SULLIVAN & KENDALL

[2015] FCCA 2467

FEDERAL CIRCUIT COURT OF AUSTRALIA

SULLIVAN & KENDALL [2015] FCCA 2467

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application to vary previous consent orders – best interests of the children – parental responsibility – sole parental responsibility – Family Law Watch List – overseas travel – whether parties should be restrained from removing children from Australia – where mother of (country omitted) descent – father of (country omitted) descent – whether father’s time with children needs to be supervised – conflicting evidence – where court unable to make factual findings – where parenting relationship has broken down.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MS SULLIVAN

Respondent: MR KENDALL

File Number: SYC 6929 of 2014

Judgment of: Judge Scarlett

Hearing date: 24 August 2015

Date of Last Submission: 24 August 2015

Delivered at: Sydney

Delivered on: 14 September 2015

REPRESENTATION

Solicitor for the Applicant: Mr Miller

Solicitors for the Applicant: Miller Goddard Solicitors

Counsel for the Respondent: Mr Johnson

Solicitors for the Respondent: Cambridge Lawyers

Independent Children's Lawyer: Mr Bell

Solicitors for the Independent Children's Lawyer: Stephen W. Bell & Associates

UNTIL FURTHER ORDER

1. All earlier parenting Orders are suspended.

2. The Applicant mother is to have sole parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2009.

3. The children X and Y are to live with the mother.

4. The children X and Y are to spend time with the Respondent father from 2:00 pm to 7:00 pm each Sunday such time to be supervised by Ms T or such other responsible adult nominated by the mother and approved by the Independent Children’s Lawyer.

5. For the purposes of the immediately preceding Order the father is to pay the supervisor’s reasonable fees.

6. For the purposes of Order (4) above changeover where the children go from the care of one parent to the care of the other in accordance with these Orders is to take place at the (omitted) Railway Station.

7. On all occasions when the father is not in Australia he may contact the said children X and Y by Skype or similar video link between the hours of 2:00 pm and 4:00 pm each Sunday and for this purpose the mother is to make the children available to communicate with the father between those hours.

8. The parties are restrained by injunction from abusing or criticising or speaking in an offensive manner to each other in the presence or hearing of the children or either of them.

9. Each of them MS SULLIVAN and MR KENDALL is restrained by injunction from removing or attempting to remove or causing or permitting the removal of X a male born (omitted) 2006 and Y a male born (omitted) 2009 from the Commonwealth of Australia.

10. The said children X a male born (omitted) 2006 and Y a male born (omitted) 2009 are hereby restrained from leaving the Commonwealth of Australia.

11. IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding Orders by placing the names of the said children X and Y on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of TWO (2) years.

12. Upon the expiration of the period referred to in the immediately preceding Order and subject to any further of a court of competent jurisdiction the Australian Federal Police will cause the removal of the names of the said children from the Watch List.

13. The parties are to attend upon a Family Consultant at a time, date and place set by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of interviews for the preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975, such Report to deal with matters relevant to the care, welfare and development of the said children X born (omitted) 2006 and Y born (omitted) 2009.

IT IS NOTED that publication of this judgment under the pseudonym Sullivan & Kendall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6929 of 2014

MS SULLIVAN

Applicant

And

MR KENDALL

Respondent

REASONS FOR JUDGMENT

1. This is an Application for interim orders where both the Applicant and the Respondent are seeking to vary parenting orders which were made by consent on 2 February 2015.  The Applicant seeks to vary those orders because she says that she was not made fully aware of the contents of those orders.  She is of (country omitted) descent and did not have the availability of an interpreter in the (country omitted) language to assist her at the time.  She says that her previous solicitor gave her the draft orders and told her to sign them.

2. The Respondent is of (country omitted) descent.  He too seeks to vary those orders.  It is his case that the time with the children provided by those orders is not sufficient and he does not agree that his time with the children should be supervised.

Orders sought 

1. The orders sought by the mother are set out in her Application in a Case filed on 30 March 2015.  That Application was prepared by her current solicitor.  She seeks orders until further order that the children should live with her, and that Order 1 made on 2 February should be varied to state that:

   Pending hearing of the application for final orders herein: 

   (a) the Respondent and his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children of the marriage, X born (omitted) 2006 and Y, born (omitted) 2009 from the Commonwealth of Australia; 

   (b) that the children of the marriage, X and Y (the children) live with the applicant mother; 

   (c) that the children be placed on the airport Watchlist, maintained by the Australian Federal Police. 

2. She further seeks that Order 3, made on 2 February 2015, should be varied so as to state:

   That when the Respondent Father is in Australia, the children spend time with him each Sunday from 2pm to 7 pm in the presence of a suitable adult person nominated by the Mother and paid for by the Father and the Father provide necessary information so that the Mother can contact the children during the time they spend time with the Father, provided that the Respondent picks up the children at (omitted) railway station or such other place as agreed by the parties in writing and returns them to the applicant at the same place and that the respondent does not intimidate or threaten the children or either of them.  The applicant have leave to urgently apply to vary or discharge this order should the respondent intimidate or threaten either child. 

3. The mother further seeks an order that Order 7 made on 2 February 2015 be varied so as to provide that:

   That when the respondent father is not in Australia, he may contact the children by Skype or similar video link between 2 pm and 4 pm each Sunday.

4. The Respondent, who is the father, seeks orders as set out in his response that was filed on 1 June this year.  He seeks orders that:

   (1)The Respondent Father be able to contact the children every Friday from 7 pm to 8 pm by email, text, Skype or similar methods. 

   (2)The children spend time with him without any external supervision every weekend from 10 am Saturday to 5 pm Sunday.

   (3) For any other special occasions, such as the children’s birthdays, the Children to spend 1/2 of the day with each party as agreed.

Evidence and submissions 

1. Each party has provided affidavit evidence.  The Interim Orders that were made by consent on 2 February, which both parties now wish to vary, provided an agreement by the Respondent father not to take the children out of Australia, provided an agreement that the Respondent spend time with the children from 3 pm to 6.30 pm each Tuesday and Thursday and from 2 pm Saturday until 2 pm on Sunday and provide that the father should pick up the children at a nominated place and return them to that same place and that he does not intimidate or threaten the children. 

2. The Court was also asked to note that the Respondent was to continue to pay a sum of $1300 for the children’s financial support.  This presumably was by way of child support.  There was a further order made by consent on 8 April, that until further order the mother and the father were not to say anything offensive about each other in the presence or hearing of the children. 

3. The Court has had the benefit of reading comprehensive but succinct case outline documents prepared by the mother’s solicitor, the father’s solicitor and the Independent Children’s Lawyer.  The Court has also had the benefit of hearing submissions from the solicitor for the mother, counsel for the father and the Independent Children’s Lawyer. 

4. In the mother’s case outline, the mother’s solicitor notes that both parties seek a variation of the interim orders made by consent on 2 February, as the mother alleges she did not consent to those orders as she did not understand them.  Mr Miller, for the mother, also notes that the father does not dispute the mother’s application that the children should live with her or that they be placed on the Family Law Watchlist.  Mr Miller sets out the issues as:

   (1) the times the children should spend with the father; 

   (2) whether there is to be supervision when the children spend time with the father;  and

   (3) the time that the father may contact the children by Skype when he is not in Australia. 

5. The Independent Children’s Lawyer has provided a helpful case outline, which contains some agreed facts.  Mr Bell, the Independent Children’s Lawyer, is certainly of a view that a primary issue between the parties is as to whether the father’s time with the children should be supervised by a person nominated by the mother.  The mother has, in fact, provided an affidavit from one Ms T, who is the proposed supervisor.

Background 

1. The background to this matter is that the children reside with the mother.  The father now resides permanently in Australia.  The father is (nationality omitted).  The mother is (nationality omitted).  The first child has the mother’s surname and the second child has the father’s surname.  In January 2011, the father had symptoms of a brain tumour, which were diagnosed on 28 April 2011 as brain cancer.  He underwent surgery and chemotherapy at (omitted) Hospital. 

2. During the years 2013 to 2015, the father spent considerable amounts of time outside Australia either working or in search of employment.  He was in (country omitted) from 3 January to 7 February 2013, a period of 35 days.  He was in the (country omitted) from 16 April 2013 to 24 July of that year, a period of approximately three months.  He was in (country omitted) again from 22 November 2013 to 2 January 2014, a period of approximately six weeks.  Further, he was in the (country omitted) from May 2014 to April 2015, a period of almost one year.  The mother has made complaints about family violence by the father and has complained to the police about bizarre behaviour by the father. 

3. The father did spend time with the children on 7 June, supervised by Ms T, the mother’s proposed supervisor.  This is a case where the parties’ accounts of the alleged violence which the mother claims are vastly at odds.  One of the difficulties in a case such as this is that the Court is unable to make a definitive finding of fact where the parties’ evidence about those issues is so much at variance. 

4. This is a matter that has been recognised by the Full Court of the Family Court in Goode & Goode[1], which, with respect, provides a helpful guide to trial judges in dealing with interim parenting applications.  Whilst there is evidence of involvement by the police, it appears that the police have not taken action.  There was a variation proposed in the time that the mother considers to be appropriate for the father to spend with the children. 

   [1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

5. This time coincides with the availability of Ms T as a proposed supervisor of the children and the proposed time from 2 pm to 7 pm each Sunday.  I have heard submissions from the Independent Children’s Lawyer, from Mr Miller, for the mother and from Mr Johnson of Counsel for the father.  Essentially, the Independent Children’s Lawyer supports the orders proposed by the mother.  As Mr Bell submitted, this is not quite an unacceptable risk case, but the father has suffered from a serious brain cancer in 2011 and this has had some effect on his behaviour. 

6. The mother has some doubts about his behaviour as a result.  It is also significant, the Independent Children’s Lawyer submitted, that the father has spent various periods of time from 2013 to 2015 outside of Australia.  These times in aggregate amount to well over a year and a half.  The children’s perception of the father was having a good time whilst he was overseas.  The father now works in Australia but not permanently. 

7. The police records have been subpoenaed and there is certainly evidence of the mother calling the police to the home.  The police report that the mother does not speak good English, although she complained the father had shaken the children whilst holding them upside down at the top of the stairs.  There are, Mr Bell submitted, unproved allegations of risk to the children.  It is certainly the case, as submitted by the Independent Children’s Lawyer, the father has lost the stable relationship that he would have had with the children had he spent that time in Australia.  The father’s relationship with the children needs time to be repaired. 

8. The Independent Children’s Lawyer noted that the father does not agree with supervision and also noted that he last saw the children on 7 June.  The Independent Children’s Lawyer is of the view of that the father needs to re-establish his relationship with the children and if the father’s time with the children needs to be supervised, he is of a view that the supervision should be minimal. 

9. The proposed supervisor is a university student.  She cannot make herself available on Saturdays but can make herself available from 2 pm to 7 pm on Sundays.  The children are at after school care five days a week.  Mr Bell was of the view that a period of three months would be an acceptable period of time for supervision and noted there is no apprehended domestic violence order in force and further noting there is no corroborating evidence of violence by the father. 

10. Mr Miller, the solicitor for the mother, submitted that the mother does not know the father’s present or intended future intentions.  She does not know where he is living or if he intends to return to the (country omitted).  The mother has been fearful of the father’s behaviour since his brain tumour, noting the time that he spent in hospital having that issue dealt with.  Mr Miller submits for the mother that the father’s time with the children shows a clear need for supervision. 

11. Incidentally, whilst the father promised to pay child support – and this was noted in the orders of 2 February – Mr Miller submitted that that child support has not in fact been paid.  It is also the mother’s case that the mother has a concern that the father might attempt to take the children from Australia and seeks an order that they have their names placed on the Family Law Watchlist maintained by the Australian Federal Police. 

12. As to supervision, Mr Miller submitted that the proposed supervisor, Ms T, is available on Sundays but she is not available on Tuesdays or Thursdays as provided in the earlier orders.  The mother has limited English, and it was submitted that at no time has she gone to the police and sought an AVO.  The father, on the other hand, speaks fluent (language omitted) as well as English and (language omitted).  Mr Johnson of Counsel for the respondent father submitted that the parties separated on 13 May 2014 when the father was in the (country omitted). 

13. He noted that when the orders were made on 2 February, the mother did not understand them.  Since the father returned in August, he has resided in the suburb of (omitted) where the children have spent time with him, the last time being on 7 June.  The father seeks contact with the children electronically by means of Skype on a weekly basis.  Mr Johnson noted that the mother only wants the Skype contact to take place when the father is not in Australia. 

14. The children did spend time with the father on 7 June this year.  Mr Johnson noted that no complaint was raised by the mother about that time that the father spent with the children.  The father says that supervision of his time with the children is not necessary.  He would be happy for the mother to supervise his time with the children.  As to the various attendances by the police, Mr Johnson submitted that the police records showed that there was a degree of preparedness by the mother to manipulate the circumstances to meet her aims. 

15. In fact, he submitted that the father was the victim and it was the mother’s mother who was the aggressor in an incident between the father and maternal grandparents.  The father submits that the mother sought an Apprehended Violence Order but police took the view that an apprehended violence order was not justified or, in the alternative, that the mother had changed her story.  Mr Johnson pointed out with some force that the only objective view of the family violence allegation was that offered by the police in the subpoenaed material. 

16. Mr Johnson noted that Ms T was proposed as a supervisor but she appears to have no qualifications except that she has a good relationship with the children.  As to the claim by the mother that the father had failed to pay child support, Mr Johnson submitted that on his instructions the father had made three payments to the Child Support Registrar each of $1000. The father sought interim orders in accordance with his response.  It is the father’s wish to have these matters resolved as soon as possible. 

17. Mr Johnson did not wish to be heard against a proposed order that the children’s names and particulars be placed on the Family Law Watchlist.  In reply, Mr Bell, the Independent Children’s Lawyer, submitted that the parenting relationship had broken down and needs time to build up so that stability and trust can be restored.  He proposed to speak to the proposed supervisor if the Court made an order and would draft the appropriate written undertaking.  The relevant police records and hospital records have been subpoenaed. 

18. When dealing with applications for parenting orders, the court must consider various sections found in Part VII of the Family Law Act 1975 (Cth). In particular, the Court must consider section 60B which sets out the objects of Part VII and the principles underlying those objects, Section 60CA which provides that the best interests of the child must be regarded as the paramount consideration, Section 60CC which sets out in subsections (2) and (3) how the court determines what is in the children’s best interests, Section 61DA which deals with the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child; and section 65DAA, which deals with the situation where a court does make an order that the parties should have equal shared parental responsibility. If that is the case, the Court must consider whether it is both in the children’s best interests and reasonably practicable to spend equal time with each parent. If the Court does not make such an order, subsection 65DAA(2) provides that the Court must consider whether it is both in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with each parent.

Consideration 

1. I have considered all of those matters.  What is particularly relevant in this case is subsection 60CC(2), which provides at paragraph (a) that the Court must consider the benefit to the children of having a meaningful relationship with each parent.  The Court must also consider paragraph (b) of subsection 60CCC(2), which provides that the Court must consider the need to protect the children from harm caused by being subjected to or exposed to abuse, neglect or family violence.  So often in cases of this nature, particularly interim applications, the Court needs to balance those considerations.  I have considered all of the matters in those sections insofar as they are relevant.

2. It does appear to me that there is force in the submissions of the Independent Children’s Lawyer that the relationship between the parents has broken down and that the father, by his significant absences, has lost a lot of his relationship with the children.  I agree with the Independent Children’s Lawyer that this relationship needs to be built up.  It would surely be the case that it is to the benefit of the children to have a meaningful relationship with their father.  They already have a meaningful relationship with their mother.  However, the children need to spend regular time with their father in circumstances where they are not afraid of him and where he does not indulge in bizarre or possibly abusive behaviour.

3. At this stage I am of the view that the Court should act cautiously and look at an interim order for supervision of the father’s time with the children.  I note that the father has not spent time with the children since 7 June, and quite clearly his relationship with them will only dissipate if that time with the children does not recommence at an early date. 

4. I note that the proposed supervisor, Ms T, does not have formal qualifications; however, it appears to be conceded by the parties that she has a good relationship with the children.  She has deposed to an affidavit which she affirmed on 29 May this year, in which she sets out that she is 34 years of age and is presently enrolled in a (omitted) course at a (omitted) college.  She has babysat for the children on a number of days when their mother has been absent at work.  She also deposes that she has a warm and friendly relationship with the children, she is experienced in looking after the children and she has a police clearance to look after children, as well as a first aid certificate.  She deposes that she is available to care for the children between 2 pm and 7 pm on each Sunday.

5. In my view, the children should continue to reside with their mother.  I have considered the question of parental responsibility and I am not of the view that the relationship between the parents is sufficient to make equal shared parental responsibility at all workable at this stage.  It may well be if the parenting arrangements work smoothly that the relationship between the parents will redevelop to the stage where they can cooperate about the children and make equal shared parental responsibility practicable and in the best interests of the children.  I’m not of the view that it is at that stage at the moment.

6. I now consider the question of whether the children’s names should be placed on the Family Law Watch List.  I note that each parent comes from out of Australia and in fact the father has left Australia on a variety of occasions in the last two years to work elsewhere.  It would seem to me that the mother’s concerns that the father may seek to take the children out of Australia may have some force and I note that the father does not oppose an order that the children’s names should be placed on the Watch List.  In my view, I think that should happen at this stage.

7. If the father is to go overseas again, then he should be able to communicate with the children by Skype.  It is probably not necessary for him to communicate with them by Skype if he is seeing the children for a significant block of time each Sunday.  The children are relatively young. 

8. The child X was born on (omitted) 2006, so he is now nine years of age.  Y was born on (omitted) 2009, so he is now six years of age.  They are little boys of mixed (nationality omitted) and (nationality omitted) descent, who live with their mother in Australia.  It would be beneficial for them to spend regular time with their father, but I am of the belief, as I have made clear, that it should be supervised.

9. What I propose to do is to vacate or at least suspend all earlier parenting orders and issue a set of orders which will form the one set of orders for the parents to follow until the matter can be resolved on a final basis. There will be a need for a family report and I propose to order such a report under the provisions of section 62G of the Family Law Act 1975.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  14 September 2015