Jasper and Jasper

[2008] FamCA 1164

FAMILY COURT OF AUSTRALIA

JASPER & JASPER [2008] FamCA 1164

FAMILY LAW – CHILDREN – Appointment of Independent Children’s Lawyer

APPLICANT: Ms Jasper

RESPONDENT: Mr Jasper

FILE NUMBER: MLC 9578 of 2007

DATE DELIVERED: 19 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 19 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S. MacGregor

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That pursuant to s 68L(2) of the Family Law Act the child … born … December 1994 shall be separately represented and that Victoria Legal Aid is requested to arrange such representation urgently (and if possible, that it be Mark Finn who was previously the ICL).

2. That forthwith upon appointment by the said Victoria Legal Aid the Independent Children’s Lawyer shall file a Notice of Address for service.

3. That forthwith upon notification of such appointment the solicitors for the respective parties shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

4. That by 12 noon on 20 December 2008 each party shall undertake a supervised drug test organised by a medical practitioner and they shall request an urgent report be obtained by them, to be available by Tuesday 23 December 2008 if possible.

5. That the parties shall attend and the father shall make the child … born … December 1994 available to attend an appointment with a Family Consultant at the Family Court of Australia Melbourne Registry, on 23 December 2008 at a time to be notified to the parties for the preparation of an oral report to be given in court on 24 December 2008.

6. That all existing applications shall be adjourned to the Judicial Duty List at 10.00am on 24 December 2008.

7. That paragraphs 3, 4 and 5 of the orders of 8 May 2007 shall be suspended and the child shall live with her father until further order.

8. That a transcript of my reasons given this day shall be prepared with priority and be retained on the court file.

9. That the father shall file and serve a response and affidavit in support by 4.00pm 23 December 2008.

IT IS NOTED

1. That the father shall do all reasonable acts and things to bring to court the Sunshine Magistrates’ Court documents filed by him in obtaining the recent order and any orders made in those proceedings

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9578 of 2007

MS JASPER

Applicant

And

MR JASPER

Respondent

REASONS FOR JUDGMENT

1. Final orders were made by Bennett J on 8 May 2007, providing for the parties’ child to live with her mother, and to spend time with her father each alternate Sunday and on various special occasions, and to communicate with him by telephone.

2. Recently, there has been a major upheaval in the child’s life.  Her mother was voluntarily admitted to a psychiatric hospital at the end of October after what she has set out in her affidavit as many months of serious back pain and deteriorating mental health.  She suffers from bipolar disorder.  She refers to having blackouts in the course of the year, and what sounds like a very difficult and turbulent time. 

3. Her version is that she made arrangements for the child to remain with friends while she was hospitalised for three weeks.  The father's version is that he found that the mother had left the child with friends, although she had discussed the child coming to live with him.  When things did not occur as he believed they had been agreed, he went to the Sunshine Magistrates Court on 26 November 2008 and obtained a Recovery Order.

4. His account is that at that time, the mother had recently been released from hospital and was in fact staying with him because she had no other accommodation.  He says that he told her exactly what was happening and that he was going to court and she expressed no interest in coming to court, saying she was otherwise engaged.  In any event, the Recovery Order was made and the child was taken into her father's care at that time.

5. The mother brought an application in this Court filed on 17 December, just two days ago, seeking that the child be returned to her care.  She sets out her version of events in an affidavit filed on the same day.  The father is here today without a lawyer and without any material having been filed.  That is understandable, given the very short notice he received of these proceedings.

6. He raises issues that cause me great concern, albeit not on affidavit. He raises the concern that the mother is using drugs.  He says that while she was living in his home, she was using marijuana and as he put it, "packets and packets" of Nurofen, and he says that the child has described the mother's drug use to him and has expressed her consternation about it.  He says that the child complained about her mother yelling and screaming at her while she was in her care, and that the child at this stage does not want to be with her mother.  He says the child was not getting properly fed.  He refers to huge school absences in the mother's care and that conversations he has had with the Department of Human Services lead him to believe that if the child lives with the mother, the DHS will step in.

7. Of course I cannot make any findings at this stage about those matters.  I can say though that the concerns raised by the father have some support by matters sworn to by the mother.  As I have noted, from her own affidavit it appears that during this year, with her declining physical health and deteriorating mental health, it set a particularly difficult scene for the child. 

8. Otherwise, the one lot of documents handed to me by the father, after Ms MacGregor for the mother had seen them, are the absent activity summaries for 2008 school year for the child.  Her absences have been absolutely immense.  Without being able to calculate them finally, they are reason for enormous concern.

9. I propose asking for the previous ICL, Mr Finn, to be brought back into the matter as quickly as possible.  I propose ordering that the mother undergo urgent supervised drug screens.  She suggests that the father should also do that.  He says there is absolutely no reason why he should, that his drug use and a conviction for trafficking is only historical.  Trying to gather as much information as possible, as quickly as possible, it is a good idea that they both do a test so that the issue can be put to rest.

10. I am able to arrange counselling with a Family Consultant on Tuesday, 23 December 2008 for the purposes of the preparation of an oral report that I am told can be delivered on 24 December 2008.  I propose making orders to that effect.

11. In light of that and the very difficult and serious issues raised, I am not going to make any other orders at the moment about the child seeing her mother, because that can be dealt with within several days, with more information to hand.  In the very short interim, I am going to suspend the previous orders and make a simple order that the child live with her father until the matter returns to court. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  19 December 2008