Jets & Maker (No 2)

Case [2011] FMCAfam 1473


FEDERAL MAGISTRATES COURT OF AUSTRALIA

JETS & MAKER (No.2) [2011] FMCAfam 1473

FAMILY LAW – Five year old child – where child has lived with mother for whole of his life – relevance and effect of status quo – quality of status quo – where mother alleges father has physically and sexually abused child – where mother has unilaterally stopped spend time arrangements on many occasions following such allegations – consideration of evidence in relation to allegations of physical and sexual abuse – where mother was not a credible witness and father was a credible witness – where evidence reveals mother is immature and lacking in insight – where mother is relentlessly critical of father – where mother is prone to exaggeration and "catastrophisation" – where father abused drugs and alcohol and mistreated mother early in relationship – where father has matured but mother has not – where expert evidence does not support a conclusion to the effect that child has been physically or sexually abused – where mother is a permissive and indulgent parent – where child behaves very differently with mother than with father – conclusion to the effect that father has not abused child – no unacceptable risk of abuse when child is with father but unacceptable risk of psychological or emotional abuse if child remains with mother – mother unwilling or unable to allow child to have a meaningful relationship with father – where only way to ensure child will have a meaningful relationship with both parents is to place child with father – where mother cannot be relied upon to facilitate or encourage relationship between child and father – decision to place child with father.

FAMILY LAW – Parental responsibility – where mother insists parties cannot communicate – where mother cannot believe that parties can ever communicate – where mother unilaterally enrols child in school notwithstanding pre-existing order for equal shared parental responsibility – order for sole parental responsibility made in father's favour.

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules2001
Federal Magistrates Court Regulations

A v A: Relocation Approach (2000) 26 Fam LR 382

Carpenter and Lunn (2008) FamCAFC 128
Champness & Hanson (2009) FamCAFC 96
Chappell (2008) FamCAFC 143
Dearman (1908) 7 CLR 549
Goode (2006) FLC 93-286
Hungerford & Tank (2007) FamCA 637
M & S (2006) FamCA 1408
Marsden & Winch (No.3) (2007) FamCA 1364
McCall & Clark (2009) FLC 93-405
McLeay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
MRR v GR (2010) FLC 93-424
Pender & Haywood [2007] FamCA 1526
Pender & Haywood [2007] FamCA 152656
Re Andrew (1996) FLC 92-692
Re: G: Children’s Schooling (2000) 26 FamLR 143
Rossi (1980) 6 Fam LR 148
Russell & Close (unreported, Full Court, 25 June, 1993)
Sealey & Archer [2008] FamCAFC 142
Taylor & Barker (2007) FamCA 1246

Applicant: MS JETS
Respondent: MR MAKER
File Number: MLC 493 of 2009
Judgment of: Walters FM
Hearing dates:

2 February 2011 – 4 February 2011

21 March 2011…

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AGLC
Jets & Maker (No 2) [2011] FMCAfam 1473
Case
[2011] FMCAfam 1473
Decision Date

CaseChat Overview and Summary

In the case of Jets & Maker (No 2), the Family Court was tasked with determining the best living arrangement for a five-year-old child, [X], who had lived with his mother throughout his life. The mother alleged that the father had physically and sexually abused the child, leading her to stop the child's spending time arrangements with the father on multiple occasions. The court was required to weigh the credibility of the mother's and father's testimonies, consider the mother's past allegations of abuse, and determine whether there was an unacceptable risk of abuse if the child remained with either parent.

The court found the mother's testimony to be lacking in credibility and her character to be immature, lacking insight, prone to exaggeration, and "catastrophisation." The evidence presented did not support the conclusion that the child had been physically or sexually abused. The court observed that the child exhibited different behaviour with each parent, with the mother being permissive and indulgent. The court concluded that there was no unacceptable risk of abuse when the child was with the father, but there was an unacceptable risk of psychological or emotional abuse if the child remained with the mother. The mother was unwilling or unable to allow the child to have a meaningful relationship with the father. The court determined that the only way to ensure the child would have a meaningful relationship with both parents was to place the child with the father.

The court ordered that the child live with the father, granting the father sole parental responsibility. The mother was restrained from contacting the child's childcare centre and attending the centre for fourteen days. The court also ordered specific time arrangements for the child to spend with the mother, including periods of no contact, and mandated that the father provide the mother with school and medical information. Both parents were directed to attend a post-separation parenting program. The father was also required to attend a counsellor or psychologist for his alcohol use.

The court emphasised the importance of the child's relationship with both parents and the need for the mother to facilitate and encourage this relationship. The decision to place the child with the father was based on the mother's inability or unwillingness to allow a meaningful relationship between the child and the father. The court's orders aimed to protect the child's well-being and ensure a balanced and supportive environment for the child's development.

Orders

Orders of the court

IT IS ORDERED THAT:

1.

The child [X] born [in] 2006, live with the Father.

2.

The Father have sole parental responsibility for the child.

3.

The Father collect the child from child-care centre forthwith this day.

4.

The Mother, her servants and/or agents be and are hereby restrained by injunction from:

(a) contacting [X]’s child-care centre for the next fourteen days;

(b) attending upon [X]’s child-care centre for the next fourteen days; and

(c) causing any other person to contact or attend upon [X]’s child-care centre without the prior written consent of the Father for the next fourteen days.

5.

The Father forthwith provide a copy of these Orders to the child-care centre.

6.

The child spend time with and communicate with the Mother as follows:

(a) for a period of two weeks, not at all;

(b) then, for a period of two weeks:

(i) by telephone each Sunday between 6:00pm and 6:30pm; and

(ii) from the conclusion of childcare Thursday until the commencement of childcare Friday each week;

(c) thereafter:

(i) from the conclusion of childcare Thursday / school until the commencement of childcare / school Friday in each alternate week;

(ii) from the conclusion of childcare / school Friday until the commencement of childcare / school Monday in each alternate week;

(d) on Mother’s Day, from 10:00am until 6:00pm;

(e) from 3:00pm Christmas Day until 3:00pm Boxing Day in 2011 and each alternate year thereafter;

(f) from 3:00pm Christmas Eve until 3:00pm Christmas Day in 2012 and each alternate year thereafter;

(g) during school holidays in 2012 and thereafter:

(i) from the conclusion of school on the last day of Terms 1, 2 and 3 until 6:00pm on the second Saturday of the holidays; and

(ii) from 10:00am on the first Monday of January until 10:00am on the third Monday of January each year;

(h) at such other times as agreed by the parties in writing.

7.

The child’s time with the Mother pursuant to Paragraph 6 herein be suspended as follows:

(a) from 10:00am on Father’s Day; and

(b) at such other times as agreed by the parties in writing.

8.

All changeovers that do not take place at childcare or school take place at the [omitted] Police Station.

9.

The Father do all such things and sign all such documents as may be required to:

(a) authorise the child’s kindergarten/school to provide to the mother, at her expense, copies of all notices, newsletters, photographs, reports and other material ordinarily provided to parents; and

(b) authorise the child’s doctor or other health professional to discuss the child’s medical matters with the Mother

10.

The Father attend upon a counsellor / psychologist with specific expertise in drug and alcohol use and abuse with respect to his alcohol use and follow all such recommendations of that counsellor/psychologist.

11.

The parties attend upon [omitted organisation] or other such organisation to participate in a post-separation parenting program, Parenting Orders Program, or such other course as recommended by Mr P.

AND THE COURT NOTES THAT:

12.

Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

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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