HIJAZ & JESSUP

[2011] FamCA 1039

FAMILY COURT OF AUSTRALIA

HIJAZ & JESSUP [2011] FamCA 1039

FAMILY LAW – CHILDREN – where parties initially brought an application for consent orders – mother withdrew consent and seeks adjournment to obtain further legal advice – mother suffers from mental disability – child currently lives with the father – mother agrees the child should not live with her – ACT child protection agency are aware of current living arrangements and have not intervened – doubts about the mother’s capacity to are for the child – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to the father – child shall live with the father – child shall spend supervised time with the mother – adjournment granted – parenting orders made on an interim basis

Family Law Act 1975 (Cth), s 60CC

APPLICANT: Mr Hijaz

RESPONDENT: Ms Jessup

FILE NUMBER: CAC 1133 of 2011

DATE DELIVERED: 28 October 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks, DCJ

HEARING DATE: 28 October 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Hijaz represented himself

SOLICITOR FOR THE RESPONDENT: Ms Jessup represented herself

Orders

It is ordered, until further order, that:

1. T, born on … 2011, live with his father.

2. The child’s father have sole parental responsibility for him.

3. That the child spend supervised time with his mother, as agreed between his mother and his father, but for not less than:

   (a)       On each Saturday for two hours (or any other day of the week as agreed between the parents). (It is noted both parents agree they will be flexible.)

   (b)       On his mother’s birthday for two hours;

   (c)       On Christmas Day for two hours;

   (d)       On Mother’s Day for two hours;

   (e)       On Easter Sunday for two hours;

   (f)       On New Year’s Day for two hours;

   (g)       On P’s birthday on … for two hours; and

   (h)       The child’s birthday on … for two hours.

4. For the purposes of the supervised time to be spent by the child with his mother, that supervision will be carried out either by his father or by Ms Jessup’s mother, as may be agreed between the parties or as each may be available.

5. In relation to the exercise by the father of his parental responsibility in accordance with these orders on an interim basis:

   (a)He shall keep the mother informed of the details of any treatment that the child receives from any medical or allied health professional and will provide the information to the mother about where such professional may be contacted; and

   (b)He shall keep the mother informed as to where the child may attend day care and any changes to those arrangements and will authorise the day care centre to provide to the child’s mother copies of any notices that may issue from the day care centre to parents.

6. In accordance with s 69ZW of the Family Law Act1975 I order that the Director-General of the Office of Children, Youth and Family Support in the Community Services Directorate provide a report in relation to notifications to the agency, assessments by the agency and any reports commissioned by the agency in relation to any such notification.

7. At the request of the child’s mother the proceedings are adjourned until 10 am on 19 December 2011.

8. On that day, unless the parties have otherwise earlier reached agreement, I will conduct what is known as the first day of a Less Adversarial Trial in relation to matters relating to the child. 

It is noted that:

1. Ms Jessup indicates that she proposes to apply for a divorce, possibly before that time.

2. The matter is adjourned to 19 December 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hijaz & Jessup has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: No. CAC 1133 of 2011

Mr Hijaz

Applicant

And

Ms Jessup

Respondent

REASONS FOR JUDGMENT

1. Now I will just briefly explain why I propose to make the orders I said I would make.  This is the nature of a judgment on an interim basis. 

2. In these proceedings the matter comes before the Court as a result of an initial application filed by both parties seeking that orders be made by consent.  I propose at this point to make the orders sought by consent on an interim basis as a result of an application by the child’s mother for an adjournment to enable her to obtain further legal advice, and as a result of her informing me during the proceedings this day that her consent to the orders as originally sought has now been withdrawn.

3. The application for consent orders in its original form did not provide to me or to the Court sufficient information to enable, even at a minimal level, the Court to be satisfied that what was being proposed would be in the child’s best interests. It became clear as well that there had been involvement from the ACT Community Services Directorate (which I will refer to as “the Department” and this was verified in more detail with subsequent affidavits filed by both the child’s father and mother in relation to the application for consent orders.

4. In both the original document, which provided that Ms Jessup had had independent legal advice (and that she was making a statement of truth to that effect), and in her subsequent affidavit some three weeks later Ms Jessup was seeking that the orders that had been submitted to the Court should be made by consent.  That consent is now apparently withdrawn. 

5. The situation is this: the child is very young.  His mother, on her own admission in her affidavit, indicates that after his birth she suffered from a mental disability and apparently her mental disability is such that she is the recipient of a disability pension.  So much she recorded in evidence before me this day.  She indicated in paragraph 21 of her affidavit that she was diagnosed with paranoid personality disorder after the child’s birth, having been previously diagnosed in May of 2009 after her first child’s birth with post natal psychosis.  Those of course are her report of what she was diagnosed with, not a medical assessment or opinion. 

6. The parties met in 2009, were married in 2009 it appears and the child was born in 2011.  They separated in September 2010 but they continued to live together until July 2011.  The circumstances of the parties parting are not clear to me at the moment, but as a result of the separation Mr Hijaz apparently went to the Department and as a consequence of that a voluntary care agreement was entered into whereby the child came, initially to live with his maternal grandmother in Canberra and subsequently to live with Mr Hijaz himself. 

7. The maternal grandmother cares for P who is the child of Ms Jessup’s previous relationship.  In accordance arrangements by the Department there are orders in place in relation to P.  And it is, I understand, to be the case that those orders will be sought to be extended when the two year initial period for the orders expires towards the end of this year.

8. The orders that I am being asked to make in these proceedings both now and possibly in the future are parenting orders and in accordance with the provisions of the Family Law Act 1975 (“the Act”) I am obliged to make orders that must be in the child’s best interests (either on an interim or permanent basis).  It appears that the parties are no longer agreed that the orders originally sought in the application for consent orders would be in the child’s best interests and therefore the proceedings will to some extent proceed on a defended basis. 

9. It appears further that the Department would have accepted that the orders originally sought would have been in the child’s best interests. 

Best interests of the child

Primary considerations

1. Ultimately I am to determine those best interests by the application of the provisions of the Act, particularly those set out in s 60CC of the Act which include two matters in particular as primary considerations.  The primary considerations I must take into account are the benefit to the child of having a meaningful relationship with both of his parents, and the need to protect him from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

2. In this particular matter, without medical evidence to support the proposition it is difficult for me to form any concrete assessment of what would be the risks associated with the child’s spending substantial time with, or living with his mother.  No doubt if the matter proceeds on a contested basis I will have evidence from the mother which will help me to come to some conclusion about that issue. 

3. It is proposed in the application for consent orders that the mother should spend time with the child.  Both she and the child’s father seek that there should be some proper relationship between the child and his mother to the extent that it is possible. 

4. A meaningful relationship is not necessarily defined by time.  It is not simply a situation of saying more time will produce a more meaningful relationship. A relationship becomes meaningful because of the way in which it is carried out, the attitude of the parties to that relationship and, in particular, the attitude of a parent to a child and to the time that he or she might spend with that child.

Additional considerations

1. Other considerations which I am obliged to take into account are set out in s 60CC(3) of the Act. And those are subdivided into a number of paragraphs lettered from (a) to (m).

2. Among those, I take into account at this point in reaching the orders that I do on an interim basis, the nature of the relationship of the child with each of the parents.  And in this regard I am satisfied, even on the limited basis of the evidence I have, that the child has a proper relationship with his father; that his mother’s opportunity to have a relationship with the child has so far been limited in part by the circumstances of the parties’ separation, but also by the fact that she had chosen herself, for reasons that are still not entirely clear to me, to spend time in Country B in the last few months.

3. I am satisfied further that the time that the child spends with his maternal grandmother is likely to be for his benefit, given that it provides him with an opportunity as well to spend time with his step-sister, P, who is being cared for by his maternal grandmother. The present arrangements which incorporate by reference the fact that the child will spend time with his maternal grandmother therefore would be supported by that subsection of the Act.

4. There is some dispute it appears this morning, but only late in the proceedings, about the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  That certainly did not appear to be the case from the evidence of Mr Hijaz but Ms Jessup in the latter part of her evidence is suggesting something to the contrary.  That is a matter for a final hearing.

5. The likely effect of any changes in the child’s circumstances at the moment pending any further hearing, which is what I am really talking about, would be disruptive for him at his young age.  The arrangements at present are in general terms satisfactory, not only in their presentation to me but also so far as the Department is concerned, they appear to fit within the context contemplated by the Department in the first place. 

6. There will be difficulties about the child’s spending time with and communicating with his mother.  This, at the moment, is partly related to the fact he is so young and therefore does not have much of an opportunity to do these things but also it is clear that Ms Jessup (whether because of the conditions diagnosed as she set out in her affidavit or whether it is something different) has some difficulties in her personal relationships.  This will need to be the subject of some proper and professional evidence in due course. 

7. I am satisfied at the moment in accordance with other matters I have taken into account that Mr Hijaz has for the purposes of these interim proceedings the capacity properly to look after the child.  I have some doubts, I have to acknowledge, that on an interim basis there is such a capacity with Ms Jessup.  In coming to that conclusion I am in part guided by her own admissions in her affidavit about her state of health and her ability to care for the child.  And as I suggested to her previously I regard her statements in this regard in which she honestly appraises her own situation as being honest and indicative of a commitment on her part to what is best for the child. 

8. I also take account of the fact that there may be evidence which causes me to be concerned about questions of culture, background and the nature of those factors in connexion with the child’s future.  They are matters for final orders, not for these orders.  They do not affect the situation at present. 

9. I am concerned about the mother’s attitude to her responsibilities as a parent in some of the evidence before me today but concern does not translate into a factor that I should properly otherwise determine.  I make no findings which would indicate that the mother has not at this point exercised a reasonable degree of responsibility and in fact I acknowledge that by her frank statements in her affidavit that she suffered from mental illness and had problems, she demonstrates (even if not in other matters referred to in evidence today) a responsibility which is to be commended.

10. Family violence is not a matter which bears upon the orders I am making.  And it is inevitable that there will be further orders in these proceedings in due course as is at least sought to be avoided by sub-paragraph (l). 

11. I also note in relation to s 60CC(4) that it is not possible to make a conclusive determination at this point about whether or not either parent has failed to take an opportunity to participate in the child’s life, or has failed to facilitate the other parent doing so, or has failed or fulfilled that person’s obligation to maintain the child.

12. The only evidence I have in relation to the last mentioned matter, which is subparagraph (c) of the relevant section, is that it appears there is a child support assessment (exhibit ‘M1’) and that the mother is meeting her commitments with the exception of $1, which is neither here nor there in the overall scheme of things.

13. There is under the Act a presumption that there should be equal shared parental responsibility. These are interim proceedings and I am satisfied in the nature of such proceedings that that presumption is rebutted. If it were not the case that it were to be rebutted simply because these are interim proceedings (which is one of the matters that I am to take into account under the Act), the alternative reasons why a presumption or an order for equal shared parental responsibility should be rebutted or not made are that at the moment I am unsatisfied that there could be an equal assumption of responsibility by the parents I do not propose to make such an order on an interim basis.  That would not preclude my making one in due course.

14. However, my acknowledging that the presumption is rebutted at this point means that it is not necessary for me to examine in more detail issues relating to the reasons why, if they exist, the child should not spend equal time or substantial and significant time with each of his parents. 

15. These then are the matters that seem to me to impact upon the decision I make at this point.  First, it appears notwithstanding that Ms Jessup has now withdrawn her consent, certainly in August and further, in September the orders sought in the application for consent orders were the orders that she thought were appropriate for the child on a long-term basis, not just on a short term basis. The second is that substantially, the orders sought have been put into place and appear to be working.  Third, they are orders which the Department has some knowledge of and has not otherwise sought to intervene. 

16. For these reasons and because of the factors I have set out above, it seems to me the child should live primarily with his father until the matter can be more properly investigated and that he should continue to spend time with his mother.  The arrangements that the parties had put in place at that point were arrangements which they considered to be appropriate.  They, as parents, have primary responsibility and in such circumstances, it seems that would be the appropriate way of proceeding on an interim basis.

17. Moreover, Mr Hijaz has so far demonstrated, in my opinion, the ability properly to look after the child, notwithstanding that it is a fairly daunting process for him as a young father - and a previously inexperienced father.  I am satisfied that the arrangements for the child’s care on a day-to-day basis have been properly taken into account and for those reasons, the orders, as they presently stand, are appropriate on an interim basis. 

18. Otherwise, the matter is adjourned, as I said, until that date in December and thank you for coming to Court.  The orders will issue shortly. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered 28 October 2011.

Associate:

Date: