FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFS & MARSHALL (No.5) | [2020] FCCA 2893 |
| Catchwords: FAMILY LAW – Parenting – competing allegations of unacceptable risk due to abuse, violence, drug use, mental health and neglect – lengthy child protection history – father seeks change of residence – father untested parent – relationship with the children – mother’s ability to facilitate a meaningful relationship between the father and children – assessment of long term risks to children if the children remain in the mother’s care and if they move to the father’s care – mother in breach of orders – complex trial history. |
| Legislation: Children, Youth and Families Act 2005 (Vic) s.162(d) Evidence Act 1995 (Cth) s.140 Family Law Act 1975 (Cth) ss.11F, 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3), 60CC(3)(b), 61DA, 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA, 65DAA(1), 65DAA(2), 65DAA(3), 69ZW, 91B |
| Cases cited: A & A (1998) FLC 92-800 |
| Applicant: | MS JEFFS |
| Respondent: | MR MARSHALL |
| File Number: | MLC 7616 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 7, 8, 19, 20, 21, 26 & 27 November 2018, 17 January 2019, 14, 15 & 16 October 2019 and 20, 21 & 22 January 2020 |
| Date of Last Submission: | 6 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Teicher |
| Solicitors for the Applicant: | Cathleen Corridon and Associates until 15 March 2019. Wilkinson Romer and Associates Pty Ltd from 16 March 2019 until 9 November 2019. Romer Maud Family Lawyers from 10 November 2019. |
| Counsel for the Respondent: | Ms Healey |
| Solicitors for the Respondent: | CBD Family Lawyers until 22 July 2019. Batten Sacks from 23 July 2019. |
| Counsel for the Independent Children's Lawyer: | Ms Devine |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family… |
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- AGLC
- Jeffs and Marshall (No.5) [2020] FCCA 2893
- Case
- [2020] FCCA 2893
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were to determine the most appropriate parenting arrangements for the children, considering the extensive history of allegations and the need to protect the children from further harm. This involved assessing the long-term risks associated with the children remaining with the mother versus moving to the father's care. The court also had to consider the father's status as an "untested parent" and the mother's capacity to foster a positive relationship between the children and their father.
Judge Harland's reasoning focused on the paramountcy of the children's welfare and best interests. The court found that the mother's conduct and the risks associated with her care necessitated a significant shift in the children's living arrangements. The court applied principles relating to the assessment of risk, the importance of a stable and safe environment, and the need to facilitate a meaningful relationship with both parents where it is in the child's best interests. The court also considered the impact of the mother's behaviour on the children and the need for therapeutic intervention.
Consequently, the court ordered the discharge of all previous parenting orders, with the exception of the appointment of an Independent Children's Lawyer. The father was granted sole parental responsibility, and the children were ordered to live with him. The mother's time with the children was significantly restricted and ordered to be supervised, with specific provisions for communication and contact. Injunctions were also put in place to protect the children from certain individuals and behaviours, and extensive orders were made for therapeutic support for the children and the father.
Orders
Orders of the court
1.
All previous parenting orders in relation to the children X born in 2009 and Y born in 2013 (“the children”), with the exception of Order 4 of the Orders of Judge Jones dated 27 September 2016 appointing an Independent Children’s Lawyer, be discharged.
2.
The father have sole parental responsibility for the children.
3.
The children live with the father.
4.
The children spend time with the mother as follows:
(a) commencing after three months from the date of these Orders, on the first Sunday in March, June, September and December of each year, for a period of up to four hours, to be supervised by a professional supervisor or supervised contact centre, at times and places as nominated by the supervisor in Victoria, at the sole expense of the mother; with the children B and C also able to attend this supervised time (if they elect to); and
(b) at other times as agreed between the parties in writing.
5.
Commencing after three months from the date of these Orders, the children shall communicate with the mother by telephone, Skype, FaceTime, or by other electronic means:
(a) each Wednesday between 5:30 p.m. and 6:00 p.m.; or
(b) on such other day and time as agreed between the parties in writing,
with the mother to place the call, and the father to ensure that:
(c) the children have access to a fully charged telephone, tablet or computer;
(d) the children are available to take the call,
(e) the call is placed on loud speaker to enable the father to monitor the conversation; and
(f) the father shall terminate the call if the conversation is inappropriate.
6.
Should the mother elect to relocate within 100km of the children’s home, the children shall spend the following additional time with the mother (such time will not occur within the first six months following the making of these Orders):
(a) every second Sunday, for a period of up to four hours to be supervised by a supervisor as agreed between the parties in writing, and failing agreement, the time shall be supervised by a professional supervisor or supervised contact centre in Victoria, at a time and place as nominated by the supervisor or contact centre at the mother’s sole expense.
(b) At such other times as may be agreed by the parties in writing.
7.
Commencing after three months from the date of these Orders, the children shall communicate with B and C as follows:
(a) by telephone, Skype, FaceTime, or other electronic means on the first Saturday of each month between 5:30 p.m. and 6:00 p.m.; and/or
(b) at such other times as may be agreed between the parties in writing;
with the mother to place the call and ensure that the children are afforded privacy during the call, and with the father to ensure that:
(c) the children have access to a fully charged telephone, tablet or computer,
(d) the children are available to take the call;
(e) he is in substantial attendance during the call; and
(f) he terminates the call if the conversation becomes inappropriate or the mother and/or Mr D participate in the conversation.
8.
If the parents are unable to agree upon a professional supervisor, then the father is to provide the mother, within seven days of any dispute as to the professional supervisor, with the names of three professional supervisory agencies, and the mother is to select one of those agencies to provide the supervision.
9.
If a child is too ill to attend her scheduled time with the mother pursuant to these Orders, the father shall inform the mother by text message as soon as practicable, with make-up time to be provided as agreed between the parties in writing and failing agreement the father will nominate three alternate times and the mother shall chose one.
10.
The mother be at liberty to send the children letters, gifts and cards by ordinary prepaid post to an address nominated by the father, with the father to read any letter or card prior to passing it on to the children.
11.
The mother and father shall each inform the other of their contact phone numbers, email address and residential address, and provide the other parent with not less than seven days’ notice of any change thereto, in writing.
12.
The father shall request that the paternal aunt, Ms E, be in substantial attendance for the first seven days that the children are living in his care.
13.
The mother and father, their servants and/or agents, are hereby restrained by injunction from bringing the children (or either of them) into contact with Mr D.
14.
The mother and father, their servants and/or agents, are hereby restrained by injunction from bringing the children (or either of them) into contact with Ms F, unless consent is obtained from the father in writing, and such time is supervised by a person nominated by the father in writing at least 48 hours prior to such time occurring.
15.
The parties, their servants and/or agents, are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the children, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(b) discussing these proceedings or any parenting disputes or issues in the presence or hearing of the children, save to explain any changes in their living arrangements to them as a result of these Orders, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(c) exposing the children to family violence;
(d) allowing the children to read, have read to them, or otherwise access any part of the Court’s Reasons for Judgment in this matter or any document prepared for the purposes of these proceedings or tendered at trial.
16.
The father shall authorise any child care, kindergarten, school or extra-curricular activity in which the children are enrolled to provide to the mother, at her expense, all information, notices, photographs, reports and like materials usually provided to parents.
17.
The mother is hereby restrained by injunction from asking, persuading or otherwise influencing any third party, including her partner or any other member of her family, to do anything that she is prevented from doing pursuant to these Orders.
18.
The father is at liberty to provide these Orders and Reasons for Judgment to:
(a) Victoria Police;
(b) Department of Health and Human Services, Victoria;
(c) Family and Community Services, New South Wales;
(d) Any Court hearing and family violence matter or criminal proceeding involving the parties;
(e) The children’s counsellors and doctors.
19.
The father arrange the children to attend G Family Services or a similar service for family counselling in conjunction with Dr H, or another psychologist as nominated by the Independent Children’s Lawyer, under a mental health care plan to assist him in the care of the children.
20.
The father do all acts and things and sign all documents necessary to link the children into these supports, utilising tele-counselling during the COVID –19 restrictions.
21.
The father do all acts and things necessary to engage the children in play therapy and/or counselling, as arranged by the Independent Children’s Lawyer, in order to assist with:
(a) their transition into the father’s care;
(b) to assess and treat any trauma associated with allegations of sexual abuse; and
(c) to assess and treat any trauma associated with being exposed to significant family violence, abuse and neglect.
22.
The Independent Children’s Lawyer and a family consultant at the Newcastle Registry are to explain these Orders to each of the children.
23.
The Independent Children’s Lawyer be discharged 12 months from the date of these Orders.
24.
The mother may initiate family dispute resolution prior to bringing any further proceedings to consider the establishment of other time arrangements between the children and herself upon:
(a) Serving the father with a report from an appropriately qualified clinical psychologist who has regularly and consistently treated the mother for a period of no less than 12 months to address:
(i) The mother’s attitude towards the father and understanding and accepting that the father has not perpetrated childhood sexual abuse on the children;
(ii) The mother’s attitude towards the father’s mental health issues and accepting that the father is not suffering from any active mental health issues;
(iii) The mother’s role in perpetrating emotional harm against the children;
(iv) The mother’s lack of insight into the impact of her behaviours and attitudes on the children;
(v) Co-operation with and progress towards the therapeutic goals of that therapy;
(b) Giving the clinical psychologist a copy of these Orders and Reasons for Judgment prior to the commencement of therapy.
25.
All extant applications are otherwise dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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