FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jenkins & Jenkins [2025] FedCFamC1F 313
File number(s): SYC 337 of 2021 Judgment of: BEHRENS J Date of judgment: 16 May 2025 Catchwords: FAMILY LAW – PARENTING – Where parents have an acrimonious relationship and poor communication – Where children have been exposed to parental conflict – Where the Mother was self-represented and had filed no updating material following a mental health hospital admission – Where the Mother's mental health is a significant and ongoing issue – Where the Mother has at times lacked insight into the needs of the children and the impact of her mental health upon the children and her parenting capacity – Where the Mother’s mental health places the children at risk of emotional and psychological harm if they remain in her primary care – Where the Mother indicated a willingness to take steps to address her mental health – Where Father has good parenting capacity and children have been in a shared care arrangement – Where orders made granting the Father sole parental responsibility and sole decision making for major long-term issues – Where orders made for children to live primarily with the Father– Where change of residence to be effected immediately – Where orders made for the children’s extended holiday time with the Mother to commence upon a psychiatrist completing a mental health assessment and report and the completion of parenting courses – Where restraints placed on both parents and certain restraints placed on the Mother in particular Legislation: Australian Passports Act 2005 (Cth) ss 6, 11
Family Law Act 1975 (Cth) ss 60CC, 60CG, 65Y
Cases cited: Lainhart & Ellinson (2023) FLC 94-166; (2023) Fam LR 87; [2023] FedCFamC1A 200 Division: Division 1 First Instance Number of paragraphs: 117 Date of last submission/s: 27 April 2025 Date of hearing: 7-11 April 2025 Place: Sydney Counsel for the Applicant: Ms Spain Solicitor for the Applicant: Super & Super Lawyers Solicitor for the Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Ms Shepherd, NLS Law ORDERS
SYC 337 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JENKINS
Applicant
AND: MS JENKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BEHRENS J
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
Prior orders
1.All previous parenting orders are discharged. Order 8 of the orders made 25 November 2024 remains in force.
Parental Responsibility
2.The Father has sole parental responsibility and sole decision making in respect of all major long-term issues for X (“X”) born 2015 and Y (“Y”) born 2019 (collectively referred to as “the children”).
3.The Father will, except in the case of any emergency:
(a)Advise the Mother in writing of his intention to make any major long-term decision in respect of the children or either of them at least seven days prior to giving effect to the decision;
(b)Advise the Mother in writing of the decision as soon as reasonably practicable after the making of the decision.
4.In…
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CaseChat Overview and Summary
The court found that the children had been exposed to significant parental conflict, which was adversely affecting their wellbeing. The mother's mental health issues, including a lack of insight into how these issues impacted her parenting and the children, posed a risk of emotional and psychological harm to the children if they remained in her primary care. The expert evidence from Dr. C, a clinical psychologist, recommended that the children should live primarily with the father, who demonstrated good parenting capacity, and that the father should have sole decision-making responsibility for major long-term issues. The court accepted this recommendation and ordered that the children would live with the father immediately, with specific conditions placed on the mother's time with the children to mitigate the risks associated with her mental health.
The court's orders included provisions for the mother to undertake a mental health assessment and complete parenting courses before her extended time with the children could commence. The orders also detailed specific arrangements for the children's time with each parent, including during school terms, holidays, and special occasions. Restraints were placed on both parents to prevent them from engaging in behaviours that could harm the children or expose them to further conflict. The court also made orders concerning communication between the parents and the children, extra-curricular activities, medical care, and international travel. The father was granted sole parental responsibility and sole decision-making for major long-term issues, and the mother was required to take specific steps to address her mental health and parenting capacity before her time with the children could be extended.
Orders
Orders of the court
SYC 337 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR JENKINS
Applicant
AND:
MS JENKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BEHRENS J
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
Prior orders
1. All previous parenting orders are discharged. Order 8 of the orders made 25 November 2024 remains in force.
Parental Responsibility
2. The Father has sole parental responsibility and sole decision making in respect of all major long-term issues for X (“X”) born 2015 and Y (“Y”) born 2019 (collectively referred to as “the children”).
3. The Father will, except in the case of any emergency:
(a) Advise the Mother in writing of his intention to make any major long-term decision in respect of the children or either of them at least seven days prior to giving effect to the decision;
(b) Advise the Mother in writing of the decision as soon as reasonably practicable after the making of the decision.
4. In the case of any emergency the Father is to advise the Mother of any major long-term decision made by him as soon as reasonably practicable.
Live With
5. The children will live with the Father.
Changeover on Friday 16 May 2025
6. Changeover will be effected by the Father collecting the children from B School at the conclusion of the school day on Friday 16 May 2025.
7. The Mother is restrained from attending B School on 16 May 2025.
Spend Time arrangements
8. The children will spend time with the Mother as follows:
(a) During NSW school terms and each alternate week from after school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Monday, commencing on the first Thursday after the making of these orders.
(b) Until the Mother complies with Order 9, during the NSW school holidays in accordance with Order 8(a).
(c) Provided the Mother has complied with Order 9, during the end of term 1, 2 and 3 NSW school holidays, for nights 1-7 in these holidays with the first night being the last day of the school term preceding the holiday and with that time to commence from the conclusion of school or 3.00 pm and conclude at 3.00 pm on the last day of the 7 night period.
(d) Provided the Mother has complied with Order 9, during the end of term 4 holidays as follows:
(i) during the holidays at the end of 2025, 2026 and 2027 for nights 1-10 and 21-30 of these holidays, with time to commence at 3.00 pm on the first day and cease at 3.00 pm on the last day of each period, with the first night being the last day of term 4 and time on that day to commence from the conclusion of school or 3.00 pm.
(ii) during the end of term 4 holidays at the end of 2028 and thereafter, for nights 1-21 of these holidays, with the first night being the last day of term 4 and time on that day to commence from the conclusion of school or 3.00 pm and ending at 3.00 pm on the last day.
Treatment and Parenting Programs for the Mother
9. For the Mother’s time with the children in accordance with Orders 8(c)-(d) to commence, the Mother is to do the following acts and things:
(a) Attend upon a psychiatrist and undertake an assessment of her mental health that provides for the following:
(i) An assessment of the Mother’s mental health, any diagnoses and how these impact on her functioning.
(ii) An assessment of whether the Mother’s mental health is currently managed, what the Mother’s mental health triggers are, the Mother’s understanding of her triggers, and her ability to manage them.
(iii) The Mother’s insight into her mental health issues and capacity to address identified concerns.
(iv) Recommendations regarding any supports, services, therapeutic interventions, medications, and/or psychological/psychiatric treatment for the Mother.
(b) Provide to the psychiatrist:
(i) a copy of the Expert Reports of Dr C dated 1 October 2021, 30 January 2023 and 4 April 2025;
(ii) a copy of these Orders;
(iii) a copy of the Reasons for Judgment of Justice Behrens.
(c) Instruct and authorise the psychiatrist upon whom she attends for the purposes of the assessment to prepare a report addressing the matters in paragraph (a).
(d) Provide a copy of the report to the Father and the Father is restrained from providing a copy of the report or showing it to any person other than legal practitioners and mental health professionals who are advising him.
(e) Enrol in, undertake in a face-to-face setting, and complete a parenting after separation course with D Family Services or a Course with E Family Services and provide the Father with a copy of the certificate of completion.
(f) Complete the parenting course Tuning into Kids or the course Circle of Security.
Resumption of School Term Time
10. Following the commencement of time under Orders 8(c)-(d), the Mother’s time under Order 8(a) will recommence on the first Thursday of each school term
Special Occasions
11. Notwithstanding anything to the contrary in these Orders, the children will spend time with their parents on special occasions as follows:
(a) Unless the children are otherwise spending time with the Mother pursuant to these orders on the Mother’s Day weekend, they will spend time with the Mother on the Mother’s Day weekend in accordance with time with the children pursuant to Order 8(a) above.
(b) Unless the children are otherwise living with the Father pursuant to these orders, on the Father’s Day weekend they will continue to live with the Father on the Father’s Day weekend and will spend time with the Mother on the weekend prior to Father’s Day in accordance with time with the children pursuant to Order 8(a) above.
(c) The children will spend time with each parent on each of the children’s birthdays as agreed in writing and failing agreement, the children spend time with the parent that they are not otherwise living with on that day:
(i) if on a school day, from after school to the commencement of school the following morning (or 10.00 am if not a school day the following morning);
(ii) if not on a school day, then from 2.00 pm on the birthday to at school or 10.00 am on the following morning if it is not a school day.
(d) The children will spend time with the Father on the Father’s birthday as agreed in writing and failing agreement:
(i) if on a school day, from after school to the commencement of school the following morning (or 10.00 am if not a school day the following morning);
(ii) if not on a school day, then from 2.00 pm on the birthday to at school or 10.00 am on the following morning if it is not a school day.
(e) The children will spend time with the Mother on the Mother’s birthday in 2026, 2027 and 2028 as agreed in writing and failing agreement from 2.00 pm on her birthday until 10.00 am on the following morning and by video call from 2029 onwards AND the Court notes from 2029 onwards the children are to be with the Father for the second half of each term 4 holiday and will not spend time other than by video call with the Mother on her birthday if it coincides with that time.
(f) When Easter falls during the school term, the children will spend time with each parent for Easter as agreed in writing and failing agreement from after school or 3.00 pm if not a school day the day before Good Friday to 4.00 pm Easter Monday with the Mother in odd-numbered years and the Father in even- numbered years.
(g) When Easter and/or the first night of the Father’s religious holiday falls during the school holiday period, the school holiday order will take precedence and apply.
(h) When Easter and the first night of the Father’s religious holiday fall during the school term and clash, in odd-numbered years Easter will prevail and Order 11(f) will apply and in even numbered years the first night of the Father’s religious holiday will prevail and Order 11(k) will apply.
(i) If a child’s birthday and Father’s Day clash, the children will spend time with the Mother from 4.00 pm the day prior to Father’s Day and until 12.00 pm on Father’s Day.
(j) The children will spend time with each parent for Christmas in December 2025, 2026 and 2027 and any year after that if the Mother has not complied with Order 9 as agreed in writing and failing agreement:
(i) From 3.00 pm on 23 December to 3.00 pm Christmas Day with the mother in odd-numbered years and the Father in even-numbered years; and
(ii) From 3.00 pm Christmas Day to 3.00 pm am 27 December with the mother in even-numbered years and the Father in odd-numbered years.
(iii) From 2028 with the Father by video call.
AND the Court notes that from December 2028 subject to the Mother’s compliance with Order 9 the children are to spend time with her for the first 21 nights of each term 4 holiday and the children will not have time other than by video call with the Father at Christmas.
(k) When first night of the Father’s religious holiday falls during the school term, the children will spend time with the Father for the religious holiday each year from after school (or from 3.00 pm if a not on a school day) on the first night of the religious holiday until the commencement of school (or 10.00 am if not a school day) the following morning.
(l) The children will spend time with the Father for a religious celebration (New Year) each year from after school (or from 3.00 pm if a not on a school day) on the first night of the religious celebration until the commencement of school (or 10.00 am if not a school day) the following morning.
(m) The children will spend time with the father for a religious holy day each year from after school (or from 3.00 pm if a not on a school day) on the eve of the religious holy day until the commencement of school (or 10.00 am if not a school day) the morning after the religious holy day concludes.
Changeover
12. Unless otherwise agreed by the parents in writing or otherwise specified in these Orders changeover will take place:
(a) At the children’s schools on school days at the commencement or conclusion of the children’s school day (whichever is applicable).
(b) On school holidays, non-school days, special occasions or where the children do not attend school with the parent who has care of the children returning the children to the other parent at McDonalds Suburb F (G Street, Suburb H NSW) at the conclusion of the children’s time with them unless otherwise mutually agreed in writing;
13. Both parents are at liberty to have a person other than themselves collect the children at changeover provided that any such person is known to the children and the parent having someone other than themselves attend the particular changeover informs the other parent prior to the changeover, of the name and contact phone number of the person who will attend at changeover on that parent’s behalf.
Communication with children
14. Unless otherwise agreed in writing, both parents are at liberty to contact the children by video call on either Google App or WhatsApp (or by other electronic means as nominated by the Father in writing if those apps are no longer available) when they are in the other parent’s care, on a Wednesday and Friday with the parent with whom they are spending time with to initiate and facilitate a video call between 6.30 pm and 7.00 pm.
15. For the purposes of the children’s communication their parents, both parents will ensure they respect the children’s privacy when speaking with the other parent and not attempt to listen to, record or otherwise interfere with the children’s conversations.
16. Both parents will otherwise facilitate the children contacting the other parent at any reasonable time should the children request it.
Communication between parents
17. Save for in emergency situations (when the parents will communicate via phone, WhatsApp and text message) the parents will communicate with one another regarding the children via the Our Family Wizard Parenting App or APP Close, whichever is nominated by the Father.
18. The Father will set up and pay for the Our Family Wizard Parenting App or APP Close for both parents if there is a fee associated.
Change of Contact Details
19. Both parents will keep each other informed of their respective telephone numbers and notify each other immediately of any change to those contact details.
20. Both parents will keep the other informed of their current residential address and in the event that one parent intends to move, provide the other parent with 28 days’ prior notice of their change of address.
Restraints
21. Both parents are restrained from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating each other or any other member of the household in presence or hearing of the children, or from permitting any other person to do so;
(b) discussing any issues in relation to any court proceedings to, with or in presence or hearing of the children and/or showing the children any documents relating to the family law proceedings;
(c) physically disciplining or threatening physical discipline of any of the children and exposing the children to any violence;
(d) attending an extra-curricular activity for the children or one of them that occurs in the children’s time with the other parent without the written consent of that other parent.
22. The Mother is restrained from:
(a) except as otherwise provided by these orders or with written consent from the Father, removing the children from the Father’s care, school or extra-curricular activity;
(b) enrolling the children in activities that require the children’s repeated attendance after school or on weekends without written consent of the Father;
(c) taking the children to any psychologist or counsellor without the written consent of the Father;
(d) unless the Father gives his written consent prior to any medical/health appointment, the Mother is restrained from attending medical/health appointments at the same time as, immediately before, or immediately after the children’s appointments, save for in an emergency or for an appointment with a general practitioner during the children’s time with her.
Education
23. The Father will ensure that the children will each attend B School until their completion of year 6 unless otherwise agreed in writing by the parents.
24. Both parents are entitled to attend all school events, school concerts, school sporting events, speech days, school functions, separate parent teacher interviews that allow for parental attendance or participation involving the children, whether or not these events occur during the time the children are with the parent pursuant to these orders.
25. Both parents are permitted to liaise directly with the children’s schools to obtain any information about the children’s progress at school, or information about events, or to arrange for the sending, to each of the parents, newsletters, school photos and academic report cards, and any other correspondence provided to parents directly from the school, and these Orders will be sufficient authority to authorise the release of such information to the parents.
Extra-Curricular Activities
26. The Father is to advise the Mother of any extra-curricular activities that the children are enrolled in through the parenting app.
27. The Father is to ensure that neither of the children is enrolled in more than one extra-curricular activity which occurs during the time when the children are with the Mother unless otherwise agreed.
28. The Mother will take all reasonable steps to ensure the child/children attend any extra- curricular activity in which the child/children are enrolled when the child/children are in her care during the school terms, including by providing the Father with the opportunity to take the child/children if necessary.
Medical Emergency
29. In the event of a child being admitted to hospital for emergency treatment, receiving treatment by an ambulance crew, or being taken to a hospital for urgent treatment following any accident, injury or sudden illness, the parent in whose care the child is at the time will as soon as practicable, by the best means available, notify the other parent of the following details:
(a) the name and contact details of the hospital and whether there was an admission;
(b) any treatment and/or medication prescribed for or provided to the child/children and the reasons for the same; and
(c) the prescribing or provision of such medication and/or treatment.
30. These orders act as an authority for any treating medical practitioner/health care provider associated with the children to release and provide both parents with information about the children.
31. The authority provided in Order 30 does not require any mental health professional who is treating the child to release and provide both parents with information about the children if that professional is of the view that it is not appropriate to do so.
Religion
32. The Father is at liberty to expose the children to teachings of his faith and the Mother is at liberty to expose the children to teachings of the Christian faith.
33. Notwithstanding any order to the contrary, on the weekend that each of the children are to have their religious ceremony, the children’s time with the Mother is suspended to the extent necessary to enable the children to spend time with the Father from after school or 3.00 pm on the Wednesday preceding the religious ceremony to the commencement of school or 10.00 am on the Monday following the religious ceremony.
Health
34. Except in the case of an emergency, the parents will ensure that when the children or either of them need to attend upon a general practitioner, they attend upon Dr J or if he is unavailable another general practitioner at K Health Service or other medical practice nominated by the Father in writing to the Mother.
35. Except in the case of an emergency, when the children or either of them need to attend upon a dentist, they shall attend upon such dental practice nominated by the Father in writing to the Mother.
36. Both parents will ensure that the child/ren is/are administered prescribed medication according to the script/label and will follow the directions of the relevant medical practitioner.
Passports
37. Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the children X (“X”) born 2015 and Y (“Y”) born in 2019 be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document” as defined by s 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally.
38. The Father is entitled to apply for an Australian travel document without the written consent of the Mother.
39. Any requirement for the signature or consent of the Mother is dispensed with and the Father is at liberty to do all acts and sign all documents necessary and have such authority as is necessary, pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) to procure a valid Australian travel document for the children without the signature or consent of the Mother, including that the Father is authorised to sign all documents on behalf of the Mother.
40. The children’s Australian travel documents will be held by the Father unless the children are travelling with the Mother pursuant to these Orders.
Overseas Travel
41. Pursuant to s 65Y of the Family Law Act 1975 (Cth), both parents are permitted to travel outside the Commonwealth of Australia with the children.
42. Both parents be permitted to travel overseas for a holiday with the children when the children are spending time with them pursuant to these orders on the following terms and conditions:
(a) The travelling parent will provide not less than 28 days’ written notice to the non-travelling parent as to the travel;
(b) The Mother must have complied with Order 9 prior to travelling overseas with the children;
(c) No fewer than 14 days prior to the travel, the travelling parent will provide to the non-travelling parent a travel itinerary including the address where the children will be staying for the duration of the holiday, the flight number(s) and the airline(s) the children will be travelling with, a copy of the children’s travel insurance, copies of the children’s return airfare and emergency contact numbers;
(d) The children have had all immunisations as recommended by the general practitioner prior to such travel;
(e) The travel take place provided that there are no Australian government directives/restrictions preventing or advising against the travel;
(f) The travelling parent shall ensure the children communicate with the non- travelling parent on Monday and Wednesday by video call.
43. In the event the Mother is the travelling parent, upon provision of the information required in the above order, the Father shall release the children’s passports to the Mother not less than seven days prior to the travel and the Mother shall return the passports to the Father within 48 hours of her return.
Provision of Documents
44. Leave is granted to the parents and their legal representatives to provide a copy of these orders to:
(a) the children’s schools;
(b) the children’s before/after school care providers;
(c) the children’s treating health practitioners.
45. Leave is granted to the Mother to provide a copy of the Expert Reports of Dr C dated 1 October 2021, 30 January 2023 and 4 April 2025 and these Reasons to:
(a) Any mental health professional who is treating her;
(b) The Mother’s general practitioner.
Costs
46. Subject to any successful application which either may make to Legal Aid New South Wales based on financial hardship, and in such timeframe as they are able to negotiate with Legal Aid New South Wales, the parents will pay one half each of the costs of the Independent Children’s Lawyer.
47. The parents are to pay the costs of Dr C’s updating report and the costs of him attending for cross-examination in equal shares.
THE COURT NOTES THAT:
A. The Father intends to continue to cause X to attend upon Ms N.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The animosity which Ms Jenkins has towards Ms Jenkins is impacting the children. Dr C opined that: “[o]f particular concern is the feedback from the oldest child, [X], who spoke of vomiting as a result of the stress attached to his parents being in the same room, and which occurred at a recent GP appointment”. Dr C described this as “in my experience, an extraordinary position for a child to be in, and speaks to an experience that I fear would worsen if things remain as they are in terms of parental conflict”. In relation to Y, while he “currently appears less affected by the acrimonious state of the parental relationship” and “does not appear to be exhibiting many unexpected emotional difficulties overall”, “[n]o argument can be made at this stage that problems would not develop in this domain in the event the nature of the parental relationship remains as it is”.APPLICATION OF THE “BEST INTERESTS” CONSIDERATIONS When making parenting orders, X’s and Y’s best interests are the paramount consideration. In working out what is in their best interests, I am required to have regard to the matters in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). As neither X nor Y are Aboriginal or Torres Strait Islander children, the matters that apply only to such children are not extracted below. 60CC How a court determines what is in a child’s best interests Determining child’s best interests (1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:(a) consider the matters set out in subsection (2); and (b) …General considerations (2) For the purposes of paragraph (1)(a), the court must consider the following matters:(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);(b) any views expressed by the child;(c) the developmental, psychological, emotional and cultural needs of the child;(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;(f) anything else that is relevant to the particular circumstances of the child.(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and (b) any family violence order that applies or has applied to the child or a member of the child’s family.I am also required to apply s 60CG of the Act which provides:(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:(a) is consistent with any family violence order; and(b) does not expose a person to an unacceptable risk of family violence.(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order. Safety