Geddes & Quentin
[2023] FedCFamC1F 198
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Geddes & Quentin [2023] FedCFamC1F 198
File number(s): TVC 178 of 2016 Judgment of: BAUMANN J Date of judgment: 24 March 2023 Catchwords: FAMILY LAW – PARENTING – Interim – With whom a child lives –Variation – Best interest of child – Child’s views – Where the child has undergone two changes of residence since proceedings in this Court have commenced Legislation: Commonwealth Crimes Act 1914 (Cth) s 41(1)
Family Law Act 1975 (Cth) s 62G
Cases cited: Banks & Banks [2015] FamCAFC 36 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 15 February 2023 Place: Townsville Solicitor for the Applicant: Litigant in person Solicitor for the First Respondent: Stevenson & McNamara Lawyers Solicitor for the Second Respondent: Litigant in person (did not participate) Solicitor for the Independent Children’s Lawyer: Ms Chan, Legal Aid Queensland ORDERS
TVC 178 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GEDDES
Applicant
AND: MR QUENTIN
First Respondent
MS B GEDDES
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
24 MARCH 2023
THE COURT ORDERS:
1.That the maternal grandmother’s Application in a Proceeding filed 18 May 2022 be dismissed.
2.That these proceedings be adjourned for Case Management Hearing at 9.30am on 19 May 2023 in the Federal Circuit and Family Court of Australia (Division 1) at .
3.That the Independent Children’s Lawyer have leave to appear by telephone on 19 May 2023 by using the Microsoft Teams conferencing system as follows:
(a)They shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 9.25am on 19 May 2023; or
(b)They shall each telephone … by 9.25am on 19 May 2023;
(c)They shall each then enter the pass code …#; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.
4.That the Independent Children’s Lawyer have liberty to apply if the maternal grandmother’s criminal charges are finalised.
5.That the father’s costs of the Interim Hearing of 15 February 2023 be reserved.
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 the pseudonym Geddes & Quentin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 29 May 2018, in the absence of the maternal grandmother Ms Geddes (now 61 years), Judge Middleton made parenting Orders which came into effect upon the cessation of child protection orders relating to the child X, born 2010 (now aged 11 years).
Those Orders, which provided eventually for a change of residence from the maternal grandmother to the father Mr Quentin (now aged 36 years) have not been disturbed since they were made nearly 5 years ago, although it seems the maternal grandmother had at times sought to do so.
The biological mother Ms B Geddes (ages 31 years), sadly is not a consistent and stable person in X’s life and when the most recent Application by the maternal grandmother was listed for hearing before me on 14 February 2023, the Court was informed the mother had recently been incarcerated for charges not the subject of any clarification before me.
The maternal grandmother’s Application was filed on 18 May 2022, and having been prepared by the maternal grandmother without legal representation describes the orders she seeks in clear and simple forms as follows:
1.That the Orders be reversed placing the child [X] into my care;
2.That the child live with me;
3.That I [Ms Geddes] have parent [sic] responsibility
4.That the father has supervised access on request of the child on agreement of the child
The Application is opposed by the father and by Ms Chan, the Independent Children’s Lawyer (“ICL”).
For the reasons which follow, it is not in the best interests of the child X to live with the maternal grandmother or have contact with her at this time.
SHORT BACKGROUND
X has been the subject of litigation between the parents and the maternal grandmother since the maternal grandmother commenced proceedings in February 2016; with X ordered to live with the maternal grandmother by Judge Coker initially on 2 March 2016 – when X was only five years of age.
The history reveals both the mother and father were not then an intact couple, and were alleged drug users at the time. By January 2018, the maternal grandmother moved the Court to suspend all time between X and his parents and sought orders for X to spend time supervised at a local contact centre with them.
The maternal grandmother holds a belief that the father had sexually abused X and in early 2018, for a short period, she took X interstate to “protect him”. The father brought recovery proceedings on 16 May 2018. The police became involved and recovered the child – the maternal grandmother claiming at a time she was intending to return to City J with the child.
The maternal grandmother was charged under State law, with those charges having been withdrawn, and the maternal grandmother now faces charges under the Commonwealth Crimes Act 1914 (Cth).
The maternal grandmother acts for herself in those serious criminal charges; is of the strong belief she will be acquitted, and on more than one occasion since the matter first came into my docket in November 2019 – has said that the parenting trial should not take place until the criminal charges are dealt with by the State Courts.
Although the proceedings have been listed for a number of procedural events since November 2019 before Registrars, on 9 March 2022, a Senior Judicial Registrar ordered the preparation of a family report under s 62G of the Family Law Act 1975 Cth (“the Act”) and interviews took place on 20 April 2022 – with the a report being published on 13 June 2022 by Court Child Expert Ms K. It seems, to some degree, the interviews were a catalyst for the maternal grandmother’s current Application, which was filed before the family report was even released.
PRINCIPLES
I tried to explain to the maternal grandmother during the interim hearing, conducted in person in City J (with the ICL appearing electronically from Brisbane), that the Court in this case is confronted with a number of risk factors alleged by the parties, not the least being:
(a)the circumstances leading to the charges the maternal grandmother faces;
(b)the capacity of the mother to engaged in X’s life; and
(c)whether the father has, as the maternal grandmother asserts, sexually abused X or is otherwise an unacceptable risk demonstrated by his past issues of alcohol use, and more recent criminal charges.
As was identified by the Full Court in Banks & Banks [2015] FamCAFC 36, at an interim hearing, it is not necessary to deal with all the s 60CC(2) and 60CC(3) factors, but attention should be given to the most relevant ones.
DISCUSSION ABOUT RISK FACTORS
Having identified the major risk factors earlier, I make the following observations:
(a)It is not likely, when making his Order in May 2018, that Judge Middleton would have anticipated the criminal proceedings involving the maternal grandmother taking this long to resolve. Certainly delays during Covid-19 have had an impact. I deal later in these Reasons as to whether or not a hearing should be listed even if the criminal charges against the maternal grandmother are not resolved;
(b)The mother has chosen not to engage in the family law proceedings consistently. She was assessed by psychiatrist Dr C, and his report filed 7 January 2022 speaks for itself. The mother has a number of challenges, however it does not seem she spends much time with X or contacts him regularly, although he expresses a wish to see his mother more often;
(c)If the allegations against the father, as claimed by the maternal grandmother, that X many years ago was sexually abused by the father are still maintained by the maternal grandmother (as I perceive they are), the evidence currently is that all relevant authorities at the time made investigations as they were required by law to do, but did not substantiate any abuse. The maternal grandmother asserts that this is because the authorities are corrupt or have been influenced to not investigate the allegations carefully or are somehow not taking her allegations seriously;
(d)The maternal grandmother tendered for these interim proceedings a number of subpoenaed records relating to the father’s past criminal history and attendance at hospitals such as L Hospital and M Health Service. I estimate over 1000 pages of records were tendered. As necessary, I have viewed those records which reveal that, inter alia:
(i)the medical reports in late 2016 (L Hospital) and between 2008 and 2013 (M Health Service) generally pre-date the Orders of May 2018, however it was clear that the father engaged with a social worker named Ms N (attached to the P Hospital) between late 2017 to late 2019, about parenting issues. She provided reports in 2018, before a report in late 2019 which incorporated the following opinion:
Since [X] was returned to his [the father] care, I visit them at their home each fortnight and have seen the huge and positive growth of their interaction and relationship and the amazing improvement in [X’s] scholastic abilities. [Mr Quentin] appears to be a very firm but fair father and [X] responds well to this consistency.
(ii)As confirmed by Exhibit 1, tendered by the ICL, the father had come to the attention of police before mid-2018 for a variety of offences, including drug convictions in 2007, 2010 and 2016. After mid-2018 he plead guilty to some offences, which the father has given evidence about in his recent affidavits – the last offence being in early 2022. He was fined. He also had committed an offence, subsequent to these offences. Certainly there were some more and further earlier domestic violence incidents between the mother and father but nothing recently. Whilst it is concerning that the father did not provide evidence of these events prior to them being raised by the maternal grandmother, he has now done so; and
(iii)It is clear that most of the recent difficulties with the law are at a time when the father was under the influence of excessive alcohol – something he now admits to. The father says, although at this time there is no actual corroboration, that since early 2022 he has been attending regular meetings of Alcoholics Anonymous and that he is no longer drinking to excess. Understandably, the maternal grandmother does not accept this is the case, but offers additional evidence to support her current concerns.
OTHER RELEVANT CONCERNS
The child X was interviewed by the Court Child Expert. His interview is contained at paragraphs 68 to 77 of the family report and includes comments like:
(a)he feels supported by the father and his teachers and has made many friends at his high school;
(b)he says the father and maternal grandmother used to argue, which he heard and saw and the maternal grandmother said unkind things about the father;
(c)he is “adamant that he would not want to have a relationship with his grandmother in the future” and “experienced feeling confused with some of her past behaviours”. He was assessed as having a “concrete view that if he were to live with his grandmother, she would not allow him to spend time” with his father. He recalled feeling “unsafe when his grandmother tried to take him to [Country Q], and then when she took him to New South Wales”;
(d)he explained in relation to the maternal grandmother that “there is no way I’m going back. I would get angry and go off” and he refused to consider phone communication and he said “I want things to stay the way they are”.
DISCUSSION
The maternal grandmother contends that no weight should be given to the wishes and feelings expressed by X to the Court Child Expert and believes the child is being influenced, coached or coerced by the father. She denies there was any intention for the child to be taken to Country Q.
The maternal grandmother did not accept that the child would suffer some distress by changing schools – as would be a consequence of her Application for X to live with her in City J. This view strong, the father contends and I agree, seems not to take into account the supportive remarks of the Principal of R School in his letter of 1 December 2022 and the school reports also annexed to the father’s affidavit affirmed 6 December 2022.
The Court has considered, if residence was not changed, whether it was in the best interests of X to spend time or communicate with the maternal grandmother, including supervised time. The father and the ICL oppose such orders on an interim basis. They submit that the maternal grandmother would be a risk of again removing the child if time were unsupervised and further, even if supervised, there is a strong possibility the maternal grandmother would be unable to shield the child from her strong negative views of the father. They also rely upon the statements made by the child to the Expert.
CONCLUSION
As the family report records at paragraphs 10 and 11, there is no doubt that following the parents’ separation, X was in the primary care of the maternal grandmother for over four years before moving to the father’s primary care, nearly five years ago.
I accept that the maternal grandmother continues to be distressed by the reality that she has spent no time with X for five years, and does not accept the child’s expressed feelings of comfort in the father’s care or that he is not at risk in the father’s care.
However, it would be a significant change for X to move his residence to the maternal grandmother both against his expressed wishes and involving, as it would, a change of secondary school. The stability in his life which, on the untested evidence, appears to exist, should not be disturbed unless, and until, the serious criminal charges against the maternal grandmother are resolved and the weight to be given to the child’s wishes and assessed risks from the father’s care are properly tested.
As a result, I am satisfied that at this time it is in X’s best interests to maintain the current care arrangements and the maternal grandmother’s Application must be dismissed. I accept the submissions of the father’s solicitor and the ICL, that unsupervised and even supervised time between X and the maternal grandmother at this time creates both practical and psychological challenges for X and cannot be supported. Where he has not communicated electronically with the maternal grandmother now for some time, recommencing any such time would only be of benefit to him if he requested it occur and was part of an overall suite of orders likely to lead to a further development or reconciliation of the currently fractured relationship X has with the maternal grandmother.
Finally, whilst I well understand the ICL and the father would seek to finalise the current proceedings – the changes that the maternal grandmother faces are at the core of the changes that caused the order in May 2018 to be made. The maternal grandmother’s liberty is at risk – although she expresses confidence that no final in a criminal court will take place unless there is corruption in the system.
It is impractical, in my assessment, for a trial to be listed until the criminal charges against the maternal grandmother are finalised. In these circumstances, the Order by the Senior Judicial Registrar for a family report was premature. The benefit that might have been identified by the report, was to demonstrate to the maternal grandmother that X is doing well and is settled – but the maternal grandmother does not accept that to be the case.
I will adjourn the proceedings to the November sittings of the Court in City J for Case Management Hearing, but with the ICL to have leave to have the proceedings re-listed before me if the criminal charges against the maternal grandmother are finalised.
The father’s costs of the Interim Hearing shall be reserved.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 24 March 2023
0