Burwell & Jarvis (No 4)
[2025] FedCFamC1F 286
•8 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Burwell & Jarvis (No 4) [2025] FedCFamC1F 286
File number(s): CAC 505 of 2023 Judgment of: GILL J Date of judgment: 8 May 2025 Catchwords: FAMILY LAW – PARENTING – Final orders proposed with consent of all parties – Proposed orders suitable to ameliorate the risk to the children associated with the father in circumstances where the mother’s parental capacity is compromised – Final orders made in line with the terms provided by the parties Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 1 May 2025 – in chambers Place: Canberra Solicitor for the Applicant: Mrs J Lloyd, Jeanine Lloyd & Associates Solicitor for the Respondent: Mr Pasi, Prudential Legal Solutions Solicitor for the Independent Children's Lawyer: Ms Dillon-Smith, Dillon-Smith Lawyers Solicitor for the Intervener: Ms Mullins, ACT Government Solicitor ORDERS
CAC 505 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BURWELL
Applicant
AND: MR JARVIS
Respondent
DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE
Intervener
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
8 MAY 2025
THE COURT ORDER, BY CONSENT:
1.That the mother shall have sole decision making for Y, born in 2016 and Z born in 2017.
2.That in the exercise of the mother’s sole decision making the mother shall keep the father informed of the childrens health, welfare, education, development and long-term decisions.
3.That the father’s time with the children, Y and Z, be as agreed by the parties in writing, or failing agreement as follows:
4.With Z – Supervised professionally once each fortnight for two hours with the father to pay the costs of the supervision.
5.With Y – With the written agreement of the mother noting Notation A.
6.That upon the father providing at his costs, evidence to the mother of;
(a)A hair follicle test results covering a continuous period of 12 months showing the absence of any illicit or non-prescribed substances; and
(b)Evidence that the father has had no criminal complaints or charges for a period of 12 months and he shall do all acts and things necessary to obtain a copy of his criminal history covering the period 12 months;
The father’s time with Z shall proceed unsupervised for a period of three hours each alternate week.
7.When the father is spending time with Z under these orders, he is restrained from allowing X to be present, unless otherwise agreed with the mother in writing.
8.When the father is spending time with Z, he is restrained from allowing another adult to be present, without the written consent of the mother.
9.The father shall notify the mother of any involvement with the AFP in relation to drug charges or Family Violence Complaints.
10.In the event that the father is charged with any drug or family violence offences his time with the children shall revert to professionally supervised time.
11.The parents shall communicate by way of a parenting app.
12.The parents are restrained from speaking negatively about the other parent or exposing the children to family violence or loud adult arguing.
13.The parents are to supervise the childrens use of social media.
IT IS NOTED THAT:
A.For the purposes of Order 5 the parties shall be guided by the recommendations and advice of Y’s therapist in relation to him spending time with the father and a review of Y’s time with the father shall take place within four months.
B.It is anticipated that the Director General will arrange and pay for hair follicle tests in Childrens Court proceedings.
C.The mother has no intention of changing the children’s names or relocation and she has just purchased a home in Region M.
D.Once the proceedings relating to X in the Childrens Court are finalised by way of final orders the mother and father may return to Family Dispute Resolution to review these orders.
E.The mother is to make sure that Y and Z remain in ongoing counselling as recommended by their counsellors.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
The parties, including the intervening Director-General and the Independent Children’s Lawyer, have together formulated orders to finally resolve the proceedings in relation to the care of the children Y, aged almost nine years, and Z now aged eight.
The proposed orders reflect the difficult circumstances that the parties have faced and in which the litigation has been conducted. The parties’ relationship saw the birth of three children, X, who is currently aged 12 years, as well as Y and Z. The proceedings initially involved X. However, proceedings were commenced in a Childrens Court in relation to X who is under the care of the Director-General and from the commencement of those proceedings these proceedings no longer concerned X.
The relationship was one in which the mother reported significant family violence on the part of the father and following the separation of the parties the children remained in the mother’s care. Historically issues were raised as to neglect while the children were in the mother’s care. In April 2022 the mother and children were involved in an accident, which then saw the mother hospitalised for months and permanently disabled requiring a aid to be mobile. From the point of the accident the children went into the care of the father and issues as to risk and neglect of all three children arose.
Ultimately orders were made for Y and Z to return into the care of the mother following issues of risk being identified with the father, including exposure to family violence alleged to be perpetrated by the father upon intimate partners, and drug use on the part of the father, and issues as to whether or not Y was subjected to other risk while in the company of the father. Ultimately those matters resulted in the interim suspension of all time between Y and the father, whilst Z continues to have professionally supervised time.
Although issues of the mother’s capacity to care for the children were raised prior to the accident, following the accident she has received other forms of support which have ameliorated those issues. However, it remains the case that she is limited in her capacity to care for the children and reliant upon the network of support which she has available to her.
Temporary orders have been in place allocating sole parental responsibility to the mother, for Y to have no time with the father, and for the father’s time with Z to be contingent upon clear drug screens and under professional supervision provided for by the Director-General.
The matter was listed for final hearing later this year. Through a process of negotiation the parents, Director-General, and the Independent Children’s Lawyer have together proposed terms that they contend are in the children’s best interests.
Those terms provide for the mother to have sole parental responsibility and for the father’s time with Z and Y to be subject to written agreement between the parties. In the absence of written agreement between the parties, the father’s time with Z is to occur once a fortnight and be supervised professionally until the father provides clear hair follicle tests and has no criminal complaints or charges being raised against him for a period of 12 months. Under those circumstances his time with Z will move to an unsupervised but limited period for three hours each alternate week. Time with Y will still be the subject of written agreement between the parties. A suite of other protective orders are in place requiring the father to notify of any involvement with the Australian Federal Police, to notify in the event that he faces any drug or family violence offences. These circumstances will require his time with the children to revert to being professionally supervised time. The orders are accompanied by notations as to various steps that would be taken to cause hair follicle tests to take place and to ensure that the children are adequately supported.
It may be observed that the orders proposed by the parties contained with them significant protections for the children. The orders provide amelioration in respect of the risks raised in relation to the father. There is sufficient amelioration to warrant the maintenance of relationships between the children and the father under the circumstances of the mother’s compromised capacity. Under those circumstances the orders proposed by the parties are reflective of the best interests of the children and should be made.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 8 May 2025
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