Jarmin and Elstone

[2017] FCCA 3191

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARMIN & ELSTONE [2017] FCCA 3191

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:
Rice & Asplund (1979) FLC 90-725

Applicant: MS JARMIN

Respondent: MR ELSTONE

File Number: ADC 3605 of 2015

Judgment of: Judge Young

Hearing date: 23 November 2017

Date of Last Submission: 23 November 2017

Delivered at: Adelaide

Delivered on: 23 November 2017

REPRESENTATION

Solicitors for the Applicant: Mr Wabnitz of Daniel Johns

Solicitors for the Respondent: Ms Burckhardt of Adelaide Lawyers

Solicitors for the Independent Children’s Lawyer: Mr Bowler of Hume Taylor & Co

ORDERS

1. That the time the child X born (omitted) 2011 spends with the father be suspended.

2. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship X born (omitted) 2011 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 28 February 2018.

3. That the family report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

4. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

5. That the parties are to telephone the Case Coordinator Children Dispute Services on (omitted) fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

6. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

7. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

   NOTING:

   A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

   B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

   C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 7 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

8. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

9. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

10. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena  and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before 1 February 2018 as follows:

    (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

    (b)annexing such material as is considered relevant, with

    (c)the affidavit to be paginated, indexed and exhibits tagged.

11. That the matter is adjourned to 22 March 2018 at 9.30am for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3605 of 2015

MS JARMIN

Applicant

And

MR ELSTONE

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning X, who is six years old.  On 14 February this year consent orders were made between his mother and father that provided, in summary, for X to spend three nights a fortnight with his father and also school holiday time. 

3. On 11 August the mother filed an initiating application seeking to suspend the father’s time. Her supporting affidavit alleged that, on 7 April 2017, X, who is apparently seeing a counsellor, a Dr H, alleged to Dr H that Ms C, who is the father’s present partner, “licked his butt”.  She, the mother, also deposed that on 10 April, he, X, alleged to the mother that Ms C takes his pants off – that is, X’s pants off.  And on 14 April, according to the mother, the maternal grandmother alleged that X said to her that Ms C “licked his willy” and that allegation was repeated in an affidavit from the maternal grandmother. 

4. On 27 June there was a forensic interview conducted by the South Australian police with X and the police apparently decided that they were not going to take the matter any further.  I was not told about that in any great detail but that appears to be the agreed position of the parties. 

5. The father filed an affidavit on 25 October where he alleged that X had told him that the mother “touches his willy” and this had apparently occurred in March 2017.  The father’s failure to pursue that allegation in March was not explained in his affidavit.  I might also say that on that date, 25 October, Ms C filed an affidavit with a flat denial of any wrongdoings. 

6. The matter came before me on 30 October and given the sexual abuse allegations had no demonstrated substance to them, I was inclined to dismiss the mother’s initiating application on a summary basis for the reason that the test in Rice & Asplund, that is, the existence of some significant new material that would, in the best interest of the child, justify a reconsideration of the earlier orders, was not satisfied.  I did not dismiss it on that day because, for a quite technical reason, I had not seen the subpoena material from the Department of Child Protection and/or the police relating to the decision not to pursue any investigation of the sexual assault allegations levelled against Ms C. 

7. I adjourned the matter till today to (a) to enable the 69ZW order I made to be satisfied or complied with and (b) to permit the parties to inspect that material.  I also made an order for resumption of X’s time with the father. I am told from the bar table that X spent a weekend with his father from 10 November, Friday 10 November to Monday 13 November and on his return from time with the father there was an incident at his school. 

8. Apparently, X’s behaviour became very dysregulated and he was said to have barricaded himself in a classroom.  I might say, from the description of the principal’s letter, the barricade did not seem to have been very effective and the teacher or the principal had no trouble gaining entry into the classroom.  There was also an allegation that X was “stabbing and poking” the teacher with a pencil.  Again precisely what happened is unclear. He is also said to have been throwing pencils at the teacher. 

9. Apparently, the next day or two days later, it is unclear, X also attempted to punch or did punch another child and, as a result, he was suspended from school.  The reasons for his behaviour are most unclear.  There is mention that he has a diagnosis of oppositional defiance disorder and his behaviour would appear to be consistent with that diagnosis. 

10. However, the factor that is decisive in the orders I am about to make is a report from Dr H, who describes herself as a “child and family consultant and therapist”.  I have looked at her curriculum vitae and I see that her tertiary qualifications are a Bachelor of Social Work (Honours), a Graduate Certificate of Mediation, a Masters of Conflict Management and PhD in a subject that is not stated.  She apparently has a history with Child Protection Services at the Women and Children’s Hospital and various other allied health organisations.  She is not a psychologist, as far as I can see, though it is clear to me that her opinions take on the colour of psychological opinion. 

11. Notwithstanding my real reservations about her expertise, she has offered an opinion that X’s dysregulated behaviour on 13 October was the result of X’s anxiety and fear, essentially, on being returned to time with his father.  That is in her report dated 21 November 2017.  In other words, merely two days ago.  It is of note, also, that the letter from the mother’s solicitors asking for a report, dated 17 November, some four days after the reported episode, specifically asks whether there was any correlation between the resumption of the father’s time with the child and the behaviours that X displayed. 

12. As I say, I have serious doubts about her expertise or qualification to answer that question in the way she has but she has given an answer, which is clearly an affirmative answer and she says that, as I have said, the child is struggling with the resumption of time with the father.  She saw X urgently for two therapy sessions on 15 and 17 November, that is, two days and four days after the incident on 13 November.  The notes of those consultations are not in evidence.  No doubt the father’s solicitors will give her a subpoena and they can be examined. 

13. In summary, she says, that the child has not coped and she expresses the fear that the child’s threats of suicide – apparently threats that have been made before – may be realised.  She said that the child was currently as risk of self-harm and she says that he needs to be protected from the triggers that activate and escalate these problems.  It is clear from her report that the trigger she considers to be operative is the child’s time with the father. 

14. As I say, I am far from accepting that opinion and I am far from satisfied she is qualified to express it.  Nevertheless, that is the only material I have in front of me and, I think in the circumstances, the principle that a child should not be exposed to unacceptable risk of harm requires me to suspend the time the child is spending with the father. 

15. Given my very serious doubts about some of the material that has been put forward so far it is a conclusion I reach somewhat reluctantly but, as I have said, I consider the criteria in Rice & Asplund have been satisfied and it follows then that we are going to embark on a further hearing and I think the first thing that ought to be done is there ought to be the preparation of a family report ideally by someone with clinical psychology qualifications. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 15 December 2017