Carmichael & Parker

[2021] FCCA 1636

FEDERAL CIRCUIT COURT OF AUSTRALIA

Carmichael & Parker [2021] FCCA 1636

File number(s):	ROC 649 of 2019
Judgment of:	JUDGE DEMACK
Date of judgment:	26 May 2021
Catchwords:	FAMILY LAW – Parenting – Interim hearing after the release of the family report
Legislation:	Family Law Act1975 (Cth) pt VII
Number of paragraphs:	23
Date of last submission/s:	19 May 2021
Date of hearing:	19 May 2021
Place:	Rockhampton
Solicitor for the Applicant:	McGowran & Cagney Lawyers
Solicitor for the Respondents:	Michael Stockall Solicitor
Solicitor for the Respondents:	Crossan Legal
Solicitor for the Independent Children’s Lawyer:	Lyrene Wiid Lawyer & Migration Agent

ORDERS

ROC 649 of 2019

BETWEEN:

MS CARMICHAEL & MR CARMICHAEL

Applicant

AND:

MS PARKER

First Respondent

MR B CARMICHAEL

Second Respondent

ORDER MADE BY:	JUDGE DEMACK
DATE OF ORDER:	26 MAY 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the application in a case filed by the father on 21 April 2021 be dismissed.

2.That the Independent Children’s Lawyer have liberty to apply.

3.That any expert evidence to be filed on behalf of the mother in respect of her mental health matters be filed and served no later than eight (8) weeks prior to the final hearing date.

4.That the matter be set down for final hearing for not more than two (2) days commencing at 10.00am on a date to be advised in the Federal Circuit Court of Australia at Rockhampton.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE DEMACK

1. This is an interim hearing with respect to parenting arrangements for X, who was born in 2015, who last year turned five. 

2. She lives with her mother, and nobody is seeking orders to the contrary.  The proceedings were commenced by the paternal grandparents seeking time with X. 

3. Early in the proceedings, I expressed concern that the father had not been involved in the initiating processes, and that I was concerned that the Applicants may have been bringing an application somehow on behalf of their adult son, and if that was the case, or if he was going to, later, want to agitate time with X, or if, when X was spending time with the paternal grandparents, she was, in fact, going to come into contact with her father, then the father needed to be properly part of the proceedings, and not somehow floating around in the background.  So the father was brought into the proceedings.

4. The Independent Children’s Lawyer was appointed, and she has had a family report prepared now by Ms C, and following the family report being released, the paternal grandparents have brought an application for X to spend time pursuant to the recommendations of Ms C. 

5. The mother opposes time commencing, and seeks orders that there be no time between X and her father, or the paternal grandparents in the interim.

6. The recommendations of Ms C commence at paragraph 12.1:

   •That X live with Ms Parker

   •That X is provided with a photograph album of the paternal family and attends upon a counsellor initially for weekly visits to assist her to understand her relationships with the paternal family. I would also recommend these visits continue once the contact begins, so that X has an independent person to talk to about her family.

   •I would also recommend that the paternal family have input into this counselling to assist the professional working with X to help answer any of the questions X may ask.

   •That X immediately starts spending time with the father and paternal grandparents every second weekend for periods of two hours.  Should there not be a third person to supervise this time and encourage X to develop a relationship with her paternal family, I recommend this contact occur at D Children’s Contact Centre. I do not make this recommendation based on concern about the paternal grandparents’ and father’s capacity to meet X’s needs, but to allow an independent person to facilitate positive relationships and feedback to the ICL and Court how X is adjusting to the contact.

   •That the two hour contact every second weekend occur for a period of two months and then move to unsupervised time in City D for a full day for the next two months and then every second weekend for two full days only for another two month period.

   •That an updated family report occurs prior to any overnight time between X and the paternal family and that a report from X’s counsellor and from the City D Children’s Contact Centre be available for this updated report.

   •That Mr B Carmichael completes the Circle of Security parenting course to gain insight into the emotional needs of children.

   •That the parents complete the Parenting Orders Program to gain skills to assist them develop a healthy co-parenting relationship.

7. The paternal grandparents have sought orders that X spend time with the father and with them for, in the first instance, every second Saturday for a period of two hours at the contact centre.  They, then, seek that, after that, it be from 9 to 5 each alternate Saturday, to be unsupervised, and that after that, it be Saturday and Sunday on alternate weekends, for 9 until 5, Saturday and Sunday.  I note that what they seek is in line with what Ms C recommends.

8. The father supports the orders which his parents seek.  The grandparents also seek orders with respect to counselling, and for the family report to be prepared in an updated way, as Ms C had recommended.

9. The mother opposes these orders being made.  She seeks that there be no time between the father and the paternal grandparents at this stage, and that the matter be set down for a final hearing.

10. The ICL supports the orders which are sought on behalf of the paternal grandparents, and is saying that Ms C’s family report should be followed.

11. Family reports are an important part of evidence in any family law proceeding.  Plainly, where parents have a different view as to what the outcome should be for their child or children, the Court seeks the view of an expert.  It is a useful tool for the Court to be able to understand the dynamics in the parenting relationship, or the other relationships which are relevant for any particular child.  It is an important tool in having someone provide a view of the child. 

12. One of the additional considerations in the Family Law Act when considering the best interests of the child is any views or wishes as expressed by a child, and it is important to have a process whereby somebody independent of the family, and who is an expert in this area, to be speaking with a child.  Family reports are invaluable in the family law process.

13. This is an interim hearing, and the best interests of X are my paramount consideration. I am mindful of the objects and principles of part 7 of the Family Law Act.  On an interim hearing, I cannot make findings of fact where there are matters in dispute, but I must do the best with the evidence which is before me.

14. The family report is one part of that evidence, although it is a report by an expert, and it is a report which the Court may well consider invaluable, it is also part of the contested evidence before me.  The mother does not agree with the family report.

15. The mother has, it seems to me, a basis for not agreeing with the family report, and that basis is surrounding her concerns about her relationship with the father, which she says that was one characterised by family violence, and she finds X spending time with either the father or the paternal grandparents triggering for her in terms of her ongoing stressor arising from having been in a relationship with the father, and the family violence he perpetrated upon her.

16. The grandparents have, at times, seemed to have been able to have a more productive and useful relationship with the mother, but it seems, in recent times, that has faded away, and the mother considers the grandparents as part of the difficulty that she continues to experience with the father.

17. The grandparents, it seems to me, are probably in a difficult position.  They, hopefully by now, have some greater understanding of what the mother says was the reality of her relationship with their son.  The grandparents do not seem to have acknowledged that to the mother.  They do not seem to have acknowledged that family violence was perpetrated by their son, and the mother perceives them as being aligned with their own son.  No doubt, the grandparents may be considered by me to be somebody from a reasonable outsider’s perspective as being capable of being protective of X.  However, that difficulty that the mother experiences, where they seem to have not, so far, acknowledged the extent of what she says was her experience in a relationship with their son, is part of, from the mother’s perspective, the difficulty that she perceives with them.

18. So the mother struggles greatly with X spending time with her father, with whom X has little to no relationship, and which the mother perceives has been something the father has not really been interested in, so the mother struggles with that and the notion that X would be spending time with a person who she says was violent towards her, and where that violence has had an ongoing negative effect on her, so I need to weigh that up and the impact that making the orders which are sought by the grandparents will have on the only person who is X’s primary caregiver.

19. The mother is X’s uncontested primary caregiver.  For X to have a healthy childhood, she needs to have a primary caregiver who is as healthy as she can be.  The recommendations by Ms C, it seems to me, have the potential to be very difficult for the mother to be putting into effect, and I struggle with how we balance X’s right to have a relationship with both sides of her family with what that will mean for the primary caregiver’s capacity to be the primary caregiver she needs to be for the child.

20. So it seems to me that any benefit to X in spending time with her paternal grandparents and her father should not, at this stage, be understood by me to be evenly balanced with what that will mean for the mother and her care of the child. 

21. If it means that we need to have a final hearing to work out whether time should commence, and whether if that, then, means that what needs to happen at that stage is only interim orders, then so be it, but at this point in time, I cannot be satisfied that the benefit to X in having a relationship with her paternal side of the family outweighs the disadvantage which may befall X in her mother finding the events triggering.

22. I decline to make the orders sought by the paternal grandparents, and I dismiss their application. 

23. It seems to me the only way forward is for the matter to be listed for a final hearing, and I will now do that.  If I can have the lawyers turn their mind to how long they think a trial will need, and it seems to me plain that there will need to be a 102NA order made with respect to the mother and the father, but I do not suppose I need to make a 102NA order for the paternal grandparents.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Demack.

Dated:       19 July 2021