Cadzow & Alarie (No 2)

[2021] FCCA 961

FEDERAL CIRCUIT COURT OF AUSTRALIA

Cadzow & Alarie (No 2) [2021] FCCA 961

File number:	DNC 9 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	25 March 2021
Catchwords:	FAMILY LAW – parenting – application concerning a child who is three years old – whether the child’s time with the mother should be supervised – whether the child’s time with the maternal grandmother should be increased – where the child lives with the father and paternal grandmother – where the child spends time with the mother and maternal grandmother – where there has been significant conflict between the parties – where the mother has a history of illicit substance abuse – where the father has a history of alcohol abuse – where there is a history of family violence – where the maternal uncle poses an unacceptable risk to the child – court satisfied that equal time is not appropriate – court satisfied the child should spend substantial and significant supervised time with the mother – court satisfied the child’s time with the maternal grandmother should remain the same – court satisfied the child should not have contact or be in the presence of the maternal uncle.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	22
Date of last submission:	24 March 2021
Date of hearing:	23-25 March 2021
Place:	Darwin
The First Applicant:	Appearing on his own behalf
The Second Applicant:	Appearing on her own behalf
The First Respondent:	Appearing on her own behalf
The Second Respondent:	Appearing on her own behalf
Solicitor for the Independent Children's Lawyer:	Ms Romeo of Margaret Romeo Barrister & Solicitor

ORDERS

DNC 9 of 2020

BETWEEN:

MR CADZOW

First Applicant

MS CROWE

Second Applicant

AND:

MS ALARIE

First Respondent

MS COOKE

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	25 MARCH 2021

UPON NOTING:

A.That the maternal grandmother MS COOKE gave an undertaking to the Court that she will ensure that the child X born in 2018 will not have any contact or be in the presence of MR D whilst the child is in her care.

B.That the father MR CADZOW and the paternal grandmother MS CROWE gave an undertaking to the Court that they will not attend at the residential address of the maternal grandmother or otherwise disclose the maternal grandmother’s residential address or telephone number.

C.That the order for the child to live with the father is made in circumstances where the father is residing at the paternal grandmother’s home and it is contemplated by the parties that will continue for the foreseeable future.

THE COURT ORDERS:

1.That all previous orders be discharged.

2.That the parents MR CADZOW and MS ALARIE have equal shared parental responsibility for the child X born in 2018 (“the child”).

3.That the child is to live with the father.

4.That should the mother be under the influence of any illicit substance, or not otherwise reasonably available, the father may make long-term decisions and notify the mother of his decision as soon as practicable.

5.That the child is to spend time with the mother as follows:

(a)Each Wednesday from 5:30pm to 6:00pm at the home of the paternal grandmother to be supervised by the father and/or the paternal grandmother;

(i)Such time may also include the mother staying at the paternal grandmother’s home overnight subject to the paternal grandmother’s agreement;

(b)The second Sunday of each month from 11:00am to 5:00pm at a place of the mother’s choosing subject to the time being supervised by either the father, the paternal grandmother or the maternal grandmother with the mother to elect the supervisor;

(i)If the time is to be supervised by the maternal grandmother all changeovers are to occur at A Family Services; and

(ii)The mother is to notify the father or paternal grandmother at least 2 hours prior to the time of changeover that she is not under the influence of any illicit substance or otherwise unwell and that she is available for the child to spend time with her.

(c)The third Sunday of each month from 11:00am to 5:00pm at the home of the paternal grandmother to be supervised by the father and/or the paternal grandmother; and

(d)On the fourth weekend of each month when the child is spending time with the maternal grandmother, subject to the agreement of the maternal grandmother.

6.That if the mother is under the influence of any illicit substance, unwell or otherwise unavailable and is unable to comply with Order 5(a), (b), (c) or (d) the child’s time with the mother is not to occur and the mother is to notify the father or the paternal grandmother as soon as possible.

7.That the child is to spend time with the maternal grandmother as follows:

(a)On the fourth weekend of each month from 9:00am on Saturday until 5:00pm on Sunday;

(b)All changeovers are to occur at A Family Services; and

(c)In the event the child’s time with the maternal grandmother falls on Easter, Christmas Day or the child’s birthday then the time is to be transposed to the following two days (e.g. Monday and Tuesday).

8.That the child is to communicate with the mother by telephone, FaceTime, Facebook Messenger or other electronic means each Tuesday and Thursday between 6:00pm and 6:30pm as follows:

(a)The mother is to make the call to the father’s telephone and the father shall answer the call; and

(b)In the event the call is missed the father shall return the call as soon as possible after the missed call occurs.

9.That the mother be restrained and an injunction be granted restraining the mother from allowing the child to come into contact or be in the presence of MR D.

10.That the parties be restrained and an injunction be granted restraining each party from exposing the child to family violence.

11.That the mother and the father are to ensure that the other is provided with the details of their telephone contact number and residential address and if there is any change to those details the parties are to notify each other within 24 hours of such change.

12.That the maternal grandmother is to provide the details of her telephone contact number and residential address to the father and the paternal grandmother and that if there is any change to those details the maternal grandmother is to notify each of them within 24 hours of such change.

13.That the parties are to subscribe to the Our Family Wizard application and are to use the application to ordinarily communicate about the child’s health or any other matter concerning the child.

14.That in the event there is an emergency involving the child while the child is in the father’s care he is to:

(a)Notify the mother as a matter of priority and if the mother is not contactable the father must notify the mother as soon as practicable; and

(b)Notify the maternal grandmother within 24 hours.

15.That in the event there is an emergency involving the child while the child is in the maternal grandmother’s care she is to notify the father as a matter of priority.

16.That unless in an emergency no party is to attend at any other party’s residential address unless specifically invited to do so.

17.That the father shall ensure that the mother is kept informed of:

(a)Any information concerning any medical issues or illnesses suffered by the child whilst in the father’s care;

(b)Any medication that has been prescribed for the child; and

(c)Any other relevant information about the child’s welfare, development and progress.

18.That the father is to provide to the mother with regular information about the child’s educational progress, copies of school reports, photographs, certificates and any other relevant written material pertaining to the child’s attendance at child care.

19.That should the time arise when the mother is fit to have the child spend further time with her, or if other long-term decisions are required to be made such as where the child is to attend school, the mother and the father are to attend upon a registered Family Disputed Resolution Practitioner in an endeavour to reach agreement as to the relevant issues.

20.That the parties are to share equally in the costs of the Independent Children’s Lawyer as assessed by the Northern Territory Legal Aid Commission.

21.That the Independent Children’s Lawyer be discharged.

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 Cadzow & Alarie (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting application about X who is three years old. The parties in this case are as follows:

   (a)the first applicant, the father, Mr Cadzow;

   (b)the second applicant, the paternal grandmother, Ms Crowe;

   (c)the first respondent, the mother, Ms Alarie; and

   (d)the second respondent, the maternal grandmother, Ms Cooke.

2. Mr Cadzow and Ms Crowe take the same position in this case.  Ms Crowe was probably not a necessary party but it has been convenient to leave her as an applicant.  Mr Cadzow lives with his mother and X lives with him in that household.

3. Ms Alarie has a troubled history involving dependency on illicit drugs.  She told me she continues to receive naltrexone treatment for an opiate dependency and that that is effectively managing her dependency on opiates.  However, she told me she continues to use methylamphetamine and cannabis.  She has some insight into her dependency and acknowledges she is not yet at the stage where X could spend overnight time with her or for extended periods.  She agrees to some form of supervision of X’s time with her.

4. Ms Cooke, the maternal grandmother, has played a significant part in X’s life and at one point X lived with Ms Cooke for some months when the mother was unable to care for X.

5. On 29 January 2020, there was an order that X live with her mother, but that was superseded by an interim order made in March 2020 that saw X live with her father and the paternal grandmother.  That order was as a result of the evident incapacity of the mother to care for X at that time.

6. In June 2020, interim orders were made that the child should spend alternate Sundays with the maternal grandmother, Ms Cooke, from 9.00 am to 5.00 pm, with changeovers to occur at A Family Services commencing in February 2021.  An order was also made that the child was to spend every fourth weekend with the maternal grandmother from 9.00 am Saturday to 5.00 pm Sunday.  It was intended that that supersede the earlier order concerning time spending every second weekend. That order was flouted by the father and the paternal grandmother, who was also included in the earlier order that the child live with her and the father. I consider that the paternal grandmother was also in contravention of that order, although the contravention application I dealt with at the outset of the trial concerned only the father.  In that contravention application, I found the father guilty of the contravention and he was directed to enter into a good behaviour bond for one year.

7. The father said that he and the mother had agreed that the child was not to spend overnight time with the maternal grandmother.  That illustrates one of the notable aspects of this case, namely the mother’s shifting allegiances between the father, Mr Cadzow, and the paternal grandmother, Ms Crowe on the one hand, and the maternal grandmother, Ms Cooke, on the other hand. This has been an aspect of the mother’s behaviour for some time and she has an uneasy and fragile relationship with her own mother.  At the moment, that relationship has resumed and the mother and the maternal grandmother appear to be cooperating.  There is, however, considerable animosity between Mr Cadzow and Ms Crowe on the one hand, and Ms Cooke, the maternal grandmother, on the other hand.

8. It should be noted that I have heard previous litigation dealing with these parties.  I heard a trial between the mother, Ms Alarie, and the father of her elder daughter B in about 2017.  Ms Cooke, the maternal grandmother, played a role in that litigation too.  The result of that litigation was that B was ordered to live with her father.  B spends time with Ms Cooke pursuant to an agreement between Ms Cooke and B’s father. During that time, X has spent time with her half‑sister B; that should be encouraged.

9. In about 2019, I also dealt with litigation between the father, Mr Cadzow and his former wife. This litigation concerned their children and the time the children spend with the father.  It appears that the mother of Mr Cadzow’s other children was informed of an episode of family violence between Mr Cadzow and Ms Alarie and allegations about Mr Cadzow’s alcohol abuse.  Eventually, subject to conditions, there were orders that those children spend time with Mr Cadzow in Darwin.

10. Mr Cadzow has acknowledged a problem with alcohol and has undertaken a rehabilitation program at E House.  There is no evidence that he continues to abuse alcohol.  A Family Violence Restraining Order (FVO) was also made against Mr Cadzow with Ms Alarie as the protected person. That FVO expired in August 2020. I do not recall it being put in evidence but there was no disagreement when Mr Cadzow told me that that was the time it expired.

11. It can be seen that drug use, alcohol use and family violence have been factors in the relationship between the parties.  Unfortunately, the grandmothers appear to have become hostile toward each other.  This is a pity as I consider the grandmothers, on balance, are a strong protective factor for this child who is subject to a dangerous level of dysfunction.

12. Comment should also be made of MR D, the mother’s brother.  There is uncontested evidence that he has been a user of illicit drugs, has spent a considerable part of his life in prison and has been, at times, violent. The mother has been living with him in recent times or sharing a house with him.

13. I am satisfied that there needs to be measures to ensure that the child is not exposed to MR D.  I propose to make an injunctive order directed to the mother to that effect.  Ms Cooke has offered an undertaking to that effect which I will accept and note.

14. The parties, with the valuable assistance of Ms Romeo, the Independent Children’s Lawyer, have reached a measure of agreement. This includes, in summary:

    (1)that the child live with the father; and

    (2)that the child spend time with the mother on a supervised basis.

    There is a dispute about the precise details of the child’s supervised time with the mother. Particularly, whether the supervision ought to be by Mr Cadzow, Ms Crowe or Ms Cooke, or some combination of those people. The other area of dispute concerns whether the child should spend overnight time with Ms Cooke. This dispute arises due to safety concerns stemming largely from the conduct of Mr D.

15. Turning to the last issue first, there is no evidence that Ms Cooke has failed to comply with an earlier undertaking to the Court that she would ensure that the child did not come into contact with Mr D.  Ms Cooke gave evidence that Mr D lived in her home up until January of this year subject to bail conditions for an armed robbery charge. However, she stated that he has since moved out following a variation of his bail conditions.  In fact, the relationship between Ms Cooke and Mr D appears to have deteriorated. Ms Cooke and her husband have moved to more secure accommodation because of her concerns about Ms Alarie, Mr D and their associates.

16. I acknowledge that these matters are very concerning. However, as I have said, there is no evidence of non‑compliance by Ms Cooke with her undertaking or the earlier orders.  I am satisfied that she is protective of her grandchild.  She would be aware that any breach of her undertaking would result in the child ceasing to spend time with her.

17. The Family Report acknowledges the importance of the child’s relationship with the maternal grandmother and her half‑sister B who also spends time with the maternal grandmother.  I consider that the recommendations of the Family Consultant in relation to the child’s overnight time with the maternal grandmother should be followed. However, I propose to make that time monthly rather than fortnightly as was contemplated in the Family Report.  In other words, I propose to make orders that would simply see a continuation of the interim orders I made in June 2020, with the expectation that they will now be obeyed by the parties.

18. In relation to time the parties agree that the child should spend regular supervised time with the mother, three times in a four-week cycle.  One of those times will take place on the fourth weekend of every month at the maternal grandmother’s home when the child spends with the maternal grandmother. This is subject to the maternal grandmother being satisfied that the mother is not under the influence of illicit drugs. I accept Ms Cooke’s evidence about the steps she has taken in the past to ensure that that is the case and I am satisfied that she will be protective of the child. The time on the second weekend can take place, in my view, at the household of Ms Crowe or a place to be agreed between the mother and father.  In relation to the third weekend, I consider that the child’s time with the mother should take place as determined by the mother herself either:

    (a)at the household of Ms Crowe; or

    (b)by agreement with Mr Cadzow; or

    (c)with the maternal grandmother, Ms Cooke.

    In the latter case it will be necessary that changeover take place at A Family Services. The mother will need to indicate to the father that she is available and sober. The mother may indicate that by SMS message to Mr Cadzow or by some other means at least two hours before changeover is to occur.

19. In crafting these reasons I have borne in mind the legislative pathway in the Family Law Act 1975 (Cth) (the Act). For the sake of completeness, I will specifically or expressly refer to the legislative pathway.

20. In determining the best interests of a child, which is the paramount factor in determining a parenting case in this Court, the primary considerations are in section 60CC(2) of the Act:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    I am satisfied that the child will benefit from a meaningful relationship with both of the child’s parents, including the mother, subject to various safeguards and conditions.

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

    I am satisfied there is a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The orders I propose to make, in my view, adequately address that concern which is a real one.

21. The additional considerations in section 60CC(3) of the Act are:

    (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;

    The child has not expressed any views, having regard to her age.

    (b)the nature of the relationship of the child with:

    (i)each of the child’s parents; and

    (ii)other persons (including any grandparents or other relative of the child)

    I have referred to those matters already. I am satisfied that the child has a significant relationship, not only with her parents, but the paternal grandmother and the maternal grandmother. They are important figures in the child’s life.

    (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;

    (ii)to spend time with the child; and

    (iii)to communicate with the child

    I am satisfied that both parents have sought to participate jointly in decision-making. This is reflected in their agreement to an order for shared parental responsibility. I am satisfied this has not been without its difficulties owing largely to the instability of the mother’s lifestyle.

    (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

    There is no evidence about that.

    (d)the likely effect of any change 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 grandparents or other relative of the child), with whom he or she has been living

    There will not be any real change in the child’s circumstances except that every four weeks the child will now move to spend a weekend with the maternal grandmother including overnight time.

    (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

    This is not relevant.

    (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

    This is very much the heart of this case. I have had some reservations about each of the parties at different times.  I have mentioned the mother, the father, the maternal grandmother and the paternal grandmother. Notwithstanding that, I consider the grandmothers to be very important protective factors in this child’s life. It is, however, regrettable that they appear to be hostile to each other. The fact of the hostility is actually a question reflecting on their capacity to care for the child and productive of a risk to this child’s welfare.

    (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

    I have made comments about that. I do not propose to say anything further.

    (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

    The child is not an Aboriginal or Torres Strait Islander child.

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

    I am satisfied each parent loves X deeply and wants to do the best they can for her.  Regrettably, their own experiences and attributes have interfered with their capacity to deliver on that.

    (j)any family violence involving the child or a member of the child’s family

    (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

    I am satisfied there has been family violence between the parties and/or a member of the child’s family.  There is no evidence of any recent family violence between the mother and the father and I am satisfied there has not been in recent times. However, there is historical family violence which resulted in the FVO which expired in August last year. I have already referred to that. I am satisfied, to deal with the question of family violence, no further measure is required beyond the measures I propose to take in the orders. Changeovers will be at A Family Services if the child is to spend time with the mother and the maternal grandmother.

    (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

    I also have regard to section 60CC(3)(l). There is no other fact or circumstance that I consider relevant.

1. I also refer to section 65D of the Act as there is to be an order for shared parental responsibility, subject to some conditions about the mother being available. I do propose to make such an order. That means I have to consider, pursuant to section 65D, the question of equal time. This is not a matter where equal time is appropriate for the reasons that I have already explained. I am satisfied that such an order is not reasonably practicable. I am satisfied it is practicable for the child to spend substantial and significant time with the mother, subject to the safeguards and provisos that will be included in the order.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       7 May 2021