Jesson & Garrick
[2025] FedCFamC1F 6
•15 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jesson & Garrick [2025] FedCFamC1F 6
File number(s): BRC 9687 of 2020 Judgment of: GILL J Date of judgment: 15 January 2025 Catchwords: FAMILY LAW – PARENTING – Consent terms – Neglect and sexual abuse risk – Where there is an unacceptable risk in any contact occurring between the children and the father – Where previous consent terms provide for the children to live with the mother with an injunction for no contact with the father – Where the parties have agreed to further consent terms that provide for time with the paternal grandmother – Consent terms include restraints from bringing the children into contact with other individuals considered to be a risk – Consent terms preserve a relationship with the paternal family which is otherwise not available – Consent terms supportive of the children’s best interests Legislation: Family Law Act 1975 (Cth) s 65DAAA Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 13-15 January 2025 Place: Newcastle Counsel for the Applicant: Mr S Priestley Solicitor for the Applicant: McVittie Legal Counsel for the First Respondent: Mr Iuliano Solicitor for the First Respondent: Greenlight Law Solicitor for the Second Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Mr Taylor Solicitor for the Independent Children's Lawyer: Grace Family Law Solicitors ORDERS
BRC 9687 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JESSON
Applicant
AND: MR GARRICK
First Respondent
MS LOMIDZE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
15 JANUARY 2025
THE COURT ORDERS, BY CONSENT, THAT:
Time and communication
1.The children spend time with the paternal grandmother as agreed between the mother and paternal grandmother but failing agreement:
(a)On 25 and 26 January 2025 from 10am to 5pm each day, with time to occur in a public location in the City G area.
(b)Commencing 1 March 2025 on the first weekend of each month, except September when time will occur on the second weekend, from 10am until 3pm on Saturday and 10am until 3pm on Sunday, with such time to occur in a public location in the City G area.
2.The children have phone/video communication with the paternal grandmother on the third Saturday of each month, between 7pm and 7.30pm (NSW time), with the children to be afforded privacy for the calls.
3.Pursuant to s 68B of the Family Law Act, for the personal protection of the children the paternal grandmother is restrained from:
(a)Allowing the children to spend any time or have any communication with the father.
(b)Allowing the father to be present during her time or communication with the children.
Restraints and requirements
4.The mother and paternal grandmother shall not expose the children to family violence and shall remove the children from any situation where family violence is occurring.
5.Pursuant to s 68B of the Family Law Act, for the personal protection of the children, the parties are restrained from allowing the children to have any contact or communication with Mr S, Mr T and Ms K.
6.The parties are to ensure that either the mother or paternal grandmother is present during any time the children spend with Ms U.
IT IS FURTHER ORDERED, BY CONSENT IN CHAMBERS:
7.The Digital Video Evidence in Chief recordings produced subpoena from New South Wales Police, contained in court subpoena bundles S36 and S38, are to be destroyed after 28 days from the date of this order.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
Those proceedings concern the parenting arrangements for X, who is about five years old and Y, who is not yet seven years old. They are the children of Ms Jesson and Mr Garrick. The paternal grandmother, Ms Lomidze, has been joined the proceedings and seeks orders that she spend time with the children.
Prominent amongst the issues in the material filed by the parties was the issue as to whether or not the father poses an acceptable risk of harm to the children. This issue arose in two ways. The first was on material presented by the Department of Communities and Justice which was suggestive that when the father struggles with his mental health, issues of potential neglect of the children arise when they are in his care. More significantly, there is evidence of two sets of purported descriptions by X indicative of a potential sexual abuse risk by the father. The assertions made by X are sufficient to support a conclusion that there is an unacceptable risk in any contact taking place between the children and the father, either as a risk of sexual abuse, or even if arrangements were to protect against such a direct risk, then a risk of traumatisation on exposure to the father. Consistent with these matters the parties together presented consent terms on day one of the trial that the children live with the mother, that she exercises sole parental responsibility, along with an injunction that there be no contact whatsoever with the father. Those orders were then made with reasons reserved until today.
It should be recognised that previous final orders have be made in these proceedings meaning for reconsideration to take place s 65DAAA of the Family Law Act 1975 has effect. In this case the above matters constitute a change of circumstances which raising, as it does, the safety of the children means reconsideration is in their best interests. Those same matters indicate that the consent orders are in the children’s best interests as the arrangements promote the safety of the children and best provide for their needs to be met in the primary care of the mother. Those consent terms handed up on day one did not finalise the proceedings, which will now be finalised following the making of further consent terms proffered by the parties which I mark as exhibit C2.
Those terms provide for a relationship between the children and the paternal grandmother by means of a structured arrangement for time with the paternal grandmother. Those orders are subject to injunctions not to bring the children into contact with the father and provide for circumstances of the children spending time of the paternal grandmother that limit the possibility of that occurring.
The further consent terms also provide for injunctions from the children being bought into contact with Mr S, the mother’s grandfather, and Mr T, the paternal grandfather, both of whom are child sex offenders.
The orders also restrain the parties from bringing the children into contact with a Ms K, who is the mother’s former stepmother. Such a restraint is appropriate in the circumstances of this case. There is a prior allegation that the mother perpetrated physical violence on Ms K, although she was acquitted of that in the criminal courts. More important perhaps is Ms K’s overt hostility towards the mother, exposure to which carries with it a risk of psychological harm to the children, and hence the restraint from bringing the children into contact with Ms K is appropriate.
Further, there is a restraint such that the paternal grandmother or the mother is to be present during time that the children spend with Ms U. Ms U is the paternal great aunt who has provided significant support to the children in the past, the particular restraint that has been articulated by the parties relates to Ms U’s ongoing relationship with Mr T who is her brother. The arrangement under the orders is undoubtably to ensure that there can be no scope for the children being brought into any form of contact with Mr T.
Having considered the family report prepared most recently in these proceedings such an arrangement such as to foster a relationship with the paternal grandmother is in the children’s best interests as it preserves a relationship with the paternal family that is not otherwise available. In coming to this conclusion, it has been necessary to weigh into effect the hostility that is present between the paternal grandmother and the mother. This hostility and lack of cooperation between the mother and the paternal grandmother does have the capacity of undermining those arrangements. It might be thought that if the children are exposed to ongoing conflict, and in particular to criticism of the mother by the paternal grandmother, that that will undermine the benefits that they might have in the relationship with the paternal grandmother. However, on balance, on the basis that the parties have entered into these consent terms it is appropriate to make them as supportive of the children’s best interests.
I make orders in accordance with exhibit C2.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 23 January 2025
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