Separation of siblings

Separation of siblings

Bailey & Paynter [2016] FCCA 12 (12 January 2016)

The following is annotated. For full case:


  1. The mother makes allegations that the father perpetrated family violence on her starting in 2004 during her pregnancy with Y.
  2. At date of separation the mother and children moved from (omitted) to (omitted).
  3. In April 2008 the mother arranged for the father care for the children in her home for three days whilst she went to Canberra for a week.
  4. In paragraph 12 of her Affidavit the mother says:
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    Between 2006 and January 2007, I became increasingly anxious due to the ongoing violence perpetrated by Mr Paynter against the children and me. Due to this, I decided to separate from Mr Paynter on a final basis in February 2007.

Why she then sought the father’s assistance in 2008 with the care of the children she does not address.

  1. She says whilst in Canberra the father forgot to collection X from school.
  2. In May 2008 she says an Apprehended Domestic Violence Order was made to protect the children and her as a result of the father’s behaviour.
  3. She says the father thereafter spent no time with the children until mid 2009.
  4. In October 2010 by agreement between the parties the children began spending alternate weekend time with the father.
  5. In April 2011 the father again became subject to an Apprehended Domestic Violence Order following threats to the mother.
  6. In February 2012 the father began spending day time periods with the children and by May 2012 they were overnight periods.
  7. In March 2014 the mother says the father came to her and wanted to take the children without her approval from her home.
  8. The Police attended and the father left on his own accord before the Police arrived.
  9. By 30 July 2014 the father had been spending time with the children each alternate weekend for three months.
  10. On 30 July 2014 the father says he learnt of a relationship the mother was in, which has since ended, and refused to return the children.
  11. In November 2014 she began spending day time periods with the children and Friday afternoons from 3pm to 10pm.
  12. This time stopped in February 2015.
  13. From April 2015 to May 2015 she spent time with the children at the father’s home.
  14. In May 2015 Y began spending overnight time with her but X was resistant to spending time and on some occasions when he did, X was violent towards her.
  15. As a result of disclosures made by Y to the mother and then to the New South Wales Police on 20 August 2015, the father was charged with Assault Occasioning Actual Bodily Harm on X. Family and Community Services were notified but decided X should remain living with the father.
  16. The father admits smacking X with a chord, and this gave rise to him being charged as set out above.
  17. He says he was smacked as a child and says this type of discipline was part of (nationality omitted) culture.
  18. On 15 October 2015 the father was sentenced and received a suspended sentence of 18 months.
  19. Between 17 August 2015 and 19 October 2015 the mother spent no time with X and Y spent no time with the father. On 19 October 2015 the father collected Y from school and Y has since spent no time with the mother.
  20. The father lives in (omitted). He works as a (occupation omitted).
  21. X is in Year 7, although his school attendance in 2015 was very poor and at the time of the interim hearing he was suspended from school attendance.
  22. The father denies the events of family violence particularised by the mother, apart from those leading to his charge. He admits being subject to Apprehended Violence Orders.
  23. The father describes X’s behaviour as being “out of control”. The mother concedes not being able to effectively manage X’s behaviour.
  24. He says the children do not want to live with their mother.
  25. He says X has disclosed the mother has hurt him and smacks him with a metal spoon.
  26. The mother at the time of the Interim Hearing was living with her father in (omitted). That house is being sold and she intends to move nearer to the father’s home.

Orders Sought

  1. On an interim basis the mother seeks:
    1. Sole parental responsibility for X and Y;
    2. That the children live with her;
    1. A Recovery Order;
    1. Supervised time with their father at (omitted) Contact Service; and
    2. A number of ancillary orders.
  2. Alternatively she seeks:
    1. Sole parental responsibility for Y;
    2. That the father have sole parental responsibility for X;
    1. That Y live with her;
    1. That X live with the father;
    2. That Y spends supervised time with the father;
    3. That X spends time with her each alternate Saturday from 9am to 4pm.
  3. The father on an interim basis seeks:
    1. Sole parental responsibility;
    2. A live with order for both children; and
    1. The children spend time with the mother each alternate weekend.


  1. The decision in Goode & Goode[1] prescribes the legislative pathway to be followed in interim parenting cases.
  2. Parenting orders made by the Court are to be informed by the objects set out in s.60B of the Act. Parenting orders are to have as their paramount consideration the best interest of the children.
  3. Section 60CC sets out the factors a Court is to consider in determining what is in the children’s best interest.
  4. Since separation in 2007, the parties have made both jointly and unilaterally many parenting decisions relating to X and Y. Some of these decisions seem to have been made co-operatively after parental discussion. Others made unilaterally have involved no communication between parents.
  5. There are reasonable grounds in this case to believe, and I find, that the father has perpetrated family violence on the mother[2], and abuse of X.
  6. The presumption of equal shared parental responsibility will therefore not apply.
  7. Currently neither X nor Y has a meaningful relationship with their mother. Y would benefit by having such a relationship.
  8. X is likely to find such a relationship difficult. If mandated, by Court order to such a relationship with his mother he will likely be highly resistant, likely inflict violence on her as he has done in the past. Additionally X may run away and thereby expose himself to the risk of harm and may suffer further psychological harm.
  9. X expresses a view to spend no time with his mother and wants to live with his father.
  10. Y on balance likely wants to spend time with his mother despite telling his father otherwise. Y may even prefer to live with his mother. A Family Report will be necessary before certainty is possible as to Y’s views, relationships and preferences.
  11. Significant weight due to his age is to be attached to X’s view. X’s relationship with his mother is disrupted and significantly compromised. Expert opinion will be necessary in the form of a Family Report to determine whether and how X’s relationship with his mother could be repaired.
  12. X’s relationship with his father is also problematic but he seems to tolerate or accept living with his father. The father is currently co-operating with FACS. He has not always done so.
  13. Y’s relationship with his mother and father is likely to be similar. An expert report will be necessary before findings can be definitely made about the children’s relationship with their parents, and with each other, although the siblings have for the most part always lived together.
  14. Since 19 October 2015 both children have lived with the father and spent no time with the mother.
  15. From August 17 2015 to 19 October 2015 Y has lived with his mother and spent no time with his father and X has lived with his father and spent no time with his mother.
  16. From mid-2014 the children lived with the father and spent time with the mother; Y spending more time with the mother than X did.
  17. The children have as a consequence in the near past been more used to living with the father than the mother.
  18. X has spent little to no time with the mother whilst Y has spent more time with her.
  19. To live with the mother would be a significant change for both children. Y may welcome that change, X would be highly resistant to such a change.
  20. To have the children live separately may also be a change that may be unwelcomed by them.
  21. Even if the mother remains living in (omitted) and the father in (omitted), there would be little practical difficulty or expense in implementing any parenting orders. Moving closer to (omitted) would make an equal time order practicable and possible for Y, but such an order would not be in Y’s best interest.
  22. The father’s propensity to use improper corporal punishment raises questions as to whether his parental capacity is of an acceptable quality.
  23. Both parents have permitted the other to care for the children despite their concerns about the other’s capacity.
  24. The mother has a very limited capacity to control and manage X’s behaviour.
  25. Both children have a (nationality omitted) background through their father. They are each young males.
  26. X will shortly enter his teenage years.
  27. Both parents have denied the children the opportunity to spend time with the other parent.
  28. No criticism can be made of the mother’s decision to do so in light of the father’s abuse of X. I am critical of the father in withholding Y and denying Y the right to a meaningful relationship with his mother.
  29. The father remains subject to a good behaviour bond as a result of his abuse of X.
  30. FACS records indicate the father has limited support and has not always been compliant with their suggestions nor on some occasions sought medical intervention for the children when it was needed.[3]
  31. It will, in light of the above, and pending further order be best for X to live with his father and spend time with his mother in accordance with X’s wishes.
  32. This is so despite the father’s perpetration of family violence and abuse because X will unlikely at this time tolerate living with his mother. He is already a troubled young man disengaged from education and prone to the perpetration of violence. To force him by Court Order to live with his mother will expose him to a significant and real possibility of running away and if that occurred there is an unacceptable risk he may become involved with juvenile justice or become homeless or both.
  33. He should spend time with his mother in the interim as he chooses not because that will improve his relationship with his mother but because it holds out the best hope of some relationship between X and his mother.
  34. Y will be best served by living with the mother and spending significant and substantial time with the father on alternate weekends and half school holidays.
  35. This will allow Y to maintain a meaningful relationship with his father and with X without exposing him to the risk of family violence and abuse that his father has in the past perpetrated.
  36. Such time with his father, whilst his father is subject to a good behaviour bond and the oversight of FACS is less likely to expose Y to family violence.
  37. The change in circumstance that such an order implements will be likely accepted by Y who in the past seems to have accepted not infrequent changes to his parenting arrangements, and has in the past spent long periods living with his mother.
  38. Whilst it may result in a change of schools because the change of residence occurs during school holidays it will be less disruptive.
  39. Less time with his brother X will expose Y to less risk of harm from his brother and less exposure to his poor example. Some time on weekends and during school holidays will enable maintenance of the sibling relationship.
  40. Neither party sought an equal time order for either child. In light of the evidence, especially the past family violence, such an order is not in Y’s best interest and for reasons already discussed would not be tolerated by X.
  41. These Orders will only be made on an interim basis and may be reviewed when the memorandum from the Child Inclusive Conference becomes available. That conference is to occur on 19 February 2016.
  42. No specific order for parental responsibility apart from the issue of education will be made pending input from the Independent Children’s Lawyer.
  43. An Independent Children’s Lawyer was appointed on 3 December 2015.
  44. The Independent Children’s Lawyer may seek review of the interim parenting orders.
  45. Given X’s psychological difficulties an expert report pursuant to Division 15.2 of the Federal Circuit Court Rules 2001 is likely to be appropriate if funding is available.
  46. Although these are short term interim orders which result in the separation of siblings and have X live with a person who has abused him by improper discipline, I am satisfied on balance with the reservations referred to that at this time that they are orders that are in each of the children’s best interests and are orders that are also reasonably practicable.


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