Jerrim & Palmar

Case [2021] FCCA 1561

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jerrim & Palmar [2021] FCCA 1561

File number(s): BRC 11114 of 2018
Judgment of: JUDGE MIDDLETON
Date of judgment: 9 July 2021
Catchwords: FAMILY LAW – parenting – where there are five children of the relationship – whether the mother should have sole parental responsibility – whether the father poses an unacceptable risk to the children – the amount of time the children spend with the father
Legislation:

Family Law Act 1975 (Cth) pt VII, ss 60B, 60CC, 60CG, 61DA

Evidence Act 1995 (Cth) ss 140
Cases cited:

Harridge & Harridge [2010] FamCA 445

Mazorski v Albright [2007] FamCA 520

McCall v Clark [2009] FamCAFC 92

T & N (2003) FLC 93-172
Number of paragraphs: 163
Date of last submission/s: 17 June 2021
Date of hearing: 16 & 17 June 2021
Place: Brisbane
Counsel for the Applicant: Mr Amerena
Solicitor for the Applicant: Shanahan Family Law
Counsel for the Respondent: Mr McGregor
Solicitor for the Respondent: Life Law Solutions
Counsel for the Independent Children's Lawyer: Ms Christie
Solicitor for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

BRC 11114 of 2018
BETWEEN:

MR JERRIM

Applicant
AND:

MS PALMAR

Respondent

ORDER MADE BY:

JUDGE MIDDLETON

DATE OF ORDER:

9 JULY 2021

THE COURT ORDERS ON A FINAL BASIS:

1.That the mother have sole parental responsibility for the children namely V, born in 2013, W, born in 2014, X, born in 2015, Y, born in 2015 and Z, born in 2016 (“the children”).

2.Notwithstanding the provisions of Order 1 above;

(a)The Mother shall be responsible for the day to day care, welfare and development of the child at all times when the child is living or spending time with her;

(b)The Father shall be responsible for the day to day care, welfare and development of the child at all times when the child is living or spending time with him.

3.That the children live with the Mother.

4.That the children spend time with the Father in accordance with the below:

(a)The first Saturday in each month of January, March, May, July, September and November each year for a period of (2) hours at such times as can be arranged and supervised at the Region B Family Contact Centre .

5.The children communicate via telephone or video call with the Father each week on Saturday at 9.00am or any other time they express a wish to do so.

6.The Mother is to ensure the children are available to answer the telephone call from the father.

7.The father be a liberty to send cards and gifts to the children on their birthdays and on special occasions during Christmas and Easter.

8.The Mother and Father shall communicate by email in relation to parenting arrangements for the children, unless in the event of an emergency.

(a)Emergency for the purposes of this order is considered to be an event where one or more of the children require urgent medical attention.

9.The Mother and the Father are to do all acts necessary and…

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Jerrim & Palmar [2021] FCCA 1561
Case
[2021] FCCA 1561
Decision Date

CaseChat Overview and Summary

In BRC 11114 of 2018, Middleton J of the Federal Circuit and Family Court of Australia made orders concerning the parental responsibility and time arrangements for five children. The dispute was between the father (applicant) and the mother (respondent), with the father alleging the mother actively hindered his relationship with the children and denigrated him in their presence. The mother’s immigration status and periods of absence from Australia were also raised as factual background by the father.

The court was required to determine the issue of parental responsibility, specifically whether the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) applied, and if not, what orders were in the children's best interests. The court also had to consider the practical arrangements for the children's time with each parent, including the nature and supervision of that time, and the communication between the parents.

Middleton J determined that the presumption of equal shared parental responsibility did not apply in this case. The court's reasoning focused on the best interests of the children, considering the evidence presented by both parties. The father's allegations of the mother's interference and denigration, and the mother's alleged difficulties in facilitating the father's relationship with the children, weighed heavily in the decision. The court ultimately ordered that the mother have sole parental responsibility for the children, with specific provisions for the day-to-day care and welfare of the children when they were with each parent.

The final orders stipulated that the children live with the mother and spend limited, supervised time with the father on the first Saturday of certain months for two hours at a contact centre. The children were also to communicate with the father weekly via telephone or video call. The orders further directed the parents to communicate by email regarding parenting arrangements, prohibited denigration of each other in the children's presence, and required them to share equally in the costs associated with the supervised contact centre.

Orders

Orders of the court

BRC 11114 of 2018

BETWEEN:

MR JERRIM

Applicant

AND:

MS PALMAR

Respondent

ORDER MADE BY:

JUDGE MIDDLETON

DATE OF ORDER:

9 JULY 2021

THE COURT ORDERS ON A FINAL BASIS:

1. That the mother have sole parental responsibility for the children namely V, born in 2013, W, born in 2014, X, born in 2015, Y, born in 2015 and Z, born in 2016 (“the children”).

2. Notwithstanding the provisions of Order 1 above;

(a) The Mother shall be responsible for the day to day care, welfare and development of the child at all times when the child is living or spending time with her;

(b) The Father shall be responsible for the day to day care, welfare and development of the child at all times when the child is living or spending time with him.

3. That the children live with the Mother.

4. That the children spend time with the Father in accordance with the below:

(a) The first Saturday in each month of January, March, May, July, September and November each year for a period of (2) hours at such times as can be arranged and supervised at the Region B Family Contact Centre .

5. The children communicate via telephone or video call with the Father each week on Saturday at 9.00am or any other time they express a wish to do so.

6. The Mother is to ensure the children are available to answer the telephone call from the father.

7. The father be a liberty to send cards and gifts to the children on their birthdays and on special occasions during Christmas and Easter.

8. The Mother and Father shall communicate by email in relation to parenting arrangements for the children, unless in the event of an emergency.

(a) Emergency for the purposes of this order is considered to be an event where one or more of the children require urgent medical attention.

9. The Mother and the Father are to do all acts necessary and sign all documentation to enrol the children in the Region B Family Contact Centre as soon as possible.

10. The Mother and Father will share equally in the fees associated with attending at Region B Family Contact Centre.

11. The Mother and Father shall not denigrate each other to or in the presence of the children.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As parental responsibility is in issue between the parties I must consider the provisions of section 61DA and make a determination as to whether the presumption applies and if it does not whether it would otherwise be in the best interests of these children for their parents to have an order for equal shared parental responsibility.THE EVIDENCEThe Father It is the father’s case that the mother is unable to effectively facilitate a relationship between the children and him. He says that this has caused him a great deal of heartache. His evidence is that he was often the primary carer for the children prior to separation. He says that following separation he found it difficult to engage with the children and believes this is as a result of the mother’s refusal to facilitate a relationship between the children and him. He says the mother makes it difficult to arrange supervisors and he believes the mother has continued to denigrate him to the children. The father’s evidence is that the mother came to Australia in early 2014 on a temporary Visa and that as a result there was a requirement for her to return of the Country C for periods of time. His evidence is that she would go to the Country C for several months at a time. (Paragraph 19 of the father’s trial affidavit). The father also provides evidence that he believed the mother was engaging in prostitution when she returned to the Country C. The father believes that the mother used him simply as a “sperm donor” and that she further used him in order to obtain permanent residency in Australia. The father gives evidence that the mother obtained permanent residency in 2015 and that from that time she was no longer required to return to the Country C every three months. He says that the intimate relationship ceased in 2016 shortly after the mother became pregnant with Z (the youngest child). The father alleges that the mother was aggressive and threatening towards him and that she deliberately started engaging with neighbours in an attempt to “engage them as witnesses to leave me in a premeditated manner.” A parenting plan was entered into on 7 August 2018 and eventually a person by the name of Mr F became the agreed supervisor for all visits between the father and the children. Unfortunately Mr F passed away and was no longer available for supervision. The father says that thereafter his supervised visits became difficult as the mother would often refuse to accept an alternative supervisor. The father has completed a triple P parenting course. (Paragraph 42 of the father’s trial affidavit). The father attempted to enrolment in choosing change program however the program did not accept him. The father says that he generally spends time with the children at the G Park and on occasions attends the H Park with them. His evidence is that his time with the children is fantastic and that there are very little issues. The father acknowledges that on occasions the children can be standoffish but it is his view that this is due to the mother continuing to denigrate him in the presence of the children.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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