FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sarina & Donald [2023] FedCFamC2F 574
File number(s): CAC 629 of 2023 Judgment of: JUDGE MANSFIELD Date of judgment: 17 May 2023 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Suspension of previous final orders – Conflict between parents about parenting approach to sexuality and gender identity - Whether or not the father poses an unacceptable risk. Legislation: Family Law Act 1975 ss 4, 4AB, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CG, 69ZL, 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules2021 Part 7.1, Rule 10.09
Cases cited: Eaby & Speelman [2015] FamCAFC 104
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2022] FedCFamC1A 97
Marvel & Marvel [2010] FamCAFC 101
Re K (1994) FLC 92-461
Rice & Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 60 Date of last submission/s: 15 May 2023 Date of hearing: 15 May 2023 Place: Canberra Counsel for the Applicant: Dr Behrens Solicitor for the Applicant: Elringtons Solicitor for the Respondent: Mr Cameron of Hijazi Curran Cameron Lawyers ORDERS
CAC 629 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SARINA
Applicant
AND: MR DONALD
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
17 MAY 2023
THE COURT ORDERS THAT:
1.The Orders made 24 December 2020 are suspended.
2.X born in 2010 and Y born in 2014 (together “the children”) will spend time with the father from 11.00am to 2.00pm each Sunday, such time to be exercised in a public place with changeover to occur outside B Store in C Shopping Centre, City D.
3.The father is otherwise restrained from taking the children into his care.
4.The mother will facilitate the children communicating with the father by telephone, FaceTime or video (but not Messenger Kids):
(a)at any reasonable time when either of the children requests to do so; and
(b)each Tuesday at 6.30pm; and
(c)each Saturday at 11.30am.
5.Pursuant to Rule 7.04 and 7.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 the parties and the Independent Children’s Lawyer will forthwith confer for the purpose of agreeing on a single expert witness to be appointed in this matter (“the single expert”), with such expert to prepare a report to the Court as soon as practicable.
6.Pursuant to Rule 7.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 the parties and the Independent Children’s Lawyer will confer for the purpose of preparing an agreed letter of instructions to the expert, including an assessment of the father.
7.The parties are to share equally in the cost of the single expert, and it is noted that the parties and the children are likely to have to travel to Sydney for interviews by the single expert and will bear their own costs of travel, with the mother to bear the children’s costs of travel.
8.The parties have liberty to re-list in the event the parties and the…
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- Sarina & Donald [2023] FedCFamC2F 574
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- [2023] FedCFamC2F 574
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CaseChat Overview and Summary
The court considered the welfare and best interests of the children as the paramount consideration. It examined the evidence presented regarding the father's views on sexuality and gender identity and assessed whether these views could be harmful or detrimental to the children. The court also took into account the potential impact of the parents' conflict on the children's emotional and psychological well-being. Based on these considerations, the court decided to suspend the previous final orders and set new interim arrangements, including supervised visits and restrictions on the father's care. The court also ordered that an independent children’s lawyer be appointed to represent the children's interests.
The court ordered that the previous final orders be suspended and that the children will have supervised visits with the father in a public place each Sunday. The father was restrained from taking the children into his care otherwise. The court also ordered that the mother facilitate communication between the children and the father by telephone, FaceTime, or video. Additionally, the court mandated that the parties and the Independent Children’s Lawyer agree on a single expert witness to prepare a report and instructed them to share the costs equally. The court further restrained the parties from discussing the proceedings in the children's presence or permitting others to do so. The matter was adjourned for mention on 5 September 2023.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The Orders made 24 December 2020 are suspended.
2. X born in 2010 and Y born in 2014 (together “the children”) will spend time with the father from 11.00am to 2.00pm each Sunday, such time to be exercised in a public place with changeover to occur outside B Store in C Shopping Centre, City D.
3. The father is otherwise restrained from taking the children into his care.
4. The mother will facilitate the children communicating with the father by telephone, FaceTime or video (but not Messenger Kids):
(a) at any reasonable time when either of the children requests to do so; and
(b) each Tuesday at 6.30pm; and
(c) each Saturday at 11.30am.
5. Pursuant to Rule 7.04 and 7.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the parties and the Independent Children’s Lawyer will forthwith confer for the purpose of agreeing on a single expert witness to be appointed in this matter (“the single expert”), with such expert to prepare a report to the Court as soon as practicable.
6. Pursuant to Rule 7.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the parties and the Independent Children’s Lawyer will confer for the purpose of preparing an agreed letter of instructions to the expert, including an assessment of the father.
7. The parties are to share equally in the cost of the single expert, and it is noted that the parties and the children are likely to have to travel to Sydney for interviews by the single expert and will bear their own costs of travel, with the mother to bear the children’s costs of travel.
8. The parties have liberty to re-list in the event the parties and the Independent Children’s Lawyer are unable to agree as to the matters set out in Orders 5 and 6 above.
9. The parties are restrained from discussing any aspect of these proceedings, including but not limited to, anything which the children have said to CYPS and/or the mother in the presence or hearing of the children or permitting others to do so.
10. Pursuant to Section 68L of the Family Law Act 1975 an independent children’s lawyer is appointed for the children X born in 2010 and Y born in 2014 and Legal Aid is requested to facilitate such appointment as soon as possible.
11. Upon notification of the identity of the independent children’s lawyer, each party shall forthwith provide to the independent children’s lawyer a copy of all documents filed by them in the proceedings.
12. The matter is adjourned for mention on 5 September 2023 at 12noon before a Judicial Registrar.
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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