Sherry & Eaton - [2022] FedCFamC1F 356

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sherry & Eaton [2022] FedCFamC1F 356

File number(s): ADC 21 of 2018

Judgment of: BERMAN J

Date of judgment: 20 May 2022

Catchwords:
FAMILY LAW – CHILDREN – Parental responsibility – Where the mother sought sole parental responsibility and the father originally sought equal shared parental responsibility but then did not press it – Discussion of the presumption of equal shared parental responsibility – Where in any event, the evidence of family violence would rebut the presumption in this case – Order for sole parental responsibility.

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Family Violence – Best interests of child – Where the children have not spent any significant time with the father for over 7 years – Where the father seeks significant and substantial time – Where the mother opposes any time – Where there are allegations of family violence – Where the family consultant considered that introducing time spending now would be difficult – Where there is potential for emotional distress if the children were forced to resume time with their father - Where there still remains a high degree of animosity between the parties – Consideration of the best interests of the children – Where orders are made for no time spending unless agreed – Where the father can forward letters, gifts and photographs if he wishes to do so.

Legislation:
Evidence Act 1995 (Cth) s 135

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 61DA, 65DAA, 69ZN, 69ZT

Cases cited:
Amador & Amador (2009) 43 Fam LR 268

Baglio & Baglio [2013] FamCA 105

Champness & Hanson (2009) FLC 93-407

Cotton & Cotton (1983) FLC 91-330

Loddington & Derringford(No. 2) [2008] FamCA 925

MRR v GR (2010) 240 CLR 461

Sawant & Karanth [2014] FamCAFC 235

Sigley & Evor (2011) 44 Fam LR 439

Wang & Dennison (No. 2) [2009] FamCA 1251

Division: Division 1 First Instance

Number of paragraphs: 116

Date of hearing: 21 – 23 March 2022

Place: Adelaide

Counsel for the Applicant: Mr Praolini

Solicitor for the Applicant: Legal Services Commission of South Australia

Counsel for the Respondent: Ms Read

Solicitor for the Respondent: SE Lawyers
ORDERS

ADC 21 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SHERRY

Applicant

AND:
MS EATON

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 MAY 2022

THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for X born 2009 and Y born 2012 (collectively “the children”).
2.The children shall live with the mother.
3.The children shall spend no time with the father save as may be agreed between the parties.
4.The father be at liberty to receive copies of the children’s school reports and to facilitate same, the mother shall authorise the school at which the children attend from time to time to forward copies of school reports and other academic performance indicators to the father.
5.The mother shall inform the…

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 Sherry & Eaton

Details

AGLC: Sherry & Eaton [2022] FedCFamC1F 356
Case: [2022] FedCFamC1F 356
Decision Date: 20 May 2022

CaseChat Overview and Summary

In Sherry & Eaton, the Federal Circuit and Family Court of Australia (Division 1) was called upon to determine a dispute regarding parental responsibility and the arrangements for the children to spend time with their father. The mother sought sole parental responsibility, while the father initially sought equal shared parental responsibility but later did not press it. The court was required to consider the presumption of equal shared parental responsibility, the impact of family violence on the children's best interests, and the potential for emotional distress if the children were forced to resume time with their father. The court also had to weigh the possibility of a meaningful relationship between the father and the children against the children's opposition to spending time with their father.

The court reasoned that the presumption of equal shared parental responsibility would be rebutted in light of the evidence of family violence. Given that the children had not spent any significant time with the father for over seven years and the mother opposed any time, the court considered the best interests of the children. The family consultant recommended that introducing time spending now would be difficult, and there was potential for emotional distress if the children were forced to resume time with their father. The court found that the children would not be advantaged by resuming their relationship with the father at this stage. However, the court considered it appropriate for the father to be permitted to communicate and send gifts to the children if he chose to do so. The court also found it appropriate for the father to be kept informed of the children's welfare and development by receiving their school reports.

The court made orders granting sole parental responsibility to the mother, with the children living with her. The children were not to spend any time with the father unless agreed between the parties. The father was permitted to forward letters, cards, and gifts to the children via the mother and to receive copies of their school reports. The parties were restrained from attending at or remaining in the vicinity of each other's residences or places of employment and from abusing, criticising, or denigrating the other parent, their partner, or family members in the presence or hearing of the children. The form of the order was subject to review for minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

ADC 21 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SHERRY

Applicant

AND:

MS EATON

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 MAY 2022

THE COURT ORDERS THAT:

1. The mother have sole parental responsibility for X born 2009 and Y born 2012 (collectively “the children”).

2. The children shall live with the mother.

3. The children shall spend no time with the father save as may be agreed between the parties.

4. The father be at liberty to receive copies of the children’s school reports and to facilitate same, the mother shall authorise the school at which the children attend from time to time to forward copies of school reports and other academic performance indicators to the father.

5. The mother shall inform the father if a child or children suffer a serious medical emergency or illness.

6. If he should choose to do so, the father be permitted to forward letters, cards and gifts to the children via the mother at her address.

7. Each party keep the other informed of their residential address.

8. The parties are restrained and an injunction hereby granted restraining each of them from:

(a) Attending at or remaining in the vicinity of any place of residence of either of the parties or their place of employment; and

(b) Abusing, criticising or denigrating the other parent, their partner or family members in the presence or hearing of the children or allowing any other person to do so.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The parties are unable to communicate with each other and according to the mother both she, her adult daughter and the children remain fearful of the father. Whilst that fear may now no longer have a focus given the father’s presentation, it appears that it is genuinely held. In circumstances where the father has not seen the children for an extended period, that he has had little or no input into their lives since separation and the parties remain unable to communicate with each other, it would be in the children’s interests for there to be an order of sole parental responsibility as sought by the mother.CONCLUSION It may well be that many years after separation, the father now has much to offer the children. Even so, it is from the children’s perspective that I must consider the extent and nature of any relationship between the father and the children going forward. I do not consider that at this stage the children will be advantaged by them spending time with the father however the evidence of Ms J is persuasive in terms of her recommendation that the father should be permitted to communicate and send gifts to the children if he should decide to do so. I also consider that the father should be permitted to know of matters affecting the welfare and development of the children and as such he should receive school reports that enable him to be apprised of their progress. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

The focus is upon the extent to which the best interests of the children are served by a resumption of their relationship with the father.PARENTING CONSIDERATIONSMeaningful relationship In Sigley & Evor (2011) 44 Fam LR 439, the Full Court undertook a review of the authorities with a view to defining “meaningful relationship” and in doing so considered at [136] the following observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,502: 103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interest. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. … (Emphasis in original) A further consideration arises from the opinion of Ms J that the children remain fearful of seeing their father and whether their opposition potentially places them at risk of psychological harm if an order is made that they see the father against their will. In Loddington & Derringford(No. 2) [2008] FamCA 925 Cronin J said:169.There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. In Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J considered that whilst it was generally desirable for a child to maintain a meaningful relationship with both parents:… that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. … In Wang & Dennison (No. 2) [2009] FamCA 1251 Bennett J made final orders that the children live with the mother, but declined to make any orders for the children to spend time with the father. This was based on the reluctance of both children aged 10 and 12 to re-establish a relationship with their father and his inability to see the children’s “needs for peace”.[7] There had already been an attempt at structured therapeutic counselling which was deemed to be unsuccessful.[7] Wang & Dennison (No. 2) [2009] FamCA 1251 at [76]. Her Honour considered that the continuation of the reunification therapy would place the children at an unacceptable risk of emotional and physical risk: 76.… [the father] has pursued with grim unrelenting determination the opportunity to have a meaningful relationship with [the children] but has not done so out of any bitterness or vindictiveness towards the mother. Nor has his campaign been based on selfishness. I find that he is solely motivated by a desire to provide his daughters with a warm and loving home environment which he believes, with some justification, it is beyond the capacity of the mother to provide. 77.It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well motivated and best performing parent. The Court has regard to what is fair as between the parents but, ultimately, parental interests must be subordinated to what is in the best interests of the children, or at least to the extent of any conflict. …

File number(s):	ADC 21 of 2018
Judgment of:	BERMAN J
Date of judgment:	20 May 2022
Catchwords:	FAMILY LAW – CHILDREN – Parental responsibility – Where the mother sought sole parental responsibility and the father originally sought equal shared parental responsibility but then did not press it – Discussion of the presumption of equal shared parental responsibility – Where in any event, the evidence of family violence would rebut the presumption in this case – Order for sole parental responsibility. FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Family Violence – Best interests of child – Where the children have not spent any significant time with the father for over 7 years – Where the father seeks significant and substantial time – Where the mother opposes any time – Where there are allegations of family violence – Where the family consultant considered that introducing time spending now would be difficult – Where there is potential for emotional distress if the children were forced to resume time with their father - Where there still remains a high degree of animosity between the parties – Consideration of the best interests of the children – Where orders are made for no time spending unless agreed – Where the father can forward letters, gifts and photographs if he wishes to do so.
Legislation:	Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 61DA, 65DAA, 69ZN, 69ZT
Cases cited:	Amador & Amador (2009) 43 Fam LR 268 Baglio & Baglio [2013] FamCA 105 Champness & Hanson (2009) FLC 93-407 Cotton & Cotton (1983) FLC 91-330 Loddington & Derringford(No. 2) [2008] FamCA 925 MRR v GR (2010) 240 CLR 461 Sawant & Karanth [2014] FamCAFC 235 Sigley & Evor (2011) 44 Fam LR 439 Wang & Dennison (No. 2) [2009] FamCA 1251
Division:	Division 1 First Instance
Number of paragraphs:	116
Date of hearing:	21 – 23 March 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Praolini
Solicitor for the Applicant:	Legal Services Commission of South Australia
Counsel for the Respondent:	Ms Read
Solicitor for the Respondent:	SE Lawyers

ADC 21 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SHERRY Applicant
AND:	MS EATON Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	20 MAY 2022