JACKSON & WHITEMAN

[2021] FamCA 280

FAMILY COURT OF AUSTRALIA

JACKSON & WHITEMAN [2021] FamCA 280

FAMILY LAW – PARENTING – Where the parties attempted to file Consent Orders for parenting in the Family Court of Australia – Where there is a history of family violence perpetrated by the father against the mother and children – Where a Protection Order is in place protecting the mother from the father – Where there are possible risks of harm posed by the paternal grandmother and stepfather – Where an assessment of risk must be made rather than the parties’ feelings about risk – Where there is insufficient information to determine the orders are in the best interest of the children – Where the application is dismissed.

APPLICANT: Ms Jackson

RESPONDENT: Mr Whiteman

FILE NUMBER: PAC 6390 of 2020

DATE DELIVERED: 16 February 2021

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 February 2021

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: BGM Family Lawyers

Orders

1. The application for consent orders is dismissed.

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  Jackson & Whiteman 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 PARRAMATTA

FILE NUMBER: PAC 6390 of 2020

MS JACKSON

Applicant

And

MR WHITEMAN

Respondent

REASONS FOR JUDGMENT

1. I dismiss the application for consent orders, and in doing so I do give these short reasons.  In summary, it is very difficult for the Court to determine on the basis of the limited information provided that these orders are in the best interests of the children. The subject children under consideration are young and, in my view, quite vulnerable because it would appear that both of the parents, even on their own cases, have had some challenges in raising them.

2. The Court is not simply a rubber stamp. It appears that the parties may not have current concerns such as those the mother raises about the father’s violence in the past. It is submitted on the father’s behalf that these matters are historic. 

3. On the basis of evidence in relation to the harms associated with the perpetration of family violence, I don’t accept that because a last act of violence was said to have occurred a couple of years ago means that all issues in relation to violence have been overcome and are not matters of significance, especially in the circumstances where the parties have had very little to do with one another over the period.

4. One only needs to look at the number of references to family violence in the Family Law Act to appreciate the weight that is given to that particular issue and harm associated with exposure to violence to draw the conclusion that is something that the Court must consider very closely.

5. I am concerned that the sworn affidavit of the mother deposes to there having been two protection orders in Queensland applied for and made against the father for her protection.  The first one was for, she says, about two years, and she deposes that while that order was current, that the father assaulted her and breached the order and was charged and convicted of the breach.

6. She then deposes to there being a further order made for a period of five years, which in my experience is a very lengthy protection order, and certainly would not have been lightly made. Notwithstanding that it makes allowance for family law orders, I cannot, in my view, properly assess the issue of risk posed by the father on the basis of his violent conduct in the past without having much more information about that.

7. There are also issues on the face of the evidence that raise concerns about the risk posed for family violence towards the children or abuse towards the children. In particular, the mother deposes to the father hitting the older of the children in the face and that it left it a mark. The incident was such that a mandatory reporter, rather than the mother, made a report to DOCs about the matter.

8. The other sorts of issues in relation to possible harm posed by the paternal grandmother and stepfather are raised fair and square in the mother’s affidavit. These are also matters about which there would need to be an assessment of risk as opposed to the parties’ feelings about risk, before such orders could be made.

9. There are also other issues relating to the practicalities of the orders, considering the age of the children. In all of the circumstances I am not satisfied on the information available to me that these orders are in the best interests of the children, primarily because I am unable to make an assessment of the potential risk posed in the parenting arrangement that is proposed.  For these reasons the application is dismissed. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 February 2021.

Associate: 

Date:  7 May 2021