Cadzow and Anor and Alarie and Anor

[2020] FCCA 1742

FEDERAL CIRCUIT COURT OF AUSTRALIA

CADZOW & ANOR & ALARIE & ANOR [2020] FCCA 1742

Catchwords:
FAMILY LAW – Parenting – interim parenting application – what time the child spends with the maternal grandmother – where the child now lives with the father and spends time with the mother and the maternal grandmother – where the mother has a history of illicit drug use – where the child is very young and has had an unsettled life – where the parents oppose the child currently spending increased time with the maternal grandmother – where the child’s exposure to conflict is a risk – a cautious approach should be taken to increasing the time the child spends with the maternal grandmother.

Legislation:

Family Law Act 1975 (Cth)

First Applicant: MR CADZOW

Second Applicant: MS CROWE

First Respondent: MS ALARIE

Second Respondent: MS COOKE

File Number: DNC 9 of 2020

Judgment of: Judge Young

Hearing dates: 10 & 11 June 2020

Date of Last Submission: 10 June 2020

Delivered at: Darwin

Delivered on: 11 June 2020

REPRESENTATION

The First Applicant: In person

The Second Applicant: In person

The First Respondent: In person

The Second Respondent: In person

Independent Children’s Lawyer: Ms M. Romeo

ORDERS

1. That the child X born in 2018 spend time with the maternal grandmother Ms Cooke each alternate Sunday from 9am until 5pm.

2. That commencing in February 2021, the child spend time with the maternal grandmother every fourth weekend (i.e. every second alternate weekend for the purpose of order 1) from 9am Saturday until 5pm Sunday.

3. That changeovers occur at A Family Services unless otherwise agreed.

4. That the matter is adjourned to the trial call-over list on 20 November 2020 at 9.30am for further directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 9 of 2020

MR CADZOW

First Applicant

MS CROWE

Second Applicant

And

MS ALARIE

First Respondent

MS COOKE

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim parenting application about a child, X, who is two years and four months old.  X is the child of Ms Alarie and Mr Cadzow.  Ms Alarie and Mr Cadzow separated in 2019.  Initially they were the only parties to the proceeding. 

3. Ms Alarie has a history of illicit drug use including, apparently, methamphetamine and, perhaps, opiates.  The evidence about her precise illicit drug use is unclear but it seems to be agreed generally, including by Ms Alarie I might say, that she has a troubled history of illicit drug use.  It is clear from all the evidence that Ms Alarie has coped or attempted to cope with a dependency on illicit drugs for some years.  She relapsed into drug use last year. 

4. Ms Alarie agreed that Mr Cadzow should take care of the child earlier this year.  She placed X with Mr Cadzow in February of 2020 and X has been living with her father since then.  Mr Cadzow is supported by his mother, Ms Crowe.  Ms Crowe initially sought orders on her own behalf but at this stage she appears to be adopting the same position as her son. 

5. Mr Cadzow and X live with Ms Crowe.  Ms Crowe, Mr Cadzow and Ms Alarie are now cooperating with each other and essentially, Ms Alarie agrees that X should remain living with Mr Cadzow for the foreseeable future. 

6. X is spending time with Ms Alarie at times agreed with Mr Cadzow, essentially when she wishes it would appear, as long as she is not under the influence of drugs.  Mr Cadzow and Ms Alarie appear to cooperate to ensure that X spends time with her half-sister, B, who is seven years old.  B lives with her father, a Mr C.

7. The maternal grandmother, Ms Cooke, has also joined the proceedings.  She originally sought orders that the child live with her but her position at the interim hearing was to adopt the recommendations in a family report recently released.  The report, in substance, recommended that the child continue living with Mr Cadzow but spend alternate weekend time with Ms Cooke including on Saturday night.  Ms Cooke says she would also coordinate this time with Mr C to ensure that X spends time with her half-sister, B. 

8. Mr Cadzow and Ms Alarie oppose this course.  While they agree that X should spend increased daytime with Ms Cooke on alternate Sundays from 9 am to 5 pm, an increase on the present orders which provide for the child to spend time with Ms Cooke from 11 am to 4 pm, they oppose any overnight time commencing until the child turns four in February 2022. 

9. The independent children’s lawyer also opposed Ms Cooke’s application and says that X should not begin spending overnight time with Ms Cooke until February 2021, which is until X turns three.  The reason behind the independent children’s lawyer’s position was that X’s life should be allowed to stabilise.  This is given that in the care of her mother she appears to have had quite an unstable life and only recently has her life stabilised since she began living with Mr Cadzow in February 2020. 

10. The background is as I have described it however in addition it appears that for a period last year, for about four months, Ms Alarie and X lived with Ms Cooke.  The child is familiar with Ms Cooke and there is no reason to believe that she would not be or is not confident in Ms Cooke’s care along with Ms Cooke’s husband.  It should be noted that in the preparation of the family report there were no observations undertaken of the child with the parties due to the restrictions imposed by the COVID-19 pandemic.  Nevertheless, it was not questioned that the child has a good relationship with her grandmother, Ms Cooke.

11. It should be noted that a grandparent is not in the same position as a parent under the Family Law Act. Under the Family Law Act a child has a right to a meaningful relationship with both parents. That is a primary consideration in determining the child’s best interests. It is necessary, however to consider as an additional consideration a child’s relationship with other persons, including grandparents.

12. The facts that I consider significant, in this case, are as follows.  These are largely if not entirely uncontroversial and an agreed position on the materials before me:

    a)The child is very young, two years and four months old. 

    b)She has had an unsettled life up to now although the details are unclear.  The maternal grandmother believes at one point, when the child was breastfeeding with her mother, that the child showed signs of drug withdrawal.  There is no medical evidence about that it is, at this stage, merely an allegation.  However, I note that the child welfare authorities have had significant involvement with this child stretching back over, at least, a period of months and possibly longer. 

    c)The child’s present placement with the father is relatively recent, February 2020, and it is to be expected that she is still adjusting to that.  Having regard to the child’s age and developmental requirements one might expect that there are still bonding issues for this child, by that I mean her need to develop a significant primary attachment with a person.  It is notorious that a child will experience attachment issues particularly where a parent is dependent upon drugs.  That is an issue alluded to in the family report. 

    d)The mother and father agree on what they believe should happen with the child at this stage.  At the moment they have a cooperative parenting relationship. 

    e)The family report identified that Ms Cooke was deeply hostile to Mr Cadzow.  Ms Cooke believes that he is an unreformed alcoholic, is violent and has been violent to Ms Alarie in the past.  There is some evidence of that but it is unnecessary to go into the details, I think, at this stage.  There are indications that Ms Cooke’s hostility to Mr Cadzow is entrenched.  Mr Cadzow and Ms Crowe say that this is at such a level that due to Ms Cooke’s hostility changeover should take place at A Family Services, a children’s contact centre.

    f)Conversely, Mr Cadzow in particular has expressed concerns about Mr D, the brother of the mother.  He is concerned about Mr D having any contact at all with the child.  Mr D apparently has a drug history himself and has spent time in jail.  Mr Cadzow evidently feels threatened by him and considers him dangerous.  What Mr D’s contact with his mother, Ms Cooke, is at the moment is unclear, though there does appear to have been, historically at least some contact between Mr D and his mother, for example him being present at his mother’s house. 

13. All in all, I consider that the child is now at a vulnerable stage of her life.  Stability is now important to her.  Exposure to conflict is a clear risk in this case, and would be harmful to this child.  As noted previously, a grandparent is not treated the same way as a parent under the Family Law Act 1975 and the Act does not mandate the fostering of a parent-child kind of relationship.  In my view a Court should be cautious, particularly as is the case here, where parents are united in opposition to, not so much a grandparent’s involvement with this child, they do not oppose that, but they oppose an extension of Ms Cooke’s involvement with the child to what might be called a greater than usual role. 

14. Further, a Court should be cautious in a case such as this to ensure that a grandmother’s role does not become intrusive, productive of conflict or harmful to the child’s welfare. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 29 June 2020