FAMILY COURT OF AUSTRALIA
Pelham & Jupp (No. 2) [2021] FamCA 558
File number(s): ADC 1987 of 2020 Judgment of: BERMAN J Date of judgment: 2 August 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time with – Best interests of child – Where the father seeks to resume spending time with the children – Where the mother opposes any time sending – Where there are allegations of sexual abuse – Where there are criminal investigations involving the father – Where a report was prepared pursuant to s 65L of the Family Law Act 1975 (Cth) – Where the children maintaining a relationship with the father needs to be balanced against the risk to the children – Where a cautious approach needs to be adopted – Where time is to be supervised – Orders.
FAMILY LAW – CHILDREN – Best interests – Injunctions – Where the parties agree to injunctions preventing them from taking the children to health professionals without the other’s consent – Where the mother seeks that one of the children continue to receive therapeutic support – Where the evidence does establish an ongoing advantage – Orders.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 65L Number of paragraphs: 64 Date of hearing: 2 July 2021 Place: Adelaide Counsel for the Applicant: Ms Boyle 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 of South Australia ORDERS
ADC 1987 of 2020 BETWEEN: MR JUPP
Applicant
AND: MS PELHAM
Respondent
LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA
Independent Children’s Lawyer
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
2 AUGUST 2021
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1.That the father do spend time with the children X born … 2015 and Y born … 2018 (collectively “the children”) as follows:
(a)On Wednesday and Saturday of each week between the hours of 1.00 pm and 3.30 pm for three (3) consecutive weeks; and
(b)Thereafter, between the hours of 11.00 am and 5.30 pm on each Wednesday and Saturday.
2.That in the event X is at school then his time shall commence with the father at 3.30 pm from the Early Learning Centre.
3.That all time between the children and the father be supervised by Ms D.
4.That all handovers that do not occur at X’s Early Learning Centre do take place at the home of the maternal parents at F Street, Suburb G or at the home of Ms D at H Street, Suburb J at the election of the mother provided that the mother shall not be present during the handover.
5.That the parties be restrained and an injunction granted restraining each of them from taking the children or either of them to any counsellor, psychologist, psychiatrist or any other health professional, including Mr K, save and except for:
(a)Any general practitioner treating the children in…
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- Pelham & Jupp (No. 2) [2021] FamCA 558
- Case
- [2021] FamCA 558
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children in circumstances involving serious allegations and criminal investigations concerning the father. This involved balancing the children's need to maintain a relationship with their father against the potential risks to their safety and well-being. A further issue was whether one of the children should continue to receive therapeutic support, notwithstanding an existing agreement between the parties to restrain from taking the children to health professionals without mutual consent.
Berman J adopted a cautious approach, acknowledging the need for a careful balance between the children's relationship with their father and their protection. The court applied the principles of the *Family Law Act 1975* (Cth) concerning the best interests of the child, considering the report prepared pursuant to section 65L. The court found that the evidence supported the ongoing advantage of therapeutic support for one of the children.
Consequently, the court made orders for supervised time between the father and the children, with specific arrangements for handovers and the duration of contact. An injunction was granted, restraining either parent from taking the children to most health professionals without the other's consent, with specific exceptions for general practitioners, a named speech therapist, occupational therapists, medical emergencies, and Child Protection Services. The court also set out detailed procedural directions for the filing of evidence and financial statements by both parties and the Independent Children’s Lawyer, and scheduled further steps towards trial. Liberty was granted to relist the matter regarding interim parenting arrangements upon determination of the criminal investigation.
Orders
Orders of the court
ADC 1987 of 2020
BETWEEN:
MR JUPP
Applicant
AND:
MS PELHAM
Respondent
LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA
Independent Children’s Lawyer
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
2 AUGUST 2021
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1. That the father do spend time with the children X born … 2015 and Y born … 2018 (collectively “the children”) as follows:
(a) On Wednesday and Saturday of each week between the hours of 1.00 pm and 3.30 pm for three (3) consecutive weeks; and
(b) Thereafter, between the hours of 11.00 am and 5.30 pm on each Wednesday and Saturday.
2. That in the event X is at school then his time shall commence with the father at 3.30 pm from the Early Learning Centre.
3. That all time between the children and the father be supervised by Ms D.
4. That all handovers that do not occur at X’s Early Learning Centre do take place at the home of the maternal parents at F Street, Suburb G or at the home of Ms D at H Street, Suburb J at the election of the mother provided that the mother shall not be present during the handover.
5. That the parties be restrained and an injunction granted restraining each of them from taking the children or either of them to any counsellor, psychologist, psychiatrist or any other health professional, including Mr K, save and except for:
(a) Any general practitioner treating the children in relation to their physical health;
(b) Speech therapist, Ms L;
(c) Any occupational therapist currently engaged;
(d) In the case of a medical emergency; and
(e) Child Protection Services without the written consent of each of the parties.
6. That by 4.00 pm on 17 September 2021 the mother file and serve upon all other parties:-
(a) An amended application setting out with precision the orders to be sought;
(b) The affidavits of evidence in chief of all witnesses including the mother relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and
(c) A financial statement that complies with chapter 13 of the Family Law Rules 2004 (Cth).
7. That the mother and the father each pay one half of all setting down and trial fees by 4.00 pm on 10 January 2022.
8. That by 4.00 pm on 17 December 2021 the father file and serve upon all other parties:-
(a) An amended response setting out with precision what orders are being sought;
(b) The affidavits of evidence in chief of all witnesses including the father relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);
(c) A financial statement that complies with chapter 13 of the Family Law Rules.
9. That by 4.00 pm on 14 January 2022 the mother file and serve any affidavit in reply to that of the affidavits of the father.
10. That by 4.00 pm on 14 January 2022 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.
11. That no party file any further material other than as provided by these orders without leave of the Court.
12. That all parties have liberty to approach the registrar responsible for the management of the Court file to vary the obligations under these orders to ensure readiness for trial.
13. Liberty is granted to each party and the Independent Children’s Lawyer to relist the matter at short notice in relation to trial directions or any application for leave for subpoena to issue.
14. That the practitioners for the parties file and serve electronically to … by 4.00 pm on 16 February 2022 the following:
(a) A concise set of orders to be sought if different from those already filed;
(b) A list of the applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;
(c) A list of assets and liabilities;
(d) A list of objections to evidence upon which rulings are required; and
(e) A bullet-point summary of argument in relation to the issues in dispute.
15. That each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.
16. Liberty is granted to each party and the Independent Children’s Lawyer to relist any application for a change in the interim parenting arrangements after a determination has been made by the South Australian Police to discontinue the current criminal investigation or charge the father with a criminal offence.
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
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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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