Carey & Prescott (No 2)

Case [2024] FedCFamC1F 512

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Carey & Prescott (No 2) [2024] FedCFamC1F 512

File number(s): BRC 9380 of 2023
Judgment of: BRASCH J
Date of judgment: 1 August 2024
Catchwords:

 FAMILY LAW – PARENTING – Where the child has lived with father and paternal grandparents for more than a decade – Where father died unexpectedly and paternal grandparents applied for orders under the Critical Incident List to make major long terms decision for the child as non-parents – Where mother has not seen the child for several years – Where mother’s time before that was sporadic due to hospital admissions and incarcerations – Where mother fixated on reconciling with father years after separation – Where no time order made in 2021 – Where mother applied for the child to live with her as a result of service of the Critical Incident List proceedings – Where child has steadfast and long held views not to see the mother – Whether there is a risk to the child that the mother would fixate on him and/or engage in stalking and other anti-social behaviour as she did with the father when he was alive – Where no time order again made as between mother and child

FAMILY LAW – HARMFUL PROCEEDINGS – Where parties in litigation from when the child was an infant to now at almost 12 years old – Where the rounds of litigation were largely a consequence of the mother’s anti-social and criminal behaviour towards the paternal family, her psychiatric admissions, and, her incarcerations for offences directed to the paternal family – Where further litigation harmful to child without leave of the court – Harmful proceedings orders made  
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 61D, 64B, 65D, 65DAB, 65K, 68B, 102, 102NA, 102QAC, 102QAG

Family Law Amendment Act 2023 (Cth) s 25(1)
Cases cited:

Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222

Carey & Prescott [2023] FedCFamC1F 867;

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Mauldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

McEnerney & McEnerney (1980) FLC 90-866; [1980] FamCA 43

Re F: Litigants in Person Guidelines (2001) FLC 93–072; [2001] FamCA 348
Division: Division 1 First Instance
Number of paragraphs: 174
Date of last submission: 19 July 2024
Date of hearing: 17, 19 July 2024
Place: Brisbane
Counsel for the Applicants: Mr Ashcroft
Solicitor for the Applicants: Murray Bucknall Legal
Solicitor for 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:

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AGLC
Carey & Prescott (No 2) [2024] FedCFamC1F 512
Case
[2024] FedCFamC1F 512
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the paternal grandparents of a child, Ms L Carey and Mr M Carey, applied for orders under the Critical Incident List following the unexpected death of the child's father. The child has lived with the paternal grandparents for over a decade, and the maternal parent, Ms Prescott, had not seen the child for several years due to her sporadic contact, hospital admissions, and incarcerations. The paternal grandparents applied for orders to make major long-term decisions for the child, while Ms Prescott applied for the child to live with her. The child has expressed steadfast and long-held views against seeing the mother. The court had to determine whether there was a risk to the child that the mother would engage in anti-social behaviour or stalking, similar to her conduct towards the father when he was alive.

The court considered the extensive history of litigation between the parties, largely due to the mother's anti-social and criminal behaviour towards the paternal family. The court found that any further litigation would be harmful to the child without leave of the court. It was noted that the mother had fixated on reconciling with the father years after their separation, and her conduct had been marked by violence and harassment. The court also found that the child had a clear preference not to see the mother, and there was a risk that the mother's past behaviour could recur. Consequently, the court discharged all previous orders and made new orders that the child would live with the paternal grandparents, who were granted parental responsibility for all major long-term issues. The mother was prohibited from contacting the child, the paternal grandparents, or discussing certain topics in any correspondence with the child. The court also issued injunctions to protect the child and his paternal grandparents from the mother.

The court ordered that the paternal grandparents have sole responsibility for all day-to-day decisions regarding the child. The mother was permitted to send the child one letter per month, subject to strict conditions, and the paternal grandparents could withhold any letter that did not comply with these conditions. The court also restrained the mother from entering certain areas or communicating with the child or the paternal grandparents. Additionally, the court prohibited the mother from instituting proceedings against the paternal grandparents without leave of the court. The reasons for judgment were released to the paternal grandparents and the mother through her psychologist.

Orders

Orders of the court

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:

1 AUGUST 2024

THE COURT ORDERS:

1. That all previous Orders be discharged.

2. That the child B born 2012 (“the child”) live with the First Applicant MS L CAREY (“First Applicant”) and the Second Applicant MR M CAREY (“Second Applicant”) (collectively, “the paternal grandparents”).

3. That parental responsibility be allocated to the paternal grandparents for all major long‑term issues in relation to the child and they are able to exercise parental responsibility individually or together for all major long term decisions related to the child, including:

(a) The child’s education (both current and future);

(b) The child’s religious and cultural upbringing;

(c) The child’s health;

(d) Requesting that Medicare issue a card/s for the child and claiming Medicare benefits for the child; and

(e) Obtaining a passport for the child.

4. That the paternal grandparents have responsibility for all day-to-day decisions with respect to the child.

5. That the child spend no time and have no communication with the mother save that:

(a) The child is at liberty to communicate and spend time with the mother at the paternal grandparents’ discretion and be supervised by the paternal grandparents or their nominees known to the child.

6. That pursuant to s 61C(3) of the Family Law Act 1975 (Cth) (“the Act”), the mother has no decision making power or parental responsibility for the child.

7. That pursuant to s 114Q of the Act, the paternal grandparents have leave to provide a copy of these Orders to all service providers for the child, including but not limited to the child’s school, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, passport and visa providers, or, for securing any financial support for the child.

8. That these Orders are authority for the paternal grandparents to schedule and consent to treatment, therapy, schooling, programs, services, and the like for the child and to give and receive such information from service providers as a parent would ordinarily receive.

9. That the mother is at liberty to send the child one letter per calendar month by post to the address: N STREET, SUBURB O, QLD, or such other address as the paternal grandparents direct, provided that the letter does not refer to or discuss:

(a) The child’s late father;

(b) The paternal grandparents;

(c) The relationship between the mother and the child’s late father or the relationship between the mother and the paternal grandparents;

(d) Adult issues;

(e) The child living with or spending time with the mother;

(f) Pressuring the child to communicate with her; and

(g) Changing his school.

10. That the paternal grandparents may withhold any letters sent to the child by the mother if any letter:

(a) Does not comply with Order 9;

(b) Will upset or cause the child distress; and/or

(c) Is inappropriate.

11. That the paternal grandparents must retain all letters received from the mother pursuant to Order 9 so that they are available for the child to read should he wish to do so once he attains the age of majority.

12. That the paternal grandparents will provide the mother with a sample of recent photos of the child to the mother’s email address …@… once per calendar year on or before 20 December each year.

Restraints

13. That pursuant to s 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 B (“the child”) or MS L CAREY or MR M CAREY (“paternal grandparents”), or a place where each or any of them 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

B to publish or to interact via any social media application from any material or content concerning B and/or MS L CAREY and/or MR M CAREY for any reason;

(c) Taking possession of B or attempting to do so; and

(d) Instructing or requesting any other person to do any of the acts referred to in Order 13(a)-(c) inclusive.

14. Order 13 above is for the personal protection of the child, B, 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 s 68C of the Family Law Act 1975 (Cth).

Harmful Proceedings order

15. That pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth) (“the Act”) the Respondent mother MS PRESCOTT is prohibited from instituting proceedings under the Act against the First Applicant MS L CAREY and/or Second Applicant MR M CAREY without the leave of the Court under s 102QAG of the Act.

16. That pursuant to s 102QAC(7) of the Act, in the event the Respondent mother MS PRESCOTT makes an application under s 102QAE for leave to institute proceedings against the First Applicant MS L CAREY and/or Second Applicant MR M CAREY (“the Applicants”), a Registrar of this court is to notify the Applicants if the application is dismissed, that the application has been dismissed.

Release of Reasons

17. The reasons for judgment dated 1 August 2024 are released to:

(a) The paternal grandparents and their legal practitioners; and

(b) The mother through her psychologist, Ms Q.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

B’s father died in 2023. B has remained living with the paternal applicants since then. Background The first applicant paternal grandmother, Ms L Carey was born in 1947. The second applicant paternal grandfather, Mr M Carey was born in 1946 (“the paternal grandparents”). The father was born in 1971 and the mother in 1972. Their relationship began in 2009 or 2010 and they began cohabitation in about mid-2011 at the mother’s home. The mother suffered a traumatic pregnancy after her medications changed and was hospitalised due to consequent mental health difficulties for the last three months of the pregnancy. B was born in 2012. On 18 January 2013, the father commenced proceedings. On 25 January 2013, the father left the mother's home with B and went to live with his parents, the paternal grandparents. They remained there until the father’s death and B remains living with them now. Consequent on the father’s filing in 2013, the parties’ dispute found its way to trial in June 2015. The mother and father entered into consent orders whereby B live with the father, and the mother and father had equal shared parental responsibility. B’s time with the mother was to progress from supervised time to five nights each fortnight. However, after those 2015 consent orders, the paternal grandmother deposed that: …[Mr Carey], myself and [Mr M Carey] were subjected to a campaign of violence and harassment by [Ms Prescott] and she was imprisoned on a number of occasions as a consequence of breaches of domestic violence orders and for assaults on [Mr Carey], me, a passerby who came to my assistance on one occasion, and multiple other offences. (Affidavit of Ms L Carey filed 26 June 2024, paragraph 13). The paternal grandmother set out the particulars in her affidavit that lead to the above summary. It seems B may have had some unsupervised time with the mother in 2015 to early 2016. The father commenced another set of proceedings in early 2016 following incidents of family violence in January and February 2016 which are set out later in these Reasons. The mother spent time in jail in 2017 due to family violence convictions. When the mother was available, B had supervised time with her. The 2016 proceedings were finalised on 21 February 2018 with final orders by consent for B to continue to live with his father, and spend two hours each week with his mother, supervised at a contact centre. The mother spent time in jail between early 2018 to mid-2019, again due to her criminal conduct directed at the father. Not long after her release, a new set of parenting proceedings commenced on 22 October 2019 by the maternal grandfather, in which the mother and father were named as respondents. In the current 2024 trial, the mother said he was wholly unsuccessful. In late 2019, the father stopped B’s time with the mother after she left her mental health care at a hospital and turned up at the father’s residence. This is the home in which B and his paternal grandparents also resided. B has not seen his mother since.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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