Jakes and Perin

[2020] FamCA 821

FAMILY COURT OF AUSTRALIA

JAKES & PERIN [2020] FamCA 821

FAMILY LAW – CHILDREN – where the father has failed to appear – where there has been no restoration of the father/son relationship – where any restoration (effectively a creation) of that relationship would cause the mother to be emotionally and psychologically destabilised to the extent which could impair her capacity as a parent – final orders made for the child to live with the mother and spend no time and have no communication with the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Jakes

RESPONDENT: Ms Perin

FILE NUMBER: BRC 12665 of 2017

DATE DELIVERED: 26 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 26 August 2020

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER: Ms E Rayment as town agent for Ms S Cleeland of Sarah Cleeland Family Lawyers

Orders

1. That the child X born … 2013 (“the child”) live with the mother.

2. That the mother have sole parental responsibility for all major long term decisions in relation to the child.

3. That for the purposes of Section 11 of the Australian Passports Act 2005, the mother have sole parental responsibility for the child.

4. That the mother be permitted to solely sign, apply for and/or renew, without the consent of the father, any Australian travel document which permits:

   (a)the child to have an Australian travel document, including but not limited to an Australian passport and visa; and

   (b)permits the child to travel internationally with the mother.

5. That the mother hold any passports and visas issued for the child.

6. That the child spend no time and have no communication with the father.

7. That the Independent Children’s Lawyer be discharged.

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 Jakes & Perin 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 BRISBANE

FILE NUMBER: BRC 12665 of 2017

Mr Jakes

Applicant

And

Ms Perin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. I propose to make the orders sought by the Independent Children’s Lawyer with the consent of the mother for these reasons.  X, who was born in 2013, is the only child of a somewhat dysfunctional relationship that took place between the Applicant father Mr Jakes and the Respondent mother Ms Perin.

2. The evidence is that the parties separated some months before X was born, and the mother’s evidence is that the father has really had no time with X since he was born, perhaps only seeing him proximate to his birth on one occasion.

3. As a result of a 1996 motor vehicle accident, the father has suffered some disabilities and challenges, and on the current evidence has the benefit of a disability pension.  Certainly, when he commended his proceedings in the Federal Circuit Court of Australia initially on 28 November 2017, he was seeking orders that the child live with the mother, but that he spend each alternate weekend with the child.

4. Issues of drug and alcohol use by the father have been part of the mother’s concerns in this case, and even though an Independent Children’s Lawyer was ordered as far back as February 2018, and despite now two family reports and a psychiatric report, there have been no orders made for the father to spend other than supervised time with the child, and that time has not taken place for reasons which are clear.

5. For much of the litigation, the father had the benefit of legal representation, but as the solicitor for the father indicated in an Affidavit filed 6 March 2020, she has been unable to obtain instructions from her client for some time.  I do acknowledge that the father did present for family report interviews with Mr B for the first family report in September 2018, but did not present for the second family report in February 2020.

6. It is a sad reality of this case that there has been no restoration of the father/son relationship, and Mr B says – and I accept for the purposes of today – that any restoration (effectively a creation) of that relationship would cause the mother to be emotionally and psychologically destabilised to the extent which could impair her capacity as a parent.

7. The father’s lack of engagement with the process has meant that today, despite being satisfied that attempts have been made to bring to his attention orders which the Independent Children’s Lawyer invites me to make (with the mother’s consent) it has not resulted in the father appearing.  I have explained to the mother that although I intend to make these orders today as final orders, this does not mean, of course, that the father could not, at some future point in time, seek to enliven the jurisdiction of the Court either because he did not appear today for some good reason or that there has been a material change of circumstances since the orders were made today that, in the best interest of X, deserve the matter to be revisited.  The mother accepts and understands those issues.

8. I am satisfied that the orders the Independent Children’s Lawyer proposed today – and, as I say, has the support of the mother – are in X’s best interests, and they appear at the commencement of these Reasons.  I make them on the final basis.

9. I also order that the Independent Children’s Lawyer be discharged.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 26 August 2020.

Associate: 

Date:  30 September 2020