Sewin and Cheals

Case [2018] FCCA 3244


FEDERAL CIRCUIT COURT OF AUSTRALIA

SEWIN & CHEALS [2018] FCCA 3244
Catchwords:
FAMILY LAW – Parenting – allegations of family violence – the parties’ inability to communicate or arrange any time between the children and their father – where the mother resides in refuge accommodation – consideration of the child’s bonding and attachment to his parents, siblings and to his paternal grandmother.

Legislation:

Family Law Act 1975, ss.60B, 60C, 60CA, 60CC, 61C, 61DA, 69ZX, 67ZBB

Evidence Act 1995

Cases cited:

SS & AH [2010] FamCAFC 13

Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No.2) [2010] FamCAFC 101
Salah & Salah [2016] FamCAFC 100
Jones & Dunkel (1959) 101 CLR 298
Amador & Amador (2009) 43 Fam LR 268
Johns & Jasapas [2016] FamCA 471
Harridge & Harridge [2010] FamCA 445
Burton & Churchin & Anor [2013] FamCAFC 180
Archbold & Archbold (1984) FLC 91-532
Simic and Norton [2017] FamCA 1007

Other articles:

Family Violence Committee, Family Violence Best Practice Principles (December 2015, Edition 3.2)

Applicant: MS SEWIN
Respondent: MR CHEALS
File Number: PAC 4193 of 2018
Judgment of: Judge Harman
Hearing date: 22 October 2018
Date of Last Submission: 22 October 2018
Delivered at: Parramatta
Delivered on: 22 October 2018

REPRESENTATION

Solicitors for the Applicant: Ms Zhang of Oakwise Lawyers
Solicitors for the Respondent: Ms Bridge of Brighton Lawyers

ORDERS

  1. Pending further Order, the children, [X] born 2014 and [Y] born 2016, shall live with the mother.

  2. [X] and [Y] shall spend time with their father:

    (a)Each Wednesday from 10am until 5pm;

    (b)Each weekend from 10am Saturday until 5pm Sunday.

  3. For the purpose of changeover:

    (a)The parents shall each forthwith and within 7 days contact the Town A Contact Service, with a view to arranging and attending the first available and offered intake appointment to use that service for supervised changeovers (and if accepted and available, changeovers shall occur at such times as the service can facilitate);

    (b)Until such time as the contact centre may be able to provide assistance, the parents shall meet at Town A Library, Town A Civic Centre.

  4. Pending further Order, each parent shall do all things, sign all documents, give all consents, authorities and instructions as are necessary to enable each parent to be recorded as a parent and emergency contact person with any day care centre attended by the children or either of them, and further:

    (a)The day care centre is to be provided by each parent with a copy of this Order;

    (b)The day care centre requested to ensure that they do not allow inspection of their records or release of information to either parent that would disclose any personal information provided by the other parent, including but not limited to their address;

    (c)Neither parent shall attend at nor remove the children from the day care centre, save in accordance with these Orders, or for the purpose of attending events at the day care centre to which parents are invited or encouraged to participate.

  5. Pending further Order, the Applicant, MS SEWIN…

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Details
AGLC
Sewin and Cheals [2018] FCCA 3244
Case
[2018] FCCA 3244
Decision Date

CaseChat Overview and Summary

In this matter before Judge Harman, the applicant, Ms Sewin, and the respondent, Mr Cheals, sought orders concerning their two children, [X] and [Y]. The dispute primarily concerned the living arrangements and time spent with the children, as well as preventing their removal from Australia.

The court was required to determine the primary residence of the children, the schedule for their time with the non-resident parent, and to implement measures to prevent the children from being taken out of the Commonwealth of Australia. Additionally, the court considered the need for supervised changeovers, the involvement of day care centres, and the parties' participation in family counselling.

The court ordered that the children shall live with the mother, with specific provisions for the father to spend time with them each Wednesday and on alternate weekends. To facilitate safe changeovers, the parents were directed to engage a contact service or, failing that, to meet at the Town A Library. Crucially, both parents were restrained from removing the children from Australia, with the Marshal of the Federal Circuit Court and officers of the Australian Federal Police requested to give effect to these orders, including placing the children's names on the Airport Watch List. The court also mandated that both parents attend family counselling, with the counsellor to advise the court if the service is deemed inappropriate or declined. The matter was adjourned for further mention and directions to enable the parties to engage with the orders and prepare for finalisation.

Orders

Orders of the court

1.

Pending further Order, the children, [X] born 2014 and [Y] born 2016, shall live with the mother.

2.

[X] and [Y] shall spend time with their father:

(a) Each Wednesday from 10am until 5pm;

(b) Each weekend from 10am Saturday until 5pm Sunday.

3.

For the purpose of changeover:

(a) The parents shall each forthwith and within 7 days contact the Town A Contact Service, with a view to arranging and attending the first available and offered intake appointment to use that service for supervised changeovers (and if accepted and available, changeovers shall occur at such times as the service can facilitate);

(b) Until such time as the contact centre may be able to provide assistance, the parents shall meet at Town A Library, Town A Civic Centre.

4.

Pending further Order, each parent shall do all things, sign all documents, give all consents, authorities and instructions as are necessary to enable each parent to be recorded as a parent and emergency contact person with any day care centre attended by the children or either of them, and further:

(a) The day care centre is to be provided by each parent with a copy of this Order;

(b) The day care centre requested to ensure that they do not allow inspection of their records or release of information to either parent that would disclose any personal information provided by the other parent, including but not limited to their address;

(c) Neither parent shall attend at nor remove the children from the day care centre, save in accordance with these Orders, or for the purpose of attending events at the day care centre to which parents are invited or encouraged to participate.

5.

Pending further Order, the Applicant, MS SEWIN born 1984 (female), and the Respondent, MR CHEALS born 1989 (male), by themselves, their servants or their agents are restrained from removing or attempting to remove the children, [X] born 2014 (male) and [Y] born 2016 (female), from the Commonwealth of Australia.

6.

Pending further Order, the Marshal of the Federal Circuit Court of Australia and all Officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.

7.

Pending further Order, the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s name on the Airport Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.

8.

The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.

9.

The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these Orders.

10.

The matter is adjourned for further mention and directions to 1 February 2019 at 9.30am.

11.

THE COURT NOTES THAT the purpose of the adjournment is to enable the parties to engage with the above Orders and discuss and settle a minute as to what is required to advance the matter to finality, including commissioning of evidence (by way of Part 15 Report in parenting proceedings or valuations in the property proceedings) filing trial Affidavits or any other step,

12.

Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia Town A for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:

(a) Attend at such times, dates and places as may be advised; and

(b) Pay such fees as may be charged;

to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.

13.

In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.

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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