Jasapas and Johns - [2020] FamCA 214

FAMILY COURT OF AUSTRALIA

JASAPAS & JOHNS

[2020] FamCA 214

FAMILY LAW – CHILDREN – Best Interests – Where a final parenting order was made in 2016 following a contested trial which conferred equal shared parental responsibility for the two children on the parents, and provided for them to live with the mother and spend increasing unsupervised time with the father, such that they spend five nights each fortnight and half school holidays with him – Where the mother, at the first trial, alleged that the father presented an unacceptable risk of sexual abuse and physical harm to the children, which was not accepted by the trial judge – Where the mother now makes allegations that the father has continued to sexually abuse his son, is now sexually abusing his daughter and that the paternal grandparents are complicit in the abuse – Where the mother seeks that she have sole parental responsibility and that the children spend no time with the father – Where the father seeks that the children be moved to live in his full-time care, for him to have sole parental responsibility, that the mother spend no time with the children for a period of six months and thereafter supervised time only for a further six months before progressing to unsupervised time – Where the Court is satisfied that the father does not present an unacceptable risk of sexual and physical harm to the children – Where the Court is satisfied that the mother presents an unacceptable risk of emotional harm to the children due to her inability to let go of her beliefs about the father and objectively evaluate and assess matters of complaint against him –Where the impact on the children of a change of residence is outweighed by the risk of emotional harm presented by the children continuing to live in the mother’s household – Where it is in the best interests of the children to move to live with their father, spend no time with the mother for six months and for their time with the mother to be supervised until the mother and father agree to move to unsupervised time - Where the father will have sole parental responsibility, with an obligation to consult the mother, for decisions about major long term issues, save for the children’s names and changes to living arrangements that make it significantly more difficult for them to spend time with the mother.

Child Protection Act 1999 (Qld)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Briginshawv Briginshaw (1938) 60 CLR 336
Harridge & Harridge [2010] FamCA 445
In the Marriage ofN and S (1996) FLC 92-655
M v M (1988) 166 CLR 69
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

Mahendra, B, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569

APPLICANT:

Ms Jasapas

RESPONDENT:

Mr Johns

INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox

FILE NUMBER:

BRC

5081

2014

DATE DELIVERED:

24 February 2020

PLACE DELIVERED:

Brisbane

PLACE…

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 Jasapas and Johns

Details

AGLC: Jasapas and Johns [2020] FamCA 214
Case: [2020] FamCA 214
Decision Date: 24 February 2020

CaseChat Overview and Summary

In the case of *Jasapas and Johns*, heard by Forrest J, the dispute concerned parenting orders for two children, B and C. The court was required to determine the living arrangements and parental responsibility for the children, discharging all previous orders and making new provisions for their care and contact with their parents.

The central legal issues before the court were to establish the primary caregiver for the children, to define the extent of each parent's responsibility for long-term welfare, care, and development, and to set out the terms for the children's time with and communication with the mother. The court also had to consider the implications of allegations of sexual abuse within the context of determining the children's best interests, as well as the standard of proof required for such allegations.

Forrest J applied the paramount consideration of the children's best interests, as mandated by section 60CA of the *Family Law Act 1975* (Cth). The court referenced High Court authority, notably *M v M* (1988) 166 CLR 69, which affirmed that the resolution of sexual abuse allegations is subservient to the court's determination of the child's welfare. The court also acknowledged the seriousness of sexual abuse allegations and the devastating effects they can have, noting that findings of abuse must be satisfied to the civil standard of proof, with due regard to the *Briginshaw* test. The orders reflect a significant shift in the children's living arrangements, with the father being granted primary care and sole parental responsibility for most long-term decisions, subject to specific communication and consultation requirements with the mother. The mother's time with the children was initially subject to a moratorium and then to supervised contact, with any unsupervised time to be agreed upon by the parents. The court also imposed restraints on the parents and grandparents regarding communication with the children and the publication of information related to the proceedings.

Orders

Orders of the court

That all previous parenting Orders be discharged.

That the children, B born … 2010 and C born … 2013, (“the children”) shall live with the father.

That the children are to be transferred forthwith from the mother’s care to the father’s care by the father taking the children home with him in his unsupervised care from the supervised time session that is currently taking place at D Town as soon as the father and the supervisor become aware of these Orders being made.

That the Independent Children’s Lawyer shall immediately confirm with the father and the supervisor that the father and the supervisor are aware of these Orders and that the father is immediately taking the children home with him in his unsupervised care and she shall then immediately advise the mother, by whatever means of communication the Independent Children’s Lawyer considers appropriate that the children have gone with the father, pursuant to these Orders, to live with him in his unsupervised care.

That the mother and the maternal grandparents are restrained from attending at the premises of the supervisor or from contacting or attempting to make any contact with the supervisor before the expiration of five calendar months from the date of these Orders.

That the father and the paternal grandparents are restrained from telling the children of the outcome of these proceedings and the effect of these Orders, save that they are going to be staying with the father for a while and that their mother knows about this, and they shall not discuss these matters or any matter pertaining to these proceedings with the children or even with each other within the children’s hearing until the children have been told the outcome of the proceedings and the effect of these Orders via the offices of the Independent Children’s Lawyer as provided for in these Orders.

That the Independent Children’s Lawyer shall arrange with the father to speak with the children or have the family report writer, Ms J, speak with the children, as soon as that can conveniently be arranged, to inform the children of the living and care arrangements now in place pursuant to these Orders.

That save as provided for in paragraph (9) hereof, the father shall have sole parental responsibility for the children’s long term welfare, care and development, provided that before he makes a decision about a “major-long term issue” as that term is defined in section 4 of the Family Law Act 1975:

(a) The father shall advise the mother by email of the decision that he wishes to make and of the reasons why he wants to and for which he intends to make that decision;

(b) The mother shall reply to the father within seven (7) days of receipt of the father’s email, by her own email setting out whether she agrees with the decision or in which she provides an alternate proposal and the reasons for her proposal;

(c) The father shall give due consideration to the mother’s response including any alternate proposal she makes and the reasons she has given for that, but if the father is not persuaded to accept the mother’s alternate proposal and no agreement can be reached, then the father’s sole parental responsibility shall entitle him to make the final decision.

That save as otherwise provided for in these Orders, the father and the mother shall have equal shared parental responsibility for decisions involving a change of the children’s names or a change of the children’s living arrangements that would make it significantly more difficult for the children to spend time with either parent.

10.

That the children spend time with and communicate with the mother at all times as agreed between the mother and the father and, until she is discharged pursuant to these Orders, the Independent Children’s Lawyer, but failing agreement at least:

Following a moratorium of six (6) months after the transition of the children into the father’s care pursuant to these Orders during which they do not spend time with or communicate with the mother:

(i) Supervised at the L Group or such other place as may be agreed upon between the Independent Children’s Lawyer, the father and the mother, each alternate Saturday for a period of up to two hours at the expense of the mother.

11.

That after the children have begun spending supervised time with the mother pursuant to paragraph (10) hereof, any re-commencement of communication between the children and the mother and any unsupervised time in her care thereafter shall be a matter to be agreed upon between the mother and the father.

12.

That the father shall arrange and facilitate, at his expense, such therapeutic counselling and assistance for himself and the children to help them cope with the challenges that will present after their transition to his care, taking advice from the Independent Children’s Lawyer who may consult with the family report writer, Ms J, and the Adolescent and Child Psychiatrist, Dr M and the psychologist, Ms K, or any other expert she considers appropriate in order to provide referrals and recommendations to the father as she considers appropriate.

13.

That the father shall keep the mother advised by email or specialist internet based Application as to any significant developments in the children’s health, educational and cultural development as and when such developments occur.

14.

That save as otherwise provided for in these Orders, the mother, the father, the maternal and paternal grandparents are restrained from publishing, or causing to be published, to any third person, persons or entity, other than a solicitor or barrister in the course of obtaining further legal advice, or an elected Member of Parliament, any documents (including, but not limited to, affidavits, reports and documents produced pursuant to subpoena) or photographs from these proceedings, relating to these proceedings or the subject matter of the proceedings without first obtaining leave of the Court.

15.

That should the mother commence therapeutic counselling or psychotherapy as recommended by the family report writer in her evidence, the mother shall be at liberty to provide the psychotherapist or counsellor she attends upon with copies of the following documents for that therapist’s professional consideration:

(i) The affidavit of Ms J filed 17 January 2019 and its attached family report;

(ii) The affidavit of Adolescent and Child Psychiatrist, Dr M filed 24 June 2019 and its attached report;

(iii) The Orders and Reasons for Judgment of Justice Tree of this Court of 13 June 2016;

(iv) These Orders and Reasons for Judgment.

16.

That each of the parents and each of the children’s grandparents are restrained from denigrating the other parent or any member of the other parent’s family to, or in the presence or hearing of the children.

17.

That unless the mother has the prior written agreement of the father she is restrained, as are each of her parents, from attempting to make contact with either of the children other than in accordance with these Orders and the father is at liberty to show a copy of a sealed copy of these Orders to the Principal of any school or child care facility attended by the children from time to time to inform them of this restraint, though the mother is permitted to communicate with the Principal of any such school or child care facility and to obtain, through that Principal, any information from the school or child care facility about the children that the school or child care facility would normally lawfully be able to provide a parent of a child attending such school or facility.

18.

That the Independent Children’s Lawyer be discharged on the date that is one calendar year from the making of these Orders.

19.

That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

In that same case, the High Court also relevantly observed that:[2]… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. (emphasis added) [2] M v M (1988) 166 CLR 69, 76. The Judges of the High Court also said:[3]…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue. (emphasis added)[3] M v M (1988) 166 CLR 69, 76. The High Court Judges’ reference in that case to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task, in determining the proper parenting orders to make in respect of any child, is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Act). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC of the Act) when making the parenting orders the Court thinks “proper” (s 65D(1)). As is well known, and as I have already alluded to, this Court hears a large number of parenting cases involving allegations of sexual abuse each year. Nevertheless, in deciding every single such case, it remains important to reflect upon the seriousness of the central factual issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of In the Marriage ofN and S (1996) FLC 92-655 (“N and S”) at 82,709:It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating. I am certain that statement remains “as poignant and relevant” today as the Full Court of this Court said it was over fourteen years ago in W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 (“W & W”). I have little doubt that a person subjected to sexual abuse as a child, particularly at the hands of an otherwise loving biological parent, will likely face psychological trauma dealing with that for the rest of their life. When I am appropriately satisfied that such abuse has happened, it is not difficult to persuade me that a child’s best interests are best served by not spending any time, even supervised time, with the abusive parent. That said though, I hasten to observe that the Judges of the High Court went on in their judgment in M v M (1988) 166 CLR 69 to expressly say (at 76-77) the following:In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said:“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”[4][4] What became known as the “Briginshaw test” following that 1938 High Court decision of Briginshaw v Briginshaw (1938) 60 CLR 336, was given legislative force in s 140 of the Evidence Act 1995 (Cth). That section provides:

Ratio Decidendi

Legal Principle Established

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