Pelham & Jupp - [2021] FamCA 324

FAMILY COURT OF AUSTRALIA
Pelham & Jupp [2021] FamCA 324

File number(s): ADC 1987 of 2020

Judgment of: BERMAN J

Date of judgment: 21 May 2021

Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of a child – Interim parenting – Where both parties agree the children should live with the mother –Where the father seeks to spend significant and substantial time with the children – Where the mother opposes any time spending – Where the father has spent no time with the children for eight months – Where there are allegations of sexual abuse – Where Child Protection Services were unable to clarify the concerns raised – Where there is uncertainty with respect to the status of any current or ongoing police investigations involving the father – Where a cautious approach should be adopted where evidence has not been tested – Where some sort of relationship should be maintained between the father and the children – Where any risk can be managed by visits being supervised by a family consultant – Orders.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65L

Cases cited:
Marvel v Marvel (2010) 43 Fam LR 348

Starr & Duggan [2009] FamCAFC 115

Number of paragraphs: 51

Date of hearing: 13 May 2021

Place: Adelaide

Counsel for the Applicant Ms Hume

Solicitor for the Applicant: Tessa Hume

Counsel for the Respondent: Ms Pyke, QC

Solicitor for the Respondent: Jordan & Fowler Family Lawyers

Counsel for the Independent Children's Lawyer: Mr Dillon

Solicitor for the Independent Children's Lawyer: Legal Services Commission
ORDERS

ADC 1987 of 2020

BETWEEN:
MS PELHAM

Applicant

AND:
MR JUPP

Respondent

LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA

Independent Children’s Lawyer

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS THAT:
1.Further consideration of the interim parenting arrangements be adjourned to 9.00 am on 10 June 2021.
2.Pursuant to s 65L of the Family Law Act 1975 (Cth) the children X born … 2015 and Y born … 2018 spend time with the father from 3.00 pm to 5.00 pm on 26 May 2021 and 2 June 2021 with such time spent to be supervised by a family consultant appointed by the Director of Child Dispute Services of the Adelaide Registry.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pelham & Jupp has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

Ms Pelham (“the mother”) and Mr Jupp (“the father”) are unable to agree the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pelham & Jupp

Details

AGLC: Pelham & Jupp [2021] FamCA 324
Case: [2021] FamCA 324
Decision Date: 21 May 2021

CaseChat Overview and Summary

In the matter of *Pelham & Jupp*, Berman J of the Federal Circuit and Family Court of Australia considered interim parenting arrangements for two children. The mother, Ms. Pelham, was the applicant and the father, Mr. Jupp, was the respondent. The Independent Children’s Lawyer also participated in the proceedings. The central dispute involved the father's desire to spend significant and substantial time with the children, which the mother opposed, particularly in light of allegations of sexual abuse.

The court was required to determine the best interests of the children in circumstances where there were allegations of sexual abuse, Child Protection Services had been unable to clarify concerns, and the status of any police investigations involving the father was uncertain. The court also had to consider the father's proposal for unsupervised time versus the mother's opposition to any contact, while acknowledging the importance of maintaining a relationship between the father and children where possible and managing any identified risks.

Berman J adopted a structured approach to the parenting considerations, beginning with the parties' proposals, the objects and principles of the *Family Law Act 1975* (Cth), and then applying the provisions of section 60CC. The judge emphasised the paramount consideration of the children's best interests, which includes the benefit of a meaningful relationship with both parents and the need to protect them from harm. The court noted that at an interim hearing, evidence has not been tested, necessitating a cautious approach. The judge acknowledged the mother's concerns regarding potential risk to the children, particularly X, due to alleged sexual abuse by the father, while also recognising the need to foster a relationship between the children and their father, with any risk to be managed through supervised visits.

The court ordered that further consideration of interim parenting arrangements be adjourned. In the interim, the children were to spend time with the father on two specific dates, with such time to be supervised by a family consultant.

Orders

Orders of the court

ADC 1987 of 2020

BETWEEN:

MS PELHAM

Applicant

AND:

MR JUPP

Respondent

LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA

Independent Children’s Lawyer

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS THAT:

1. Further consideration of the interim parenting arrangements be adjourned to 9.00 am on 10 June 2021.

2. Pursuant to s 65L of the Family Law Act 1975 (Cth) the children X born … 2015 and Y born … 2018 spend time with the father from 3.00 pm to 5.00 pm on 26 May 2021 and 2 June 2021 with such time spent to be supervised by a family consultant appointed by the Director of Child Dispute Services of the Adelaide Registry.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

In Starr & Duggan [2009] FamCAFC 115 the Full Court gave clear direction as to the co-existent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-38.… it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:-•first make findings concerning the relevant s 60CC factors;•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.PARENTING CONSIDERATIONS I propose to adopt the following approach:-(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;(5)Have regard to additional considerations under s 60CC(3) of the Act; and(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment. The consideration of evidence adduced by each of the parties is necessarily tempered by the Court’s inability to test the evidence at an interim hearing and as such the evidence and issues raised by each of the parties is to be approached with caution. The mother is opposed to there being any resumption of physical time between the father and the children. The father proposes that time spent should not be the subject of supervision but if the Court is concerned then professional and potentially paid supervision is also proposed. The mother contends that it is too early for there to be any resumption of time spending in circumstances where there may be a risk to the children, but in particular X if he comes into contact with the father who may have sexually abused him. I am cognisant of the need to promote the benefit of a child of having a meaningful relationship with his or her parents tempered by the overarching obligation to ensure that a child is protected from abuse, neglect or harm.

File number(s):	ADC 1987 of 2020
Judgment of:	BERMAN J
Date of judgment:	21 May 2021
Catchwords:	FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of a child – Interim parenting – Where both parties agree the children should live with the mother –Where the father seeks to spend significant and substantial time with the children – Where the mother opposes any time spending – Where the father has spent no time with the children for eight months – Where there are allegations of sexual abuse – Where Child Protection Services were unable to clarify the concerns raised – Where there is uncertainty with respect to the status of any current or ongoing police investigations involving the father – Where a cautious approach should be adopted where evidence has not been tested – Where some sort of relationship should be maintained between the father and the children – Where any risk can be managed by visits being supervised by a family consultant – Orders.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65L
Cases cited:	Marvel v Marvel (2010) 43 Fam LR 348 Starr & Duggan [2009] FamCAFC 115
Number of paragraphs:	51
Date of hearing:	13 May 2021
Place:	Adelaide
Counsel for the Applicant	Ms Hume
Solicitor for the Applicant:	Tessa Hume
Counsel for the Respondent:	Ms Pyke, QC
Solicitor for the Respondent:	Jordan & Fowler Family Lawyers
Counsel for the Independent Children's Lawyer:	Mr Dillon
Solicitor for the Independent Children's Lawyer:	Legal Services Commission

ADC 1987 of 2020
BETWEEN:	MS PELHAM Applicant
AND:	MR JUPP Respondent
LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA Independent Children’s Lawyer

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	21 MAY 2021