Daymond & Joslyn (No 2)
[2022] FedCFamC1F 904
Federal Circuit and Family Court of Australia
(DIVISION 1)
Daymond & Joslyn (No 2) [2022] FedCFamC1F 904
File number(s): SYC 6975 of 2020 Judgment of: REES J Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – INTERIM – PARENTING – Where parties agreed to varying prior orders to reduce time spent between the children and the father according to the Single Expert report – Where the father was incarcerated for sexual offences against a minor – Where the mother seeks to cease electronic communication between the father and the children – Where there is no evidence to warrant the ceasing of electronic communication at this time – Orders made for FaceTime to occur on alternate Wednesdays Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 15 November 2022 Place: Sydney Counsel for the Applicant: Mr Williams KC Solicitor for the Applicant: Broun Abrahams Burreket Counsel for the Respondent: Mr Dura Solicitor for the Respondent: Karras Partners Lawyers Independent Children’s Lawyer: El Baba Lawyers Pty Ltd ORDERS
SYC 6975 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAYMOND
Applicant
AND: MR JOSLYN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
REES J
DATE OF ORDER:
17 November 2022
THE COURT ORDERS:
1.That Order 1.1.2 made on 12 February 2021 be varied such that FaceTime contact between the children and the father occur on each alternate Wednesday between 7.00 pm and 7.15 pm, that being the Wednesday prior to the time the children spend with the father on alternate Sundays.
2.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
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 a pseudonym Daymond & Joslyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
These proceedings concern the parenting arrangements for two children, X who is 14 years old and Y who is 12 years old. Their parents are Ms Daymond (“the mother”) and Mr Joslyn (“the father”).
An Independent Children’s Lawyer (“ICL”) has been appointed for the children and there have been two reports prepared by a single expert child psychiatrist, Dr D, whose most recent report is dated 31 October 2022.
The current orders which were made on 12 February 2021, provide for the children to spend professionally supervised time with the father every Sunday and to have FaceTime communication with him each Wednesday.
The father was charged and pleaded guilty to a number of criminal offences. He served a term of imprisonment, being released on parole in late 2022. The children had no communication with the father while he was in prison but the supervised time was recommenced on his release.
Before me, by an Application in a Proceedings filed 19 July 2022, the mother sought to reduce the frequency of the supervised time. That issue was resolved by agreement and orders have been made varying the time so that it occurs fortnightly rather than weekly, in accordance with Dr D’s recommendation in his report dated 31 October 2022.
The parents and the ICL also agreed that, in accordance with the recommendations of Dr D, copies of his report be provided to the father’s treating therapists and that copies also be provided to the therapists for the children.
The mother now seeks to discharge the orders made for the children to have FaceTime communication with the father. That application is supported by the ICL and opposed by the father who proposes that the order be varied so that FaceTime is reduced to fortnightly contact.
Dr D, in his report dated 31 October 2022, recommends that the FaceTime contact cease. He stated,
Unfortunately I think that [Mr Joslyn] has so little insight into other people’s personal space that I am also concerned about him having electronic or telephone contact with the children, even if it were just once a week and supervised. I think the children are old enough now that a safe relationship with their father can be maintained on a fortnightly face-to-face basis.
The application in relation to FaceTime contact was not included in the mother’s Application in a Proceeding filed 19 July 2022 and her affidavit in support of that application, sworn 1 November 2022, does not make reference to the FaceTime calls or the children’s reaction to them.
However, Dr D, in his report dated 31 October 2022, notes that the mother told him that the children, “can become quite unsettled immediately before and after FaceTimes”. Dr D also noted,
[The mother] said that since the visits have resumed, [X] has been a bit more agitated again, but only after the FaceTime calls so far. For example, after a recent call he got a bit aggressive with [Y], apparently berating her for not being happy to be on the telephone call. She expressed surprise he had said that to [Y], because she thought it was actually he who is less happy to be on the phone calls.
Dr D does not report that he specifically asked either of the children about the FaceTime calls.
I am not satisfied that the available evidence, absent the opportunity to cross-examine Dr D, supports the cessation of FaceTime calls between the children and the father at this time but I propose to reduce the time to fortnightly as proposed by the father.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 17 November 2022
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