Jefferson & Masek (No 3)

[2021] FCCA 1834

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jefferson & Masek (No 3) [2021] FCCA 1834

File number:	ADC 276 of 2016
Judgment of:	JUDGE YOUNG
Date of judgment:	21 July 2021
Catchwords:	FAMILY LAW – parenting – concerning a child who is fourteen years old – where the father makes an urgent application seeking return of the child to the father's care – where the mother has withheld the child in circumstances where she alleges the child has complained of being assaulted by the father – where the South Australia Police investigation has been finalised and no charges were laid against the father – where the mother is currently residing with a person facing serious criminal charges – where there is evidence the mother has previously used methamphetamines – where the child expressed a wish to remain in the mother's care – where the child is at an unacceptable risk of harm in the mother's care – Court satisfied the child should be returned to the father's care.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	13
Date of hearing:	21 July 2021
Place:	Darwin
Counsel for the Applicant:	Mr Roberts
Solicitor for the Applicant:	Lachlan McAuliffe Barrister & Solicitor
Solicitor for the Respondent:	Ms Partridge of Hume Taylor & Co
Counsel for the Independent Children's Lawyer:	Mr Lewis
Solicitor for the Independent Children's Lawyer:	The Family Law Project

ORDERS

ADC 276 of 2016

BETWEEN:

MS JEFFERSON

Applicant

AND:

MR MASEK

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	21 JULY 2021

THE COURT ORDERS THAT:

1.The mother deliver up the child W born in 2007 to the father forthwith.

2.The Initiating Application filed by the father on 27 April 2021 be dismissed.

3.The mother’s Response filed 16 June 2021 stand as the Initiating Application with the mother to be the applicant in these proceedings.

4.The mother file and serve any further affidavits by close of business on 31 August 2021.

5.The father file and serve  any Respomaddnse and affidavit in support by close of business on 15 September 2021.

6.The proceedings be adjourned to 5 October 2021 at 2.15pm for a Rice & Asplund argument.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Jefferson & Masek (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. On 24 October 2019 final orders were made about the four children in this matter: W, who is presently fourteen years old, X, who is presently nine years old, Y, who is presently seven years old and Z, who is presently six years old.  The mother did not appear at that trial and orders were made in her absence. Orders were made that the children live with the father and he have sole parental responsibility.

2. The background to the matter is very extensive and very detailed. I do not propose to summarise it. However, the mother has, it would appear, a history of methamphetamine use.  At various times the Court has made orders for drug testing and, as far as I am aware, in recent times those orders have not been complied with by the mother. The Court has also previously made recovery orders about the children after the mother refused to return the children to the father in circumstances where it was apparent that the mother’s housing was unstable.  It is unclear whether she continued to use illicit drugs and associate with other illicit drug users.

3. Over the years there has been a basis for holding grave concerns about the mother’s parenting capacity.  The recent history of this matter appears to confirm that those fears and concerns continue to have a basis.  Earlier this year the mother was living with a Mr D. It appears Mr D has since been charged with “Possess Controlled Drug (Not Cannabis)”. This would suggest that the drugs involved either amphetamines or opiates of some kind, however, I do not know as I was not given the benefit of any information from the mother about that very significant factor.  Mr D was also charged with “Use or Have Possession of a Prohibited Weapon” earlier this year.  That is significant, because earlier this year, W, left the father and went to reside with her mother and Mr D.

4. W alleged that she was assaulted by the father with a vacuum cleaner pipe.  She apparently went to the police and was accompanied by her mother when she attended on the police to make those allegations.  The police investigated the allegations and did not lay any charges.  The brief report produced by the South Australia Police Embedded Officer suggests that the claims are exaggerated by the child and may well have been encouraged to be exaggerated by the mother.  The Embedded Officer stated that what happened was, apparently, there was an argument in the home, the father threw the vacuum cleaner pipe down and it may have bounced against the child.  She was not injured. The police were not satisfied there was any indication of assault.  It is against that background that the child decamped from the father’s home and went to live with her mother and Mr D in Suburb E.

5. After some considerable period the father brought an application before this Court, initially, for a recovery order. However, that is not sought today. Rather an order that the mother deliver the child to the father is sought. 

6. There was also an order for a Child Inclusive Conference to be conducted and for a memorandum to be prepared by the Family Consultant. The memorandum canvassed the views of W in some detail.  W says, in substance, that she is unhappy living with her father and does not want to live with him.  Ordinarily, the wishes of a 14 year old would be given great weight. I do give them weight, however, I discount them to some degree because I am satisfied that W’s motivation to live with her mother is heavily influenced by strains in her relationship with her father and I am satisfied that W is unaware of the risks involved in living with her mother and, previously Mr D.

7. It goes without saying that if W is living in a household with a man who is in possession of a firearm and in possession of or using serious illicit drugs then she is at grave risk.  It should be said that, at this stage, all I know is that Mr D has been charged with those offences. However, I also know that at various times in the past the mother has been found to have used methamphetamine.

8. The whole scenario tends to suggest that the mother’s household and the mother’s associates are users of methamphetamine.  Such an environment is entirely unsuitable for a 14 year old child.  If that scenario is correct, and there is evidence that it is correct, then it is inconceivable that a Court exercising jurisdiction under the Family Law Act1975 (Cth) (the Act), which is guided by the principle of the best interests of a child, would make an order that a child live in such a household.

9. It may be that some of the factors that I have referred to are no longer the case. If that were so I would have expected the mother to have made an Initiating Application supported by affidavit explaining how her life had changed, how she had ceased methamphetamine use, and how she no longer associated with other drug users or people engaging in serious criminality. However, that has not occurred and, indeed, the only affidavit filed recently by the mother ignored any reference to Mr D being charged with possession of drugs and a firearm.  It should be noted that the mother filed this affidavit after Mr D was charged with those offences. That in itself raises some very grave concerns.

10. The circumstances are that W’s relationship with her father is strained, possibly to breaking point.  There is no evidence about the younger three children.  W has decamped to live with her mother and Mr D.  That scenario would suggest that the child is unable to properly assess her own interests and what is in her best interests.  Nevertheless, I accept that the child may well leave the father’s home again and we will be in exactly the same position. The Family Consultant and everyone else who has expressed an opinion about the matter came to this same conclusion.

11. It may be the case that the child will decamp from the father’s home again. The choice in this matter is between the father’s household where the child would be safe but unhappy and the mother’s household where the child wishes to be but would be at an unacceptable risk of harm because of concerns about the mother’s methamphetamine use and her association with people charged with serious criminal offences. In those circumstances the choice is simple, it is the safe household, being the father’s household.

12. This is a case where section 60CC(2)(b) of the Act – that is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence – is given the greatest weight, as it must be under the Act. I consider the child’s residence in a household such as the mother’s, at least on past evidence, engages a concern pursuant to section 60CC(2)(b) – the need to protect the child from neglect.

13. In those circumstances I will make the following orders:

    (1)That the mother deliver up the child to the father forthwith;

    (2)That the father’s Initiating Application is otherwise dismissed.

    (3)That the mother’s Response is to stand as an Application and will be adjourned to 5 October at 2:15pm for the purposes of a Rice & Asplund hearing.

    (4)That any further affidavit to be relied on by the applicant mother is to be filed and served by 31 August 2021; and

    (5)The father may file a Response and affidavit in support by 21 September 2021.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       9 August 2021