Sayles & Worman

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sayles & Worman [2022] FedCFamC1F 81

File number(s): SYC 7118 of 2016
Judgment of: BENNETT J
Date of judgment: 21 February 2022
Catchwords:

FAMILY LAW – PARENTING – long running parenting proceedings – high parental conflict coupled with parents’ respective limitations – where the children’s need for stability, predictability and the continued opportunity to engage in appropriate support during an important and vulnerable stage of their lives and development is crucial – where father did not participate in the proceedings at final hearing – where final orders made for mother to have sole parental responsibility.

FAMILY LAW – PRACTICE & PROCEDURE – where it was originally considered that final hearing must proceed as a full attended hearing but consequent on father’s lack of participation, matter proceeded by MSTeams.

Legislation:

Family Law Act 1975 (Cth)

Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)

Cases cited:

Doyle and Doyle (1992) FLC 81,947

R & R: Children's Wishes [2000] FamCA 43

Division: Division 1 First Instance
Number of paragraphs: 85
Date of hearing: 17 January 2022
Place: Melbourne (via MS Teams)
Counsel for the Applicant: No appearance
Counsel for the Respondent: Mr Blackah
Solicitor for the Respondent: Fay Rose Legal
Counsel for the Intervener: Mr Fermanis
Solicitor for the Intervener: Phillip A Wilkins & Associates

ORDERS

SYC 7118 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SAYLES

Applicant
AND:

MS WORMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

17 JANUARY 2022

THE COURT ORDERS THAT:

1.All prior parenting orders are discharged.

2.The mother shall have sole parental responsibility for the children X Sayles born in 2008 and Y Sayles Worman born in 2011 (“the children”).

3.The children shall live with the mother.

4.The children shall spend no time and have no communication with the father, save as otherwise agreed to by the mother in writing, with the mother to initiate any such time or communication.

5.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father Mr Sayles born in 1980, is restrained from and not permitted to knowingly contact, approach or attempt to contact or approach the mother or children or either of the children in any way, including through another person.

6.Order 5 contains injunctions made for the personal protection of the mother and the children, and section 68C of the Family Law Act 1975 applies so that the father may be arrested by a police officer without warrant in certain circumstances.

7.X Sayles born in 2008 and Y Sayles Worman born in 2011 are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to the said children. The mother shall be the only person with ‘parental responsibility’ of the said children for the purposes of applying for, and being issued with, an Australian passport for the said children.

8.The mother shall…

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Details
Case
[2022] FedCFamC1F 81
Decision Date

CaseChat Overview and Summary

The case of Sayles & Worman involves a dispute over parental responsibility between the father and the mother of two children, X and Y. The father, who has not been actively participating in the proceedings since the Family Dispute Resolution Conference on 29 July 2021, has ceased to act in the case. The mother, supported by the independent children's lawyer, seeks leave to proceed with her application for sole parental responsibility on an unopposed basis. The matter has been before the court for an extended period, with significant changes in the circumstances of both parents and the children.

The court was required to decide whether it was in the best interests of the children for the mother to have sole parental responsibility. This involved considering the father's lack of engagement in the proceedings, the mother's stability and ability to provide a supportive environment for the children, and the father's history of undermining the mother's relationship with the children. The court also needed to assess the impact of the father's attitude on the children's relationship with their primary carer, the mother.

The court found that the parents were unable to work together to make joint decisions for the children's long-term welfare. Any requirement for the mother to consult with the father would lead to undue delay or no decision being made at all, which would be contrary to the children's best interests. The court accepted the assessment of the child court expert, who concluded that the children's need for stability, predictability, and continued support was crucial. Given the father's corrosive impact on the children's relationship with the mother, the court determined that the negative impact on the children's relationship with the mother outweighed any potential benefit from the father's involvement. Consequently, the court made orders as sought by the mother and the independent children's lawyer, granting the mother sole parental responsibility.

The court provided the father with seven days from the publication of the reasons to seek to vary or set aside the orders. This decision recognises the father's right to challenge the outcome while ensuring that the children's best interests remain the paramount consideration.

Orders

Orders of the court

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Background

Background to the litigation

The father has not engaged in these proceedings since participating in the Family Dispute Resolution Conference on 29 July 2021. The last occasion upon which the father attended Court before me was in person on 17 February 2021. The father has not filed a document with the court since his affidavit of 12 August 2021, save for a Notice of Ceasing to Act which was filed on his behalf by his former solicitors on 24 October 2021. The father has written to the court saying that he will not participate. The mother seeks leave to proceed with her application for sole parental responsibility on an unopposed basis. Her application is supported by the independent children’s lawyer. These reasons provide the context within which I am satisfied that it is in the best interests of the children to make orders as sought by the mother and the independent children’s lawyer. Because the participating parties altered the orders they sought at the final hearing, I have provided that the father has seven (7) days from the publication of these reasons to seek to vary or set aside the orders. BACKGROUND The father is about to turn 42 years of age and resides at D Street, Suburb C New South Wales 53. The mother is 31 years old and resides at G Street, Suburb H, New South Wales. The father is employed as a tradesman and the mother as a health professional. The parents commenced their relationship in September 2007. X was born in 2008. The parents separated in September 2010. In 2011 Y was born. On 25 July 2011 the Federal Magistrates Court (as it was then known) made final parenting and property orders. The parenting orders permitted the father to spend four nights every four weeks with X and to have telephone contact with X for one hour every other night. The orders made no provision for the father to spent time or have contact with Y nor did the father much an application for same. In July 2015 X ceased spending time with the father. In February 2016 an ADVO was made by consent on a final basis for the protection of the Mother against the father. In June 2017 the mother was diagnosed with Bi-Polar disorder and severe depression. The mother was admitted to E Hospital following an incident in which she cut her wrists with scissors in May 2017. On 17 July 2018 Judge Monahan made final orders by consent which provided, inter alia, for the mother to have sole parental responsibility for the children and for the children to live with her. On 11 August 2018 the children spent supervised time with the father at J Services in Suburb K, New South Wales. Prior to 11 August 2018 the father had not spent time with X since June 2015. Y had not spent any time with the father prior. On 12 September 2018 Judge Monahan made parenting orders by consent which, inter alia, discharged prior parenting orders, ordered that the mother have sole parental responsibility in respect of the children and addressed the time X was to spend with the father during school holidays. The orders also restrained the father from consuming alcohol or illicit drugs and ordered the father to submit to random supervised drug screens. On 13 September 2018 Judge Monahan made further orders for the father to spend time with the children to gradually increase from supervised to unsupervised time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this case, and taking all of the above considerations into account, I am satisfied that the parents are unable to work together to make joint decisions for the children’s long term welfare. Any requirement that the mother consult with the father about an issue would, I am satisfied, lead to undue delay in decision making or no decision being made at all. That would be contrary to the children’s best interests, it is appropriate that the mother have sole parental responsibility for the children. CONCLUSION This matter has been before the court for a long time. The three assessments by the child court expert, dating from 2017 up until 2021, provide a valuable longitudinal assessment. In long running cases, families sometimes evolve in a positive sense and parents develop skills and gain insights which allow them to parent the children more effectively and positively than previously. This was not such a case. I accept the assessment of the child court expert in her most recent report that X’s and Y’s need for stability, predictability and the continued opportunity to engage in appropriate support during an important and vulnerable stage of their lives and development is crucial. Given the undermining and corrosive impact of the father’s attitude on X’s relationship with the mother, I am not satisfied that the benefit, and indeed enjoyment, which either child would experience by being in relationship with the father, outweighs the negative impact of the children’s’ relationship with the mother who is their primary carer. For the above reasons, I make orders as sought by the mother and Independent Children’s Lawyer. I am satisfied that this outcome is in the children’s’ best interests.

Ratio Decidendi

Legal Principle Established

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