EAKINS & JALOMO

[2020] FCCA 1604

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAKINS & JALOMO [2020] FCCA 1604

Catchwords:
FAMILY LAW – Parenting – best interests of the child – where the father seeks unsupervised or unmonitored time with the child – where the child lives with the mother – where the child spends monitored time with the father – where the child has displayed anxiety when he is to spend time with the father – where the child has been exposed to parental conflict – where the child has been exposed to an incident between the father and the mother’s partner – where concerns about whether the father will comply with counselling or therapeutic intervention.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS EAKINS

Respondent: MR JALOMO

File Number: ADC 809 of 2018

Judgment of: Judge Young

Hearing date: 26 May 2020

Date of Last Submission: 26 May 2020

Delivered at: Darwin

Delivered on: 26 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Robinson

Solicitors for the Applicant: Andrew Hill And Co.

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Olsson

Solicitors for the Independent Children’s Lawyer: Silkwoods Chambers

ORDERS

UPON NOTING:

That the court is satisfied that s 102NA(1)(c)(ii) applies and the father was informed that he would not be permitted to cross-examine the mother personally when the matter came to trial.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child X born in 2014 spend time with the father at the Suburb A Childrens Contact Centre as soon as can be accommodated by the Contact Centre at times can be accommodated by centre NOTING that the visits be for no less than 3 hours a fortnight

2. That the father register for and attend the course “Dads Taking Responsibility Program” (DTRP) held by B Family Services, Suburb A at his own expense

3. That the parties attend the ‘Circle of Security’ offered by C Family Services or similar parenting course as soon as practicable with each party be responsible for any fee and provide a proof of completion certificate to the other parent.

4. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship X born in 2014 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of an updated family report, such report to be released by 30 September 2020 NOTING that interviews and observations with the child for the previous report released on 30 April 2020 were not undertaken due to the COVID 19 pandemic.

5. That the family report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

6. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

7. That the parties are to telephone the Case Coordinator Children Dispute Services fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

8. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

9. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C. In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 9 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

AND IT IS FURTHER ORDERED:

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter be adjourned to the trial call over list on 27 November 2020 at 9.30am for further directions.

IT IS NOTED that publication of this judgment under the pseudonym Eakins & Jalomo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 809 of 2018

MS EAKINS

Applicant

And

MR JALOMO

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning a five year old boy, X, who lives with his mother.  He has a history of displaying anxiety at times that he is due to spend time with his father.  There were earlier orders that the father spend some supervised time with the child and I suspended those orders last year after the contact centre notes indicated that the father, in part, was using the time that the child spent with him to criticise the mother. 

3. The family report that I ordered indicates that in the opinion of the family consultant Mr Jalomo is somewhat focused on the breakdown of his relationship with the child’s mother.  He is very critical of her and the family consultant was concerned about his ability to focus on the needs of the child.  In my view many of those concerns were corroborated. 

4. Bearing in mind that this was an interim hearing I am not making any particular findings about this but I made orders that saw the child spending time with the father at the Suburb A Children’s Contact Centre, not supervised time but within a monitored framework.  The notes made by the centre at the beginning and the end of the child’s time with the father indicates quite a high degree of anxiety displayed by the child in spending time with the father, at times amounting to a refusal to spend time, but on most occasions the child spent time with the father.

5. The notes stretch over a period from 10 November 2019 to 22 March 2020, when the time stopped, apparently because of COVID-19.  Under the orders, the child was to spend time with the father three hours each fortnight.  As I have said, at the beginning of that period the child was expressing anxiety about spending time with the father and some of the other observations indicated that the child’s lack of confidence, and that is a phrase I have used, continued to some degree during the child’s time with the father.

6. The child was also exposed in December of last year to an incident where the father saw the child and other children with Mr D, the mother’s present partner.  Apparently the father did not know Mr D and he challenged him, apparently thinking that Mr D had no business looking after his son, that is, X. the father’s son, and restrained him on suspicion that Mr D was up to no good.  Unquestionably that constituted an assault except for the fact that the father said, and the police apparently accepted this, that he had a reasonable excuse in that he did not know whether or not Mr D was kidnapping the child or whatever else.

7. I have not heard evidence from anyone about this but it does surprise me that Mr Jalomo would not suspect that the child may be in the company of the mother’s partner, in other words the child’s step-father.  It did not turn out like that and there was, it appears, an unpleasant scene that would otherwise have constituted an assault, played out in front of the children, and played out in front of X, a five-year-old boy.  I would expect that experience to be very unsettling for a child, to see through a child’s eyes what appears to be his father threatening and/or assaulting Mr D, a person who would appear to be a member of his household who stands in loco parentis.

8. The child’s anxiety or lack of confidence in spending time with his father would appear to not be surprising.  Whether that is the whole explanation I do not know as I have not heard the evidence.  Reading the notes made by the centre, over time it was apparent that the child gained confidence with his father and by the final couple of visits the child appeared to be quite confident with his father.  The signs of anxiety had either disappeared or greatly reduced. 

9. I said to the father in argument today ideally I would like to see that confidence and lack of anxiety continue for a period.  That, however, has not proved to be possible because the COVID-19 pandemic has interfered with the operations of the children’s contact centre.  I am told that they are not offering a service at the moment with the upshot being that the child has not spent time with the father since March. 

10. The father’s attitude, judging by the notes from the contact centre staff, is that at the beginning he appeared to think that any anxiety that the child was displaying was entirely caused by the mother and had nothing to do with the father’s behaviour or conduct.  I think that position is probably unlikely to be correct but again I cannot make a finding about that. 

11. I suspect that there are other reasons relating not only to the father’s conduct in December but in relation to what I suspect is a certain lack of insight into some of the developmental needs of this young child who is caught between parents in conflict.  Mr Jalomo even went so far today as to suggest that the Court would simply favour the side of the mother, as he put it, and not listen to him.

12. I have formed the concern that Mr Jalomo is not a person who is willing to listen very much, particularly to advice that he finds in conflict with his own views.  There is evidence again from the correspondence that Mr Jalomo has attached to one of his affidavits that one of the workers at the contact centre suggested that Mr Jalomo might benefit from working with a counsellor who worked at the centre.  The father told me he had no interest in that whatsoever. 

13. I raised, also, with the father the recommendation in the incomplete family report that he should enrol in and attend a values and behaviour program called “Dads Moving Towards Responsibility” which is run through B Family Services at Suburb A.  I am not sure if that is at the contact centre or not but the father was resistant to that proposal. 

14. In short, the father’s position is that there is nothing wrong with the child’s relationship with him, there was no cause for concern and the involvement of institutions such as the children’s contact centre and, probably, the Court is unwelcome to Mr Jalomo.  That is a view he is entitled to take but it is not, in my view, a very constructive view and I am very concerned that in the long run it does nothing for the relationship between him and X.  .

15. I am concerned that the father lacks insight into the developmental needs of this child, particularly a sensitive child who is five years old, stuck between parents in conflict.  I think the father would benefit from some degree of counselling or therapeutic intervention and in turn his relationship with X would improve and that would be in the child’s best interests.  Given that Mr Jalomo has told me, in substance, he is not prepared to go along with that, apart from indicating that he will attend the “Circle of Security” program if the mother does.  I do not propose to accede to his proposal which is to simply make orders for the child to spend unsupervised or unmonitored time with the father.

16. While I do not consider that supervision as such is necessary, I found the observations made by the staff at the children’s contact centre during the monitoring of the arrival and departure of the child for the time with the father very useful and gave me a degree of insight into some of the issues.  I think it is most unfortunate that Mr Jalomo has taken the line that he will not participate in any therapeutic program that I order him to participate in and that he will not continue to participate in any program at the Suburb A Children’s Contact Centre.

17. Nevertheless, I consider that those orders are appropriate and I am going to make them.  Whether Mr Jalomo complies with the orders or not is a matter for him.  It is, as I say, most unfortunate for this child that his father has taken such a line.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 17 June 2020