Jarry and Reston

[2019] FCCA 1824

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARRY & RESTON [2019] FCCA 1824

Catchwords:
FAMILY LAW – Parenting – where the Mother failed to file Response material – where the Mother was aware of the proceedings but failed to appear at the hearing – where the matter proceeded on an undefended basis – where the orders made were in the best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(b), 60CC(3)(g), 60CC(3)(i), 60CC(3)(m), 60DA, 66DAA.

Cases cited:

Banks & Banks [2015] FamCAFC 36
Narkis& Narkis (No 4) [2017] FamCA 200

Applicant: MR JARRY

Respondent: MS RESTON

File Number: TVC 196 of 2019

Judgment of: Judge Andrew

Hearing date: 18 April 2019

Date of Last Submission: 18 April 2019

Delivered at: Town G

Delivered on: 18 April 2019

REPRESENTATION

Solicitors for the Applicant: Ruddy Tomlins & Baxter

There being no appearance by or on behalf of the Respondent

ORDERS

THE COURT ORDERS ON A FINAL BASIS:

Parental Responsibility

1. That the Father, MR JARRY have sole parental responsibility for issues relating to the long term care, welfare and development of the child [X] born … 2012, (referred to as the “Child”) including by not limited to:

   (a)Any medical or health matter concerning the Child;

   (b)Any medical or health matter concerning either parent which may affect the ability of that parent to care for the Child;

   (c)Matters relating to the education of the Child, including but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, order forms for the school photographs and all communications from the Children’s school other than with respect to routine or administrative matters;

   (d)Disciplinary matters other than of a trivial nature;

   (e)Matters concerning the social development and sporting activities of the Child;

   (f)Matters concerning the religion or faith of the Child; and

   (g)Generally, any matter regarding the child in respect of which a parent should be informed of or consulted having regard to the provisions of Part VII of the Family Law Act.

2. That the Father shall be responsible for the day-to-day care, welfare and development of the Child whilst she is living with him.

Living and Time Arrangements

1. That the Child live with the Father.

2. That the Child spend time with the Mother, MS RESTON, supervised by the Father or such other person as nominated on his behalf, and at such times and locations as nominated by the Father from time to time.

Drug Testing

1. That the Mother, Ms Reston is restrained from using illicit drugs.

2. That until 31 December 2021, the Mother, Ms Reston is to submit to urinalysis and hair follicle tests for the detection of such drugs randomly at appointments made by the Father and/or his lawyers, not being more often than once per month.

3. That for the purpose of hair follicle tests, Ms Reston shall not cut her hair shorter than 3 centimetres until the date specified in the Order 6.

4. That within 24 hours of the date of this order Ms Reston obtain from a medical practitioner a referral to a pathologist for the conduct of such tests.

5. That the tests be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of illicit drugs.

6. That Ms Reston provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the Applicant and/or Applicant’s lawyers immediately upon its completion.

7. That each test shall be for the detection of amphetamine-type substances, cannabis, opiates (including heroin and morphine), sedative-type drugs, cocaine, chronic alcohol use and any other drugs of abuse.

8. That the Applicant and Respondent equally share the cost of such tests and the referral.

9. That in the event of a positive test, the Respondent Mother’s time with the Child under this Order is suspended until further Order, each party in that event having liberty to apply at short notice.

IT IS NOTED:

A.That these orders were made in the absence of the mother and that pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 the mother may apply within 28 days of today to have these orders set aside.

B.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these orders titled “Parenting orders – obligations, consequences and who can help”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

TVC 196 of 2019

MR JARRY

Applicant

and

MS RESTON

Respondent

REASONS FOR JUDGMENT

1. This is a matter of Mr Jarry and Ms Reston.  They have a little girl called [X], who was born on … 2012.  She is six years of age. 

2. The matter has been before the Courts now for some time.  The salient dates are 20 February 2019, the Father filed an Initiating Application Affidavit and Notice of Risk. On 22 February, the Mother was served with that documentation. 

3. The first return date of the matter was 2 April 2019.  The Mother did not attend.  On that occasion, Registrar Boyd conducted proceedings and made certain orders, including listing the matter for an interim hearing today at 9.30am. The Applicant’s legal representatives were required to send a copy of the Orders and a letter about those style of things and the fact that the matter may proceed on an undefended basis if the Mother failed to file material or attend.  That requirement is satisfied by the Affidavit of Ms F, filed 11 April 2019. 

4. There has been no Response filed.  The Respondent Mother’s name has been called three times and there is no appearance by her.  The time now is 9.33am.  The matter started shortly after 9.31am.  In those circumstances, the legal representatives for the applicant Father apply that the matter proceed on an undefended basis.

5. The material that the Father relies upon is helpfully set out in an Outline of Case filed 17 April 2019.  I thank the solicitors for doing that.  The material that he relies upon is his Affidavit filed 20 February 2019, the Notice of Risk filed 20 February 2019, his Initiating Application also filed on 20 February 2019, an Affidavit of Service filed 25 February 2019 and an Affidavit of Ms F filed 11 April 2019.

6. Separation, in the Affidavit material from the Father, talks about that being late 2013 or early 2014.  I note that that has been specified in the outline as 1 January, that is, New Year’s Day 2014.  I am not sure that that is in accord with the evidence from the Affidavit but nothing turns on that.  It is said that – and this is accepted from the evidence - that as at January 2014, the child was living with the Mother and spending time with her Father each week and overnights on the weekend. 

7. In about March of 2014, the Mother relocated to Town G with the child and the Father would spend each alternate weekend with the child.  In August of 2016, it is said that the Father was unable to contact the Mother to arrange a changeover.  The Mother eventually arrived at a roadhouse, it is said, affected by drugs.  In those circumstances, the Father declined to return the child to the Mother.  Police were called and, ultimately, the child was returned to the Mother.  The Father made notification to the Department of Child Safety, but no action was taken.

8. In September of 2016, the Mother returned to live in Town B from Town G.  The child lived with the Mother and spent time with the Father.  In September, perhaps the 15^th, the Mother did not collect the child from school.  This is a matter relevant to the allegation being neglect.  The Father sought to change arrangements in February and then filed on 20 February 2019. 

9. Now, the law in relation to matters proceeding undefended is contained helpfully in a Full Court decision of Narkis& Narkis (No 4) [2017] FamCA 200. At paragraph 40, the Full Court said:

   The power to hear a case on an undefended basis generally arises from chapter 11 of the Family Law Rules. Rule 11.02(2) provides that if a party does not comply with a rule or an order, the Court can determine the case as if it was undefended. In Tate & Tate … (2000) FLC 93-047, the Full Court discussed that subject in an appeal and noted that if there was no live response –

   in that case –

   it having been struck out, then from the Court’s perspective, there was no live issue as between the applicant and the respondent. The Full Court referred to Australian Securities Commission & Macleod (1994) 130 ALR 717 and adopted what was said there. Drummond J said that failure to defend a Federal Court proceeding does not necessarily end in a default order. That applies in this Court. To that extent, the husband will still have to prove his case.

10. And I interrupt that decision and say that is the case here.  It goes on at paragraph 41:

    O’Ryan J in Brown & Brown [2004] FamCA 1067 said that to apply the provisions of chapter 11 of the Rules, the circumstances did not need to be exceptional. His Honour gave a prescient warning when he said:

    ...no litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court’s processes, through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.

11. At 42, it was said:

    In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 the High Court said there said that case management was a very important part of the judicial process. Here the wife has done nothing to advance this case towards a final resolution.

12. That is in the case of Narkis.  That same observation can be made in this case.  It was also said in Aon that one of the considerations for a Court is not just the matter before it, but other matters that are in its list and the fact that there are scant resources for Courts and that people not abiding by directions, rules or orders of the Court should not be a basis for the matter going off because that would simply occasion delays and difficulties in court lists.  So that is effectively the law.

13. We are dealing with a parenting matter so essentially we are dealing with best interests, particularly section 60CA tells us that we need to have regard to the objects. 61DA deals with the presumption of equal shared parental responsibility. If that applies, we will need to look at 65DAA but we are really looking at section 60CC. Now, in this case, focus is really brought to bear on section 60CC(2)(b) which is what is colloquially known as the risk consideration but its actual wording talks about:

    …the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

14. I understand the argument here is that the child is being or has been exposed to, or that there is a need to protect the child from being exposed to or subjected to, abuse and neglect. That being a result of the Mother’s use of illicit substances and all of the constellation of consequences that occur from that behaviour.  The Father in his Affidavit talks about those things and, most particularly, he talks about that from about paragraph 17 through to and including paragraph 41.

15. Without reciting those, what that is evidence of is probable drug misuse by the Mother and the consequent neglect and abuse that the child has been subjected to as a result of the Mother’s capacity to care for the child being impaired.  And, to my mind, and I find that, that occasions a need to protect the child from psychological harm from being exposed or subjected to abuse and/or neglect. 

16. Now, the legislation tells us at subsection (2A) that if (2)(b), that is the need to protect comes into sharp focus, then it attracts more weight than (2)(a) which is that the child would benefit from a meaningful relationship from both parties.  That is the law and I abide by it and apply it. 

17. So that is the main consideration with respect to the second limb, if I may call it that, with respect to an undefended matter, that is, firstly, that it is clear that the matter has come to the attention of the other party and the second is that a person still must prove that the orders that they seek or the orders that are granted are in the child’s best interests.

18. The other considerations that seem to have application here – and just before I go on to that, there is a decision of Banks & Banks which is a Full Court decision, and it effectively says that in interim hearings or, I interpret that to include, undefended hearings, that a Court need not go through every single consideration within section 60CC but rather deal with the matters that are apposite to the case.  I have already dealt with (2)(a) and (2)(b).  The other ones that seems to be important would be (3)(b) in relation to relationships. 

19. Well, the evidence would disclose that the child has a loving relationship with both her mum and dad.  It is important to note that she has what is described as a half-brother, [Z], who lives with the Mother and spends time with his father, Mr H and that the child is able to continue those relationships.  The child also spends time with her paternal grandparents and the external paternal family.

20. Practical difficulty and expense does not seem to be that much of a concern.  Both parents seem to reside in Town B on the evidence before me.  If capacity seems to be important, the evidence discloses that the Mother seems to have a difficulty with using illicit drugs and the consequent effects of that on her ability to properly parent the child.  That is probably a matter I have already dealt with at subsection (2)(b).  Subsection 3(g) is about maturity and lifestyle and background and so forth. 

21. Well, I know that the Father lives in the Town B area and is well supported by the paternal family.  I have already spoken about the Mother’s issues with respect to illicit substances and I will go no more in relation to that.  That is obviously relevant also to subsection 3(i). 

22. In relation to subsection 3(i) and also, I would say, it falls under subsection 3(m) “any other fact or circumstance” – the catch-all – the evidence discloses that the Father has sought to foster and encourage a relationship between the child and her mum and I commend him for doing that, and I encourage him to continue to do that as he, not so much determines, but as he understands how well the Mother is and her capacities. Because it is absolutely essential that a child has a relationship with both parents so long as that is proper and safe for that child but it is absolutely essential for their formation as a human being.  So I commend you for doing that and I encourage you to continue doing that, please.

23. Those seems to me to be the main considerations relevant to my determination as to whether these orders are in the best interests of the child.  And, again, I thank the solicitor, Ms Parry, for the applicant for her very helpful outline in that regard.  I turn to the orders that are sought.  And I propose to make those, but I have some difficulty certainly I think with one of those. When I get to Order 5, what I am proposing there is ‘from using illicit drugs’ rather than drugs of abuse. But subject to that, I am more than content to make those orders as being in the child’s best interests and so do.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Andrew

Date: 28 June 2019