Shamon & Shamon (No 9)

Case [2023] FedCFamC1F 586

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Shamon & Shamon (No 9) [2023] FedCFamC1F 586   

File number(s): SYC 2375 of 2021
Judgment of: CHRISTIE J
Date of judgment: 13 July 2023
Catchwords:  FAMILY LAW – CHILDREN – EX TEMPORE – INTERIM PARENTING ORDERS - Family therapy orders – Application for unsupervised time – Unacceptable risk - Where the older children have expressed that they do not want to see their father – Older children not being forced to undertake family therapy – The maturity and age of the child determining the weight given to their position - Where there are allegations of family violence by the father against the mother and children – Where the expert’s evidence cannot be tested at an interim hearing – Where the trial judge does not follow the Independent Children’s Lawyer’s Minutes of Order – Where the ADVO has been discharged – Where supervision may be protecting a positive relationship between the parent and child – Where the father has engaged a psychologist – Where the psychologist has written an affidavit on behalf of the parent – Where the treating psychologist has not had access to the evidence available to the court – Where evidence about father’s conduct in repeatedly attending at mother’s home uninvited is relevant – Where the relationship between parent and child is positive but unsupervised time is not indicated – Assessment of unacceptable risk at interim hearing – Where interim unsupervised time is unsuitable due to potential unknown outcomes at final hearing  
Legislation:  Family Law Act 1975 (Cth) ss 60CC, 60CG
Cases cited:

 Eaby & Speelman (2015) FLC 93-654

Goode and Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 34

Division: Division 1 First Instance
Number of paragraphs: 100
Date of hearing: 12 July 2023
Place: Sydney
Counsel for the Applicant: Mr Schonell
Solicitor for the Applicant: Barkus Doolan Winning
Counsel for the Respondent: Mr Harper
Solicitor for the Respondent: Lawbridge Legal And Mediation Services
Counsel for the Independent Children's Lawyer: Ms Shea
Solicitor for the Independent Children's Lawyer: Steiner Legal Pty Ltd

ORDERS

SYC 2375 of 2021

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

MR SHAMON

Applicant
AND:

MS SHAMON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CHRISTIE J

DATE OF ORDER:

13 JULY 2023

THE COURT ORDERS THAT:

1.The parties forthwith do all acts and things necessary to engage and thereafter attend upon Ms ZZ ("the family therapist").

2.Within 14 days from the date of these Orders, the parties shall do all acts and things to jointly instruct the family therapist, with the father to provide a draft joint instruction letter to the mother within 7 days, and the mother to provide any comments within a further 7 days.

3.For the purposes of instructing the family therapist, the parties agree that:

(a)The purposes of the Family Therapy is to:

(i)Support X born 2007 and Y born 2010 to re-establish their relationships with the father;

(ii)Assist the mother, father, X…

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AGLC
Shamon & Shamon (No 9) [2023] FedCFamC1F 586
Case
[2023] FedCFamC1F 586
Decision Date

CaseChat Overview and Summary

In the matter of Shamon & Shamon (No 9), the court addressed interim parenting orders concerning the three children of the separated parties. The primary dispute centred on the nature and extent of the father's contact with the children, specifically the youngest child, Z. The father sought a graduated regime for the reintroduction of unsupervised time with Z, while the mother opposed any unsupervised contact and sought to maintain the existing supervised contact arrangements. The Independent Children's Lawyer (ICL) took a cautious approach, advocating for a gradual increase in unsupervised contact, with overnight contact potentially starting in 2024.

The court had to determine whether to reinstate the previous interim orders that allowed for supervised contact during school term and holidays or to suspend those orders and implement a new supervised contact regime. The legal issues involved balancing the best interests of the children against the potential risks identified in the evidence presented. The court needed to weigh the father's argument for more unsupervised time against the mother's concerns for the children's safety and the ICL's cautious recommendation.

The court dismissed the father's application to reinstate the previous orders, acknowledging that while definitive findings might not be possible at this stage, evidence raising questions of risk could not be ignored. The court adopted a cautious approach, ordering supervised contact for two hours each week, with the possibility of increasing this over time based on the children's views and the supervised contact agency's assessment. The court also ordered family therapy for the older children, reflecting the agreed position of the parties and the ICL. This decision ensured that the children's welfare remained the paramount consideration, while allowing for a careful reassessment of contact arrangements as more evidence became available.

Orders

Orders of the court

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Background

Background to the litigation

The parties are awaiting a final hearing of their respective parenting applications and various interim orders have been made to provide for the children’s arrangements until the final hearing can be heard and determined.BACKGROUND The parents separated on 30 June 2020. Parenting proceedings were commenced by the father on 21 June 2021. The first orders governing the children’s arrangements were made on 9 September 2021. Those orders provided that the three children live with the mother. Order 2 provided for the children to spend time with the father during school term as follows: 2.Commencing from the first Friday, following the date of these orders, unless otherwise agreed between the parties in writing, the children shall spend time with the father as follows:2.1Each Tuesday from the commencement of school (or 8:30 am should the children not attend school that day) to the commencement of school on Wednesday (or 8:30am should the children not attend school that day), and each week thereafter;2.2Each alternate Friday from the conclusion of school (or 3:30pm, should the children not attend school that day) to the commencement of school on Monday (or 8:30 am should the children not attend school that day), and each alternate weekend thereafter;2.3Each other alternate Wednesday from the conclusion of school (or 3:30pmshould the children not attend school that day) to 7:30 pm, and each other alternate week thereafter. Order 3 provided for time in school holidays and read as follows:3.Notwithstanding anything else contained in these orders, the children shall spend time with each parent for 50% of the children’s school holiday periods, as agreed between the parties in writing, but failing agreement, as follows:3.1With the Mother for the first half of each period in odd-numbered years and in the second half of each even numbered year; and3.2With the Father for the first half of each period in even numbered years, and in the second half of each odd-numbered year.(As per the original) Order 4 provided definitions for implementation of Order 3. Order 6 provided for time on special occasions. Order 7 provided for changeover. Orders 9 and 10 dealt with Skype communication. Order 23 allowed for the attendance of both parents at school and extra‑curricular activities. On 19 May 2022, the matter came before me on the father’s application for a recovery order, and the mother’s application for suspension of the orders of 9 September 2021. Following a defended hearing I made orders dismissing the father’s application for a recovery order and suspending the operation of Orders 2, 3, 4, 6, 7, 9, 10 and 23 of the orders made 9 September 2021. In place of the orders for time, I made the following orders:3.Within seven days of the date of these orders, [Ms Shamon] (“the mother’) and the father, (“parents”) are to do all acts and things, and sign all documents necessary to register for supervised time with an agency (“the supervise contact agency”) agreed between them in writing, and, failing agreement, as nominated by the Independent Children’s Lawyer, (“the ICL”).4.Subject to order 5 below, [X] (born […] 2007), (“[X]”), [Y], (born […] 2010) (“[Y]”) and [Z], (born […] 2018) (“[Z]’) (“the children”) have supervised contact with the father for two hours each week on dates, and times number nominated by the supervised contact agency.5.The attendance of [X] and/or [Y], for the time, in accordance with Order 4 above shall be subject to their views.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In an interlocutory parenting matter such as this, the fact that findings may not be possible does not mean that evidence which raises questions of risk be dismissed because no finding is yet available. In Marvel & Marvel (2010) 43 Fam LR 348 (cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), their Honours observed at [122]-[123]:122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:[88]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 [100] their Honours amplified their comments and said: [100]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.CONSIDERATION I turn to consider the competing proposals. The father’s application comes in three parts: he abandoned his application that I reinstate Orders 2, 3, 4, 6, 7, 9, 10 and 23 of the orders of 9 September 2021 in respect of Z and adopted as his primary position a graduated regime for reintroduction of unsupervised time with Z or in the alternative, orders in accordance with the ICL’s position with the addition of overnight time in October 2023. The final part of his application deals with family therapy. The mother seeks that the father’s application as regards time with Z be dismissed. The mother consents to orders for family therapy for Y and X. The ICL supports the orders for the children to commence family therapy. The independent children’s lawyer, otherwise takes a cautious position in respect of the father’s application and seeks orders that Z’s time become unsupervised and increase in increments, such that it reaches day only supervised time once a week. If overnight time is to be considered the ICL submits that ought to be in 2024. The following relevant matters are agreed or uncontested in the context of these interim proceedings:(a)Z and the father have a loving relationship.(b)Z enjoys supervised time with the father.(c)The father has a capacity to be an appropriate parent.(d)Supervised time between the father and Z has occurred for a period in excess of 12 months.(e)Neither X nor Y have participated in supervised time whilst the supervised time order has been in place.(f)The ADVO which was previously in place has been discharged.(g)The father’s appeal against the conviction for breach of ADVO was successful.(h)The parties have agreed in principle to the older children participating in family therapy.