Labree and Anor and Jaggars

[2019] FCCA 3571

FEDERAL CIRCUIT COURT OF AUSTRALIA

LABREE & ANOR & JAGGARS [2019] FCCA 3571

Catchwords:
FAMILY LAW – Best interests of the child – where the parents handed over the child to a relative – where the parents were homeless – where the parents have had unstable living arrangements – where there are allegations of drug abuse – where the caring party has demonstrated an ability to care for the child.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC(2), 60CC(3), 65(2)

First Applicant: MS LABREE

Second Applicant: MR HACKING

Respondent: MS JAGGARS

File Number: AYC 3 of 2019

Judgment of: Judge McNab

Hearing dates: 19 and 20 November 2019

Date of Last Submission: 20 November 2019

Delivered at: Albury

Delivered on: 20 November 2019

REPRESENTATION

The First Applicant: Appeared in person

The Second Applicant: Appeared in person

Counsel for the Respondent: Mr Fida

Solicitors for the Respondent: TBJ Law Pty Ltd

Counsel for the Independent Children’s Lawyer: Ms Dart

Solicitors for the Independent Children’s Lawyer: Tarella Law

ORDERS

1. All previous parenting orders with respect to the child X born … 2017 (“X”) be discharged.

2. The Respondent – Ms Jaggars (“Ms Jaggars”) have sole parental responsibility for X subject to Order 3.

3. Except in the case of emergency, prior to making a decision in exercise of her parental responsibility, Ms Jaggars must:

   (a)notify the parents MS LABREE (“the mother”) and MR HACKING (“the father”) (“the parents”) of the decision that is required to be made;

   (b)invite the parents to express an opinion as to the decision that is to be made;

   (c)give due consideration to any response provided by the parents; and

   (d)notify the parents in writing of any decision which she ultimately makes.

4. X live with Ms Jaggars.

5. X spend time with the parents (or either of them) as agreed in writing with Ms Jaggars from time to time and in default of agreement:

   (a)from 10.00am to 5.00pm each Wednesday;

   (b)from 10.00am to 5.00pm each Sunday;

   (c)from 10.00am to 5.00pm on X’s birthday;

   (d)from 10.00am to 5.00pm on Mother’s Day;

   (e)from 10.00am to 5.00pm on Father’s Day;

   (f)from 2.00pm to 5.00pm on Christmas Day; and

   (g)such other times that are agreed in writing (including text message) between the parties.

6. For the purpose of changeover:

   (a)Until the parents obtain a motor vehicle, Ms Jaggars must drop off and pick up X at the parents’ residence; and

   (b)Upon the parents obtaining a motor vehicle, the parents must pick up and drip off X at the aunt’s residence for the purposes of X spending time with the parents.

7. The time the parents spend with X be conditional upon:

   (a)the parents keeping Ms Jaggars informed of their residential address and mobile telephone numbers;

   (b)the parents notifying Ms Jaggars of the names of each person with whom they live with or person who regularly spend overnight time at their residence; and

   (c)any material changes in their circumstances.

8. Ms Jaggars must keep each of the parents informed of:

   (a)her residential address;

   (b)her mobile telephone number;

   (c)the name of the GP regularly attended upon by X;

   (d)any serious or re-occurring medical condition suffered by X, including details of any treatment and/or medication prescribed;

   (e)the name and contact details of any specialist engaged with respect to X;

   (f)any appointments made for X to attend upon a paediatrician or other specialist medical practitioner, and that each parent be at liberty to attend such appointment(s); and

   (g)inform the parents of whether there is any other person residing in her home (or in substantial attendance).

9. Pursuant to s 68B of the Family Law Act 1975, the mother and the father must be restrained by injunction from:

   (a)consuming any illicit drugs (including but not limited to marijuana) and/or alcohol whilst X is in their care or within the 12 hour period prior to X coming into their care;

   (b)leave X in the care of any third person without any prior written consent of Ms Jaggars;

   (c)attending any residence where Ms Jaggars and X may from time to time reside, other than:

   (i)for the purposes of changeover in accordance with these orders; and

   (ii)with the prior written consent of Ms Jaggars,

   (d)allowing X to remain in the presence of people who are affected by illicit drugs.

10. In the event of any medical or other emergencies concerning X, the parties must notify each other as soon as practicable.

11. These orders serve as sufficient authority for Ms Jaggars and each of the parents to obtain such information as they may request from:

    (a)any medical practitioner attended upon by X; and

    (b)any day care, pre-school or school attended by X.

12. The parents and Ms Jaggars have leave to provide the Family Report in this matter to any social worker, psychologist and/or psychiatrist engaged by them from time to time.

13. The parties must attend mediation with a Family Dispute Resolution Practitioner as initiated by either the mother and/or the father in order for the parenting arrangements for X to be reviewed no less than 6 months prior to X commencing formal schooling but no sooner than 18 months from the date of these orders.

THE COURT DECLARES THAT:

1. Pursuant to ss 7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the First Applicant Mother and Second Applicant Father to enable the child X born … 2017 to obtain an Australian Passport to travel internationally, the Court makes the following orders:

THE COURT ORDERS THAT:

1. The Respondent Paternal Aunt of the child X born … 2017 be permitted to apply for an Australian Passport to enable the child to travel internationally notwithstanding that the mother and the father of the child has not signed the passport application form and furthermore the said child be permitted to travel internationally without the permission of the First Applicant mother and Second Applicant father.

2. Until further order, the mother and the father, their servants and/or agents be and are hereby restrained by injunction from

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the paternal aunt, and

   (b)discussing these proceedings,

   to or in the presence or hearing of the said child or any of them and from permitting any other person so to do.

3. Until further order, the paternal aunt, her servants and agents be and are hereby restrained by injunction from

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother and the father; and

   (b)discussing these proceedings,

   to or in the presence or hearing of the said child or any of them and from permitting any other person so to do.

4. The Applicants pay the Respondent’s costs fixed in the sum of $5232.50.

5. The appointment of the Independent Children’s Lawyer be discharged.

6. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT

1. If either parent seeks to bring a future application to have X restored to their primary care, it is anticipated that they will be able to demonstrate that the parents have:

   (a)maintained consistent and suitable accommodation for an extended period;

   (b)remained abstinent from all illicit drugs (including marijuana) as confirmed by a hair follicle tests;

   (c)individually engage with a psychologist or psychiatrist who has had access to the Family Report in this matter, and followed all recommendations of that psychologists or psychiatrist with respect to attendance and participation in treatment;

   (d)in the case of the mother, she must engage positively with the young mother’s program offered through Region A Family Care; and

   (e)the mother must maintain regular time with X in accordance with these orders.

2. Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

AYC 3 of 2019

MS LABREE

First Applicant

MR HACKING

Second Applicant

And

MS JAGGARS

Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. This matter concerns X, born … 2017 (‘the child’ or ‘X’). The issues at trial were who X should live with and who and how much time he should spend with the Applicants or the Respondent. The First Applicant is X’s mother and the Second Applicant is his father. The Respondent is the paternal aunt of the child and X’s current carer (‘the aunt’ or Ms Jaggars’).

2. In my view, the orders proposed by the Independent Children’s Lawyer (‘ICL’) are manifestly in the interests of the child.

The hearing

The background of the matter

1. The background of this matter is set out accurately and in detail in the Family Report (dated 3 July 2019) that was prepared for the benefit of the parties.

2. At the commencement of the hearing, the mother and father appeared in person. The father announced that he was seeking orders that the child live with the mother and father and spend time with the paternal aunt. The orders the father seeks, effectively, reverses the arrangements that have been in place since orders were made in February 2019.

3. By those orders of February 2019, X lives with and is cared for by the aunt. X spends regular time with the mother and father twice a week between 9am Wednesday to 5pm Thursday and 9am to 5pm on Sundays.

4. The father relied on the affidavits that had been filed previously and gave viva voce evidence.

5. As the background of the matter reveals, the mother and the father effectively handed X to the aunt in Perth in October 2018, requesting that she take care of him.

6. The aunt gave evidence in her affidavit material that she had visited her family members in Western Australia with her sister in October 2018.

7. The aunt deposes that the parents asked her to meet outside the Perth train station. When they did meet, the parents were surrounded by homeless people and appeared to be homeless themselves and living on the streets with X. X appeared in a dishevelled state with matted hair. The aunt says X looked dirty and his pram was saturated and smelt of urine. A photograph attached to the aunt’s affidavit sworn 28 August 2019 (exhibit J1) (‘the aunt’s affidavit’) of X taken at this time shows that X had matted hair and was dirty.

8. The aunt was told that the parents had been living in shared accommodation with X when a person they shared the house with took out an intervention violence order against the mother. For this reason, the parents could no longer stay there.

9. The father, in his evidence before the Court, claimed that he was not homeless but was simply between accommodations. He said the child was handed across to the aunt to assist the child to bond with the aunt and to allow the smooth transition between two rental accommodations.

The evidence at trial

1. The aunt challenged the father’s evidence in relation to the circumstances of X coming into her care, which Mr Hacking was clearly not happy about.

2. The father was questioned why the child was handed to his aunt rather than spending time with the mother’s mother who was Perth based. Further, Mr Hacking was questioned why the child was sent to live in City B with his aunt, rather than organising some other arrangement for him to be cared for in Perth. The father became upset by this line of questioning and then adopted the position of replying ‘no comment’ to each of the questions that was asked. He subsequently left the Courtroom, refusing to participate in the proceedings.

3. Prior to leaving, the father’s oral evidence focused on the terms of a statutory declaration that had been provided by the mother, which is found at exhibit J2 of the aunt’s affidavit. He claimed that the statutory declaration was invalid because the address provided by the aunt, he said, was not her correct address. Such an argument is a complete distraction and irrelevant to the issue. The parents plainly agreed to have the aunt take X, and needed that to happen because there was no one who was able or prepared to care for him.

4. The mother, to her credit, remained in Court and subsequently gave evidence, although she also left the witness box when being questioned along lines that she did not like. However, she returned to Court on the second day of the hearing. The mother understandably found the Court experience difficult, although Counsel for the aunt and the ICL both acted appropriately when questioning the young self-represented mother.

5. After the father had left the Courtroom, the mother gave evidence and stated to the Court that she was not seeking orders that X live with her and the father. She did not want to interfere with the arrangements that were in place for X to live with the aunt, but she wished to spend more time with X.

6. The evidence of the mother in her affidavit of 31 January 2019 is instructive. She says at [14]:

   In or around early October 2018, my housing situation deteriorated, and I was unable to return to my home. My roommate at the time obtained a violence protection order against me which prohibited me from residing at my home. I did not have any notice that this would be occurring and as such I was not able to return home to collect belongings.

7. She then deposes that she moved in with her mother, and she then says that, at [17]:

   [The father] and I discussed and came to an agreement that it would be best to ask for some family support and allow X to spend time with his paternal family in City B, whist I relocated to my mother's house. [The father] and I agreed that we would allow [the aunt] to fly to Perth, collect X and return to City B, NSW for a short period of time.

Consideration

1. I find that the parents were homeless and that the parents were unable to look after X at the time when the child was given to the aunt. I find that the account given by the aunt of how the child came to be in her care to be accurate. The aunt was not met at the Perth airport and she in fact met the parents and X at the Perth Central station where the parents and X were gathered with homeless people and where the parents appeared to be homeless and without suitable accommodation for X.

2. The parents, both by their affidavit material and by their presentation in Court, presented as chaotic and as not offering a safe home for X to live. The mother accepted during cross examination that she and the father had lived in about 13 different places in City B since arriving in City B around a year ago. Some of that accommodation was plainly unsafe for a child because a number of people who were living in those places were injecting drugs. The parents did state they have now secured on-going accommodation.

3. The father gave evidence that he was working full time in a number of jobs. He provided a reference from his workplace (exhibit A1), which indicates that he is a trusted and conscientious employee. He also gave evidence that he was participating in activities through Apex. The father presented well when giving this evidence, although he could not properly deal with being challenged about matters that arise naturally from the evidence that he gave about his care of the child in Perth.

4. The mother gave evidence that she had been doing parenting courses, and that she was involved with Mission Australia and a young mum’s group in City B. She stated, I think sincerely, that she was trying to make efforts to provide a stable situation for X. She accepted that she presently was not in a position to assume full-time care of all parental responsibility of X.

5. Evidence was also given that the father and mother lived in rental accommodation in City B, and they intended to renew the lease for a further 12 months. However, both parents also gave evidence that they were, in fact, not in relationship. They said that they were simply two people who happen to be the parents of X, who are living in the same house, who occasionally had sex together, and that they did not regard themselves as either husband or wife or in a stable relationship. The mother gave evidence that she had sex with other men and was not in an exclusive relationship with the father.

6. Whether that evidence was given in order to secure social security payments or is a truthful account, it still leaves the Court in a position where the child would, effectively, be living in an unstable situation. Their evidence showed that the parents have no insight as to how such instability may affect X if their relationship – such as it is – was to discontinue or fall apart.

7. The mother is presently aged 19. She has, effectively, been in the company of or in a relationship with the father since she was about 14 and a half years old. Her own family situation, she accepts, was chaotic.

8. The mother was pregnant in … 2019, although that pregnancy did not lead to the birth of a child. There is a suggestion in the evidence that both parents have been involved in drug taking. In the affidavit of the aunt, at exhibit J8, there is a text message from the father to the aunt with a photograph of an ambulance with the words, “Call back asap she is high on meth agen [sic] and she has just picked up X”. I take the reference to “she” to be a reference to the mother. That text was not adequately explained by the mother in her evidence when she was asked about it.

9. The mother disclaimed any interest in drugs; however, in drug tests that were performed in February 2019, she tested positive for cannabis. As previously noted, the mother also stated that the father is simply a friend with whom she shares a house with and has occasional casual sex with. Whether that is the case, the mother presented as being vulnerable and presently unable to fully cope with the situation that she found herself in.

10. There are also significant concerns raised by the Family Report writer about the level of control that the father appears to exercise over the mother. That was also a matter of concern raised in the s 11F memorandum prepared in February 2019.

Best interests of the child

1. In making this decision, I have regard to the provisions of the Family Law Act 1975 (Cth) (‘the Act’) in particular section 60CA which provides:

   In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

   The Court has the power to make orders in relation to the aunt taking on parental responsibility for X pursuant to section 65(2) of the Act. This section of the Act makes specific reference to people other than the parents of the child who may take on parental responsibility.

2. In my view, the orders proposed by the ICL promotes the principal aim of the Act which is that the child has a meaningful relationship with the parents. The orders allow X to have the benefit of a stable and loving environment in which to grow up in at this very important time of his life. The orders also allow for X to spend time with his parents, who have demonstrated an incapacity to care for him as primary carers.

3. I do accept the evidence that there is a substantial period after X left Western Australia of about 52 days, where there was no inquiry made by the parents as to his wellbeing. The parents, in fact, travelled to Victoria and stayed in Melbourne for five days before coming to City B to see him. The explanation for not coming sooner, being that the mother did not know that there was a flight from Perth to City B, is not convincing.

s 60CC(2) – Primary Considerations

s 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both the children’s parents

s 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The Court is required to give greater weight to the consideration set out in section 60CC(2)(b), that is, the need to protect the child from abuse, neglect or family violence.

2. For the reasons I have set out above which address those primary considerations, there is a particular need to protect X from abuse or neglect. I accept the submissions filed by the aunt (dated 13 September 2019) which include instances of drug use by the applicants, family violence by the applicants to each other, violence to others, neglect of X, mental health issues and criminal behaviour.

s 60CC(3) – additional considerations

s 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. X is too young to express views.

s 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);

1. X does have a relationship with both his parents, but, as was noted by the Family Consultant, the parents have prioritised their own needs above the child.

2. It was further noted by the Family Consultant that the aunt has a strong emotional bond with the child.

s 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and  (iii) to communicate with the child;

1. The parents have failed, whether because of their circumstances or combined difficulties, to participate in making decisions about long-term issues in relation to X.

s 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. Flowing from what I have stated in s 60CC(3)(c), the parents have failed to fulfil their parental obligations to maintain X.

s 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The orders proposed are appropriate as X will be protected from harm and will be brought up in a stable and loving environment whilst still being able to know who his parents are. As such, he will be able to accept and receive love from his parents if they are in a position to give that.

s 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. There is no particular difficulty or expense with the arrangements that are outlined.

s 60CC(3)(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

1. The aunt has demonstrated a clear capacity to look after X. She has maintained her full-time employment, looks after X and, simultaneously, maintains contact between X and his parents. Her behaviour is incredibly mature.

2. The fact that she has maintained a commitment that the child should continue to see the parents in the face of their neglect of him, the fact that she has not denigrated the parents in the Court proceeding, the fact that she has behaved in a dignified way throughout this whole process, indicates that she does have capacity to care for the child. Her behaviour indicates that she has an ability to put X’s interests first. She also has the assistance of her siblings (who were brought up by the same caring foster parents) to care for X.

3. Unfortunately, whether by virtue of family background of each of the parents, which is outlined in detail in the Family Report and in their own affidavit material, the parents presently have a clear lack of capacity to look after X as primary carers.

4. The emotional dysregulation which has been seen in the Courtroom, the chaotic family situation that the parents are in, the use of drugs and the self-harming that has been referred to in the affidavit material, all points to a present inability to prioritise the child’s needs above their own.

s 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. I also take into account the fact that the mother is still only 19 years of age. She is without any significant family support and, based on her own evidence, is continuing to act in a way that is clearly not in her best interests.

s 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

1. Subsection (h) is not relevant.

s 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. Subsection (i) has been addressed.

s 60CC(3)(j) any family violence involving the child or a member of the child's family;

1. Subsection (j) has been addressed.

s 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;

1. Subsection (k) has been addressed.

s 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. The aunt, in her evidence, acknowledged that at some point in the future, X may return to his parents. She does not see the present situation (her having sole parental responsibility for X) as one that will continue indefinitely. She indicated that she would be supportive of the parents if the parents were able to demonstrate that they could look after X and that he could return to their care.

2. I am hopeful that, given the aunt’s obvious capacity and the support that she has, that these orders might have a chance of working in the interests of X. For those reasons, I will make the orders that are proposed by the ICL.

Costs

1. At the conclusion of the hearing, Counsel for the aunt sought an order for costs in respect of costs thrown away by reason of an adjournment of the previous hearing date by the parents. The adjournment was obtained in order for the parents to obtain legal advice and legal representation. The parents did not do make use of this adjournment and get legal representation, and from my reading of the transcript of the adjournment application, the matter was otherwise ready to proceed on the previous occasion but for the application for the adjournment. The parents have not appeared at this hearing with legal representation and have filed no further evidence for the purpose of the trial.

2. In my view, the conduct of the parents did cause costs to be thrown away. The aunt has been in a position where she has funded these proceedings privately at great personal expense in circumstances where she has an income of about $50,000 per annum.

3. I note that the mother said that she does not have the capacity to pay costs. I accept that she may not have the capacity to pay a costs order, but the costs are ordered jointly against both applicants, and the evidence before the Court is that Mr Hacking does have the capacity to pay costs as he is working three jobs and is earning more than the aunt.

4. In the circumstances of this case where the matter has been the subject of numerous hearings, where the costs were thrown away by reason of the adjournment on the previous occasion for the parents to obtain legal representation, where the parents did not make use of that adjournment, where the aunt has funded the care of the child and these proceedings, where the aunt is earning less than the father, and where the father has made no financial contribution to the care of the child, it is appropriate that an order for the costs thrown away be made in the sum of $5,232.50.

I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  17 December 2019