Jasper and Jasper (Deceased)

[2008] FamCA 1168

FAMILY COURT OF AUSTRALIA

JASPER & JASPER (DECEASED) [2008] FamCA 1168

FAMILY LAW – CHILDREN – With whom a child lives pending next hearing date

Family Law Act 1975 (Cth)

APPLICANT: MR JASPER

RESPONDENT: MS JASPER (deceased)

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9578 of 2007

DATE DELIVERED: 24 DECEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 24 DECEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: DR ALEXANDER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Marshalls and Dent

Orders

1. THAT the application in a case filed on behalf of the mother (deceased) on 17 December 2008 be discharged.

2. THAT the solicitor appearing for the mother (deceased) be excused from further attendance.

3. THAT leave be granted to the father to make an oral application for the child … born … December 1994 to live with him pending further order of the court.

4. THAT the father make, file and serve a written application, supported by affidavit material, on or before Friday 9 January 2009 and serve a copy of that document upon the Independent Children’s Lawyer.

5. THAT the further hearing of the oral application of the father be adjourned to the judicial duty list at 10am on Wednesday 14 January 2009.

6. THAT until 10am 14 January 2009 the child live with the father at B.

7. THAT the father be in substantial attendance at all times with the child.

8. THAT the father encourage or facilitate contact, by telephone or in person, between the child and her extended maternal family who reside in the Gippsland area.

9. THAT on the adjourned hearing date the father produce to this court:

a.The results of his recent drug screen test; and

b.The court documents filed by him in the Sunshine Magistrate’s Court for the hearing on 26 November 2008.

1. THAT the Independent Children’s Lawyer, as soon as practicable, serve a sealed copy of this order upon the Department of Human Services (Ms R).

2. THAT the evidence of the Family Consultant, Ms K, be transcribed as soon as practicable and placed upon the court file and with a copy to be provided to the father and the Independent Children’s Lawyer.

3. THAT the evidence of the father given on oath this day be transcribed and placed upon the court file and with a copy to be provided to the father and the Independent Children’s Lawyer.

4. THAT the father bring the child to the court with him and Ms G on 14 January 2009, and arrive at court prior to 10am.

5. THAT the ex tempore reasons for judgment be transcribed as soon as practicable, placed upon the court file and made available to the parties.

6. THAT pursuant to s65DA(2) and s62B, 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 adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED:

A.THAT the order for the child to live with the father, until the adjourned hearing date, has been pronounced on the basis that the father’s partner, Ms G, will at all times remain with and reside with the father and the child.

B.THAT the Family Consultant provided, if required, emergency counselling and contact numbers as follows:

i.Counselling – Coronor’s Court, Ms W (03) …;

ii.B Area Youth Worker – (03) …

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

MR JASPER

Applicant

And

MS JASPER (deceased)

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Jasper, file MLC 9578 of 2007, is before me this day.  I have also had imported the earlier file, MLF 5140 of 2003.  The father, Mr Jasper, appeared in person; Dr Alexander, of counsel, appeared for the independent children's lawyer, Mr Finn.  Initially Ms MacGregor, solicitor, announced an appearance for the recently deceased mother, Ms Jasper.  I have excused Ms MacGregor from further attendance.

2. This matter was last before the court on an urgent hearing basis on 19 December 2008.  On that occasion, Dessau J made certain orders for the appointment of an independent children's lawyer and for the preparation of a report by a family consultant and other orders.  Her Honour's reasons for judgment made on an extempore basis are not yet available.

3. As has been outlined in court this day by both the family consultant, Ms K, and by the father, the mother died on the evening of Sunday, … December 2008.  Her death occurred at a private home, at friends of the family.  I make no further comment upon the cause or circumstances of death.  I have been told that Victoria Police or the Coroners Court are investigating at some level and that there will be an autopsy.

4. The prior history of this matter is fairly recorded in the various court files.  There were final orders made on 8 May 2007 by Bennett J and those orders provided for the child, a daughter, born in December 1994, to live with the wife, but for her parents to have equal shared responsibility.  There was particular time spent on communication orders made in favour of the father and I observe they were of extremely limited duration, on each alternate Sunday between the hours of 10.00 a.m. and 5.00 p.m. and otherwise on special occasions.

5. There were further proceedings in the Sunshine Magistrates Court on 26 November of this year where the father obtained an ex parte recovery order of the child.  He was ordered to bring those documents to court this day but he has advised the court that he is yet to attend at that courthouse and obtain documents.  Likewise, I observe that the father was to undergo a supervised drug test and produce those documents to the court this day.  He has told the court that he attended at a medical practice in the B area, did undergo the drug screen test, that the results were negative but that he had not brought the document to court but left it in his car parked nearby.

6. Arising out of the orders made by her Honour on 19 December 2008, the father and the child attended an urgently convened interview with Ms K.  An oral report has been delivered to the court this day and that will be transcribed and placed on the court file.

7. I have listened carefully to the report which of course is somewhat limited in its scope and content because of time and availability issues. The recommendation of Ms K is that pending further order, the child live with her father and that the matter come back to court at the first realistic opportunity for further assessment or orders. 

8. Ms K emphasised the importance of having counselling available to the child, having the child obtain access to her mother's personal possessions or at least some of them and having contact to extended family who live in Gippsland.

9. I understand that there has been a past and a continuing involvement of the Department of Human Services and in particular, Ms R.  There is no written or other evidence available from the department or its employee this day and that is a matter that the recently appointed independent children's lawyer has indicated through counsel this day that will be further investigated.

10. Ms K did have available a telephone contact number if required for the child and/or the family on any urgent basis.  The first contact was through a counselling service with the Coroners Court, Ms W, on telephone …, or …, and otherwise a locally based (B area) counselling service and youth worker on ….  I record those contacts for the benefit of the parties.

11. I invited the father to give sworn evidence which he did.  He has now, for up to two years, lived in what he described as a stable relationship with Ms G.  The father is unemployed, lives in rented premises at B.  His mobile telephone number is ….  He does not have email.  He proposes and has now made, by leave of the court, an oral application for the child to live with him pending further order of the court.  He has arranged for the child to recommence at a different school next year, B Private School, in year 9.  He has assured the court that he will provide substantial, if not complete supervision of the child and at all reasonable times he will be accompanied by or living together with Ms G.

12. The child has, perhaps from time to time and when permitted by the father, her own mobile telephone, number ….  The child has many confronting issues ahead of her over the next week or thereabouts which of course include, in the absence of her mother, Christmas Day, her birthday, what would have been the birthday of her mother and at a date to be arranged, her mother's funeral.  She will most certainly need substantial care and support.

13. There have been references made to extended family in Gippsland and Ms K has encouraged the father to permit or facilitate the child to spend time, by telephone or in person, with those family members. 

14. Perhaps the more controversial issue is a local B area family identified as the M Family.  They are not at court.  They have not been served. The child was living with them for a period.  Seemingly, if I accept the evidence of the father, the child does not wish to return to them.  Those matters, however, can be further investigated, if appropriate, by either the Department of Human Services or the independent children's lawyer.

15. The overview of this matter as it comes before the court for an adjourned hearing on 24 December is that the child must reside with the appropriate person between now and the next hearing date.  The only person available is the father and I am certainly encouraged in that outcome by the interim recommendation of the family consultant and the lack of any other possible alternative. 

16. The issue of the further hearing of this matter has been discussed with counsel appearing for the independent children's lawyer.  Mr Finn does not return to his office until 6 January and thereafter needs time to make inquiries of the Department of Human Services, perhaps the police and others.  I will adjourn the matter to the next realistically available date, allowing a week for Mr Finn to make those further inquiries.  The father has indicated that he is available and can and will come to court on Wednesday, 14 January, and the matter will be listed in the judicial duty list at 10.00 a.m. on that day before a Judge.

17. I have asked and I record that the father was to bring with him his drug screen test from the B area medical practice and also a copy of all documents he filed in the Sunshine Magistrates Court for the recovery order.  I will pronounce interim orders to facilitate the child living in her father's home and with him and Ms G for the intervening period.

18. Dr Alexander raised the issue of pronouncing an order pursuant to section 91B of the Family Law Act 1975. I propose not to make that order in the haste and urgency of this hearing today. I do understand from the father's evidence that he has had significant discussions over the past month with the department and in particular with Ms R. Investigations are generally ongoing and the independent children's lawyer can discuss these matters with the department as soon as is physically practicable.

19. I will have the evidence of the father transcribed and placed upon the court file, together with the evidence of the family consultant.  The orders that I make are interim only and all matters that are in or associated with the best interests of the child can and will of course be reconsidered on the adjourned hearing date of 14 January 2009.  I will likewise have these reasons for judgment transcribed and placed upon the court file.

20. The father's address for correspondence is …, S, that is his mother's address and court documents can and will be sent to that address.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: