Carey & Prescott
[2023] FedCFamC1F 867
•24 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carey & Prescott [2023] FedCFamC1F 867
File number: BRC 9380 of 2023 Judgment of: BRASCH J Date of judgment: 24 October 2023 Catchwords: FAMILY LAW – CRITICAL INCIDENT LIST – Where child’s father recently passed away – Where child not seen mother since 2019, but mother has commenced writing to the child – Where child has lived with the paternal grandparents and father, to his death, since 2013 - Where interim consent orders previously made for major long-term decision making in favour of the paternal grandparents –Where mother eventually filed material seeking supervised time with the child, graduating to the child residing with her.
FAMILY LAW – PRACTICE AND PROCEDURE – Where paternal grandparents sought summary orders dismissing the mother’s Response, inter alia, pursuant to r 10.09(1)(d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where mother sought a Family Report so the child’s views could be discerned – Orders made for a Family Report.
Legislation: Family Law Act1975 (Cth) Pt VII, ss 45A, 60B, 60CA, 60CC, 60CC(2), 60CC(3), 65D(1) 61DA, 65DAB, 69ZN, 121
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09(1), 10.11(1)
Cases cited: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641
Butorac v WINCorporation Pty Ltd [2009] FCA 1503
Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18
Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1
G & C [2006] FamCA 994
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Loddington & Derringford (No 2) [2008] FamCA 925
Massalski & Riley (2022) 65 Fam LR 73; [2022] FedCFamC1F 36
Masson & Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Prescott & Carey [2021] FCCA 2214
Tibb & Sheehan (2018) 58 Fam LR 351; [2018] FamCAFC 142
White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 29; [2007] FCA 511
Division: Division 1 First Instance Number of paragraphs: 79 Date of hearing: 18 October 2023 Place: Sydney (by video conference) Counsel for the Applicants: Mr Ashcroft Solicitor for the Applicants: Murray Bucknall Legal The Respondent: Litigant in person ORDERS
BRC 9380 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS L CAREY
First Applicant
MR M CAREY
Second Applicant
AND: MS PRESCOTT
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
24 OCTOBER 2023
ON 18 OCTOBER 2023 THE COURT ORDERED:
1.The matter is removed from the Critical Incident List.
2.The matter is placed in the docket of the Honourable Justice Brasch.
Restraints:
3.That pursuant to Section 68B of the Family Law Act 1975 (Cth) an injunction is hereby issued restraining MS PRESCOTT (“the mother”) whether by herself, her servants or agents from:
(a)Entering or remaining in or approaching within 150 meters of a place of residence, employment or education of the child X (“the child”) or MS L CAREY or MR M CAREY (“paternal grandparents”), or a place where the child or paternal grandparents is receiving or attending to receive the benefit of medical, educational, professional or other services or from attempting to enter such place or places or a specified area that contains a place or service of this kind;
(b)Using any carriage service or social media to make contact with, message or communicate with MS L CAREY or MR M CAREY or X to publish or to interact via any social media application from any material or content concerning X and/or MS L CAREY and/or MR M CAREY for any reason;
(c)Taking possession of X or attempting to do so; and
(d)Instructing or requesting any other person to do any of the acts referred to in Order 3(a)-(c) inclusive.
4.That the Orders made in Order 3 above are for the personal protection of the child X and his paternal grandparents MS L CAREY and MR M CAREY and are Orders to which the power of arrest without warrant attaches pursuant to Section 68C of the Family Law Act 1975 (Cth).
THE COURT FURTHER ORDERS THAT:
5.The following proposed orders contained within the mother’s Response to Initiating Application filed 12 October 2023 are struck out:
(a)Proposed Final Orders 3 and 4(b) with respect to succession planning for parental responsibility and living arrangements;
(b)Proposed Interlocutory Order 3 save for “with the child to continuing to live with the paternal grandparents at this point”; and
(c)Proposed Interlocutory Order 5(b), which is in the form of a statement.
Family Report
6.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X, born 2012 (“the child”) attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a Family Report, such report to be released by no later than 4.00 pm on 29 March 2024 and that the Family Report address:
(a)The matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth), but noting s 62G(3A) and s 62G(3B) of the Act;
(b)The impact upon the child and upon the child’s relationship with the mother if the Court made orders as sought by the paternal grandparents;
(c)The impact upon the child and upon the child’s relationship with the paternal grandparents if the Court made orders as sought by mother; and
(d)Any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
7.Not later than 4.00 pm on 31 November 2023 the parties must provide their contact telephone numbers and email addresses to …@....
8.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
9.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Material produced by a Child Protection authority pursuant to subpoena or a s 69ZW order made in these proceedings;
(b)Material produced by a Police Service pursuant to subpoena or s 69ZW of the Family Law Act 1975 (Cth) or s 187(3)(b) of the Child Protection Act 1999 (Qld) made in these proceedings; and
(c)Any other relevant material presently before the Court in admissible form.
10.Upon the Family Report being provided to the Court, the Court will consider the release of the report to each party (or if represented, the party’s lawyer).
11.The Family Report must not be released by the parties and/or their legal representatives (if any) other than as provided by s 121 of the Act.
Subpoena
12.The parties’ legal practitioners have leave to issue as many subpoena as deemed appropriate.
13.Self-represented parties wishing to issue subpoena are to apply to a Judicial Registrar.
Interim Hearing
14.The matter is listed for interim hearing before the Honourable Justice Brasch (by Microsoft Teams) on a date to be fixed following the release of the Family Report.
THE COURT NOTES THAT:
A.It is requested Court Children’s Service facilitate the Family Report occurring in the Brisbane Registry in circumstances where all parties reside in Queensland.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
BACKGROUND
This application concerns X born 2012 (“the child”). The applicants in these proceedings are the paternal grandparents. Ms L Carey was born in 1947 (“the paternal grandmother”) and Mr M Carey was born in 1946 (“the paternal grandfather”) (“the paternal grandparents”).
The child’s father Mr Carey was born in 1971 (“the father”) and passed away in 2023 from terminal illness. The child’s mother Ms Prescott was born 1972 (“the mother”). The child has not seen the mother since late 2019, although she has started writing to him each month.
The mother and father commenced a relationship in about 2010. During the mother’s pregnancy, the mother was admitted to hospital due to mental illness difficulties. Between the child’s birth in 2012 and 2013, the mother, father and child lived at the mother’s home. Following the child’s birth, the mother continued to suffer with mental health issues resulting in the father taking the child into his care in early 2013 and living with the paternal grandparents.
The child has lived at the paternal grandparent’s home ever since. The father lived there too until his sudden illness and death this year.
Soon after the father and child moved to the paternal grandparents’ house in 2013, the father commenced proceedings in the Family Court of Australia (as it then was). The parties entered into final consent orders on 24 June 2015. That Order provided that the parents have equal shared parental responsibility for major long-term issues, the child live with the father and a graduating time arrangement culminating in the child spending five nights per fortnight with the mother.
The parents’ relationship was marred by a raft of domestic violence orders taken out against both the mother and the father.
The parents’ behaviours also resulted in 19 intakes by Child Safety with 14 recorded as child concern reports over a period from 2013 to 2023. The mother was listed as the alleged person responsible in 13 intakes.
The mother was incarcerated at least three times between 2017 and 2021 for breaches of domestic violence orders. The mother has also been convicted of a long range of associated offences.
More recently, the mother received a sentence of probation for two further breaches of domestic violence orders. The probation expired in early 2023. In early 2023, the father sought and was granted a five year extension to the domestic violence order then in place. The child was named on the order and was protected by it. However, with the father’s passing, the domestic violence order is now a nullity (Annexure MCB02 to the affidavit of Murray Colin Bucknall filed 17 October 2023, p.18).
The mother has also had many mental illness challenges and hospitalisations.
In 2018, final consent orders were made for the child to live with the father. Doing the best I can, it seems the mother was in prison and supervised time was to occur if she was not in prison.
In 2019, the maternal grandfather commenced proceedings seeking time with the child, but ultimately did not press his application. The matter then progressed as another dispute between the mother and father. Two Family Reports were prepared in those proceedings and with the benefit of those reports, on 8 February 2021 a judge of the Federal Circuit Court of Australia (as it then was) delivered ex tempore reasons and made final orders for the father to have sole parental responsibility for the child and that the child spend no time with the mother (Prescott & Carey [2021] FCCA 2214).
The orders also provided that the child have no communication with the mother unless requested by the child and considered to be in the child’s best interests by the father. The father was to, supervise such communications. The mother was at liberty to send the child one letter per calendar month provided that the letter did not refer to or discuss the father, the mother and father’s relationship, or adult issues.
Upon the father’s death earlier this year, the paternal grandparents filed an application asking to be accepted into the Critical Incident List. The paternal grandparents brought the proceedings to the mother’s attention and she appeared on the first return on 26 July 2023.
At that July mention, it was ordered by consent, on an interim basis, that the child would live with the paternal grandparents and they would have parental responsibility for major long-term decisions for the child.
Further consent orders were made allowing the mother to send the child one letter per calendar month on the conditions set out in the order, and that the paternal grandparents provide the mother with some recent photos of the child.
I made orders requiring the mother to file material by no later than 20 September 2023. She did not do so.
When next before me on 28 September 2023, the mother submitted that she had been suffering from poor health, her mother was also suffering health complications and she had difficulties lodging the documents in time due to this. Although no formal application was filed, the mother sought an adjournment for a month to allow her an opportunity to file the required material.
I made an order for the mother to file by 4.00 pm, 12 October 2023. The mother filed the material by that time. As said, she sought orders culminating in the child living with her.
The matter came before me again last week, being18 October 2023. The paternal grandparents sought:
(a)The mother’s Response be summarily dismissed for having no reasonable likelihood of success and/or because even though the mother filed her material on time (12 October 2023), she did not serve it on time. The order of 28 September 2023 only referred to filing and not service. The paternal grandparents’ solicitor also deposed to seeing the documents on the Commonwealth Courts Portal on 13 October 2023. When taken to the terms of the order, Mr Ashcroft, counsel for the paternal grandparents, did not press a technical approach against a litigant in person about service of the documents. His clients suffered no prejudice in the material not being served on time – their solicitor ascertained its exitance soon after the filing date. I will deal with the mother’s reasonable likelihood of success later;
(b)In the alternative, the paternal grandparents sought orders pursuant to rr 10.11(1)(b), 10.11(1)(c), and 10.11(1)(d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), that essentially, the matter remain on the Critical Incident List and I make many of the interim orders on a final basis. It was said I would hear the matter on the papers or by Microsoft Teams;
(c)Personal Protection Orders – I had discussed these with the mother in the September 2023 hearing and again in the most recent October 2023 hearing and made those orders then;
(d)Orders to facilitate counselling/therapy for the child to “process” the loss of his father. The paternal grandparents already have sole parental responsibility and orders making it clear they can access and consent to any service required by the child. They also sought leave to provide the previous Family Reports to any such therapist/counsellor. I struggle to see how a therapist could be the “public or section of the public” pursuant to s 121 of the Family Law Act1975 (Cth) (“the Act”). I do not consider the therapy and release orders to be necessary;
(e)In the event I did not make summary orders, the paternal grandparents asked the matter be transferred to Brisbane and be allocated an expedited trial. Ultimately, the paternal grandparents’ position was that if I ordered a Family Report, then, the matter remain in my docket and I list an interim hearing before me upon the release of the Report; and
(f)Costs – this was not pressed at the hearing.
The mother initially asked for supervised time at the paternal grandparents’ house, but ultimately pressed for a Family Report so the child’s views could be ascertained. I am grateful to the mother’s friend Ms P who assisted the mother at the hearing.
Material
The applicant paternal grandparents relied upon the following documents:
·Further Amended Initiating Application filed 17 October 2023;
·Application in a Proceeding filed 19 July 2023;
·Affidavit of Ms L Carey filed 19 July 2023;
·Affidavit of Mr M Carey filed 19 July 2023;
·Affidavit of Service filed 24 July 2023;
·Notice of child abuse, family violence or risk filed 19 July 2023;
·Affidavit of Ms L Carey filed 22 September 2023;
·Affidavit of Mr M Carey filed 22 September 2023;
·Application in a Proceeding filed 25 September 2023;
·Affidavit of Murray Colin Bucknall filed 25 September 2023;
·Affidavit of Murray Colin Bucknall filed 17 October 2023; and
·Outline of Case Document sent 18 October 2023.
The mother relied upon:
·Response to Initiating Application filed 12 October 2023;
·Affidavit of Ms Prescott filed 12 October 2023; and
·Notice of child abuse, family violence or risk filed 12 October 2023.
I have also been assisted by two reports from the Department of Child Safety, Seniors and Disability Services (“the Department”) dated 25 July 2023 and an update on 27 September 2023. These cover the Department’s involvement with the parties and the child. I am grateful for their assistance. The Department lists many child protection concerns from 2013 to 2023 with respect to the parents. They have no concerns with the child remaining in the care of the paternal grandparents. I read the contents of the report to the paternal grandparents and mother each time. The hearings have been conducted by Microsoft Teams.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to s 61DA and s 65DAB, which is irrelevant here. Section 60B of the Act sets out the objects and principles of Pt VII as follows:
The objects are to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson & Parsons (2019) 266 CLR 554, their Honours, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children”.
Best Interests of the Child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of the child are determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheehan (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties present their cases.
Summary dismissal
The paternal grandparents moved on r 10.09(1)(d) for summary orders, being the mother’s material having “no reasonable likelihood of success”. They also moved on rr 10.11(1)(b), 10.11(1)(c), and 10.11(1)(d) that give me the power to decide an issue, make a final order, or order a hearing about an issue or fact. There is no doubt I can do the things just identified. The real issue is whether I make summary orders finally determining the parenting dispute on this third return.
Applications for the summary dismissal of a proceeding or part of the proceeding can be made either pursuant to s 45A of the Act, or s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) for Division 1 (as is the case here) or pursuant to r 10.09 of the Rules - which the paternal grandparents have moved on. Given the tests to be applied in s 45A of the Act and s 46 of the FCFCOA Act set a lower bar than r 10.09, I do not understand why the application was made under the rule. It is also well-established that the test in s 45A of the Act has lowered the bar previously held to apply in cases like Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91–92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130; White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 29 at [54]. A useful and recent discussion of the law relating to summary dismissal was set out by Harper J in Massalski & Riley (2022) 65 Fam LR 73 at [54]–[74].
In any event, the paternal grandparents moved on r 10.09. However, given I ultimately determine that I need to hear the child’s wishes and whether a relationship with his mother would be of benefit to him, little turns on their choice of jurisdictional basis/power.
Rule 10.09 refers to ‘Application for summary orders’ due to, relevantly, “there is no reasonable likelihood of success”. Accordingly, the paternal grandparents bear the onus of persuading me that the mother’s Response has no reasonable prospects of succeeding (Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 (“Cassimatis”) at [45]). However, that is in circumstances where I am not bound by the parties’ orders (subject to procedural fairness) and must make orders in the best interest of the child.
The assessment required by r 10.09(1)(d) whether a proceeding has “no reasonable likelihood of success” also necessitates the making of value judgments in the absence of a full and complete, or more advanced factual matrix and argument. Consequently, the provision vests a discretion in the Court to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined (Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19]; Cassimatis at [50]).
It is also relevant to the exercise of discretion under r 10.09, that it is a significant matter to shut a litigant out of a case completely. The capacity to strike out summarily should be exercised with caution.
Finally, this is a parenting matter. Thus, it is important to recognise that the touchstone of the exercise of jurisdiction pursuant to Pt VII of the Act is the best interests of the child.
The best interests of the child
The primary considerations in s 60CC(2) 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.
In balancing these considerations, s 60CC(2)(a) of the Act requires the Court to give greater weight to the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence: s 60CC(2)(b) of the Act.
A meaningful relationship
It is obvious that the child cannot now have a meaningful relationship with both parents. The child’s father has died and the child has not seen the mother since 2019, but the mother is now writing to him.
In McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, the Full Court said at [122]:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(Emphasis added)
In Loddington at [173] Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering’.
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
…that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
Protection from harm
Turning to the issue of protecting the child from harm, I have on one hand, a copy of the mother’s considerable criminal record. I have already set out a summary of some of the convictions, notably including an assault on the paternal grandmother whilst she was holding X in early 2016. The mother wanted to explain that to me, but an assault is an assault. A further family violence order was made for the protection of the father and child earlier this year, for five years. On the other hand, I am greatly assisted by the material from the Department. They hold no concerns about the child being in the care of the paternal grandparents.
Now the Family Violence Order is a nullity because of the father’s death, the paternal grandparents ask for Personal Protection Orders. I brought these to the mother’s attention in the September 2023 hearing and indicated in the October 2023 hearing that it would be appropriate to make the Personal Protection Orders, at least on an interim basis. I say more about this under the family violence sub-heading below.
Additional considerations
I turn, then, to the additional considerations at s 60CC(3) of the Act.
(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;
I do not know whether the child wishes for a relationship with the mother, or not. I do not know if he enjoys the mother’s letters, or not. Now the mother has engaged in the proceeding, I am being asked to make summary orders in the absence of knowing anything about the child’s views. This lack of evidence weighs heavily against making summary orders.
I am conscious this is the fourth round of litigation over the child. But in reality, the child would have no memory of the proceedings in 2013. It does not seem the 2018 proceedings were terribly involved as the mother was in jail. Family Reports were produced for the proceedings that began in 2019, but the child will be 11 years old soon and may well have some views on how he sees the shape and form of his future.
(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);
The child has not seen the mother since 2019, but she has started writing to him. Hence, it cannot be said the mother is a stranger to the child. That said, it cannot be that the child’s relationship with the mother is anything but rudimentary. Whether the relationship ought be given an opportunity to develop into something positive, healthy and beneficial for the child, is not something I can currently determine. Equally, as said, I have nothing from the child about what kind of relationship he may want (or not) with the mother.
The child and the father moved to live with the paternal grandparents in 2013 and the paternal grandparents have taken an active role in the care for the child since that time. The evidence before me is that the child is, and has been, properly cared for by the paternal grandparents. I am satisfied the paternal grandmother and grandfather provide nurture, support and stability for the child, that is, the child’s relationship with the paternal grandparents is one that is healthy, positive and beneficial to him.
(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;
(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;
The mother has had the benefit of parenting orders in her favour since at least 2015 to 2021. However, as said, she has not seen the child since 2019. By reason of her own vulnerabilities and challenges the mother has been unable to exercise any of the factors referred to in s 60(CC)(3)(c). I do not know if the mother pays child support for the child, but even if she did, given her times in prison and current receipt of welfare payments, any child support would be minimal. Conversely, it must be that the paternal grandparents provide for the child.
(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; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child has long been separated from his mother.
The orders sought by the paternal grandparents (on all their permutations) result in no change of circumstance for the child, but it must be acknowledged that the child has lost his father. That must be a terrible circumstance for a child to try and understand, but I am satisfied the paternal grandparents have and will take all steps necessary to assist the child through the consequences of the loss of his father.
The mother’s proposal is a huge change for the child. But there is presently no expert evidence before me to assist me in understanding whether a reintroduction of the child to the mother (beyond the current letters) would be, or would not be, in the child’s best interests.
(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;
The practical difficulty and expense of the child communicating does not presently arise.
(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (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;
The mother has been incarcerated a number of times for contravention of domestic violence orders. That lack of containment does not bode well for her capacity to parent. The letter before me written by the mother to the child was not inappropriate per se, but it was a rather chaotic stream of consciousness and expressed sentiments likely to be beyond the child’s understanding. Yet, her love and aspirations for the child were apparent.
It is clear to me that the paternal grandparents are people who have capacity to parent or, in this case, capacity to grandparent. I am well satisfied they can provide for the child’s emotional and intellectual needs.
(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;
The maturity, sex and lifestyle background of the child is not a matter that looms.
(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;
Section 60CC(3)(h) is not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
What I said about capacity to parent above applies with equal force to this consideration.
Whilst this section specifically refers to parents, I am satisfied that the paternal grandparents possess the responsibilities of parenthood.
(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;
The mother has been incarcerated for breaches of domestic violence orders taken out for the benefit of the father, paternal grandparents and the child. The mother has also been convicted of assault and stalking paternal family members (Annexure MLC4 to the affidavit of Ms L Carey filed 19 July 2023, p.34–46).
The 25 July 2023 report provided by the Department refers to a number of incidents where the child was exposed to the mother physically assaulting the father and paternal grandparents. The two Family Reports both listed family violence to be a substantive risk factor. A domestic violence order was made in early 2023 with the father listed as the aggrieved and the mother listed as the respondent. The child was named on that order (Annexure MLC9 to the affidavit of Ms L Carey filed 22 September 2023, p.93). The order is now a nullity due to the father’s death.
The mother says she has a mental health team, and says, essentially, that she is in a better space now. However, the mother’s long history of family violence and other convictions indicate to me that she has difficulties in regulating herself in a pro-social way and difficulties with respecting other people’s boundaries and space.
The paternal grandparents will no doubt issue subpoena which will shed more light on what the mother has done, or not, in terms of rehabilitation.
Due to the mother’s long history of anti-social conduct and because the family violence order is now a nullity, I will make the Personal Protection Orders sought by the paternal grandparents on an interim basis. It is in the child’s best interests that he not be subjected to, directly or indirectly, any of the anti-social things of which the mother has demonstrated capacity.
(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;
As said, this is the fourth round of litigation over the child, but his memory of the first tranche would be non-existent and the second may be minimal. The paternal grandparents urge me to make summary orders as indicated.
(m) any other fact or circumstance that the court thinks is relevant.
Nothing else arises.
Discussion and disposition
The summary orders sought by the paternal grandparents are understandable from their perspective in the circumstances. They want finality. They want to grieve their son and concurrently grandparent their grandchild, unimpeded by litigation.
I also accept that the mother’s orders are not well drafted, and I have struck out some orders. I also accept her affidavit is of poor quality. However, if a lack of precision in drafting and ineloquence of expression were sufficient to engage r 10.09(1)(d), then many matters before the Court would come to an end. It is plain to me that the mother’s case is that she says it is in the child’s best interests that he eventually live with her. However, I am not bound by the parties’ proposals and, on the provision of procedural fairness, I must make orders that I consider to be in the child’s best interests. Many of the authorities to which I have referred are civil cases which rise or fall on the pleadings. That is not the case in a best interest’s jurisdiction.
Indeed, the touchstone in a summary order application remains the child’s best interests. To that end, I have no information about how this soon-to-be 11-year-old sees his future in terms of his mother. It may be he does not enjoy the letters from the mother, hence, if so, I could turn my mind to making an order to bring that to an end. Or, he may want to meet his mother and have some sense of his maternal identity, but I do not know.
The irony of continuing the proceedings to hear the child’s voice is not lost on me. However, without hearing from the child (as part of many other Pt VII considerations), I cannot determine that summarily dismissing the mother’s Response is in the child’s best interests. To do so may be to cruel the child’s relationship with the mother (in some form) for which the child may yearn. Or, I may be imposing the mother’s letters on him, when he does not wish for the imposition. I just do not know and cannot guess.
Earlier, I set out the principles relevant to summary orders, including, the requirement to make value judgments in the absence of some important evidence. The child’s view of his future is an example of the important information I do not have. The inability to currently and prospectively assess whether a relationship with the mother would be of benefit to the child is another thing I cannot assess on the current state of the evidence.
Accordingly, I will not summarily dismiss the mother’s Response, but order a Family Report. When that report is produced and depending on the recommendations, it may be that the paternal grandparents renew an application for summary orders when the legal and factual issues, in particular with respect to the overarching consideration of the child’s best interests, have been more clearly defined. That will be a matter for them.
I will make the Personal Protection Orders on an interim basis for reasons already given.
I have also listed the orders in the mother’s Response which I struck out at the October hearing, for being, essentially incompetent.
The matter no longer has the urgency to be in the Critical Incident List, but, as indicated to the parties, I will place the matter in my docket. That means the parties will not have to re-tell their narratives to new judicial officers. In doing so, I am conscious that the paternal grandparents are dealing with the death of their son. I am also conscious that the mother is, as she tells me, concentrating on her rehabilitation. Neither the paternal grandparents nor the mother need to be distracted from these important life-matters by having to tell someone else their respective histories.
Accordingly, I will list the matter for interim hearing after the Family Report is produced. I will provide orders for issuing subpoena. Whether the hearing occurs in person in Brisbane or by Microsoft Teams is something I will direct closer to the time.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 24 October 2023