Sirola and Sirola & Anor (No 3) - [2016] FamCA 1076

FAMILY COURT OF AUSTRALIA

SIROLA & SIROLA AND ANOR (NO. 3)

[2016] FamCA 1076

FAMILY LAW – CHILDREN – Whether the children should spend no time with the father or the paternal grandmother – Where the Court finds the father has engaged in family violence – Presumption of equal shared parental responsibility not applied – Where there are serious concerns as to the father’s mental health and oppositional behaviour – Where the father has breached orders suspending his time and communication with the children – Where the father is unrestrained in his denigration of the mother to the children – Where the single expert suspects that the father could be dangerous – Where the Court finds the children would be exposed to an unacceptable risk of physical and/or psychological harm if they were to spend time with the father – Where the paternal grandmother is unable to recognise the risk the father presents to the children and would be unable to prevent the father from coming into contact with the children – Orders made allocating sole parental responsibility to the mother – Orders made for the father to spend no time with the children – Orders made to facilitate the paternal grandmother sending cards and letters to the children.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA

Blinko & Blinko [2015] FamCAFC 146
Johnson & Page (2007) FLC 93-344

APPLICANT:

Ms Sirola

1^ST RESPONDENT:	Mr Sirola
2^ND RESPONDENT:	Ms D

INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

FILE NUMBER:

SYC

5380

2014

DATE DELIVERED:

16 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

3 - 5 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Harris Friedman Lawyers

FOR THE 1^ST RESPONDENT:

Mr Sirola in person

SOLICITOR FOR THE 2^ND RESPONDENT:

Ms Torrisi of Australian Family Law Practice

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

Orders

Parenting

All previous parenting orders are discharged.
The mother have sole parental responsibility for the children, B born … 2001 and C born … 2003 (“the children”), including, but not limited to, the children’s education, health and religion.
The children live with the mother.
The children spend no time with the father and do not communicate with the father.
The father is restrained from attending at any school at which the children are enrolled and attend, although he may communicate with the Principal and officials at such school(s) by telephone or in writing.
The father is restrained from assaulting, molesting, harassing, stalking or intimidating the mother, and from attending at her home or work place and/or being within one (1) kilometre of the mother’s home or work place.
The father is restrained from applying for and/or holding, a passport for either or both of the children, and the father is restrained from removing either of the children from the Commonwealth of Australia.
The mother is permitted to change the children’s residence without 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.

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Details

Case: [2016] FamCA 1076
Decision Date: 16 December 2016

CaseChat Overview and Summary

In *Sirola and Sirola & Anor (No 3)*, McClelland J of the Family Court of Australia considered parenting orders concerning two children. The dispute involved the mother seeking orders for the children to spend no time with the father or the paternal grandmother, while the father and paternal grandmother sought time with the children.

The court was required to determine whether the presumption of equal shared parental responsibility applied, and if not, what parenting orders were in the best interests of the children, specifically whether they should spend any time with the father or the paternal grandmother. The court also had to consider the implications of family violence, the father's mental health, his oppositional behaviour, and his denigration of the mother to the children.

McClelland J found that the father had engaged in family violence and that there were serious concerns regarding his mental health and oppositional behaviour. The court noted that the father had breached previous orders suspending his time and communication with the children and that he was unrestrained in his denigration of the mother. The single expert had also expressed suspicion that the father could be dangerous. Consequently, the court concluded that the children would be exposed to an unacceptable risk of physical and/or psychological harm if they were to spend time with the father. The paternal grandmother was found to be unable to recognise the risk the father presented and would be unable to prevent him from contacting the children.

The court ordered that the mother have sole parental responsibility for the children, that the children live with the mother, and that the children spend no time with and have no communication with the father. The father was restrained from attending the children's school and from assaulting, molesting, harassing, stalking, or intimidating the mother, or attending near her home or workplace. The father was also restrained from applying for or holding passports for the children or removing them from Australia. The mother was permitted to change the children's residence and travel overseas with them without the father's consent. The paternal grandmother and step-paternal grandfather were permitted to communicate with the children by sending letters, cards, and gifts, with the mother to facilitate this and to inspect the correspondence. Costs orders were made against the paternal grandmother and the mother and father.

Orders

Orders of the court

Parenting

All previous parenting orders are discharged.

The mother have sole parental responsibility for the children, B born … 2001 and C born … 2003 (“the children”), including, but not limited to, the children’s education, health and religion.

The children live with the mother.

The children spend no time with the father and do not communicate with the father.

The father is restrained from attending at any school at which the children are enrolled and attend, although he may communicate with the Principal and officials at such school(s) by telephone or in writing.

The father is restrained from assaulting, molesting, harassing, stalking or intimidating the mother, and from attending at her home or work place and/or being within one (1) kilometre of the mother’s home or work place.

The father is restrained from applying for and/or holding, a passport for either or both of the children, and the father is restrained from removing either of the children from the Commonwealth of Australia.

The mother is permitted to change the children’s residence without the father’s consent.

The mother is permitted to travel overseas with the children, and for that purpose, the requirement for the mother to obtain the father’s consent for a passport to be issued for the children or each of them is dispensed with, and such passport(s) are to be held by the mother.

10.

The paternal grandmother and step-paternal grandfather are permitted to communicate with the children by sending them letters, cards and gifts.

11.

For the purposes of Order (10), the mother shall provide a postal address (that is other than her residential address) to the paternal grandmother within seven (7) days of the date of these Orders, and shall ensure that the paternal grandmother is notified of any change in postal address within seven (7) days of such change.

12.

The mother may open and inspect any letters or cards sent to the children by the paternal grandmother and step-paternal grandfather and, provided that the letter or cards are appropriate, shall pass them on to the children.

Costs

13.

Within three (3) months of the date of these Orders the paternal grandmother is to pay to Legal Aid Commission of New South Wales the Independent Children Lawyer’s costs in the sum of $2003.83 unless otherwise waived by the Legal Aid Commission.

14.

Within three (3) months of the date of these Orders the mother and the father are to pay to Legal Aid Commission of New South Wales the Independent Children Lawyer’s costs in the sum of $3323.83 each unless otherwise waived by the Legal Aid Commission.

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

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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