Sharpe and Johnson

[2009] FamCA 448

FAMILY COURT OF AUSTRALIA

SHARPE & JOHNSON [2009] FamCA 448

FAMILY LAW – CONSENT ORDERS

Family Law Act 1975 (Cth)

APPLICANT: Ms Sharpe

RESPONDENT: Mr Johnson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 70 of 2008

DATE DELIVERED: 15 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.N. Hoult

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr S.R. Johns

SOLICITOR FOR THE RESPONDENT: Carew Counsel

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms A.M. Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That BY CONSENT (save for paragraphs 3(a) and 4 which are orders of the Court there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 70 of 2008

MS SHARPE

Applicant

And

MR JOHNSON

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have been asked as a preliminary position to make some final orders in relation to the parenting dispute between the parties.  There are three children who are the subject of these proceedings of a total of five children.  The two older children are not children about whom I am concerned. 

2. The two older of the three children are boys who, pursuant to these orders, are not going to spend any direct time with their father, but I want it noted on the record that the husband has indicated that he has agreed to these orders on the basis that he disputes much of the problem that is asserted against him, in addition to which he points to the evidence of a good relationship with the children prior to the breakdown of the parental relationship.  Whatever it may be, it behoves both parents to try and get the boys to have some form of relationship with their father in the future.

3. There is ample social science evidence to show that children, particularly teenage boys, who do not have a good father figure in their lives, are the ones who cause society most trouble as they get into early adult years.  I can only encourage the parties to try and not let that problem drift. 

4. The third child of these proceedings is K, who was born in December 2000, so she is just over eight years of age.  The parties have reached a compromise, subject to two orders that I have imposed upon them.  Those orders seem to me to be eminently sensible and I have no hesitation in making them.  Before doing so, however, it was me that raised at a preliminary two concerns which were drawn from the wife's affidavit material:  the first related to an issue of family violence, and the second related to some concerns expressed by the wife about the husband’s sexual interests. 

5. In relation to the family violence, there is an intervention order in existence, and, more significantly, there has been a prosecution of the husband for breach of that intervention order, culminating in a community based order with a condition that he undergo anger management.  I think it is important to note what the Independent Children's Lawyer says about that.  She said that it was primarily “separational violence” that gave rise to the order, and the subsequent breaches amount to perhaps a misguided view about the seriousness of the orders. 

6. I am satisfied that the husband’s breaches of the intervention order were a result of his desire to resolve child welfare issues.  The husband will have got the message by now that he cannot do that.  In this case that is not a factor that ought to preclude the Court from finding that the orders are in the best interests of the children.

7. The second issue is a little bit more difficult to deal with because it is simply an allegation at this stage and the evidence has not been tested.  What is disturbing about the allegation is that it apparently relates to films of incest but there is no evidence that the wife can produce.  She relies upon a witness who says that she saw the material on the computer and it was subsequently destroyed.  At its highest, it is not a matter upon which the court could find that the children were at risk, particularly having regard to the fact that the parties themselves have put in place various systems in their own households to prevent that happening again. 

8. I am satisfied that this is a case in which the children have not been exposed to a risk in the care of their father, and in particular K, having regard to the orders I am content to make now. 

9. In the circumstances, I am satisfied that these orders are in the best interests of these three children.  The wife's solicitors will engross the orders.

10. This is a matter which has been finalised this afternoon prior to the luncheon break.  I had the opportunity to canvass with the parties through their counsel the question of how to resolve the impasse in relation to the property dispute.  The parties have taken heed of what I said and come to their own resolution, which is obviously very close to what I had in mind anyway. 

11. In those circumstances, having read the file, heard what everybody has to say, I am satisfied to declare that these orders are just and equitable in the circumstances. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  26 May 2009