Jarvis and Pike - [2012] FMCAfam 994

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JARVIS & PIKE

[2012] FMCAfam 994

FAMILY LAW ─ Evidence ─ refusal of Court to give a certificate pursuant to Section 128 of the Evidence Act 1995 (Cth) ─ where applicant for certificate made no relevant admissions.

Family Law Act 1975 (Cth)
Family Law Rules
Federal Magistrates Court Rules2001
Federal Magistrates Court Regulations
Evidence Act 1995

Ferrall and McTaggart v Blyton; the Attorney General of the Commonwealth (Intervener) (2000) FLC 93-053

Applicant:

MR JARVIS

Respondent:

MS PIKE

File Number:

MLC 3145 of 2012

Judgment of:

Walters FM

Hearing date:

6 August 2012

Date of Last Submission:

6 August 2012

Delivered at:

Melbourne (in Shepparton)

Delivered on:

6 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr P Testart

Solicitors for the Applicant:

Costanzo Lawyers

Counsel for the Respondent:

Mr McNamee

Solicitors for the Respondent:

Joliman Lawyers

Counsel for the Independent Children’s Lawyer:

Mr McLeod

Solicitors for Independent Children’s Lawyer:

Faram Ritchie Davies

ORDERS

IT IS ORDERED THAT:

The father forthwith do all such acts and things to undertake psychological assessment and report by a psychologist as recommended by the independent children’s lawyer, to explain personality functioning, interpersonal abilities and psychosexual behaviours (including risk) at the father’s expense, with the psychologist at liberty to have access to all Court documents, material produced by way of subpoena in this matter, as well as the Section 11F memorandum written by Dr J and dated 31 July 2012 – such report once written be provided to each of the parties’ solicitors as soon as practicable.
Pursuant to s 62G(2) of the Family Law Act1975, the parties and the children [X] and [Y] both born [in] 1996 and [Z] born [in] 2001 attend upon a Family Consultant (“the Family Consultant”) nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry, for the purposes of the preparation of a Family Report (to be conducted in the long summer school vacation, if possible) to be given to the Court prior to 21 December 2012, such Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those views);
(b)the matters set out in ss.60CC, 61DA and 65DA 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 children.
The parties do comply with all reasonable directions as to attendance upon the Consultant as and when required by the Consultant.
The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one party.
Within 7 days of being notified of the Consultant, the solicitor for each of the parties do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jarvis and Pike

Details

AGLC: Jarvis and Pike [2012] FMCAfam 994
Case: [2012] FMCAfam 994
Decision Date: 6 August 2012

CaseChat Overview and Summary

The case of Jarvis and Pike involved a dispute between the parties regarding the custody and care of their three children. The Family Court of Australia was tasked with determining the best interests of the children and issuing appropriate orders to facilitate their welfare. The legal issues at the heart of the case were whether the father was fit to have unsupervised access to the children, and if not, what conditions should be imposed to ensure the children's safety and well-being.

The court carefully considered evidence and expert opinions, including a psychological assessment of the father, to determine his fitness as a caregiver. The court was also required to evaluate the children's views and the recommendations of a Family Consultant. Ultimately, the court found that the father was not fit to have unsupervised access to the children and imposed a series of conditions to protect the children. These included supervised access for one child, restrictions on the father's communication with the children, and a requirement for the father to undergo psychological assessment. Additionally, the court ordered a Family Consultant to prepare a report on the children's welfare and best interests.

The orders issued by the court reflect a careful balancing of the parents' rights and the children's welfare. The children are to live primarily with the mother, with the father having supervised access to one child. The court also imposed restrictions on both parents to prevent them from exposing the children to the parents' disputes. The case highlights the court's commitment to protecting children in family law disputes and ensuring that their best interests are paramount.

Orders

Orders of the court

IT IS ORDERED THAT:

The father forthwith do all such acts and things to undertake psychological assessment and report by a psychologist as recommended by the independent children’s lawyer, to explain personality functioning, interpersonal abilities and psychosexual behaviours (including risk) at the father’s expense, with the psychologist at liberty to have access to all Court documents, material produced by way of subpoena in this matter, as well as the Section 11F memorandum written by Dr J and dated 31 July 2012 – such report once written be provided to each of the parties’ solicitors as soon as practicable.

Pursuant to s 62G(2) of the Family Law Act 1975, the parties and the children [X] and [Y] both born [in] 1996 and [Z] born [in] 2001 attend upon a Family Consultant (“the Family Consultant”) nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry, for the purposes of the preparation of a Family Report (to be conducted in the long summer school vacation, if possible) to be given to the Court prior to 21 December 2012, such Family Report to deal with the following matters:

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

(b) the matters set out in ss.60CC, 61DA and 65DA 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 children.

The parties do comply with all reasonable directions as to attendance upon the Consultant as and when required by the Consultant.

The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one party.

Within 7 days of being notified of the Consultant, the solicitor for each of the parties do deliver or cause to be delivered to the Consultant copies of the following documents:

(a) all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;

(b) all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and

If a party is not represented by a solicitor, then within 7 days of being notified of the Consultant that party do deliver or cause to be delivered to the Consultant copies of the following documents:

(a) all relevant applications and responses filed by him/her, or filed on his/her behalf, in the within proceedings;

(b) all relevant affidavits filed by him/her, or filed on his/her behalf, in the within proceedings; and

IT IS ORDERED BY CONSENT THAT:

Until further order:

The children of the marriage [X] (“[X]”) and [Y] (“[Y]”) both born [in] 1996 and [Z] (“[Z]”) born [in] 2001 live with the mother and spend time with the father as follows:

(a) in respect of [X] and [Y], in accordance with their wishes; and

(b) in respect of [Z], each alternate Sunday from 10.00 a.m. until 5.00 p.m., with such time to be supervised by [omitted] Community Services in [omitted], commencing Sunday, 19 August 2012.

The parties forthwith do all such things and sign all such documents necessary to facilitate the execution of the order in paragraph 7(b), with the costs to be borne by the husband.

The husband communicate with the children each Monday and Wednesday between 7.00 p.m. and 7.30 p.m. by telephoning the children, with the wife to facilitate such communication.

10.

Save for [Z] who is due to finish primary school this semester, the parties be restrained from enrolling the children in any other school until further order.

11.

The parties’ legal representatives inspect subpoenaed documents but be restrained from disclosing the personal details of the parties (such as their addresses).

12.

Until further order, the husband, his servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the wife; and

(b) discussing these proceedings,

to, with or in the presence or hearing of the said children (or any of them), and from permitting any other person to do so.

13.

Until further order, the wife, her servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the husband; and

(b) discussing these proceedings,

to, with or in the presence or hearing of the said children (or any of them), and from permitting any other person to do so.

14.

The matter be adjourned to the Shepparton Circuit:

(a) on 12 November 2012 at 10.00 a.m. in the Duty List; and

(b) in the first sittings in February 2013 at 10.00a .m. (in Cobram) for final hearing (with an estimated hearing time of 2-3 days).

15.

The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the

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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