Carey & Prescott (No 2)
[2024] FedCFamC1F 512
•1 August 2024
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:
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
The child B will be 12 years old at the end of this year. Litigation first commenced over him virtually from birth and has continued since.
Not long after B’s birth in 2012, the father ceased cohabitation with the mother at her home and left with B. From 25 January 2013, B lived with his father, Mr Carey (“the father”) and the paternal grandparents, the current applicants.
B has not spent time with his mother, the respondent Ms Prescott (“the mother”), since mid‑December 2019, being close enough to five years ago. B’s time with his mother prior to that was sporadic, largely owing to the mother’s incarcerations for criminal conduct directed at the father and paternal family and mental health admissions. As the mother agreed in cross‑examination, many of her difficulties were due to her fixation with B’s father and her fervent desire to reunite with him and therefore to have the family restored. She resorted to family violence, stalking and other anti-social means to try and reconcile with the father.
Her efforts failed to achieve her desired outcome.
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.
The proceedings which commenced in 2019 culminated in a trial in February 2021. The orders arising from that trial were, in summary: sole parental responsibility to the father; B would live with father; and, spend no time with mother. The mother was permitted to send one letter per month to B but vetted for appropriateness by the father. The 2019 trial judge said the mother’s treating psychiatrist noted “that the mother was simply fixated on reunification”. His Honour said at paragraph 63, “The Court got a taste of this fixation…. That fixation seems to be well and truly still alive”. At paragraph 78, His Honour held, “this fixation does, in my view, create a real danger for [B]”.
The father was hospitalised in 2023 and died in 2023. The paternal grandparents were appointed B's guardians under the father's will.
The paternal grandparents filed an Initiating Application on 19 July 2023 and asked to be included in the Critical Incident List. As non-parents, they sought orders to enable them to make major long-term decisions for B.
The matter first came before me in the Critical Incident List on 26 July 2023. The parties consented to interim orders for: B to live with the paternal grandparents; the paternal grandparents have parental responsibility for all major long-term decisions; and, information sharing orders. Also by consent, the mother was granted liberty to send B one letter per month, on conditions she did not refer to: B’s late father; the paternal grandparents; the relationship between the mother and B’s late father or the relationship between the mother and the paternal grandparents; and, adult issues. The paternal grandparents were permitted to withhold letters that touched upon those subjects.
Contrary to various orders, it took some time for the mother to file material. But eventually, the mother filed a Response to Final Orders and Affidavit on 12 October 2023. It turned out she had been hospitalised again in late 2023 although at the time only mentioned poor physical health.
On 24 October 2023, the matter was then removed from the Critical Incident List, but remained in my docket, and a Family Report was ordered. The Family Report prepared by the Court Child Expert, Ms U (“the Family Report Writer”) is dated 14 March 2024. Due to the recommendations within the report (being likely upsetting for the mother), the matter was listed for mention to consider how the Family Report should be released. The report was released to the paternal grandparents and their legal practitioners, and to the mother through her psychologist.
On 28 March 2024, the matter was set down for a one-day final parenting hearing on 17 July 2024. Upon the close of evidence on the afternoon of trial, I determined to give the mother a little time to prepare her submissions. The trial resumed on 19 July 2024 for those submissions.
The parties’ proposals
The paternal grandparents sought to essentially continue the current arrangements: they have decision making for B; B have no time with the mother; and, the mother be permitted to send letters to B which were to be vetted for appropriateness by the paternal grandparents. They also proposed sending the mother photos of B once a year but sought s 68B restraints to mitigate any risk of the mother using the photos to stalk B or them.
The mother’s position in her Outline, signed by her, sought the following:
1.That all previous parenting Orders be discharged.
2.That the Mother solely make all major long term decision in relation to the child [B] born […] 2012 (“the child”) including but not limited to:
a. education;
b. religious and cultural upbringing; and
c. significant medical interventions for the child.
3.That the child live with the Mother.
4.That the child spend time and communicate with the Paternal Grandparents as agreed between the parties.
5.That the parties shall do all things necessary to appoint a psychologist based in [Region R] in the State of Queensland, as a family therapist (“family therapist”) for the purpose of facilitating child family reunification therapy or participating in Family Interact Program aimed at:
a. Enabling the restoration of the relationship between [B] and the Mother; and
b. Strengthening and further developing the relationship between [B] and the Mother.
However, during the trial the mother eschewed her Order 3 constituted an immediate change of residence, but said many times it was to be graduated. In submissions, she also said she really sought joint parental responsibility for major long term decision making (cf her order 2 above), but when asked how that would work, said it probably would not.
Doing the best I can on the mother’s graduation proposal, she told the Family Report Writer:
[Ms Prescott] proposes initially for [B’s] time with her to occur three times per week, supervised by [Mr M Carey and Ms L Carey] for two hours, followed by this time progressing to unsupervised time of a similar duration and frequency. She then seeks to increase to days on the weekend, before including overnight time. She envisions that the transition process will take around 12 months, “depending on how [B] reacts to the process”. Whilst she does not believe her time needs to be supervised as she does not pose a risk of harm to [B], she would be agreeable to time being supervised for [B’s] comfort, at his request.
(Family Report filed 14 March 2024, paragraph 74)
The mother spoke of a graduation too in her affidavit, but without the timeframes mentioned to the Family Report Writer. I will approach the matter on the basis that the mother seeks either an immediate change of residence (per her Outline) or the kind of graduation set out in the Family Report (extracted above).
The adjournment application
On the morning of the hearing, the mother’s legal representatives (appointed through the s 102NA scheme) were granted leave to withdraw from the proceedings. Counsel referred to a conflict between her legal practitioners and the mother.
The mother then made an oral application to adjourn the matter. I gave her an opportunity to see the duty lawyer, which she did. The adjournment was opposed by the paternal grandparents, but their counsel proposed that given the mother could not cross examine the paternal grandparents by virtue of s 102NA (see order made on 28 March 2024), the paternal grandparents' counsel would not cross-examine the mother or her witness.
I dismissed the oral adjournment application for the ex tempore reasons given at the time. I pause to observe that the mother has appeared before me several times acting for herself. At each instance, and again on the adjournment application, she was articulate and clear in her submissions. The same must be said of her advocacy in the trial.
After I gave reasons, and despite the “offer” from the paternal grandparents to not cross examine her, the mother said she wanted to be cross-examined and offered up her sister too.
Material Relied Upon
The paternal grandparents relied upon the following material:
·Second Further Amended Initiating Application filed 12 July 2024;
·Affidavit of Ms L Carey filed 26 June 2024
·Affidavit of Mr M Carey filed 26 June 2024; and
·Notice of Risk filed 17 July 2023.
The mother relied upon the following material:
·Response to Initiating Application filed 12 October 2023;
·Affidavit of Ms Prescott filed 26 June 2024; and
·Affidavit of Ms S filed 26 June 2024.
Two exhibits came into evidence at the hearing. The first exhibit was notes from the T Prison with a review date of mid-2020, albeit setting out interactions with the mother in April 2020 (marked “Exhibit 1”). The second exhibit was the Family Report of the Court Child Expert, Ms U dated 14 March 2024 (marked “Exhibit 2”).
The mother’s sister was cross examined but offered little to the matter other than admirable, unwavering support for her sister. It is not clear to me when B last saw his maternal aunt; it may be December 2016 (Affidavit of Ms S filed 26 June 2024, paragraph 34), but if I am wrong on that, it is clear B has not seen his maternal aunt and cousins for a considerable period of time.
At various times during the hearing, I explained the trial process to the mother (Re F: Litigants in Person Guidelines (2001) FLC 93–072). I allowed the mother’s support worker Ms P to sit at the Bar Table and suggested the mother check with Ms P about questions to be asked from time to time.
Further, prior to rising for the luncheon break, I invited the mother to use that time to consider what questions she would ask the Family Report Writer. In addition, when it came time to cross examine the Family Report Writer, I reminded the mother of the various deficiencies (from her perspective) she had raised with me and in her affidavit about the Family Report. When the mother thought she had finished that cross examination, I allowed her to engage with Ms P and her sister who was sitting in the public gallery about any further questions to ask the Family Report Writer.
Legal Principles – Part VII of the Family Law Act 1975 (Cth) (“the Act”)
Significant amendments were made to the Act commencing 6 May 2024. These proceedings are to be determined under the amended provisions (s 25(1) of the Family Law Amendment Act 2023 (Cth)).
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper (subject to s 65DAB, which is irrelevant in this matter).
Section 60B of the Act sets out the objects of Part VII of the Act, and that is:
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA provides that the child's best interests are a paramount consideration in making a parenting order. In this regard, the mother is very focused on her desire to renew a relationship with B, but that is not the optic with which I must approach the matter.
Rather, my focus is of determining B’s best interests. Section 60CC guides the matters I must take into account when working through a determination on B’s best interests.
Before I turn to the s 60CC factors, it is useful to mention s 65K, which reveals the legislature’s intent that a surviving parent cannot require a child to live with him or her. It is also appropriate to note that in Mauldera & Orbel [2014] FamCAFC 135 at [81] the Full Court determined “s 60B [as it was then] cannot be used to establish a hierarchy as to outcome in which parents sit at the apex”. I accept that was based on legislative provisions which predate the current, but the legislative amendments give me no reason to doubt that principle remains apposite to my consideration of B’s best interests.
Section 60CC(1) provides:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
B is not an Aboriginal or Torres Strait Islander child.
I now turn to the s 60CC(2) considerations.
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
Section 60CC(2)(a) is informed by s 60CC(2A) which provides:
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
With respect to s 60CC(2A), the following summary from the Family Report says:
[Ms Prescott] acknowledged that she has “mountains” of convictions for breaching the Protection Order against [Mr Carey], and that most of her offences relate to family violence she perpetrated towards [Mr Carey] and [Ms L Carey]. She added, “I’ve been in prison […] because of my biological drive to have my son”.
(Family Report dated 14 March 2024, paragraph 43)
I will say more about the mother’s family violence in due course, but for now, I will start with what the mother says about B’s safety with the paternal grandparents.
The mother expressed concern with the paternal grandparents’ ages; both are in their 70s. She is also concerned they are on medication and that she saw the paternal grandfather had tremors during the trial. However, there is nothing before me that the paternal grandparents’ ages or health conditions see B being subjected to, or exposed to, family violence, abuse, neglect or other harm. Nor is there any evidence their age or any health issues detract from his safety or are preventing B from doing the kinds of things a child his age ought engage with. To the contrary, the evidence of the paternal grandparents is that B spends time with his friends and engages in activities such as: swimming; playing on ziplines and gym equipment at parks; visits to wildlife parks; going to the beach; model making and aeroplane spotting; bicycle riding and general play; and, watching DVDs (Affidavit of Ms L Carey, filed 26 June 2024, paragraph 49). He also enjoys extracurricular activities (Affidavit of Ms L Carey, filed 26 June 2024, paragraph 19).
The paternal grandparents told the Family Report Writer of their medication, and she was acutely aware of their ages. She did not identify those matters as safety concerns much less disentitling of B living with them. There is no evidence before me that any tremors or shakes seen by the mother place B in harm’s way or compromise his safety.
The mother consented to orders for B to live with the father on 24 June 2015, albeit with a slow graduation to equal time, but that never came to fruition as a consequence of the mother’s conduct. The mother again consented to final orders for B to live with the father on 21 February 2018, and those orders provided the mother spend supervised time with B for two hours a week, and telephone time with him once a week. On the first return date before me on 26 July 2023, the mother also consented to B living with the paternal grandparents.
There is no cogent evidence before me that suggests B’s safety is not promoted by the paternal grandparents.
Looking now at the mother, the paternal grandparents raise safety concerns about the mother in their affidavits and in the Family Report. For example, drawing on the Family Report:
40. [Mr M and Ms L Carey] believe that [Ms Prescott] will become violent if she does not receive the outcome she is seeking in Court, as she has done so in the past. They have made a safety plan that may assist in keeping [B] safe if the Court finds in their favour. They are concerned that [Ms Prescott] may “start stalking (us); in the past she’s threatened to abduct him and take him overseas”.
…
59. [Mr M and Ms L Carey] are of a view that [Ms Prescott’s] mental health issues remain a risk to [B’s] safety and wellbeing, based on the content of her letters to [B], and the content of her affidavit. Their concerns about [Ms Prescott’s] mental health include her alleged “blind rages”, her fixation on issues, and her reported inability to be honest. They said [Ms Prescott] has been hospitalised on many occasions and has a history of attempting suicide. They believe that these issues may lead to [B] being neglected by [Ms Prescott] or experiencing physical and emotional harm in her care.
(Family Report dated 14 March 2024, paragraphs 40 and 59).
Arising out of her obsession with the father, the mother has been a frequent attendant at court and sentencing hearings, with at least the following occurring in terms of law enforcement:
·A protection order against the mother for the protection of the father was made July 2014. This was varied in August 2014 to include B and the paternal grandparents;
·In mid-2015, the mother was sentenced to breaching the domestic violence order;
·In August 2015, an altercation occurred between the father and mother at the father and paternal grandparents’ home during a changeover, in which the mother states the father attacked her, in the presence of B (Mother’s affidavit filed 26 June 2024, paragraphs 37 – 45). A protection order was made naming the father as a respondent for 12 months following this incident. A charge of common assault against the father was dropped as the relevant Family Court Order said the mother could not go past the front gate of the paternal grandparents’ home, but she did (Mother’s affidavit filed 26 June 2024, paragraphs 40, 44, 51);
·In January 2016 an altercation with the mother and paternal grandmother at a changeover, where B was present (Affidavit of Ms L Carey filed 26 June 2024, paragraph 24);
·In February 2016, the mother entered the father’s and paternal grandparents’ home, and an altercation occurred between the father and mother. B was present during this incident. Police attended and the mother was taken to the Mental Health Unit at the V Hospital. The mother was charged with wilful damage and domestic violence breaches following these incidents (Mother’s affidavit filed 26 June 2024, paragraphs 28 – 29; Affidavit of Ms L Carey filed 26 June 2024, paragraph 24);
·In mid-2017 a five year DVO against the mother protecting the father was made;
·In mid-2017, the mother was sentenced over a raft of offences. In the mother’s words contained in her own evidence, they included “breaches of telecommunications law and unlawful stalking” along with domestic violence contraventions, plus a “serious assault of [Ms L Carey] as she was over the age of 65 and a charge of assault on a passerby”. She added she was “imprisoned […] with Court ordered parole. My head sentence was [several years]. However, I breached my parole and ended up on an intensive corrections order which I also breached but was not returned to custody on this occasion” (Mother’s affidavit filed 26 June 2024, paragraph 23 – 26). The mother says she was provoked, but that is no excuse for her unacceptable behaviour. B was present for some of the offences that occurred at changeovers;
·The Court Outcomes document for mid-2017 (attached to the Affidavit of Ms L Carey filed 26 June 2024 at MLC-11) indicates the mother was sentenced for a number of assault, domestic violence and other related charges to imprisonment with a parole date of two months later.
The Court Outcomes document (attached to the paternal grandmother’s affidavit filed 26 June 2024) continues:
·In mid-2017, the mother was sentenced to imprisonment cumulatively with a parole release date of two weeks later, having been convicted of an aggravated offence and using a carriage service to menace, harass or cause offence;
·In late 2017 the mother was sentenced to imprisonment to be served by way of an Intensive Correction Order and another term of imprisonment, suspended for a period, served concurrently for using a carriage service to menace, harass or cause offence and an aggravated offence;
·In mid-2018 the mother was sentenced to time served in pre-sentence custody and was ordered to serve the outstanding balance of the Intensive Correction Order for breaching an intensive correction order and probation and for an aggravated offence.
·Twice in late 2018 the mother was sentenced to imprisonment, but with parole on the same day for multiple counts of an aggravated offence.
·In early 2019 the mother was sentenced to a period of imprisonment with parole on the same date for an aggravated offence.
·A short time later, the mother was convicted but not further punished for an aggravated offence.
·In early 2019 the mother was convicted but not further punished for multiple counts of an aggravated offence;
·In mid-2019 the mother was sentenced to imprisonment suspended for 12 months for an aggravated offence;
·In early 2020 the mother was sentenced to multiple terms of imprisonment, served concurrently, with parole on the same date for stalking and a number of counts of an aggravated offence;
·And convicted but not further punished for:
·Multiple counts breach of bail;
·Multiple counts using a carriage service to menace, harass or cause offence;
·In mid-2020 the mother was re-sentenced for the original offences for:
·Breach of probation imposed mid-2017.
The Court Outcomes document only goes to mid-2020, but, the mother deposed to or otherwise admitted that she was imprisoned for breaching domestic violence orders and associated criminal offences including:
•[Mid-2017];
•[Early] 2018 to [mid] 2019; and
•[Early] 2020 to [mid] 2021;
(Mother’s affidavit filed 26 June 2024, paragraph 30).
·In early 2023, an 18-month probation sentence for the mother expired, which was imposed for two further breaches of domestic violence orders (Mother’s affidavit filed 26 June 2024, paragraph 31);
·The mother admitted she last left incarceration in early 2023;
·A five-year DVO against the mother protecting the father expired in 2022. It was renewed on the father’s application in early 2023 (again naming B) but expired on his death (Mother’s affidavit filed 26 June 2024, paragraphs 32 and 36).
The paternal grandmother said the mother was also imprisoned in late 2017 (Affidavit of Ms L Carey filed 26 June 2024, paragraph 26(ii)), but there is no evidence before me to verify that.
The Family Report Writer summarised the mother’s breaches of protection orders and convictions from the subpoena material as 69 convictions for breaching protection orders, and 19 convictions for breaching bail and probation orders (Family Report dated 14 March 2023, paragraph 42).
In addition to the above, the mother accepted her mental health difficulties went back to 1994. I see no need to dissect those troubles. Relevantly though, the mother deposed to or made the following concessions in cross examination about her hospitalisations for mental health difficulties in relation to her hopes for a relationship with the father and therefore B:
·In early 2013, the mother was involuntarily hospitalised at W Hospital (Mother’s affidavit filed 26 June 2024 at paragraph 11);
·Unhelpfully lacking particulars as to dates or reasons, the mother deposed that, “I have had further periods in hospital for mental health issues including on one occasion whilst in custody and that included me experiencing suicidal ideation due to loss of relationship with [B] and [Mr Carey] and wanting us to be a complete family unit” (Mother’s affidavit, paragraph 13);
·Admission/s to X Hospital, regarding the mother’s fixation on the father and B;
·Admission/s for mental health difficulties to the Y Clinic;
·Suicidal ideations in late 2019 at a secure psychiatric facility;
·In early 2020, the mother was still incarcerated and admitted to the psychiatric facility. The mother was taken through Exhibit 1 which revealed (and the mother accepted) that she said she “wished to die”. She told prison staff the only way her life would improve was if she was re-united with her ex-partner. She spoke about running into traffic. She continued to “ruminate on previous relationship.” The mother confirmed in cross examination this was the relationship with the father – they had separated in 2013 but her ruminations continued some seven years later in early 2020;
·In mid-2020, the mother accepted in cross examination that she was a suicide risk at the facility;
·In late 2021, the mother was admitted to the Z Hospital. The mother did not know the circumstances of how she came to be at the hospital, which is no surprise given she was unconscious, but confirmed it was for an overdose in an attempt to take her life. When asked if part of this was for the fixation on the father and B, the mother responded, “I wanted my family back. Yes”;
·In late 2021, the mother was on leave from the Z Hospital but was re-admitted after she was found with a self-inflicted injury. Surgery was required;
·The mother was again admitted to the Z Hospital in or about late 2021 after a “breakdown” at her aunt’s and uncle’s residence;
·In early 2022, the mother presented to an Emergency Department with “anxiety, catatonic features from not eating or drinking for the past three days”; and
·Admission/s to the V Hospital also in relation to a fixation on the father and B, after the mother had failed to eat for some days, with the father’s death triggering “a significant deterioration in her functioning and resulted in her admission to hospital” (Family Report dated 14 March 2024, paragraph 99).
The mother accepted she had also emailed the father saying she “didn’t feel like I have a life any more” and that is within the context of the mother making it perfectly clear to the father over a long period of time that she wanted to reconcile irrespective of his views.
The family violence, anti-social behaviours and the mother’s fixations on the father are disturbing patterns of conduct on the mother’s behalf. There is no excuse for family violence and abuse. And it ought be borne in mind that whilst the father was much of the focus of her conduct, the father lived with the paternal grandparents and B all in the same house.
These are not healthy responses to the end of a relationship. Any person is entitled to end a relationship and ought be safe to do so. The mother did not allow the father that basic entitlement.
The mother’s letters to B are also a source of considerable concern for B’s safety, in particular his emotional safety if the mother was able to communicate with or see B unfettered. In many of the letters, the mother repeatedly told B she wants him living with her full time. She also asked time and again for B to call or write to her, including after B’s views were published in the Family Report (for example, the letter dated 28 May 2024, Affidavit of Ms L Carey, filed 26 June 2024, [MLC- 17]). She also suggested B write to her “telling me what happened for him [the father] to pass away” (letter dated 2023, Affidavit of Ms L Carey, filed 26 June 2024, [MLC-19]).
In the 30 March 2024 letter, the mother challenged B on what he said to the Family Report Writer about her:
The meeting you had up in Brisbane in January with the lovely lady [Ms U] at the court, has brought up some concerns for me. You voiced to [Ms U] that I have given you some negative experiences.
I can tell you [B] that you were always a very well-behaved kid when you were with me and that I have never had to discipline you in any way, and I certainly would not have ever ever have left you home alone.
In terms of pouring liquids over your head I feel that you are remembering when I used to wash your hair when you were younger I used to use a jug to help wash out the shampoo from your hair – you did not like having your hair washed at all.
I don’t know what sort of messaging you are getting from the people around you at the moment, but I can assure you I have never treated you badly whilst in my care, I have never hurt you intentionally and would never ever hurt you intentionally. As I have already said, you have always been a very well behaved young boy and I believe you will always remain a well behaved young man and I’m certain that the people around you at the moment know you are a very well-behaved young man.
(Affidavit of Ms L Carey, MLC- 19, p.196 of 332, letter dated 30 March 2024)
Appropriately, many of the letters were not given to B (Affidavit of Ms L Carey, filed 26 June 2024, paragraphs 53, 56 – 61). They could only have been a source of confusion, if not stress for B. They also demonstrate the mother’s lack of child focus and insight.
Many of the inappropriate letters of 2023-2024 after the father’s passing are of similar tenor and tone to many of the letters in 2021-2023 before the father’s passing. Many, if not most, are focused on the mother’s desire to re-unite with B, what she wants, how she feels, that she cries, has a broken heart and cannot feel better unless B is with her. The mother also wrote too much medical information about herself and others to B. All of these things would most likely be hard for B to comprehend, and confuse and pressure him, if not make him anxious about where his future lies in terms of parenting. Thankfully, very few letters have been given to B.
A further small sample of the letters from the mother to B are as follows:
My heart was broken when you left my life [as an infant].
I want you back in my life so my heart can mend.
…
I want you [B] to help repair my future. I want us to be together.
(Affidavit of Ms L Carey, MLC-21, p. 323 - 324 of 332, letter dated 27 May 2023)
…
I pray to God that the person that is very close to you in your life can see some sense and put an end to how mummy is feeling. I really need this of him. I have faith he can stop Mummy feeling the way I do without you. I need the emotional abuse of being kept apart from you to end and would like to hear back from someone very close to you as soon as possible, to work things through.
(Affidavit of Ms L Carey, MLC-21, p. 328 of 332, letter dated 8 June 2023)
It is not a child’s role to repair or mend a parent.
The mother also sought to tell B about court and, despite previous assaults, stalking and breaches of domestic violence protection orders, the mother also sought to tell B in a letter dated 2023 (this is also the letter where the mother suggested B write to her “to tell me what happened from him [the father] to pass away”):
Your Nanny and Poppy ([Ms L Carey & Mr M Carey]) are applying to have responsibility for you and that they want you to continue living with them.
I would really like for us to get to know each other and build our relationship together, once you’ve had some time to process the loss of your Dad.
Maybe I could come and stay at your Nanny and Poppy’s house so as you and I can get used to each other before coming to live with me full time.
(Affidavit of Ms L Carey, MLC- 19, p. 169 of 332, letter dated 2023)
The idea of going to the paternal grandparents’ home lacks insight into how that might make B feel and lacks insight as to how the paternal grandparents would feel about the mother in their house. The entire letter would have amounted to undue pressure or at least confusion for B after just losing his father. The 2023 letter continues:
If you came to live with Mummy the primary school is actually in my street and the high school is just a block away.
…
I think living with Mummy full time you would be more socialised and kept more active than what your Nanny [Ms L Carey] and Poppy [Mr M Carey] could provide.
(Affidavit of Ms L Carey, MLC- 19, p. 171-172 of 332, letter dated 2023)
The paternal grandparents had the child focus to not pass on this letter to B.
The mother is also critical of the paternal grandparents in a letter she wrote to B on 1 November 2022:
I would really like for your family to stop torturing me and display some compassion and forgiveness for the past – because that’s what it is – the past.
…
Hopefully your family will show some compassion and forgiveness so we can be with each other for Christmas. There is nothing I want more.
(Affidavit of Ms L Carey, MLC- 20, p. 295-296 of 332)
Similarly in a letter on 16 December 2022:
I have been trying to organise seeing you each week but your family won’t let me. I’m so sorry for this.
(Affidavit of Ms L Carey, MLC- 20, p. 298 of 332)
And again, on 8 June 2023:
There is someone close to you in your life who knows deep down in his heart that he has done the wrong thing by taking you from my life and who continues to do the wrong thing by keeping me and you apart. This is not necessary and this is wrong on so many levels.
...
Someone very close to you in your life can bring you back into my life full time and give me the much needed opportunity to be your full time mum.
This person just needs to show some forgiveness and kindness – both of which are free.
What is in the past, is just that, the past. I hold no grudges just as someone close to you should hold no grudges.
(Affidavit of Ms L Carey, MLC- 20, p. 326-327 of 332)
The mother also sought to tell B as follows, thoughts which her psychologist described as risky behaviour given the mother’s vulnerabilities:
I really do want to give you a little brother or sister and I am still physically capable of doing this and I wouldn’t have to change my tablets I take to keep me happy because they are now said to be safer for little growing babies in mummies tummy.
(Affidavit of Ms L Carey, MLC-20, p. 206 of 332, letter dated 23 February 2021).
I want to have another baby, so that you have the company of a brother or sister when your parents get old and go up to heaven.
…
You know what – I think you will make a great big brother if mummy has another baby. You are such a well behaved and knowledgeable little man, you would be such a fantastic role model to a little brother or sister!
(Affidavit of Ms L Carey, MLC-20, p. 211 and 212 of 332, letter dated 28 March 2021).
…
Mummy had another dream that I had a little baby girl, I want to have another baby and I know in my heart you would make a terrific big brother.
(Affidavit of Ms L Carey, MLC-20, p. 217 of 332, letter dated June 2021).
…
Mummy would really like to have another baby because I would like for you to have a brother or sister because mummy and daddy are older parents we will go up to heaven and when that happens you will have a brother or sister as support.
(Affidavit of Ms L Carey, MLC-20, p. 269-270 of 332, letter dated 16 June 2022).
…
…I would love to give you a little brother or sister, I think that’s important because mummy and daddy are not young parents and in later life I’d like to know that you have a brother or sister for support in your life.
(Affidavit of Ms L Carey, MLC-20, page 280 of 332, letter dated 21 August 2022)
Looking at the many letters attached to the paternal grandparents’ affidavits, it is perfectly understandable that they are concerned the mother has become fixated and obsessed with B, just as she was with the father. I agree; the letters taken as a whole evince the mother’s fixation on reunification with B. That is not healthy for him, nor is it safe.
But because the paternal grandparents vet the letters (no doubt with a negative impact or burden on them), B is protected from knowing the mother's obsessive attitude about him – but that is by dint of the paternal grandparents’ interventions in protecting B from the mother’s lack of child focused letters.
Separately, the mother takes issue with why supervised time was stopped by the father in December 2019, but her preferred explanation does not assist her in terms of safety:
It seems to me you are obviously very mistaken about why [Mr Carey] ceased supervised visits in December of 2019. There was never any risk to [Ms AA] at [CC Supervision Centre] from myself in fact [Mr Carey] stopped the visits following my showing up at your home one Sunday morning whilst I was on leave from [X Hospital].
(Affidavit of Ms L Carey, MLC-20, page 331 of 332, letter dated 12 April 2024).
I am prepared to accept there was no risk to Ms AA from the mother, but turning up at the paternal grandparents’ home whilst on leave from X Hospital was ill-advised at best or an act of family violence at worst. In any event, the Family Report Writer confirmed that even if she was wrongly informed about why supervision was stopped in December 2019 (i.e. nothing to do with Ms AA contrary to her paragraph 19) it did not change her opinions and recommendations.
The matters listed in paragraphs 56 to 82 above by and large represent harm, or an absence of safety, to those in B’s orbit and to B if the mother was able to speak or write to B without fetter. It is trite to say harm to a parent or carer, is harm to a child. It is no answer to say that a decade‑long obsession with, domestic violence to and anti-social behaviour of the mother to the now late father and the paternal grandparents ought be ignored just because no physical harm was visited upon B.
Indeed, the definition of family violence at s 4AB(3) makes it clear that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. The examples in s 4AB(4) of the Act makes this as clear as could be.
I have no doubt that the mother loves B and wishes to be re-unified with him. However, her many actions over many years as set out above leads to the conclusion, and I find, that she has exposed B to and subjected his father and the paternal grandparents to family violence, abuse, and emotional harm. I also find the harms committed by the mother are the antithesis of promoting B’s safety or promoting the safety of his carers, the father when alive and the paternal grandparents.
Looking prospectively, I next ask if B is at an unacceptable risk of harm (i.e. a lack of safety) from the mother going forward.
Future risks of harm are about properly based possibilities (Bant v Clayton (2015) 53 Fam LR 621 at [99] and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)) and cannot be determined on the balance of probabilities or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]). Instead, future risks are to be considered by reference to known historical facts and present circumstances (Isles & Nelissen (2022) FLC 94-092 (“Isles”).
In Isles at [50] the Full Court, citing Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”) and Malec, confirmed a court decides facts on the balance of probabilities, “but not when hypothesising about future possibilities”. Further, – in Fitzwater at [139] (as cited in Isles) the Full Court said:
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
The Family Report Writer assessed the risks to B as follows:
99. [Ms Prescott] acknowledged a desire to reunify with the father up until his […] passing in 2023, with this event appearing to trigger a significant deterioration in her functioning and resulted in her admission to hospital. Concerns are held that the ‘fixation’ [Ms Prescott] had for [Mr Carey] may now manifest towards obsessive behaviour towards [B], and by extension, [Mr M Carey and Ms L Carey]. If [Ms Prescott] begins to devote her focus on reunifying with [B], it is possible that she may re-engage in problematic and intimidating behaviour she has displayed in the past, which is likely to be frightening and pose a risk to [B] and his safety. [Ms Prescott] may find it challenging to manage her own grief over the loss of [Mr Carey] and support [B] and his grief simultaneously, which may place additional stress on her and increase her vulnerability.
105.If [Ms Prescott] resumes stalking the [Carey] family, entering the home of the [Carey] family without permission or assaults others, particularly in front of [B] as has occurred in the past, this is likely to have a significant impact on [B] and his sense of safety and wellbeing. [B] has clear recollections of his past experiences and information from his grandparents suggests that [B] is hypervigilant to conflict and violence. Further experiences of violence may result in a serious traumatic response and make [B] feel psychologically overwhelmed, particularly if the physical safety of his surviving long term caregivers is threatened.
106. It is noted that [Mr M Carey and Ms L Carey] have made plans to ensure [B’s] safety should the Court support their application, restricting [B’s] time with his mother. It is noted that the Orders of Justice Brasch also put safety measures in place to shield [B]. Should the issues of family violence re-emerge, [Mr M and Ms L Carey] are encouraged to seek further support and advice about ways in which they and [B] can be protected.
(Family Report dated 14 March 2024, paragraphs 99, 105-106).
Critically, the Family Report set out notes from the mother’s late 2023 admission to the V Hospital Mental Health Unit:
64. “[Ms Prescot]t has a number of static factors including previous suicide attempts, previous self-harm, diagnosis of BPAD, unemployment, current DVO and criminal charges, and limited contact with her son. All of which contribute to [Ms Prescott’s] risk being highly changeable. [Ms Prescott] was experiencing suicidality on admission”. Following her discharge, staff noted “[Ms Prescott] is highly vulnerable to further deterioration in mental state currently”.
(Family Report dated 14 March 2024, paragraph 64)
I conclude the mother poses an unacceptable risk to B’s safety going forward. I do so because:
(a)the mother’s recent letters to B (referred to above) do not demonstrate a curtailment of inappropriate boundaries and have an obsessional quality to them;
(b)It is also clear from her treating psychologist that the mother still struggles from time to time with depression, difficulty with stress management and “Persistent negative thought patterns related to her past trauma and current legal battles” (Mother’s affidavit filed 26 June 2024, [MP-8], page 66 of 73);
(c)The report of the V Hospital Mental Health Unit from less than a year ago and extracted just above speak to the mother’s high vulnerability to further deterioration of her mental state; and
(d)I have no confidence that the mother is able to link her actions with the consequences of no time, but, as is clear from her affidavit, blames the paternal family for her lack of relationship with B.
In other words, looking forward, I have formed the view, and find, that there is a real possibility that B’s safety, especially his emotional safety, will not be promoted by interactions with the mother in the way she seeks. I see no way to mitigate that risk if physical time or communications occurred. I conclude that because even in the spotlight of court proceedings the mother was writing inappropriate letters to B and it gave me little comfort that she was not upfront about her mental health admission less than a year ago in late 2023.
(b) any views expressed by the child
On 18 October 2023, the mother sought a Family Report because she wanted to hear B’s views. Over the objection of the paternal grandparents, I acceded to her request; see Carey & Prescott [2023] FedCFamC1F 867.
The mother deposed that B "has a right to an opinion" (Mother’s affidavit filed 26 June 2024, paragraph 69) but now questions or challenges his opinions (even in a letter meant for B) as it is not favourable to her. She is entitled to do so. B’s views included:
83.[B] described his ‘nan’ and ‘pop’ as very kind and loving to him. He said he feels “happy, very happy” when in their company. He said he trusts them and feels able to talk to them about things that worry him. He feels “very safe” in their company. ...
...
85. [B] said he remembered “a lot of things and not good things” about his mother. He could not recall any positive memories of [Ms Prescott]. He described her as being frequently angry and “never happy… she’d always get grumpy and goes into a rage”. He said he remembers his mother holding him by the head, and ‘banging’ his head into a wall if he did something naughty. He recalls being left home alone, and times when his mother would lock herself in her bedroom and he could hear her crying.
86. [B] said he is unsure why he has not spent time with his mother over the past few years. He acknowledged receiving letters from his mother but suggested “usually I don’t read them’. He said he does not want to receive these letters because of their content, which he said made him feel upset. He described them as being “all the same - I want you back… I want you to live with me full time”. He added “but I don’t want to see her ever again”. He said he would prefer if [Ms Prescott] did not write to him but said it would be “maybe okay” if his grandparents put the letters away for him, should he wish to look at them in the future.
87. [B] said he does not want to see his mother “because of the way she treated me; hurting me, yelling at me, being horrible”. He said there was nothing anyone could do that would make him feel differently, because “I remember what she did”. He said he would not like it if the Court decided he should live with his mother and would be worried about “what she could do to me; to hurt me” if he were to spend time with her.
(Family Report dated 14 March 2024, paragraphs 83, 85 – 87).
The mother contends B must have been, essentially, brainwashed or coached into saying negative things about her. In the Family Report dated 14 March 2024 at paragraph 79, the mother “later conceded that it was possible that [B’s] views could have been informed by his experiences, particularly at handovers”.
The mother asked the Family Report Writer about brainwashing and coaching in cross examination. The Family Report Writer said:
…It is possible that [B] may have been coached or influenced by the adults in his life, but he didn’t impress upon me as being a child who had been coached. Often children who have been coached have an extensive level of knowledge of proceedings, litigation and adult issues and correspondence. And [B] didn’t present to me at all, in that capacity. That was supported by his view that he was unsure about why he hadn’t seen you in so long. Often children who have been coached can tell me, in explicit detail, the reasons why that they haven’t seen a child. So it is a possibility that he has been coached, he didn’t impress upon me as a child who had been coached…
(Transcript 17 July 2024, p. 47 lines 10-18)
The mother made the same submissions about B being brainwashed to say poor things about her in the 2021 trial (paragraph 76 of those Reasons). That judge did not accept that submission and nor do I.
Rather, I accept the expert evidence of the Family Report Writer extracted just above about B not being coached or brainwashed because: (a) the expert opinion is founded on commonsense; (b) there is only the mother’s conjecture to support her submission about brainwashing and/or coaching; and, (c) I agree with the mother’s concession to the Family Report Writer that changeovers (as also previously described) could have given B a basis for his views. But B’s lived experience is not just fraught changeovers. Rather, B has lived in a household with the stresses that have likely flowed from the mother’s criminal and anti-social conduct, whether or not B witnessed, say, the mother’s drive-bys of B’s family home, or her turning up, or ‘only’ experienced the inevitable stress in the household afterwards.
As there is a reality base to B's views, I also accept what the Family Report Writer said below:
96. Given the strength of his views and the longevity for which he has held them, it is difficult to see what benefit [B] would experience if he were ordered to spend time with [Ms Prescott] at this time. It is unlikely that he would willingly attend, and it is not envisaged that any party would have the capacity to force him to go. It is likely that [B] would feel fear, anxiety, and apprehension if orders were made for him to spend time with his mother.
(Family Report dated 14 March 2024, paragraph 96).
Accordingly, I give goodly weight to B’s views.
(c) the developmental, psychological, emotional and cultural needs of the child
[B] has been the subject of litigation virtually from birth. He has had the intervention of Family Reports three times. He has lived in a household which has had to deal with the aftermath of the mother’s criminal and anti-social behaviour. To grow into the best person he can be, B’s developmental, psychological and emotional needs will be better met if he (and those who care for him) are freed from litigation, and have some protections from the potential of the mother’s physical intrusions.
Turning to the adults in this matter, the reality is that the mother has not tended to B’s various needs in a positive, beneficial sense for many years. I doubt B would have any memories of her doing so in a sustained way, if at all.
Similarly, and as already determined, the mother’s many, many anti-social actions and letters are about her needs, not B’s. In the same vein, the mother’s Minute of Order for a change of residence, or, her graduated proposal ending in B’s residence with her again demonstrate her priority on meeting her desires to re-unite with B, as opposed to meeting B’s needs.
Further, whether the immediate or longer-term change of residence proposal, either will result in a significant change of circumstance for B - the mother’s proposal would likely see changes to B’s community, school, family, and a change to her home and daily life about which he has no familiarity. B has not been alone with the mother for many years. It is hard to see how these changes meet B’s needs, as opposed to the mother’s.
In submissions, the mother said several times that re-unification with B via “emotional corrective therapy” would allow B to see she is not the “monster” she has been made out to be. In her affidavit, the mother deposed:
98 .It has been suggested to me by my current Psychologist, [Ms Q], that it would be extremely beneficial to be re-introduced to [B] to put in place a mechanism of providing correctional emotional experiences and this could be instituted by either having one on one sessions with [Ms Q] ,who has child psychology experience and a participant of the Family Interaction Program ("FIP") which is a program funded by the Department of Child Services.
99 . The FIP Program is a way that [B] and I can be re-introduced to each other, and it would also be a mechanism to allow for correctional emotional experiences for [B] which is very much a therapy held in high regard by child psychologists. It involves [B] and I meeting together in a playroom with a one‑way glass that allows an allocated psychologist to view and hear everything and I will wear an earpiece so if [B] asks me any questions, I baulk at answering the psychologist could talk to me through the earpiece and give me direction on how to answer his questions. The FIP Program extends over 17 weeks and is a weekly meeting.
(Mother’s affidavit filed 26 June 2024, paragraphs 98- 99)
Whilst the mother’s psychologist may have mentioned this to the mother, she says nothing about FIP in her report attached to the mother’s affidavit. At the start of the hearing, the mother said she wanted to put on evidence about FIP. However, I assured the mother that if I made orders for B to be re-introduced to her, then it would have to be supported by some form of therapeutic process because B had not seen the mother for almost five years and has ardent views opposed to a re-introduction. Consistently, if I were to order time, then I accept the Family Report Writer’s evidence in cross-examination that:
… At the time of my interview with [B], he was quite anxious and frightened about the idea of seeing you or spending time with you and was quite forceful about the idea that that not occur. [B] would need a substantial amount of emotional support to prepare him for that process and to prepare him and to, I guess, open him up emotionally to welcome the mother back into his life. That if that was done in a very quick way [a graduation in time], at his current perspective, that would be detrimental to his wellbeing. So some sort of therapy would be of assistance in that process.
(Transcript 17 July 2024, p.50 lines 38-45)
Returning to the emotional corrective therapy proposed by the mother, the Family Report Writer had no experience of this kind of therapy and had not heard of it. After a description being given to her, the Family Report Writer said:
…it does run the risk then that that may further harden [B’s] position. You know, if you have a view, your view of the truth, and then someone comes along and tells you that your view of the truth or your feelings or positions aren’t accurate, that’s likely to make you angry. And that may upset [B], distress him, make him angry, make him feel misunderstood, may harden his position against his mother. And I wonder about the timing of such as well, your Honour, given […] his father’s passing and his emotional fragility at this time. I wonder if he has the capacity to cope with such a process.
(Transcript 17 July 2024, p.48 lines 38-45)
In other words, the therapy proposed by the mother may do more harm than good. But in any event, the mode of re-unification therapy is a moot point unless I determine it is in B’s best interests to spend time with the mother.
On the other hand, the paternal grandparents approached the court after the father’s death so they could be allocated parental responsibility to make major long-term decisions for B such as securing therapeutic support for him in the aftermath of his father’s death. That demonstrates a keen awareness of and meeting of B’s needs. Under the care of the paternal grandparents, B has engaged with a therapist Ms DD and on all accounts, has derived benefit from that engagement.
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
This consideration is intertwined with s 60CC(2)(c) just above and what I said there applies with equal force here.
The paternal grandmother was employed as an educator for over 30 years. That history gives the paternal grandmother an additional skill set to draw on when caring for B. When the father was alive and lived with B and the paternal grandparents, the father's work hours saw the paternal grandparents integrally involved in B's care.
Following the father’s passing, the paternal grandmother deposed (unsurprisingly) that B was “exhibiting heightened anxiety and emotional fragility”. Appropriately, they arranged for B to see a psychologist, Ms DD (Affidavit of Ms L Carey, filed 26 June 2024, paragraph 21).
There is no reliable evidence before me that the paternal grandparents’ capacity to provide for B’s needs has been lacking in any disentitling way; I have already dealt with the mother’s concerns about the paternal grandparents' ages and health.
B's Semester 1 2023, Semester 2 2023 and Semester 1 2024 school reports are in evidence (Affidavit of Ms L Carey filed 26 June 2024, annexures MLC-8 – MLC-10). His efforts in various classes are largely described as very good and excellent. His Semester 1 2023 report comments about his behaviour:
[B] is a happy, friendly student. He is constantly polite to teachers and students. [B] always follows school rules in the classroom and the playground. He is responsible and is showing effort to curb his chattiness during lessons. [B] eagerly joins in and enjoys school activities.
(Affidavit of Ms L Carey, MLC-8, p. 112 of 332)
Overall, he is described as a keen and interested student and has attained excellent results. This is the Semester when his father must have been ill.
His Semester 2 2023 results are similar and this comment is made about his behaviour:
Excellent
Comments: [B’s] behaviour has been exemplary. He has greeted each day cheerfully and has been respectful to teachers and students. [B] has shown pleasing progress to maintain concentration in lessons and not be distracted. He was reliable in group-work and keenly joined in school activities.
(Affidavit of Ms L Carey, MLC-9, p. 118 of 332)
The overall comments include that he gave a "humorous, insightful speech […]” and completed the Premier's Reading Challenge. He is described as a pleasure to have in the class.
The Semester 1 2024 report is in similar terms - excellent and very good efforts. In the overall comments he is congratulated for his achievements during the semester.
The report cards offer an external source of validation that not only is B doing well at school, but it simply must be that his home environment, support and nurturing from the paternal grandparents fosters his efforts and achievements. That reflects very well on the paternal grandparents’ capacity to meet B's many needs.
Conversely, the mother has no runs on the board in terms of capacity to provide for B’s needs. The mother says she has been diagnosed with Depression and Personality Disorder Traits. Those diagnoses in and of themselves are not disentitling of parenting. However, the mother has made many choices to harm the paternal family, and therefore, to derivatively harm B. Those choices do not reflect well on her capacity to parent. I accept the mother has had many mental health challenges, but as said, my focus must be on B and his best interests.
I repeat what I said above about the mother’s letters meant to be for B under this consideration. They do not demonstrate a capacity to parent in any beneficial, positive way.
At one point in cross examination, the mother said, “you need to tell people about your feelings”. That again fits with the theme that the mother says or does what she wants or feels she needs to do, but without any, or little, regard to how that may make B (and his family) feel. Ultimately, after some cross examination, the mother agreed her self-focused sentiments may be counterproductive to a relationship with B or may even discourage B from having a relationship with her. However, by the time of submissions, the mother was again focused on being re-united with B and her keen and almost desperate desire to show him who she really is.
It is also clear the mother blames the father and paternal family for her lack of relationship with B without reflecting on her role in that. For example, at paragraph 76 of her affidavit, the mother complained, “I have always wanted to be a mother. I have lost the true motherhood experience due to [Mr Carey's] actions". However, in my assessment the father acted protectively of B in the face of the mother's mental health challenges and criminal and anti‑social behaviour; see also the mother’s affidavit filed 26 June 2024 at paragraph 65 where she blames the paternal family for her limited time with B since 2013.
The mother did show a skerrick of responsibility for the parenting arrangements in the Family Report but hardly in proportion to the things she has done over more than a decade:
54. [Ms Prescott] perceives [Mr M Carey and Ms L Carey’s] actions “impede” her relationship with [B] and she believes this is the primary issue in this matter. Despite this, she conceded that some responsibility for [B’s] limited relationship with her lies with her. She said that she continually contacted [Mr Carey] seeking to reconcile with him and him seeing her so unwell may have been difficult for [Mr Carey]. She suggested she “can’t think of anything else” that may have contributed to [B’s] limited relationship with her.
55. …She suggested her actions “all stems from my biological drive to have my son in my life”, impacted by the paternal family’s actions to restrict the relationship with [B]…
(Family Report dated 14 March 2024, paragraphs 54-55)
Overall, the mother’s blaming approach in her affidavit gives me little comfort that the mother understands her pivotal role in her estrangement from B and the abhorrent nature of her actions over the years. The blaming of others does not speak well to her capacity to parent and whether she would prioritise B’s needs over her own, or look to blame others.
The mother annexed three documents from psychologists.
A letter of support from EE Psychology dated October 2022 speaks glowingly of the mother's progress. However, the mother was subsequently re-admitted for psychiatric care at a Region R hospital in late 2023. The mother accepted in cross examination that she was not up-front about the court with those admissions. In any event, the 2023 admission does not speak to the "incredible progress" to which the 2022 report refers (Mother’s affidavit filed 26 June 2024, annexure [MP-4]), but to the mother’s mental health vulnerabilities and fragilities.
EE Psychology provided an updated "character reference" in May 2024. Again, they spoke of the mother's "incredible progress" (Mother’s affidavit filed 26 June 2024, annexure [MP-7]). However, there is no mention of the mother’s late 2023 admission. Either the mother was not forthcoming with these treaters, or, they preferred a glowing reference over substance. It does not matter which one, because either render the opinions of limited weight.
The mother also annexed a "Confidential Psychology Report" from FF Psychology dated June 2024 (Mother’s affidavit filed 26 June 2024, annexure MP-8) (“the Psychology Report”). They have been seeing the mother since May 2023. Importantly and appropriately, the Psychology Report's author, [Ms Q], stated early on that "this report does not assess [Ms Prescott's] parenting capacity or her ability to interact with her son, as these considerations fall outside the scope of the author, [Ms Q's], expertise and observational capacity."
It is clear from the Psychology Report that the mother was focused or fixated on the father even though they had separated 11 years before the Psychology Report date and 10 years before his death (see section headed Grief Counselling and Coping with Loss).
From March 2022 to June 2024, the mother's DASS-24 scores for Depression, Anxiety and Stress had improved to a normal range. Yet, it is also clear from the Psychology Report that the mother can have periods of regression "where [Ms Prescott] would lose insight and fixate on idealized outcomes, particularly regarding family reunification and personal goals. These instances highlighted the ongoing need for therapeutic support and reinforcement of coping strategies to navigate setbacks effectively" (under section headed Progress and Challenges and see also heading Challenges Remaining).
It is also reported the mother sometimes struggles "with respecting boundaries, such as frequently contacting the author outside of scheduled therapy sessions". The mother's conduct toward the father is reflective of a lack of boundaries. Many of the mother's letters to B, including recent ones, also overstepped boundaries in clearly spelling out her need for B to live with her full time, along with unnecessary medical details about herself and others which would have been confusing and possibly upsetting for B.
The Psychology Report summarised (under heading Summary of Treatment):
[Ms Prescott] has shown significant progress in therapy. Specific areas of improvement include:
1. Reduced symptoms of anxiety.
2. Better coping mechanisms for emotional regulation.
3. Increased insight into the necessity of a gradual reunification process with her son.
Challenges that remain include:
1. Ongoing struggles with depression.
2. Difficulty with stress management.
3. Persistent negative thought patterns related to her past trauma and current legal battles.
(Mother’s affidavit filed 26 June 2024, RP-8, p.66 of 73)
The mother is commended for those improvements and I accept absolutely the mother’s submission that people with mental health problems can be good parents. However, the problem with this report is I only have the most general of summaries of the underlying factual basis upon which the opinions rest (Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705). For example, it is not clear whether the report rests on the specifics of hospital admissions (as recently as September to October 2023), incarcerations (as recently as March 2023) and particulars of the mother’s anti-social behaviours. It is also the case (as appropriately highlighted by the author several times) that nothing in the report touches on the mother's capacity to parent.
The report also speaks to the mother understanding she is to respect B's agency and that he should feel empowered in decision-making processes. However, in these proceedings, the mother does not accept B's views (even writing a letter to him challenging what he said to the Family Report Writer) and her Minute seeks a change of residence (immediately or longer term) which B clearly does not want.
For the examples set out in paragraphs 120-135 above (which are not exhaustive), I cannot accept the mother has the wherewithal or capacity to provide for and prioritise B’s needs, as opposed to her own.
(e) the benefit of the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so
B can no longer have the benefit of any relationship with his father. A critical question here is whether there is a benefit to B in having a relationship with the mother, if it is safe to do so.
The parties’ proposals are a chasm apart. The paternal grandparents propose B spend no time with the mother. The mother’s Minute proposes B spend time with the paternal grandparents as agreed between the parties. I have little expectation agreement would be forthcoming; the parties have been at logger heads for years no doubt stoked by the mother’s criminal or otherwise antisocial behaviour to B’s family unit.
I have already concluded that it is safe for B to have a relationship with the paternal grandparents. I am also well satisfied it is of benefit for B to continue his close and loving relationship with the paternal grandparents.
I have also concluded (at [85], [91] and [92]) that B’s safety would not be promoted by having the kind of relationship with the mother that she seeks. I am also not satisfied that there is anything of benefit to B in forcing him to have a relationship with the mother.
(f) anything else that is relevant to the particular circumstances of the child
Only last year, B lost his father. It was an unexpected loss. In all practical and experiential senses, many years ago, B lost his mother too. Her circumstances are sad and yield of empathy, but that cannot control what is in B’s best interests.
B has had the consistency of his paternal grandparents since 2013. As his mother came and went, they were there. When his father passed on, they were there. B’s bests interests will be far bettered by the consistency that his paternal grandparents present, as opposed to the untested idealisations that his mother’s proposals offer, along with the risks of emotional harm she presents to him.
Disposition
In the parties' respective Minutes, each sought sole decision making for major long-term issues. However, in submissions the mother said she sought joint decision making with the paternal grandparents for major long term issues. In the circumstances of the mother's many breaches of family violence orders, other criminal conduct and anti-social behaviour directed to the paternal family members, and in circumstances where the mother has written letters (meant to be for B) saying the paternal family were torturing her in not allowing her to see B, were not showing any compassion in doing so and were thwarting B's time with her at any opportunity, the idea that these three adults could jointly make major long term decisions only needs to be stated to reveal its folly.
It would be a recipe for disaster, dispute and likely further litigation.
Instead, I will make an order under s 61D of the Act allocating responsibility to the paternal grandparents for making decisions about major long term issues in relation to B (see s 64B(3)) and to the exclusion of the mother (s 61C(3)). I do so because (a) the idea of jointly shared decision making by the three adults in this matter is fanciful; (b) B will exclusively live with the paternal grandparents; and (c) there is no evidence before me that the paternal grandparents' decision making has been in any way lacking. I have also deleted the paternal grandparents' reference to ‘sole’ parental responsibility in their Minute because I struggle with the idea that two people can have sole decision making. Further, the idea of ‘sole’ sits at odds with the rest of the order sought by the paternal grandparents, which states (and I will order) they “are able to exercise parental responsibility individually or together”.
Suffice to say, I will not be making the orders sought by the mother either in her Minute or as set out in the Family Report.
The paternal grandparents propose the mother continue writing to B on a monthly basis, but on the condition they do not pass on inappropriate letters to him. The mother agreed to such an order in cross examination. I will make that order. Even if B does not want to read the letters at this time, the paternal grandparents propose keeping them so he can access them if he chooses at a later point. I will make that order too. I will make the letter orders because that will give B the opportunity to read his mother’s communications at his pace, and may show him – when the time is right for him – that his mother loves him and cares for him, albeit in her own self-focused way. I also accept the Family Report Writer’s evidence that should B become curious about his mother at some later stage and his sense of self or identity through her, he will be able to get a perspective on who she is from those letters.
The question of sending photos to the mother each year is more vexed. The paternal grandparents proposed sending photos to the mother once a year just before his birthday. Of this, the Family Report Writer said in cross examination:
The only thing that would come to my mind as a concern was if [Ms Prescott] commenced stalking the family, or if the issues of family violence were to worsen, or the risk to [B] would increase. But if those issues were not current, then no, I would have no concerns about that. The difficulty is in predicting the risk of safety.
(Transcript 17 July 2024, p. 43 lines 6-10)
The mother has form for stalking and has been convicted of numerous counts of using a carriage service to menace, harass or cause offence. She has spent time in jail for offences directed at the paternal family. Her letters meant for B show a fixation with being together with him, just as she was fixated on being with the father to be with B. I will make the photo order proposed by the paternal grandparents so she can see the development of B over the years but temper any risks of that provoking or causing stalking, inappropriate carriageway usage or fixated behaviour on the part of the mother by also making the s 68B personal protection injunctions sought by the paternal grandparents. The risk of the mother acting on any obsession or fixation with B can be ameliorated by the s 68B injunctions.
The paternal grandparents proposed an order to the effect that if time or communications were to occur, then they supervise. I will vary that proposal to include the paternal grandparents, or their nominees known to B. This simply allows for the vicissitudes of life and gives the paternal grandparents flexibility as to who will be involved. I have also deleted the reference to the applicants’ decisions about time or communication being guided by B’s best interest, as that is superfluous.
Paragraph 108 of the Family Report dated 14 March 2024 noted it is important for B “to understand her mental health issues and how these impact on the mother. This will assist him to depersonalise her behaviour, removing intent behind her actions, and help him to understand how she thinks and functions. To assist [B] in this process, it may be helpful for him to engage in therapeutic support around this, such as accessing ‘COPMI – Child of Parent with a Mental Illness.’”
I will not make that order. Rather, the paternal grandparents will be able to do so as an incidence of the allocation of parental responsibility to them. I also do not make this as a positive order because B needs some respite. He has been litigated over virtually from birth. This Family Report is the third such intervention. He needs time to just be a young person and to grieve the loss of his father without court or other interventions hanging over his head. Just as the paternal grandparents sought assistance for B on the father’s death, I have no doubt they will access COPMI style assistance if warranted in the future.
Accordingly, for the reasons given I will make the orders proposed by the paternal grandparents save for some minor changes set out above and the deletion of some unnecessary verbiage.
Harmful Proceedings
The paternal grandparents seek an order pursuant to s 102QAC of the Act against the mother, known as a ‘harmful proceedings order’. That section provides:
102QAC Making harmful proceedings orders
Making harmful proceedings orders
(1) A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:
(a) the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b)in the case of child‑related proceedings (within the meaning of Part VII)—the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
Note: Proceedings includes cross‑proceedings and incidental proceedings (see subsection 4(1)).
(2) For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a) psychological harm or oppression;
(b) major mental distress;
(c) a detrimental effect on the other party’s capacity to care for a child;
(d) financial harm.
(3) In determining whether to make an order under subsection (1), the court may have regard to:
(a) the history of the proceedings under this Act between the first party and the other party; and
(b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
(4) The court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings.
(5) The court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(6) An order made under subsection (1) is a final order.
Order about notifying other party in relation to application for leave etc.
(7)If the court makes an order under subsection (1), the court must also make an order as to whether the court is to notify the other party, in the event that the first party makes an application under section 102QAE for leave to institute proceedings against the other party, of either or both of the following:
(a) that the application has been made;
(b) if the application is dismissed—that the application has been dismissed.
(8) The court must have regard to the wishes of the other party in making an order under subsection (7).
(Emphasis Added)
A s 102QAC Order is not a Part VII parenting order to which a child’s best interests are paramount. That said, the concept of harm to a child in s 102QAC(1)(b) focuses squarely on limiting damage to the child if further proceedings ensued where that may cause the child, say, psychological harm (s 102QAC(2)(a)). The examples of harm in s 102QAC(2) are not exhaustive. Put differently, it is open to the court to find other factors will cause the child to suffer harm if further proceedings are instituted.
In submissions, the mother thought an order of this nature was a good idea; she has been heard on the topic (s 102QAC(5)). However, given she is self-representing, I will not make the order by consent, but consider the issue from first principles.
The wishes of the other party, being the paternal grandparents, is to make the order (s 102QAC(8)).
Harmful proceedings orders do not shut a party out of the court. Rather, if such an order is made, the relevant party (here the mother) cannot bring further proceedings without the leave of the court under s 102QAG. The sections seek to balance a party’s right to institute proceedings on one hand, against such proceedings causing harm to the other party and/or the child on the other. If a harmful proceedings order is made, then a subsequent court is in essence the gatekeeper in balancing the former and the latter.
I have previously set out the parties’ numerous engagements with court systems. With respect to this court, it is clear from the material that even though the paternal grandparents were not parties to earlier proceedings, they were still integrally involved in them. As for the many domestic violence and other court events and convictions, the father and his parents were involved as potential witnesses in the raft of proceedings arising from the mother’s anti-social and criminal conduct and/or potential and actual beneficiaries of protection orders.
It is correct that the mother has not been an instigator of proceedings brought in this court, but the proceedings largely arose out of anti-social things the mother had done. Protective measures were taken in seeking court orders to protect B; the father or paternal family cannot be criticised for those child focused, protective approaches.
In terms of harm to the paternal grandparents (s 102QAC(1)(a)), the paternal grandmother deposed:
68. Litigation in relation to [B] has been ongoing since 2013. As [B] enters his teenage years, the costs of maintaining him will increase. We are most concerned that if [Ms Prescott] does not obtain the outcome that she desires at the trial of this matter on 17 July 2024, this may not be the end of Court proceedings if [Ms Prescott] is in a position to take matters further within the court system. We also live in fear of physical violence at the hands of [Ms Prescott] if she does not obtain the outcome she desires.
(Affidavit of Ms L Carey filed 26 June 2024, paragraph 68).
In terms of harm to B, (s 102QAC(1)(b)), the Family Report Writer at paragraph 89 of the Family Report said:
[B’s] family have been in conflict about his parenting arrangements since his birth, and his participation in this family report is the third such intervention he has participated in. [B] is unlikely to have experienced a time of calm and stability in his care arrangements. Whilst his time with his mother ceased in 2019, his caregiving adults have remained in conflict (either via parenting or criminal proceedings) and this is likely to have had a negative impact on the parenting he received, with the strain and stress evident to [B].
(emphasis added)
I accept 11 years of litigation in various courts must be taxing and costly for all adults and must have detracted from the paternal grandparents ability to be always present for B. However, I am less troubled by harm to the paternal grandparents of further proceedings per se, than harm to B who is but a child and has no control over the litigation choices of the adults around him.
Focusing on B, it has long been accepted that on-going litigation about a child is likely to inflict “enormous psychological harm ... upon each other [the adults] but especially upon the child” (McEnerney & McEnerney (1980) FLC 90-866 per Nygh J at 75,499 (“McEnerney”) (emphasis added).
The Family Report Writer was asked about further proceedings. On one hand she was asked for her opinion if B remained of the steadfast view he did not want to see the mother but she started future proceedings. The Family Report Writer responded:
…I think it would have a very destabilising impact on [B] and would result in him feeling some emotional distress, perhaps preoccupation with the litigation. It might further cement his negative expressed feelings about Mum and perhaps harden his position towards his mother, if litigation were to continue along the same track in the future.
(Transcript 17 July 2024, p.44 lines 10-14)
On the other hand, the Family Report Writer was asked about future proceedings if B was curious about his mother, wanted to spend time her and proceedings were brought to deal with that. The Family Report Writer agreed it would likely be less harmful.
Therefore, in the former example, leave may not be granted so as to protect B from harm, however in the latter, leave would likely be granted.
I am well satisfied that B needs freedom from being the object and subject of further litigation without the court’s leave. B knows no other life than the adults about him being in litigation. To that end I accept the well-reasoned opinion of the Family Report Writer that litigation conducted over B’s entire life means he is “unlikely to have experienced a time of calm and stability in his care arrangements” and “this is likely to have had a negative impact on the parenting he received, with the strain and stress evident to [B]”. I also adopt what Nygh J said in McEnerney extracted just above about on-going litigation causing “enormous psychological harm” on children, and in this case, B. I am also satisfied more litigation, without leave, will see him suffer the further harms of the adults around him not being available to him, as they otherwise might, and a childhood and teen years knowing nothing but litigation, or put differently, an absence of freedom from court.
Cumulatively, these factors just mentioned give me reasonable grounds to believe that further proceedings would cause psychological harm to B, if the mother instituted proceedings against the paternal grandparents without the oversight (that is, leave) of the court. I will make the order sought by the paternal grandparents.
With respect to the notice requirement in s 102QAC(7), I will make an order the paternal grandparents be notified if an application for leave is dismissed (s 102(7)(b)). Obviously, if leave is granted they will be served. However, giving them notice that an application for leave has been made and yet to be determined (s 102QAC(7)(a)) seems to miss the point, respectfully, of quarantining B (derivatively by the paternal grandparents) from the prospect of further litigation pending the outcome of the leave application.
Release of Reasons
On 21 March 2024 I made the following order for the release of the Family Report:
1. The Report prepared by [Ms U] dated 14 March 2024 is released to:
(a) The applicants and their legal practitioners; and
(b)The respondent through her psychologist via [email address was included].
…
I did so mindful of what the Family Report Writer said at paragraph 113:
[Ms Prescott] indicated that she would be quite upset if [B] did not want to see or spend time with her and it is acknowledged that this report and its recommendations are likely to be difficult for her to take onboard. If orders are not made reflecting her wishes, it is possible that her vulnerability may increase and given her history of suicidality, it is important that she is supported and remains engaged with her treating specialists.
(Family Report dated 14 March 2023, paragraph 113).
Those concerns remain just as apparent now as they did then. At the end of submissions, the mother agreed these Reasons be released to her via her psychologist. I will make such an order so the mother is supported in seeing the outcome, which will be of great disappointment to her.
To that end, the Psychology Report from [FF Psychology] dated 25 June 2024 (Mother’s affidavit filed 26 June 2024, annexure MP-8) also gives me some comfort that the mother will be supported on the release of these Reasons and her responses thereafter: "If [Ms. Prescott] is not granted visitation access, therapy will focus on supporting her through the grieving and acceptance stages, continuing to prioritize her mental health and wellbeing as aligned with NDIS goals".
I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 1 August 2024
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