JANSSEN & JANSSEN

[2015] FCCA 2131

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANSSEN & JANSSEN [2015] FCCA 2131

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – allegations of family violence – need to protect children from harm – family violence order in force – conviction for assault – whether children should have some face to face time with father – whether time should be supervised – parental responsibility – no presumption in favour of equal shared parental responsibility – sole parental responsibility.  

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Janssen & Janssen [2013] FCCA 2281

Applicant: MR JANSSEN

Respondent: MS JANSSEN

File Number: SYC 5802 of 2013

Judgment of: Judge Scarlett

Hearing dates: 9 April & 17 July 2014

Date of Last Submission: 22 August 2014

Delivered at: Sydney

Delivered on: 30 June 2015

REPRESENTATION

Solicitor for the Applicant: Ms Mowbray

Solicitors for the Applicant: Verekers Wollongong

Counsel for the Respondent: Mr Levy

Solicitors for the Respondent: Reid Family Lawyers

Independent Children's Lawyer: Ms Volk

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyer

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are suspended.

2. The mother is to have sole parental responsibility for the children X born (omitted) 2008, Y born (omitted) 2009 and Z born (omitted) 2011.

3. The children X, Y and Z are to live with the mother.

4. The father is to have telephone communication with all three children X, Y and Z for a period of no longer than fifteen (15) minutes between the hours of 5:00 pm and 6:00 pm each Tuesday and Thursday and the mother is to do all acts and things necessary to facilitate such calls.

5. The father is permitted to send birthday cards and reasonable birthday gifts to the children by forwarding the cards and gifts to the address of the mother’s solicitors who are to forward those cards and gifts on to the mother for her to give to the children.

6. The children X, Y and Z are to spend time with the father each alternate Saturday commencing on 1 August 2015 from 10:00 am to 11:00 am supervised by (omitted), such supervision to occur in Sydney, until 30 September 2015.

7. From and after Saturday 3 October 2015 the children X, Y and Z are to spend time with the father each alternate Saturday in Sydney from 10:00 am until 12:00 noon, supervised by (omitted), until Further Order of the Court.     

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5802 of 2013

MR JANSSEN

Applicant

And

MS JANSSEN

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application by the father, who is the Respondent to the substantive Application, for parenting orders permitting him to spend some time with his children under supervision. In his Application, filed on 14 February 2014, the father seeks Orders providing that:

   a)The parties should have equal shared parental responsibility for the children X (born on (omitted) 2008), Y (born (omitted) 2009) and Z (born (omitted) 2011);

   b)The children should spend time with him under supervision for a period of three months or until further order, for a period of four hours every Saturday in Sydney;

   c)The father should have telephone communication with the children for a period of one hour on Monday, Tuesday and Friday (or Saturday) mornings; and

   d)The children should subsequently spend time with him unsupervised for a further period of three months, from 10:00 am until 4:00 pm each Saturday; and

   e)The father should then have telephone communication with the children from 5:00 pm to 6:00 pm on Tuesdays and Thursdays.

2. The mother, by her Response to an Application in a Case filed on 12 March 2014, opposes the orders sought and seeks that the Application should be dismissed with costs.

Background

1. The background facts were set out at paragraphs [4] to [15] of a previous interim decision of this Court made on 19 December 2013.[1] In that decision I made interim Orders providing that:

   a)The interests of the children should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth);

   b)The mother was to have sole parental responsibility for the children;

   c)The father was to have telephone communication with the children between the hours of 5:00 pm and 6:00 pm each Monday, Wednesday and Friday;

   d)The father was to be permitted to send cards and Christmas gifts to the children; and

   e)The father’s Application in a Case was dismissed.

   [1] Janssen & Janssen [2013] FCCA 2281

2. On 22 January 2014 the Local Court at Wollongong convicted the father of assault on the mother and issued an Apprehended Domestic Violence Order against him, naming the mother and the children as the protected persons. The Order is in force for a period of 12 months. The father was placed on a bond.

3. On 29 January 2014, Dr C was appointed as Court Expert for the purpose of preparing an expert report. The Report was released to the parties on 3 July 2014.

4. On 3 February 2014 the father lodged an appeal against the decision of the Local Court.

Evidence and Submissions

1. The father relied on the following documents:

   a)his Application in a Case;

   b)his affidavit of 4 April 2014;

   c)the affidavit of his mother of 4 April 2014;

   d)the Family Consultant Memorandum to Court of 2 December 2013;

   e)material produced on various subpoenas.

2. The mother relied on the following documents:

   a)her affidavit of 12 March 2014;

   b)her affidavit of 29 November 2013;

   c)the affidavit of her mother, Ms M, of 25 February 2014;

   d)the Notice of Abuse filed on 3 October 2014; and

   e)the affidavit of Dr S, a psychologist, filed on 3 April 2014.

3. Ms Mowbray, solicitor, on behalf of the father, submitted that the mother’s evidence is inconsistent and that she had not been reluctant to leave the children in the care of their father previously. 

4. Addressing the matters set out in s.60CC of the Family Law Act 1975, Ms Mowbray submitted that there is a benefit to the children in having a meaningful relationship with their father, as they have had a close relationship with him in the past. He had cared for them jointly with the mother. The children’s recent “acting out” behaviour is due to their being separated from their father. He has attempted to make his telephone contact with the children as meaningful as possible.

5. It was submitted that there is no unacceptable risk of harm to the children whilst in the care of the father but there is a risk that the mother will alienate the children from him. They are young and further separation from their father may be detrimental to their relationship with him and cause them psychological harm. The mother is not promoting the children’s relationship with their father.

6. It was further submitted that there is no risk of the children witnessing family violence, as the mother claims, because the parties have separated and there is an Apprehended Domestic Violence Order in force.

7. The children are too young to express a view.

8. It was submitted that the children have had a strong bond with their father and they also have a strong relationship with their paternal grandparents. The father has always been involved in the children’s lives but is no longer able to do so, as the mother has relocated with the children to Sydney.

9. The children have already had a dramatic change in circumstances as they have relocated away from their former home in the (omitted) area to Sydney. The father believes that the separation between the children and himself as a result of the earlier interim orders has caused them to act out and he wishes to return some normality to their lives.

10. Ms Mowbray submitted that the father was willing to pay for the expense of a supervised contact service to enable him to spend time with the children. He proposes that this should take place near to the mother’s current residence to reduce the impact on the children.

11. Mr Levy of Counsel, for the mother, submitted that the Court should not entertain or encourage serial interim parenting applications nor should it adopt a piecemeal approach to the making of interim parenting orders.

12. The mother did not concede that there is a benefit to the children in having a meaningful relationship with their father, given his physically and verbally abusive and violent behaviour over a long period of time. It is the mother’s view that there is an unacceptable risk to the children in the care of their father, as they have been repeatedly abused by him and the two boys have been assaulted by him. Further, there is a significant risk of the mother’s capacity to parent the children being compromised by an order allowing the father to spend time with the children.

13. The Independent Children’s Lawyer, Ms Volk, submitted that the father should be at liberty to send gifts to the children and communicate with them by telephone. She further submitted that the father should spend time with the children, under supervision by (omitted), for one hour each Saturday for a period of two months and then for two hours each alternate Saturday until the final hearing.

14. The Independent Children’s Lawyer did not support the father’s proposal to move to unsupervised time with the children prior to the final hearing. She referred to the Report of Dr C and submitted that, on an interim basis, the Court cannot determine the risk to the children and must take a conservative approach. Noting the significant allegations of family violence made by the mother and her allegations of threats of harm by the father, there is cause for considerable concern. However, supervision of any time that the children would spend with the father would present protection from physical harm, abuse, neglect or family violence.

15. It was further submitted that the main consideration for the Court is the impact on the children’s emotional wellbeing, and that of their mother, if the children are to spend any time with their father.

The parties’ proposals

1. The mother’s proposal is that there should be no change to the current arrangements, which provide for the father’s contact with the children to be purely by telephone or through the sending of gifts or cards. There is no provision for the father to spend any face to face time with the children under the current Orders.

2. The father’s proposal, by comparison, is that face to face time with the children should commence, initially under supervision, but moving to unsupervised time after three months.

3. The Independent Children’s Lawyer does not support any unsupervised time between the father and the children and proposes that there should be a very limited amount of face to face time, under supervision.

Agreed or uncontested relevant facts

1. This is a matter where the parties are very much at odds and there is little by way of agreement between them. The issue of family violence by the father is an issue where the parties’ views are diametrically opposed.

The relevant law in regard to parenting applications

1. When the Court is considering making parenting orders, it must have regard to the matters contained in Part VII of the Family Law Act. In particular, the court must consider the provisions of sections 60B, 60CA, 60CC, 61DA and 65DAA of the Act.

2. All of those matters have been considered, insofar as they are relevant.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court of the Family Court in Goode & Goode[2] requires the Court at first instance to consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

   (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).[3]

   [2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [3] (2006) 36 Fam LR 422 at 445 [82]

2. In my view, the real issue is that contained in s.60CC(2)(b), the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This consideration must be given greater weight than the other primary consideration in s.60CC(2), the benefit to the children of having a meaningful relationship with both of their parents.

3. The Court is not in a position to make definitive findings of fact about the contested allegations of family violence and abuse, due to the nature of the procedure involved in an interim hearing. What is significant, however, is that the Local Court of New South Wales at Wollongong, after a defended hearing, found the father guilty of an assault and placed him on a bond. The Court also imposed an Apprehended Domestic Violence Order on the father, naming the mother and the children as the protected persons.

4. Clearly, the Court must take a conservative approach at this time. It would be inappropriate to make any order, in my view, permitting unsupervised time between the father and the children, in the light of the allegations of family violence, at least until the matter can be resolved at a final hearing.

5. The Independent Children’s Lawyer has made what appears to me to be a conservative proposal, proving for a period of, essentially, one hour per week between the father and the children, under supervision. I consider this to be in the children’s best interests, meeting the need to protect them from the risk of harm due to abuse or family violence. The fact that there is a family violence order in force is also a significant factor, in my view.

6. It should not be thought that the Court is bound to follow one or another of the proposals put to it by a party or the ICL. The obligation of the Court is clearly spelled out by s.60CA of the Family Law Act, to regard the best interests of the child as the paramount consideration. It so happens in this case, however, that I consider the rather conservative proposal put forward by the Independent Children’s Lawyer as meeting the best interests of the children until the matter can be resolved at a final hearing.

Equal shared parental responsibility and section 61DA of the Act

1. Due to the issue of family violence, the presumption of equal shared parental responsibility contained in s.61DA(1) of the Act does not apply. I previously ordered that the mother should have sole parental responsibility for the children and I propose to continue that Order. The question of parental responsibility will be considered afresh at the final hearing.

2. The provisions of s. 65DAA of the Act do not apply.

Orders that are in the children’s best interests

1. In my view, it is in the best interests of the children for the mother to have sole parental responsibility for them and the father’s time with them to be restricted to limited time under supervision. Telephone contact and the giving of gifts and the sending of cards where appropriate may continue.

2. For the children to have no face to face time with their father until the final hearing, based on untested evidence, would be unduly draconian and, in my view, unlikely to be in their best interests.              

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 7 August 2015