Sipos & Sharkey

Case [2022] FedCFamC1F 11

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sipos & Sharkey [2022] FedCFamC1F 11

File number(s): MLC 1647 of 2016
Judgment of: MCGUIRE J
Date of judgment: 10 February 2022 
Catchwords:

FAMILY LAW – CHILDREN – application by father for child to live with him and spend time with the mother – allegations of sexual abuse – allegation that mother is hyper vigilant and preoccupied with child’s safety in the father’s care to the extent that she presents as a risk of emotional and psychological harm for the child – orders that child live in a week about arrangement with the parents – order that parents have equal shared parental responsibility for the child

FAMILY LAW – CHILD SUPPORT – application by father to set aside a Binding Child Support Agreement entered into by the parties on 17 January 2017 – application dismissed

Legislation:

Child Support (Assessment) Act 1989 (Cth) s 136(1),(2),(d)

Family Law Act 1975 (Cth) ss 44(3), 60CC and 65DAA
Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR

Baker v The Queen (2004) 223 CLR 513

Gavin v Garden (2011) 45 Fam LR 444

H & H (2003) FLC 93–168

Keane & Keane and Ors (2014) 50 Fam LR 120

Masters & Cheyne [2016] FamCAFC 255

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 1994 CLR 355

R v Kelly (Edward) [2000] QB 198, at page 208

Simpson v Hamlin (1984) FLC 91-576

Whitford & Whitford (1979) FLC 90-612

Division: Division 1 First Instance
Number of paragraphs: 184
Date of hearing: 27, 28 and 29 October 2021 and 5 November 2021
Place: Hobart and Launceston
Counsel for the Applicant: Ms Renwick
Solicitor for the Applicant: Lander and Rogers
Counsel for the Respondent: Mr Combes
Solicitor for the Respondent: Bowlen Dunstan and Associates Pty
Counsel for the Independent Children's Lawyer: Ms O’Connell
Solicitor for the Independent Children's Lawyer: Taft Lawyers

ORDERS

MLC 1647 of 2016

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

MR SIPOS

Applicant
AND:

MS SHARKEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

10 FEBRUARY 2022

THE COURT ORDERS THAT:

1.That all previous parenting orders in relation to the child X (‘X’) born 2014 be discharged.

2.That the father, Mr Sipos, and the mother, Ms Sharkey, have equal shared parental responsibility for X.

3.That during school term X live with the father and mother on a week about basis from the conclusion of school or 3.30pm on Friday until the following Friday at the commencement of school or 9.00am.

4.That the week about arrangements set out in order 3 herein continue during school holidays or at such other times as agreed between the parties in writing.

5.That X spend such further time or variations of the above times, including special occasions, with each of her parents as may be agreed between the parents from time to time in writing.

6.That the appointment of the Independent Children’s Lawyer be discharged.

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AGLC
Sipos & Sharkey [2022] FedCFamC1F 11
Case
[2022] FedCFamC1F 11
Decision Date

CaseChat Overview and Summary

The case of Sipos & Sharkey involves the parents of a child, X, who have been in a protracted legal battle over parenting arrangements. The mother had previously restricted the child's contact with the father based on allegations of inappropriate behavior. The father sought to have the presumption of equal shared parental responsibility apply, or alternatively, for the court to make a discretionary order for substantial and significant time. The mother argued against equal shared parental responsibility and for a regime of substantial and significant time. The court needed to determine whether the presumption of equal shared parental responsibility should apply, or if a discretionary order for substantial and significant time would be more appropriate, considering the child's best interests and the parents' capacity to meet the child's needs.

The court considered the evidence and the history of the relationship between the parties. The mother was found to be an honest and candid witness, though her actions had led to multiple legal proceedings. The father's position had evolved during the trial, initially seeking limited contact with the child but later proposing a more balanced arrangement. The court also noted the significant changes in the parents' circumstances and the mother's relocation to a location close to the father, which facilitated easier access for the child to both parents. The court examined the capacity of each parent to provide for the child's needs, taking into account the mother's emotional state and the father's financial resources and stable relationship.

Ultimately, the court determined that a discretionary order for substantial and significant time was in the child's best interests. The father's proposal for the child to spend nine nights per fortnight with him and five nights with the mother, along with shared school holidays, was deemed a reasonable arrangement. The court accepted that the changes proposed would not significantly impact the child and that both parents were capable of providing for the child's needs. The mother's initial concerns and actions were considered in light of the evolving circumstances and her demonstrated ability to cooperate and communicate with the father.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The mother was a good and impressive witness. She presented as an “open book”. She presented as child focused but with the conundrum of dealing with what she saw as concerning revelations from her daughter as against her obligations to comply with court orders and to facilitate a relationship for X with the father. I gleaned, however, that she had reflected on this situation and her obligations whilst maintaining that her actions were at all times child focused and reactive to X’s statements to her. Generally, I found the mother to be an honest and candid witness. She was more optimistic and conciliatory than the father in respect of their future parenting, cooperation and communication.BACKGROUND The father is 49 years of age. The mother is 34 years old. The mother was born in the United Kingdom but has been resident in Australia for some time. The parties apparently met at a Melbourne nightspot known as 'Venue R' where the mother was an employee and the father an attendee. They commenced cohabitation in November 2013 with X being born in 2014. The parties married in 2015 and separated later the same year when the mother, together with X, took temporary accommodation in a women's refuge. The father first commenced proceedings in the Federal Circuit Court on 26 February 2016 against a background of X not spending time with him. On 7 March 2016 the father commenced spending time with X privately supervised by S Family Services. Supervision was later provided by the father's sister, Ms Sipos. On 11 May 2016 the parties and X attended upon Ms C for interviews for a family report such being released on 20 May 2016. On 21 June 2016 procedural orders were made listing the matter for trial and providing inter alia for unsupervised time between X and the father. In November 2016 the parties successfully mediated both parenting and property matters resulting in orders by consent for X to live with the mother and spend time increasing to four nights per fortnight with the father. On 10 September 2017 the mother says that she was contacted by the father's partner or perhaps former partner, advising the mother that X was at risk of sexual abuse in the care of the father. The mother says that she took legal advice and was advised to permit time between X and the father to continue. Neither party adduced evidence from this person. In late 2017 the father re-partnered with his current partner, Ms D. In late 2017 the mother says that she suggested family therapy by Mr E, psychologist, but the father refused to take part. In May 2018 the mother reports X as disclosing inappropriate touching by the father saying words to the effect of the father “kissing my bum bum". The mother says that X also made reference to her “small hole”. X was subsequently interviewed by the Department of Health and Human Services (‘DHHS’) on 15 and 28 May 2018 and on 19 June 2018. The mother stopped time-with for X and the father. The father filed a contravention application and a fresh initiating application.

Evidence

Evidence Before The Court

Should the presumption at s 61DA apply or the Court in its discretion make an order for equal shared parental responsibility then a course of mandatory statutory and intellectual considerations follows. Firstly, the Court must consider whether it is both in the child’s best interests and reasonably practicable for the child to live in an equal time regime between the parents. The mother here argues for such an arrangement. However, if either of the questions as to best interests or reasonable practicability are answered in the negative then the Court turns to consider whether the child living in an arrangement of “substantial and significant time” between the parents is both in the child’s best interests and reasonably practicable. This is the regime preferred by the father. “Substantial and significant time” is defined in the Act at s 65DAA(3) as time for a child with each parent on both week days, weekends and holidays and time for the child which allows mutual enjoyment of activities and occasions. THE EVIDENCEMs D The father's partner Ms D gave evidence and provided an affidavit of 16 April 2021. She was cross-examined briefly. She is supportive of the father's application and of his parenting of X.Ms O Ms O provided two affidavits in support of the mother being 11 May 2021 and 13 October 2021. She is a psychologist. She was cross-examined. Ms O deposed to having a professional relationship with the mother from 31 July 2018. The basis of that relationship was that the mother had sought support for herself and assistance with how best to support X. Ms O described some post-traumatic stress disorder symptoms in the mother following what she had described as an abusive and controlling three-year relationship with the father. Ms O described the mother’s anxiety as “explicable by her history and circumstances: the abusive and controlling relationship history as perceived by her, the dynamics of which continued post-separation, the ongoing conflictual relationship with [the father], the fear that her daughter may have been abused, the heavy handed management of her case by the police and the unfair treatment by the report writer, combined to enhance her anxiety”. Ms O saw the mother as exhibiting “low self-confidence”. Ms O referenced the events of April 2020 when X revealed that the father had photographed her genital area. Significantly, in her first report Ms O identifies the conundrum experienced by the mother as follows:[5]The new sexual abuse allegations, again spontaneously made by X in April 2020, caused [the mother] the most significant distress both because of the child's disclosure and because of past censure and fear of reporting it. She sought advice from me and consequently contacted the police or child protection.[6]Her distress and anxiety again increased. [The mother] has reacted in ways consistent with a competent and caring mother wanting to both protect and support her child and ensure that she is following an appropriate course. X displayed disturbances, nightmares and emotional regression to which [the mother] has been able to appropriately respond.[7]The reporting of sexual abuse by a child is one of the most challenging experiences for a parent, usually a mother. From a psychological perspective, the child must be supported and believed and only question gently using open questions. Rejection, disbelief and negation of the child reports, while allowing the child to remain in an abusive situation, can cause great harm to the child, can be long lasting and can at times be more distressing than the abuse. The questioning is best done by third-party professionals.[8][The mother] reports of the child's disclosures and her follow up questions appear to have been conducted well. She did not overreact and asked X to tell her more and continued with non-direct questioning.

Decision

Reasons for decision

As the father emphasises, there have been at least three separate proceedings in these Courts in respect of X who is now just seven years of age. He argues that the mother’s actions and her capacity to act unilaterally without justification have necessitated these applications. He argues that the mother’s demonstrated propensity leads to the likelihood of further applications where it is generally agreed that litigation in respect of children is contrary to their best interests where those interests are served by stability in their lives and stable relationships with both of their parents whether those parents be together or separated.FINDINGS AND CONCLUSIONS The issue for the Court is largely a consideration of the mother's previous withholdings of X from time with her father and whether such were reasonable in their action and continuance or whether there is a pattern of conduct and propensity in this mother that is likely to continue? Matters of family violence raised by the mother including of the controlling and coercive type can be seen in the light of a short but dysfunctional relationship between two adults from different backgrounds brought together by pregnancy and hence circumstantial and situational and also within the context of the mother’s own background as articulated by Dr G. The parties now live in close proximity. They manage changeovers for X and the indications from Ms O suggest the mother to have grown in self–confidence. Consequently, matters of family violence do not now feature prominently within the current context. On the evidence generally, I am satisfied that each of these parents can provide adequately for the physical needs of X. The father has significant financial benefits of his business. He is in a stable relationship with Ms D who was an impressive witness and a person who brings many benefits for X. The mother is now in employment and stable accommodation. She is committed to living in close proximity to the father and for ease of transition for X. The landscape in this matter has changed significantly during the course of this trial. At its commencement the father was seeking orders that X spend just three nights per fortnight with the mother being over one weekend. He was not proposing any block time for X with the mother during the school holidays and his evidence in the witness box when challenged in this regards was less than satisfactory in respect of his insight into the need for X to have a relationship with her mother. His responses in this respect also gave some corroboration to the mother’s evidence of a power imbalance in their previous relationship in that he suggested that there may be opportunity for X to spend some holiday time with the mother over and above the weekends but where the mother would need to make a request of him on a case–by–case basis. To his credit, however, at final submission his counsel articulated a proposal from the father whereby X spend five nights per fortnight with the mother during school terms. Importantly, the father now proposes that school holidays are shared for X between her parents on a week–about basis. This change of position says much for the father gaining some objective insight during the course of the evidence in this trial and perhaps now consistent with his statements to Dr G as long ago as 2018 where the father saw no difficulties with the mother’s day-to-day care for X with his complaints resting on the mother's cessation of his time with X.

Ratio Decidendi

Legal Principle Established

The mother complains that the father does not assist financially on occasions in respect of X’s education as for instance the provision of a laptop computer for remote learning during COVID-19 restrictions.Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of her parents; or(ii) any other children, or person (including any grandparent or other relative of the child), with whom the child has been living The father's application would constitute a significant change for X in circumstances where she has for most of her life understood her mother to be her primary parent. The father has now retreated from that position and proposes a regime of nine nights per fortnight with him and five nights with the mother. The mother now offers a proposal of equal shared time and presumably on a week about basis. She too has moved dramatically from her proposal to the family consultant as of September 2020. As such, the changes for X now contemplated by the various positions of the parties are discrete and unlikely to impact on X.Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis Since the making of the interim orders in November 2020, the mother herself has relocated to the Suburb N area and in close proximity to the father. This provides the opportunity for X to move easily between her parents’ homes without the logistical difficulty of travel to and from school, extra-curricular activities, and the pursuit of the relationships and friendships she will make at school.Section 60CC(3)(f) the capacity of each of:(i) the child's parents; and(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, and including emotional and intellectual needs The mother is criticised in this respect by the father and by the experts being Dr G and Dr M. The criticism rests on the mother's responses to statements made by X where it is claimed that the mother is over vigilant and keen to look for unjustified risk when X is with the father. Dr G describes the mother presenting as “emotionally labile and fragile”. He says that she presents with a tendency towards processing emotional information in a black and white and rigid fashion. The father relies in part on Dr G's conclusion at [106] thus:In contrast, the mother presented a picture of a person with significant personality vulnerabilities, with a tendency to black and white emotional processing, with the recent sexual abuse allegations presenting as part of a pattern of the mother attempting to exclude the influence of the father in the child's life. Dr G was not called to be tested on his report, assessment and conclusions. Notably, however, the report is from August 2018 and any conclusions as to “patterns” or “courses of behaviour” must be seen in light of the time that has passed. It is also notable that the mother now asks for orders for equal time between X and the father with obvious conclusions as to what Ms O says have been significant improvements in the mother’s own self-confidence.