FAMILY COURT OF AUSTRALIA
| SOULOS & SORBO | [2015] FamCA 196 |
| FAMILY LAW – CHILDREN – RELOCATION – where the mother seeks to relocate to Country N – child aged 3 at trial – where the father refuses to travel to Country N or Europe – where there was family violence – where the child has a developing relationship with the father – where the mother calls the child by another name – where the father has concerns for the child in the mother’s care – where the mother seeks sole parental responsibility – where competing residence applications – where the father seeks sole parental responsibility – where no unacceptable risk to the child in the father’s care – if the mother were to relocate the child would not have a relationship with the father – where the mother is not permitted to relocate – where child to remain in primary care of mother – where child’s time with father to develop gradually. FAMILY LAW – CHILDREN – CHILD’S NAME – where the mother commenced calling the child by a different first name – where at the child’s birth the father rejected calling the child by that name or as an additional first name – where the single expert was of the opinion to add the name as an additional first name – consideration of general principles - order made for the name to be added as an additional first name. | |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA | |
| AMS and AIF (1999) 199 CLR 160 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Chapman & Palmer (1978) FLC 92-510 Elkin and Cheney [2008] FMCAfam 1361 Flanagan & Handcock [2000] FamCA 150 Johnson and Page [2007] FamCA 1235 Lansa & Clovelly [2010] FamCA 80 Malcolm & Monroe and Anor (2011) FLC 93-460 Mazorski v Albright[2007] FamCA 520 McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483 Morgan & Miles (2008) 38 Fam LR 275, (2007) FLC 93-343 Muldoon & Carlyle (2012) FLC 93-513 Sawant & Karanth [2014] FamCAFC 235 Sayer & Radcliffe and Anor (2013) 48 Fam LR 298 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2007) 37 Fam LR 461 |
| APPLICANT: | Mr Soulos |
| RESPONDENT: | Ms Sorbo |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | PAC | 5406 | of | 2012 |
| DATE DELIVERED: | 26 March 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 9, 10, 11, 12, 13 and 18 February 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Thurlow Fisher Lawyers & Consultants |
| COUNSEL FOR THE RESPONDENT: | Mr Levet |
| SOLICITOR FOR THE RESPONDENT: | Spectrum Legal Group |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms De Vere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders
Parental responsibility
That the mother and father have equal shared parental responsibility for the child B born on … 2011 (“the child”).
Live with
That the child live with the mother.
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- AGLC
- Soulos & Sorbo [2015] FamCA 196
- Case
- [2015] FamCA 196
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. Firstly, it needed to decide whether the mother should be permitted to relocate with the child to Country N, considering the child's relationship with the father and the father's refusal to travel. Secondly, the court had to address the issue of parental responsibility, specifically whether it should be equal shared or sole to one parent. Thirdly, the court was asked to consider the child's name, with the mother wishing to use a different first name and the father having rejected this at the child's birth.
In relation to the relocation, the court found that there was no unacceptable risk to the child in the father's care and that if the mother were to relocate, the child would not have a relationship with the father. Consequently, the court ordered that the mother not be permitted to relocate. The court also made orders for equal shared parental responsibility, with the child to live with the mother. The court further ordered that the child's name be registered with an additional first name, as recommended by a single expert, and that the mother be restrained from using any name other than B on official documents. The court also made detailed orders regarding the child's time with the father, communication between parents and the child, and specific issues such as health and schooling, including placing the child on the Family Law Watchlist for two years.
Orders
Orders of the court
Parental responsibility
1.
That the mother and father have equal shared parental responsibility for the child B born on … 2011 (“the child”).
Live with
2.
That the child live with the mother.
3.
That the mother be restrained from relocating the residence of the child from the Greater Sydney Metropolitan area without the written consent of the father or court order.
Time with
4.
That the child spend time with the father as agreed between the mother and father in writing with such writing to include SMS or email communication and in default of agreement as follows:
(a) That pending the child spending time with the father as provided for hereinafter the child shall spend time with the father as provided for in the present interim orders;
(b) For a period of three months from the date of facilitated changeovers as provided for hereinafter commencing each Saturday from 9:30am until 2:30pm with changeovers to be facilitated at the C Centre, with the father to pay all fees payable in relation to such changeovers;
(c) For a period of three months thereafter each Saturday from 9.30am until 4:30pm with changeovers to be facilitated at the C Centre with the father to pay all fees payable in relation to such changeovers;
(d) For a period of three months thereafter each alternate weekend from 9:30am to 4:30pm Saturday and 9:30am to 2:30pm Sunday with changeovers to be facilitated at the McDonalds Family Restaurant, E Street, Suburb D;
(e) For a period of three months thereafter each alternate weekend from 9:30am each Saturday until 11:00am Sunday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(f) Thereafter until the child commences school each alternate weekend from 9:30am each Saturday until 4:30pm Sunday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(g) On Father’s Day in each year from 9:30am to 4:30pm provided that the child’s time with the father shall be suspended on Mother’s Day with changeovers to be facilitated at C Centre, Suburb D with the father to pay all fees payable in relation to such changeovers in 2015 and thereafter changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(h) Upon the child commencing school and during school term:
(i) For the first two terms of child’s first year of school each alternate weekend commencing on the first weekend after the commencement of term from after school Friday to 11:00am Sunday and for the remainder of that year from after school Friday to 5:00pm Sunday with changeovers if not at school to be at the McDonalds Family Restaurant, E Street, Suburb D;
(ii) Thereafter each alternate weekend commencing on the first weekend after the commencement of term from after school Friday to before school Monday or if a pupil free day before school Tuesday;
(i) Upon the child commencing school and during school holidays:
(i) In the child’s first year of school in the middle weekend of the Term 1, 2 and 3 holidays from 6:00pm Thursday until 5:00pm Sunday and in the Term 4 Christmas holidays commencing on the first Thursday after Christmas Day and each alternate Thursday thereafter from 6:00pm Thursday to 5:00pm Sunday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(ii) Thereafter for the child’s second year of school in Term 1, 2 and 3 holidays from 10:00am on the first Saturday of such holiday period to 6:00pm Thursday and in the Term 4 Christmas holidays commencing on the first Saturday after Christmas Day and each alternate Saturday thereafter from 10:00am Saturday to 6:00pm Thursday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(iii) Thereafter in Term 1, 2 and 3 holidays from 10:00am on the first Saturday of such holiday period to 10:00am the next Saturday and in the Term 4 Christmas holidays commencing on the first Saturday after Christmas Day and each alternate Saturday thereafter from 10:00am Saturday to 10:00am the next Saturday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
Communication with child
5.
That the mother and father be at liberty to communicate with the child by telephone or Skype (or similar) at all reasonable times provided always that such times shall be no more than once each alternate day that the child is not in their respective care and the parent with whom the child is shall assist the child to receive the phone call or Internet communication and the other parent shall initiate such communication.
Changeovers
6.
That for the purposes of changeovers such changeovers shall be as provided above or as agreed between the parties in writing such writing including SMS or email communication.
Specific Issues
7.
That the mother and father keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other of any change thereto within 7 days of any change.
8.
That the mother and father shall promptly notify the other when the child is ill or visits a medical practitioner or immediately notify the other when the child has a medical emergency, accident or hospital admission with such notification providing details of the medical practitioner, hospital or medical service to be attended or attended by the child.
9.
That the mother and father make available to the other any medications prescribed for the child for the other to administer when the child is with the other and the mother and father shall authorise the child’s medical practitioner to fully discuss the child’s treatment with the other parent and for this purpose this order shall be sufficient authority for the practitioner to do so.
10.
That the mother and father be permitted to liaise directly with the child’s preschool, school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and other necessary information about the child’s progress.
11.
That upon the child commencing school the mother and father are at liberty to attend on such occasions and at such events significant to the child’s welfare, schooling, extracurricular activities, sport, health, religious instruction or events where the attendance of either or both parents is reasonably expected.
Child’s name
12.
That the Mother Ms Sorbo be authorised to apply to the Registrar of Births Deaths and Marriages, New South Wales that the child registered as B Soulos born .. 2011 be now registered as B F Soulos.
13.
That pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the Child’s name in the form specified in the previous Order.
14.
That the Court forward a sealed copy of this Order to the Registrar of Births Deaths and Marriages, New South Wales.
15.
That the mother and father be restrained from using any name other than B for the child on any official document or record including but not limited to matters pertaining to the child’s schooling, health, travel and religion.
Watch List
16.
That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 each party Ms Sorbo born … 1979 and Mr Soulos born … 1975 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child B born … 2011 from the Commonwealth of Australia for a period of two years.
17.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watchlist for the said period or until the Court orders its removal, or with consent of all parties.
18.
Liberty to apply as to the extension of this Family Law Watch List order on 7 day’s notice.
Dental health
19.
That the mother do all necessary things to facilitate the child attending upon the Paediatric Dentistry at Suburb G for consultation as to the child’s dental health and hygiene as soon as practicable and in any event no later than one month from the date of these orders.
20.
That the mother inform the father as to the date and time of the child’s appointment so as to facilitate the father should he wish to attend such appointment.
21.
That the mother and father do all things necessary and give all necessary consents so as to facilitate treatment for the child as recommended by the Paediatric Dentistry and that the father pay all fees for the treatment.
22.
That in default of the mother making the appointment for the child’s attendance at the Paediatric Dentistry at Suburb G within one month from this date as ordered, the father shall be at liberty to make such appointment as soon as practicable thereafter and subsequent appointments for treatment as recommended and:
(a) The child shall spend time with the father on the day of such appointments made by him for the child from 9.30am to 2.30pm or such later time as will facilitate the child attending the said appointment but in any event no later than 4.30pm with changeovers to be facilitated at the C Centre, Suburb D with the father to pay all fees payable in relation to such changeovers and the father shall make appropriate arrangements with C Centre, Suburb D for changeovers; and
(b) That the father shall give to the mother not less than 14 days’ notice of any appointment for consultation or treatment made by him for the child with such notice to be in writing including SMS or email communication.
The Contact Centre
23.
Each party must:
(a) Contact the C Centre (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of changeovers;
(b) Attend the assessment;
(c) Comply with any appointments made by the Contact Centre for supervised changeovers;
(d) Comply with all reasonable policies and rules of the Contact Centre; and
(e) Comply with all reasonable requests or directions of the staff of the Contact Centre.
24.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in Orders 4(b) and (c) then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
25.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised changeovers, the Father is to have contact with the child each in accordance with Orders 4(b) and (c) herein and such contact is to be implemented by the Father collecting the child from the Contact Centre at the start time and returning the child to the same place at the end time.
26.
The Mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
27.
In the event that the Contact Centre offers supervised changeovers only at times which are less regular than specified in Orders 4(b) and (c), then contact shall occur at the times that are offered by the Contact Centre.
28.
The parties or either of them are to attend and undertake any course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.
29.
The Father must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child is to end.
30.
If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party may on 7 days written notice to the other party and the Court restore the matter to the list.
31.
The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
The Independent Children’s Lawyer
32.
That the Independent Children’s Lawyer 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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