JAGO & JAGO
[2020] FCCA 1064
•18 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JAGO & JAGO | [2020] FCCA 1064 |
| Catchwords: FAMILY LAW – Interim parenting orders – where parties not biological parents – where Minister tasked with parental responsibility for child – where Minister notified about proceedings – where there are medical concerns for welfare of child – where there is historical family violence – where there is no evidence of family violence towards or in presence of child – where both parties have previously used illicit substances – where both parties have ceased using illicit substances – where child’s best interests are overnight time with one party only. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 60CA, 60B, 61DA, 65DAA, 65DAC Family Law Regulations 1984 (Cth), regs.12BA, 69ZK |
| Cases cited: M & M (1988) FLC 91-973 Goode & Goode (2006) FLC 93-286 Napier & Hepburn (2006) FLC 93-303 Johnson & Page (2007) FLC 93-344 SS & AH [2010] FamCAFC 13 Marvel & Marvel (2010) 240 FLR 367 MRR & GR [2010] HCA 240 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FamCAFC 104 Grella & Jamison [2017] FamCAFC 21 A & A & The Child Representative (1998) FLC 92-800 |
| Applicant: | MR JAGO |
| Respondent: | MS JAGO |
| File Number: | WOC 798 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 25 October 2019 |
| Date of Last Submission: | 25 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Kovacevic of Kovacevic Lawyers |
| Solicitors for the Respondent: | Ms Conti of Rebecca Baile & Associates |
| Solicitors for the Independent Children's Lawyer: | Ms Mowbray as agent for Acorn Lawyers |
ORDERS
That the Applicant Mr Jago and the Respondent Ms Jago have equal shared parental responsibility for the child X (‘the child’) born in 2010.
That the child live with the respondent.
That during school term time the child spend time with the applicant as follows:
(a)each Saturday from 10.00AM until 5.00AM; and
(b)each Monday and Wednesday from the end of school until 7.00PM or from 3.00PM until 7.00PM if not a school day; and
(c)on such other occasions as may be agreed between the parties from time to time.
That the child spend time with the applicant during school holiday periods as follows:
(a)each Saturday from 10.00AM until 5.00PM;
(b)each alternate Sunday beginning on the first Sunday of the school holiday period from 10.00AM until 5.00PM;
(c)each Monday and Wednesday from 10.00AM until 5.00PM; and
(d)on such other occasions as may be agreed between the parties from time to time.
In addition the applicant spend time with the child on the child’s birthday, as follows:
(a)If the child’s birthday falls on a school day, from the end of school until 7.00PM that evening; or
(b)If the child’s birthday fall on a non-school day, from 10.00.AM until 4.00PM
That for the purposes of changeover, unless otherwise agreed between the parties in writing, where changeover does not take place at the child’s school, changeover shall be affected by the applicant collecting the child from the respondent’s address at the commencement of his time with the child, and by the respondent collecting the child from the applicant’s address at the end of his time with the child.
That the child communicate with the applicant by telephone and/or Facetime and/or Skype on no less than one occasion each week as agreed between the parties and failing agreement between 5.30PM and 6.00PM each Thursday with the applicant to initiate the call and the respondent to facilitate the call and to ensure that the child has privacy during the call.
That for the purposes of communicating information between the parties in relation to the child’s welfare, the applicant and the respondent shall communicate as follows:
(a)by person to person telephone call for matters of urgency, or
(b)by text messages for all day-to-day communications;
and both parties shall ensure that all such communication is civil and respectful.
That the applicant shall ensure that the respondent is kept informed as soon as reasonably practicable of:
(a)any medical problem or illness suffered by the child whilst in his care;
(b)any medication that has been prescribed for the child;
(c)any specialist medical appointments that any medical doctor, psychiatrist, psychologist, counsellor, or therapist has with the child;
(d)any social, school, or religious functions which the child is to attend;
(e)the residential address of the applicant;
(f)the telephone contact number of the applicant; and
(g)any other matter relevant to the welfare of the child.
That the respondent shall ensure that the applicant is kept informed as soon as reasonably practicable of:
(a)any medical problem or illness suffered by the child whilst in her care;
(b)any medication that has been prescribed for the child;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist with the child;
(d)any social, school or religious functions which the child is to attend;
(e)the residential address of the respondent;
(f)the telephone contact number of the respondent; and
(g)any other matter relevant to the welfare of the child.
That both the applicant and the respondent are to undertake, by provision of urine screening in accordance with the Australian and New Zealand Standard 4308:2008, urine analysis for drug screen within 24 hours of receiving a request for such screening from the Independent Child’s Lawyer, with such a request to be made no more than once per calendar month, and they are to provide copies of the results of the testing to the Independent Child’s Lawyer and to the other party within 48 hours of receipt of same.
That the respondent undertake a carbohydrate-deficient transferrin (CDT) screening within 48 hours of receipt of a request to do so from the Independent Child’s Lawyer, with such requests to be made no more than once per calendar month, and the respondent shall provide copies of the results of the test to the Independent Child’s Lawyer and to the other party within 48 hours of receipt of same.
That each of the parties is restrained from denigrating the other party, any member of the other party’s family or any member of the other party’s household, in the presence or within the hearing of the child.
That each of the parties is restrained from allowing the child to remain in the presence of or within the hearing of any other person who is denigrating the other party, any member of the other party’s family, or any member of the other party’s household.
That each of the parties is restrained from discussing these proceedings with the child or in any manner bringing these proceedings to the attention of the child otherwise than in accordance with an order of the Court, and is each further restrained from questioning the child about with whom the child would prefer to live.
Each of the parties is restrained from consuming alcohol to the extent that it would be illegal for that party to drive a motor vehicle on a full licence in New South Wales for a period of 12 hours before the child comes into their care or at all while the child is in their care.
Each of the parties is restrained from using marijuana for a period of 12 hours before the child comes into their care or at all whilst the child is in their care.
That each of the parties shall do all things that may be necessary to ensure that each of the parties can receive equally all and any information including but not limited to school reports, school photos, school newsletters and any other correspondence for parents from the child’s school.
That each of the parties shall ensure that the child continues engaging with and regularly attending upon appointments as required with psychologist Ms A for as long as is necessary and recommended by either Ms A or any general practitioner or a specialist doctor treating the child.
That within 14 days both the applicant and the respondent shall engage and enrol in an appropriate parenting course with the B Counselling or similar approved body of the nature of the ‘Parenting After Separation’ course and each are to produce a certificate of completion to the Independent Child’s Lawyer and to the other party once received.
Leave is granted to the Independent Child’s Lawyer to relist the matter on the giving of seven days’ notice to the other parties and to the Court of the matter in relation to which the relisting is sought.
THE COURT NOTES THAT:
A.The issue of an order for preparation of a family report or for preparation of an expert’s report will be taken up with the parties and the Independent Child’s Lawyer on the next mentioned occasion.
IT IS NOTED that publication of this judgment under the pseudonym Jago & Jago is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 798 of 2019
| MR JAGO |
Applicant
And
| MS JAGO |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’). The child’s great-uncle Mr Jago is the applicant, and the child’s great-aunt Ms Jago is the respondent. There is an Independent Children’s Lawyer (‘the ICL’) on behalf of X who is the child the subject of these proceedings.
X was born in 2010 to Mr C and Ms D. Both of X’s parents were habitual drug users at the time of her birth, and, following the path already followed by her three half-siblings before her, X was taken into care at about the time of her birth by the then titled Department of Family and Community Services. At three weeks of age X was placed in the care of her great-aunt Ms Jago, the respondent in these proceedings (‘the aunt’), and her great-uncle, Mr Jago, the applicant in these proceedings (‘the uncle’).
X’s father, Mr C, is the son of the aunt’s brother, Mr E. He has not had care of X at any time during her life. However, throughout her life, and increasingly in recent years on a more regular basis, he has been able to spend some time with X on a fortnightly basis for some hours on a Sunday.
Tragically, X’s mother died in 2017. X is not aware of the detail of her mother’s passing at the current time, and, out of respect for all and concern for X, I will not give any further detail.
At the time of her birth, X was affected by withdrawal symptoms consequent upon her mother’s use of illegal drugs, and in particular amphetamines.
X’s three half-siblings (through her mother) are Mr F, aged 18 years, G, aged 15 years, and H, aged 12 years, at the time of the hearing. X sees her half-siblings occasionally, and in particular G and H, who are both still in the care of their foster carer Ms J with whom they were placed when they were very young, and X spends time with them by arrangement between the parties to these proceedings and Ms J.
On 1 September 2011, when X was nine months of age, a final order was made in the Children’s Court of New South Wales at Town K. The orders placed her under the parental responsibility of the Minister of the Department for a period of 12 months, and thereafter allocated parental responsibility to the Minister and to the aunt and uncle until she attains the age of 12 years, the Minister having a responsibility for contact for X, and the aunt and uncle having sole responsibility for all other aspects of her care.
The order provided that on the expiration of the parental responsibility order once X reached 12 years of age, the aunt and uncle would have sole parental responsibility for all aspects of her care until she attains the age of 18 years.
At the time of this hearing, X was 8 years and 10 months of age.
Pursuant to section 69ZK of the Act, this Court, as a Court having jurisdiction under the Act, must not make an order under the Act in relation to a child who is under the care of a person subject to a state child welfare law, unless, relevantly, such order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant state has been obtained.[1]
[1] Family Law Act 1975 (Cth) s 69ZK(1)(a)-(b).
At an earlier mention of this matter in the Court before his Honour Judge Altobelli on 28 August 2019, a letter dated 28 August 2019 from an authorised delegate of the NSW Minister – the Minister being the relevant ‘welfare officer’ for New South Wales, under regulation 12BA of the Family Law Regulations 1984 (Cth)[2] for the purposes of section 69ZK(1)(b)[3] of the Act – and dated 28 August 2019, was entered into evidence as exhibit A1. Accordingly, I am satisfied for the purposes of section 69ZK of the Act that the relevant consent has been given, and this Court may make an order under the Act in relation to X.
[2] Family Law Regulations 1984 (Cth) reg 12BA.
[3] Family Law Act 1975 (Cth) s 69ZK(1)(a)-(b).
The issue
The issue for determination in these interim proceedings is the time that should be spent between X and the uncle, and in particular whether that time should include any overnight time.
It was not in contest at the interim hearing that the parties’ parental responsibility for X pursuant to the Children’s Court order made on 1 September 2011 could become equal shared parental responsibility in terms of the Act, and that X would continue to live with the aunt.
X’s health
As referred to above, X’s first struggle was to overcome the health difficulties she carried at birth consequent upon her mother’s use of illegal drugs whilst pregnant, and then she has grown up to the age of eight in a household of, on either party’s evidence, some considerable tension, with only sporadic contact with her half-siblings and her parents, and losing her mother in 2017.
In mid-2018 X was diagnosed by paediatric psychiatrist, Dr L, with attention deficit hyperactivity disorder, oppositional defiant disorder and autism. Her paediatrician, Dr M, concurred with these diagnoses.
X was originally prescribed Ritalin, which assisted her in becoming better behaved and more settled, both at home and at school, and in beginning to make some academic progress. When side effects of the medication became apparent, she was prescribed Vyvanse instead, and has continued to improve in relation to behaviour, attention and self-confidence on that medication, and with the assistance of her treating psychologist, Ms A.
Materials relied upon
For the interim hearing, the uncle relied on the following documents:
a)Amended Application for Final Orders, filed 11 October 2019;
b)Notice of Risk, filed for the uncle on 29 July 2019;
c)Affidavit of the uncle, sworn 26 July 2019 and filed 29 July 2019;
d)Affidavit of the uncle, sworn 11 October 2019 and filed that day;
e)Affidavit of Mr N (the parties’ adult son), sworn 14 October 2019 and filed that day;
f)Affidavit of Ms O (the aunt’s elder sister), sworn 15 October 2019 and filed that day;
g)Financial Statement of the uncle, sworn or affirmed 11 October 2019; and
h)Case Outline prepared by the uncle’s solicitor advocate Ms Kovacevic filed 15 October 2019.
In the course of the interim hearing, the applicant also relied upon the following documents, tendered and entered as exhibits:
a)Exhibit A1 – a report dated 16 October 2019, prepared by Ms A, together with a letter dated 10 October 2019 from the uncle’s solicitors to Ms A; and
b)Exhibit A2 – a report dated 16 July 2019, prepared by Ms A, with certain parts highlighted in orange marker.
The following materials were relied upon by the aunt at the interim hearing
a)Response filed 26 August 2019;
b)Notice of Risk, filed for the aunt on 26 August 2019;
c)Affidavit of the aunt, sworn 22 August 2019 and filed 26 August 2019;
d)Affidavit of the aunt, sworn 11 October 2019 and filed that day; and
e)Affidavit of Ms A, sworn 20 August 2019 and filed 26 August 2019; and
f)Case Outline document, prepared by the aunt’s solicitor-advocate Ms Conti.
The aunt also relied on the following documents, tendered in the interim hearing and entered as exhibits:
a)Exhibit R1 – screenshot of text messages dated 1 September 2019;
b)Exhibit R2 – results of a urinalysis test dated 15 August 2019, undertaken by the aunt; and
c)Exhibit R3 – results of a carbohydrate-deficient transferrin (CDT) test, undertaken by the aunt on 15 August 2019.
The urinalysis drug test was conducted pursuant to chain of custody requirements under the Australian and New Zealand Standard 4308:2008 in chain of custody circumstances, and was clear of any positive results.[4] The CDT test was assayed by high-performance liquid chromatography, and Dr P stated a conclusion that “the normal CDT does not support excessive alcohol intake”.[5]
[4] Procedures for Specimen collection and the detection and quantification of drugs abuse in urine, Australia/ New Zealand Standard 4308:2008.
[5] Exhibit R3, tendered on 25 October 2019.
The ICL relied on:
a)Case Outline document prepared by Ms Mowbray and filed on 18 October 2019. This document contains a helpfully comprehensive chronology of the matter, cross-referenced to the parties’ evidence, and submissions in relation to the primary and additional considerations under section 60CC of the Act; and
b)A minute of order proposed by the ICL and handed up during the proceedings.
The parties’ proposals
The uncle sought orders summarised as follows:
a)That the parties have joint parental responsibility for X – not an application for equal shared parental responsibility or for sole parental responsibility, but for “joint” parental responsibility;[6]
[6] Applicant’s Amended Application for Final Orders filed on 11 October 2019, p 2, [2].
b)That each party have sole responsibility for making decisions about X’s day-to-day care, welfare and development during periods when X lives with or spends time with each of them. [7]
[7] Applicant’s Amended Application for Final Orders filed on 11 October 2019, p 2, [3].
I comment here that this is an unnecessary order, given the terms of section 65DAE, which has been in the Act addressing day-to-day responsibility since 2006. [8]
[8] Family Law Act 1975 (Cth) s 65DAE.
c)That for a period of two months after orders, X spend time with the uncle during school term and school holidays each alternate weekend from the end of school on Friday until 5:00PM on Saturday, and during the ‘off week’ on Monday and Wednesday from the end of school until 7:00;
d)That following the two months referred to in order (c), X spend time with the uncle during school terms and school holidays each alternate weekend from the end of school on Friday until before school on Tuesday, and during the ‘off week’ on Monday and Wednesday from the end of school until 7.00PM;
e)That following the two months referred to in order (d), X spend time with the uncle during school terms and school holidays each alternate weekend from the end of school on Friday until before school on Wednesday, and during the ‘off week’ on Monday and Wednesday from the end of school until 7.00PM;
f)Thereafter, X live with the uncle and the aunt on a week-about basis from 3:00PM Monday “to the following Monday prior to school, irrespective of whether it is a school day come non-school day or school holidays”;[9]
[9] Applicant’s Amended Application for Final Orders filed on 11 October 2019, p 6, [6].
g)That when changeover is not occurring through school, changeover occur at Town Q McDonald’s;
h)That X be in the aunt’s care on the Mother’s Day weekend from 9.00AM until 5.00PM on Mother’s Day;
i)That X be in the uncle’s care on the Father’s Day weekend from 9.00AM until 5.00PM on Father’s Day;
j)That the uncle spend time with X from 12.00PM Christmas Day 2019 to 12.00PM Boxing Day 2019;
k)That each of the parties be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other in the presence or hearing of X, and from permitting any other person to do so;
l)That each of the parties be restrained from discussing the Court proceedings, filed documents or private adult information of either party in the presence or hearing of X, and from permitting any other person to do so;
m)The party without care of X on her birthday “be at liberty”[10] to spend three hours with X immediately after school if a school day, or from 12:00PM to 6:00PM if a non-school day;
n)That on a party’s birthday, in the event that X is not living or spending time with that party, they shall “be at liberty”[11] to spend three hours with X immediately after school if a school day, or from 12:00PM to 6:00PM if a non-school day;
o)Each party be authorised to receive all relevant information from X’s school;
p)That the aunt be restrained from consuming or being affected by alcohol or any illicit substances during any time that X is in her care;
q)That the aunt enrol in an anger management program and attend for the course of the program;
r)That each party keep the other informed at all times of the names and addresses of each treating medical practitioner or other health professional who treats X, and authorise such to provide all information to and communicate with the other party;
s)That each party keep the other informed as soon as reasonably practical of all relevant hospitalisation or medical attention information, medical problems or illnesses suffered by X, medication prescribed for X, medical appointments with health professionals for X, any school, social or religious functions which X is to attend, and “any other matter relevant to the welfare of the child”;[12]
t)That each party keep the other informed of the party’s residential address and notify any change 14 days in advance of such change;
u)That each party keep the other informed of any new contact telephone number upon it being issued; and
v)That the aunt pay the uncle’s costs of the application.
[10] Applicant’s Amended Application for Final Orders filed on 11 October 2019, p 7, [12].
[11] Applicant’s Amended Application for Final Orders filed on 11 October 2019, p 7, [13].
[12] Applicant’s Amended Application for Final Orders filed on 11 October 2019, p 8, [18.6].
The uncle was represented by his solicitor advocate, Ms Kovacevic, at the interim hearing, and submissions were made on his behalf by Ms Kovacevic in her case outline and at the interim hearing.
The aunt sought the following orders:
a)That the parties have shared parental responsibility for X – not equal shared parental responsibility - for X;
b)That X live with the aunt;
c)That X spend time with the uncle as agreed between the parties, but failing agreement:
i)Each Monday and Wednesday from the end of school until 7.00PM;
ii)Each Saturday from 11.00AM until 4.00PM;
iii)On the uncle’s birthday, if not a school day from 9.00AM until 5.00PM, and if a school day from the end of school until 7.00PM;
iv)On Father’s Day from 1.00PM until 6.00PM; and
v)“on Christmas” from 8.00AM until 1.00PM;[13]
[13] Case Outline of the Respondent filed 15 October 2019, p 3, [(4)(d)].
d)That the uncle’s time with X be suspended and the child spend time with the aunt as follows:
i)From 25 November 2019 until 6 December 2019 for the purpose of the child accompanying the aunt on a cruise booked prior to the parties’ separation;
ii)On the aunt’s birthday, if a non-school day from 9.00AM until 5.00PM, and if a school day from the end of school until 7.00PM;
iii)On Mother’s Day from 9.00AM until 5.00PM; and
iv)“on Christmas” from 1.00PM until 6.00PM;
e)Where changeover does not take place at X’s school, changeover occur by the aunt delivering X to the uncle’s address at the start of his time, and the uncle delivering X to the aunt’s address at the end of his time;
f)That the parties facilitate telephone communication between X and the uncle from 5:30PM to 6:00PM each Sunday, with the uncle to initiate the call to the aunt’s home phone number in the first instance, and failing that to call the aunt’s mobile number;
g)That each parent immediately notify the other parent of any serious illness, medical emergency, serious medical problem, hospitalisation or accident in relation to X when X is in their care, and that, together with such notice, the party provide the name of the hospital, treating medical practitioner or medical facility that provided medical treatment for X;
h)That the parties keep each other informed of their residential address and mobile phone contact number; and
i)That the uncle pay the aunt’s costs.
The aunt was represented by her solicitor advocate, Ms Conti, at the hearing. Ms Conti made submissions in the case outline document prepared by her for the aunt and at the interim hearing.
Pursuant to an order made by his Honour Altobelli on 28 August 2019 under section 68L of the Act,[14] an ICL was appointed for X. Ms Mowbray, a highly experienced child’s representative, represented the interests of X at the interim hearing. Ms Mowbray provided written submissions in her case outline document and made submissions at the interim hearing.
[14] Family Law Act 1975 (Cth) s 68L.
Notices of Risk
In compliance with the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), a Notice of Risk was filed by each of the parties. Each of the Notices of Risk asserted that there was risk to X in the care of the other party.
The Notice of Risk filed for and relied upon by the uncle asserted that the aunt presented a risk to X by reason of:
a)A history of the aunt perpetrating family violence, both by abusive and insulting language and manner and by physical violence towards the uncle,
b)The aunt being affected by mental health issues,
c)The aunt having a history of abusing alcohol and the illicit drug marijuana;
d)The aunt being affected by anger management issues; and
e)The aunt being a danger to the child’s psychological welfare through the aunt alienating the child from the uncle.
Whilst I will deal with most of the abovementioned risk issues in detail in the evidence of the parties and in my consideration of the best interests of X through the primary and additional considerations in section 60CC of the Act, I comment here that the aunt denies that she is affected by mental health issues. Furthermore, there is no evidence to show that the aunt is now or has been in the past affected by mental health issues, other than one occasion many years ago, when she sought some appropriate assistance for a depression episode.
In relation to the uncle’s assertion of risk presented to X by the aunt in consequence of the aunt’s use of marijuana, the evidence is clear from both parties that they were both heavy and persistent users of marijuana from early in their marital relationship. They persisted with the use of marijuana throughout the childhood of both of their own children, and deep into the period of time when X was in their care, each having last used marijuana about six months prior to the interim hearing.
In her Notice of Risk, the aunt asserts that the uncle is a risk to X in that:
a)He seeks orders that X spend time overnight with him and away from the aunt, and that such an occurrence will cause psychological harm to X phrased in the terms that any such “significant period of separation” of X from the aunt will cause X a “major setback”;[15]
b)The uncle has perpetrated family violence by physical assault on the aunt in the past; and
c)The uncle has a “serious parental incapacity”[16] –which the aunt in her Notice of Risk links back to the uncle seeking overnight time with X, with the consequence then being that X cannot sleep with the aunt and the subsequent impact of that circumstance on X.
[15] Respondent’s Notice of Risk filed 26 August 2019, p 3,[(2)(b)].
[16] Respondent’s Notice of Risk filed 26 August 2019, p 5,[(4)(d)].
The evidence
The uncle is 61 years of age and the aunt is 56 years of age. The uncle has been employed at all relevant times and continues in employment as a labourer. The aunt has been in employment at various times, but at the time of the interim hearing was engaged in home duties and in receipt of the Newstart Allowance from Centrelink.
The parties commenced cohabitation in 1979, married in 1980 and separated on 9 May 2019. They have two children, both of whom are now adults, Ms R, aged 38 years, and Mr N, aged 35 years. Both children live independently and have done so for a long time.
In the uncle’s affidavit filed with his application, sworn 26 July 2019, he gives a lot of back history of the parties’ relationship. I find that the material contained in paragraphs 14 to 40 of that affidavit do not assist me in the task of ascertaining what orders are appropriate to be made in the best interests of X, with X’s interests as the paramount consideration.
In amongst that material, he gives description of how the aunt is asserted to have “thrown Ms R out of the home”[17] in 2001, but the evidence in its totality makes it obvious that it was an act on the part of both parties. At the relevant time, Ms R was either 19 or 20 years of age.
[17] Affidavit of Mr Jago filed 29 July 2019, [30].
The matter is also referred to in the affidavit of Mr N, which concentrates on the sad effect of that occurrence on Mr N himself.[18] That is by no means a criticism of Mr N– his evidence is sad, and the effects he describes are entirely understandable.
[18] Affidavit of Mr N filed 14 October 2019, [47].
Similarly, I find that paragraphs 9 to 38 of the aunt’s initial affidavit, sworn 22 August 2019, are of a similar nature and also do not assist me.
The uncle asserts that at the time of the parties’ separation on 9 May 2019, the aunt was drinking alcohol heavily, was affected by the alcohol, an argument developed, and as a result the aunt and X left the former matrimonial home. The aunt denies that she was drinking on that day. On leaving the home, the aunt and X went to stay with the aunt’s mother. The uncle says that he had no contact with the aunt or X until 15 May 2019.
On 16 May 2019 both parties attended a school event for X. The uncle complains that X ignored him at the event, and he blames the aunt for that attitude by X, whereas the aunt says that X was having a wonderful time with her friends and that she ignored both parties on the occasion.
On 23 May 2019 the uncle vacated the former matrimonial home so that the aunt and X could reoccupy the home. On 29 May 2019 the aunt told the uncle that she was happy for him to come to the home and see X whenever he wanted to. Occasions began where in the morning the uncle would bring to the home a food of which X was very fond to give to X and that he would then, at the aunt’s request, drive X to school.
The uncle commenced these proceedings by filing his Initiating Application on 29 July 2019. The aunt responded on 26 August 2019.
The matter came before the Court for its first return on 28 August 2019. On that day, by consent, interim orders were made for:
a)X to spend time with the uncle commencing 2 September 2019 each Monday and Wednesday from 3.30PM to 5.30PM; and
b)Commencing 7 September 2019 each Saturday from 11.00AM until 4.00PM; and
c)On Father’s Day from 3.30PM to 5.30PM, changeover occurring at Town Q McDonald’s; and
d)For the parties to facilitate telephone communication between X and the uncle from 5.30PM to 6:00PM on each day that X is not already spending time with the uncle, with the uncle to initiate the call to the aunt’s home phone number in the first instance, and failing that to call the aunt’s mobile number; and
e)The order appointing an ICL was made, and the matter was adjourned to 18 October 2019 for interim hearing.
His Honour did not have the capacity to deal with the matter on 18 October 2019 and the matter was further adjourned to 25 October 2019 before me.
Following the orders being made on 28 August 2019, the uncle began to spend time with X pursuant to those orders. Those occasions are highlighted in his affidavit prepared for these proceedings.[19]
[19] See Affidavit of Mr Jago filed 11 October 2019, [5]-[37].
The uncle says that on the first occasion under the orders on 1 September 2019 (though the first occasion under the orders was supposed to be 2 September 2019), he spent two hours with X, and at the start, she ran up to him and gave him a “big cuddle”.[20] They went to the unit he had rented for his own accommodation, and X saw the bedroom that he had ready for her should she start to spend overnight time with him.
[20] Affidavit of Mr Jago filed 11 October 2019, [5].
On a subsequent visit, X had opportunity through the uncle to spend time with Ms R and the parties’ grandchildren– Ms R and the parties having been estranged since the occurrence in 2001 when Ms R was thrown out of the home.
On occasions, the changeover at the end of the uncle’s time occurred by the uncle returning X to the aunt’s residence at the former matrimonial home rather than changeover at McDonald’s, at the aunt’s request.
The evidence of the parties conflicts in relation to the occasion on 11 September 2019, a Wednesday, in that the uncle asserts that the occasion was cancelled by the aunt on the excuse that she did not have sufficient petrol to take X to the changeover points and to collect her. The aunt asserts that the time did occur, that she was short of petrol and so the changeover took place at the McDonald’s at the start of the time, but that at her request, the uncle brought X back to her home at the end.
Inherent in the evidence of both parties is that on occasions, by arrangement between them, the time the uncle spent with X was varied from the strict timetable provided in the interim orders made 28 August 2019. For instance, on 29 September 2019, the uncle spent time with X by way of ‘make‑up time’ by arrangement between the parties, being another occasion on which the uncle and X went and visited Ms R and her children. On that occasion, X unfortunately rolled off the couch and struck her neck on the side of a wooden coffee table, an incident referred to in both parties’ evidence.
On 2 October 2019, again by arrangement between the parties and in variation of the interim orders, the uncle spent from 10:00AM until 4:00PM with X because the next day, X was accompanying the aunt for a short holiday at a caravan location.
In her affidavit of 11 October 2019, the aunt describes an occasion on 25 September 2019 when X had cause to expect the uncle to visit her in the early morning before school at her home to bring her some food and so that she could show him her pet guinea pig. The uncle failed to turn up, which caused X great disappointment.[21]
[21] Affidavit of Ms Jago filed 11 October 2019, [14]-[15].
I take particular note of paragraph 91 of the aunt’s affidavit of 22 August 2019 in which she says:
X has a good relationship with Mr Jago and I would not want to take that away from either of them. I am just concerned about the effect that significant time away from me will do to X at this stage of her progress. [22]
[22] Affidavit of Ms Jago filed 26 August 2019, [91]. Mr Jago is the name used by the aunt to refer to the uncle throughout her affidavit sworn 22 August 2019.
I also note paragraph 20 of her affidavit of 11 October 2019 where she says:
Since the current arrangements have started, X has slowly become accustomed to spending time with Mr Jago and is fairly comfortable to do so now, provided that she knows that she is coming back home. She continues to say things to me such as, “I don’t want to sleep over at Uncle Mr Jago.[23]
[23] Affidavit of Ms Jago filed 11 October 2019, [20].
Both parties in their evidence admit their long‑term use of marijuana, and both indicate that they each ceased that use about six months prior to the interim hearing. There is nothing in the evidence to indicate otherwise.
Tragically, their son Mr N in his affidavit gives evidence of both he and his sister Ms R being involved in their parents’ drug use by being told to wait at home for drug deliveries, by being sent across the road to obtain drugs from relatives, and, on Mr N’s part, by him being inducted into the use of marijuana through his parents.
In paragraph 77 of his affidavit of 26 July 2019, the uncle says:
At times Ms Jago has patience in dealing with X. When she couldn’t handle X, it was typical of Ms Jago to go out on the back veranda and just sit and contemplate while she smoked.[24]
[24] Affidavit of Mr Jago filed 29 July 2019, [77].
The aunt in her evidence denies this assertion. In Mr N’s affidavit at paragraph 56, he says:
My mother spent most days sitting on the back veranda, chain‑smoking and drinking coffee or alcohol, rather than caring for X.[25]
[25] Affidavit of Mr N filed 14 October 2019, [56]
Also, in paragraph 63, he says:
All my mother did was sit on the veranda, drinking and smoking. At this stage, my mother was drinking at least three bottles of wine a night. Not once did I ever see her play with X, she would not come to the shops, park, beach or any activity when my father and I took X out.[26]
The period of time being referred to by Mr N in paragraph 63 is in about 2017 as indicated by paragraph 61 of his affidavit.[27]
[26] Affidavit of Mr N filed 14 October 2019, [63]
[27] Affidavit of Mr N filed 14 October 2019, [61]
Both parties in their evidence give detail of family violence occurring between them, as follows:
a)The uncle says that in the late 1980s, the aunt punched him on the body and in the face in the presence of their children. The aunt denies that this occurred;
b)The uncle asserts that in 2004, whilst the aunt was driving their motor vehicle and he was in the front passenger seat, the aunt grabbed him by the hair at the back of his head and slammed his face into the car dashboard more than once causing him to have a bleeding nose and pain. Whilst Mr N describes this incident in his affidavit, including that the aunt slammed the uncle’s face into the dashboard three times, the aunt denies that it occurred;[28]
c)The uncle asserts that in 2007, the aunt pushed him into a wall with such force that it caused damage to the wall. Mr N gives evidence in corroboration of the uncle his affidavit.[29] The aunt denies that this occurred;
d)The uncle asserts that in 2009, the aunt was swinging punches at him and that he took the aunt in a headlock until she stopped. The aunt denies that she swung punches at the husband and says that the husband grabbed her by the throat and choked her until she collapsed on the floor;
e)The uncle asserts that in 2011, the aunt smacked him in the head. The aunt denies that this occurred;
f)The uncle asserts on a general basis in his affidavit of 26 July 2019 that: “In between these incidents, there was a lot of manhandling where Ms Jago would punch me or grab me by the scruff of my neck in anger.”; [30]
g)In her affidavit of 22 August 2019, the aunt says, “I admitted there were probably two or three times when things became physically between us, but that was on both sides.”;[31]
h)Mr N’s account is that “There were countless occasions when I saw my mother punch my father in the face or nose…his nose was broken on at least five occasions,” and “My mother was verbally abusive to my father, my sister and myself on a daily basis.”[32]
[28] Affidavit of Mr N filed 14 October 2019, [33].
[29] Affidavit of Mr N filed 14 October 2019, [34].
[30] Affidavit of Mr Jago filed 29 July 2019, [56].
[31] Affidavit of Ms Jago filed 26 August 2019, [81].
[32] Affidavit of Mr N filed 14 October 2019, [35]-[36].
There are no occasions of physical family violence particularised in the evidence past the incident in 2011 when each party accuses the other of an assault.
Current circumstances
The uncle resides in a two‑bedroom unit very close to the school attended by X and 15 minutes travel from the former matrimonial home. The uncle occupies the premises alone. He continues his employment as a labourer working seven days on and seven days off, with working days being for 12‑hour shifts.
The aunt and X continue to occupy the former matrimonial home at S Street, Suburb T. As noted earlier the aunt receives the Newstart Allowance from Centrelink.
X attends U School and was in year 3 at the time of the interim hearing – she would now be in year 4 with the turn of the new year.
There is a history in the evidence, including in the subpoenaed documents entered as exhibits, indicating that both the uncle and the aunt would usually attend together at appointments relating to X with her health professionals and would attend together at school functions and parent‑teacher interviews except on occasions when the uncle was unavailable due to the requirements of his employment.
For sport and activity, X engages in swimming and since September 2018 has been learning dance after school on Thursdays.
I have read and considered carefully the whole of the contents of the affidavit by Mr N sworn 14 October 2019. Mr N had occasion in 2015 to make a report to the then Department of Family and Community Services about the care that he considered X was receiving – in his view, inadequate care – from both of the parties.
Although the material in exhibit from the Department of Communities and Justice relating to these reports make it obvious that Mr N had not actually seen or spent time with his parents and X for at least 12 months prior to making the report, it is inherent in his criticisms relating to the care of X up to the time of the parties’ separation that he considered there was deficiency in the care provided by both of the parties.
Affidavit evidence is relied upon by the uncle in his case from the mother’s elder sister, Ms O. Mr N, in his evidence, refers to Ms O often being present at the parties’ home in the early days after X came into their care to assist the aunt with the care of X while the uncle was at work.
Ms O gives evidence that in 2017, she made a report to the then Department of Family and Community Services out of concern for X, consequent upon what she asserts was her witnessing of habitual abuse of alcohol by the aunt. Ms O says that she has not spoken to the aunt since 12 November 2012, and it is inherent in her evidence that she has not been a witness to the care of X since at least that time.
The evidence of Ms A, registered psychologist
Ms A is a registered psychologist and X’s current treater. In her affidavit, she does not make any reference to the relevant rules relating to expert evidence.[33] Nevertheless, all of her evidence is very relevant and very important to be considered in this matter given that she is X’s treater.
[33] Affidavit of Ms A sworn 20 August 2019.
There are two reports by Ms A in evidence, a report of 16 July 2016, which is annexed to her affidavit and which is also entered as exhibit A2, and a report dated 16 October 2019 which is exhibit A1. There is also a shortened version of the report dated 16 July 2019 to be found in the materials produced on subpoena by Ms A that is exhibit ICL1, in relation to which I will make short comment hereunder.
Ms A had had six sessions with X up to the time of her report of 16 July 2019. She notes that X had been diagnosed by paediatricians as being affected by a mild intellectual disability, trauma, suffering from oppositional defiant disorder, and suffering from attention deficit hyperactivity disorder, for which she was medicated. Ms A further notes that there has been significant improvement in X’s behaviour, attention and self‑confidence since October 2018 when X commenced on medication and commenced her therapy with Ms A.
In the report of 16 July 2019, I note in particular that she says:
Any changes to her living arrangements could be detrimental. X has a secure attachment to Ms Jago. She sleeps with Ms Jago and relies upon her for her comfort when she is upset or distressed. I asked X in our last session what would happen if she couldn’t be with Ms Jago at night‑time, and she said that she would go looking for Ms Jago and she wouldn’t be able to sleep without her. X does not mind visiting other relatives or friends as long as she stays and sleeps with Ms Jago.[34]
[34] Exhibit A2, [3].
It was pointed out in submissions on behalf of the uncle by Ms Kovacevic that there is no indication that X was asked by Ms A what would happen if she could not be with the uncle at night‑time. It is apparent from the evidence that for at least some period of time, whether right up to the time of separation or not it cannot be said, X would sleep each night in the same bed with the aunt and the uncle.
At the end of the report of 16 July 2019, Ms A includes the sentence, “[X] has had very limited contact with Mr Jago.” [35]
[35] Exhibit A2, [3].
I note that in the evidence there are two copies of reporting letters written by Ms A that are near identical in form and content. One was tendered and exhibited as A2 and is dated 16 July 2019. The other was a draft and is dated 1 July 2019. That draft letter formed part of exhibit ICL1. The two versions of the reporting letter are identical except for an additional introductory paragraph in the draft letter referring to the letter of request for a report, and the draft includes the words, “She has had very limited contact with Mr Jago.”[36]
[36] Exhibit ICL1, letter from Ms A, p 2, [3].
There is no indication in any of the material of the basis upon which that statement is made by Ms A as to whether it is based upon anecdotal telling by the aunt or by X or discussions with the uncle. There is no means of drawing any definition from what is meant by “very limited contact”[37] or the period of time being referred to. That sentence in the report of 16 July 2019 does not assist.
[37] Exhibit A2, [3].
The subsequent report by Ms A dated 16 October 2019, entered as exhibit A1 and provided in response to a letter of request received by her from the solicitors for the uncle, says:
I have no doubt that Mr Jago has been involved in the school life of X and he has helped with her homework, etcetera. It would be a benefit for him to continue to have involvement in her school life and to help with her homework and reading. He had a real concern for X when I met with him and Ms Jago, and I am sure that he wants what is best for her. As for their sleeping arrangements, X was in between both Ms Jago and Mr Jago in their bed. However, since Mr Jago left, X has been sleeping with Ms Jago, and she says that she won’t sleep anywhere without “Aunty Ms Jago”. This may change once she spends more time with Mr Jago and feels comfortable at his new place. However, I am not sure how long this transition will take as she is a child who does not cope well with change.[38]
[38] Exhibit A1, [1].
In relation to the evidence from the uncle, Mr N, and Ms O in relation to the aunt’s use of alcohol, I note the results of the carbohydrate‑deficient transferrin test dated 15 August 2019, contained in exhibit R3. The urine drug test undertaken by the aunt on 15 August 2019 indicates that cannabis metabolites were not detected. Cannabis metabolites endure in the substance tested for certainly a period of several weeks and usually for some months. No evidence of a test having been undertaken by the uncle is before the Court. In any event, however, I have comfort from the evidence of both parties that they are satisfied that each has ceased use of marijuana about six months before the interim hearing.
In relation to the balance of the exhibits, I have read and carefully considered all of the material:
a)Produced on subpoena by Ms A, which forms ICL1;
b)Produced on subpoena by New South Wales Police, which forms ICL2;
c)Produced on subpoena by V Medical Centre which forms ICL3;
d)Produced on subpoena by U School, which forms ICL4; and
e)Produced on subpoena by the Department of Communities and Justice, which forms ICL5.
There is nothing further in that material which requires specific comment in relation to the evidence to be considered in these proceedings.
The law
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[39]
[39] MRR & GR (2010) HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[40] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[40] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[41] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[42]
[41] Family Law Act 1975 (Cth) s 65D(1).
[42] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [43]
[43] Family Law Act 1975 (Cth) s 60CC
Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[44]T
[44] Family Law Act 1975 (Cth) s 61DA
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[45]
[45] Family Law Act 1975 (Cth) s 60B
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[46] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[47]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[48]
[46] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[47] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[48] Family Law Act 1975 (Cth) s 65DAA(1)(c).
In this matter, neither the presumption of equal shared parental responsibility nor the considerations under section 65DAA that would flow from the presumption are relevant as neither of the parties to these proceedings is a parent of X.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamison:[49]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition. [50]
[49] Grella & Jamison [2017] FamCAFC 21.
[50] Grella & Jamison [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[51] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative [52]; Napier & Hepburn[53]; Johnson & Page[54]; Deiter & Deiter[55]; and Eaby & Speelman[56].
[51] M & M (1988) FLC 91-973.
[52] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[53] Napier & Hepburn (2006) FLC 93-303.
[54] Johnson & Page (2007) FLC 93-344.
[55] Deiter & Deiter [2011] FamCAFC 82, [61].
[56] Eaby & Speelman (2015) FLC 93‑654.
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform the function of the Court and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[57] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[58]
[57] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[58] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[59] this approach “enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”
[59] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
The section 60CC considerations
The primary considerations in section 60CC of the Act are 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 from being subjected to or exposed to abuse, neglect or family violence.[60] Section 60CC(2A) mandates that the Court must give greater weight to the consideration of protecting the child over the consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents.
[60] Family Law Act 1975 (Cth) s 60CC(2).
In this matter the first of the primary considerations does not apply in relation to the issue between the parties to the proceedings. The parties to the proceedings are the child’s great aunt and great uncle. X’s only surviving parent is her father, she spends time with her father by arrangement between her father, the aunt and uncle and the Department of Communities and Justice. Her mother has passed away.
There is not sufficient evidence in these proceedings for me to give any consideration to the benefit to X of having a meaningful relationship with her father.
I give all of my attention to the second of primary considerations, the need to protect X from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence.
Each of the parties have asserted that the other party presents a risk to the child. Those risks are as set out above.
X has grown up in the care of the parties from the age of three weeks until the parties separated on 9 May 2019. Thereafter she has been primarily in the care of the aunt with short occasions, not including overnight, of time spent with the uncle. During those occasions, X is beginning to re-establish a relationship with the aunt and uncle’s adult children and grandchildren.
It is inherent in the orders sought by the uncle in these interim proceedings that he does not consider that any risk to X presented by her being in the care of the aunt is an unacceptable risk, despite the matters set out in his Notice of Risk as referred to above as on the interim basis the uncle does not seek to disturb the circumstance of the aunt being X’s primary carer. Rather, the uncle seeks orders that he spend time with X on a graduating basis through a six-month period to a circumstance where the parties share care of X on a week-about basis. In proposing the graduated scheme of his spending time with X culminating in shared-care week-about arrangement he cannot assert that the aunt presents an unacceptable risk to X.
On her part the aunt asserts that the risk presented to X in the care of the uncle (and leaving the family violence aside for the moment) is only in relation to the uncle’s application seeking that X spend time overnight with him starting immediately and on a graduating basis culminating in week-about care.
She asserts that X being away from her overnight with the uncle, – or for that matter, based on her evidence and the submissions put on her behalf, with anyone, – would be a risk to X’s psychological welfare as it would cause her anxiety and distress, as she has not been away from the aunt overnight during her life and still requires to co-sleep with the aunt and to be cuddled to sleep. In this regard the aunt relies on the evidence of Ms A in her report of 16 July 2019.
X is a vulnerable child who has had a troubled history from the time of her birth. She has been diagnosed by her paediatrician as suffering from ADHD, from ODD, and autism. The aunt has been her primary carer throughout her life. I find that at the present time there is a need to protect X from any risk of psychological harm that would be caused by requiring her to spend time overnight away from the aunt. This is not to say that should become the situation which will continue indefinitely, more time between the uncle and X is needed and more expert evidence is needed before an informed finding can be made as to when it would be appropriate for overnight time between X and the uncle to begin.
In relation to the other risk elements in this matter going to the evidence of family violence asserted by each party against the other and the joint historic abuse of marijuana, I have carefully considered all of that evidence, including the evidence of the parties’ son Mr N. I find that, taken at its height, such evidence does not present an unacceptable risk to X such that it would affect the issue of the time X is to spend with the uncle to any greater degree than the need to protect X from any risk of psychological harm from being separated from the aunt for overnight periods at the present time.
I will now consider the evidence going to the assertions of the aunt’s abuse of alcohol, and in that regard I have read carefully the evidence of the parties’ adult son Mr N and the aunt’s elder sister Ms O, I find that any risk presented to X in that regard, whilst difficult to determine on the basis of the contested evidence, can be addressed and mitigated by an injunctive order restraining the aunt from consuming any alcoholic drink, whilst X is in her care or coming into her care, to such an extent that it would be illegal for her to drive a motor vehicle in New South Wales on a full licence. Meaning that the aunt must maintain a blood alcohol level of less than 0.05 millilitres of alcohol per litre of blood.
In relation to this issue I have some comfort in the morass of contested evidence from the CDT test tendered into evidence as exhibit R3.
In relation to the additional considerations, we do not have any evidence in relation to X’s views other than the statement she has reportedly made to Ms A that if she couldn’t be with the aunt at night-time she would go looking for the aunt and would not be able to sleep without her.[61]
[61] Family Law Act 1975 (Cth) s 60CC(3)(a).
I have no doubt on all of the evidence that X has a meaningful, close and loving relationship with each of the aunt and the uncle.[62]
[62] Family Law Act 1975 (Cth) s 60CC(3)(b)(ii).
A relevant additional consideration under section 60CC of the Act in this matter is the likely effect of any change in X’s circumstances including the likely effect on her of any separation from the aunt and separation from the uncle.[63] It would seem on the basis of the evidence that there is a need for caution in relation to separating X from the aunt for periods of time in excess of the full day and to refrain at the present time from going to overnight time between X and the uncle until there is better evidence available to the Court of the likely effect of such time.
[63] Family Law Act 1975 (Cth) s 60CC(d).
There is no practical difficulty or expense involved in X spending time with the uncle as he resides close to her school and close to where the aunt and X reside.[64]
[64] Family Law Act 1975 (Cth) s 60CC(3)(e).
While the evidence presented in this matter throws up some questions about the capacity of each of the parties to provide for X’s needs (including her emotional and intellectual needs) on the current state of the evidence I do not find that there is a basis to choose between them in this regard.[65]
[65] Family Law Act 1975 (Cth) s 60CC(3)(f)(ii).
In relation to family violence, I find that on the evidence there are reasonable grounds to believe that there has been family violence between the aunt and uncle, though the cross-accusations of violence are all denied. There is corroboration for some of the accusations by the uncle that the aunt has perpetrated physical violence against him to be found in the evidence of their adult son, Mr N.[66] The family violence referred to is historical family violence, only meaning that the incidents particularised have occurred no later than 2011, and there is nothing particularised of recent years asserted to have occurred in the presence of or within the hearing of X.[67]
[66] See for example, Affidavit of Mr N filed 14 October 2019, [33].
[67] Family Law Act 1975 (Cth) s 60CC(3)(j).
After consideration of the relevant matters in section 60CC of the Act, I find that it is in X’s best interest to remain living with the aunt as her primary carer on the interim basis and to have orders made that she spend time with the uncle as proposed by the ICL.
Parental responsibility
Unlike the reference to ‘parents’ in sections of the Act such as:
a)In sections 60CC(2)(a) and (ca);
b)In section 61DA in relation to the presumption of equal shared parental responsibility; and
c)Throughout section 65DAA of the Act;
the reference to ‘parental responsibility’ in section 61B does not confine orders in relation to parental responsibility to the parents.[68]
[68] A parenting order confers parental responsibility for a child on a person…”, Family Law Act 1975(Cth) s 61D(1).
Both the aunt and the uncle have had parental responsibility for X under the New South Wales state legislation, shared in relation to ‘responsibility for contact for the child’ with the Minister for Communities and Justice, since the order was made in the Children’s Court on 1 September 2011. There is nothing in the evidence that leads me to find other than that it is appropriate on the interim basis for an order to be made that the aunt and the uncle have equal shared parental responsibility for X.
As pointed out earlier, the uncle seeks an order that the parties have joint parental responsibility and the aunt seeks an order the parties have shared parental responsibility for X. Neither term is appropriate. I find that the appropriate order is for equal shared parental responsibility, bringing with it the statutory requirement set out in section 65DAC of the Act, requiring decisions about X’s major long-term issues to be made jointly by them, and in that regard they are required to consult in relation to such decisions and to make a genuine effort to come to a joint decision about the relevant issue.[69]
[69] Family Law Act 1975 (Cth) s 65DAC.
With a view to final orders in this matter, the Court would be greatly assisted by an expert’s report rather than a family report, but, as always, that is a matter that must take into account the parties’ ability to fund such a report. That is a matter that can be dealt with at the further mention of this matter to follow the making of the interim orders.
For these reasons I make orders in accordance with those set out at the start of these reasons.
I certify that the preceding one hundred twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 18 May 2020
Key Legal Topics
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Family Law
Legal Concepts
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Procedural Fairness
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