SEARES & SEARES - [2020] FamCA 959

FAMILY COURT OF AUSTRALIA

SEARES & SEARES

[2020] FamCA 959

FAMILY LAW – CHILDREN – With whom a child spends time – Family violence – Where the mother seeks that the children remain living with her and spend time once monthly with the father supervised at a contact centre – Where the father seeks that the children spend gradually increasing unsupervised time with him such that they live in an equal shared care arrangement after four months – Where the father perpetrated family violence against the mother and exposed the children to it – Where the father’s commitment to maintaining an ongoing relationship with the children is questionable – Where the father will continue to spend supervised time with the children at a community contact centre for two hours a fortnight until he has completed certain courses – Where the father will not spend any face to face time with the children without further order or agreement if he cancels or fails to attend any scheduled session at the contact centre within the first three months, except in cases of genuine medical emergency – Where if the father has complied with the orders he will commence spending gradually increasing unsupervised time with the children such that they eventually spend each alternate weekend with him.

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the wife seeks a property adjustment order which sees her receive all the funds held in a solicitor’s trust account from the proceeds of sale of the former matrimonial home and a $20,000 ‘split’ of the husband’s superannuation – Where the husband seeks 50% of the net pool of property – Where the contributions are assessed as 67.5% to the wife and 32.5% to the husband and a further adjustment of 10% in the wife’s favour is appropriate.

Family Law Act 1975 (Cth)

Doherty & Doherty [2016] FamCAFC 182
Furnari & Furnari [1998] FamCA 171
Ward & Schembri (2005) FLC 93-229

APPLICANT:

Ms Clyde (formerly Seares)

RESPONDENT:

Mr Seares

INDEPENDENT CHILDREN’S LAWYER:

Amanda Smerdon

FILE NUMBER:

BRC

5047

2016

DATE DELIVERED:

19 November 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

29 & 30 June and 1 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Fraser

SOLICITOR FOR THE APPLICANT:

Hartley Healy

COUNSEL FOR THE RESPONDENT:

Ms Chekirova

SOLICITOR FOR THE RESPONDENT:

A P Hodgson & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Smerdon

Legal Aid Queensland

Orders

Parenting

That all previous parenting orders and notations be discharged.
That the children, X born … 2012 and Y born … 2012, (“the children”) shall live with the mother.
That the children shall be known for all purposes as X and Y and the parties shall do all things necessary, if they have not done so already, to ensure that the details of the registration of the births of the children contained with the Queensland Registry of Births, Deaths and Marriages…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SEARES & SEARES

Details

AGLC: SEARES & SEARES [2020] FamCA 959
Case: [2020] FamCA 959
Decision Date: 19 November 2020

CaseChat Overview and Summary

The case of *Seares & Seares* concerned parenting and property settlement disputes between the parents of two children, X and Y. The mother sought orders for the children to live with her and have limited supervised contact with the father, while the father sought an equal shared care arrangement. In relation to property, the wife sought a specific division of funds and superannuation, whereas the husband sought an equal split of the net property pool.

The court was required to determine the parenting arrangements for the children, specifically whether they should live with the mother and the nature and extent of the father's time with them, considering allegations of family violence perpetrated by the father against the mother and exposure of the children to this violence. Additionally, the court had to decide on the just and equitable distribution of the parties' property, assessing their respective contributions and other relevant factors.

Forrest J ordered that the children, X and Y, shall live with the mother. The father was to have supervised time with the children at a contact centre, with a phased introduction of gradually increasing unsupervised time, contingent on his completion of specified courses and compliance with the orders. The court also made orders regarding parental responsibility, communication, and the father's attendance at programs addressing domestic and family violence. In the property settlement, the court found the wife's contributions to be 67.5% and the husband's to be 32.5%, with a further adjustment of 10% in the wife's favour, reflecting a just and equitable outcome.

Orders

Orders of the court

Parenting

That all previous parenting orders and notations be discharged.

That the children, X born … 2012 and Y born … 2012, (“the children”) shall live with the mother.

That the children shall be known for all purposes as X and Y and the parties shall do all things necessary, if they have not done so already, to ensure that the details of the registration of the births of the children contained with the Queensland Registry of Births, Deaths and Marriages are formally amended to reflect the fact that the children’s last name is CLYDE-SEARES.

Parental responsibility

That the parents shall have equal shared parental responsibility for any change to the children’s names and any decision about moving the children’s residence to a location that makes their spending time with the father pursuant to these Orders significantly more difficult.

That aside from the matters referred to in Order 4, the mother shall have sole parental responsibility for the children, save for that, except in case of emergency, prior to making a decision about a major long-term issue in respect of the children (as that term is defined in s 4 of the Family Law Act 1975 (Cth)), the mother shall:

(a) notify the father in writing as far in advance as possible of the decision to be made, of her proposed decision and reason/s for this, provide a timeframe in which she intends to make the proposed decision, and state a timeframe in which the father would need to respond to her if he wished to do so;

(b) permit the father to respond to her in writing within her stated timeframe with any input he wishes to have to the decision and the reason/s for this; and

(c) consider any input and reason/s advised by the father, with respect to the children’s best interests, before notifying the father in writing of her ultimate decision and reason/s for this, noting that she will ultimately have the sole responsibility for making any such decision.

That in the event that the mother is required to make an emergency decision about a major long-term issue regarding the children, the mother shall provide written notice of her decision and reason/s for this to the father as soon as practicable thereafter.

Spend time and communicate with

That the father is at liberty to have his elder daughter Z present during any supervised time that the children spend with him pursuant to these Orders.

That unless otherwise agreed in writing between the parents, save for when occurring at the children’s school pursuant to these Orders, all changeovers for the children’s time with the father shall take place at a community based, non-commercial children’s contact service and be supervised by that service and such service shall be selected by the mother and advised by her to the father, in writing, within two weeks of the date of these Orders.

That all fees charged by any such children’s contact service shall be paid for by the father.

10.

That the parents shall each keep the selected children’s contact service informed of their respective emergency contact telephone number and an email address to be contacted on and each parent shall take all necessary steps reasonably required of them by the children’s contact service so that supervised changeover can be maintained and facilitated.

11.

That the children shall such spend time and communicate with the father as agreed between the parties in writing, and otherwise as follows:

(a) for the first three months following the actual commencement of the use of a community based, non-commercial children’s contact service after the date of these Orders, for one visit of up to two hours per fortnight, supervised at that children’s contact service referred to in Order 8, at times as can be accommodated by the service and arranged between the parents and the service;

(b) once the time in Order 11(a) above has occurred and the father has satisfied the provisions of Orders 34 and 35, time on each alternate weekend for another three months, being day visits from 9.00 am until 12.00 pm on each Saturday and Sunday (ie six alternate weekends comprising 12 separate visits);

(c) once the time in Order 11(b) above has occurred, time on each alternate weekend for another three months, being day visits from 9.00 am until 4.00 pm on each of Saturday and Sunday (ie six alternate weekends comprising 12 separate visits);

(d) once the time in Order 11(c) above has occurred and provided the father has met the requirements of Orders 30, 34 and 35 (or as otherwise agreed between the parents specifically regarding the timeframe for completion of the course or program), time on each alternate weekend for another three months, from 9.00 am Saturday until 5.00 pm on Sunday;

(e) once the time in Order 11(d) above has occurred, then for time on each alternate weekend, from 5.00 pm on Friday until 5.00 pm on Sunday;

(f) until the period of 12 months following actual commencement of the children’s time with the father after the date of these Orders has elapsed, communication on special days, being, Christmas Day 2020, Father’s Day 2021 and the children’s birthdays in 2021, by way of a telephone call between the children and father as initiated by the father to the children between 7.00 am – 7.30 am, unless otherwise agreed between the parents;

(g) once the period of 12 months after the actual commencement of the children’s time with the father after the date of these Orders has elapsed and provided Order 12 has not been enlivened, then as follows;

(i) during school holidays, for a week in each of the children’s end of Terms 1, 2 and 3 holidays, being the first week in even numbered years and the second week in odd numbered years, and for two consecutive weeks during the Summer (December/January) school holidays being the first fortnight in December in even numbered years and the second fortnight in alternate years, with changeovers at school on school days;

(ii) notwithstanding any other Order, for Christmas, in even numbered years from 2.00 pm on 24 December until 10.00 am on 25 December and in odd numbered years from 10.00 am on 25 December until 2.00 pm on 26 December (the children to be with the mother in even numbered years from 10.00 am on 25 December until 2.00 pm on 26 December and in odd numbered years from 2.00 pm on 24 December until 10.00 am on 25 December);

(iii) on Father’s Day, if not already spending that weekend with the father, from after school on Friday of that weekend (3.00 pm if a non-school day) until 5.00 pm on Sunday, with changeover on Friday at school, without causing any suspension or variation to the alternate weekend routine otherwise in place;

(iv) on the children’s birthday’s each year, if not already spending time with the father on that day, by telephone, with the father to initiate the call to the children between 7.00 am – 7.30 am;

(v) the father is at liberty to attend at student functions and events at the children’s school that parents are welcome to attend, but he is not to remove the children from their school and neither parent is to approach the other parent on school grounds or in the vicinity of the school.

12.

That once the fortnightly supervised visits provided for in Order 11(a) commence, should the father cancel or otherwise not attend any of the visits during the first three month period, aside from circumstances where he is involved in a serious medical emergency that prevents him from attending, the children shall not spend further face to face time with the father without a further order of the Court or written agreement between the parents and they shall instead communicate with him by telephone (pursuant to Order 15) and in writing, with the father and children at liberty to send each other letters, photographs and gifts.

13.

That should the father be unable to attend a visit as referred to in Order 11(a) for the reason of a serious medical emergency, he shall produce to the mother within seven days of cancelling the visit, a letter from his treating medical practitioner which outlines the details of the medical emergency and how long he was/is incapacitated for.

14.

That if the father will be communicating with the children in writing pursuant to Order 12, the mother shall advise the father of a contact address where he can send the children written correspondence, photos or gifts.

15.

That the children shall have telephone communication with the parent they are not in the care of at 6.00 pm on each Wednesday, and on the children’s birthdays, with the parent who does not have the children in their care initiating calls to the children on a telephone number to be provided by the other parent for this purpose and the parent with the care of the child shall ensure that the children are available to receive the calls and that they participate in the calls.

16.

That if Order 12 has taken effect and the father is not spending face to face time with the children, the children shall continue to communicate with him on special days, being Father’s Day, Christmas Day and the children’s birthdays, by way of a telephone call between the children and father as initiated by the father to the children between 7.00 am – 7.30 am, unless otherwise agreed between the parents in writing.

17.

That notwithstanding any other Order, should Mother’s Day fall on a weekend when the children would otherwise be spending time with the father the children shall stay with the mother for that weekend without causing any suspension or variation to the alternate weekend routine otherwise in place;

18.

That for the purposes of these orders, the children’s school holidays are on dates provided for in the Queensland Government Gazette, and the school holidays are deemed to start after school on the last day of the ending term and to end at 3.00 pm on the last non-school day before the new term begins and the half way point shall be calculated by the number of nights in each school holiday period, with changeover at 3.00 pm on the middle date, but if an uneven number of nights then the parents shall alternate retaining the children in their care for that night with the mother to have the first of any such night.

19.

That at the start of any time the children spend with the father, the mother shall provide to the father any medications that have been prescribed for the children or prescriptions to be filled during that time which she considers the children will need during a visit, as well as written instructions for the administration and use of the medication, and the father shall return any unused medication and prescriptions to the mother at the end of the children’s time with him.

20.

That the mother shall use her best endeavours to:

(a) facilitate time for the children’s two elder half-sisters, W and Z, with each other (ie time for W and Z together); and to

(b) facilitate time for the children with Z when the children are not in the father’s care.

Injunctions, notice provisions and authorities

21.

That the father shall not consume or be under the influence of alcohol at any time whilst the children are in his care.

22.

That neither parent shall use or be under the influence of illegal or illicit drugs at any time the children are in their respective care.

23.

That neither parent shall denigrate the other to or in the presence or hearing of the children nor expose the children to any negative views held by either parent of the other.

24.

That neither parent shall use physical punishment on the children at all, and each parent shall use their best endeavours to ensure that no other person uses physical punishment on the children at all.

25.

That each parent shall use his and her best endeavours to follow any directions given by the children’s treating medical and allied health practitioners in relation to behaviour management techniques.

26.

That the mother shall keep the father informed in writing about the following matters:

(a) the name of the treating general medical practitioner and any specialist and allied health professional on whom the children attend; and

(b) the name of the school at which the children attend.

27.

That should either child suffer any serious accident or illness, then the parent with the care of the children at that time must notify the other parent as soon as practicable by telephone and by text message of the particulars of the accident or illness including advising of the name and location of any treating hospital.

28.

That the father is at liberty to and these Orders authorise the father to contact the children’s school and any treating medical practitioner, specialist or allied health professional about the children and for him to discuss the children with such practitioner and to request to be provided with (at the father’s own expense if any) information about the children including written documents the practitioner or professional is lawfully able to provide.

29.

That the parents shall communicate about parenting matters to do with the children in writing by email or text message, and each parent must keep the other informed at all times of an email address and mobile telephone number to be used only for the purposes of giving effect to these Orders, however in the event either parent forms the view that parent communication is becoming conflict-ridden then the parent forming that view shall advise the other of that by email and thereafter the parents shall commence to use an on-line parent communication tool selected by the parent forming the view, such as “Our Children Australia” or “Toppako”, with each parent to pay any fee associated with their own use.

30.

That prior to the children commencing to spend overnight time with the father pursuant to these Orders, the father shall advise the mother in writing of the residential address at which the children will be accommodated by him and details of any third person who may be sharing that residence whilst the children are staying there.

31.

That the mother shall not bring the children into the vicinity of or contact with the male person who is named as the Respondent to the Protection Order made by the Suburb B Magistrates Court on 5 November 2019 which names the mother as Aggrieved and the children as persons protected.

Counselling and other support

32.

That, if she has not already done so, the mother shall use her best endeavours to seek the paediatric assessment of each of the children for any biological or behavioural disorders, and the mother shall keep the father informed of the details of any appointments made and shall copy to the father or authorise the copying to him of any reports or assessments prepared as a consequence, with the father not to attend at appointments made by the mother but to be at liberty to make separate appointments for himself to attend on any practitioner pursuant to the assessment process, to discuss and to participate in the assessment as recommended by the practitioner (though the mother shall not be required to attend any joint appointment with the father).

33.

That the mother shall attend and complete a program or a course of counselling designed to educate and support her in regard to understanding and identification of domestic and family violence and the risks that domestic violence relationships pose to her safety and that of the children and how to plan for safety, and within two weeks of the date of these Orders the mother shall advise the Independent Children’s Lawyer in writing of the details of the service, program or course and of the commencement date for her attendance. She shall also advise the father and the ICL in writing when she has completed the course.

34.

That the father shall enrol in a another program or course of counselling designed to educate and support him in regard understanding and identification of domestic and family violence and the risks that domestic violence pose to the children’s safety (such as the Men’s Behaviour Change Program or other such program), and within two weeks of the date of these Orders the father shall advise the Independent Children’s Lawyer and the mother’s solicitor in writing of the details of the service, program or course and the commencement date for his attendance.

35.

That the father shall complete the program or course referred to in Order 34 and provide the mother and the Independent Children’s Lawyer with written evidence of completion as soon as he has completed it.

36.

That, regardless of whether they have already done one or not, the parents shall each also complete a Parenting Orders Program with a service such as Relationships Australia, Uniting Care or Centacare, and shall provide to the other and to the Independent Children’s Lawyer a copy of any Certificate issued by the service provider evidencing completion of the Program, within five days of receipt of such certificate.

37.

That the parents shall, within two weeks of the date of these Orders, contact the Parenting Orders Program Co-ordinator (or their nominee) at one of the providers referred to above for intake into such a program.

38.

That the parents shall comply with any reasonable direction of the Program Co-ordinator and in particular:

(a) attend as requested for the purposes of assessment as to whether they are suitable for participation in the said program;

(b) attend and participate in the program as requested including attending referrals to treating health professionals or the Triple P Program or any anger management program as recommended by the Program Co-ordinator (provided that either parent may refuse at their election to participate in joint sessions); and

(c) for the purposes of the program, a copy of these Orders and the Affidavit of Ms C filed on 25 February 2020 shall be provided by the parents to the Program Co-ordinator.

39.

That the Independent Children’s Lawyer is discharged at close of business on 30 June 2021.

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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