FAMILY COURT OF AUSTRALIA
| SEAVER & SEAVER | [2015] FamCA 194 |
| FAMILY LAW – CHILDREN – Interlocutory Application – where in the interim it was ordered that the children be placed in the care of the father and spend no time with the mother, pending the delivery of these Reasons for judgment FAMILY LAW – CHILDREN – Best Interests – Where the children have important relationships with the mother and maternal grandparents – where the children have, despite everything, a warm and affectionate relationship with the father – where the children react very differently with each parent in the absence of the other – where the children are likely to be upset and confused by the separation from the mother – where the evidence demonstrates that the children were at risk of harm of emotional abuse from continued questioning by the mother and discussion around the possibility of physical and sexual abuse of them by the father – where the likely effect of the change into the father’s care is relief from that kind of pressure – where the father has the capacity to meet the children’s intellectual, physical and emotional needs – where the capacity of the mother is squarely in issue – where the mother has shown little or no insight into the impact on the children of what she has done – where the allegations raised by the mother are not confirmed by the family general practitioner and are in stark contrast to the supervisor’s notes, taken when the children were spending supervised time with the father – where the mother’s current presentation and level of functioning is of much concern to both the Family Consultant and JIRT – where the mother presently has a reduced capacity to meet the needs of the children – where the children should continue to live with the father – where the Family Consultant’s recommendation for a complete break between the children and the mother is an appropriate one – mother restrained from spending time with or contacting the children for three months – after that period, children to have telephone contact with the mother two times per week – thereafter for 12 months, the children spend time with the mother, supervised, for not less than two hours per fortnight and following, for not less than supervised monthly visits outside a contact centre and as otherwise agreed FAMILY LAW – CHILDREN – Parental Responsibility – Where given the state of the parties’ relationship, the father should have sole parental responsibility, but with the obligation to engage with the mother when major issues are to be determined |
| Family Law Act 1975 (Cth), ss 60CC, 64B Moose & Moose (2008) FLC 93-375 |
| APPLICANT: | Mr Seaver |
| RESPONDENT: | Ms Seaver |
INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 3220 | of | 2013 |
| DATE DELIVERED: | 24 March 2015 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 9-13 February 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levick |
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- AGLC
- SEAVER & SEAVER [2015] FamCA 194
- Case
- [2015] FamCA 194
- Decision Date
CaseChat Overview and Summary
The court was required to determine the children's best interests, including where they should live and the extent of parental responsibility. Key issues included the impact of the mother's conduct on the children, the father's capacity to meet their needs, and the nature of the children's relationships with both parents and maternal grandparents. The court also had to consider the appropriateness of a recommendation for a complete break between the children and the mother.
In reaching its decision, the court applied the paramount principle of the children's best interests. It found that the children were at risk of emotional abuse from the mother's continued questioning and discussion of abuse allegations. The court noted the children's warm relationship with the father and their differing reactions to each parent in the other's absence. The father was found to have the capacity to meet the children's needs, while the mother's capacity was in question due to her lack of insight into the impact of her actions and the unconfirmed nature of her allegations. The court accepted the Family Consultant's recommendation for a significant period of no contact with the mother, followed by a gradual, supervised reintroduction of contact.
Consequently, the court ordered that the children live with the father and that he have sole parental responsibility, with an obligation to consult the mother on major decisions. The mother was restrained from spending time with or contacting the children for three months, after which limited supervised telephone contact was permitted. This was to be followed by supervised time at a contact centre for 12 months, and thereafter, supervised monthly visits. The court also imposed injunctions restraining denigration of either parent, discussion of proceedings with the children, using the children as messengers, and physical discipline. The children were permitted to travel internationally.
Orders
Orders of the court
1.
That the Application-Contravention of the father filed 7 July 2014 is dismissed.
2.
That all prior parenting orders in relation to B born … 2005 and C born … 2010 (“the children”) be and hereby are discharged.
3.
That the father have sole parental responsibility for the children.
4.
That the father shall, when any long term issue involving the children arises for decision, take the following steps:
(a) Inform the mother of the issue to be decided;
(b) Invite the mother to express her views on the matter within a nominated period of time;
(c) Give consideration to the views of the mother in coming to a decision; and
(d) Advise the mother of the decision taken.
5.
That the father shall do everything necessary for the children to participate in the “Seasons for Growth” programme in due course.
Residence
6.
That the children shall live with the father.
Time and Communication
7.
That the mother is restrained by injunction from spending time with the children for a period of three (3) months from the date of Interim Orders made 13 February 2015 (“Interim Orders”) (13 May 2015).
8.
That within one (1) month, the father shall advise the mother in writing of a telephone number on which she can call the children pursuant to Order 9 herein.
9.
That after two (2) months from the date of the Interim Orders, the children shall have telephone contact with the mother each week on Tuesday and Thursday at a time between 6:30 pm and 7:00 pm, with the mother to initiate the call to the number provided by the father pursuant to Order 8 hereof, and the father to make the children available to receive the call NOTING that the father may listen to the call on loudspeaker and terminate the call if the children become upset and/or the mother questions the children about any of the issues arising from these proceedings.
10.
That at the conclusion of Order 7 hereof, and for a period of 12 months, the children shall spend supervised time with the mother at the Region D Children’s Contact Centre (“the Contact Centre”) at such time as designated by the Contact Centre but for not less than two hours each fortnight, and the mother is otherwise restrained by injunction from spending time with or contacting the children other than in accordance with these Orders NOTING that the maternal grandparents may attend at the Contact Centre provided prior notice is given to the Contact Centre.
11.
That to facilitate Order 10 hereof, each party shall:
(a) Contact the Contact Centre within seven (7) days of this Order and arrange an appointment for assessment for suitability for supervision of time the children spend with the mother;
(b) Attend the assessment; and
(c) Comply with any appointments made by the Contact Centre for supervised time.
12.
That should the Contact Centre referred to in Order 10 hereof be unavailable for any reason, the mother shall, during the period of unavailability, spend supervised time with the children each alternate Saturday for not more than three (3) hours at a location and time to be specified by an officer of E Org.
13.
That to facilitate Order 12 above, each party shall:
(a) Contact E Org within 48 hours of becoming aware of the unavailability of the Contact Centre and arrange an appointment for assessment for suitability for supervision of time the children spend with the mother;
(b) Comply with any appointments made by E Org for supervised time;
(c) Comply with all reasonable rules of E Org; and
(d) Comply with all reasonable requests and directions of the staff of E Org.
14.
That to facilitate time in accordance with Order 12 above, the father or his nominee shall cause the delivery of the children to the Contact Centre or location as nominated by an officer of E Org at the commencement of the supervised time and cause the collection of the children from the Contact Centre or location as nominated by an officer of E Org at the conclusion of the time.
15.
That the mother shall be responsible for all costs associated with supervision.
16.
That at the conclusion of Order 10 hereof, the children shall spend time with the mother not less than once per month for a period up to eight (8) hours, supervised through E Org and at such other and/or additional times, supervised or unsupervised, as agreed between the parties.
Restraints
17.
That each party be restrained by injunction from:
(a) Denigrating the other party or members of the other party’s family to the children or in the presence or hearing of the children, or causing or permitting any other person to do so;
(b) Discussing these proceedings with or in the presence or hearing of the children or showing to the children any document connected with these proceedings;
(c) Using the children to pass any message between the parents; and
(d) Physically disciplining the children.
18.
That the Independent Children’s Lawyer shall provide a copy of these Orders to F School and G Early Learning Centre within 24 hours of these Orders being made.
19.
That in the event that the mother consults a psychiatrist or clinical psychologist in relation to her own mental health, she has leave to provide to that treating professional copies of the following:
(a) The Magellan Report dated 2 September 2014;
(b) The Magellan Family Report of Ms H dated 24 November 2014;
(c) The Addendum to the Magellan Family Report of Ms H dated 11 December 2014; and
(d) A copy of:
(i) these Orders and Reasons for judgment; and
(ii) Orders of 13 February 2015 and Ex Tempore Reasons.
Travel and Passports
20.
IT IS DIRECTED that a Registrar of this Court shall after 42 days from the date of these Orders provide:
(a) To the father in person, the passports for the children presently held by the Court; and
(b) To the mother in person her own passport presently held by the Court.
21.
The Court requests that the Australian Federal Police remove the names of the children B, male, date of birth … 2005 and C, female, date of birth … 2010, from the Airport Watch List at all points of international arrivals and departures in Australia.
22.
That the mother is restrained from applying for a passport in the name of or including any of the children B, male, date of birth … 2005 and C, female, date of birth … 2010.
23.
That the children are permitted to travel internationally.
24.
The Manager of the Family Court of Australia shall provide a copy of these Orders to the Department of Foreign Affairs.
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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