FAMILY COURT OF AUSTRALIA
| JOHNS & JASAPAS | [2016] FamCA 471 |
| FAMILY LAW – CHILDREN - Parenting Orders – where mother alleges sexual abuse by father to children – where mother alleges the father is sexually grooming the children – where mother asserts father poses an unacceptable risk – where mother assets paternal grandmother also poses a risk – where mother asserts both physical risk and sexual risk to the children – where there is no history of family violence – where father does not pose unacceptable risk – where father’s hobby of photography does not mean the children are at risk – where father’s hobby of photography does not point to the father having poor sexual boundary – where no contact orders are not appropriate – where children are too young to express any views – where it is in the children’s best interests for there to be equal shared parental responsibility – where equal time is not in the best interests of the children – where children will primary live with the mother – where there is an order requiring the father to attend counselling. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAC Evidence Act 1995 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 Bayer v Imhoff [2010] FamCA 532 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Mr Johns |
| RESPONDENT: | Ms Jasapas |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Dooley |
| FILE NUMBER: | BRC | 5081 | of | 2014 |
| DATE DELIVERED: | 13 June 2016 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 3, 4 and 5 May 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Baston by direct brief |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Frizelle |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Dooley Solicitors |
Orders
All previous parenting orders are discharged.
The mother and father have equal shared parental responsibility for B, born … 2010 and C, born … 2013 (“the children”) for decisions about major long term issues in relation to them and in the exercise of equal shared parental responsibility, will utilise the Our Children’s Website, and to enable that, each party is to do all things necessary to enable them to utilise that website no later than 7 days from the date of these orders.
The children live with the mother.
Each…
Continue reading Johns & Jasapas
Sign in free to access the full text
- AGLC
- Johns & Jasapas [2016] FamCA 471
- Case
- [2016] FamCA 471
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of parenting orders, including arrangements for the children's living arrangements, parental responsibility for major long-term issues and day-to-day care, and the father's time with the children. Additionally, the court needed to address issues relating to communication between the parents, the children's attendance at counselling, and the restraint of certain behaviours and discussions involving the children.
Tree J made orders discharging previous parenting arrangements and establishing equal shared parental responsibility for major long-term decisions, with the parents to utilise the Our Children’s Website for this purpose. The children were ordered to live with the mother, with each parent having sole responsibility for day-to-day decisions while the children are in their care. The father's time with the children was detailed through a phased schedule, commencing immediately and progressing through to 2019, with specific provisions for school holidays, birthdays, Father's Day, and Christmas. The orders also included provisions for changeover locations, telephone contact, mutual restraint from denigrating each other, and a prohibition on discussing proceedings with the children. Further orders mandated counselling for the children and the father, and required both parents to enrol in a Parenting Orders Program. The court also made orders regarding the publication of documents and the process for dispute resolution. The Independent Children's Lawyer was discharged, and all other extant applications were dismissed.
Orders
Orders of the court
1.
All previous parenting orders are discharged.
2.
The mother and father have equal shared parental responsibility for B, born … 2010 and C, born … 2013 (“the children”) for decisions about major long term issues in relation to them and in the exercise of equal shared parental responsibility, will utilise the Our Children’s Website, and to enable that, each party is to do all things necessary to enable them to utilise that website no later than 7 days from the date of these orders.
3.
The children live with the mother.
4.
Each parent have sole parental responsibility to make decisions about the children’s day to day care, welfare and development whilst in that parent’s care.
5.
The father spend time with the children at all times as agreed between the parents in writing, but failing agreement as follows:
(a) Until 1 February 2017;
(i) Week 1 – from 9:00am Saturday to 4:00pm Sunday and each alternate weekend thereafter;
(ii) Week 2 – C from 10:00am to 4:30pm Thursday and B from 3:30pm to 4:30pm and each alternate week thereafter;
(b) Commencing 1 February 2017;
(i) Week 1 – from after school/day care Friday until 4:00pm Sunday and each alternate week thereafter;
(ii) Week 2 – C from 10:00am to 4:30pm Thursday and B from 3:30pm to 4:30pm and each alternate week thereafter;
(c) Commencing 1 February 2018;
(i) Week 1 – from after school/day care Friday until 4:00pm Sunday and each alternate week thereafter;
(ii) Week 2 – from after school/child care Thursday to before school Friday morning each alternate week thereafter;
(iii) For a period of four days per school holiday period and for two sessions of four days per each Christmas school holiday period;
(d) Commencing 1 February 2019;
(i) Week 1 – from after school Thursday to before school Monday morning and each alternate week thereafter;
(ii) Week 2 – from after school Thursday until before school Friday morning and each alternate week thereafter;
(iii) For one half of each school holiday period;
(e) For the children’s birthdays, if they fall on a day when the father would otherwise be spending time with the children under these orders, then that time is suspended and the following apply:
(i) If not a school day, from 1:00pm to 8:00pm in even numbered years and from 9:00am to 1:00pm in odd numbered years;
(ii) If a school day from after school to 5:30pm in even numbered years and from 5:30 to 8:00pm in odd numbered years;
(f) For Father’s Day where Father’s Day does not fall on the father’s alternate weekend contact, from 9:00am to 8:00pm;
(g) On Christmas Day from 2:00pm until 2:00pm on Boxing Day and every odd numbered years thereafter;
(h) On Christmas Eve from 2:00pm until 2:00pm on Christmas day in even numbered years thereafter.
6.
All changeovers during school terms on school days are to take place at the children’s school. For all changeovers which are on non-school days, or after school hours, such changeovers to take place at D Town Arts Centre.
7.
The children shall telephone the father every Wednesday between 6:00pm and 7:00pm with the child to have a private place to take the telephone call.
8.
Each party be restrained from denigrating the other parent, their partner or a member of their family or in the presence of or hearing of the children and must ensure that no other person does so and in the event of some other person doing so, then that parent must immediately remove the children from the vicinity of the person doing so.
9.
Each party is restrained from discussing these proceedings with or in the presence of or hearing of the children.
10.
The children are to attend Ms E for protective behaviours counselling for so long as she may recommend it continue.
11.
The mother be restrained from audio recording the children or permitting others to do so in respect to sexual abuse allegations.
12.
Within 28 days of these orders, both parties are to enrol in the first available Parenting Orders Program, and to undertake that program to completion.
13.
Within 28 days for these orders, the father is to engage with a counsellor with a view to helping him improve his communication with the mother, and to maintain reasonable engagement with such counsellor until she or he is of the view that further counselling is no longer of benefit to the father. The father has liberty to publish these orders and reasons to his counsellor.
14.
Otherwise than as provided in these orders, neither party is to publish any document, photographs relating to this matter without leave of the court.
15.
In the event any dispute as to the interpretation, implementation or enforcement of this order including any claim by a party that it should be varied the parties shall first attend Family Dispute Resolution with a Family Dispute Resolution practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the party raising the dispute shall nominate three Family Dispute Resolution practitioners, one of who shall be chosen by the other party within 14 days.
16.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
17.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.