FAMILY COURT OF AUSTRALIA
| JANSSEN & JANSSEN (NO. 2) | [2016] FamCA 796 |
| FAMILY LAW – CHILDREN – Where there are allegations of physical, verbal and emotional abuse perpetrated by the father against the mother and the parties’ three children – Where audio recordings made by the mother prior to and after separation are admitted into evidence – Where the Court finds the children have been exposed to family violence – Presumption of equal shared parental responsibility not applied – Whether the children will be exposed to an unacceptable risk of physical and/or psychological harm if they were to spend time with the father – Whether the children spending time with the father would detrimentally impact upon the mother’s psychological health such that it would pose an unacceptable risk of harm to the children – Where the Court finds that the children would be exposed to an unacceptable risk of harm if they were to spend time with the father – Whether any risks identified can be mitigated – Orders made for the mother to have sole parental responsibility – Orders made for the children to spend supervised time with the father on two occasions per year – Orders made that the father not communicate with the children by any means. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 69ZT, 69ZV Evidence Act 1995 (Cth) ss 79, 140 Family Law Rules 2004 (Cth) rr 15.63, 15.64 |
Adamson & Adamson (2014) FLC 93-622
Blinko & Blinko [2015] FamCAFC 146
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Metwally v University of Wollongong (1985) 60 ALR 68
McGregor & McGregor (2012) FLC 93-507
Neat Holdings Pty v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Nikolakis & Nikolakis [2010] FamCAFC 52
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549
| W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Ms Janssen |
| RESPONDENT: | Mr Janssen |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Volk |
| FILE NUMBER: | SYC | 5802 | of | 2013 |
| DATE DELIVERED: | 21 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 1 - 3 February; 16 - 20 May; 15 June; 23 - 24 June 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levy |
| SOLICITOR FOR THE APPLICANT: | Reid Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Sansom SC |
| SOLICITOR FOR THE RESPONDENT: | Verekers Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Anderson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Helen Volk Lawyers |
Orders
All previous parenting orders are discharged.
The mother have sole parental responsibility for the children of the marriage, namely X born … 2008, Y born … 2009, Z born … 2011 (“the children”).
The children live with the mother.
The children are to spend supervised time with the father, in accordance with the provisions of Order (5) below, on two occasions in each year, for one…
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- AGLC
- Janssen & Janssen (No.2) [2016] FamCA 796
- Case
- [2016] FamCA 796
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting orders, specifically addressing the extent of the father's contact with the children, the conditions under which such contact should occur, and the protective measures necessary for the mother and children. This included deciding on the level of parental responsibility each parent should hold, the living arrangements for the children, and whether any communication or contact between the father and children, or the father and mother, should be permitted.
McClelland J ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for the children, with the children to live with her. The father was permitted supervised contact with the children on two occasions annually, for one hour each, on specific dates, at his expense and at a contact centre. This contact was subject to strict conditions, including prohibitions against the father denigrating the mother, questioning the children about their mother's personal life, or discussing court proceedings with them. The father was also restrained from providing gifts or food to the children during supervised time, and from approaching or initiating direct contact with the mother or children except as provided. Furthermore, the father was restrained from coming within 500 metres of the mother's home or workplace, or the children's school or activities, and from harassing or intimidating the mother or children. These protective orders were made pursuant to section 68B of the *Family Law Act 1975* (Cth), with a power of arrest attaching under section 68C. The court also ordered that the mother could apply for or renew passports for the children without the father's consent, and that the father was restrained from placing the children's names on the Family Law Watch List without a court order.
Orders
Orders of the court
1.
All previous parenting orders are discharged.
2.
The mother have sole parental responsibility for the children of the marriage, namely X born … 2008, Y born … 2009, Z born … 2011 (“the children”).
3.
The children live with the mother.
4.
The children are to spend supervised time with the father, in accordance with the provisions of Order (5) below, on two occasions in each year, for one hour duration, and, in lieu of agreement, on 5 July and 20 December each year, commencing on 20 December 2016.
5.
The time the children are to spend with the father, pursuant to Order (4), is to:
(a) be supervised by such professional supervising agency as is mutually agreed, and in lieu of agreement, CatholicCare Supervised Contact and Changeover Centre … (“the Contact Supervising Agency”);
(b) be at the expense of the father;
(c) occur in a contact centre;
(d) be terminated in the event that the father engages in any of the following conduct:
(i) denigrating the mother, or any member of her household or family;
(ii) questioning the children about their mother’s personal life or the personal life of members of the mother’s household or family;
(iii) requesting the children to ask the mother or any other person including the mother’s family, the teacher and priest about spending more time with him;
(iv) requesting the children to ask the mother about communicating with him by telephone;
(v) enquiring with the children where they attend school or live, with whom they live, or where they attend after school activities;
(vi) discussing these proceedings or any other court proceedings between the parties, with the children.
6.
Except as otherwise provided for in these Orders, the father is to spend no time with the children or communicate with the children by any means.
7.
For the purpose of facilitating the time the children spend with the father pursuant to these Orders, each party is to do all things necessary and sign all necessary documents to apply to use the services of the Contact Supervising Agency.
8.
For the purpose of facilitating the time the children spend with the father pursuant to these Orders, each party do all things necessary and sign all necessary documents to apply to use the services of the Contact Supervising Agency.
9.
The father be restrained from:
(a) Providing the children with food during the time the children spend with the father pursuant to Order (4);
(b) Giving the children anything during the supervised time including but not limited to toys gifts or presents;
(c) Sending the children gifts or presents;
(d) Approaching or initiating any direct contact with the children except as provided for in these Orders;
(e) Approaching or initiating any direct contact with the mother except through her legal representative;
(f) Coming within 500 metres of any place at which the mother may live or work;
(g) Coming within 500 metres of any place at which the children attend school or any co-curricular or extracurricular activity;
(h) Assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the mother or children, or any member of the mother’s household or family; and
(i) Publishing any matter on social media which would or could reasonably be inferred to relate to these proceedings and/or the mother or children, or any member of the mother’s household or family.
10.
Order (9) above is an order for the personal protection of the mother, and any member of her household or family, pursuant to section 68B of the Family Law Act 1975 (Cth), to which a power of arrest without warrant attaches, pursuant to section 68C of the Family Law Act 1975 (Cth).
11.
Either party is entitled to request the supervisor supervising the time the children spend with the father to provide a written report to the mother and the father following the conclusion of that time, at the father’s cost.
12.
Pursuant to section 11 of the Australian Passports Act 2005 (Cth), upon the mother’s application to apply for or renew Passports for the children namely X born … 2008, Y born … 2009, Z born … 2011, such passports shall be issued to the mother notwithstanding that the father does not consent.
13.
The father is restrained from placing the name of the child or children on the Family Law Watch List without an Order of the Court and it is requested that the Australian Federal Police give effect to this Order by not placing the children’s names on the Family Law Watch List without an Order of the Court.
14.
The father is to keep the mother’s solicitor advised of his email and residential address and the location of his employer.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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