MADSEN & JEROME

[2018] FCCA 2396

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADSEN & JEROME [2018] FCCA 2396

Catchwords:
FAMILY LAW – Parenting – urgent application – where the father has withheld the child in breach of orders – defiant and deliberate breach – the child’s time with the father is suspended until further order.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS MADSEN

Respondent: MR JEROME

File Number: DNC 484 of 2017

Judgment of: Judge Young

Hearing date: 10 August 2018

Date of Last Submission: 10 August 2018

Delivered at: Darwin

Delivered on: 10 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: In person

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The child’s time with the father be suspended.

2. The father file and serve any affidavits on which he intends to rely by close of business on 24 August 2018.

AND IT IS ORDERED BY CONSENT THAT:

1. The father will obtain, at his own expense, an assessment of his cognitive and psychological functioning and provide the findings of that assessment to the court.

IT IS NOTED that publication of this judgment under the pseudonym Madsen & Jerome is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 484 of 2017

MS MADSEN

Applicant

And

MR JEROME

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application brought on short notice by the mother of [X] who is almost 18 months old.  Following an appearance in this court for a mention last Tuesday, it is alleged that the father is in breach of earlier orders made following an interim hearing.

3. The effect of orders from 16 January 2018 is that [X] spends four hours on Tuesday, four hours on Thursday, and four hours on Sunday with the father.  The matter was mentioned, as I say, on Tuesday, 7 August, and I made orders on that date for the preparation of the family report and setting the matter down for trial. 

4. After court on that day the mother deposes that the father collected the child, as he was entitled to, on Tuesday.  She says it was somewhat early but nevertheless collecting the child on Tuesday but that he retained the child on Tuesday night in breach of orders. 

5. She also deposes that outside court Mr Jerome insulted, in an offensive way, counsel for the mother.  I have not raised that with Mr Jerome.  It is unnecessary for me to do so because I am not going to reach any findings about whether or not that is the case but it is an allegation.  Mr Jerome admitted that he had withheld the child.  He professed not to understand the orders.  I have great difficulty accepting that.

6. My real concern is that considering the matter had been in court that very day, and that, in my view, the orders that were in place were clear and unambiguous, that Mr Jerome’s conduct, his admitted conduct, was deliberate, defiant and provocative.  That is of particular concern to me, not simply because of those issues but because of the consequences of that conduct.  The recurring theme in this case has been the conflict between the parents over, in particular, Mr Jerome seeking to have the child spend more time with him and overnight time. 

7. It is not unreasonable of him to want that.  My concern throughout, and as I say, I have had at least one interim hearing about this and three discussions from the bench with Mr Jerome – my concern is that Mr Jerome lacks insight into the effect of his behaviour particularly, as I suspect is the case, his breach of orders on Tuesday which was defiant, provocative and deliberate. 

8. My concern is that the effect on the mother – who is the primary carer for [X] who, as I say, is not yet 18 months old – is stressful and difficult for her. Ultimately it has the risk of undermining her role as the primary carer of this very young child.  Though there is no clear evidence of it, I would also expect the conflict to ultimately be affecting [X], though of course she is not at any stage where the ordinary signs of a child being exposed to conflict, that is psychological harm – there is no sign of any of that being evident, but it is my concern that it may become evident as time goes on.

9. I am satisfied from a number of discussions with Mr Jerome and hearing this case over some months that Mr Jerome lacks insight into the effect of his behaviour, most particularly on [X], or ultimately on [X]. I have doubts about his capacity as a parent.  I have doubts about his sensitivity to his daughter and his daughter’s psychological needs.  He seems very focused on what he sees as what he ought to get. 

10. I could be mistaken about that.  I do not know.  But many alarming signs are present in this case.  The conduct on Tuesday was, it would appear, deliberate.  I am going to give Mr Jerome the chance to file an affidavit to put his side of events and I strongly recommend that he seeks some legal advice before he does so because I think that his impetuous, if it is impetuous, conduct, is not doing his case any favours at the moment. I think he would benefit a great deal from someone who is an experienced legal practitioner in this area who could perhaps give him some advice and guidance. But that is very much a matter for him. 

11. Given what is an admitted breach of orders in circumstances that would appear to me to lead inescapably to the conclusion that the breach was deliberate and defiant, I propose to suspend the time that [X] spends with the father until further order.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 28 August 2018