SASTRY & SASTRY
[2019] FCCA 3526
•11 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SASTRY & SASTRY | [2019] FCCA 3526 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of children – orders made. |
| Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC |
| Cases cited: Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCA 240 Banks & Banks [2015] FamCAFC 36 Eaby & Speelman [2015] FamCAFC 104 |
| Applicant: | MR SASTRY |
| Respondent: | MS SASTRY |
| File Number: | PAC 5827 of 2017 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 3 December 2019 |
| Date of Last Submission: | 3 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 11 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | Ms Audisho |
| Solicitors for the Respondent: | Mr Hamka |
| Solicitors for the Independent Children's Lawyer: | Mr Samuel |
ORDERS PENDING FURTHER ORDER
That the children of the marriage namely X born in 2008 and Y born in 2011 live with the mother.
That the children spend time with the father as follows:-
2.1.During school terms each alternate week from the conclusion of school on Friday until the commencement of school on Tuesday with the father to collect the children from and deliver the children to their respective schools in order to give effect to this order;
2.2.The children are to spend the first half of the long summer NSW school holidays with the father and the second half with the mother;
2.3.For the shorter NSW school holidays, the children are to spend the first half with the mother and the second half with the father in odd years, and in even years, the children are to spend the first half of the holidays with the father and the second half with the mother;
2.4.
In the event that Father’s Day falls on a weekend when the children would not otherwise be spending time with the father pursuant to these orders the children are to spend from 9.00am to 5.00pm on Father’s Day with the father;
2.5.
.Should mother’s day fall on a weekend when the children would be spending time with the father pursuant to these orders such time is to be suspended from 9.00am to 5.00pm on mother’s day;
2.6.
During the Christmas period by agreement between the parties.
2.7.
During the Diwali period by agreement between the parties; and
2.8.
Or as otherwise agreed to by the parties.
In order to give effect to the above orders all changeovers are to take place at the children’s schools where this is possible otherwise they shall be at a public venue as agreed to by the parties in writing and in the absence of such agreement at McDonalds at Suburb A.
That each parent shall have reasonable telephone communications with the children during any periods that the children are in the other parents care and that each parent is to facilitate the children in having such telephone communications with the other parent.
That the mother have sole parental responsibility in respect to the children’s schooling.
That WITHOUT ADMISSION the mother and the father be restrained from the following:-
6.1.Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the Mother, the father or any other member of either party’s household;
6.2.Physically disciplining the children;
6.3.Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.
6.4.Conveying messages through the children and or using the children as a go-between to convey messages to each other;
6.5.Discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so;
6.6. Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings.
6.7. Being under the influence of alcohol in the presence of the children or whilst the children are in his or her care and;
6.8. Bringing the children into contact with any person under the influence of illicit drugs or alcohol in excess.
That the mother be restrained from permitting or authorising her partner Mr B from having any contact with the children except as follows:-
7.1.
All such contact is to be supervised by and in the presence of the mother.
7.2.
The mother is to only permit such contact initially for short periods;
7.3.
Mr B is not to sleep overnight during any periods when the children are living with the mother.
7.4.
The mother shall follow the guidance of the children’s counsellor (referred to later in these orders) when allowing or extending her partners contact with the children.
That the father be restrained from permitting or allowing the children to have any contact with the paternal grandmother’s former partner Mr C or from authorising or permitting any third party from doing so.
That the parents are to each ensure that the children attend school on each and every day on which NSW school children are expected to do so on days when each of the children are in such party’s care and control.
10. In the event that the children or either of the children cannot attend school for reasons of ill-health, the parent in whose care such child or children are in provide to the children’s school and to the other parent a copy of a medical certificate, being the same date as such child or children’s absence.
11. That the mother and the father keep each other advised in a timely manner in respect to all significant decisions in respect to the children’s lives and in particular relating to their health and medical needs and schooling.
12. In the event that either child shall suffer any injury, be hospitalised or suffer any significant illness the parent in whose care the children are in at the time shall notify the other parent immediately except in the case of an emergency where they shall do so as soon as is reasonably practicable.
13. That the mother and the father shall each be entitled to enrol the children in and take the children to any extracurricular activities during any periods whilst the children are in such parents care pursuant to these orders.
14. That each of the parents shall be entitled to attend upon any school functions of the children that parents normally attend.
15. That the parents are to forthwith enrol in and complete a taking responsibility course such as offered by D Family Services or E Family Services and provide evidence that they have enrolled in such courses to each other’s legal representatives and to the Independent Children’s Lawyer.
16. That the father attend counselling with an appropriately experienced clinician in order to assist him to gain insight into his behaviour and to moderate his attitudes particularly focusing on the impact of his behaviour on the emotional and psychological well-being of the children.
17. That the father is to provide the name and contact details of his treating counsellor referred to in the preceding order to the mother’s legal representative and to the Independent Children’s Lawyer.
18. That the mother is to forthwith arrange for the children to attend counselling for emotional support and to assist them to develop coping skills such as may be offered through the Anchor Program.
19. That the parents keep each other advised as to their respective residential addresses and contact details.
IT IS NOTED that publication of this judgment under the pseudonym Sastry & Sastry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5827 of 2017
| MR SASTRY |
Applicant
And
| MS SASTRY |
Respondent
REASONS FOR JUDGMENT
These Reasons relate to an interim hearing held on 3 December 2019, in relation to the children X born in 2008 and Y born in 2011.
Proposals and material relied upon
The mother’s interim parenting proposals were contained in a Minute of Order attached to her Case Outline; she sought orders, inter alia, that the mother have sole parental responsibility for the children; that the children live with the mother; and that the children spend time with the father, during school term time, for 2 nights in week one, and 1 night in week two, with an equal school holiday time arrangement.
The mother relied upon the documents referred to on page 1 of her Case Outline.
The father sought interim parenting orders as referred to in his Case Outline; inter alia, that the consent interim Orders of 26 August 2019 continue, (inter alia, those orders provided for an equal time arrangement) subject to certain of those orders being discharged and fresh orders made relating to school holiday time and other matters.
The father relied upon the documents referred to on page 4 of his Case Outline.
The ICL relied upon his Case Outline, and his proposed orders were set out in his Case Outline at pages 4-8 (subject to proposed order 2.1 being amended to add the words “each alternate week” after the words “During school terms”). His proposed orders, in relation to the children spending time with the father during school term time, provided for the children spending 4 nights each alternate week with the father.
Agreed facts unless otherwise stated
The mother is aged almost 38 years of age. The mother works in sales. The father is aged 39 years. He works as a tradesman.
The parties hail from Country F. The mother came to Australia in 1987. The father came to Australia in 1989.
The parties commenced cohabitation in about year 2000. The parties took up residence in the former matrimonial home in about 2006.
The parties separated under the one roof in about the first half of 2017. The father asserts that thereafter the parties’ relationship began to rapidly deteriorate and the parties’ communication completely broke down.
The father asserts that he installed a lock on the parties’ bedroom door in November 2017. He asserts that the mother admitted to the police that she had later damaged this door. He asserts that a provisional ADVO was taken out against the mother. He asserts that the parties still resided under the one roof, but matters only exacerbated after the ADVO was taken out. The mother commenced parenting and property proceedings in this Court on 27 November 2017. On 20 February 2018, the mother was found guilty of malicious property damage, convicted and placed on a Good Behaviour Bond for 12 months. The ADVO was made on a final basis for a further period of 12 months. The father asserts that living at home became unbearable.
The mother vacated the former matrimonial home in about mid-September 2019, following the consent orders of 26 August 2019 that she vacate that home upon being paid certain monies by the father.
The father asserts that the former matrimonial home at Suburb A is close to the children’s schools, parks, shops and local friends.
The mother’s Affidavit dated 3 December 2019 states her address as being in the suburb of Suburb G.
Legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In the context of s60CC, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.
Meaningful relationship primary consideration
The children have a meaningful relationship with the parents and would benefit from a continuance of those relationships.
The mother asserts that she has been the children’s primary carer at least during the parties’ relationship.
Should the children begin to spend time with the father as proposed by the ICL, there is a reasonable prospect that the children’s meaningful relationship with the father can be maintained. The Court also refers in this context to its discussion below, under the need to protect primary consideration.
The contents of the family report are consistent with the above views of the Court, whilst acknowledging that the family report remains untested.
Need to protect primary consideration
On the material before the Court, should the children continue to be subject to an equal time parenting arrangement, there is a significant risk that they will be exposed to conflict between the parties with consequential adverse impacts upon their meaningful relationships with either or both parents. Further, if the children are exposed to such conflict, there is a significant risk that they will experience psychological harm.
Further, on the material before the Court, if an equal time parenting arrangement continues, the Court is concerned that the children may be exposed to an increased risk of being subjected to denigration of the mother by the father and involvement in the parent’s dispute in particular at the instance of the father.
Each party has made allegations against the other of significant family violence, including verbal and physical abuse. In turn, each party make significant denials in this context. These allegations heighten the Court’s concerns in relation to the risk of harm to the children with any continuation of the equal time parenting regime.
In relation to the Court’s concerns as to the continuation of the current equal time parenting arrangement, the Court has also taken into account the comments of the father to the Family Report writer that the current arrangements are not working for the children, inter alia, because “there is no stability for them because they don’t know where they are coming and going.”
There is a significant suggestion on the material before the Court, that these parties’ ability to adequately co-parent these children in an equal time parenting arrangement is adversely compromised by, inter alia, their inability to effectively communicate with each other, and lack of trust towards each other.
There is a significant suggestion on the material before the Court, without proceeding to make any finding of fact, that the mother has been the primary carer of these children at least during the parties’ relationship, with the father making significant contributions towards their care.
The above risks can be minimised and addressed by the children spending time with the father in accordance with the proposed orders of the ICL (subject to the Court’s discussion below relating to school holidays).
Such proposed orders of the ICL (again, subject to the Court’s discussion below relating to school holidays) includes orders that the children spend 4 nights each fortnight with the father during school term times, together with equal time with each parent during school holidays. The Court is of the view, taking into account the material before the Court, including the Family Report, that there should be no significant detrimental effect upon the children’s meaningful relationship with the father should they be subject to such a parenting arrangement. In this context, the Court has not overlooked the children’s living with the parents in the former matrimonial home until fairly recently, and the Court’s orders of 26 August 2019 relating to the equal time parenting arrangement. As to the ICL proposing 4 nights each fortnight during school term time, between the children and the father, the Court recognises that this is one extra fortnightly night beyond the three nights each fortnight recommendation of the Family Report writer. However the Court is of the view that the ICL’s proposal in this regard both addresses the protection of the children from the above risks, and, taking into account, inter alia, the children’s previous equal time spent with each parent, minimises any risk of their meaningful relationship with the father being detrimentally affected.
In relation to the above matters, the Court has taken into account the material before the Court. Such material includes the family report, whilst acknowledging again that the family report remains untested.
The Court gives significant weight to this need to protect primary consideration.
Relevant additional considerations
The Court has taken into account the views of these young children in relation to spending time with the father, whilst also taking the account the qualifying opinions of the Family Report writer in relation to their views.
The mother and the ICL seek an interim order restraining the father from permitting or allowing the children to have any contact with the paternal grandmother’s former partner Mr C. The father opposes the making of such an order. The Court refers to the mother’s allegations relating to this person. The Court refers to the Family Report in this context. The Court does have concerns in relation to the children being exposed to contact with this person. It will be in the best interests of the children that the ICL’s proposed restraining order be made.
The parties consent to the ICL’s proposed restraining order relating to the mother’s alleged former partner Mr B. In this context, the Court takes into account, inter alia, the mother’s very recent evidence that she has terminated her relationship with this gentleman.
As to the children’s time with each parent during the school holidays, taking into account the mother’s assertions that during December, she cannot take time off work because it is a blocked out period, and that she can only take holidays after mid-January, which is what she usually does each year, it will be in the best interests of the children, and so as to maintain their meaningful relationship with the mother, that they spend the second half of the long summer NSW school holidays with the mother, and the first half with the father.
As to the children’s time with each parent during the shorter school holidays, it will be in the best interests of the children that they spend the first half with the mother and the second half with the father in odd years, and in even years, that they spend the first half with the father and the second half with the mother.
The Court has not overlooked that the mother told the Family Report writer, inter alia, that she wished the orders of 26 August 2019 be made into the final orders, however the Court refers to its discussions above, including its concerns in relation to the continuation of the current equal time parenting regime.
Based on all the material before the Court, including the Family Report, it will be in the best interests of the children that the Court make the ICL’s proposed orders relating to the parties completing a taking responsibility course; that the father attend counselling (proposed orders 16 and 17 of the ICL); and that the children attend counselling for emotional support and to assist them to develop coping skills such as may be offered through the Anchor Program.
The children’s positive relationship with their grandparents should not be detrimentally affected should the Court make the proposed orders of the ICL, as discussed above.
It would appear that both parties have the capacity to provide for the children’s needs, subject to the Court’s concerns as discussed above under the need to protect primary consideration.
Both parties would appear to have demonstrated satisfactory attitudes towards the children and the responsibilities of parenthood, again, subject to the Court’s discussion above under the need to protect primary consideration.
In relation to parental responsibility, it will be in the best interests of the children that the Court make the ICL’s proposed order that the mother have sole parental responsibility in respect to the children’s schooling at this interim stage. In this context, the Court has taken into account the discussions and recommendations of the Family Report writer, and noting that the eldest child has experienced a change of schooling. At this interim stage, the Court has a significant concern that these parties will not be able to reach agreement in relation to major decisions as to the children’s schooling in a timely fashion (and in this regard the Court refers to its discussions under the need to protect primary consideration), and taking into account the significant suggestion that the mother has been the children’s primary carer at least during the parties’ relationship, it will again be in the children’s best interests that the mother have such sole parental responsibility.
Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the children to make the following orders:
That the children of the marriage namely X born in 2008 and Y born in 2011 live with the mother.
That the children spend time with the father as follows:-
2.1. During school terms each alternate week from the conclusion of school on Friday until the commencement of school on Tuesday with the father to collect the children from and deliver the children to their respective schools in order to give effect to this order;
2.2. The children are to spend the first half of the long summer NSW school holidays with the father and the second half with the mother;
2.3. For the shorter NSW school holidays, the children are to spend the first half with the mother and the second half with the father in odd years, and in even years, the children are to spend the first half of the holidays with the father and the second half with the mother;
2.4. In the event that Father’s Day falls on a weekend when the children would not otherwise be spending time with the father pursuant to these orders the children are to spend from 9.00am to 5.00pm on Father’s Day with the father;
2.5. .Should mother’s day fall on a weekend when the children would be spending time with the father pursuant to these orders such time is to be suspended from 9.00am to 5.00pm on mother’s day;
2.6. During the Christmas period by agreement between the parties.
2.7. During the Diwali period by agreement between the parties; and
2.8. Or as otherwise agreed to by the parties.
In order to give effect to the above orders all changeovers are to take place at the children’s schools where this is possible otherwise they shall be at a public venue as agreed to by the parties in writing and in the absence of such agreement at McDonalds at Suburb A.
That each parent shall have reasonable telephone communications with the children during any periods that the children are in the other parents care and that each parent is to facilitate the children in having such telephone communications with the other parent.
That the mother have sole parental responsibility in respect to the children’s schooling.
That WITHOUT ADMISSION the mother and the father be restrained from the following:-
6.1. Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the Mother, the father or any other member of either party’s household;
6.2. Physically disciplining the children;
6.3. Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.
6.4. Conveying messages through the children and or using the children as a go-between to convey messages to each other;
6.5. Discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so;
6.6. Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings.
6.7. Being under the influence of alcohol in the presence of the children or whilst the children are in his or her care and;
6.8. Bringing the children into contact with any person under the influence of illicit drugs or alcohol in excess.
That the mother be restrained from permitting or authorising her partner Mr B from having any contact with the children except as follows:-
7.1. All such contact is to be supervised by and in the presence of the mother.
7.2. The mother is to only permit such contact initially for short periods;
7.3. Mr B is not to sleep overnight during any periods when the children are living with the mother.
7.4. The mother shall follow the guidance of the children’s counsellor (referred to later in these orders) when allowing or extending her partners contact with the children.
That the father be restrained from permitting or allowing the children to have any contact with the paternal grandmother’s former partner Mr C or from authorising or permitting any third party from doing so.
That the parents are to each ensure that the children attend school on each and every day on which NSW school children are expected to do so on days when each of the children are in such party’s care and control.
10. In the event that the children or either of the children cannot attend school for reasons of ill-health, the parent in whose care such child or children are in provide to the children’s school and to the other parent a copy of a medical certificate, being the same date as such child or children’s absence.
11. That the mother and the father keep each other advised in a timely manner in respect to all significant decisions in respect to the children’s lives and in particular relating to their health and medical needs and schooling.
12. In the event that either child shall suffer any injury, be hospitalised or suffer any significant illness the parent in whose care the children are in at the time shall notify the other parent immediately except in the case of an emergency where they shall do so as soon as is reasonably practicable.
13. That the mother and the father shall each be entitled to enrol the children in and take the children to any extracurricular activities during any periods whilst the children are in such parents care pursuant to these orders.
14. That each of the parents shall be entitled to attend upon any school functions of the children that parents normally attend.
15. That the parents are to forthwith enrol in and complete a taking responsibility course such as offered by D Family Services or E Family Services and provide evidence that they have enrolled in such courses to each other’s legal representatives and to the Independent Children’s Lawyer.
16. That the father attend counselling with an appropriately experienced clinician in order to assist him to gain insight into his behaviour and to moderate his attitudes particularly focusing on the impact of his behaviour on the emotional and psychological well-being of the children.
17. That the father is to provide the name and contact details of his treating counwsellor referred to in the preceding order to the mother’s legal representative and to the Independent Children’s Lawyer.
18. That the mother is to forthwith arrange for the children to attend counselling for emotional support and to assist them to develop coping skills such as may be offered through the Anchor Program.
19. That the parents keep each other advised as to their respective residential addresses and contact details.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 11 December 2019
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