FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sylvan & Sylvan [2023] FedCFamC2F 1176
File number(s): PAC 1147 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 27 September 2023 Catchwords: FAMILY LAW – CHILDREN – Where it is undisputed that the children should live with the mother – Where the father and Independent Children’s Lawyer seek orders for the children to spend graduated and overnight time with the father – Where the mother seeks orders for the children to spend no time with the father – Where the mother asserts that the father presents an unacceptable risk of harm to the children in the form of coercive and controlling behaviour – Where the mother alleges that the father has perpetrated physical assaults upon her and an assault upon one of the children- Where the father has spent regular supervised time with the children for two years – Findings made that the father was coercive and controlling of the mother during their relationship – No findings able to be made that the father has perpetrated physical violence – Finding that the children have a secure attachment and loving relationship with the father -Where the father has shown some insight and remorse as to his conduct towards the mother during the relationship – Finding that the children are not at an unacceptable risk in the father’s care -– Finding that the mother’s parenting capacity will not be significantly adversely affected should the father spend time with the children – Orders made for the children to spend graduating time with the father over an extended period of time. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 4AB(1), 4AB(2), 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61DA (1), 65D, 65DAA, 65DAC, 69ZT
Cases cited: A v A [1998] FamCA 24;
Amador & Amador [2009] FamCAFC 196
B & B [1993] FamCA 143
Blinko & Blinko [2015] FamCAFC 146
Carter & Wilson [2023] FedCFamC1A 9
Dieter & Dieter [2007] FamCA 608
Helbig & Rowe [2016] FamCAFC 117
Illgen & Yike [2018] FamCA 17
Isles & Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
Keane & Keane [2021] FamCAFC 1
Keating & Keating [2019] FamCAFC 46
M & M [1988] HCA 68
Masson v Parsons [2019] HCA 21
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Napier & Hepburn [2006] FamCA 1316
Olivier & Olivier [2020] FamCA 639
R & C [1993] FamCA 62
Sedgley & Sedgley [1995] FamCA 154
T and S [2001] FamCA 1147
Division: Division 2 Family Law Number of paragraphs: 446 Date of hearing: 30 January – 2 February 2023, 1 May – 3 May 2023 Place: Parramatta Counsel for the Applicant: Mr Jauncey Solicitor for the Applicant: Jack Rigg Solicitors Counsel for the Respondent: Ms Mahony Solicitor for the Respondent: Brigid Justice Ltd Counsel for the Independent Children’s Lawyer: Ms Katey Solicitor for the Independent Children’s Lawyer: Strive Family Law &…
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- Sylvan & Sylvan [2023] FedCFamC2F 1176
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- [2023] FedCFamC2F 1176
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CaseChat Overview and Summary
The court found that while the father had exhibited coercive and controlling behaviour towards the mother during their relationship, there were no findings of physical violence. The children were found to have a secure attachment and loving relationship with their father. The court was satisfied that the children were not at an unacceptable risk of harm in the father's care and that the mother's parenting capacity would not be significantly affected if the father spent time with the children. The court decided to grant the father graduated and supervised time with the children, increasing over time as the children grew older and more independent.
The final orders provided for the children to live with their mother but spend increasing amounts of time with their father in a supervised environment. The arrangements included specific timelines for the duration and frequency of time spent with the father, with provisions for escalation in case of non-compliance. The orders also included detailed provisions for changeover arrangements, communication between parents, and the sharing of information regarding the children's health, education, and welfare. The court restrained the parents from denigrating each other in the presence of the children and from discussing the court proceedings with them. The father was also required to continue psychological treatment and report on his progress to the mother. Costs were reserved for a further 28 days.
Orders
Orders of the court
PAC 1147 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR SYLVAN
Applicant
AND:
MS SYLVAN
Respondent
AND:
INDEPENDENT CHILDRENS LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
27 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. Subject to Order 5 below all prior parenting orders for the children X born in 2016 (“X”) and Y born in 2020 (“Y”) be and are hereby discharged.
Parental Responsibility
2. The mother have sole parental responsibility for X and Y subject to Order 2 below.
3. The mother advise the father via email of any major long term decision made by her with respect to the children’s health, education or schooling within 14 days of such decision being made.
Live with and Spend Time With
4. The children live with the Mother.
5. Until Saturday 14 October 2023 the children spend time with the father in accordance with Order 1A made on 18 May 2021.
6. The children spend time with the Father as agreed between the parties in writing and failing agreement as follows:-
(a) As and from Saturday 21 October 2023 and each alternate Saturday thereafter from 10:00am until 2:00pm.
(b) Commencing as and from Saturday 20 January 2023 and each alternate Saturday thereafter from 10:00am until 3:00pm;
(c) Commencing as and from Saturday 23 March 2024 and each alternate Saturday thereafter from 10:00am to 5:00pm;
(d) Commencing as and from Saturday 22 March 2025 and each alternate weekend thereafter from 10:00am Saturday to 10:00am Sunday;
(e) Commencing as and from Saturday 21 June 2025 and each alternate weekend thereafter from 10:00am Saturday to 2:00pm Sunday;
(f) Commencing as and from Saturday 20 September 2025 and each alternate weekend thereafter from 10:00am Saturday to 5:00pm Sunday;
(g) Commencing as and from 20 December 2025 and each alternate weekend thereafter from 5:00pm Friday to 5:00pm Sunday; and
(h) Commencing as and from 20 March 2026 and thereafter each alternate weekend from the conclusion of school or 3:00pm if not a school day Friday to 9:00am or the commencement of school (whichever is earlier) on Monday.
7. The expression “school holiday period” in these orders means the period from 3:00pm or the conclusion of school on the last day of the school term (whichever is earlier) to 5:00pm on the day immediately before the start of the next term.
8. From Term 1 of Y commencing kindergarten the children’s time with the Father pursuant to Order 4 above is suspended during all New South Wales school holiday periods.
9. From Term 1 of Y commencing kindergarten the children shall spend time during the short New South Wales school holidays periods (being at the conclusion of terms 1, 2 and 3) with the Father as agreed and failing agreement as follows:
(a) In odd numbered years, in the first week of school holidays from 10:00am on the first Saturday until 10:00am of the middle Saturday.
(b) In even numbered years, from 10:00am on the middle Saturday of the holidays until 10:00am on the last Saturday of the holidays.
10. From Term 1 of Y commencing kindergarten the children shall spend the second week of the Christmas school holiday period with the father, being from 10:00am on the second Saturday of the holidays to 10:00am Saturday on the third week of the holidays.
11. From Term 1 of Y commencing Year 3 the children shall spend time with the Father during the school holiday periods as agreed and failing agreement: -
(a) In odd numbered years, in the first week of school holidays from 10:00am on the first Saturday until 10:00am of the middle Saturday.
(b) In even numbered years, from 10:00am on the middle Saturday of the holidays until 10:00am on the last Saturday of the holidays.
12. The children’s time with the Father pursuant to these Orders will be suspended each year on the weekend that Mother’s Day falls.
13. If the children are not already in the care of the Father, the children shall spend time with the Father for Father’s Day as follows: -
(a) in 2024 from 10:00am until 5:00pm;
(b) in 2025 from 10:00am the Saturday prior to Father’s Day to 5:00pm Sunday;
(c) thereafter on the weekend that Father’s Day falls from the conclusion of school or 3:00pm, (whichever is the later) on the Friday preceding Father’s Day until 5:00pm Sunday.
14. The children shall spend time with each of the parties during the Christmas period commencing in 2025 as follows:
(a) In odd numbered years:
(i) The children shall spend time with the Mother from 4:00pm Christmas Eve until 4:00pm Christmas Day.
(ii) The children shall spend time with the Father from 4:00pm Christmas Day until 4:00pm Boxing Day.
(b) In even numbered years:
(i) The children shall spend time with the Father from 4:00pm Christmas Eve until 4:00pm Christmas Day.
(ii) The children shall spend time with the Mother from 4:00pm Christmas day until 4:00pm Boxing Day.
Changeover
15. Subject to any written agreement between the parties, until Friday 22 March 2024 changeover of the children between the parties shall occur at the B Contact Centre (“the Contact Centre”) and for this purpose each party shall:
(a) contact the Contact Centre within 24 hours days and request an appointment for assessment for suitability for supervised changeovers;
(b) attend for assessment at the times and places appointed by the Contact Centre;
(c) attend any appointments made by the Contact Centre for supervised changeovers;
(d) ensure that the child/ren attend/s any appointments made by the Contact Centre for supervised changeovers;
(e) comply with all reasonable rules of the Contact Centre; and
(f) comply with all reasonable requests or directions of the staff of the Contact Centre.
16. The Mother shall deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.
17. The parties are to share the costs of the Contact Centre equally.
18. In the event that the Contact Centre is unable to facilitate the changeover of the children pursuant to these orders, within 48 hours of being so notified by the Contact Centre:-
(a) the mother shall provide to the father in writing three proposed private supervision services able to facilitate the changeover so that the children’s time with the father is able to continue in accordance with these orders unabated;
(b) the father shall advise the mother in writing of his selection of one such proposed facilitator within 24 hours thereafter; and
(c) both parties shall forthwith thereafter do all things necessary to engage the chosen facilitator and shall each pay one half of all costs associated with such service.
19. As and from Saturday 23 March 2024 unless otherwise agreed between the parties in writing, changeovers of the children between the parties that do not occur at school will occur at a McDonalds nominated by the Mother and shall be of a distance no more than 30 minutes from the children’s school. For this purpose, the Mother shall advise the Father by no later than 4:00pm on 1 March 2024 of such nomination.
Telephone/FaceTime
20. The parent the children are not spending time with shall call the children on the other parent’s mobile telephone at 6:00pm each Wednesday. The parent with whom the children are spending time with is to ensure that the children are available to take the call and that the relevant mobile telephone is charged and switched on.
21. The parties are to ensure that the children are afforded privacy when speaking on the telephone with the parent they are not spending time with.
Communication Between the Parties
22. Except in an emergency the parties shall communicate all issues relating to the care, welfare and development of the children via email only. In cases of an emergency the parties shall communicate by way of text message only.
23. Each parent is to keep the other informed of their email address and mobile telephone number, for the purpose of communicating about the children’s care, welfare, and development, and is to advise the other parent in writing of any changes within 7 days.
Emergencies and Medication
24. Each parent is to notify the other as soon as possible of any emergency medical treatments and/or hospitalisation the children require and/or receive.
25. Each parent is to inform the other of any medications prescribed for the children by a registered medical practitioner from time to time and provide the medication and appropriate instructions as to dosage and administration at the time of any changeover.
Educational Information
26. That as and from 1 January 2024 the father be permitted to attend any school events or activities that the parents would ordinarily be expected and invited to attend, including but not limited to school assemblies, parent teacher evenings and school carnivals.
27. That within 7 days of the date of these orders, the Mother provide to the children’s school authority for the Father to contact the school and the Father be at liberty to request they provide him with copies of any school reports, reports on behavioral issues, school circulars or notices concerning functions, parent teacher nights and other school activities to which parents would ordinarily be expected and invited to attend.
Medical Information
28. That within 7 days of the date of these orders, the Mother provide to the Father a list of the children’s health care professionals.
29. That within 7 days of the date of these orders, the Mother provide to the children’s health care professionals authority for the Father to contact the health care professionals and obtain information and otherwise be engaged with the health care professionals with respect to the children.
Restraints
30. The parents are restrained from denigrating each other or the other’s family to or in the presence or hearing of the children or causing or permitting any other person to do so.
31. The parents are restrained from discussing the Court proceedings with or in the presence or hearing of the children or allowing any other person to do so.
32. The parents, whether themselves, their agents or servants, are restrained from having X or Y attend upon or obtain any form of counselling or therapeutic assistance from Mr C of D Psychology, E Street, Suburb F.
International Travel
33. Neither parent shall permit the children to travel outside Australia without the prior written consent of the other parent or for longer than 14 days.
34. The non-travelling parent shall be afforded make up time with the children as agreed between the Mother and Father, within two months of the commencement of travel.
35. The parents shall not travel to any country which is not signatory to the Hague Convention or International Children Abduction unless otherwise agreed between the parents.
36. The Mother shall hold the children’s passport to be released to the Father upon compliance with the above orders.
Psychological Engagement
37. That the father shall:
(a) forthwith engage his treating psychologist and such other health professional as recommended by his general medical practitioner for the purposes of continuing to receive psychological assistance and treatment managing his mental health for such long as is recommended by such treating psychologist;
(b) authorise his treating psychologist and such other health professional to forward to the mother a letter every three-month period for the next two calendar years and thereafter once every six months for a period of three years with the first letter issuing in the month of December 2023 stating information in relation to the following matters:
(i) The Father’s engagement with the psychologist;
(ii) The Father’s attendance upon the psychologist for scheduled appointments;
(iii) The Father’s progress; and
(iv) The Father compliance with recommendations for treatment.
(c) bear the costs associated with obtaining such a correspondence.
38. Leave is granted to the Father to provide a copy of these Orders and Reasons for Judgment to any therapist, psychologist, or other medical practitioner providing therapeutic or psychological intervention to him in the next twelve-month period.
39. Leave is granted to the Mother to provide a copy of these Orders and Reasons for Judgement to any therapist, psychologist, or other medical practitioner providing therapeutic or psychological intervention to the Mother in the next twelve-month period.
40. Leave is granted to the Mother to provide a copy of these Orders and Reasons for Judgment to any therapist, psychologist, or other medical practitioner providing therapeutic or psychological intervention to either X or Y.
41. Save as to the question of costs which is reserved for a period of 28 days, all extant applications are 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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