Sullivan & Dickens

Case [2022] FedCFamC1F 317

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sullivan & Dickens [2022] FedCFamC1F 317

File number(s): MLC 571 of 2016
Judgment of: BERMAN J
Date of judgment: 13 May 2022
Catchwords:

FAMILY LAW – CHILDREN – Parental Responsibility – Where the father seeks sole parental responsibility and the mother seeks equal shared parental responsibility – Where the Independent Children’s Lawyer supports equal shared parental responsibility – Consideration of best interests of the child – Order for equal shared parental responsibility.

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of child – Family Violence – Where the dispute is of narrow compass – Where the father seeks to maintain the status quo, namely that the child live with him and spend time with the mother – Where the mother seeks a gradual increase in her time to equal time – Where the Independent Children’s Lawyer recommends an equal shared care arrangement – Where there have been allegations of family violence – Where there have previously been physical altercations between the mother and the child – Where there have previously been child protection proceedings – Where the mother was subject to an intervention order – Where the parties have engaged in 110 hours of therapeutic intervention – Where therapeutic intervention has led to an assessment that there are no current physical abuse issues – Where the best interests of the child will be served by equal time – Orders.

Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 65DAA(5)
Cases cited: Gallimore & Gallimore [2018] FamCA 249
Division: Division 1 First Instance
Number of paragraphs: 119
Date of hearing: 6 – 8 December 2021  
Place: Adelaide
Counsel for the Applicant: Litigant in person
Counsel for the Respondent: Mr Moore
Solicitor for the Respondent: MMH Lawyers
Counsel for the Independent Children's Lawyer: Mr Scriva
Solicitor for the Independent Children's Lawyer: Southern Family Law

ORDERS

MLC 571 of 2016

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

MR SULLIVAN

Applicant
AND:

MS DICKENS

Respondent
AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS:

1.That all previous parenting orders be discharged.

2.That the parties have equal shared parental responsibility for B born 2010 (“the child”).

3.That the child spend time with the mother as follows:

(a)From the conclusion of school Thursday to the commencement of school on Tuesday and each alternate week thereafter commencing 19 May 2022;

(b)From the commencement of term four, from the conclusion of school Thursday until the commencement of school on Wednesday (or 5.00 pm if a non-school day) each alternate week commencing 13 October 2022;

(c)From the commencement of term three 2023 on a week about basis with changeover to occur each Thursday from the conclusion of school (or 5.00 pm if a non-school day);

(d)Commencing at the end of term four in 2022 for half of the school term holidays as agreed and in default…

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AGLC
Sullivan & Dickens [2022] FedCFamC1F 317
Case
[2022] FedCFamC1F 317
Decision Date

CaseChat Overview and Summary

In the matter of Sullivan & Dickens, the parties were in dispute over the allocation of parental responsibility and the time the child was to spend with each parent. The Independent Children’s Lawyer (ICL) had recommended that the parties have equal shared parental responsibility and that the child spend equal time with each parent. The father sought sole parental responsibility and for the status quo to be maintained, namely that the child live with him and spend time with the mother. The mother sought equal shared parental responsibility and a gradual increase in her time with the child to equal time. The legal issues before the court were whether the parties should have equal shared parental responsibility and whether the child should spend equal time with each parent. The court considered the primary and additional factors set out in section 60CC of the Family Law Act 1975 (Cth), the evidence presented by each party, and the recommendations of the ICL. The court found that the interests of the child would be best served by an order for equal shared parental responsibility and that equal time was both in the child’s best interests and reasonably practicable. The court made orders that the parties have equal shared parental responsibility and for the child to spend equal time with each parent, with a graduated increase in time.

The court ordered that all previous parenting orders be discharged and that the parties have equal shared parental responsibility for the child. The court ordered that the child spend time with the mother from the conclusion of school on Thursday until the commencement of school on Tuesday and each alternate week thereafter, with a further night to be added six months from the date of the order. The child was to spend equal time with each parent twelve months from the date of the order. The court also made orders in relation to the child’s time with the parties during school holiday periods, special occasions, communication between the parties and the child, non-school changeovers, interstate and overseas travel, and the application for a passport for the child. The court discharged the appointment of the ICL. The orders made by the court were designed to promote a meaningful relationship between the child and both parents, to protect the child from physical or psychological harm, and to ensure that the child’s day to day and immediate needs were properly attended to.

Orders

Orders of the court

MLC 571 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SULLIVAN

Applicant

AND:

MS DICKENS

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS:

1. That all previous parenting orders be discharged.

2. That the parties have equal shared parental responsibility for B born 2010 (“the child”).

3. That the child spend time with the mother as follows:

(a) From the conclusion of school Thursday to the commencement of school on Tuesday and each alternate week thereafter commencing 19 May 2022;

(b) From the commencement of term four, from the conclusion of school Thursday until the commencement of school on Wednesday (or 5.00 pm if a non-school day) each alternate week commencing 13 October 2022;

(c) From the commencement of term three 2023 on a week about basis with changeover to occur each Thursday from the conclusion of school (or 5.00 pm if a non-school day);

(d) Commencing at the end of term four in 2022 for half of the school term holidays as agreed and in default of agreement:

(i) for the first half of the term one school holidays in each year;

(ii) for the second half of the term two school holidays in each year;

(iii) for the first half of the term three school holidays in each year; and

(iv) for the second half of the term four long summer school holidays in each year.

4. That the child live with the father at all other times not specified in paragraph 3 of these orders.

5. For the avoidance of doubt the school term time arrangements provided for in paragraph 3 of these orders shall be suspended during the school holiday periods and resume as if the holiday periods have not intervened, unless otherwise agreed between the parties.

6. That the child’s time with the parties pursuant to paragraph 3 and 4 be suspended to ensure that the child spends time with each of the parties as follows:

(a) With the mother:

(i) For the child’s birthday in 2022 and each alternate year thereafter from the conclusion of school the day of his birthday (or 3.00 pm if a non-school day) until the commencement of school the following day (or 5.00 pm if a non-school day) PROVIDED the mother forego the next weekend that the child would usually live with her.

(ii) For the child’s birthday in 2023 and each alternate year thereafter from the conclusion of the school day before his birthday (or 3.00 pm if a non-school day) until the commencement of school on his birthday (or 3.00 pm if a non-school day) PROVIDED the mother forego the next weekend that the child would usually live with her.

(iii) On the mother’s birthday from the conclusion of school the day before (or 3.00 pm if a non-school day) until the commencement of school the day after the mother’s birthday (or 5.00 pm if a non-school day) provided the child is not interstate or overseas with the father.

(iv) On Mother’s Day from 3.00 pm the day before until the commencement of school the following day (or 5.00 pm if a non-school day).

(v) From 4.00 pm Christmas Eve until 4.00 pm Christmas Day in odd numbered years.

(vi) From 4.00 pm Christmas Day until 4.00 pm Boxing Day in even numbered years.

(vii) On Anzac Day in 2023 and each alternate year thereafter, from the conclusion of school the day before (or 3.00 pm if a non-school day) until the commencement of school the following day (or 5.00 pm for a non-school day).

(viii) On the Queen’s birthday public holiday in 2022 and each alternate year thereafter, from the conclusion of school the Friday before (or 3.00 pm if a non-school day) until the commencement of school the following Tuesday (or 5.00 pm if a non-school day) and, if the operation of this order would result in the child living with the mother for three consecutive weekends, the mother forego the next weekend after Mother’s Day that the child would otherwise live with her pursuant to paragraph 3 of these orders.

(b) With the father:

(i) For the child’s birthday in 2022 and each alternate year thereafter from the conclusion of school the day before his birthday (or 3.00 pm if a non-school day) until the commencement of school on his birthday (or 3.00 pm if a non-school day) PROVIDED the father forego the next weekend that the child would usually live with him.

(ii) For the child’s birthday in 2023 and each alternate year thereafter from the conclusion of school the day of his birthday (or 3.00 pm if a non-school day) until the commencement of school the following day (or 5.00 pm if a non-school day) PROVIDED the father forego the next weekend that the child would usually live with him.

(iii) On the father’s birthday from 3.00 pm the day before until 5.00 pm the day after the father’s birthday provided the child is not interstate or overseas with the mother.

(iv) On Father’s Day from 3.00 pm the day before until the commencement of school the following day (or 5.00 pm if a non-school day).

(v) From 4.00 pm Christmas Eve until 4.00 pm Christmas Day in even numbered years.

(vi) From 4.00 pm Christmas Day until 4.00 pm Boxing Day in odd numbered years.

(vii) On Anzac Day in 2024 and each alternate year thereafter from the conclusion of school the day before (or 3.00 pm if a non-school day) until the commencement of school the following day (or 5.00 pm if a non-school day).

(viii) On the Queen’s birthday in 2023 and in each alternate year thereafter, from the conclusion of school the Friday before (or 3.00 pm if a non-school day) until the commencement of school the following Tuesday (or 5.00 pm if a non-school day) and, if the operation of this order would result in the child living with the father for three consecutive weekends, the father forego the next weekend after the father’s day that the child would otherwise live with him pursuant to paragraph 4 of this order.

7. That the father be permitted to enrol the child at H School, or any other private school within a ten kilometre radius of H School in any year from 2022 onwards provided that the cost of the child’s tuition and all associated costs be solely met by the father and the father shall notify the mother of his intention to do so prior to advising the child of same.

8. The parties will each do all acts and things necessary to ensure that each party:

(a) Be at liberty to communicate with the child on Tuesday, Thursday and Saturday night by voice or video, when in the other parent’s care;

(b) Be restrained from taking the child out of school for any period of time without the written consent of the other, save for in the event of illness or emergency;

(c) Be authorised to request from the principal or proper officer of any school attended by the child for copies of all school newsletters, event notices, school reports and application forms for school photographs, at the expense of each party;

(d) Is promptly provided with any school related communications, and birthday party invitations received by the other parent;

(e) Be at liberty to attend all school functions, events, parent/teacher interviews, school concerts and sporting competitions and events including all extracurricular activities ordinarily attended by parents or by invitation;

(f) Seek and obtain the other party’s consent prior to enrolling the child in any extracurricular activities that are to occur during the child’s time in the care of the other party;

(g) Use their best endeavours to ensure that the child attends all mutually agreed extracurricular activities whilst he is in their care;

(h) Be entitled to have access to and discuss any medical issues including, but not limited to medical records, with any of the child’s treating medical practitioners (at his/her own expense);

(i) Keep the other informed of any illness or accident suffered by the child that requires medical treatment, and as soon as practicable, advise the other of the name and telephone number of each relevant treating medical practitioner or a like professional to discuss the illness or accident, treatment and prognosis with the other party and with any medical related documents, prescription and/or treatment plan promptly communicated to the other party;

(j) Reside within a 30 minute drive of the child’s school save where the father has exercised his entitlement to change schools pursuant to the terms of this order to a school which is more than a 30 minute drive from the mother’s residence from the time of the change.

(k) Keep the other advised of their current residential address and mobile telephone number and advise the detail of any changes within 48 hours of a change in any of those details.

9. That unless otherwise agreed, ensure all non-school changeovers will take place in front of the child’s school.

10. That each party be permitted to travel interstate or overseas with the child for holidays during their time with him, upon giving seven days’ notice for interstate travel and 45 written days’ notice for overseas travel to the other providing that the parent who proposes to travel shall inform the other parent of the proposal to travel in writing, prior to raising the prospects of travelling with the child subject to the following:

(a) If either party wishes to travel with the child outside of their own time they shall seek the consent of the other at least seven days prior to the intended interstate travel and 30 days prior to any intended overseas travel and make up time shall be provided in the event that consent to travel is given;

(b) In either case:

(i) The travelling party shall provide to the other party at least seven days prior to the intended travel copies of all airfares/transport arrangements and itinerary and contact details for the child whilst he is away including all accommodation details;

(ii) The travelling party shall immediately notify the other in the event of an unforeseen change to these arrangements.

11. That the parents do all things necessary and sign all documents required to apply for a passport for the child to issue with the cost of such application to be met equally by the parties provided that the child’s passport will be held by the father in the calendar year 2023 and each alternate year thereafter and by the mother in 2024 and each alternate year thereafter.

12. That the child’s passport shall be released by the party holding same not less than seven days prior to the date of departure with the passport to be returned to the party holding same within seven days of the child’s return.

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

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

By their Case Outline filed 5 December 2021, the ICL originally sought that the parties have equal shared parental responsibility for the child and that there be an increase in the child’s time spent with the mother. During closing submissions, the ICL indicated that their position in relation to parental responsibility remained the same, however they recommended an equal shared care arrangement.BACKGROUND The father is 49 years of age and currently employed as a professional. The mother is 53 years of age and at the time of the trial was studying with an anticipated completion date in 2022. On the mother’s case, the parties commenced a relationship in 2008 and separated on a final basis in 2010. There is only one child of the relationship, namely the subject child. It is the mother’s position that up until the child was eight years of age, she was his primary carer given that he was in her care 60 per cent of the time. At the commencement of the proceedings, pursuant to the orders of Senior Registrar Fitzgibbon dated 16 February 2016, the child was living with the mother and spending five nights per fortnight with the father. The post-separation relationships between the parties and between the mother and the child have been fraught with allegations of family violence. An incident between the parties in early 2015 resulted in the mother agreeing to a limited intervention order without admissions. In late 2018, in the midst of these parenting proceedings, a physical incident occurred between the mother and child. The mother alleged she accidentally struck the child, causing injuries to his face. The father alleged the mother struck the child in the face with a plastic dog ball throwing device. Child Protection became involved, issuing a Protection Application with an Accommodation Order being made by the Children’s Court for the child to live with the father and spend supervised time with mother. The mother was also charged by Police with one count of intention to cause harm. The mother pleaded guilty to recklessly cause injury and received a fine, without conviction. On Mother’s Day in 2020, there was a physical altercation between the mother and the child. The mother alleges the child was hitting her and whilst trying to grab the child’s hands, she scratched his face. It is the father’s position that the mother, having consumed alcohol, assaulted the child. Upon return to the father’s care, the child was taken to hospital for examination. The mother was subsequently charged with unlawful assault and recklessly causing injury to the child. A full intervention order was obtained which suspended the interim parenting orders until October 2020. Upon application made by the mother, the intervention order was varied in order for there to be contact between the mother and the child. The mother was fined with conviction in mid-2021. On 22 April 2021, a final intervention order was made against the mother without admission, naming the child as the protected person. The intervention order expired on 22 April 2022.

Evidence

Evidence Before The Court

The ICL filed a Case Outline document on 5 December 2021 and did not therein seek to rely upon any other documents. THE EVIDENCEThe father The father acknowledged that the parties were largely agreed as to the ancillary orders. The father considered the text message exchange between the parties in April 2020. The father conceded that it was an unhelpful text exchange between the parties. The father did not concede that he was other than respectful of the mother nor did he consider that there was any reason for the mother to feel intimidated by him. The father emphasised the case plan for the child comprising annexure “[Mr Sullivan]O3” to his affidavit filed 8 November 2021. The annexure highlighted his concern that the mother had physically assaulted the child in May 2020 and an intervention order had been put in place which prevented the mother from having any contact with the child and suspended the current spend time with orders. The further consequence, according to the father, was that the child at the time was scared of the mother and resisted spending time with her. Whilst the child’s concerns had significantly abated, the father did not consider that the relationship between the parties was such that they could co-parent effectively. The father’s evidence did demonstrate that when the parties were able to focus on the needs of the child rather than their own interparental conflict, agreement was possible. The parties were able to agree upon the level of specialist intervention to assist the child in the management of his seizures. In answer to questions posed by counsel for the ICL, the father accepted that the orders he sought, namely that any time the child would spend with the mother was subject to his wishes, were too extreme. When asked to consider that there may be benefit to the child spending equal time with the parties, the father expressed his concern that the child’s homework was not being properly completed and that in the mother’s home there was limited restraint on the child’s propensity to engage in online gaming. The father considers that the mother is not sufficiently attuned to the child’s special needs whereas he has structured his work to ensure the child is supported. Whilst the father now acknowledges that the child will be best served by him spending significant and substantial time with the mother, he does not consider that the parties would be able to reach sufficient consensus for shared care to be workable.The mother The mother was challenged as to the extent of her consumption of alcoholic drinks. She agreed that the child had raised concerns as to the extent of alcohol consumed by her however she did not agree that his concerns, or for that matter those expressed by the father, were justified. The mother acknowledged that she consumed alcohol in the presence of the child but that the consumption was modest, infrequent and not on any occasion did it result in her being adversely affected. In her trial affidavit, the mother set out the therapeutic goals that arose from the intensive therapeutic program with Ms J.

Decision

Reasons for decision

Even on the father’s proposal, it seems appropriate that the parties should retain shared parental responsibility. I bring to account the primary and additional factors as set out in s 60CC of the Act and consider that given the strong recommendations of Ms J and the early history of the matter, wherein the child was in the primary care of the mother until 2018, the interests of the child is best served by an order for equal shared parental responsibility.CONCLUSION If an order of equal shared parental responsibility is made, s 65DAA of the Act requires that the Court must consider whether the child spending equal time with the parties is both in his best interests and reasonably practicable as provided for in s 65DAA(5). In the circumstances of this case, equal time is practicable and therefore the focus is whether it is in the child’s best interests for such an order to be made. In Gallimore & Gallimore [2018] FamCA 249 Watts J stated:113.I accept the submission of counsel for the husband that the word “consider” in s 65DAA(1) has the meaning adopted by the High Court in Bondelmonte, namely an obligation to give “proper, realistic and genuine consideration.” The best interests of the child will be served by an order that his time with each of the parties be shared equally. I do not ignore the evidence that there may well be an alliance between the child and the father and that historically there has been some animosity displayed by the child towards the mother. I am not able to find that any aggressive behaviour of the child towards the mother is a reflection of the father’s attitude towards her, however, whilst there are different parenting styles, the current arrangement has indicated the child’s resilience in dealing with the different parenting arrangements in the two households. There is some force in the concern expressed by the ICL that orders should be made which do not prefer one party over the other. The evidence has been presented that either of the parties are not able to properly attend to the child’s day to day and immediate needs such as education and extracurricular activities. The way forward, considering that there may be a need for the child to adjust to a changing domestic arrangement, is to put in place a graduated increase in time. I will make orders that the parties have equal shared parental responsibility and to increase the time the child shall spend with the mother by a further night to come into operation six months from the date of these orders and then for the parties to have equal time twelve months after. The import of the orders is to cause the child to spend equal time with each of the parties as and from eighteen months of the date of these orders. The parties are agreed as to ancillary orders. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

I propose to adopt the following approach:(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, if applicable;(5)Have regard to the additional considerations under s 60CC(3) of the Act;(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment. PARENTING CONSIDERATIONSMeaningful relationship The evidence of Ms J reinforces her conclusion and recommendations as set out in her report:In conclusion, all identified goals have been addressed within the ITP program. Both parents love [the child] and want the best for him. Both parents have worked hard to improve their parenting of [the child]. [The mother] has enacted all suggested strategies to improve her relationship with [the child] and over time, it is expected that trust will be restored. There are no immediate concerns regarding [the child’s] ongoing safety, stability, development and access to his culture & family. However, should [the child] continue to be exposed to parental conflict, he remains at risk of emotional harm. This would affect his relationship with both parents in the years to come as he approached adolescence, if not addressed. My recommendation is to consider the following:• For the parents to engage with Functional Family Therapy to assist them to communicate effectively and to quash negative assumptions made.• For [the child] to continue to enjoy shared care with both parents on the current arrangements. On the 12/01/2021, [the mother] informed the writer that she is happy with the 40/60 ([the mother/the father]) access arrangement going forward.• For [the father] to support [the child] to visit the maternal side (with [the mother]) of his family in Queensland on a regular basis to ensure [the child’s] relational connection.• For the parents to adhere to the arrangement agreed to on the FLC orders around Xmas access to ensure that [the child] has contact with both parents.• Future referral to Family Services as required for support. [3] [3] Exhibit “2”, pages 8 – 9. The orders sought by each of the parties are broadly informed by the concluding remarks of Ms J. The mother seeks for her time to increase from five nights to seven nights per fortnight. In that regard, it appears that she has departed from her stated position to Ms J.