (c)The weekend must not coincide with school holidays, Father’s Day, Easter or Christmas;

   (d)The mother advises the father of her nominated weekend no less than 28 days in advance.

   9.   The parties are to forthwith undertake all steps necessary to allow changeovers in 2019 to occur at the Centre A.

   10. All changeovers not specified in these orders as taking place at the Centre A are to occur at McDonalds at Town B.

   11. Until the end of the first school term of 2020, the mother, whether herself, by her agent or howsoever, is restrained from attending any place where the child may be attending at school, or extra-curricular activities which she may be undertaking from time to time.

   12. From the conclusion of the moratorium, the child will communicate with the parent whose care she is not then presently in (“the absent parent”) between 6:30pm and 7:00pm each Thursday, and on the following days:

   (e)The child’s birthday;

   (f)On the absent parent’s birthday;

   (g)On Christmas Day;

   (h)On Mother’s Day, if the mother is the absent parent ;

   (i)On Father’s Day, if the father is the absent parent.

   13. The Independent Children's Lawyer is to forthwith identify an appropriately trained allied health professional to assist the child adjust to these orders.  Upon finding the appropriate allied health professional, the Independent Children’s Lawyer has liberty to provide a copy of all the Family Reports (Ms C’s two reports and Mr O’s report) and Reasons for Judgment to that person.

   14. These Orders shall, without more, act as authority to the child’s school to provide each parent (at that parent’s expense) information about the child’s education’s progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents.

   15. These Orders shall, without more, act as authority to each of the child’s medical practitioners (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the child’s medical condition, treatment and copies of medical records and reports.

   16. Each parent will ensure that the schools attended by the child, and the child’s usual treating medical practitioners (including counsellors and psychologists) are provided with a copy of these Orders.

   17. Both parties are restrained from being under the influence of alcohol or above the legal limit for driving while the child are is in their care, and restrained from consuming any illicit substances.

   18. That during the time the child is with either parent, that parent shall:

   (a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

   (b)  Speak of the other parent respectfully;

   (c)Not denigrate or insult the other parent or other family members in the presence or hearing of the child.

   19. Both parties are restrained from making any audio or video recording of the child save for still photographs taken with the child’s permission.

   20. The Independent Children's Lawyer is discharged with the thanks of the Court on 1 October 2020.

   21. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.”

   (see Sappington & Sappington [2019] FamCA 244).

   b)as a result, it is not either necessary or helpful to review arrangements that took place before April 2019 – characterised by Tree J as “the considerable history of conflict and acrimony which have filled the more than nine years since these parties separated”;

   c)with the benefit of a family report dated 1 May 2020 by Family Consultant Ms C, arising from consultations which took place “face to face” on 26 April 2020, and where the parents disagree as to the future parenting arrangements, the matter is ready for a an urgent further final hearing and two days commencing 20 August 2020 in Cairns has been allocated.  That is just 11 weeks from now; and

   d)as I will be the trial judge, and there are a number of issues that will require findings at the hearing, it is better that I be extremely cautious now in these Reasons so as to avoid any perceptions of prejudgment.

Competing proposals

1. Consistent with authorities such as Goode & Goode (2006) FLC 93-286, it is necessary to consider the competing proposals.

2. The Applicant mother Ms Sappington, in her Initiating Application filed 13 February 2020 seeks orders that X live with her and that the child spend time and communicate with the father “as she determines”.

3. The father’s Response, filed 3 March 2020 seeks that the Orders of 3 May 2019 remain in place and that “a recovery order be put in place to bring X…back home” to her father.  Mr Sappington, who represents himself in these proceedings, also seeks for X to have counselling and further an injunction restraining Ms Q “from coming near X”.

4. The Court had the benefit, at the interim hearing before me on 28 May 2020, of submissions from Mr McGregor of Counsel for the Independent Children’s Lawyer (“ICL”) – the same Counsel and ICL as appeared before Tree J at the earlier trial.  As it becomes apparent, the situation had altered significantly since the events of January 2020 and particularly the mother’s application, and the Court was informed by the mother’s solicitor advocate Mr Hawkes, that the mother has returned from the E Region to live temporarily in the Town D area and this has allowed X to continue to attend her local secondary school.  In these circumstances, the ICL proposed that the child remain in the Town D area pending the trial in August 2020, and that orders be made for X to spend significant time with the father whilst continuing to live with the mother and/or Ms Q.

Facts which shape the exercise of discretion

1. Clearly the statutory pathway requires the Court to consider the best interest of X as the paramount consideration.  It is not appropriate to visit upon the child, the consequences of poor behaviour of a parent.  No place exists in determinations as to the best parenting arrangements for some form of “reward” to a parent who complies with orders any more than some form of “punishment” to a parent who does not comply (save in an environment where contravention proceedings are being dealt with and sanctions are to be imposed).  At this time, relevantly the following events emerge:

   a)For the Reasons given by Tree J, he decided that X should live with the father; that a moratorium against any time or communication between X and the mother exist from May 2019 to 31 August 2019 and then the child would spend time with the mother in the Town B region for four days in the September school holidays and in the Christmas school holidays;

   b)The child, upon returning to Town D in May 2019, recommenced at her old secondary school, and has been professing well, with few absences and consistently high grades.  She, like her sisters, is an intelligent girl gifted in music and capable of making friends easily.  I am satisfied she is currently settled at her school and maintaining her schooling – a virtual sanctuary from the parental hostilities – is an extremely important consideration for the next school term until the trial;

   c)The child had expressed strong wishes at the time of the earlier hearing before Tree J that she wishes to live with the mother.  Those wishes remain her expressed view as the recent family report indicates;

   d)The child seeks to maintain a relationship with her older siblings, Z (who is studying at University in Victoria) and Y (who is at secondary school in the E Region).  These older siblings are estranged from the father – a matter the father says is a result of the mother’s alienating behaviour and the consistent undermining of his relationship with them.  His fear – shared by Tree J at the time of the final hearing in April 2019 – is that the child X is on the same track and he will lose his relationship with X;

   e)Although X expressed to Ms C, the Department of Child Safety, Youth and Women (“the Department”), and to the mother that she fears her father and that an event in January 2020 puts her at risk in his care, that is not the determination made by the Department;

   f)The child X has threatened to “self-harm” and Ms C says that the strength of the child’s views in this regard, coupled with a plan to achieve self-harm as articulated by her, means that the child’s “threat” to self-harm should not be ignored.  The father, although extremely sad about the child’s views, says that it is not likely X would hurt herself;

   g)Since the major change to X’s care arrangements in May 2019, the child has had limited counselling.  The parents and the ICL all agree counselling for the child is an urgent need; and

   h)When the mother supported X to not return to the father’s care in January 2020, she was living in the E Region.  She arranged for a friend Ms Q to care for X and this allowed X to continue to attend R School.  As earlier mentioned X received awards for academic achievement in December 2019 in seven subjects.

Discussion

1. As the Full Court in Banks & Banks (2015) FLC 93-637 identified, it is not necessary in every interim parenting matter to consider every primary consideration (s 60CC(2)) or additional consideration (s 60CC(3)), but rather to focus on the main areas of care pending a final hearing.

2. With a final hearing so close – and noting that as a result of a protection order having been made for five years on 24 May 2018 (without any admissions by the father) – unlike the trial before Tree J; s 102NA of the Family Law Act 1975 is now triggered.  On 28 May 2020 I made the necessary orders to facilitate the unrepresented father gaining legal representation for the hearing.

3. In my view, what needs to occur, in the best interests of X, before and until the final hearing is:

   a)the child continue to be able to attend her school R School;

   b)the child not leave the Town B region (including Town D) until the final hearing;

   c)if the child’s siblings wish to spend physical time with X, they will have to travel to North Queensland;

   d)the mother, indicating through her solicitor her ability to remain in the Town B/Town D district until the hearing in August, the child can continue to live with either the mother or Ms Q until further order.  It will be therefore necessary to suspend the operation of certain Orders of the Orders made by Tree J;

   e)the child should be ordered to spend alternate weekends and half of the June school holidays with the father.  I am not satisfied that the father presents a risk of harm to the child.  I will expect the mother to facilitate that time occurring.  I understand X may protest, but as she knows that she will not be living at this time with the father, the limited weekend time and some holiday time with the father is something she can cope with and is in her best interests;

   f)the child should immediately commence counselling, with a therapist nominated by the ICL at the joint costs of the parties – a cost that might be defrayed by a general practitioner prescribing a mental health plan;

   g)although, on an interim basis, I do not propose to vary or suspend the Order for the father to have sole parental responsibility, I will specifically order that he mother be permitted to attend with X at a doctor’s surgery to seek to obtain a mental health plan and, for that purpose, the doctor and any subsequently retained Psychologist shall be permitted to have access to the family report of Ms C.

Orders

1. Orders which encapsulate the parameters set out above are, at this time, in X’s best interest pending the final hearing in August 2020.  I pronounce the orders at the commencement of these Reasons.

2. I accept the father fears further undermining of his relationship.  I remind the parents that Order 18 made by Tree J remains in full force and effect.

3. The child spending time with the father could prove problematic – however with the child understanding at this time that the Court will not “force” her to live with the father, I am hopeful that with counselling X may be able to reconcile with the father.  Of course, it is more likely that will occur if the mother genuinely supports the child doing so.  Those are issues likely to be the subject of some intense focus in the trial in August 2020 – as it was in the trial before Tree J in April 2019.

4. I otherwise make directions for trial hopefully confident that by August 2020, it will be possible to conduct a hearing “face to face” in the Cairns Registry and further, that the father will have representation, which he indicated he would appreciate having available to him.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 2 June 2020.

Associate: 

Date:  2 June 2020