Father granted custody of children due to mother's incapacity to facilitate relationship with him and other risks of harm
Simmons & Simmons [2022] FedCFamC1F 811 (21 October 2022)
This case involves a dispute between separated parents over custody of their children. The court ultimately found that the mother posed a risk of harm to the children and ordered that they live with the father, with supervised visitation for the mother initially, gradually moving to unsupervised visitation on alternate weekends during the school term, half of the school holidays, and special occasions.
Facts:
The mother had accused the father of sexually abusing one of the children, leading her to restrict the children's time with him. In 2019, the father filed a case seeking regular time with the children, while the mother sought orders that the children live with her and not see the father.
During the final hearing in March 2022, an expert recommended an immediate change to the children's living arrangements, suggesting that the paternal grandmother assume primary care for the children. The father and paternal grandmother argued that the mother posed a risk of harm to the children, while the mother's proposal depended on whether the court found that the father had sexually abused the eldest child.
If the court found the father guilty, the mother proposed that the children live with her, while if not, she proposed that the parents share equal parental responsibility for the children and that the children spend alternating weeks with each parent. The Independent Children's Lawyer's proposal was broadly consistent with the father's proposal, which involved the children living with him and spending supervised time with the mother initially, gradually moving to unsupervised time on alternate weekends during the school term, half of the school holidays, and special occasions.
Issue:
The issue in this case is a custody battle between the parents of two children. The mother had accused the father of sexually abusing one of the children, leading her to restrict the children's time with him.
Applicable law:
Family Law Act 1975 (Cth) s 60CC - sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child's best interests.
Analysis:
The parents have been unable to make joint decisions for their children due to their inability to communicate effectively and lack of trust. This has resulted in decisions that have not always been beneficial to the children and caused harm. They have also been unable to reach an agreement on seemingly minor matters and have required significant involvement from lawyers and the Independent Children's Lawyer (ICL). The Court has concerns about their ability to make timely and effective joint decisions in the future.
The judge had expressed doubts about the sexual abuse allegations against the father in a previous interim judgment, and expressed concern about the mother's ability to facilitate the children's relationship with their father. The expert report had identified that the children were enmeshed psychologically with their mother and that there was a risk that they could be deprived of any relationship with their father. The judge agreed with the father's concern that the mother's incapacity to facilitate the children's time with their father was a significant matter of concern and, together with other identified risks of harm to the children, warranted a final arrangement that would see the children live with the father.
Conclusion:
The father has sole parental responsibility for the children, and they will live with him without condition. The children are also to spend time with their mother, but this will be supervised by an agency or contact center agreed upon by the parents. The mother is responsible for the costs of supervision. If the supervision agency is not available, the children can spend time with their mother supervised by a person agreed upon by both parents and the paternal grandmother. There are specific conditions regarding the mother's behavior during supervised time with the children, and there are specific arrangements for unsupervised time with the mother. All previous parenting orders are no longer in effect.
Case: Simmons & Simmons [2022] FedCFamC1F 811
Judgment of: HANNAM J
Counsels:
Counsel for the Applicant: Mr Grew
Solicitor for the Applicant: Coleman Greig Lawyers
Counsel for the First Respondent: Ms Ingenito
Solicitor for the First Respondent: Gilbert & Partners
Solicitor for the Second Respondent: Litigant in person
Counsel for the Independent Children's Lawyer: Mr Maddox
Solicitor for the Independent Children's Lawyer: John Spence & Associates
