Sully and Sully and Ors

[2015] FamCA 325

FAMILY COURT OF AUSTRALIA

SULLY & SULLY AND ORS [2015] FamCA 325

FAMILY LAW – CHILDREN – Interim Orders – proposed children spend time together as a sibling group at a children’s contact service – where parties separated by significant distances - whether time occur at a location closer to the mother or the respondent grandmother – best interests of the children – orders made for the children to spend time together with the mother at a children’s contact service in C Town with further time at the home of the respondent grandmother.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms A Sully

1st RESPONDENTS: Ms B Sully and

Mr Clark

2nd RESPONDENT: Mr Winter

INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

FILE NUMBER: DUC 215 of 2010

DATE DELIVERED: 6 May 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 4 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O'Connor SC

SOLICITOR FOR THE APPLICANT: Joanna Richardson & Associates

COUNSEL FOR THE 1ST RESPONDENT: Ms Coady

SOLICITOR FOR THE 1ST RESPONDENT: Louise Coady Family Lawyer

COUNSEL FOR THE 2ND RESPONDENT: Ms Orr

SOLICITOR FOR THE 2ND RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER

Gonzalez & Co

Mr Whelan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

UPON NOTING that the provisions of the order made 19 December 2014 remain in force

Orders

1. That the maternal grandmother and the mother shall ensure that they:-

   (a)sign all forms necessary and do all acts as may be required to ensure that they comply with any policies or directions of the C Town Family Relationships Centre (known as D Centre);

   (b)pay any fees in relation to this Service with half of the costs to be borne by each party such that the parties and the children shall be registered with the C Town Family Relationship Centre to enable the children to spend supervised time together as a sibling group and with such time to involve the mother.

2. That the mother and the maternal grandmother ensure that the children spend time as a sibling group as follows:-

   (a)       on no less than one (1) occasion for no less than two (2) hours;

   (b)such time to be supervised by the C Town Family Relationship Centre at a time and at a date that the Centre is available to enable the children to spend time together, but also additionally to involve the mother with the child E born … 1999 to be at liberty not to participate.

3. Subject to the children spending time together at the C Town Family Relationship Centre, the children F born … 2003, G born … 2004 and H born … 2007 shall spend time with the maternal grandmother from 5pm on 4 July 2015 to 10am on 7 July 2015.

4. That to give effect to the said children spending time with the maternal grandmother, handover at the commencement and conclusion of her time shall take place at the I Town Police Station or at such other place as the parties may agree.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sully & Sully and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DUC 215  of 2010

Ms A Sully

Applicant

And

Ms B Sully and Mr Clark
1^st Respondents

And

Mr Winter

2^nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Amended Initiating Application, Ms A Sully (“the mother”) seeks parenting orders in respect of the following children:-

   (a)E born in 1999 (16 years) (“E”);

   (b)J born in 2000 (14 years) (“J”);

   (c)K born in 2002  (13 years) (“K”);

   (d)F born in 2002 (12 years) (“F”);

   (e)L born in 2002 (12 years) (“L”); and

   (f)H born in 2007 (7 years) (“H”).

2. E and K currently live with Ms B Sully (“the maternal grandmother”).  J lives with his father Mr Clark who had been previously involved in the proceedings but no longer participates.  Whilst demonstrably unfortunate, neither the mother nor the maternal grandmother seeks orders in respect of J save and except that the maternal grandmother has indicated a willingness to facilitate the other children spending time with him.  It is an unfortunate aspect of the proceedings that J’s father does not wish to participate in the proceedings and appears unconcerned about arrangements that would see J reunited with his siblings.

3. It is the position of the maternal grandmother that she does not seek orders in respect of J and has not seen him since January 2015.

4. Whilst not directly relevant to a determination of the interim application, it is informative that the mother seeks equal shared parental responsibility of E and K (who remain in the care of the maternal grandmother) but sole parental responsibility in respect of F, L and H who reside with her.

5. She seeks that the maternal grandmother should spend time with the children in the mother’s care at any time that the parties may agree but subject to the following conditions:-

   (a)In N Town or at such other place as the children may reside;

   (b)Under the supervision of a person nominated by the mother;

   (c)During school holiday periods only.

6. Whilst the mother concedes that she will spend time with E and K at their discretion and subject to their wishes, she seeks orders that she be able to communicate with them by the forwarding of letters, cards and emails and by regular telephone contact.  Similarly, she offers the grandmother the same opportunity to communicate with the children that are in the mother’s care.

7. Additionally, the mother seeks orders that each party should encourage the relationship that the children have with the other party and will not criticise, harass, threaten, abuse or denigrate the other either directly or in the presence of the children.

8. The proposed order is directed towards what can only be described as a toxic relationship between the mother and the maternal grandmother and it is certainly the mother’s allegation that the grandmother undermines her relationship with the children, hence the need for any time between the children who are currently in her care and the grandmother be supervised.  The orders sought by the maternal grandmother are more prescriptive than those sought by her daughter.  She seeks that she have sole parental responsibility for the children (excluding J) and that the only time that the children spend with the mother is as may be determined by the maternal grandmother.

9. The parties are significantly in conflict and it is reasonable to categorise their relationship as mistrustful and internecine.

10. The final hearing commenced in December 2014 and was adjourned part-heard on 19 December 2014. On that date the parties agreed that by December 2014 the children have not seen each other as a sibling group for over 16 months. This promoted some consideration as to a remedy to the appalling circumstances in which the children were denied the ability to experience a meaningful relationship with each other.

11. On 19 December 2014 consent orders were made which provided that during the adjourned period the children remain living within their current arrangements but that the mother, the maternal grandmother and Mr Clark ensure that the children spend time together as a sibling group on no less than one occasion for not less than two hours with such time to be supervised at a time and date that the Interrelate Service at O Town may be available.  The Independent Children’s Lawyer (“ICL”) has been of pivotal assistance in the various arrangements to enable the siblings to meet.

12. The notation to the order of 19 December 2014 is informative in that notwithstanding the parties generally agree that the circumstances of the children not spending time together was unsatisfactory and not in their best interests, were nonetheless constrained to include the following notation:-

    (d)that the above orders are entered into on a without admissions basis and are not reflective of the parties position in the litigation insofar as they concern who the children live with or who decides the time the children shall spend together.

13. For completeness it should be recorded that Mr Winter being the father of F, L and H sought to be joined to the current proceedings notwithstanding that he had made a failed earlier application on the first day of hearing.  

14. Mr Winter sought and obtained representation and after submissions, orders were made on 30 March 2015 that he be joined as a second respondent to the proceedings.  All applications for final orders were adjourned for final hearing on 7 September 2015.  Mr Winter does not seek an order for shared parental responsibility but rather, seeks orders that he spend time with his children irrespective of whether they remain in the care of the mother or their care is transferred to their grandmother.  He does not wish to be heard on the current application.

15. In preparation for the resumption of the trial, an order was made that pursuant to s 62 G (2) of the Family Law Act1975 (Cth) (“the Act”) the parties and the children attend upon a Family Consultant to prepare a further Family Report to be completed and released by 4pm on 31 July 2015.

16. Those orders include an order that the proceedings be adjourned to 4 May 2015 to consider the terms and conditions if any by which the children will spend time together as a sibling group.

17. It is from those orders and against the background of the consent orders made on 19 December 2014 that the current interim proceedings are considered.

THE APPLICATION

1. Pursuant to trial directions but in support of the present application, the mother relies upon paragraphs 3 to 10 inclusive of her affidavit filed 27 April 2015.

2. Senior counsel for the mother emphasised that she is keen for the children to be in contact with each other.  The opposition is that generally but certainly until the final applications have been determined, the children in her care should only spend time with the maternal grandmother in circumstances where it is supervised by a professional supervisor.

3. Whilst undoubtedly doing an injustice to the subtleties of the mother’s case both on an interim basis but also generally, her concern is that the grandmother will undermined her parenting of the children and persuade them that they should reside with her rather than remain with the mother.

4. Consistent with her broad position that the children should spend time with each other, the mother proposes that the sibling group should come together on a monthly basis with visits alternating at O Town and C Town family relationship centres. 

5. The geography in this matter also presents challenges for the parties.  The parties are more than seven hours travelling time apart.  C Town is closer to the mother whereas O Town is closer to the grandmother.  The town of I Town is about equidistant between the parties.

6. The parties are agreed however that after extensive arrangements and substantial delay, the children did spend time together at the relationship centre in O Town on 21 March 2015.  J did not attend and it is not known whether J was aware of the meeting, Mr Clark was not prepared or able to facilitate J’s attendance, or whether J expressed no interest to do so.  The children however were delighted with their meeting and the mother concedes that F, L and H were very excited and happy about the visit.

7. Clearly, and providing that it does not have any adverse impact on the resolution of the application for final orders, effort should be expended to bring the children back together again as often as is realistically available between now and the resumption of trial on 7 September 2015.

8. The position of the maternal grandmother is set out in her affidavit of 3 May 2015. Helpfully, her affidavit provides some chronology of the communication (not face to face) that have occurred between the children in the separate care of the mother and the grandmother.  Whilst it has been clearly difficult to arrange for the children to meet with each other, the parties have at least recognised the importance of attempting to facilitate the children communicating with each other.

9. The maternal grandmother records that a difficulty arises if E telephone the children in the care of the mother and her mother answers the phone.  E will not apparently communicate with her mother.

10. The maternal grandmother does not agree that the children in her care should travel to C Town to the Contact Centre in closer proximity to the mother.  Whilst she says that she is not able to financially afford the costs in respect of travel, E and possibly K are likely not to attend if it means that E would be brought into contact with her mother.

11. Similar to the position adopted by the mother, the grandmother concerns that there is advantage to the children spending time with each other.  At the hearing of the interim proceedings, the maternal grandmother proposed that in addition to the children spending time together at O Town, she seeks time from Saturday 6 June 2015 to Monday 8 June 2015 (a long weekend) and for one week of the mid-year school holidays between 4 July 2015 and 11 July 2015.

12. The mother remains firmly opposed to the three children spending any extended and unsupervised time in the care of the grandmother.

LEGAL PRINCIPLES

1. I continue to have regard to the legislative pathway as set out by the Full Court in Goode & Goode (2006) FLC 93-286 in order to determine interim proceedings.

2. I have regard to the competing proposals   of the parties and I consider that I have identified the issues in dispute.  What is agreed is that the children should meet as a sibling group.  What is not agreed is the manner in which that should occur taking into account the difficult geography of the parties, but significantly the mistrust that the mother has for the grandmother and the evident refusal of E (and possible reluctance of K) to spend time with the mother.

3. It must be remembered however that in her final orders sought, the mother does not seek to spend time with E and K other than they may request.

4. I have clear regard to the provisions of s 60CC and whilst both the primary and additional considerations have significant connection to my determination of what is likely to be in the best interests of the children, the main consideration is the need for the children to re-engage with each other and to develop and facilitate their sibling relationship.

5. I do not consider that the evidence supports a contention that there are risks to the children in spending time with each other and it is difficult to see the mischief that might result if the children are able to spend time together but in the home of the grandmother free of the artificial constraint of a supervised environment. The refusal of E and possible reluctance of K to spend time with the mother makes the converse difficult.

CONCLUSION

1. Accordingly, I consider that whilst a cautious approach should be adopted, the age of the children and the positive report by each of the parties of the children’s collective time spent together should be given greater weight than the sensitivities of the parties.

2. The focus now on an interim basis but also being the agree position in terms of final orders, is for the children to have their sibling relationship restored.  The orders that I propose to make do not impact upon the final orders that each of the parties would press at the conclusion of the proceedings.

3. For those reasons I propose to make orders that will see the children spending time together at the C Town Family Relationship Centre, with the mother to be involved if K is prepared to participate in supervised time, but E to be excused during any period that the mother is involved, but then for the children to spend time together in the care of the grandmother for a period of three days with the parties to effect handover at I Town.

4. I make orders as appear at the commencement of these reasons.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on delivered 6 May 2015.

Associate:

Date:  6 May 2015