Jackman and Jackman

[2018] FamCA 685

FAMILY COURT OF AUSTRALIA

JACKMAN & JACKMAN [2018] FamCA 685

CHILDREN – Allegations of family violence – Allegations of parental alienation – Final orders by consent – Orders that mother have sole parental responsibility for the children – Orders that the father spend time with the children and communicate with the children as agreed in writing – Specific issues orders.

Family Law Act 1975 (Cth)

APPLICANT: Ms Jackman

RESPONDENT: Mr Jackman

INDEPENDENT CHILDREN’S LAWYER: Butler Mcintyre & Butler

FILE NUMBER: HBC 27 of 2018

DATE DELIVERED: 13 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 13 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Rofe

SOLICITOR FOR THE APPLICANT: Wallace Wilkinson & Webster

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Grant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Butler McIntyre & Butler

Orders

1. BY CONSENT parenting orders be made in accordance with the minute of consent order signed by the parties and by the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2. Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

1. These orders do not preclude the father from filing a fresh application in a Court exercising jurisdiction under the Family Law Act 1975 (Cth) in relation to the children spending time and/or communicating with him.

IT IS DIRECTED

1. A transcript be taken out of the submissions by the Independent Children’s Lawyer and placed on the Court file.

2. A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS FURTHER ORDERED

1. All extant applications be dismissed.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Exhibit “1”

1. The children, X born … 2008, Y born … 2011 and Z born … 2011 (“the children”) live with the Mother.

2. The Mother have sole parental responsibility for the children and, prior to making decisions about long term issues, the Mother shall:

   a.advise the Father in writing of the decision to be made;

   b.seek the Father’s written response and should the Father wish to engage in the decision making process, he is to provide a written response within 14 days of receiving the advice referred to in sub-paragraph (a);

   c.consider by reference to the best interests of the children, any written response received from the Father, prior to the Mother making any such decision; and

   d.advise the Father in writing within 7 days of her ultimate decision.

3. The Mother authorise Dr B, Ms C, D Group, E Unit  and or any other medical specialist attending the children for the purpose of assessments to provide a copy of their written report to the children’s school (F School) and the Father at his last known postal address.

4. Within 7 days of the date of these Orders the Mother email the two reports received from Dr G to the Father.

5. The Mother facilitate X’s attendance with Ms C (the psychologist) to address the  issues identified in the Psych-Educational Assessment dated 20 April 2016 including but not limited to his avoidant behaviours,  anxiety and  transitioning to school following holidays and his emotional wellbeing as a consequence of the breakdown of his parent’s relationship and the breakdown of his relationship with the Father;

6. The Mother do all such acts and things to make an appointment for X to engage with Ms C within 4 weeks of the date of these Orders.

7. On or before the next appointment with the psychologist the Mother provide authority to the psychologist and F School to communicate with each other regarding X’s progress and needs.

8. The Mother  follow the recommendations of the psychologist and   in the event that the psychologist concludes that X no longer requires psychological intervention, the Mother will do all such acts and things necessary to engage X with the school counsellor at F School for such periods as deemed appropriate and necessary by the school counsellor.

9. The Mother do all such acts and things necessary to make an appointment for Y and Z to engage  with D Group within 4 weeks of the date of these Orders to address their  anxiety and the their emotional wellbeing as a consequence of the breakdown of his parent’s relationship and the breakdown of his relationship with the Father.

10. The Mother follow the recommendations of D Group and in the event that D Group concludes that Z and Y no longer requires psychological intervention, the Mother will do all such acts and things necessary to engage Z and Y with the school counsellor at F School for such periods as deemed appropriate and necessary by the school counsellor.

11. For the purpose of Orders 5 and 9 herein, the following reports be released to X’s psychologist  and D Group

    (a)Psych-educational Assessment of X dated 20 April 2016;

    (b)Child and Family Assessment dated 22 February 2018

    (c)Report from the Children’s Contact Service dated May 2018;

    (d)A copy of these Orders

12. The Father be at liberty to contact Ms C and D Group to obtain information about the children’s psychological wellbeing and the Mother authorise both Ms C and D Group to provide information to the Father.

13. In the event the Mother has cause to stop the children’s attendance with Ms C or D Group, she provide to the Father by email her reasons for stopping the children’s engagement prior to doing so and provide her proposal for the children to have ongoing psychological support and the Father be at liberty to discuss the Mother’s proposal with the relevant provider.

14. In the event that either D Group, Ms C or the school counsellor are of the opinion the children (or child) wishes to spend time with the Father, the Mother and Father will engage with the relevant provider, or if not appropriate as deemed by the provider, with community based mediation, to facilitate time occurring.

15. The children spend time and communicate with the Father as may be agreed between the parties.

16. The Mother will advise the Father as soon as is reasonably practical in writing of any change to her residential address, email and contact number.

17. The Father will advise the Mother as soon as is reasonably practical in writing of any change to his residential address, email and contact number.

18. The Father be at liberty to obtain school reports, school newsletters and information regarding the children’s progress from the children’s school and teachers, subject to the Father not physically attending the school during school hours or during a student event without the written consent of the Mother.

19. The Father be at liberty to attend the children’s extra-curricular sporting events or performances (excluding events at the children’s school or events organised by the school), provided that the Father does not come within 20 metres of  the children without the prior written consent of the Mother obtained prior to the commencement of the event.

20. The Mother and Father be restrained from posting negative, abusive and/or derogatory comments of the other and/or children on public social media.

21. The Father be at liberty to post the correspondence and/or children’s gifts to the Mother’s place of residence which is currently H Street, Suburb J, or deliver the correspondence/gifts to the reception at the Mother’s current place of work at K Pty Ltd and the Mother will cause the delivery of the correspondence/gifts to the children.

22. Neither party denigrate the other, their partner or family to any third party or to the children or in the presence or hearing of the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: HBC 27 of 2017

MS JACKMAN

Applicant

And

MR JACKMAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. X is aged nine and later this year will celebrate his 10^th birthday.  His younger siblings McKenzie and Z, twins, have just celebrated their seventh birthday.

2. Proceedings were commenced in this Court for parenting orders on 13 November 2017, about nine or 10 months ago.  The proceedings were commenced by the mother.  I have over the weekend taken the time to read the Child Responsive Program Memorandum and the extensive affidavits filed on behalf of each of the parties.  The matter was listed for today for a possible undefended hearing. 

3. Until recently, the father had been represented by competent practitioners but, has come to court today consenting to orders which substantially provide that these three children live with their mother and that she makes decisions regarding them.  The orders provide that the father has information about what is happening to the children, that he has the ability to send letters, cards and presents, and other orders which are set out in the minute of order which will remain on the Court file and is contained in the extensive submissions on behalf of an Independent Children's Lawyer. 

4. It is of some value to provide a background in relation to this matter.  The mother is aged 33.  The father is aged 32.  It seems that the parties commenced cohabitation in 2007 when they were both very young and married the following year in 2008.  Their children were born in 2008 and 2011 and the parties separated in August 2016.  There was an event at the time of separation which has been the subject of information provided by each of the parties. 

5. In January 2017 the parties entered into consent orders in relation to property, and as I said earlier, in November 2017 these proceedings were commenced.  The father filed a response.  It is not in issue that the eldest child has not spent time with the father since February 2017 and that the twins have not spent time with the father since January 2018.  A Police Family Violence Order was put in place. 

6. Not unexpectedly, an Independent Children's Lawyer has been appointed and a very detailed Child Responsive Program Memorandum was prepared by a family consultant of this Court.  I have read that document.   

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The terminology of the section is such that the Court is to presume that it is in the best interests of the child for their parents to have equal shared parental responsibility unless the Court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise, then:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable; and if not

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

7. The father, if his affidavit is correct, asserts that the mother, and in particular, with the support of the maternal grandmother, has taken whatever steps she can to alienate these children from him and his family.  The mother in her affidavit says that the children have health difficulties and views, particularly those of the eldest child, and that the father is insensitive to these and that the father has engaged in forms of family violence.  No doubt the truth lies somewhere between those two distinct parameters which each of the parties have set out in their material. 

1. What is clear is two substantial factors.  First, that to expose children to ongoing violence, and ongoing conflict, is not in their best interest.  I make no findings one way or the other in respect of those allegations.  Secondly, as the Family Consultant observed, children like adults generally benefit from repairing damaged relationships rather than developing and maintaining negative views towards a person or persons with whom a previous positive relationship was held.

2. I have carefully read the minutes of order and I will make those orders noting that they do not prevent the father from at some stage coming back to this Court or another court exercising jurisdiction under the Act to try and put in place orders that the children spend time and communicate with him.

3. The process that has been put to me after obviously careful consideration by me and by the Independent Children's Lawyer, and in the light of information from the principal of the children’s school and from the Family Consultant, takes the pressure off these children and leaves open the possibility of the children regaining a relationship with their father, and leaves open for the father the ability to maintain some contact through letters and cards with the children. 

4. Given the material that was before me at the present time, and given the consent and request of the parties and the support of the Independent Children's Lawyer, I intend to make those orders. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 August 2018.

Associate:

Date:  6 September 2018