FAMILY COURT OF AUSTRALIA
| SMALLWOOD & SMALLWOOD | [2016] FamCA 506 |
| FAMILY LAW – CHILDREN – final orders – where the mother seeks orders for sole parental responsibility and only spend time with the father following his engagement in a psychiatric assessment – where the father opposes the orders and seeks gradually increasing time with the children – where the children are unwilling to engage with the father – where the family consultant supports a termination of the father’s relationship with the children – where it is found that the mother is incapable of supporting a relationship between the children and the father – where consideration is given to the best interests of the children – where the fear experience by the children of their father is not founded – where an order is made for shared parental responsibility but the mother retains sole parental responsibility for health and education. |
| Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZT, 69ZQ, 69ZR, 69ZV, 69ZX |
Family Law Rules 2004 (Cth) r 15.13
| Baglio & Baglio [2013] FamCA 105 |
| APPLICANT: | Ms Smallwood |
| RESPONDENT: | Mr Smallwood |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 202 | of | 2011 |
| DATE DELIVERED: | 22 June 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 27 & 29 January 2016, 26, 27 & 28 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dillon |
| SOLICITOR FOR THE APPLICANT: | Daniel John Lawyers |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Tinning |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That the parties have shared parental responsibility for B born … 2003 and C born … 2006 (“the children”).
That the mother have sole parental responsibility in respect of matters relating to education and health issues affecting the children.
That in respect of education and health issues affecting the children the mother will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the children’s education and health and shall consult with the father about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties then the mother shall make the final decision and advise the father in writing (electronically or otherwise) of that decision.
That the father be at liberty to send cards, letters and gifts to the children on no more than one (1) occasion each month and at a postal address provided by the mother and that the mother do ensure that the same…
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- AGLC
- Smallwood and Smallwood [2016] FamCA 506
- Case
- [2016] FamCA 506
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of shared parental responsibility, the specific areas where one parent would have ultimate decision-making power, and the conditions under which each parent could communicate with the children and receive information about them. Further issues included the appropriate use of social media by the father and the need for professional intervention to explain court orders to the children and reinforce their relationship with the father.
Berman J ordered that the parties have shared parental responsibility for the children, but that the mother would have sole responsibility for decisions regarding education and health. In these areas, the mother was required to consult with the father genuinely, but she retained the final decision-making power if agreement could not be reached. The father was permitted limited contact with the children via cards and letters, and was authorised to receive school reports at his expense. The mother was ordered to provide photographs of the children and to keep the father informed of medical practitioners and hospital admissions, facilitating his contact with medical professionals. Injunctions were granted restraining the mother from denigrating the father in the children's presence and the father from using social media to discuss the parties, children, or litigation. The mother was also ordered to facilitate the children's attendance with a health professional to explain the court orders and reinforce the father's role in their lives.
Orders
Orders of the court
1.
That the parties have shared parental responsibility for B born … 2003 and C born … 2006 (“the children”).
2.
That the mother have sole parental responsibility in respect of matters relating to education and health issues affecting the children.
3.
That in respect of education and health issues affecting the children the mother will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the children’s education and health and shall consult with the father about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties then the mother shall make the final decision and advise the father in writing (electronically or otherwise) of that decision.
4.
That the father be at liberty to send cards, letters and gifts to the children on no more than one (1) occasion each month and at a postal address provided by the mother and that the mother do ensure that the same are read to and provided to the children.
5.
That the father be authorised to receive direct from the children’s school (at his expense) information regarding the children’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.
6.
That the mother do provide to the father on at least one (1) occasion each six month period a current photograph of each of the children.
7.
That the mother keep the father advised of the name and address of the children’s treating medical practitioners and any changes thereto and shall advise the father in writing of any hospital admission in relation to either of the children and shall provide such authority to enable the father to contact such treating medical practitioner and obtain information in respect of the children’s health, ongoing medical treatment or other health related matters affecting the children or each of them.
8.
That the mother is restrained and an injunction granted restraining her from denigrating the father in the presence or hearing of the children or either of them and from preventing any other person to do so in the presence or hearing of the children or either of them.
9.
That the father be restrained and an injunction granted restraining him from posting, publishing or in any way utilising social media that refers to, includes or comments on either of the parties or the children either by way of word or image and from discussing the litigation, the orders made or reasons for judgment.
10.
That at her sole expense the mother do cause and facilitate the attendance of the children upon an appropriately qualified health professional as may be nominated by the Independent Children’s Lawyer, with the focus of such attendance to be as follows:-
(a) To explain the orders to the children;
(b) To reinforce with the children that the father does not present as a risk to either of them;
(c) That they have a right to have a meaningful relationship with their father and that it would be to their advantage for that to occur at some time into the future.
11.
That to better facilitate the counselling process, leave is given for a copy of the reasons for judgment to be provided to the nominated health professional.
12.
Other than assisting with the implementation of order 10 herein, the appointment of the Independent Children’s Lawyer shall be discharged.
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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