Jason and Jason

[2014] FamCA 1052

FAMILY COURT OF AUSTRALIA

JASON & JASON [2014] FamCA 1052

FAMILY LAW – CHILDREN – Magellan matter that reached final consent orders – the Independent Children’s Lawyer seeks orders not to be made as not in children’s best interests – consent orders declined to be made – best interests of the children.

APPLICANT: Mr Jason

RESPONDENT: Ms Jason

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 2530 of 2013

DATE DELIVERED: 8 October 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 8 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maddox

SOLICITOR FOR THE APPLICANT:	Low Doherty & Stratford
SOLICITOR FOR THE RESPONDENT:	Ms Wilde of Family Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Robertson of Robertson Solicitors

Orders

1. The hearing dates of 3, 4 and 5 November 2014 are vacated (Order made in chambers).

2. The matter is adjourned to 9 February 2015 at 9.30am for mention.

3. The Independent Children’s Lawyer is at liberty to relist the matter at any stage in any circumstances as she regards appropriate.

4. The orders made on 17 March 2014 are to continue and additional orders made as follows:

   (a)       Each of the parents is to enrol in, commence and complete as much as is practicable, a parenting course as nominated by the Independent Children’s Lawyer.  In the event that the parents are unable to commence the nominated parenting course within two months of the date of this order, the Independent Children’s Lawyer is to nominate an alternative parenting course noting that it is the expectation that the parties will have at least commenced such parenting course by the adjourned date in Court.

   (b)       The parties are each to use their best endeavours to enrol promptly in the Keeping Contact program conducted by Unifam in … and are to cooperate with all recommendations in that that program in relation to counselling and programs.

   (c)       The mother is to attend upon her general practitioner within 14 days to obtain a mental health assessment and referral to a psychologist.

   (d)       The Independent Children’s Lawyer is at liberty to provide to both the general practitioner and any such psychologist to which the mother is referred a copy of the Family Consultant’s report and any other document that the Independent Children’s Lawyer regards as appropriate.

5. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as she considers relevant to the issues before the Court.

6. Each party to file and serve an affidavit concerning the practical arrangements under the proposed orders including the arrangements as to accommodation 7 days before the adjourned date.

7. If the parties wish to put submissions in writing with respect to property orders, they can be made within 14 days and consent orders will be made in chambers.

Notation

1. The Independent Children’s Lawyer is to liaise with the Registrar as to requests made from the Local Court concerning the results of criminal proceedings against the mother.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jason & Jason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2530  of 2013

Mr Jason

Applicant

And

Ms Jason

Respondent

REASONS FOR JUDGMENT

1. This matter concerns B, who is four, and C, who is nearly three, who are the children of the parents, Mr Jason (“the father”) and Ms Jason (“the mother).  The property but in particular what I am concerned with now, the parenting proceedings which have been designated as a Magellan matter, was listed for hearing in November of this year.

2. The matter has been relisted today at the request of the Independent Children's Lawyer because, although the parties have reached agreement in relation to parenting orders, the Independent Children's Lawyer does not consent to those orders being made.  She does not agree that they are in the best interests of the children, and in the event that the Court makes the orders as sought by each of the parents today, she seeks to be discharged.

3. Many matters in relation to the proceedings generally are in dispute, even going back to the very early days of the relationship between the parents in that the mother says that the parties were married in an Islamic ceremony in mid-2009 which was legally recognised in Country X, whereas the father says that the parties were married for the first time legally in Australia in 2010.  There is also a dispute about when the parties actually separated, whether separation occurred under the same roof as alleged by the mother, or in the circumstances that the father says. 

4. There is, of course, no doubt about the birth of the children, B being born in 2010 and C being born in 2011.  It is a matter that has a number of quite complex and serious issues in relation to parenting, and, in particular, allegations that each of the parents makes against the other as to the risk of harm that may arise in the event that the children live with or spend time with the other parent. Some of the matters raised by the father relate to the mother’s aggression and violence and parenting capacity and, in many of the cases, relate to allegations made with respect to the mother’s behaviour concerning her older child, A, and/or the father’s older child from his earlier marriage, Y.

5. There are a number of allegations which raise concerns about whether the mother has mental health problems.  There have been occasions where she has attended at the hospital.  There have been many interactions where police have been called, where allegations have been made by both of the parents, but, certainly, they are matters, on both sides, of serious concern in relation to the general domestic circumstances in which these two young boys have been raised. 

6. There has been emphasis placed in submissions by both of the parents, but particularly by the father, that many of the allegations are of harm which is not directed against the children that are the subject of these proceedings. However, this does not mean that they do not raise concerns relating to the risk of harm and parenting capacity of the mother which is relevant to the proceedings in relation to the care of these children. 

7. Similarly, the mother has made some serious allegations and it is a matter of concern that, today, it appears that she is attempting, in some way, to resile from or minimise those allegations.  Those allegations, most recently, and the ones that I raise in the context of, perhaps there being an attempt to resile or minimise, allegations that the father has online child pornography. This simply shows, in my view, a lack of understanding of the nexus (if indeed that is correct that he has accessed child pornography), in relation to the risk of harm that arises in relation to these children, as she now suggests that the images were of teenage girls or then she has not seen the images for a long time in some way to minimise it, and that of itself raises some concerns. 

8. There have been many reports over the years to the Department of Family and Community Services and its predecessor department, and there has been some intervention by that department including the parents participating in the Brighter Futures Program. In addition to matters relating to the access to child pornography by the father and mental health problems in relation to the mother and aggression by the mother towards the half-siblings of these children, there is also concerns about violence between the parties to which the children certainly have been exposed and falls within the definition of exposure to family violence in the Family Law Act 1975 (Cth) (“The Act”).

9. There has been a lot of emphasis placed today by both of the parents on the very fact that they have been able to reach agreement in these proceedings about the future parenting of these two children, and the fact that they are now living in separate homes and that that has reduced the violence between them. It is submitted that that should give the Court confidence that these are the orders that are in the best interests of these children. 

10. The issue of exposure to domestic violence is a serious one, and one which ordinarily would be determined by the court. This and the issue of a lack of cooperation between the parents are, however, not the central issues in this matter. The central issues are those which have been raised by the Independent Children's Lawyer which relate to a number of matters which also come out of the Family Consultant’s report. 

11. Those issues were identified in a letter that the Family Consultant wrote to each of the parents and asked them to respond to and to include the day-to-day circumstances of the children. They include the actual accommodation arrangements since the sale of the house, the allegations of physical abuse allegedly perpetrated by the mother against her older child, A, the allegations that the father has sexually abused the two children (the subject of these proceedings), the allegations that the father has accessed child pornography on his computer and, at that time, a concern that the relocation of the father to a different area in Sydney and the impact that it would have on the children. 

12. The issue of the relocation of the father, to his credit, has been resolved by him agreeing that he would not relocate, and whilst it is true that some of the other issues that the Independent Children's Lawyer raised such as the serious and persistent conflict between the parents and the allegations of domestic violence perpetrated by each of the parents against each other, appear to have reduced, the other matters remain unaddressed. 

13. In addition, it is of concern that neither of the parents has completed or even enrolled in a parenting program, that neither of the parents has been involved in the Keeping Contact program for future co-parenting (bearing in mind the age of the children), that the mother has not brought any evidence to satisfy the Court that she does not have mental health concerns, and that the ongoing police inquiry in relation to the father accessing online child pornography is still also unresolved. 

14. In my view, the concerns that the Independent Children's Lawyer raises are legitimate, having regard to both the primary and additional considerations set out in the Act.  The real concerns still arise in respect of the primary consideration of the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse and neglect or family violence.  There are also, in particular, concerns about the issue of the likely effect and change in the children’s circumstances in light of there not being current information in particular about the mother’s mental health issues and the outstanding issue in relation to the police as to what those circumstances are, in fact, going to be. 

15. Further, I have concerns about the responsibilities of parenthood, family violence and the capacity of each of the parents to provide for the children’s needs.  In my view, it would be inappropriate simply to make orders today, and say that, if future concerns arise which relate to risk of harm issues which are currently identified, then that will be a Rice & Asplund threshold that will be able to be overcome and the matter can be relooked at.  There are certainly things that can be addressed now.  It is my view that it is premature to make these orders while those matters remain unresolved. Further at this stage, I could not conclude that it would be in the best interests of these children to make the orders sought as final orders, and, accordingly, I decline to make these orders.

16. Having indicated that I decline to make those orders, the parties have consented to the adjournment and proposed orders by the Independent Children's Lawyer. 

17. Accordingly, the matter is adjourned to a date in February 2015 to be notified after further consultation with the parties through my Associate. 

18. The Independent Children's Lawyer is at liberty to relist the matter at an earlier stage in any circumstances that she regards as appropriate. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 8 October 2014.

Legal Associate: 

Date:  25 November 2014