Burwell & Jarvis (No 3)
[2024] FedCFamC1F 148
•12 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Burwell & Jarvis (No 3) [2024] FedCFamC1F 148
File number(s): CAC 505 of 2023 Judgment of: GILL J Date of judgment: 12 March 2024 Catchwords: FAMILY LAW – PARENTING – Interim consent orders – where the father has taken action to ameliorate risk issues including issues involving drugs and alcohol and mental health – where the exceptional circumstances of the case warrant an interim consent order despite the usual benefits in resolving a matter finally – Court’s role in actively monitoring and supporting compliance with interim consent orders – orders made for counselling, therapy and hair follicle testing for the father – importance of close scrutiny of the court – the matter relisted in 5 and 8 months’ time Legislation: Family Law Act 1975 (Cth) – s 69ZN Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 12 March 2024 Place: Canberra Counsel for the Applicants: Mr Stagg Solicitor for the Applicants: Jeanine Lloyd & Associates Counsel for the Respondent: Mr Haddock Solicitor for the Respondent: Bevan & Co Counsel for the Intervener: Ms Baker-Goldsmith Solicitor for the Intervener: ACT Government Solicitor Solicitor for the Independent Children's Lawyer: Ms Dillon-Smith, Dillon-Smith Lawyers ORDERS
CAC 505 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BURWELL
Applicant
AND: MR JARVIS
Respondent
DIRECTOR-GENERAL, CHILD YOUTH PROTECTION SERVICES
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
12 MARCH 2024
THE COURT ORDERS, BY CONSENT, UNTIL FURTHER ORDER THAT:
1.The mother shall have sole parental responsibility for the children Y and Z.
2.Prior to making any long term decision for the children Y and Z, excepting in case of emergency, the mother shall: -
(a)Advise the father of the proposed decision no less than 14 days prior to the decision being made;
(b)Invite the father’s feedback concerning the decision and take that feedback into account provided it is given to the mother within 7 days of the notification to the father; and
(c)The mother shall inform the father of her ultimate decision.
3.The children Y and Z live with the mother.
4.For 3 months from the date of these Orders the children Y and Z shall spend time with the father as follows:
(a)On one occasion each alternate week at a venue and place as agreed to between the parties with such time to be professionally supervised; and
(b)The father is able to take the children to the park whilst he is having professionally supervised time.
5.After a period of 3 months from the date of these Orders the father shall spend time with the children unsupervised as follows:
(a)For 2 hours on an alternate Sunday from 10am to 12:00 noon for 3 months;
(b)Thereafter for 6 hours on an alternate Sunday from 10am to 2pm for 3 months; and
(c)Thereafter for 8 hours on an alternate Sunday from 9am to 5pm.
6.For the purpose of the father’s time with the children the Director-General shall be responsible for providing transport for the children to and from their time with the father.
7.The father shall continue to engage with the counselling through the L Program until he commences and engages in schema therapy and shall continue to engage in schema therapy for a minimum period of 12 months.
8.The father shall provide evidence of his engagement with that counsellor to the parties and a report as to his progress at 6 months from the date of these Orders.
9.The father’s time becoming unsupervised pursuant to Order 4a. shall not commence until he has undertaken a hair follicle test and the results are clear for illicit substances other than cannabis and amphetamine as prescribed.
10.The father is to maintain compliance with his prescription marijuana and will not use more than the prescribed level or an amount of 800/ugl detectable in urine, whichever is the higher.
11.The father shall undertake a hair follicle test within 3 months of these orders and thereafter each 6 months to be organised and paid for by the Director-General and he shall provide the results to the parties within 7 days of receiving these.
12.The father shall abstain from any illicit or non-prescribed substances.
13.The father shall not consume any cannabis for 2 hours prior to and during his time with the children, including prescribed cannabis.
14.Until further order the father is restrained from bringing the children into any contact with any new partner or having that person present at the same time as the children are spending time with the father unless approved in writing by the parties.
15.The father is not to drive the children in a motor vehicle at any time until approved in writing between the parties.
16.Neither party is to physically discipline the children or expose the children to any incidence of violence or loud adult arguing.
17.The father is not to consume alcohol 24 hours prior to and during his time with the children.
18.After 9 months of the date of these orders an updated Comprehensive Family Assessment shall be prepared by Mr K funded by the Director-General and shall be released to the parties.
19.The parents shall communicate via Talking Parents application or other agreed free parenting application for the purposes of communication between them concerning the care, welfare, and development of the children.
IT IS NOTED THAT:
A.For a period of 12 months of the date of these Orders the Director-General will continue to provide ongoing supports to the mother in relation to her care of Yand Z concerning her disability and the children’s ongoing need for therapeutic engagement.
IT IS FURTHER ORDERED THAT:
20.The proceedings are adjourned for an in-person attendance, save in the case of the mother who is entitled to appear by video link on that day, firstly to 8 August 2024 at 10 am.
21.Fourteen days prior to that date each party is to file and serve an affidavit setting out in respect of order 5 what time has occurred and what issues may have arisen in respect of that time, and for the father, in respect of order 7, his attendances upon and any recommendations as to attendances in therapy and as to his engagement with the scheme of therapy set out in order 7, in respect of the Director-General the results of any hair follicle testing undertaken by the father in respect of order 11, and on the part of the mother and the Director-General the nature of the ongoing supports received by the mother and the efficacy of such in supporting the welfare of the children as identified in notation A.
22.The matter is listed to 11 am on 29 November 2024 and I direct that such is an in-person appearance, save in respect of the mother who is entitled to appear by video link, and I direct that 14 days prior to that court event the parties are to each file and serve an affidavit setting out the matters identified in the affidavit above, and further on the part of the father, setting out evidence of his engagement with the counsellor and a report in this instance as to his progress in respect of that as set out in order 7.
23.Any party is at liberty to seek the urgent relisting of this matter should it be necessary to do so to protect the well-being of the children.
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.
IT IS NOTED that publication of this judgment by this Court under pseudonym Burwell & Jarvis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
Together in these proceedings the parents, the Independent Children’s Lawyer (“the ICL”) and the Director-General have jointly proposed interim consent orders, such proposal occurring during day one of the first of four days for which this matter was listed for trial.
That proposal comes in circumstances where the untested evidence raises a number of issues including the vulnerabilities of the mother, who is disabled, in terms of her capacity to care for the children and her limitations in doing that, the willingness of the mother to foster a relationship between the children and the father, potential risks posed by the father and compromise of his parental capacity in relation to exposing the children to family violence, in relation to his drug and alcohol use and in relation to his mental health. That evidence raises serious issues as to the potential extent and limitation of benefits of meaningful relationship between the children and the father and risks posed by the father. The potential for the children to reap benefits from a relationship with the father is in this case, again, potentially of greater significance given the mother’s own limitations. The evidence so far adduced by the father acknowledges a number of the issues, although not all of them, and also identifies the steps that the father has been taking to ameliorate a number of those issues. Without the father having taken positive steps to ameliorate those issues the attractiveness of interim orders would undoubtedly be diminished in these proceedings.
The future prospects for Y and Z are in significant flux because of the matters that I have outlined above. The unusual circumstances in this case call for interim orders despite the significant benefits which usually flow from determining a matter finally. The interim disposition of this matter allows ongoing risks to be assessed, potential benefits to be ascertained and each of those to be ameliorated. The making of interim orders is only acceptable as part of a scheme where the parties are all agreeing on a scheme that has the potential to stabilise those areas of compromise and to ameliorate risk.
The father’s agreement to engage with therapy, as supported by the Director-General, provides an appropriate framework for that, to do so in the context of the ongoing support offered by the Director-General to the mother.
However, it is important that there remains close scrutiny by the court of the circumstances of the parties as they undertake this process. Hence, in addition to making the orders that are agreed by consent it is important that there be a framework to bring the parties back before the court to monitor their compliance and progress and to assist in a therapeutically directed approach. That approach is consistent with the principles for conducting child related proceedings, emphasising the protections as set out in principle 3, the need to actively manage proceedings as set out in principle 2, considering the needs and the impact on the children of the litigation as identified in principle 1, promoting child focused parenting in accordance with principle 4 and although this approach will give delay it is consistent with the avoidance of legal technicality and form as set out in principle 5.[1] Accordingly, make orders by consent, in terms of the agreement of the parties are set out as exhibit C1.
[1] Family Law Act 1975 (Cth) s 69ZN.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 19 March 2024
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