SPENDING OVERNIGHT WITH THE UNCLE
JAGO & JAGO
FEDERAL CIRCUIT COURT OF AUSTRALIA
[2020] FCCA 1064
This case is a parenting proceeding under the Family Law Act 1975 (Cth) (‘the Act’) between the parties who are the great-uncle and the great-aunt of X, the child, who is the subject of the proceedings, regarding time spent, particularly overnight, with the great-uncle.
FACTS:
X was born in 2010 to parents who were habitual drug users at the time of her birth. 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. Like her other siblings, X was taken into the care of the Department of Family and Community Services. At three weeks of age, she was placed in the care of her great-aunt, Ms. Jago (the Respondent), and her great-uncle, Mr. Jago (the Applicant), who are separated couple.
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 12 months and after that allocated parental responsibility to the Minister and the Respondent and the Applicant until she attains the age of 12 years, the Minister having responsibility for contact for X, and the Respondent and the Applicant 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 Respondent and the Applicant would have sole parental responsibility for all aspects of her care until she attains the age of 18 years.
The parties have historical family violence and have previously used illicit substances. No evidence of family violence towards or in the presence of the child was presented. The Applicant only sought for the determination in interim proceedings concerning the time that should be spent between X and the Applicant.
ISSUE:
Whether or not order should be made allowing X to spend time overnight with the Applicant.
HELD:
Under the Family Law Act 1975 (Cth) (‘the Act’), the Court must regard the best interests of the child in making a parenting order. It must always be the paramount consideration. [1] 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. In this matter, however, neither the presumption of equal shared parental responsibility nor equal time consideration [2] are relevant as neither of the parties to these proceedings is a parent of X.
On the other hand, section 60CC of the Act provides primary considerations which 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. 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. In this matter, the first of the primary considerations does not apply in relation to the issue between the parties to the proceedings. The Court, therefore, focused on the second of primary considerations, which is 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 had asserted that the other party presents a risk to the child. However, the Respondent only asserted that the risk presented to X in the care of the Applicant is only in relation to the latter’s application seeking that X spend time overnight with him starting immediately and on a graduating basis culminating in week-about care. She asserted that X being away from her overnight with the Applicant 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. The Respondent has been her primary carer throughout her life. The Court found 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. More time between the Applicant 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 Applicant to begin.
There is no doubt that X has a meaningful, close and loving relationship with each of the Respondent and the Applicant. Amidst the evidence presented in that throws up some questions about the capacity of each of the parties to provide for X’s, the Court did not find basis to choose between them and concluded that 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 Applicant. In addition to the above order, the Court ordered that the parties have equal shared parental responsibility for X.
“X is a vulnerable child who has had a troubled history from the time of her birth. She has been diagnosed by her pediatrician 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.[3]
[1] Section 60CA, Family Law Act 1975 (Cth).
[2] Section 65DAA.
[3] Jago & Jago [2020] FCCA 1064 (18 May 2020), 109.