Feeney and Feeney and Ors

[2016] FCCA 3315

FEDERAL CIRCUIT COURT OF AUSTRALIA

FEENEY & FEENEY & ORS [2016] FCCA 3315

Catchwords:
FAMILY LAW – Parenting – interim hearing – conflicting recommendations Department of Health and Human Services and the family consultant.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 67Z, 69ZW

Federal Circuit Court of Australia Act1999 (Cth), s.39

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Applicant: MS FEENEY

First Respondent: MS C FEENEY

Second Respondent: MR ROBERTSON

Third Respondent: MS ROBERTSON

File Number: MLC 8470 of 2016

Judgment of: Judge Harland

Hearing date: 12 December 2016

Date of Last Submission: 12 December 2016

Delivered at: Melbourne

Delivered on: 20 December 2016

REPRESENTATION

Counsel for the Applicant: Ms Dunlop

Solicitors for the Applicant: Cathleen Corridon & Associates

Counsel for the First Respondent: Ms Bonney

Solicitors for the First Respondent: MacGregor Solicitors

Counsel for the Second Respondent: Ms Stavrakakis

Solicitors for the Second Respondent: Victoria Legal Aid

Counsel for the Third Respondent: Ms LaGreca

Solicitors for the Third Respondent: Pentana Stanton Lawyers

Counsel for the Independent Children's Lawyer: Mr McLeod

Solicitors for the Independent Children's Lawyer: Mckean Park Lawyers

ORDERS

1. That orders 6 and 8 of the orders made 22 September 2016 be discharged.

2. That the applicant shall spend time with the child, X born (omitted) 2015, from 9.00am Sunday until 4.00pm Tuesday each week and for this purpose changeovers take place at McDonald's (omitted) or such other location as may be agreed between the applicant and the third respondent in writing.

3. That the first and second respondents spend time with X as agreed with the third respondent, and in the case of the first respondent being at least twice a week.

4. That within 28 days the first and second respondent attend drug and counselling through Youth Support and Advising Services or such other services as recommended by the Independent Children’s Lawyer.

5. Pursuant to section 39 of the Federal Circuit Court of Australia Act1999 (Cth), these proceedings are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8470 of 2016

MS FEENEY

Applicant

And

MS C FEENEY

First Respondent

MR ROBERTSON

Second Respondent

MS ROBERTSON

Third Respondent

REASONS FOR JUDGMENT

1. X was born on (omitted) 2015 (“X”). The applicant Ms Feeney is X’s maternal grandmother. From the time of X’s birth until August 2016 she was X’s primary carer. The first respondent is X’s mother; Ms C Feeney who is 17 years old. The second respondent is X’s father; Mr Robertson is also 17 years old. The third respondent Ms Robertson is X’s paternal grandmother. X has been living in the paternal grandmother’s primary care since August 2016. For ease of reading I will refer to the applicant maternal grandmother as Ms Feeney, the mother as Ms C Feeney, the father as Mr Robertson and the respondent paternal grandmother as Ms Robertson. There is an Independent Children’s Lawyer (“ICL”) representing X’s interests.

2. The issue before me is what interim living arrangements should be in place for X. Five counsel were at the bar table representing the parties. The interim hearing was adjourned from its initial date of 25 November 2016 because of the extensive subpoenaed material which I am advised included over 800 pages from the Department of Health and Human Services (“the Department”) and only was made available shortly before the hearing. The parties needed a reasonable opportunity to inspect that material. I asked counsel to prepare tender bundles of the subpoena documents they intended to rely on.

3. Ms Feeney commenced these proceedings on 6 September 2016 and she sought an urgent ex parte recovery order with respect to X. When the matter came before me Ms Robertson had not been joined as a party and had not been served. This was an odd omission given that X was living in her primary care. As will be clear from the evidence I will refer to, neither parent is currently a candidate to be X’s primary carer and neither seeks that role at this stage. It is the position of both grandmothers that it is hoped that Ms C Feeney will be in a position to one day be the primary carer of X.

4. On the first return date I ordered that Ms Robertson be joined as a third respondent that she be served with the application and also appointed an ICL.

5. In her notice of risk Ms Feeney raised issues with respect to both parents using drugs as well as there being violence and lack of supervision.

6. In support of her application for a recovery order, Ms Feeney relied on her affidavits filed on 6 September 2016 and a brief affidavit of her ex-husband Mr J. His affidavit simply said that he had read hers and supported her application.

7. Ms Feeney was born on (omitted) 1963 and is 53 years old. She says that she is in good health apart from suffering from anxiety and depression which is managed by her GP.

8. Ms Feeney says that that she became aware that Ms C Feeney was using drugs when Ms C Feeney was pregnant. She says Ms C Feeney was not coping as a mother and was continuing to use drugs and that she had to step in and be X’s primary carer. She took X to all her maternal child health nurse appointments and in short her immunisations were up-to-date.

9. Ms Feeney refers to occasions when Ms C Feeney has been violent to her and police have been involved. She says Mr Robertson was also violent.

10. In her affidavit Ms Feeney says that on 17 August 2016 Mr Robertson and Ms Robertson attended her home and took X. Ms C Feeney went with them.

11. Ms Feeney filed a further affidavit on 16 September 2016 annexing a family meeting agreement from the Department which she says she and her ex-husband did not agree to. She filed a further affidavit on 19 September 2016. She expressed concerns that the Department was allowing both parents to spend unsupervised time with X and expressed concerns about the capacity of Ms Robertson to appropriately protect X from harm. Ms Feeney says that X has been in her primary care apart from the period of a few weeks last year when X and Ms C Feeney went to stay with Ms Robertson whilst she was moving house.

12. Mr Robertson filed a response and affidavit in support of 22 September 2016. He opposed Ms Feeney’s recovery order and sought an order that X live with Ms C Feeney and himself. Mr Robertson denied Ms Feeney’s allegations about violence and drug use and alleged that he has seen Ms Feeney threaten to harm herself in order to get her children to do chores around the house.

13. The Department were involved with Ms C Feeney and Mr Robertson when X was born because both parents were so young. The father says that he understood that the Department required his time to be supervised because he did not have the parenting skills to know what X needed and how to respond to her cues.

14. Mr Robertson says in his affidavit that he does not supply Ms C Feeney with drugs but on occasion has told her where she can buy them and that up until a couple of weeks ago he smoked marijuana weekly. He said he was willing to undergo drug tests. He also says that he has a criminal history and is currently on a bond with respect to theft charges.

15. Ms Robertson filed a response and affidavit on 7 November 2016 seeking interim orders that X remain living with her. She proposed that Ms Feeney see X fortnightly on Sundays rather than weekly. Ms Robertson was born on (omitted) 1979 and is 37 years old. Mr Robertson and Ms Robertson say that X came into their care after Ms C Feeney contacted Mr Robertson on 17 August 2016 asking to be picked up from Ms Feeney’s home following a dispute between Ms C Feeney and Ms Feeney.

16. Ms Robertson says that when X was living with Ms C Feeney, she and the father were able to see X regularly but that Ms Feeney “has been a constant interference and has made things difficult for all concerned.” She says the relationship between Ms Feeney and Ms C Feeney has been strained and they often fought when living together. She also says that she has never had involvement with the Department except in relation to X. Ms Robertson then goes on to give various second hand hearsay evidence with respect to allegations against Ms Feeney, she admits this is not in her personal knowledge. She says she has an amicable relationship with both parents and will support and promote X’s relationship with them but will prioritise X’s welfare over and above that.

17. Ms C Feeney also filed a response and affidavit on 11 November 2016. She seeks final orders for X to live with her and interim orders for X to remain living with Ms Robertson. In that affidavit Ms C Feeney says that she was X’s primary carer and not Ms Feeney and says she is confused as to why Ms Feeney commenced the proceedings.  

18. Ms C Feeney says Ms Feeney has mental health issues and that she threatens to self-harm in order to get her children to comply with her demands. She says that on 18 August 2016 Ms Feeney hit her and that the Department and the police were notified of the incident. Ms C Feeney denies using drugs apart from cannabis and denies being violent. She claims that the drug paraphernalia and drugs that were found in the bungalow where she was staying behind Ms Feeney’s house were not hers; she also says that she did not do the graffiti on the walls. She has friends who had come and go from the bungalow.

19. Ms C Feeney says Ms Feeney is not capable of caring for X and that the Department has previously been involved with her family before X was born.

20. Ms Feeney filed a further affidavit on 7 November 2016. Ms Feeney says that X is excited to see her and relaxes straightway in her care and is distressed when she has to be returned. She says she believes that the current routine is causing X distress and that she is being shuffled amongst the various members of the paternal family. Ms Feeney makes further allegations about the parents being drug affected, finding a crack pipe in the bungalow after Ms C Feeney returned home for a short time in October. She says she is a homemaker and is available to care for X full-time and she was prior to August 2016.

21. Mr Robertson filed a further affidavit on 17 November 2016 and describes the routine he and Ms Robertson have with X. He supports Ms Feeney’s time being reduced saying that it is disruptive to X’s routine. Mr Robertson also gives various excuses as to why he has failed to comply with the drug tests requested by the ICL.

22. Surprisingly Ms Robertson filed another response and affidavit on 9 December 2012. The response is not identified as an amended response and is prepared by a different solicitor. Some of the material in that affidavit is repetitive of her first affidavit and inadmissible for example at [21] which again is full of second hand hearsay.

The Department involvement

1. The Department has provided two responses to the Notices of Risk filed pursuant to s.67Z of the Family Law Act 1975 (Cth) on 15 September 2016 and 22 November 2016. It provided a response to the s.69ZW order made by me on 8 December 2016.

2. The Department carried out a home visit at Mr Robertson and Ms Robertson’s home where they observed positive interactions between X and Mr Robertson and Ms Robertson. The Department also contacted (omitted) Early Learning Centre who advised that they had no concerns about X’s presentation or her development.

3. At the Department’s request, Ms Robertson took X for her 18 month check-up. The Department noted on 11 November 2016 that the outcome of the check-up was positive, that X was seen to be in good health and described her as having reached her milestones as expected for a child of her age.

4. The Department observed that Ms C Feeney is receiving support from Salvo care and is actively being engaged with these services and has a stable housing through that service as well as other supports.

5. The Department recorded that it had encouraged Mr Robertson to engage with parenting support services and counselling, the Department had no indication that he had linked in with the service.

6. Ms C Feeney completed seven drug screens at the Department’s request between 9 September 2016 and 7 November 2016. The first five screens were positive for marijuana. The last screens taken on 2 November 2016 and 7 November 2016 were cleared of all substances. There is no indication that the Department has required Mr Robertson to undergoing drug testing.

7. A closure family meeting took place on 17 November 2016 the Department records that the following agreements were reached:

   ·That X was to be in the care of Ms Robertson and Mr Robertson;

   ·That Ms C Feeney was to continue to have contact in accordance with court orders and that Ms C Feeney requested more time including overnights when she has stable accommodation;

   ·Mr and Ms Feeney also requested more time;

   ·The family agreed that it was in X’s best interest to work together, particularly with respect to critical decisions for X and that this included involving Mr and Ms Feeney;

   ·The family agreed that all communications needed to be respectful and open.

8. The chairperson recorded that Ms Feeney approached her after the meeting advising that while she supported X remaining in the primary care of Ms Robertson, she wished to be included in the decisions. The chairperson records that she contacted Ms Robertson who agreed with this. Ms Feeney says this is a misrepresentation of what she said.

9. Due to reports outlining safety concerns on 9 May 2016 with respect to Ms C Feeney using drugs and Ms Feeney hoarding items in the home and making the home unsafe for X, the Department followed up with (omitted) Early Learning Centre where X was attending and the maternal and child health nurse, Ms H. Ms H advised the Department workers that she had been visiting Ms C Feeney and X monthly at home. Due to there being no concerns arising out of those home visits they were no longer offering the enhanced service, instead Ms C Feeney was attending the clinic. Ms H reported that although the home environment was cluttered, the bedroom and sleeping conditions for X were appropriate and that there were no concerns. She said that in the past Ms C Feeney and X’s room had been the tidiest in the house and that there was nothing to indicate that Ms C Feeney readily uses drugs. X presents with it as advanced in her gross motor and verbal skills and on track with her weight. Ms Feeney was also in the home and she and Ms C Feeney were described as sharing the care of X.

10. There was also follow-up by the police with respect to allegations that they had recently attended the home with respect to drug concerns. Those allegations could not be verified and they could not confirm any recent involvement with Ms C Feeney with respect to drug use.

11. There was a further report on 28 February 2016 where concerns were expressed about the mother being affected by alcohol and there being no suitable adult at home to assist in X’s care. A child protection worker spoke to Ms Feeney and an additional follow-up was carried out with the maternal and child health nurse who had no concerns. Whilst it was noted that Ms Feeney had previously suffered from depression and hoarding behaviour it appeared stable at the time. It was also noted that Ms C Feeney is continuing to engage with her support worker Ms W from Starting Out who was providing ongoing support to the mother and who was saying that the mother was progressing well.

12. A report was made on 1 January 2016 with respect to an alleged family violence incident between Mr Robertson and the maternal uncle, Mr A. Ms Feeney and Ms Robertson confirmed the incident with both Mr Robertson and Mr A having consumed alcohol. The Department worker advised future contact with Mr Robertson should occur at Ms Feeney’s home to ensure there is no further family violence and so that Mr Robertson has Ms Robertson’s support. A contact plan was drawn up for Ms Robertson and Mr Robertson. Ms W from Starting Out and Ms H, the maternal and child health nurse, both advised that they had no concerns about X’s health development and safety in Ms C Feeney’s care and that they continue to assist Ms C Feeney moving towards independent living in the next few years.

13. The Department noted that Mr Robertson’s time would continue to be supervised by Ms Robertson which Mr Robertson agreed to as he felt that he needed Ms Robertson’s assistance. Significantly it is also recorded that conflict remains between Ms Robertson and Ms Feeney with Ms C Feeney and X being caught in the middle of this conflict. “Ms W continues to support [Ms C Feeney] in navigating her way through the chaotic family environment.”

14. A protection report of 27 April 2015 notes that concerns were raised about Ms C Feeney’s capacity to parent and keep X safe from aggressive members of the family. It noted that both parents were still young and “still reliant on care of their parents who according to child history have shown to be unreliable, chaotic and not protective.”

15. That report went on to note that Ms C Feeney engaged with Starting Out and attended a five day residential program at the (omitted) Family Centre. Ms C Feeney could not return to live with Ms Feeney as Ms Feeney had been evicted for hoarding, neglect of the property and not paying rent. Ms C Feeney went to live with Ms Robertson temporarily.

16. Ms C Feeney and X moved back in with Ms Feeney. The Department imposed conditions that the maternal uncle Mr A not live at the home and that the home be kept to a hygienic standards without there being an excessive number of animals.

17. The Department observed that Ms C Feeney engaged positively with the Department and other services that she was referred to. She was observed to be able to attend to X’s physical and safety needs but needed assistance with parenting capacity and ability to respond to X’s verbal and non-verbal cues.

18. The Department assessed that it was in X’s best interests to remain with Ms Robertson and noted that whilst Mr and Ms Feeney have provided considerable periods of care and support for X there were five protective reports during that period over a six month period with the report of 1 January 2016 being substantiated. That was with respect to Mr Robertson’s violence. The Department recorded that there is a clear pattern of conflict between Ms C Feeney and the maternal family that has exposed X to harm. The Department concluded that X continuing to live with Ms Robertson will “better provide X with stability, and an environment free from conflict and violence and it will also allow X to have increased contact with both of the parents.”

The family report

1. Fortunately in this matter it was possible to obtain an urgent family report. The family consultant, Ms S notes in the section entitled ‘Background to Dispute’ that the parties broadly agree that due to the immaturity of the parents, the grandparents are central in ensuring that X’s developmental needs are met. The dispute focuses on which grandmother should have that primary role.

2. Both Ms C Feeney and Ms Feeney reported that Ms C Feeney heavily relied on Ms Feeney for her own needs as well as X’s and that over time Ms Feeney took on more of the role. When X was eight months old her cot was moved into Ms Feeney’s bedroom. The consultant recorded that all three respondents want Ms Feeney’s time to be reduced to fortnightly and that Mr Robertson wants time to be stopped altogether in due course.

3. The family consultant spoke to the Department’s worker and recorded that it was apparent that whilst the Department had observed X with the three respondents, they had not observed X with Ms Feeney. The three respondents argued that Ms Feeney should not have X living in her primary care due to her poor parenting of her other children.

1. The family consultant observed that both parents present primarily as adolescents rather than as parents. It must be noted that the parents were only 15 when X was born. She described Mr Robertson as immature in his outlook but importantly observed that this would be developmentally appropriate if it were not for the fact that he is a parent himself. Mr Robertson admitted drinking to excess and says he drinks to get drunk and not for the taste. He says he has been a regular marijuana smoker since he was 15 years old but has stopped because of “court stuff”. He denied using any other drugs. The explanations that Mr Robertson gave both in his affidavit and to the family consultant for failing to comply with the drug tests are unsatisfactory and an indication of his immaturity and lack of insight. It was also apparent that Mr Robertson could only express X’s needs and interests in a basic way and heavily relied on Ms Robertson for direction in support. He was dismissive of Ms Feeney and did not believe that X had any difficulty in transitioning into Ms Robertson’s and his care.

2. Both parents are facing criminal charges in the Children’s Court of Victoria. Whilst the respondents are very critical of Ms Feeney and her parenting, some criticism should be directed to Ms Robertson given both parents who are still under the age of 18 drink, at the very least smoke marijuana and face criminal charges. Mr Robertson has also been the subject of a Department supervisory order at some point. This is mentioned in the subpoena material.

3. Ms C Feeney admitted to using methamphetamines and MDMA but said she had not used them since April 2016. Ms C Feeney’s relationship with Ms Feeney has broken down. Ms C Feeney is highly critical of her and dismissive of any notion that X could have a significant relationship with her. She also said that Ms Feeney would at times buy marijuana for them and use it as a bribe to get them to do household chores. The family consultant said that the relationship between Ms C Feeney and Ms Feeney is volatile and it is important that X’s needs and best interests are not determined by the status of that relationship.

4. The family consultant described Ms Robertson as presenting as somewhat conflicted in what her role actually was and that she presented as primarily a mother to Mr Robertson and that her secondary role was as a grandmother to X. She says the pregnancy was kept from her until Ms C Feeney was about seven months pregnant which meant she had little time to adjust and she had great difficulty with that.

5. She said that X came into her care after a falling out between Ms C Feeney and Ms Feeney and that it happened very quickly and was unplanned. She says she tries to leave parenting tasks for Mr Robertson but she tends to step in.

6. Ms Robertson said that the arrangements had previously been working well and were flexible between the parents. She was unhappy that the matter was before the court as this has placed a financial burden upon her and that it could have been managed without court assistance. I disagree with that assessment given the hostility the three respondents show towards Ms Feeney and the lack of recognition. Although the three respondents may have criticisms of her, she has been significantly involved in X’s care and X has a significant attachment to her. Ms Feeney reluctantly acknowledged that Ms C Feeney had received significant assistance from Ms Feeney in parenting X. She also did not think X had had any difficulties in adjusting to the change in her primary residence. This tends to show a lack of insight which is apparent with respect to all of the respondents.

7. Ms Feeney was supported in her interview by her ex-husband, Mr Feeney. The family consultant noted that he was supportive of her but also criticised her lack of boundaries when parenting.

8. The family consultant observed that it was apparent that apart from the first few months and the last few months of X’s life Ms Feeney cared for her consistently. The family consultant says Ms Feeney was similarly caught between parenting Ms C Feeney and being a grandmother but unlike Ms Robertson and her influence over Mr Robertson, she has little influence over Ms C Feeney.

9. The family consultant observed X with each of her parents, Ms Robertson and Ms Feeney. Her observations of X with Ms Feeney is significant as she noted that X responded to her in a more animated way, remained by her side and constantly lifted up her arms asking to be picked up. X draped herself over Ms Feeney’s shoulder and whenever she was put down wanted to be picked up. When Ms Feeney left the room X became very upset and cried.

10. The family consultant concluded that at this stage neither parent is capable of providing for X’s day to day care. They both presented as immature and incapable of taking on any adult role and that both still function as somewhat rebellious children.

11. She also concluded that in this case there is a lack of sense of security for X. She expressed concerns that if the matter was left to the respondents there could be an ongoing changing environment for X which could lead to poor outcomes for her.

12. At [57] and [58] the family consultant stated the following:

    The challenge is determining what base is the best for her. X has been raised primarily by her maternal grandmother, and while those around have minimised and trivialised her role in this, it is possible that X’s sense of security is met by her. However, concerns are raised that Ms Feeney has not parented her own children well and that X growing up in Ms Feeney’s care may not have boundaries or good parenting to rely on. If past behaviour is the best predictor of future then this may have some validity.

    Ms Robertson is still a relatively young woman herself and is engaged in full time work and still actively parenting Mr Robertson. While she has expressed a willingness to assist and provide care, it appeared more that she was prepared to support Mr Robertson rather than take on that responsibility herself. While this would seem the most appropriate approach, at this point in time Mr Robertson is not demonstrating a level of maturity that could match this role and the concern would be that Mr Robertson would be left to muddle through his parenting with the back-up of Ms Robertson. At this time, this is not sufficient and leaves too much to chance.

13. She further stated at [60] and [61]:

    X presented as a child who has undergone significant change. For very young children, such as X, there is a high need for consistency and stability. Further to this she needs the adults in her life to have high levels of communication and low levels of conflict. This is not occurring currently as the adults each seek to assert their own needs without clear consideration for X’s. Given the history of X’s caregiver arrangements, it is important that she have some primary stability, and the person best placed to do that is Ms Feeney given her history of having fulfilled this role in the past.

    During observations X responded to all of the requests for hugs and kisses. She sat with each person and showed a level of comfort. The only person that X spontaneously went to was Ms Feeney, and each time Ms Feeney tried to place her on the floor she reached her arms up to her asking to be held. She also showed the most distress at Ms Feeney’s departure from the playroom despite being placated quickly. Despite limitations in Ms Feeney’s parenting, she has provided the consistency for X and is also best placed to continue to due to her physical availability.

14. The family consultant concluded that the level of conflict, distrust and criticism between the two families has resulted in X being moved inappropriately between the two homes without a sense of security. None of the adults should make unilateral decisions about her care. She stressed that given the significant changes X has experienced of the past three months priority must be given to stabilising her care arrangements. She recommended that she spent at least six months in the primary care of Ms Feeney. She was aware that the Department was planning to close its file recommending that X remain in the current care arrangement but that did not change her recommendation. It is important to note as mentioned previously the family consultant had the benefit of seeing X with Ms Feeney which the Department had not. The family consultant also made various recommendations for the parties to engage with various services including counselling services for Ms C Feeney and Ms Feeney and counselling for Ms Feeney and Ms Robertson to improve their communication.  The recommendations are sound ones but given the issues the parties have to address and the freshness of the proceedings I do not propose to make orders for the parties to undertake counselling and other courses at this stage.

15. It is important to note that the family consultant did not have access to the documents produced by the Department under subpoena.

Subpoenaed documents

1. Parts of the documents produced by the Department were tendered. Unsurprisingly they are consistent with the s.69ZW report. It is clear from the Department’s perspective that one of the reasons for its recommendation that X remain in Ms Robertson’s care is the fact that whilst Mr and Ms Feeney have provided “considerable periods of care and support for X” it also found that “there is a clear pattern of conflict between the mother and maternal family that has exposed X to harm.” The Department expressed the view that X remaining with Ms Robertson would provide X with stability and a conflict free environment that will also be free of violence. This will enable both parents to have greater contact with X.

2. The case note of the family meeting which took place on 17 November 2016 records the caseworker explaining to the parties that the role of the Department is to assess risk and to assess whether or not carers are safe rather than who is the best carer. The worker also “stressed the importance of no family members in the room being excluded from X’s life.” The respondents need to take heed of this.

3. There is a case note dated 14 November 2016 which summarises the conversation the Department case worker had with the family consultant. The family consultant expressed concerns that the relationship between X and Ms Feeney was very strong and that it needed to be preserved. The worker advised the family consultant about the historical concerns about Ms Feeney’s mental health and concern that the contact between X and Ms C Feeney and the paternal family may not be supported by Ms Feeney. The family consultant advised that she was concerned that the paternal family may sever contact between Ms Feeney and X.

4. There is a case note of a home visit to Ms Robertson and Mr Robertson. After the meeting the worker sent photo identification to Mr Robertson to enable him to undertake the drug screens which he said he had to take.

5. There is an intake report dated 15 January 2015 with respect to Ms C Feeney and her younger sister Ms M. The report relates to notifications that Ms Feeney who had been providing alcohol and drugs to unrelated children at her home. The police had raided her home and found no illicit substances there. The police have provided over 500 pages of text documents and photographs of various people who were alleged to be drinking with or at Ms Feeney’s home. The Department expressed concern if those documents were true. Reports from Camcare and to the school did not indicate that these were current concerns.

6. There was also an intake report in May 2014 which noted that records from the Department had indicated that there were ongoing and chronic issues but that the family has been heavily supported by various support services and the intake report was closed.

7. An intake report made on 29 November 2013 with respect to Ms C Feeney and her younger sister Ms M notes significant history with the family and that it was the fourth report in a 12 month period with respect to alleged drug use in the home and a high number of young people attending the home engaging in truancy and there being environmental neglect within the home.

8. The Department substantiated protective concerns on 23 December 2013. There was environmental neglect throughout the home. Ms Feeney did not apply suitable boundaries and allowed other young people to frequent the home. Ms Feeney admitted to struggling to manage her mental health, taking prescription medication for depression and anxiety. She reported that this was impacting on her ability to effectively parent her children and impose boundaries.

9. Ms Feeney admitted to the workers when they visited the home on 20 February 2014 that there had been an incident where she had held a knife and threatened to self harm following an argument with Ms C Feeney and her son Mr A.

10. It is clear that the Department has had substantial involvement with the maternal family over the years, particularly in 2013 and 2014 but also in earlier years. The family was referred to Child First on 6 November 2013 to support and monitor Ms Feeney’s parenting.

11. It is significant to note that the reports also refer to Mr Robertson and concerns about his controlling and aggressive behaviour. In a case note dated 22 January 2015, the biggest concerns noted were the environment in Ms Feeney’s home, family conflict, Ms C Feeney’s ability to parent and Mr Robertson’s aggressiveness.

12. Extracts from police records were also tendered. There is a report dated 25 May 2014 with respect to a family violence incident where Ms Robertson was the affected family member and Mr Robertson was the perpetrator. Mr Robertson came home extremely drunk. He swore and damaged property. The police attended the home and arrested him. The police recorded that Mr Robertson was under a Department supervision order and contacted the Department.

13. I also observe that there is a police record of the incident between Ms Feeney and her own mother when she was 18 with respect to her then baby daughter B who was six months old and concerns that Ms Feeney’s mother had the ability to care for the baby.

14. Finally there is also a letter from the Department dated 7 September 2016 seeking funding for X’s enrolment at childcare noting that the paternal family was under some pressure.

Submissions by the parties

1. Ms Feeney points to the observations of the family report writer about X’s attachment. This is something the Department had not had regard to as their focus was on risk. It is also something that all three respondents dismiss.  At this interim stage the parties’ evidence cannot be tested. The court does have the benefit of the family report.

2. Ms Feeney proposes that X be returned to her care and Ms Robertson and Mr Robertson have time with X on alternate weekends from 12.00pm on Friday until 4.00pm on Sunday and every Wednesday from 12.00pm until 12.00pm on Thursday. She proposes that Ms C Feeney spend time with X during Ms Robertson and Mr Robertson’s time as agreed amongst them. She seeks an order restraining Ms C Feeney from attending her home. She also seeks an order that Ms Robertson supervise the parents’ time with X and the changeovers occur at McDonald's (omitted).

3. Ms C Feeney’s counsel submits that if the Department has had a more in-depth involvement with the family and the family consultant and that the involvement of the Department paints a picture of risk in Ms Feeney’s home. Ms C Feeney also submits that she has a good relationship with Ms Robertson and is able to see X without there being any tension when she comes into contact with Ms Feeney. She has provided drug screens of which the last two have been clean. She also said that she did not think that therapeutic counselling with Ms Feeney would be possible at this stage. The breakdown of Ms C Feeney’s relationship with Ms Feeney is recent although it is apparent that it has been volatile for some time. I accept that it would be counter-productive at this stage to make an order for therapeutic counselling. Ms C Feeney is concerned about her ability to spend time with X if X is returned to Ms Feeney’s care.

4. Mr Robertson’s counsel submits that the attachment and the nature of X’s relationship with Ms Feeney is just one factor, that the risk presented by Ms Feeney has been glossed over and that the mental health of all parties is in issue. She draws attention to the reports of Ms Feeney to the Department that she has had difficulty coping and that whilst this was in 2014, Ms Feeney has minimised the risk issues in relation to her.

5. Mr Robertson’s counsel also said that the tension amongst the parties was palpable inside and outside the courtroom.

6. Ms Robertson’s solicitor echoed the submissions made on behalf of the parents. She also pointed out that Ms Robertson is in stable accommodation and is willing to work with both parents and foster and encourage their relationship with X. Both grandparents want the parents to eventually be in a position to primarily care for X.

7. The ICL’s position is that there should not be an interim change of residence but that Ms Feeney’s time should not be reduced. The ICL sought photographs of both grandparents’ homes. Photographs of Ms Robertson’s home were tendered and show a home appropriately set up for X. Ms Feeney did not bring printouts of photographs of her home but did have photographs on her phone which counsel for the ICL inspected. The ICL submitted that those photographs also showed appropriate accommodation and on that basis, he supported an increase in time for Ms Feeney. He also referred to the ICL’s requests for drug screens none of which the father has complied with. He submitted that there is no status quo for this child given how much X has been moved between households and spent time with various adults. He said there are significant concerns with respect to Ms Feeney’s mental health and that the Department has had significant involvement with both families over many years.

Application of legal principles to the circumstances of this case

1. As this is an interim hearing the conflicting evidence of the parties cannot be tested. Whilst it is not possible to make findings with respect to the allegations of risk they also cannot be ignored.[1]

   [1] See Redmond & Redmond [2014] FamCAFC 155 at [21] and [22].

2. X’s best interests are the paramount consideration. I am mindful of s.60CC(2)(b). There are risk issues in this case which have been outlined earlier in this judgment. Therefore s.60CC(2A) applies.

3. There are concerning issues with respect to all parties in these proceedings and the issue of risk will remain a live issue regardless of the interim orders that I make. The Department has chosen to cease its involvement with the family at this time. This is one factor that supports the view that this matter should not be fast tracked to a final hearing.

4. In the course of the discussion in this judgment various s.60CC(3) factors have been touched on and do not need to be repeated. X is too young to express a view. She is vulnerable and completely dependent on the adults around her.

5. Both parents need to demonstrate a commitment to gaining the skills they need to be good parents to X. They have not always received good role modelling from their own parents in this regard and they are very young.  They have not yet demonstrated that they understand the responsibilities of parenthood and do not yet have the capacity to provide for X’s needs without significant assistance.

6. Ms Feeney and the ICL support an order that Ms Robertson supervise the parents’ time. That order was made on 25 November 2016 and will remain in place. However I observe that given that the father lives with Ms Robertson it is somewhat impracticable that she could supervise his time in the strict sense given that supervision requires a supervisor to be present in the room at all times and within earshot of a child.  I do think it needs to be emphasised to Ms Robertson that she, and not her son, must parent X at this time. She must not leave X alone with Mr Robertson or Ms C Feeney. She must be particularly mindful of this with respect to Mr Robertson as he is living with her.

Future directions

1. In reviewing the subpoenaed material that was tendered during the hearing I am of the view that it is appropriate to order that both parents attend drug and alcohol services which is one of the recommendations in the family report. It is somewhat positive with respect to Ms C Feeney that she positively engaged with the maternal health care nurse and services that she was provided by the Department.

2. As expressed during the hearing, I continue to have real concerns about all of the respondent’s attitudes towards Ms Feeney and the complete dismissal of X’s attachment to Ms Feeney and the care that Ms Feeney has provided to X. The material from the Department indicates that X is meeting all of her milestones and she is doing well. That is in part due to Ms Feeney.

3. Mr Robertson’s behaviour as referred to in the subpoenaed notes and elsewhere is of real concern to me as is his attitude towards Ms Feeney and his attitude with respect to drug tests.

4. The issues outlined by the Department in the subpoenaed notes are concerning and given that X has been in Ms Robertson’s care since August, with some disquiet, I find it is in X’s best interests to remain in Ms Robertson’s care. However in light of X’s significant attachment to Ms Feeney I also find that it is in X’s best interests that she have more extensive time, including overnight time with Ms Feeney.

5. One of the advantages of X remaining in Ms Robertson’s care is the fact that she is in a far better position to facilitate Ms C Feeney and Mr Robertson’s relationship with X.

6. The respondents and the ICL estimate that the final hearing of this matter will take five days. Depending on the issues remaining in dispute at the time of the hearing and given the number of parties at the bar table, in my view that estimate is realistic and perhaps conservative.  The Court cannot easily accommodate a hearing of that length given its workload and other cases needing trials. In this circumstance it is appropriate that the matter be transferred to the Family Court of Australia.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  20 December 2016