Carson and Kincaid and Anor
[2014] FamCA 427
•23 April 2014
FAMILY COURT OF AUSTRALIA
| CARSON & KINCAID AND ANOR | [2014] FamCA 427 |
| FAMILY LAW – CHILDREN – undefended |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Carson |
RESPONDENT PATERNAL GRANDMOTHER: | Ms Kincaid |
| RESPONDENT FATHER: | Mr Kincaid |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 107 | of | 2009 |
| DATE DELIVERED: | 23 April 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 23 April 2014 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| THE RESPONDENT PATERNAL GRANDMOTHER: | In person |
| THE RESPONDENT FATHER: | In person |
| INDEPENDENT CHILDREN’S LAWYER | Ms Kordell |
Orders
That all extant orders between the parties are discharged.
That MS KINCAID and MR KINCAID have equal shared parental responsibility for major long-term decisions relating to the children J born … 2001 and E born … 2004.
That the children live with MS KINCAID.
That MR KINCAID spend time with the children by agreement with the grandmother.
That MS CARSON be restrained by injunction from having contact with the said children (other than by agreement with the grandmother or order of the Court).
That the Independent Children’s Lawyer be discharged from the proceedings this day.
That the mother’s application filed 20 June 2012 is dismissed.
That all other extant applications be otherwise dismissed.
That the reasons for judgment this day be transcribed and be made available to the parties and be placed on the Court file.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carson & Kincaid and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 107 of 2009
| Ms Carson |
Applicant
And
| Ms Kincaid |
Respondent Paternal Grandmother
And
| Mr Kincaid |
Respondent Father
Independent Children’s Lawyer
REASONS FOR JUDGMENT
In this parenting dispute between Ms Carson, to whom I shall refer as the mother, and Mr Kincaid, who in these reasons is described as the father, and his mother Ms Kincaid, who I shall call the grandmother, it concerns two children: J, aged 12, and E, aged 10.
The litigation history of this Town A family is as sad as it is awful for the children. Proceedings commenced in 2009 in the Federal Magistrates Court and the court file records numerous hearings, all of which tinkered with the lives of these children. It will come as no surprise that those lives have revolved around adult drug and alcohol abuse, changes of residence and changes of partners. These children have seen it all. The one constant in their lives appears to have been their grandmother. But the parenting problems are best described by the psychologist, who wrote a court-ordered family report in September 2013. Dr T said:
This dispute has continued unabated for over four years, with the writer now completing a second updated report. The hostilities between the mother and father/[paternal] grandmother combination were as deeply entrenched as at the former two sets of interviews. Each protagonist accused the other of inappropriate and unsafe parenting. Currently because of the mother’s past unstable behaviour, the children live with the father and paternal grandmother, where according to the school welfare worker, Ms [C], the paternal grandmother still probably played the most crucial role in the children’s everyday care, as she seemingly had done since very early after each child’s birth. As at the former interviews, the mother’s and father’s chief accusation was of the other’s continued substance abuse and possible related exposure of the children to potential harm. Each was adamant that the other was still abusing substances, but clever enough to avoid detection, where the mother was referring to the father, or simply avoiding or refusing to undertake drug screens, where the father was referring to the mother. With the information at hand, there is inadequate material upon which to evaluate the merits of either party’s perspective.
Dr T then went on to say:
While the writer might be deemed to be overly cynical, if not subjective and/or unable to validate the following hypothesis, the current circumstances surrounding the mother’s apparent failure to engage with agencies for rehabilitation purposes appear remarkably similar to the pattern she has established in the past. At or around court time, the mother professes to have “seen the light” and the persuasively performs to convince all relevant persons that she is a reformed character and therefore deserved of having the children live with her. Given the mother’s seeming past pattern of professing to change and then doing nothing, such information, circumstantially at least, suggests that the mother’s apparent inability to engage with rehabilitation in any way in the past six to seven months is because she is not being honest or genuine in her current statements about her future intentions. Alternatively, it may be that with each court proceeding, the mother is faced with the full impart of her poor lifestyle and then she earnestly professes her desire to want to change for fear of losing her two children, but once the proceedings are over, it is all too hard for the mother to undertake the ongoing and committed process of reform, so she reverts to her former ways, but always with the belief she is the better parent and will one day change her ways.
I do not think I can express it more eloquently than in those words.
On 18 November 2013, these proceedings were transferred to this court on the basis of complex issues, together with the fact that it was anticipated it would require three to four days of hearing time. Thus far this morning, the hearing has taken 30 minutes. I conducted a directions hearing on 28 January 2014, at which the mother was represented by her solicitor by telephone. The case was set down for a three day hearing before the court and directions were made for the filing of material. Specifically, the mother did not comply. At the hearing on 28 January 2014, my recollection is that the solicitor indicated that he was still dealing with the mother, albeit that his instructions were limited. I now note that he has had no further involvement in the litigation process.
In respect of the orders that I made on 28 January 2014, the father and the grandmother did, although there might be some suggestion that their particular response was late, their affidavits were filed on time. The court directed a case management hearing occur on 17 April this year and the mother did not attend. Each of the orders of the court had been posted to the address provided by the solicitor for the mother, who was the one that I referred to at the hearing on 28 January. His firm was not then and is not now on the court’s record.
It is hard to imagine that the mother does not know of these proceedings. She was the applicant and filed her current application on 20 June 2012 in the Federal Magistrates Court. More importantly, through the solicitor then acting for her, she filed an affidavit on 4 November 2013. The tenor of that affidavit was a direct complaint about the husband’s drug usage. I remarked at the January hearing that it was of little probative value because it relied on supposition. Nothing has since occurred from the lawyer’s perspective or from that of the mother.
From the father’s perspective, however, the mother is still around because he referred to her conduct towards him in January 2014. That conduct led to an intervention order in the Magistrates’ Court. I am told this morning that the hearing occurred yesterday, 22 April, and orders have been made in the absence of the mother. It is notable that the mother did not attend the hearing in January, in March or, indeed, at the Magistrates’ Court, and there is a certain symmetry between those sorts of appearances and what Dr T was talking about.
After four years of litigation, the silence is deafening, particularly where J and E have been out of the mother’s full-time care since about 2009. She has had periodic time with these children, yet she has done nothing about providing them with stability. That becomes important when I turn to the question of just what the children think about all of this. The absence of a response or, indeed, any interest by the mother justifies a dismissal of her proceeding. It is in the interests of J and E that the grandmother’s application, as well as that of their father, proceed. These children made clear to Dr T that they wanted to be with their mother, but would live with their grandmother and father. With the episodic problems of drug usage and peripatetic lifestyle of the mother, these children decisively have chosen certainty and consistency. They deserve that. I propose, therefore, to end the four years of unsatisfactory litigation and allow the grandmother and the father to proceed on an undefended basis.
The background of this case does not need much consideration. As I earlier indicated, the time in the litigation pathway says it all. The grandmother is 65 years of age and the father, 45. The mother is aged 43. These parents commenced living together in 1999 and J was born in 2001, with E in 2004. It is the grandmother’s evidence that she has had a significant role in the lives of these children right from their very birth. In 2004, the parties’ relationship as parents came to an end and in April 2009, the first of the family reports was prepared. In August 2009, final parenting orders were made by the Federal Magistrates’ Court, which provided, ironically enough, for equal shared parental responsibility for these children. How that could have been possible, having regard to the nature of the relationship between the parents, is beyond me. It is significant, however, that the children were to live with the grandmother and spend regular time with each parent.
In June 2012, as I had indicated, the mother filed an application in that same court seeking that the children not only be returned to her, but that she have sole parental responsibility for the decisions about them. That was obviously opposed by the grandmother and as this case wandered through the various circuits of the Federal Circuit Court, a second and subsequent report were prepared, all of which, as Dr T said, maintained the same things. From Dr T’s perspective, when the mother attended, she put up a very logical argument and a brave face, but what is abundantly clear from what she was saying to Dr T was that she was going to get off the drugs. There is no suggestion she had gotten off the drugs.
Thus, not only have these children had one stable base, but the court has put resources into assisting the resolution of the problem. An examination of the three family reports that I have mentioned discloses discussion about rehabilitation, drug free environments, counselling and various courses; no doubt all at the community’s expense. In the mother’s case, none of that seems to have triggered her parental instincts enough to participate and complete anything. As she told Dr T, she knew she had to be drug free to get her children back. Worse still, she seemed to indicate that notwithstanding the very clear orders in 2009, she did not undertake any of the courses and did not seem to be terribly much aware of them. She certainly did indicate that she was trying to get some counselling, but the results don’t seem to be on the court file.
In this case, I find there is no evidence that the mother is drug free. She has not provided urine screens as requested, and the one screen that she did provide was replete with cannabinoid traces. While the father espouses a change from past drug habits himself, it matters little in this case whether the court can be certain about that because the primary carer and decision maker has been the paternal grandmother and that will continue with the father’s agreement.
As I indicated, the application of the mother sought orders that the children be returned to her and that she be solely responsible for their care. That was totally unrealistic. The orders sought by the grandmother and the father effectively now mirror what is suggested by the Independent Children’s Lawyer. Effectively, what is now being sought is that the children live with the grandmother and spend time with their father by arrangement, that the father and the grandmother have the sole responsibility for making decisions of a long term nature about the children. There are other orders sought, but they really were directed to what time the mother could have with the children. Having regard to all of the history of this case and the absence of the mother’s proposals and, more importantly, the fact that she has not seen the children since January and prior to that was spasmodic, making orders that try to get her involved is a pointless exercise. I have made clear to the grandmother, and it is supported by the father, that I propose an injunction precluding the mother from seeing the children, to prevent her simply taking the children away and causing further strife for the children.
The evidence of the respondents is set out in three affidavits: two by the grandmother and one by the father. It is important to recognise that the orders in 2009 were final. The onus would therefore normally be on the mother to show that there has been a significant change of circumstances. She has not done so, but the best that can be said is that she has maintained some contact with J and E, but all of that is done to create a fantasy world for these two children.
Summarising the evidence is the best way to look at what the basis of these orders here remains. It was the grandmother’s evidence, not challenged by the father, that after the 2009 orders, the provisions were followed for some time. In 2011, a verbal agreement was reached between mother and grandmother that they would vary the parenting arrangements. The children slept at the mother’s home for most nights during the week, but were with the grandmother on weekends. They would also come home to her, the grandmother, after school and have many meals with her. There was also an arrangement that enabled J and E to spend time with their half-siblings, B and D.
In late 2011, the children were back spending most of their time with the grandmother. The mother was evicted from premises in Town F and there was a fire at her home. It seems that the smoke alarms in the house went off and they woke the children, but the children expressed the fact that it was difficult to rouse their mother. After the fire, the landlord changed the locks and the mother was unable to get back into the house and she moved to a friend’s home and in the grandmother’s view, the accommodation arrangements were inappropriate for the children. The children were then returned to the grandmother’s care because the mother had nowhere to go.
The grandmother’s evidence was that the mother’s personal life was chaotic. I think that is an apt description. She was unable to get the children to school on time when she had them, and that apparently came about because the children were not in bed at a reasonable time and even they had to organise appropriate lunches themselves. The children’s engagement at school, their attitude to learning and their appearance and general demeanour have greatly improved since they have remained in the full-time care of the father and the grandmother.
The grandmother observed that the mother’s home was filthy. Whilst that is an emotive term, I cannot think of a better one. According to the grandmother, there were dog droppings on the floor, the boys’ bedroom was so filthy that she simply closed the door to it and the children slept anywhere in the house at any particular time. There was no obvious routine for the children, the level of squalor in the kitchen and bathroom was “indescribable”. Of more concern to the grandmother, however, was that there were many people attending the house, who she described as not being appropriate to be brought into contact with young children. She described them as drug users and criminals. As an aside, I suppose, one might wonder how she would know that, other than that Town F presumably is a relatively small community. But on any view of the fact, the children were living in totally inappropriate conditions when they were in their mother’s care. There is no similar criticism of the grandmother’s home.
The mother’s problems were no doubt exacerbated by her financial problems. Presumably, she was not in employment and therefore dependent upon Centrelink benefits, but it was the grandmother’s assertion that the financial problems arose from the mother’s expenditure on cigarettes and drug problems. It is further asserted by the grandmother and not disputed by the father that the mother took items such as electronic equipment that were being used by the children and had pawned them and, indeed, sadly, it was the grandmother who got them back from the pawnbrokers in Town F. The saddest indictment on our own community system there is that the grandmother paid twice for the same items. It cost her $240 to redeem the items, which were no doubt of very little value.
In 2012, the grandmother was at a café and told by the mother’s other daughter that the mother had been hospitalised on the weekend of 21 and 22 July 2012 with a drug overdose. This was the first time anyone knew of this. There was correspondence between solicitors, but it got worse because the mother’s brother appears to have also been hospitalised for a drug overdose as well. That same brother was apparently on parole for armed robbery and offences of violence and the grandmother’s purpose in putting this evidence before the court was that she expressed concern that there might be contact between the mother and, indeed, the uncle of these children.
After the mother commenced the current proceedings, requests were made that she undergo drug screenings to see whether she was drug free. The grandmother’s solicitor wrote to the solicitor acting for the mother on 22 October, 30 October, 13 November and 19 November 2012. Three out of those four were not responded to. The one in November showed a sample which was positive for cannabinoids. No explanation has been given for that, and one can only presume that despite all of the things that the mother said to Dr T, not much has changed.
On 4 February 2014, the parties were before the Magistrates’ Court relating to an intervention order. This was an application brought by the police arising out of an incident which only indicates that the mother is certainly aware that there are problems of litigation still unresolved. The intervention order was made not only in favour of the father, but also J and E. This arose out of the mother attending where the father was living, yelling and in an enraged state, and she kicked the door. Not content with making a nuisance of herself at the door, she then was seen by a neighbour leaving the house after she threw a brick through the window. If that is the sort of conduct that the mother expects the court to see as responsible parenting, she has another thing coming.
To her credit, the grandmother wrote in the affidavit that she would facilitate an ongoing relationship between the mother and the boys as best she could. I think her chances of that are somewhat remote. The father accepts the evidence of his mother and does not challenge it. On that basis, I turn to the question of Dr T’s evidence. In his third report, which as I have indicated was more or less a shrugging of the shoulders and saying the court had heard it all before, Dr T made some recommendations. Ironically enough, he too suggested that the three participants in these proceedings had equal shared parental responsibility.
I digress at this particular point in time to wonder why anyone would suggest that that was possible. When the court makes an order for equal shared parental responsibility, s 65DAC of the Family Law Act 1975 (Cth) (“the Act”) says that where two or more persons are to share parental responsibility, then the exercise of that decision requires them to do it jointly:
The order is taken to require each of those persons: (a) to consult the other person in relation to the decision to be made about that issue; and (b) to make a genuine effort to come to a joint decision about that issue.
Nothing I have seen or read or heard relating to the four year litigation in this case would suggest there is a remotest possibility of any consultation between the parties – and I hesitate here to refer back to the brick through the window, if that is a form of consultation, and it amuses me – but secondly, to make a genuine effort to come to a joint decision. The evidence in this case seems that the mother has seen the children once in January, and that is now four months ago, and otherwise had a spasmodic attendance throughout 2013. The prospect of her participating in a genuine way to come to a conclusion about what is good for these children seems remarkably remote.
Returning to Dr T, he said that the children should live with the paternal grandmother and the father. Whilst there is some argument about what that means, the father has indicated today that the children are to live with the paternal grandmother and they will work out the situation between themselves, but as I remarked, he understands the grandmother calls the shots.
Dr T went on to recommend that until the mother completed a suggested rehabilitation program, that her time remain as per the orders of 19 July 2013. Those orders – remarkably, from my perspective – gave the mother significant periods of time with the children on a weekly basis. Apart from the fact that she has not fulfilled those obligations, they indicate that the court had some concern about the mother because she was only permitted daylight time.
I have searched the file and there is no record of any reasons having been published. That is not surprising, when the Federal Circuit Court is indeed on circuit because of the busy lists, but I have inferred from the fact that the orders were not consent orders that the learned judge was of the view that the mother had nowhere to take the children that was appropriate, but at the same time, a period of two or three hours was not going to hurt the children. One of the dilemmas that I think Dr T raises is the fact that these children have an expectation that their mother will provide some sort of lifestyle for them, which is very attractive to them. In my view, making orders of that nature unsupervised does not give the court a very good picture of what is going on in the children’s minds, let alone how the mother is actually caring for them. I propose to discharge those orders forthwith.
As I earlier indicated, Dr T started his report by noting that the mother seemed vague about the understanding of what obligations she had in relation to drug detox and living in rehabilitation. She was to, in his view, follow up with drug counselling and maintenance of that counselling. I think it is a sad reflection on not only the court’s role, but also the community, if the court has to force people to attend drug detoxing and rehabilitation in a parenting case. If a parent cannot understand that being drug affected has so many implications for children, then the community is in for a real problem in the future with these children who come through that sort of lifestyle. I consider J and E very fortunate that they have a grandmother who sees all of that and is the only stable influence in their life, now assisted by their father, who is clearly well aware of the problems and, on the evidence I have, endeavouring to rehabilitate himself.
All of that leads in to what Dr T said was the basis of his recommendations. He thought that the children wanted to see their mother fairly significantly. What the children told him, and more particularly J than E, that he wanted to live with his mother. E was somewhat ambivalent because he was quite happy where he was. I’m not entirely sure what weight Dr T gives the views of these children, but in my view, they have no real understanding of what the problem is and what they were searching for was a mother who was going to provide nurturing and care. The mother has failed miserably in that respect.
Section 60B of the Act sets out what the Parliament of Australia thought was the obligation of the court in working out what was best for children. It is an interesting reflection in this particular case. Parliament said that the objects of the section were to ensure that children had the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children. How can the court work out the benefit that the children might have of their mother having a meaningful involvement in their lives when the mother behaves the way she has and has not taken any part in these proceedings? How can they have the benefit of their mother when she breaks the law as she seems to have done?
The next object is that the Parliament expects the courts to ensure that the best interests of the children are met by protecting them from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Putting a brick through a window when children are in the house is not particularly clever, and I would have imagined that these children wouldn’t have just shrugged their shoulders, but would have been cowering with fear.
Children are also entitled to receive adequate and proper parenting to help them achieve their full potential. One of these children is struggling, but the grandmother and the father, on what I have read, are certainly addressing that issue. I cannot say the same for the mother. Another object is that the court is expected to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. The evidence to which I have referred speaks for itself.
The principles underlying those objects are really the rights of the children. They have a right to know and be cared for by both their parents, regardless of status of their parents. They have the right to spend time on a regular basis with, and communicate on a regular basis with both their parents and other people who have a significant role in their care, welfare and development. What chance for J and E if their mother does not show any interest in them?
The other principles underlying the objects are that the parents jointly share the duties and responsibilities concerning the care, welfare and development of their children. That is a good aspiration, but it cannot work here. The same should be said about the fact that parents should agree about the future parenting of their children. That does not happen here.
Section 60CA of the Act provides that in making a parenting order, the court must apply the principle that the best interests of the children is the paramount consideration. Section 60CC sets out those considerations and I propose to deal with them globally. I have already referred to the benefit of the children having a meaningful relationship with both their parents. That is not happening here. There is clearly a need to protect the children from the harm to which I have just referred. I observed earlier in these proceedings that to simply make no order in relation to the contact between mother and children left the children exposed to simply being contacted by their mother when she saw fit. It seems inappropriate in my view for the children to be put in that position where the mother simply could come and take the children away or, when she did not get her way, throw a brick through a window.
Additional considerations that the court is obliged to take into account are things such as the views expressed by the children. I have clearly understood these children want to be with their mother. Whether that really means that they want to spend time with her or live with her is a matter of conjecture. In any sense of the word, I am satisfied these children know they have a mother, but they also need the stability of a home where there is a routine so that they can undertake all the things that children need as they progress through their teenage years.
It is the nature of the relationship with the children that is clearly stark here. The grandmother has a very close and loving relationship and the father has had a significant role in the children’s lives, certainly over the more recent year. I do not have any idea what the nature of the relationship between the mother and the children currently is.
One of the other considerations is the extent to which a parent has participated in decision making about children, spending time with them and communicating with them. If that is a test, and it is not the only factor here, the mother has failed miserably. The last indication is that she turned up to see them in January, but all of that has to be under some control.
The court is obliged to look at the capacity of the parents and the other person, in this case the grandmother, to provide for the needs of the children, including their emotional and intellectual needs. There is no dispute in this case, and the evidence is unchallenged from the mother’s perspective, that the grandmother is providing all of the needs of these children and strongly supported by the father. Whilst the father’s background is somewhat chequered, it certainly seems on his evidence that he has turned things around.
I earlier referred to the affidavit filed by the solicitor on behalf of the mother late last year which, as I pointed out, had little probative value, but to the extent that there was any truth in any of those allegations, the father is on notice that the court is very concerned about his capacity as a parent, and for that reason, is it appropriate that the court gives the grandmother the final say as to what should happen with these children. I am very pleased to be able to compliment the father in relation to his attitude to the children and his responsibilities of parenthood. He is certainly, even on the grandmother’s evidence, demonstrating that he has learnt the lesson and the fact that the children need him very much in their lives.
The court is obliged to take into account family violence. Family violence in this case appears in a number of guises. It appears in the abuse of people, each towards the other. It appears in children being exposed to things that create fear for them. I cannot think of a better example than the fact that the mother threw the brick through the window. That precipitated the family violence application and that culminated in orders that satisfied the Magistrates’ Court that the State of Victoria needed to intervene in the children’s lives. Such was the nature of the evidence and the view of that court that it made an order that included the children on it. That speaks volumes for the behaviour of the mother.
One of the fundamental issues in this case which arises out of s 60CC is whether or not it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. I propose in this case to make an injunction on the basis that the four years of litigation needs to stop. These children are crying out for some stability. Dr T is saying there’s not much more he can do and the grandmother is saying that the children need to have some contact with their mother, but it has to be under a very controlled environment. It seems to me the most logical thing I can do to end these proceedings is to say that there is to be no contact between the mother, unless the grandmother is completely satisfied that it is in the interests of the children that that occur, but she knows that she has the fall back position of the injunction precluding the mother from seeing the children without a further court order.
To the extent that the mother ever reads these reasons, I will make my position and hopefully that of the court abundantly clear. If she wants to have some part in the children’s lives, she should start by reading the obligations and the objects set out in s 60B and s 60CC. In my view, any application that she brings which is based on something other than an application that she knew nothing about these proceedings will face the problem of a court saying that she will need to show that circumstances have significantly changed. The best way to prove that things have significantly changed is by reference to the matters in s 60B.
ORDERS DELIVERED
I will add to my reasons that it has been raised by the Independent Children’s Lawyer that the other child of the mother attends the same school as J and E. I can appreciate how J and E might want to go to their mother, but she would need to understand that there is now an intervention order in place, let alone the injunction precluding her from having any contact. She will need to deal with that issue herself.
ORDERS DELIVERED
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 April 2014.
Associate:
Date: 18 June 2014
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Remedies
0
0
1