FAMILY COURT OF AUSTRALIA
| SYMS & SYMS | [2019] FamCA 724 |
| FAMILY LAW – CHILDREN – Magellan List – With whom the children shall live and spend time – Where the subject children are boys aged 10, eight and six – Best interests – Where the children currently live with their mother and maternal grandparents, and spend supervised time with the father – Where the applicant father seeks a reversal of the children’s residence and following a period of no contact for them to spend supervised time with the mother graduating to unsupervised time – Where the respondent mother seeks orders for the children to remain living with her and no proposal for the children to spend time or communicate with the father – Where the Independent Children’s Lawyer proposed a change in residence and a four month moratorium prior to the mother spending professionally supervised time with the children – Where there are unsubstantiated allegations of the father sexually abusing the children – Where the mother has developed a fixed idea that the father has abused the children – Where the mother’s mental health declined prior to separation and she was subsequently diagnosed with depression – Where each parent is of the view that the children require protection from the other parent – Where the children have a meaningful relationship with both parents – Where the mother is the children’s primary attachment – Where the relationship between the father and the children is under strain – Where there is no unacceptable risk of harm or abuse for the children in the care of the father – Where the mother’s actions, although intended to be protective; have caused the children emotional and psychological harm – Where the risk of emotional abuse in the mother’s care is heightened by the maternal grandparents’ loyalty to the mother – Where the father is untested as a single parent – Where the mother cannot and will not support a relationship between the father and the children – Where the mother’s capacity to care for the children is impaired by her belief that the father has sexually abused the children – Where the single expert is of the view that the children will likely suffer adverse developmental consequences if they remain in the care of their mother – Where a reversal of residence is appropriate – Ordered the children will live with the father – Ordered the children will spend supervised time with the mother for a period of 12 months following a four month period of no time – Ordered the mother to spend time thereafter supervised, at the discretion of the father as to supervision being dispensed with at any future time. FAMILY LAW – PARENTING – Where both parents seek sole parental responsibility – Where each parent has negative beliefs about the other – Where trust between the parents may never return – Where the presumption of equal shared parental responsibility does not apply – Where the resident parent should have sole… |
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- AGLC
- SYMS & SYMS [2019] FamCA 724
- Case
- [2019] FamCA 724
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the best interests of the children, particularly in light of the parents' conflicting beliefs about each other and the impact of these beliefs on the children's welfare. The court was required to determine with whom the children should live and the nature and extent of their time and communication with each parent. Specifically, the court had to assess the risk of harm or abuse to the children in each parent's care, the meaningfulness of the children's relationships with both parents, the mother's capacity to care for the children given her mental health and fixed beliefs, and the father's capacity as a single parent. The presumption of equal shared parental responsibility was not applicable due to the lack of trust and negative beliefs between the parents.
Cleary J reasoned that while the mother's actions were intended to be protective, they had caused emotional and psychological harm to the children. The mother's fixed belief that the father had sexually abused the children impaired her capacity to care for them and heightened the risk of emotional abuse, particularly given the maternal grandparents' loyalty to her. The single expert's view was that the children would likely suffer adverse developmental consequences if they remained with their mother. Conversely, there was no unacceptable risk of harm or abuse for the children in the father's care, despite him being untested as a single parent. The court found that the mother could not and would not support a relationship between the father and the children. Consequently, the court ordered that the children live with the father and that he have sole parental responsibility. The mother was ordered to have no contact with the children for four months, followed by supervised time for 12 months, with the father having discretion over the future cessation of supervision. The father was also directed to obtain a mental health plan for the children to assist with their adjustment.
Orders
Orders of the court
1.
That all prior parenting orders in relation to X (born … 2008) Y (born … 2010) and Z (born … 2012) “the children” are discharged.
Residence
2.
That the children forthwith live with the father.
Parental Responsibility
3.
That the father have sole parental responsibility for the children.
4.
That on each occasion a decision in respect to long term welfare arises the father shall:
a) Advise the mother in writing of the issue and his proposed decision;
b) Invite the mother to express her view or any alternate proposal she may have within a nominated time;
c) Give genuine consideration to timely views of the mother;
d) Advise the mother in writing of the decision taken.
Time and Communication with the Mother
5.
The children shall spend no time with the mother or the maternal grandparents for a period of four months.
6.
Commencing four months from the date of these orders the children spend time with the mother, supervised by a professional supervisor or contact service, nominated by the father, as follows:
a) Until the end of the 2020 calendar year on days and times as nominated by the professional supervisor or contact service, being no more than three (3) hours on one day per month whether in school terms or school holidays;
b) Thereafter until the end of the 2021 calendar year for one weekend each calendar month, being the first weekend of each month, unless otherwise agreed in writing between the parties from 10.00 am until 4.00 pm on Saturday, and 10.00 am until 4.00 pm on Sunday;
c) Thereafter as agreed between the parties, with the father to have absolute discretion over when and if supervision is dispensed with in future;
d) At such other and or additional times, if any, including weekends and holiday periods, as are agreed between the parties.
7.
The parties do all acts and things and sign all documents necessary to complete any intake procedure required by the professional supervisor or contact service, and the cost of the supervision referred in Order 6 herein will be shared equally between the parties.
8.
Commencing in 2021, or earlier at the discretion of the father, the mother may contact the children by telephone each month in the week before the children spend weekend time with the mother.
9.
The mother may send cards, letters and gifts to the children which the father may, in consultation with the therapist/s for the children, pass on to the children unless he considers it would be detrimental to do so.
10.
The father shall assist all or any of the children who wish to do so to send cards, letters and gifts to the mother.
Specific Issues
11.
The father shall forthwith attend upon a general practitioner with the children for the purposes of securing a mental health plan to enable each of the children to attend upon a child and family psychologist to assist each of them individually in their adjustment from living with their mother to living with their father and spending supervised time with their mother.
12.
Leave is granted to the father to provide a copy of these orders and reasons, and the expert report of Dr M dated 29 March 2019, to any psychologist engaged to provide therapeutic services to any of the children and further, shall provide contact details for the mother to enable her engagement in that therapy at the direction of the therapist if the mother chooses to be involved.
13.
Leave is granted to the mother to provide a copy of these orders and reasons and the expert report of Dr M dated 29 March 2019 to her treating psychiatrist and to Dr N GP if she wishes to do so.
14.
Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
15.
The father shall notify the mother of any medical emergency, illness or injury suffered by the children whilst in his care warranting treatment by a third party.
16.
The parties shall forthwith inform each other, and keep each other informed, in writing of their respective residential address, mobile telephone number, and email address.
17.
The father shall authorise and request the principal of any school attended by the children to provide to the mother, copies of all school reports and school photograph order forms relating to the children.
18.
Leave is granted to the father to provide a copy of these orders (but not the reasons) to the principal of the children’s school and may provide the reasons to the principal to read if the father considers it is appropriate and necessary to do so.
19.
Pursuant to s 68B of the Family Law Act 1975 (Cth), the mother is restrained, unless with the prior written consent of the father, for a period of two years from entering upon or approaching within 500 metres of:
a) The father’s residence;
b) The father’s place of employment; or
c) The children’s schools.
20.
The mother shall forthwith deliver the children’s passports to the solicitor for the father.
21.
Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the father is permitted to do all acts and things and sign all documents to apply for and retain Australian travel documents, including Australian passports for the children, without the mother’s consent (written or otherwise) and to facilitate the order leave is granted for the father to provide a copy of these orders to the relevant statutory authority.
22.
Pursuant to s 65Y of the Family Law Act 1975 (Cth), the father is permitted to travel internationally for holidays with the children without the mother’s consent.
Explanation of the orders
23.
That the Independent Children’s Lawyer forthwith meet with the children to explain the meaning and consequences of the orders to the children and to answer any questions they may have.
24.
That the father arrange for the children to see the single expert Dr M at a mutually convenient time and place to have any further questions the children or any of them may have about the orders, answered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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