FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Swan & Swan (No 2) [2023] FedCFamC1F 1086
File number(s): MLC 6388 of 2020 Judgment of: JOHNS J Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – CHILDREN – best interests – where both parties seek sole parental responsibility – where the children currently live with the mother – where the children have not seen the father since separation – where the mother has strongly held views about the father – where the mother makes significant allegations of family violence – where allegations are unsubstantiated – where the children have been exposed to the mother’s views of the father – where the evidence suggests the mother poses a psychological and emotional risk to the children – where the father does not pose a risk to the children – ordered the father have sole parental responsibility and the children live with him – moratorium on time with the mother until June 2024 – where brief summary of reasons have been provided to assist the ICL in explaining the orders to the children – where reserved judgement is pending Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), (2A) & (3) Division: Division 1 First Instance Number of paragraphs: 23 Date of last submission/s: 16 November 2023 Date of hearing: 30 & 31 August 2023, 4 – 7 September 2023, 8 – 10 November 2023, & 16 November 2023 Place: Melbourne Counsel for the Applicant: Ms Malik Solicitor for the Applicant: Buscombe Family Law Counsel for the Respondent: Mr Kiernan Solicitor for the Respondent: Heinz Law Counsel for the Independent Children's Lawyer: Ms Tiernan Solicitor for the Independent Children's Lawyer: Inclusive Family Law & Mediation ORDERS
MLC 6388 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SWAN
Applicant
AND: MR SWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Father have sole parental responsibility for the children X born 2014 and Y born 2017 (“the children”).
2.The children live with the Father AND IT IS DIRECTED that the Father attend upon Court Child Services this day and collect the children from Court Child Services.
3.The Mother, her servants and agents, forthwith leave the Court and environment of the Federal Circuit and Family Court of Australia and vicinity of 305 William Street, Melbourne, and thereafter this day do not remain within 500 meters of 305 William Street, Melbourne.
4.The Father is to forthwith make arrangements for the children to:
(a)Engage in play therapy to be conducted by a qualified play therapist;
(b)Engage with, and participate in therapy with, a paediatric psychiatrist; and
(c)Engage with, and participate in therapy with a child psychologist (it being noted that it is intended that each child should have their own independent psychologist).
(collectively, “the children’s treatment team”)
and the Father be responsible for the costs associated with the children’s attendance upon the children’s treatment team or any of them.
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- AGLC
- Swan & Swan (No 2) [2023] FedCFamC1F 1086
- Case
- [2023] FedCFamC1F 1086
- Decision Date
CaseChat Overview and Summary
The court found that while the mother had expressed significant concerns about the father, these were not substantiated, and the evidence suggested that the mother posed a psychological and emotional risk to the children. The father, on the other hand, was not considered a risk to the children. The court was also mindful of the importance of the children's exposure to their mother's views and the need for stability and continuity in their lives. Given these factors, the court ordered that the father have sole parental responsibility and that the children live with him. A moratorium on contact with the mother was imposed until June 2024, with limited supervised contact thereafter. The court also mandated therapy for the children and directed the father to provide a copy of the orders to relevant parties, including the children's medical practitioners and school.
In light of the findings, the court made several orders to ensure the children's welfare and safety. The father was granted sole parental responsibility, and the children were directed to live with him. The mother was prohibited from contacting the children, approaching the father's residence or the children's school, and spending time with the children except under specific conditions. The court also ordered therapy for the children and mandated the father to provide copies of the orders to relevant parties. The Independent Children's Lawyer's appointment was discharged, and the court provided a summary of the reasons for the orders to assist in explaining them to the children. The final orders included a moratorium on contact with the mother until June 2024 and limited supervised contact thereafter, as well as the requirement for the children to engage in therapy.
Orders
Orders of the court
MLC 6388 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS SWAN
Applicant
AND:
MR SWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1. The Father have sole parental responsibility for the children X born 2014 and Y born 2017 (“the children”).
2. The children live with the Father AND IT IS DIRECTED that the Father attend upon Court Child Services this day and collect the children from Court Child Services.
3. The Mother, her servants and agents, forthwith leave the Court and environment of the Federal Circuit and Family Court of Australia and vicinity of 305 William Street, Melbourne, and thereafter this day do not remain within 500 meters of 305 William Street, Melbourne.
4. The Father is to forthwith make arrangements for the children to:
(a) Engage in play therapy to be conducted by a qualified play therapist;
(b) Engage with, and participate in therapy with, a paediatric psychiatrist; and
(c) Engage with, and participate in therapy with a child psychologist (it being noted that it is intended that each child should have their own independent psychologist).
(collectively, “the children’s treatment team”)
and the Father be responsible for the costs associated with the children’s attendance upon the children’s treatment team or any of them.
5. Until 1 June 2024, the children are not to spend time or communicate with the Mother except pursuant to Order 6(a) of these Orders.
6. From 1 June 2024, the children shall spend time and communicate with the Mother:
(a) By way of letters, cards and gifts which may be sent via the Father, on each of the children’s birthdays, Christmas, and Easter.
(b) Upon the children having engaged with at least two of the therapeutic professionals provided for in Order 4 herein for a period of no less than three (3) months, the children shall spend time with the Mother on six occasions per calendar year, supervised by an additional family therapist who is engaged by the Father in consultation with the children’s treatment team, at such times and durations as can be accommodated by that family therapist, with the Mother to meet the costs of same.
7. Except as otherwise provided within these Orders, the Mother, her servants and agents, be and are hereby restrained from:
(a) Spending time with and communicating with the children, or either of them, by any means, including mail, telephone, email, text message or social media;
(b) Approaching within 100 metres of the Father’s residence; and
(c) Approaching within 100 metres of the children’s school.
8. The Father be at liberty to provide a copy of these orders to the children’s medical practitioners and/or school.
9. That should further allegations be made by the Mother as to the Father and children in these proceedings, such as would otherwise trigger an intervention by a mandatory reporter, the Father is at liberty to provide a copy of the Orders and the final judgment from these proceedings to any of the following:
(a) Victoria Police;
(b) The children’s school;
(c) Medical and allied health practitioners engaged in treating the Father or the children or either of them; and
(d) DFFH.
10. That pursuant to s 68P and s 68Q of the Family Law Act 1975 (Cth) (“the Act”) insofar as this Order is inconsistent with an existing family violence order, this Order is to take precedence and shall prevail.
11. The appointment of the ICL be and is hereby discharged with effect from 1 June 2024.
12. The Counsel for the ICL meet with the children following the making of these orders to inform and explain to the children the orders made.
13. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
14. That all extant applications be otherwise dismissed.
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
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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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