Sirola and Sirola - [2016] FamCA 147

FAMILY COURT OF AUSTRALIA

SIROLA & SIROLA

[2016] FamCA 147

FAMILY LAW – CHILDREN – Best interests – Interim – Where there are two children – Where the father is refusing to return one child to the mother in accordance with the existing orders –Where the mother seeks orders that the children’s time with the father be suspended pending further order – Where the father opposes the mother’s Application – Where it is the father’s case that the child is refusing to return to the mother’s care – Where recent events have exposed the children to psychological harm – Where the Court is of the view that it would be inappropriate to vary the existing orders before the issues can be properly ventilated at a substantive hearing – Orders made to suspend the father’s time with the children pending further order.

Family Law Act 1975 (Cth) – ss 60CC(2), 60CC(2A)

APPLICANT:

Ms Sirola

RESPONDENT:

Mr Sirola

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales, Sydney Central Family Law

FILE NUMBER:

SYC

5380

2014

DATE DELIVERED:

14 March 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

30 November 2015

ORDERS MADE:

30 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Stubbs of Harris Freidman Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Siggins

SOLICITOR FOR THE RESPONDENT:

First Choice Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea of Legal Aid New South Wales, Sydney Central Family Law

Orders

That orders 2 and 3 of the orders of 3 March 2015 are suspended pending further order.
That in the event that the parents and the Independent Children’s Lawyer are able to agree on supervised time between the children B born … 2001 and C born … 2003 noting that the supervision is to be by a professional supervisor then the children shall spend time with their father in accordance with such arrangements.
That the hearing of the substantive proceedings is expedited and that the Judicial Services Manager arrange an early first day in the Less Adversarial Trial as soon as possible before a judge other than Johnston J.
That the father is given leave to relist these proceedings before Johnston J if reasonably available by arrangement with the Associate in the event that he considers there might be some evidence which might give the Court confidence that the suspended orders might be able to be activated in the interests of the children.
That pending further order the father is restrained from attending at the children’s school although he may communicate with the Headmaster and officials at the school by telephone or in writing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sirola & Sirola has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5380 of 2014

Ms Sirola

Applicant

And

Mr Sirola

Respondent

REASONS FOR JUDGMENT

Ms Sirola (“the mother”) seeks orders…

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.

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Details

Case: [2016] FamCA 147
Decision Date: 14 March 2016

CaseChat Overview and Summary

In the matter of *Sirola and Sirola*, heard before Johnston J, the dispute concerned arrangements for the children, B and C, to spend time with their father. The court was required to determine the terms upon which supervised time might occur, the expedition of substantive proceedings, and interim measures to manage the father's contact with the children and their school.

The court considered the best interests of the children in determining the father's contact. It was necessary to balance the father's desire for contact with the children's welfare, particularly in light of the existing orders and the need for a less adversarial approach to resolving the substantive issues. The court also had to address the father's presence at the children's school.

Johnston J ordered that existing orders for supervised time be suspended pending further order, with the possibility of supervised time with a professional supervisor if agreed by the parents and the Independent Children’s Lawyer. The substantive proceedings were expedited, with arrangements to be made for an early hearing before a different judge. The father was restrained from attending the children's school but permitted to communicate with school officials by telephone or in writing. The father was granted leave to relist the proceedings before Johnston J if evidence emerged suggesting the suspended orders could be activated in the children's interests.

Orders

Orders of the court

That orders 2 and 3 of the orders of 3 March 2015 are suspended pending further order.

That in the event that the parents and the Independent Children’s Lawyer are able to agree on supervised time between the children B born … 2001 and C born … 2003 noting that the supervision is to be by a professional supervisor then the children shall spend time with their father in accordance with such arrangements.

That the hearing of the substantive proceedings is expedited and that the Judicial Services Manager arrange an early first day in the Less Adversarial Trial as soon as possible before a judge other than Johnston J.

That the father is given leave to relist these proceedings before Johnston J if reasonably available by arrangement with the Associate in the event that he considers there might be some evidence which might give the Court confidence that the suspended orders might be able to be activated in the interests of the children.

That pending further order the father is restrained from attending at the children’s school although he may communicate with the Headmaster and officials at the school by telephone or in writing.

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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