Jarvis and Beaumont

[2019] FamCA 1019

FAMILY COURT OF AUSTRALIA

JARVIS & BEAUMONT [2019] FamCA 1019

FAMILY LAW – CHILDREN – where the Court has previously made final parenting orders which provides for the child to spend supervised time with the father on three occasions a year – where the Court now makes further final orders by consent which provides for the child to spend supervised time with the father if the child expresses a desire to do so.

Family Law Act 1975 (Cth) ss. 65L

Jarvis & Beaumont [2017] FamCA 20

APPLICANT: Ms Jarvis

RESPONDENT: Mr Beaumont

FILE NUMBER: LEC 246 of 2013

DATE DELIVERED: 3 December 2019

PLACE DELIVERED: Lismore

PLACE HEARD: Lismore

JUDGMENT OF: Baumann J

HEARING DATE: 3 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crane Paskins Law

THE RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. That all existing parenting Orders and parenting agreements are discharged.

2. That the mother shall have sole parental responsibility for the child, A born … 2009 (“the child”), including for all decisions in relation to the major long-term issues (as that term is defined in Section 4 of the Family Law Act 1975 (Cth) (“the Act”)) in the child’s life and, for the sake of clarity, this sole parental responsibility shall entitle the mother to obtain a passport for the child without the requirement for the written consent of the father.

3. That the child shall live with the mother.

4. That the mother and father shall keep each other informed of their respective residential and postal addresses and each shall advise the other of any change thereto as soon as practicable after such change occurs.

5. That the mother shall inform the father in writing, at least twice each year, of the child’s educational and social progress and of the details of any cultural, sporting or other extra-curricular activities the child has been engaged in since she last so informed him.

6. That the mother shall inform the father in writing of any significant injury or illness the child suffers as soon as practicable after the event, including with details of the treatment she received, her recovery and the medical prognosis provided by the treating medical professionals.

7. That upon the continued Undertaking of Ms J (which was filed on 17 February 2017):

   (a)       Until the child turns twelve (12):

   (i)If the child expresses a desire to the mother, or if the mother becomes aware that she has expressed a desire to someone that she wishes to spend time with her father (and his partner Ms J), the mother shall contact Ms B, Family Consultant, of the Lismore Registry to make arrangements to enable time to occur, with such time to take place in the playroom of the Child Dispute Service at Lismore, and the Family Consultant be able to change the duration, or venue of the visits if this meets the child’s needs; and

   (ii)Pursuant to s 65L of the Act, Ms B facilitate such visits as might be arranged between the child and the father (and Ms J), and limited to no more than three (3) visits per year.

   (b)       After the child turns twelve (12) (in February 2021):

   (i)If the child expresses a desire to see her father, the mother shall contact Ms J to arrange a visit between the child and the father, and the child shall spend time with the father, supervised by Ms J, for such times as agreed between the parents.  Such time may take place at the home of  the father and Ms J or some other location of their choice;

   (ii)That to facilitate the child’s time with the father as provided for Order 7(b)(i) hereof, the mother shall deliver the child to the father and/or Ms J at an agreed public place at the commencement of the supervised time and the father and/or Ms J shall return the child to the mother at an agreed public place at the conclusion of the supervised time; and

   (iii)By telephone, at such times as the child elects to do so, and for this purpose the mother shall assist the child to telephone the father to facilitate the call.

   (c)       For the father’s wedding:

   (i)The father is to notify the mother of the date for his wedding by email and the mother is to arrange for the child to attend one (1) dress rehearsal and to attend for the wedding ceremony (not to include the reception), with a supervisor agreed to by the mother (but not to be Ms D, or the paternal grandfather).  If a supervisor cannot be agreed and a paid supervisor is required, then the father is to pay the costs of the supervisor.

8. That the father shall be entitled to send cards, letters, gifts and photographs to the child at his election at other times than when she is spending time with him, with the mother being entitled to determine if they are suitable to pass on to the child.  If the mother determines that any such item is not suitable to pass on to the child she shall return it to the father with an explanation in writing as to why she did not consider it suitable to be passed on to the child.  The child shall be able to respond to the father’s letters, or write to the father if she elects to do so and the mother shall facilitate this occurring.

9. That if Ms J is not willing or able to supervise the time the child spends with the father pursuant to this parenting Order, the child shall only spend time with the father as provided for in Order (7) hereof if the mother and the father agree in writing on the identity of another supervisor who is willing and able to supervise that time as provided and if that is a commercial provider of supervision or a centre that charges a fee for its service, the father shall pay for any such cost.

10. That the father shall not attempt to communicate with or see the child other than in accordance with this parenting Order.

11. That the mother shall be entitled to take the child to receive such counselling as she may consider appropriate from time to time but she shall otherwise not discuss any aspect of these proceedings, including their outcome, with the child.

12. That the mother shall take the child to see Ms B, Family Consultant, at the Lismore Registry of the Court at a time to be arranged with Ms B if practicable and Ms B shall:

    (a)inform the child of the outcome of these proceedings and for this purpose a copy of this parenting Order shall be made available to Ms B;

    (b)provide the child with any letter written by the father to the child in accordance with paragraph 87 of the family report dated 4 December 2018; and

    (c)provide the child with information about how she may request visits with the father (in accordance with these Orders) if she wishes to do so.

13. That this Order be the authority to allow the father to obtain (at his own expense) copies of school reports, and school photographs from the child’s school.

14. That pursuant to s 121 of the Act, the Independent Children’s Lawyer is granted leave and shall, within fourteen (14) days of the date of these Orders, provide a copy of these Orders to the child’s school and Ms G.

THE COURT ORDERS ON A FINAL BASIS:

1. That the Independent Children's Lawyer be discharged.

IT IS NOTED:

A.That for the purposes of Order 12(c) hereof, the child can be told that she can indicate her desire to see her father by making a request to:

(i)her mother;

(ii)her father (in writing, or when she is older, by telephone or email);

(iii)Ms J;

(iv)Ms G; or

(v)her school counsellor.

B.That the Court expressed today serious misgiving of the recommendation contained at paragraph 87 of the family report dated 4 December 2018, but both parents indicated to the Court today that they supported the recommendation and its intent.

C.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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 Jarvis & Beaumont 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 LISMORE

FILE NUMBER: LEC 246 of 2013

Ms Jarvis

Applicant

And

Mr Beaumont

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. These proceedings relate to arrangements for the child A, born in 2009.  The parties are here today despite Orders made by Forrest J, for Reasons which I have read, delivered on 20 January 2017 (see Jarvis & Beaumont [2017] FamCA 20). His Honour found, as set out in those Reasons, that the father more likely than not had sexually abused the child A in or around 2012/2013 and, on that basis, made Orders that the child live with the mother; that the mother have sole parental responsibility and various other facilitative orders. In particular, Order 7 provided that the father’s time was conditional upon the filing in the Court of an undertaking signed by Ms J (who is the father’s partner), which undertaking was specified in the reasons:

   “the child shall spend time with the father, supervised by Ms J, for up to five (5) hours at a time on one Sunday each four calendar months, such time to be from 10:00 am to 3:00 pm on the last Sundays in February, June and October, unless otherwise agreed between the mother and the father in writing.”

2. As can be identified, the parties were able by his Honour’s Orders to reach agreement between themselves as to the arrangements for time.  The evidence appears clear that after the Orders were made by his Honour, visits occurred in February 2017 and June 2017.  There then seemed to be proceedings in a Local Court where a Domestic Violence Order was made against the father on … March 2018, such Order being in place now for three years to 1 March 2021.

3. At about that time the mother brought an Application in the Federal Circuit Court of Australia seeking to vary the Orders of Forrest J, essentially to suspend any further visits between the child and the father.  After the matter had been transferred to the Family Court of Australia by the Order of a Judge of the Federal Circuit Court of Australia on 16 April 2018, ultimately, Senior Registrar Spink made an Order on 21 June 2018 on an interim basis that further visits be suspended.  The Registrar ordered the preparation of a family report and Family Consultant Ms B, attached to the Lismore registry of the Court, conducted interviews on 13 November 2018 resulting in a family report dated 4 December 2018.

4. The report of Ms B has, it seems, contained recommendations which the parties now essentially adopt in consent orders offered to the Court today.  What is apparent from the report of Ms B is that A, who was acknowledged to have enjoyed time with the father when it was occurring, still had a desire to see the father despite no visits, at the time of the report interviews having occurred, for nearly 18 months.  I heard today when discussing proposed final consent orders between the parties that a visit between the father and A, supervised by Ms B, took place with the mother’s facilitation and consent within the last two weeks.

5. I found for that to have occurred to be a very positive development.  It says to me that although the mother is identified by Ms B as having some significant psychological difficulties in feeling she can facilitate time between the child and the father, that she overcame those difficulties to support the time recently.  If anything, that recent agreed event, not by Court order, gives the Court some comfort that the orders the parties now seek to make on a final basis may have some sustainability.  I say that because, as I explained to the father and the mother through her solicitor, Ms Paskins, today, and with the appearance also of Ms K as agent for Ms Huth, the Independent Children’s Lawyer based in Brisbane, one of the issues which most troubles me about this case is being in a position to make an order that is least likely to lead to further proceedings.  Clearly, this was a matter uppermost in the mind of Forrest J when he pronounced the Orders he did.  He indicated clearly in his Reasons why, having contemplated no time orders, he ordered that time occur albeit only on three occasions a year.  Of course, at the time the orders were made in January 2017, A had not yet reached eight years of age.  She is soon to turn 11.  The orders offered now by the parties are shaped by the considered opinions expressed by Ms B.

6. I felt obliged to observe that Ms B’s invitation to utilise the Family Consultant in a way to facilitate time, whilst possibly within the parameters of Section 65L of the Family Law Act 1975 (“Act”), were, in my view, likely to extend beyond the resources available that the Court could offer this family. I was also mindful that Ms B made a very creative recommendation at paragraph 87 of her report dated 4 December 2018 that:

   “Mr Beaumont draft a letter to A to be sent to the Family Consultant.  It is suggested that, depending on the outcome of these proceedings, the letter states that he may not be able to see A but that he will be there for her if she ever needs.  It is suggested that Mr Beaumont states that he is aware A has at times been scared and had bad dreams and that he wants to reassure her that he is not upset or angry and that he will not ever do anything to harm or upset her or her mother.  It is suggested that the Family Consultant discuss the letter with Mr Beaumont and, if it is considered to be helpful to A, the Family Consultant would discuss with Ms Jarvis how A may receive the letter”.

7. Whilst the foundation for such a letter is identified in Ms B’s family report, it is inconsistent, in my view, with the requirement of Courts to bring matters to a finality– to have an employee of the Family Court of Australia involved in this ongoing therapeutic and/or advisory role other than within s 65L as is mandated by the Act. I have misgivings about how such a letter might be written and conveyed and, as a result, notwithstanding the parents adopt that recommendation at order 12 of the orders I am provided and asked to make, I do so because it does seem to have drawn the support of both the mother and father in this case.

8. It is clear that the mother has an understanding, which I infer has come from A, that the child wishes to continue to spend some time with or connect with her biological father.  The orders being proposed provide for a limited now three visits until the child turns 12 and thereafter if the child expresses a desire to do so, the mother is to contact the father’s partner, Ms J, to arrange a visit between the child and the father that will be supervised by Ms J.

9. Perhaps, however, the most significant and new arrangement that the parties have agreed to is for the anticipated wedding of the father to Ms J, which the father says from the Bar Table will take place within two years.  The order agreed to by the mother supports the child attending the wedding.  I infer that this is because the child has made it clear to her mother that she would like to do so and that the mother sees it as an important life event in the life of the father which the child should in her best interests be entitled to attend provided she is safe.

10. In that regard, proposed order 7(vi) provides that the child’s attendance at a dress rehearsal and to attend the wedding ceremony (but not the reception) is to be supervised by a person agreed to by the mother and if it needs to be a commercial supervisor, then the costs of a commercial supervisor are to be met by the father.  Again, it seems to me that the parties reaching that agreement reflects positively on the difficulties that have in the past prevented the child from either spending time with the father at all or even for supervised time to be maintained.

11. As a result, although I have some misgivings about how these parties may in such a low trust and non-communicative environment as parents continue to interpret the Orders I make today, I am prepared with the consent of all the parties, including the Independent Children’s Lawyer, to make the Orders.  In so doing, I of course exercise a discretion which is shaped by the child’s best interests being the paramount consideration.  So I pronounce those Orders and otherwise these proceedings before the Court are again at an end.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 3 December 2019.

Associate:

Date:  3 February 2020