FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sykes & Sykes [2023] FedCFamC2F 334
File number(s): PAC 5515 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 24 March 2023 Catchwords: FAMILY LAW – CHILDREN – Best interests of the child – Orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Saif & Saif [2020] FamCA 119 Division: Division 2 Family Law Number of paragraphs: 353 Date of last submission/s: 16 March 2023 Date of hearing: 28–30 March 2022, 24 February 2023 Place: Parramatta Counsel for the Applicant: Ms McMahon Solicitor for the Applicant: Cominos Family Lawyers Counsel for the Respondent: Ms Ticehurst Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Greg Tyler & Associates Counsel for the Independent Children's Lawyer: Ms Kaiti Solicitor for the Independent Children's Lawyer: Mr Nasti ORDERS
PAC 5515 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SYKES
Applicant
AND: MR SYKES
Respondent
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
24 MARCH 2023
THE COURT ORDERS THAT:
1.The applicant mother have sole parental responsibility for the child, X, born in 2013 (hereafter “X”).
2.X shall live with the mother.
3.To facilitate Order 2:
(a)The Senior Court Child Expert at Court Children Services at the City B registry of this Court at Level 2, Commonwealth Law Courts Building, CITY B, NSW shall endeavour to explain these Orders to X before introducing the mother to X;
(b)The Senior Court Child Expert shall endeavour to assist X in leaving the above registry with the mother;
(c)The father is not to return to Level 2 of the City B registry following the pronouncement of these Orders today.
4.X shall not commence to spend time with the respondent father until the expiration of eight weeks from the date that X begins to live with the mother.
5.After the expiration of the eight week period referred to in Order 4 above, X shall spend supervised time with the father for a period of eight weeks and such time shall be supervised by a supervisor to be agreed by the parties in writing and failing agreement by C Contact Centre, as follows:
(a)Each Wednesday from after school to 5.30pm; and
(b)Each Saturday from 10.00am to 1.00pm.
6.The paternal grandmother shall be permitted to attend the child’s above supervised visits with the father but only after the father has spent three supervised visits with the child.
7.At the conclusion of Order 5, X shall spend unsupervised time with the father as follows for 12 weeks:
(a)Each alternate Wednesday from after school to 6.30pm; and
(b)Every alternate weekend from Saturday from 10.00am to Sunday 3.00pm.
8.At the conclusion of Order 7, X shall spend time with the father as follows for 12 weeks:
(a)Each alternate Wednesday from after school to 7.00pm; and
(b)Each alternate week from Friday after school to Sunday 3.00pm.
9.At the conclusion of Order 8, X shall spend time with the father as follows:
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- Case
- [2023] FedCFamC2F 334
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the court included the assessment of the best interests of X, the allocation of parental responsibility, and the formulation of a detailed and phased parenting plan that would facilitate a gradual and supervised transition for X between the parents. The court had to consider the emotional, psychological, and developmental needs of X, as well as the ability of each parent to provide a stable and nurturing environment.
The court determined that sole parental responsibility should be awarded to the mother, considering factors such as X’s current living situation, the parents' ability to meet X’s needs, and the potential impact of the proposed arrangements on X’s well-being. The court implemented a phased and supervised parenting plan to ensure a smooth transition for X. This plan included an initial period of supervised visits, gradually increasing to unsupervised time as deemed appropriate by the court. The court also detailed specific arrangements for special occasions and school holidays, aiming to provide stability and predictability in X’s life.
The final orders of the court included awarding sole parental responsibility to the mother, directing that X shall live with the mother, and setting out a comprehensive schedule for X’s time with the father, starting with supervised visits and progressing to unsupervised time. The court also addressed financial responsibilities, including the costs associated with X’s counselling and the father’s supervised visits.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The applicant mother have sole parental responsibility for the child, X, born in 2013 (hereafter “X”).
2. X shall live with the mother.
3. To facilitate Order 2:
(a) The Senior Court Child Expert at Court Children Services at the City B registry of this Court at Level 2, Commonwealth Law Courts Building, CITY B, NSW shall endeavour to explain these Orders to X before introducing the mother to X;
(b) The Senior Court Child Expert shall endeavour to assist X in leaving the above registry with the mother;
(c) The father is not to return to Level 2 of the City B registry following the pronouncement of these Orders today.
4. X shall not commence to spend time with the respondent father until the expiration of eight weeks from the date that X begins to live with the mother.
5. After the expiration of the eight week period referred to in Order 4 above, X shall spend supervised time with the father for a period of eight weeks and such time shall be supervised by a supervisor to be agreed by the parties in writing and failing agreement by C Contact Centre, as follows:
(a) Each Wednesday from after school to 5.30pm; and
(b) Each Saturday from 10.00am to 1.00pm.
6. The paternal grandmother shall be permitted to attend the child’s above supervised visits with the father but only after the father has spent three supervised visits with the child.
7. At the conclusion of Order 5, X shall spend unsupervised time with the father as follows for 12 weeks:
(a) Each alternate Wednesday from after school to 6.30pm; and
(b) Every alternate weekend from Saturday from 10.00am to Sunday 3.00pm.
8. At the conclusion of Order 7, X shall spend time with the father as follows for 12 weeks:
(a) Each alternate Wednesday from after school to 7.00pm; and
(b) Each alternate week from Friday after school to Sunday 3.00pm.
9. At the conclusion of Order 8, X shall spend time with the father as follows:
(a) Each alternate Wednesday from after school to before school on Thursday; and
(b) Each alternate week from Friday after school to Monday morning before school.
10. The costs incidental of the father spending time with X pursuant to Order 5 above be borne by the father.
11. The mother, at her sole discretion, may arrange counselling for X to assist with the change of residence and his mental health. The costs incidental to the treatment of X shall be borne by the mother. The mother shall be permitted to provide a copy of the Family Report and the Court’s Reasons for Judgment to any such counsellor for X.
12. The father shall ensure X is taken to his counselling session in the event that the scheduled visit is on a day that X is in his care.
13. During the Term 3 2023 school holidays, unless otherwise agreed in writing, X shall spend four days Monday 10.00am–3.00pm to Thursday 10.00am–3.00pm with the father during the second week of the holiday.
14. From 2024 and every even year thereafter, X shall spend the second half of the Term 1, 2 and 3 school holidays with the father.
15. From 2025 and every odd year thereafter, X shall spend the first half of the Term 1, 2 and 3 school holidays with the father.
16. During the 2023/2024 Summer/Christmas holiday, X shall spend the alternate fortnight with each parent, commencing the first two weeks of the holidays with the mother, then the following two weeks with the father, continuing until the commencement of the 2024 school term.
17. During the Christmas school holiday periods from 2024 and thereafter, each of the parties shall spend time with X for one half of all Christmas school holiday periods as agreed by the parties in writing and failing agreement:
(a) With the mother for the first half of the Christmas school holiday periods in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and
(b) With the father for the second half of the Christmas school holiday periods in odd numbered years and in alternate years thereafter and the first half in even numbered years and in alternate years thereafter.
18. Notwithstanding any care arrangements set out in these Orders to the contrary, X shall spend time with the parties as follows and that any provision for time in these Orders that is inconsistent with this paragraph be suspended so as to facilitate time under this Order:
(a) In all even numbered years:
(i) With the father from 12 noon Christmas Eve until 12 noon Christmas Day;
(ii) With the mother from 12 noon Christmas Day to 12 noon Boxing Day;
(iii) With the mother from the conclusion of school Good Friday until 12 noon Easter Sunday;
(iv) With the father from 12 noon Easter Sunday until the commencement of school on the Tuesday following the Easter Monday (or 10.00am in the event of a non-school day);
(b) In all odd numbered years:
(i) With the mother from 12 noon Christmas Eve until 12 noon Christmas Day;
(ii) With the father from 12 noon Christmas Day to 12 noon Boxing Day;
(iii) With the father from the conclusion of school Good Friday until 12 noon Easter Sunday provided the child has begun to spend unsupervised time with the father pursuant to the above Orders;
(iv) With the mother from 12 noon Easter Sunday until the commencement of school on the Tuesday following the Easter Monday (or 10.00am in the event of a non-school Tuesday);
(c) On Father’s Day, provided the child has begun to spend unsupervised time with the father pursuant to the above Orders, if X is with the mother, X shall spend time with the father from 9.00am to 7.00pm on Father’s Day;
(d) On Mother’s Day, if X is with the father, X shall spend time with the applicant mother from 9.00am to 7.00pm on Mother’s Day;
(e) On the mother’s birthday, if X is with the father, X shall spend time with the mother from 3.00pm to 7.00pm in the event of a school day and 9.00am to 7.00pm in the event of a non-school day on the mother’s birthday;
(f) On the father’s birthday, provided the child has begun to spend unsupervised time with the father pursuant to the above Orders, if X is with the mother, X shall spend time with the father from 3.00pm to 7.00pm in the event of a school day and 9.00am to 7.00pm in the event of a non-school day on the father’s birthday;
(g) On X’s birthday, if X is with the father, X shall spend time with the mother from 3.00pm to 7.00pm in the event of a school day and 9.00am to 2.00pm in the event of a non-school day on X’s birthday;
(h) On X’s birthday, provided the child has begun to spend unsupervised time with the father pursuant to the above Orders, if X is with the mother, X shall spend time with the father from 3.00pm to 7.00pm in the event of a school day and 9.00am to 2.00pm in the event of a non-school day on X’s birthday.
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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