Finnin & Finnin

[2022] FedCFamC1F 882

Federal Circuit and Family Court of Australia

(DIVISION 1)

Finnin & Finnin [2022] FedCFamC1F 882

File number(s):	SYC 2492 of 2018
Judgment of:	BAUMANN J
Date of judgment:	20 October 2022
Catchwords:	FAMILY LAW – PARENTING – Final parenting orders made for the children to live with the Applicant and spend time with the Respondent as agreed
Legislation:	Family Law Act 1975 (Cth) s 60CC
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of hearing:	20 October 2022
Place:	Brisbane
Counsel for the Applicant:	Ms Carmody
Solicitor for the Applicant:	Legal Aid New South Wales
Solicitor for the Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Hodges
Solicitor for the Independent Children's Lawyer:	Barbara Fox Solicitors

ORDERS

SYC 2492 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS B FINNIN

Applicant

AND:

MS C FINNIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	BAUMANN J
DATE OF ORDER:	20 OCTOBER 2022

THE COURT ORDERS:

1.That all previous parenting Orders be discharged.

2.That the children, X born 2014, Y born 2017 and Z born 2019 (“the children”) live with the Applicant mother.

3.That the mother have sole parental responsibility for the children’s long-term welfare, care and development.

4.That the children spend time with and communicate with the Respondent (“Ms C Finnin”) at all times as agreed between the mother and Ms C Finnin by text message.

5.That the mother to continue to engage with D Health Services and her treating medical and allied health professionals as and when directed to do so.

6.That the mother and Ms C Finnin keep each other informed of their current residential address and contact telephone numbers and advise of any change within forty eight (48) hours of such change.

7.That the mother is to SMS or text Ms C Finnin as soon as reasonably practicable should any of the children require emergency medical treatment.

8.That the mother continue to have the children remain linked in with D Health Services.

9.That neither party denigrate the other to or in the presence or hearing of the children.

10.That the Independent Children’s Lawyer be discharged.

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).

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 by this Court under a pseudonym Finnin & Finnin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

BAUMANN J:

1. When the Applicant mother in this case, Ms B Finnin, a proud Aboriginal woman, was born in 1991, she came into the care of the Respondent in these proceedings, Ms C Finnin (who I will call the grandmother).  The role as a primary carer of the mother as a baby in the difficult circumstances at that time were confirmed by an Order of the Family Court of Australia (as it then was) made in July 1991 by a Deputy Registrar simply stating that the Applicant, Ms C Finnin, have custody of the child, Ms B Finnin.  From that point and for many years thereafter I am satisfied on the evidence doing the best she could the grandmother raised the mother.  I do not say it was easy.  The grandmother appears herself to have been at that stage effectively a single parent.  There was clearly differences in culture and background. 

2. Issues appeared to have become more conflictual between these people as the mother approached and passed adolescence.  The mother, it must be said, has not always shown good judgment in choosing the male persons in her life.  She has, as all the evidence sets out, at times found it difficult to cope with the stresses of her life and has turned to alcohol and illicit substances to get her through her life.  Any parent who has to deal with a child, whether their biological child or otherwise, who is affected by such things knows it is a traumatic journey when someone you love is affected by things that they can access as a young adult, and can so easily effect their life.  The evidence suggests that there were many occasions of conflict between the mother and the grandmother as the mother got older and there is no useful purpose in trying to determine who was right, who was wrong and who should be blamed for this past events.

3. Frankly, however, the most important statement of the mother’s appreciation, though probably unstated, of the role of the grandmother was evidenced by what occurred after X was born in 2014.  The mother was 23 years old at the time.  The father is Mr E (who was involved in these proceedings), and he is the biological father of a subsequent child, Z. The mother’s relationships with Mr E was in all respects destructive upon her, involved family violence of which the mother was a victim, and I am sure at times caused her to engage in other antisocial and difficult adult behaviour.  The grandmother became the primary carer of X basically from her birth.  No greater expression of love and support for a child can genuinely be identified than what the grandmother did at the time.  She was at the time of X’s birth seventy two years of age. 

4. I do not need to make findings of all the events and conflict that existed thereafter between the mother and the grandmother, but there are many.  I am prepared to accept that even though the parenting plan entered into in late 2014 provided for X to live with the grandmother, that was not something that the mother felt terribly comfortable with accepting.  It would not be surprising that a young mother would want to be with her child, especially in circumstances where she was getting, it seems, little or no support from the biological father.  X’s life changed and will forever have changed by the birth of her sister, Y, in 2017.  Y’s father is Mr F.  He was, also, earlier in these proceedings, an active participant, but he provides very little, if any, support to the mother and his involvement in the proceedings ended, as were Mr E’s, by Orders made 23 November 2021 and, subsequently, in respect of Mr E on 21 January 2022.  I do not know with any certainty (as the evidence has not been required to be tested) why things went so terribly wrong after Y’s birth between the parties, but they did. 

5. In early 2018 the grandmother felt it was appropriate to retain Y in her care, the child being some months old at this stage.  The mother commenced proceedings in the Federal Circuit Court, as it then was known, in April 2018.  The commencement of those proceedings was the first, it seems, intervention by a Court and a very public statement of their conflict only further exacerbated by, I infer, on the complaint of the mother or people who were supporting the mother to the police that caused the grandmother to be charged with serious criminal offences.

6. The best evidence of those charges can be found in the Independent Children’s Lawyer’s case outline filed 17 October 2022 which said that in mid-2018, the grandmother was charged with very serious indictable offences that changed the whole nature of the relationship between the mother and the grandmother.  It bears confirmation in these Reasons that none of those charges ever resulted in a conviction against the grandmother.  It appears that they were all resolved one way or the other shortly before mid-2021 when the grandmother, no doubt stung by the results of the criminal proceedings, filed an Amended Response on 25 August 2021.

7. Since the proceeding were filed in the Court, many judicial officers had tried to assist this family on moving forward.  As I say, after the birth of Y, the ongoing relationship between the mother and a former partner, Mr E, resulted in the conception of a child called Z, who was born in 2019.  Simply, from that date, the mother, without really, on my impression, support other than from the grandmother, which was problematic, and also well-meaning community groups (but none from either of the fathers’) became a single mother with a somewhat difficult upbringing who was then the primary carer of three children under the age of five years.  Any reader of this Judgment would not be surprised to hear me say that such a task for any person is a significant undertaking. 

8. Since the matter was transferred to this Court by the Federal Circuit Court (as it then was), I have tried to manage the matter since it first came into my docket, but here have been many difficulties.  The communication between the grandmother and the person she regards as her daughter has not always been respectful.  At times, I am satisfied on all the evidence the mother has regarded the grandmother as seeking to control her, take over the role as a parent and not be as supportive as she would have hoped she would be towards her.  It seems to me that the grandmother’s perception has generally been that the mother has had difficulties in coping as a single parent; is rejecting of the love and support she has offered, both in the past and now, and at its worst, might have been a risk to the children. 

9. With those dynamics, being able to make orders that were capable of sustaining was always going to be difficult.  Join to that the grandmother has generally been unrepresented and even though the benefit to the Court is clear from the hard work of Ms Fox, the Independent Children’s Lawyer for a long period of time, and the lawyers retained through Legal Aid New South Wales on behalf of the mother.  Nonetheless, the dynamics between the parental figures in the lives of these children have been very problematic.

10. This matter was first scheduled to go to trial in March this year.  By that time, the grandmother, I would like to think in some way influenced by my discussions with her, accepted that the mother should be the primary carer of the children; that the mother should have the legal responsibility for making decisions for the three children, but that, as now, she wished to spend time with the children and maintain an interest in all their lives.  This is particularly so in relation to X, who was in the grandmother’s primary care for the first four years of her life. The grandmother feels the same in relation to the younger children of the mother with whom she has not had the same level of contact, but still sees them as “her grandchildren”. 

11. The trial in March 2022 was aborted, sadly, because the mother failed until on the cusp of the trial to inform the Court of a serious event that occurred in early 2022.  Again, I give credit to the mother ultimately in being honest and candid about a very private event and one which she ought to have known the grandmother would be concerned about – as she was.    She was at a low point of her life at that stage.  Clearly, some of her contact with other people were not helpful to her.  Thankfully, for her and the three children, she obtained fairly significant and immediate psychiatric assistance at the G Health Service in H Region.  The notes of that admission, short though it was, and the treatment offered are before the Court in Exhibit 1 tendered by the Independent Children’s Lawyer today. 

12. This development on the first day of the trial in March necessitated, sadly, the need to obtain an independent Legal Aid-funded psychiatric assessment of the mother.  A well-known and highly regarded consultant psychiatrist, Dr J, did assess the mother and provided a report.  The report of Dr J supported by the mother’s perception of her life is set out in the very detailed notes which is the way Dr J prepares his reports, and concluded that:

    The mother’s prognosis is improved but guarded.

    This is because [Ms B Finnin] has engaged well with counselling since [early] 2022.  Her use of [illicit substances] in recent times is the most disturbing aspect of her behaviour given her life challenges in previous years and given her parenting responsibilities.

    Her account of potential future drug use is a positive point as she stated when asked, [What is the plan for the future?  Do you think you will use these things again at all?]:- 

    “Well, I don’t feel like it at the moment, because I’m, like, on top of the world where I’m at.”

    A positive prognostic point is her account of her current perspective and what she had learnt from her life experiences.  As she stated:-

    “I am very strongly grounded to make a foundation of what I have started off for my kids.  Once I got my kids back, I wanted to make sure that I was capable enough to look after them, that nothing is going to look like we’re going to have to move or the situations with the dads coming around and abusing me or whatever.  Everything like that.  To make sure that my children have the support from a mother who care for them and help them learn throughout their school ages and just have affection.  Like the neighbours, we’re all good with our neighbours as well.”

    Dr J continued by saying that:

    The prognosis will improve if she can examine her personal development, career options, and continue to engage in the post-separation parenting plan which is stable and which is less conflictual.

13. I can recall when I read that assessment by Dr J how comforted I was by the positiveness of the report.  Nothing in the history is detailed in the psychiatric report came as any surprise to me.  I do not know how the unrepresented grandmother viewed the report.  Hopefully she saw it as positive as well, and in that regard the mother has maintained and the orders which the Independent Children’s Lawyer urges me to make confirms that at order 5 the mother:

    5. That the Mother is to continue to engage with [D Health Services] and her treating and medical and allied health professionals as and when directed to do so.

14. That is an order to which the mother agrees. It is a protective environment additional to that offered, in my view, by the grandmother which can only help the mother continue to develop her skills as a parent.  Of course it would have been good if I had not read in the most recent Affidavit of the mother filed 29 September 2022, as she disclosed at paragraph 129, that in or around mid-2022:

    129… I had friends staying with me.  My friends had some [illicit substances] with them and regrettably I joined in and had some with them.  On the day and at the time, the children were at vacation care.  Soon after I took the drugs I realised the mistake I had made and put my safety plan in place. I contacted [Ms K] and made arrangements to go stay with her and have my children come to [Ms K’s] after school.  I then took steps to have the people removed from my house before going back to the house with my children. 

15. The mother further indicated at paragraph 131 that since that incident she had engaged in and attended with a drug and alcohol counsellor weekly through M Support Service, and she provided a letter of support from that organisation.  She says, and I have no evidence to suggest otherwise, that she has not used drugs since that incident.  To be fair, the incident is only three months ago.  All the evidence shows to me that whilst the mother has insight and wants to do better, she is still vulnerable and is at risk of occasionally not complying with her acknowledged best practice as a parent.  I have nothing in the evidence that will suggest to me that she wants her three children to be in any way involved in abusive relationships or to undertake use of illicit substances.  She knows how that has been destructive of many of her ambitions to date, although I give her great credit for the way she has continued to drive through them.  The grandmother and, in fact, in my view and from my experience, some grandmothers might have used the most recent relapse as an opportunity to continue to agitate for more controlling orders relating to the mother. 

16. I accept that the grandmother does feel to some degree as a result of the events of the last four to five years unappreciated, undervalued, unrespected, perhaps even to a large degree disliked by her daughter.  I accept that this is hurtful for any person, but for a lady at the latter end of her life who has, in my view, offered much to this woman, it would have been very hurtful

17. The competing proposals that we had started with today between and effectively, the joint position of the Independent Children’s Lawyer and the mother in relation to the time the grandmother spends with the children was to seek a non-prescriptive order that:

    3.That the children shall spend time with and communicate with the First Respondent as agreed in writing between the Mother and the First Respondent.

    The grandmother’s position which initially was for defined time each alternate weekend and half of holidays and on special occasions, changed this afternoon and has given me a level of comfort where I had little evidence in the parties’ Affidavits. 

18. This evidence arose in a strange way.  The grandmother from the bar table, she having taken the step not to file an Affidavit with any further evidence, although she was entitled to do so, made the statement that she had not spent time with the children since mid-2022.  She says that she misunderstood the question and though that was, “Official time”, which I took it to mean the time prescribed under the Orders I made which have been the effective Orders up until the date that were made in November 2021.

19. Through the careful and sensitive cross-examination of Counsel for the mother, Ms Carmody, and with no doubt the benefit of the mother’s phone and text messages, the grandmother was asked about a number of events, messages and interactions since mid-2022.  The overwhelming impression from those text messages and then the confirming evidence of the grandmother was that the mother does see the grandmother as a supporter; is not too proud on occasions to ask for her assistance and to accept it (on one occasion the grandmother took over chocolates, ham and tomatoes, but bread was not necessary) and has been described I think in an affectionate way by the mother as, “mum”.  There does not seem to be many occasions where the grandmother has not met the call of her daughter as she sees her.  She accepts the pressure her daughter is under.  She understands the mother has no car and, therefore, is limited as to transport and she has tried to help.  Certainly the mother would have been hurt by the text that occurred as set out in Exhibit Y, where in response to the mother telling the grandmother:

    Hey.  I can’t come with you tomorrow.  Work’s called me in tomorrow.

    She responded:

    Well, thanks a lot.  Work comes before family, I guess. 

20. That was an entirely inappropriate and hurtful response by the grandmother.  This is a mother who has to work to provide a better lifestyle for her children.  If that was the only example of the exchanges, perhaps I might have felt nothing had changed and, therefore, I would have no confidence that the order proposed by the Independent Children’s Lawyer and the mother has any prospect of resulting in the children seeing the grandmother regularly.  Thankfully, actions do speak louder than words.  I am satisfied that there have been many, in fact, sometimes more than once a week occasions where this very proud mother has sought the assistance from the grandmother, and notwithstanding the conflict generated over many years of hurt, misunderstandings and poor communication, has responded in a way that we would all like to think if we were a grandparent we had the availability and opportunity to offer. That evidence to me, as Mr Hodges, Counsel for the Independent Children’s Lawyer said, and Ms Carmody confirms, spoke volumes. 

1. In my view, although the grandmother may still have a fear that the mother would not support time, I have confidence she will.  However, that confidence must be based on the grandmother demonstrating in actions and words that she understands what her role is in the life of the children and the mother; that she allows this young mother under enormous pressure to make the mistakes of parenting that all young parents under pressure make; not be highly critical of her, but supportive of the journey that she has had and the journey before her, and I am absolutely satisfied that if that occurs and if the mother does not feel she is being attacked, criticised, reported about, then there is every reason to believe that the order which I propose to make today, which I find to be in the best interests of the children, will result in these children having many happy memories of time with their eighty year old grandmother casually, at important events and just as happy families try to generate often in life. 

2. The grandmother has an order that she cannot enforce by order of the Court, nor should she be thinking that way.  Very much in my view this will depend on the grandmother demonstrating her love and support for the mother, who is now 31 years of age, and has many years of parenting ahead of her.  Hopefully that can be achieved.  These Reasons might be seen by others as a somewhat rambling exposition of the issues in this case, the pathway to the decision I make and the reasons for my decision.  I think careful analysis will find that I have directed myself to the principles under which children under the Family Law Act 1975 (Cth) (“the Act”) are entitled to have the benefit of a meaningful relationship with people significant to them, provided it is safe. The principles that, whereas in this case I have a very capable, in my view, although not perfect loving mother who is doing her best, should not be disrupted from her primary responsibilities by being in conflict with another person who loves her children no less.

3. I have to some degree referred to the primary additional considerations prescribed by section 60CC(2) and (3) of the Act. I am conscious of the need to only deal with such matters as are necessary to distinguish between the competing proposals.

4. I want to thank the lawyers in this case.  It has not been an easy case.  Ms Carmody this morning quite property identified, in a comment that had been previously made to my recollection by both the Independent Children’s Lawyer Ms Fox and her Counsel Mr Hodges, that a trial in this case was not going to be therapeutic or helpful.  Someone wise said once that if you keep looking backwards rather than looking forward, you are more likely to fall over what is in front of you.  These parents, the grandmother and the mother need to stop looking backwards.  They need to look forward to provide these three beautiful children, X, Y and Z, with everything that this great country can offer them.  I acknowledge their Indigenous heritage, something which the family also acknowledges and have every comfort that the mother will as appropriate continue to maintain their cultural connection. 

5. I discharge the Independent Children’s Lawyer with the thanks of the Court and the Orders which appear at the commencement of these Reasons, which are in the best interests of the children.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:

Dated:       17 December 2023