Jagger and Jagger

[2018] FamCA 489

FAMILY COURT OF AUSTRALIA

JAGGER & JAGGER [2018] FamCA 489

FAMILY LAW – CHILDREN – Default parenting orders

Family Law Act 1975

Jagger & Jagger (No. 2) [2016] FCCA 2618

APPLICANT: Mr Jagger

RESPONDENT: Ms Jagger

FILE NUMBER: BRC 11250 of 2011

DATE DELIVERED: 21 June 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: 21 June 2018

JUDGMENT OF: Baumann J

HEARING DATE: 21 June 2018

REPRESENTATION

NO APPEARANCE BY THE APPLICANT

NO APPEARANCE BY THE RESPONDENT

INDEPENDENT CHILDREN’S LAWYER:

Mr Anthony Kingston

Norman & Kingston

Orders

1. That the mother have sole parental responsibility in respect of all major long term issues of the child, X born … 2009 (“the child”).

2. That the child live with the mother, commencing from a date to be agreed between the parents.

3. That the child shall spend time and communicate with the father at all reasonable times as may be agreed between the parents.

4. That the Independent Children’s Lawyer provide to the Director-General of the Department of Child Safety, Youth and Women a copy of:

   (a)       once published, the ex tempore Reasons for Judgment delivered today;

   (b)the family report prepared by Ms C dated 3 August 2016; and

   (c)Notice of Child Abuse or risk of Family Violence filed by the Independent Children’s Lawyer on 14 June 2018.

5. That if, with these Orders having been made in absence of the parents today, either parent seeks to set aside or vary these Orders, shall by no later than 21 July 2018 file and serve an Application to set aside these Orders and such Application, if filed by either of the parents, shall be listed before the Honourable Justice Baumann for consideration.

6. That if no such Applications are filed by the parents in accordance with this Order the Orders today shall be regarded as final orders and the Independent Children’s Lawyer shall be discharged at that time.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jagger & Jagger has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11250 of 2011

Mr Jagger

Applicant

And

Ms Jagger

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. The parenting dispute between the Applicant father, Mr Jagger and the Respondent mother, Ms Jagger, has had a long and difficult history.  Proceedings in relation to the three children of these parents, Y born in 2004; Z born in 2006 and X born in 2009, was the subject of proceedings in the Federal Circuit Court before 22 August 2016 and with the benefit of a family report prepared by the Psychologist, Ms C, at the request of the Independent Children’s Lawyer (“ICL”), Mr Anthony Kingston and filed 7 August 2016, caused, it seems, an unsightly dispute between the parents at the Court building.  That such is the case can be confirmed by reference to the reasons for Judgment of Judge Howard, delivered ex tempore on 22 August 2016, but published (see Jagger & Jagger (No 2) [2016] FCCA 2618).

2. It seems that, consistent with the recommendations of the family report writer, particularly at paragraphs 8.6, 8.7 and 8.8 and the recommendations that followed, that his Honour ordered that X be released from child care on that day and placed into the care of the father with whom he would live, and who would have sole parental responsibility.  His Honour also ordered on that day that the mother “shall not spend time with or communicate with the child until 21 November 2016” after which, supervised time would occur.  Order 10 made 22 August 2016, provided for Y and Z to spend time with the father “as they may desire, but not prior to 7 January 2016” [sic] as clearly, it was meant to be January 2017.

3. Finally, his Honour, for good reason, in my view, transferred the proceedings to the Brisbane registry of the Family Court of Australia and since that time, the matter has been awaiting allocation to a judge for the purposes of a case management hearing in readiness for a hearing.

4. Relevantly, on 16 November 2017, Senior Registrar Spink made a number of orders by consent.  The mother, being represented by Counsel on the day, according to the record, Mr Kingston appearing as the ICL and the Respondent father is said to have appeared unrepresented.  Relevantly, the orders provided, by consent until further order, that X would live with the father (which was consistent with the earlier order of Judge Howard) and then there was prescribed time orders made in relation to the time X would spend with the mother.

5. Order 7 provided that the parents, at their joint cost, would arrange for X to attend therapeutic counselling.  There is no evidence that X, who desperately needed that counselling, it seems, has undertaken such counselling and the ICL, who is the only party who appears today, is not aware that the parents actually undertook what they said they would do, namely, to arrange for X to attend therapeutic counselling.

6. On 16 November 2017, Senior Registrar Spink, by consent and on a final basis, ordered that the children, Y and Z, live with the mother, and that the mother have sole parental responsibility.

7. Thereafter, the matter has awaited, in the pool of cases waiting allocation through a Jagger of this Court, further attention.  I am thankful that the ICL attended today and assisted the Court.  He was able to tell me about what has occurred, it seems, to some degree, since 16 November 2017, namely:

   a)on or about 7 June 2018, in this Court, the husband and the wife each filed a Notice of Discontinuance.  It seemed that the parents may have attempted to file the Notices of Discontinuance at the B Town Magistrates Court on or about 4 June 2018, but they found their way to this Court.  Although I am not a handwriting expert, it is apparent on the face of these documents, that the documents have been prepared, it seems, by the same person.  Whether that is the mother or the father, I do not know;

   b)the parties had been informed by the registry that the matter was before the Court today for the allocation of trial dates.  That notice had been sent to the parties, from the registry, in May 2018;

   c)that he, the ICL, filed on 14 June 2018 a Notice of Child Abuse or Risk of Family Violence in the appropriate form, in which he says as follows:

   1.  In or about February 2018, a charge of Assault occasioning Bodily Harm was to proceed to trial in the District Court at Brisbane.  The Complainant in that proceeding was the father, [Mr Jagger].  The Defendant was [Ms C].  [Ms C] is a child of the mother, [Ms Jagger].

   2.  The father informs the Independent Children’s Lawyer that approximately 1 week before the trial, the father heard a commotion at the front of his residence.  He ran outside and observed a number of people who were standing near a motor vehicle owned by [Mr Jagger’s] partner’s daughter.  Those persons ran off and [Mr Jagger] chased them.  [Mr Jagger] was unable to identify the persons but did identify a registration number of the vehicle the persons got into.

   3.  [Mr Jagger] advises that the police were called and noted that the rear window of the motor vehicle had been smashed and Police located a gun magazine in the back of the car that had not been previously there.  [Mr Jagger] advises that the police conducted an investigation and identified that the owner of the vehicle was a person who was friends with [Ms C].

   4.  [Mr Jagger] advises that because of lack of identification, the Police were unable to prefer any criminal charges.”

8. Mr Kingston is unable, from any source of information currently available to him, to inform the Court what the result was of the pending trial in the District Court in relation to a charge of assault occasioning body harm against Ms C, on the complaint of the father, in this case, Mr Jagger.

9. To finish this chronology, the solicitors on the record for the mother have filed, yesterday, electronically at 9.30am, a Notice of Ceasing to Act.  At paragraph 2 of the Notice, the last known residential address of the mother is given.

10. Mr Kingston says that the father has advised him that the parents have negotiated an agreement, of some form, that X will live with the mother after Christmas 2018.  If that were to occur, the three children will then be living with the mother and be together.

11. It has been one of the issues in this case, as Ms C identified in the report filed 7 August 2016, that the mother may not be able to support the father’s relationship with X.  That was, it seems, one of the bases for Judge Howard’s Order of 22 August 2016, made all the more difficult by the fact that the parents engaged in physical assaults upon each other in the body of the Court on that day.

12. In the circumstances of this case, there are many concerns a court is entitled to have about what orders might in the best interests of these children.  There is no certainty – in fact, one might be less than confident – that these parents, or one of them, may not seek at some future time, to bring another application to a Court exercising powers under the Family Law Act 1975.  I can only assume that the family is well known to the Department, and yet they have not, it seems, taken any specific action in the history of this matter.  In determining what is in the best interests of the children, the Court is required, amongst other factors set out in section 60CC(2) and (3), to consider making an order least likely to lead to further proceedings.  It seems there is every prospect that if no order is made in respect of X, there will be an absolute breakdown in parenting arrangements which would mean, as a result, almost inevitably, as soon as the parents are required to sign a document, or there is another dispute, they will be back to court.  Although the circumstances of the orders I make today are less than ideal, it is worth, again, noting, that a Court exercising jurisdiction under the Family Law Act 1975 is not the same as a Court exercising jurisdiction under child protection laws.

13. I propose in my order, before the ICL is discharged, to direct that a copy of these Reasons, and the last report of Ms C, be provided to the Director of the Department, so that perhaps at least the family remains on their radar for what might well be thought to be the almost inevitable commotion or eruption that will happen with these children in the future.

14. However, after many years in the Court system, and many events before judicial officers, there is an attraction to bringing the current journey of litigation to an end, finally.  Naturally, I am troubled by the fact that the parents are not here today, and do not seek to participate.  One would be overly optimistic to think that there has been a coming together of the minds of these parents, such that they can reflect on their conduct over many years in respect of their dysfunction and abuse, emotionally, of their children.

15. For those reasons, and bearing in mind that the Court has not had the benefit of any appearance or evidence from the mother and father, and further, that Mr Kingston, and no criticism of him is intended, has not had any contact from the mother, I will allow either of the parents to make an application to set aside the final orders I make today, within 30 days.  In the absence of any such application being brought, the ICL shall be discharged with the thanks of the Court.

16. For these reasons, the Court makes the orders that appear at the commencement of these Reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 21 June 2018.

Associate: 

Date:  29 June 2018