Lloyd and Jenkins (No 2)

[2015] FamCA 675

FAMILY COURT OF AUSTRALIA

LLOYD & JENKINS (NO 2) [2015] FamCA 675

FAMILY LAW – CHILDREN – Best interests – with whom the child should live – with whom the child should spend time – allocation of parental responsibility – agreement reached between the parties that the child live with the mother, the mother have sole parental responsibility for the child and the child spend time with the father – no evidence to support allegation that the father has sexually abused the child – final orders made by consent – question as to whether the mother should provide her residential address to the father – high degree of conflict between the parties – where there is an intervention order in place against the father in protection of the mother – final orders that the parties keep each other informed of the suburb of their residential address, their telephone number and their email

Family Law Act 1975 (Cth)

APPLICANT: Ms Lloyd

RESPONDENT: Mr Jenkins

INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon & Associates

FILE NUMBER: MLC 2364 of 2007

DATE DELIVERED: 9 June 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 9 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Juneja

SOLICITOR FOR THE APPLICANT: Altavilla Vessali

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Cathleen Corridon & Associates

Orders

BY CONSENT IT IS ORDERED

1. That the Mother have sole parental responsibility for the child of the relationship B (born … 2006) (“the child”).

2. That the child live with the Mother.

3. That the child spend time and communicate with the Father as follows:

   (a)Commencing 12 June 2015 each alternate Friday from after school until 5:15pm on Saturday

   (b)Commencing 8 August 2015 each alternate weekend from after school, or 3:30pm on Friday until 5pm Saturday,

   (c)Commencing 2 October 2015 each alternate weekend from after school Friday or 3:30pm until the commencement of school Monday or Tuesday if Monday is a non school day,

   (d)Commencing 11 February 2016 each alternate week from after school Thursday to before school Friday.

   (e)During the long school term holiday in 2015 from the conclusion of school for 5 consecutive nights on three occasions during the school holiday period by agreement and failing agreements weeks 1, 3 and 5.

   (f)On Christmas Day from 3:00pm until 3:00pm Boxing Day in 2016 and each alternate year thereafter.

   (g)From 3.00pm Christmas Eve until 3.00pm Christmas day in 2015 and each alternate year thereafter.

   (h)During all school term holidays in 2016 by agreement between the parties and failing agreement between the parties the first half of all school term holidays in 2016 and alternate year thereafter.

   (i)During all school term holidays in 2017 by agreement between the parties and failing agreement, the second half of all school term holidays in 2017 and each year thereafter.

   (j)On Father’s Day by agreement between the parties and in default of agreement from Father’s Day Eve from 5:00pm to 3:00pm on Father’s Day.

   (k)Any such further and other times as agreed between the parties by email only.

4. The Fathers time with the child be suspended as follows:

   (a)On Mother’s Day, the child be returned to the Mother’s care on Mother’s Day Eve from 5:00pm to 3:00pm on Mother’s Day,

   (b)On the child’s birthday for a minimum period of three hours as agreed between the parties and failing agreement on a school day from after school until 6:30pm or from 10:30am to 2:00pm on a non school day

5. (a)      The child may communicate with the Mother by telephone when in the

   care of the Father on Saturdays between 5:00pm and 6:00pm and the Father must facilitate the telephone call.

   (b) The child may communicate with the Father by telephone on Saturdays between 5:00pm and 6:00pm when not spending time with the Father and the Mother must facilitate the telephone call.

   (c) Each party must allow the child to telephone the other parent if the child requests to do so.

6. All changeovers that do not occur at the child’s school are to take place at C Contact Centre, Suburb D. On an occasion when C is closed, changeover is to take place at McDonalds on G Street, Suburb H by way of the Father parking outside the main entrance and the Mother waiting inside the entrance door and the child walking to or from the Fathers car provided that at all times the Father is prohibited from getting out of the car or approaching or speaking to the Mother in any manner whatsoever.

7. That should either party not be able to exercise their time with the child pursuant to above paragraphs, that party shall provide the other party with not less than 14 days notice except in case of emergency by email only.

8. The Father be permitted to liaise directly with the child’s school to obtain any necessary information about the child’s progress and copies of all reports notices information, newsletters, photographs, and that these Orders act as an authority for the same; and the Father be permitted to attend and participate in school activities separate from the Mother.

9. The parties shall inform each other as soon as possible of any serious medical injury or illness sustained by the child whilst in their respective care as soon as reasonably practicable together with details of the treating physician and the location of the treatment provider.

10. The parties to do all things required to allow the other party to communicate directly with any medical practitioner that has treated the child including, but not limited to, listing the other parties’ contact details on the child’s records at the treatment provider.

BY ORDER OF THE COURT:

1. The parties shall keep each other advised of current contact telephone numbers and email addresses and the suburb in which they live and inform either of any proposed change of details in writing by email at least 7 days prior to such change.

2. The appointment of the Independent Children’s lawyer be discharged.

3. All extant applications be dismissed and removed from the list of pending cases.

4. All documents provided by Subpoena be returned to the providers of Subpoenaed documents.

5. Usual Orders pursuant to S 65DA 2 and S 62B.

6. In the event of any application being filed by either party within the next 12 months the application be listed as far as practicable before Justice Johns.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jenkins & Lloyd (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2364 of 2007

Ms Lloyd

Applicant

And

Mr Jenkins

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parties seek parenting orders in relation to the parties’ son, the child, who is aged eight and a half years.  Each party sought orders that the child live with them.

2. The proceedings have a very long history in this Court and also in the Federal Circuit Court.  Proceedings have been on foot since 2007 when the child was little more than a year old.

3. The parties have had the benefit of the assistance of the Independent Children’s Lawyer (“the ICL”) and also the Family Consultant, Mr E.  Mr E has prepared four comprehensive family reports in these proceedings, the most recent being his report dated 7 May 2015.  Mr E provides a detailed report as to his observations with respect to both parties and also his observations in relation to the child.  He made a range of recommendations in the concluding paragraphs of that report.  In addition to that evidence, there is a psychiatric assessment prepared by Dr F and also a psychosexual assessment prepared by Ms I.

4. I had robust discussion with the parties at the commencement of the day in relation to their respective positions.  The parties agreed, in light of that discussion, that it was appropriate that the matter be stood down to enable them to have some further discussion to see if there was some compromise that could be reached before the proceedings commenced before me, the matter being listed for a period of four days commencing today.  It is evident that those discussions progressed well during the course of the morning.  The parties met with and had further discussions with the Family Report writer, Mr E.

5. At approximately 3.30 pm, I was presented with a minute of order which set out an agreement reached between the parties as to the future care arrangements for the child.  The parties are to be commended for their compromise in respect of those care arrangements.  The proposed orders provide that the child will continue to live with his mother but, importantly, from the child’s perspective, that he will have the opportunity of spending substantial time with his father.  It is evident from the report of Mr E that the child has a loving relationship with both parents.  The orders prepared ensure that that relationship with both of his parents will be supported, preserved and encouraged into the future.

6. In seeking these orders both parents have given ground; the mother, from her perspective, sought orders that there be limited time between the father and the child.  Her application was motivated by what she says are disclosures made by the child that the father has inappropriately touched the child and, further, that the child is exposed to risk in the father’s household. 

7. The father denies those allegations.  He says that, indeed, those allegations are borne out of some malice by the mother towards him.  He says that those allegations are fabricated.

8. What is clear from the material before me is that, from the assessments of the experts, particularly Ms I, the father is assessed as presenting a low risk of sexual abuse. None of the professionals engaged to assess the alleged disclosures has made any findings in relation to those disclosures. 

9. The ICL supports the orders that are sought in relation to the child’s future care arrangements.  In those circumstances, I am satisfied that the proposed minute properly reflects what is in the child’s best interests and, accordingly, I will make orders with respect to those matters.

10. The remaining issue is whether or not the mother should be required to disclose to the father her current residential address.  She seeks to be relieved from that obligation. 

11. The father says that he should be provided with the address.  He says it is natural and appropriate that he know where his son lives.  The basis for the mother seeking to be relieved from providing that information is founded in the history of conflict between the parents.  That most recent history culminated in an intervention order, which was made on 27 October 2014.  That is an intervention order obtained by both the mother and the child against the father.  It is an order that is to last for three years.

12. The father pleaded guilty to the breach that gave rise to that application.  He was sentenced to 200 hours of community service and was required to attend a men’s behaviour change course.  I am informed that the father has appealed against that sentence. 

13. The father challenges the circumstances giving rise to that intervention order.  He does say that, indeed, it is the mother’s conduct that has given rise to those proceedings taking place. 

14. The position of the ICL, simply put, is that, in circumstances where the child has been exposed to such a high degree of conflict between his parents, it is appropriate that orders be made at every opportunity that will protect the child from such conflict.

15. Significantly, she says the factual background to the most recent intervention order proceedings was a dispute between the parents that occurred in the mother’s driveway.  The father does not deny that it was an altercation in the driveway that gave rise to those proceedings.  What he takes issue with is the role that the mother played in that altercation. 

16. I am required to have regard to the child’s best interests in every decision that I make with respect to his welfare.  I note that there has been a long history of conflict between these parents and, in the circumstances of this case, I am satisfied that it is appropriate that the address of the mother not be disclosed at this point in time.

17. I make that decision having regard to the history of the conflict, the fact that the altercation that gives rise to the current intervention order proceedings is an altercation that occurred in the driveway of the mother’s home, and I also note the view of the father that it is the mother who is the catalyst for much of that conflict.  I am not in a position to make any findings as to who is the cause of the conflict but I am concerned that the father seeks to apportion blame for those events solely to the mother in this instance.  Both parties need to reflect on their respective roles in the conflict.

18. I will make orders that each party inform the other as to their current telephone numbers and email addresses, and suburb in which they live.

19. An order in those terms will ensure that the parties are aware of contact details, so that in the event of an emergency they do have the ability to communicate immediately with the other parent.  The provision of information as to the suburb in which the child lives will also ensure that the father can be familiar with the child’s neighbourhood, his environment and his network.  The father will have the opportunity of spending substantial time with the child on a weekly basis.  The orders as provided will also ensure that the father will be able to be intimately involved with all aspects of his school life.

20. The opportunity to collect the child after school each Friday and to deliver him to school each Monday, as well as the engagement on Thursday afternoons and Fridays, will ensure that the child knows that his father seeks to be involved in that most important aspect of his life but also provides the father to engage with the child’s teachers and his friends in that environment.  The child will have the benefit of both parents being involved in every aspect in his life.  I am confident that that arrangement will promote the child’s best interests into the future.  .

21. The parties need to adhere to every aspect of the orders.  The holiday time will be as set out in the orders.  There is no requirement for notice other than as provided in the orders, so I would not expect to see any email exchange as I have observed in the current proceedings about requirements for notice in relation to holiday time.  Section 65DA(2) and s 62B clearly set out the consequences of a contravention of the orders.  Both parties must ensure that they adhere to the orders to protect the child from conflict and to protect his relationship with both parents.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 June 2015.

Associate: 

Date:  9 June 2015