Jeffrey & Carlsen

[2021] FCCA 1038

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jeffrey & Carlsen [2021] FCCA 1038

File number:	DNC 602 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	13 April 2021
Catchwords:	FAMILY LAW – parenting – interim hearing – concerning three children who are ten, six and three years old – whether the children are at an unacceptable risk of harm in the father’s care – where the mother alleges she was subjected to family violence perpetrated by the father – where the mother alleges the children have been exposed to family violence – where the child reported witnessing family violence perpetrated by the father – where the father alleges the mother is alienating him from the children – Court satisfied orders will address any unacceptable risk of harm to the children in the father’s care.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	13
Date of hearing:	13 April 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Cooper of Maley’s Barristers & Solicitors
Counsel for the First and Second Respondents:	Ms McLaren

ORDERS

DNC 602 of 2020

BETWEEN:

MR JEFFREY

Applicant

AND:

MS CARLSEN

First Respondent

MR CARLSEN

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	13 APRIL 2021

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.The father shall enrol and complete the following courses with B Families:

(a)‘1-2-3 Magic’ or ‘Circles of Security’; and

(b)Men’s Behaviour Change Program.

2.The children, X born in 2010, Y born in 2014 and Z born in 2017 (“the children”) live with the mother and spend time with the father as follows:

(a)for a period of 4 weeks, pending the father’s enrolment into 1,2,3 Magic or Circles of Security and the Men’s Behaviour Change Program conducted by B Families, the children spend time with the Father:

(i)each Monday from 2:30pm to 6:30pm; and

(ii)each alternate Sunday from 10:00am to 4:00pm.

(b)upon the father providing proof of his enrolment into 1-2-3 Magic or Circles of Security and the Men’s Behaviour Change Program conducted by B Families to the mother in writing, the children shall spend time with the father as follows:

(i)each Monday from 2:30pm to 6:30pm; and

(ii)each alternate weekend from 10:00am Saturday to 4:00pm Sunday.

(c)upon the father providing to the mother in writing proof of completion of  1-2-3 Magic or Circles of Security and Men’s Behaviour Change Program conducted by B Families, the children shall spend time with the father as follows:

(i)each Wednesday from 2:30 pm to 6:30 pm; and

(ii)each alternate weekend from after school Friday from 2:30 pm, whether it is a school day or not, to 4 pm Sunday.

AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

3.That on the following special days, the children shall spend time with each party at all times as agreed but in default of agreement as follows:

(a)the children spend Father’s Day with the father from 10:00am to 4:00pm during which the mother’s time with the children is suspended;

(b)the children spend the father’s birthday with the father from 10:00am to 4:00pm provided it is not a school day. If it is a School day from 2:30pm to 5:00pm during which the mother’s time with the children is suspended;

(c)the children spend Mother’s Day with the mother from 10:00am to 5:00pm during which the father’s time with the children is suspended where applicable;

(d)the children spend the mother’s birthday with the mother from 10:00am to 4:00pm provided it is not a school day. If it is a school day from 2:30 pm to 5:00pm during which the father’s time with the children is suspended where applicable.

(e)on each of the children's birthdays, if the children are in one party’s care, the other party shall spend time with the children after school if a school day from 2:30 pm to 5.00 pm, and for 5 hours on a non-school day at a time to be agreed between the parties and failing agreement from 9:00am until 2:00pm.

Changeover

4.That unless specified otherwise in these orders, the changeovers shall take place between the parties, with the party commencing time with the children collecting the children from after school or day care if the changeover occurs at the conclusion of the school day (2:30pm), or otherwise from C Park (corner of D Street and E Street).

Communication

5.The parents commence communicating about the children via the free to use ‘Appclose’ - parents shall communicate with and provide reports to each other about all issues regarding the children including their care, conduct, welfare and development.

7.When the children are speaking on the phone to the other party the children be given their privacy to continue the call in private.

Non-derogation

8.That the parties are restrained and an injunction issue against both regarding the following:

(a)Denigrating each other or any member of their family or persons of significance, including but not limited to within the hearing presence of the child, or allowing the child to remain in the presence of another person who is doing so; and

(b)Discussing the particulars of the parties' separation and/or these family law proceedings with the child or requesting the children to pass messages to the other party.

9.That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X born in 2010, Y born in 2014 and Y born in 2017 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children's interests.

10.That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

11.That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

12.That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

13.That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born in 2010, Y born in 2014 and Z born in 2017 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on a date to be advised to the parties.

14.That the family report is 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 wishes;

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

15.That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

16.That the parties are to confirm their attendance to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled.

17.That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

18.That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

(a)Children’s Court;

(b)child protection authority;

(c)State or Territory legal aid authority; and

(d)convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 18 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

19.That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

20.That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

21.That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b)annexing such material as is considered relevant, with

(c)the affidavit to be paginated, indexed and exhibits tagged.

22.That the proceedings are adjourned to the trial call-over list on 1 October 2021 at 10.30am.

23.That the parties no less than seven (7) days prior to the call-over date provide to the Court:

(a)A brief Summary of Argument including Minute of Orders sought; and

(b)A Trial plan indicating estimated length of trial sought and witnesses relied upon at trial.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting case concerning three children; X, who is ten years of age, Y, who is six years of age; and Z, who is three years of age.  The parties separated in early 2018.  In September 2018 they entered into a parenting plan which involved the children – only X and Y at this stage – spending alternate weekends from Friday to Monday (or Tuesday, if Monday was a public holiday) with the father. 

2. The mother alleges in her affidavit that the father verbally and physically abusive during the relationship.  The allegations are quite serious.  For example, there is an allegation that one of the children was driven over by the father.  The circumstances behind that incident are unclear.  The affidavit is marked by a vagueness which I found quite unsatisfactory. It was selective in the material it put before me.  For example, there was a claim that the child, X, split his head open whilst in the father’s care. However, I was not told in the affidavit that it was, in fact, an accident that occurred when X hit his head on a fan whilst jumping on a bed with his brother. This resulted in X receiving a reasonably severe laceration which required suturing.  The reason as to why I was not told that it was an accident is unclear, but nevertheless it is apparent that it was.  The various other claims made by the mother about injuries the children have received are usually by accident.  X, at one point, fractured an elbow when he fell off a quad bike. 

3. The mother, in substance, alleges that the father’s standard of care is so poor that the children are not safe with him.  I must say I approach those claims with a degree of caution.  The parties are not able to be cross-examined. I have already expressed some concern about the nature of the mother’s claims.  I notice in the mother’s affidavit she says that she has no particular concerns about the father’s care. That is broadly somewhat historical, but it is indicative of some inconsistency in the material. I do not feel I can reach a conclusion that the injuries the children may have suffered are anything, other than accidental. Further, I cannot conclude that the injuries are reflective of negligent care by the father, which is what is alleged. 

4. One of the related concerning aspects about the matter is that the father alleges that the mother has set out on a course intended to alienate the children from him or undermine their relationship with him.  There is some support for that in the mother’s affidavit because she proposes that Z, the youngest child who is three, have his surnamed changed from that of “Jeffrey” to the mother’s surname, “Carlsen”.  The two older boys, I assume, have their father’s surname, “Jeffrey”.  It seems striking and surprising that a parent would propose that a child, who shares precisely the same parentage with his two older brothers, should not carry the same surname as those children.  I would imagine a Court would require a great deal of persuasion that such a course was in the best interests of a child.  It also may give rise to an inference that the mother is not supporting Z’s relationship with his father.  However, it is an interim hearing, I cannot make any findings about that matter either. 

5. It is clear that X is a child that has some difficulties. He apparently has a diagnosis of attention deficit hyperactivity disorder, oppositional defiance disorder, and dyslexia. It would appear he is a child with some special needs. It was suggested that Y may have similar difficulties. Be that as it may, I am satisfied, having regard to the matters in sections 60CC(2) and 60CC(3) of the Family Law Act 1975 (Cth) (the Act), that it is in the best interests of these children that they have a meaningful relationship with their father, as is the case here. 

6. Section 60CC(2)(b) of the Act also makes clear the need to protect the children from harm. That concern arises, in particular, because of the allegations of family violence. While I cannot make any findings about those allegations at this stage, the Family Consultant recorded that X had said things to her that indicated he had been exposed to family violence. In particular, the Family Consultant recorded X as saying that the father yelled and screamed at the mother and blamed the mother. He described details of an alleged assault on his mother by the father, presumably while the parties were together. The Family Consultant was of the view that the description was credible and it was also the Family Consultant’s impression that X may have suffered trauma as a result of growing up in a household characterised by family violence.

7. I am satisfied, therefore, that family violence is a significant risk in this matter. There is nothing to suggest that there is a continuing risk of violence to the mother in the material before me.  However, there is material to suggest that there are concerns about the capacity of the father, particularly given what is evidence of a willingness to expose the children to family violence.  That raises obvious questions about his parenting capacity. I am satisfied that that is a significant concern in this case. 

8. The Family Consultant was ultimately of the view that the agreement reached by the parties was that the children continue to spend alternate Sundays for four weeks with the father. After that, the children spend time with the father on Saturday and Sunday, although not overnight, in alternate weekends for a month and following those four weeks which they would commence spending from Friday to Sunday in alternate weekends. 

9. There was an agreement to that effect, though it appears that the mother has departed from that in relation to Z.  The present position is that she is opposed to Z spending any overnight time with the father until Z turns five which would be in November 2022.  That appears to me to raise concerns about whether the mother is willing or able to see that a relationship between Z and his father may be in Z’s interests.

10. The Family Consultant, however, made recommendations which qualified the agreement very significantly. The Family Consultant recommended that the father attend a “1-2-3 Magic Parenting Course” at B Families or “Circles of Security” if that was not available and, significantly, that he attend a Men’s Behaviour Change Program at B Families. That is, as the name suggests, a program directed towards showing men a different way of interacting with their partners and children and it is directed at changing their behaviour to prevent family violence.  I am satisfied that it is an appropriate recommendation and I propose to make an order that the father enrol and complete such a course.

11. The Family Consultant recommended that upon proof of enrolment in those courses, the children’s time with the father then increase to each alternate weekend, from Saturday morning until Sunday afternoon. Upon the father’s completion of the suggested courses, the Family Consultant recommended that the time increase to Friday until Sunday, on alternate weekends.  I am satisfied that it is appropriate for the father to enrol and complete those courses and I propose to make orders that reflect the Family Consultant’s recommendations. 

12. The mother also sought an interim order that the father pay half of the children’s medical expenses.  The mother in her material has not itemised what the medical expenses might be.  She claims that she spends $347 a week on various things, including medical expenses, but there is no itemisation.  There is no itemisation in her financial statement.  In the circumstances, I do not propose to make any order about payment of medical expenses.  The father pays child support and it was not challenged that his payments were up to date. I do not consider that matter to be an interim issue. 

13. In addition to the orders I have already made I will make the following orders:

    (1)That changeover is to occur as per the consent minute of orders;

    (2)That a family report is to be prepared by the Family Consultant;

    (3)That an Independent Children’s Lawyer be appointed;

    (4)That the matter be adjourned to the trial call-over list on 1 October 2020.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       14 May 2021