FAMILY COURT OF AUSTRALIA
| SULLY & SULLY & ANOR | [2015] FamCA 1111 |
| FAMILY LAW – CHILDREN – final orders – where the children are Aboriginal – where the sibling group is split – where the two older children live with the grandmother and three younger children live with the mother – where the grandmother seeks orders for all children to live with her – where the mother seeks orders for the three younger children to remain in her care – where the father seeks unsupervised time with the three younger children – where there are allegations of drug and alcohol abuse, family violence, child sexual abuse and alienation – where there is a high level of dysfunction between the parties – where there are multiple family reports – where it is recommended that the parties promote a relationship between the sibling group – where the independent children’s lawyer promotes the currently living situation with regular sibling unification – where consideration is given to the best interests of the children as the paramount consideration – where the additional considerations are outlined and deliberated – where orders are made for parental responsibility – where it is ordered that the two older children live with the grandmother and the three younger children live with the mother – where detailed orders are made for time spent – where it is ordered that on two occasions per year the sibling group spend time together. FAMILY LAW – CHILDREN – family violence – where the father admits a history of extreme and damaging domestic violence perpetrated against the mother – where consideration is given to what impact the father’s history of domestic violence should have on the orders he seeks – where the father lacks insight into what impact his behaviour has on the children – where the father is so inculcated into an environment where family violence is the norm that he has suffered a level of desensitisation – where consideration is given to the unacceptable risk of harm to children in seeing violent behaviour – where the father’s evidence was unconvincing and unreliable – where orders are sought for the father to undergo counselling and a parenting course and that his time with the children be supervised – where the family consultant does not consider the father’s violent history a barrier to the children spending time with him on an unsupervised basis – where consideration is given to the allegations and history of domestic violence in applying the best interests test – where it is ordered that the father attend anger management, domestic violence and substance abuse counselling before spending supervised time with the children on a gradually increasing basis. |
| Family Law Act 1975 (Cth) s 4AB, s 60A, s 60B, s 60CA, s 60CC, s 65DAA, s 67U, s 69ZN, s 69ZQ, s 69ZR, s 69ZT Evidence Act 1995 (Cth) |
| Amador v Amador (2009) 43 Fam LR 268 |
Continue reading Sully and Sully and Anor
Sign in free to access the full text
- AGLC
- Sully and Sully and Anor [2015] FamCA 1111
- Case
- [2015] FamCA 1111
- Decision Date
CaseChat Overview and Summary
The court was required to determine the paramount consideration of the best interests of the children, taking into account additional outlined considerations. Specifically, the court had to assess the impact of the father's admitted history of extreme domestic violence against the mother on his application for unsupervised time, considering his lack of insight into the effects of his behaviour and a potential desensitisation to family violence. The court also needed to weigh the unacceptable risk of harm to children witnessing violent behaviour against the family consultant's view that the father's history was not a barrier to unsupervised time.
Berman J applied the best interests test, giving significant weight to the allegations and history of domestic violence. The court ordered that the two older children live with the grandmother and have sole parental responsibility for them, while the mother retained sole parental responsibility for the three younger children, who were ordered to live with her. Detailed orders were made for time spent between the children and their respective parents and grandmother, including provisions for sibling unification on two occasions per year. Crucially, the father was ordered to attend anger management, domestic violence, and substance abuse counselling before commencing supervised time with the younger children, with a gradually increasing basis for unsupervised time contingent on successful completion of these programs. The court also made various restraining orders and communication provisions to safeguard the children's welfare.
Orders
Orders of the court
1.
All previous parenting orders in these proceedings be discharged.
2.
The respondent grandmother Ms B Sully (“the grandmother”) shall have sole parental responsibility for E born … 1999 (“E”) and K born … 2002 (“K”) (collectively “the older children”)
3.
The children E and K shall live with the grandmother.
4.
The applicant mother Ms A Sully (“the mother”) shall spend time with and communicate with E and K in accordance with their wishes.
5.
The mother is permitted to communicate with E and K by post and to forward letters and presents to E and K.
6.
That the grandmother shall ensure that any letters and presents forwarded by the mother to E and K are received by them and that she encourage a response from the children acknowledging receipt.
7.
The grandmother shall inform the mother by text message or direct communication of any serious medical matters relating to E and K including medical appointments and procedures or serious illness or injury and that the mother be permitted to access any medical information relating to the children through discussion with treating health professionals and access to other medical information.
8.
That the grandmother shall provide all necessary authority to allow each treating health professional upon whom E and K attend to provide information to the mother.
9.
The grandmother shall provide all necessary authority to allow each school at which E and K are enrolled to provide school reports and information to the mother upon her request.
10.
The mother shall have sole parental responsibility for the children F born … 2002 (“F”), G born … 2004 (“G”) and H born … 2007 (“H”) (collectively “the younger children”).
11.
That F, G and H shall live with the mother.
12.
They shall spend time with the grandmother PROVIDING that E and/or K shall be resident in the grandmother’s household at the time as follows:
(a) for one week during the Christmas school holidays as agreed and in default of agreement for one week from the first Sunday of the school holidays in even numbered years and for one week from the third last Sunday of the holidays in odd numbered years;
(b) for one week in the June/July school holidays and in default of agreement for one week in the first half in even numbered years and for one week in the second half in odd numbered years;
(c) on any occasion that the grandmother together with either E or K are in N Town and upon the grandmother providing written notice to the mother four (4) weeks in advance of any planned visit to N Town for the purposes of spending time with the children, such shall take place from 4 pm Friday to 4 pm Sunday;
(d) at such other times as may be agreed between the mother and the grandmother in writing, by SMS text message or other direct communication.
13.
For the purposes of implementing order 12(a) and (b):
(a) for the first visit after the making of these orders and each alternate visit thereafter, the mother shall deliver F, G and H to the grandmother at the Police Station in P Town at the commencement of the visit and the grandmother shall return them to the mother at the Police Station in P Town at the conclusion of the visit;
(b) for the second visit after the making of these orders and each alternate visit thereafter, the mother shall deliver F, G and H to the grandmother at the Police Station in I Town at the commencement of the visit and the grandmother shall return them to the mother at the Police Station in I Town at the conclusion of the visit;
(c) at such other place or places as the parties may agree.
14.
For the purposes of implementing order 12(c), the mother shall deliver the children to the grandmother at N Town Police Station at the commencement of the time and the grandmother shall return them to the mother at N Town Police Station at the conclusion of the time.
15.
That upon the father attending anger management, domestic violence and substance abuse counselling at a recognised government or non-government organisation and upon him providing proof of attendance of the same and the successful completion to the mother in writing:
(a) the children F, G and H shall spend time with the father as follows:
(i) for a period of three (3) months from 10 am to 4 pm on each fourth Sunday;
(ii) for a period of three (3) months thereafter, from 10 am to 4 pm Saturday and 10 am to 4 pm on the following Sunday on each fourth weekend;
(iii) for a period of three (3) months thereafter, from 10 am Saturday to 4 pm Sunday on each fourth weekend;
(iv) thereafter, from the conclusion of school Friday to 4pm Sunday on each fourth weekend.
16.
Upon the father commencing to spend time with the children pursuant to order 15(a)(iv) hereof THEN in addition thereto, the father shall also spend time with the children as follows:
(a) for five (5) nights in the September/October school holidays;
(b) for one (1) week in the December/January school holidays.
PROVIDING that such time spent shall not coincide or occur immediately before or immediately after the time that the children shall spend with the grandmother pursuant to these orders.
17.
That handover of the children as between the mother and the father shall take place at the N Town Police Station or at such other place as may be agreed between the parties.
18.
That the father is restrained and an injunction is granted restraining him from:
(a) consuming alcohol or any illicit or non-prescription drug for twelve (12) hours prior to and during all time spent with the children;
(b) permitting the children to come into contact with any person contravening paragraph 18(a) hereof;
(c) denigrating the mother within the presence of or within the hearing of the children or allowing other persons to do so; AND FURTHER that upon it coming to the attention of the father that his wife Ms R has denigrated the mother in the presence of the children or has referred to her in a derogatory or offensive manner THEN he will forthwith return the children to the mother’s care and his time with the children in respect of the balance of any spend time period is suspended.
19.
The mother is to provide all necessary authority to allow each treating health professional upon whom F, G and H attend to provide information to the father and the grandmother.
20.
The mother shall provide all authority to allow each school at which F, G and H are enrolled to provide school reports and information to the father.
21.
That the grandmother shall ensure the older children are at liberty to communicate with their siblings in the care of the mother by permitting them to telephone at any reasonable time on a phone number nominated by the mother.
22.
The mother shall take all steps necessary to facilitate F, G and H telephoning their siblings in the care of the grandmother by permitting them to telephone at any reasonable time on a phone number nominated by the grandmother.
23.
Each party shall provide the children in their care with privacy when they are communicating by telephone with the other.
24.
Each party shall keep the other advised at all times of their residential address and contact phone number.
25.
The grandmother is restrained from:
(a) initiating or continuing any discussion with any of the children about past allegations of abuse;
(b) initiating or continuing any discussion with any of the children about her desire for the children to reside with her.
26.
The mother is restrained from bringing the children into contact with Mr Z.
27.
The order for the appointment of the Independent Children’s Lawyer is discharged.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.