Gwynne & Campos
[2021] FCCA 1357
•28 MAY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Gwynne & Campos [2021] FCCA 1357
File number(s): PAC 2660 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 28 May 2021 Catchwords: FAMILY LAW – interim parenting – recovery order sought by the Mother against the Maternal Grandmother – best interests of the child – Orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69ZL Cases cited: Banks & Banks [2015] FamCAFC 36
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Number of paragraphs: 42 Date of last submission/s: 27 May 2021 Date of hearing: 27 May 2021 Place: Parramatta Solicitor for the Applicant: Mr Morrison Solicitor for the Respondent Ms Howell ORDERS
PAC 2660 of 2021 BETWEEN: MS GWYNNE
ApplicantAND: MS CAMPOS
First RespondentMR MORTON
Second Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
28 MAY 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The maternal grandmother shall cause the child, X born in 2017, to be returned to the Mother’s primary care today, 28 May 2021, at 7 pm in the foyer of the Suburb B Police Station.
2.Should the maternal grandmother fail to comply with the above Order, then the Court makes the Mother’s proposed interim Orders 5, 6 and 7 set out in her Initiating Application filed 19 May 2021.
3.The child shall live with the Mother.
4.Without admissions, the Mother shall not perform or exhibit any form of sexualised behaviour by herself in the presence of the child.
5.The child shall spend time with the maternal grandmother in accordance with any agreement reached between the Mother and the maternal grandmother, such agreement to be evidenced in writing, either through text message or email.
6.The Court appoints an independent children’s lawyer to represent the child. Leave to the parties and ICL to issue more than five subpoena for production of documents.
7.The proceedings are listed for mention 4 August 2021 9.30 am. The ICL is requested to attend this mention.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Gwynne & Campos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
These are short form reasons pursuant to s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) in relation to the Court’s determination of an urgent recovery order application made by the Mother in relation to the child, X born in 2017. The respondent to the application is the maternal grandmother and who has resisted the making of the recovery order sought by the Mother.
The Mother relied upon her Initiating Application filed 19 May 2021, and her Affidavits filed 18 May and 26 May 2021.
The maternal grandmother relied upon her Affidavit filed 27 May 2021.
The maternal grandmother is aged 49 years.
The Mother is aged about 30 years.
There is a significant suggestion on the material before the Court that the Mother is the primary carer of the child. The maternal grandmother has retained the child since 2 May 2021. The material before the Court suggests that the child will benefit from the continuance of her meaningful relationship with the Mother.
The maternal grandmother alleges that the Mother has an intellectual disability. This is denied by the Mother. The examples of such alleged intellectual disability provided by the maternal grandmother are not necessarily suggestive of an intellectual disability.
The maternal grandmother alleges that from about October 2020 the Mother moved in to live with her and they lived together until February 2021. At this latter time the Mother got her own house two blocks away.
The maternal grandmother alleges that she has assisted the Mother with the care of the child.
The maternal grandmother alleges that for the last five to six months it has been usual for the child to spend Thursday night to Sunday at her residence while the Mother goes out socialising.
The maternal grandmother took the child to the Region C Hospital on 2 May 2021 as a result of the child experiencing vaginal discharge and rash.
The maternal grandmother refers to a letter dated 25 May 2021 from a domestic violence specialist worker from DV Region C. The complete three-page letter is annexed to the Mother’s Affidavit filed 26 May 2021.
The above letter states, inter alia, that the maternal grandmother is a client of DV Region C and has been supported by the service since June 2019. The letter refers to the maternal grandmother expressing certain concerns in relation to the Mother’s care of the child. The letter refers to the author of the letter speaking to the child on 28 April 2021 and the child allegedly making certain statements to her in relation to the Mother. Although it is not totally clear, certain of the alleged statements by the child to the author of the letter are possibly suggestive of the Mother masturbating in the presence of the child.
The author of the above letter states that, “A report was made to DCJ reporting these alleged concerns of the child in relation to the Mother”. The Court observes that there is no material before the Court suggesting that DCJ have taken action to remove the child from the Mother’s care, albeit that the letter refers to an alleged statement by an officer of DCJ to the author of the letter that they were closing their case as the Mother had allegedly informed them that she did not have any concerns for the child while she was with the maternal grandmother.
The above letter alleges that the child told the author of the letter on 25 May 2021 that she was, inter alia, scared that the Mother would not allow her to see the maternal grandmother if she was taken away from the maternal grandmother.
The above letter alleges that the maternal grandmother stated that she wants the Mother to get help for her seizures and receives parenting education. The Mother, the Court observes, in her Affidavit filed 18 May 2021, alleges that she does suffer from epilepsy but which is managed by medication and regular consultations with her neurologist and she names that neurologist.
The maternal grandmother alleges that the Mother lives about two blocks away from her.
The Mother alleges that over time the parties came to an arrangement whereby the child would spend weekends with the maternal grandmother at her home at Suburb B.
The Mother alleges that as a child she was removed from the maternal grandmother’s care by the DCS.
The Mother alleges that after the maternal grandmother retained the child on 2 May 2021 she had the police attend the home of the maternal grandmother but the police refused to remove the child because she was so visibly emotionally upset.
The Mother alleges that in 2017, shortly after the child’s birth, she cut the maternal grandmother out of their lives because, allegedly, the maternal grandmother would threaten to kidnap the child and the Mother would never see her again. The Mother, in October 2020, alleges she invited the maternal grandmother back into their lives. The Court observes that there is no significant material before the Court suggesting that between the date of the child’s birth and October 2020 the child suffered significant neglect in the primary care of the Mother. There is a discharge summary from the Region C Hospital dated 13 May 2019 relating to the child who had presented with vomiting and constipation. The contents of the summary appear to be unremarkable and refer to the child being admitted and discharged on the same day after she had responded well to a trial of fluids with no further vomiting and no diarrhoea.
The Mother alleges that since about January 2021 the maternal grandmother has been more and more controlling and manipulative of the child and critical of her parenting style.
The Mother alleges that since January 2021 the maternal grandmother has been making increasing allegations that the Mother is not looking after the child properly and not taking her to the doctor, which allegations the Mother denies.
The Mother alleges that from May 2019 to October 2020 she and the child lived at Suburb D and the child attended a day-care centre there four days a week. The Court observes that there is no material before it relating to adverse observations of the child whilst at the day-care centre.
The Mother alleges that despite the recommendations contained in the discharge plan of the Region C Hospital of 2 May 2021 relating to the child being followed up with a GP appointment, following her diagnosis of, inter alia, a vaginal rash, the maternal grandmother did not seek medical help.
The Mother denies performing sexualised action in front of the child. Indeed, to the contrary, the Mother alleges that on 26 April 2021, when the child was in the bath of the Mother’s residence, the maternal grandmother arrived and the child stopped playing with her toys and started touching her genitals.
The maternal grandmother informed the Court that the child attends day care on Tuesday and Thursday.
The relevant principles in relation to parenting proceedings including interim proceedings are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101 the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence. And in this regard the Court refers to paragraphs 120, 122 and 123 of the decision in Marvel & Marvel.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36 (“Banks”) especially at paragraphs 46 to 52. In that decision the Full Court stated, inter alia, that (at paragraph [49]):
It is also important to stress here that the requirements to “consider” each factor (under s 60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
Further, it stated at paragraph [50]:
When it is obvious that the findings made as to some of the section 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.
Section 60B of the said Act sets out the objects of Part 7 of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: Section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests the Court must consider the matters set out in subsections (2) and (3), and in this regard the Court refers to its above discussion of the decision in Banks& Banks.
The maternal grandmother submitted that the Mother is unable to ascertain the child’s needs (and in this regard, refers to the need for the maternal grandmother to take the child to the hospital on 2 May 2021 in relation to her vaginal discharge and rash); the Mother is performing sexualised behaviours in front of the child; and the Mother takes the child to a pub.
In the view of the Court, there will be no unacceptable risk of harm posed to the child in being returned to the Mother’s primary care pursuant to the proposed recovery order sought by the Mother. In terms of alleged neglect of the child by the Mother, the material before the Court, including hospital-related material in relation to the child, does not significantly suggest that this child has been subject to significant neglect whilst in the Mother’s primary care over a lengthy period of time since the child’s birth. The hospital documentation relating to brief day admissions of the child are unremarkable, referring to a vaginal rash and discharge and vomiting and constipation. The hospital documentation contains no suggestion that the child is experiencing significant neglect at the instance of the Mother.
As to the suggestion that the Mother might be carrying out sexualised behaviour in front of the child, which the Mother denies, acting cautiously and conservatively, the Court proposes to make an interim protective order, without admissions by the Mother, that the Mother does not perform or exhibit any form of sexualised behaviour by herself in the presence of the child.
The Mother alleges that the maternal grandmother is manipulating the child against the Mother and that such alleged manipulation is consistent with the child on occasion expressing reluctance to return into the Mother’s primary care after having spent time with the maternal grandmother. The Court has a concern that it is quite possible that the child has been subjected to such alleged manipulative behaviour at the instance of the maternal grandmother. Such concern arises because:
(a)The material before the Court relating to alleged neglect by the Mother is not of particular significance;
(b)There is no material before the Court to suggest that the Mother is mistreating the child through, for example, inappropriate physical discipline;
(c)The Mother alleges that the maternal grandmother has, for a not insignificant period of time, been unreasonably criticising the Mother’s parenting of the child;
(d)The Mother alleges that three times while she was growing up and once while she was pregnant with the child the maternal grandmother was admitted as an inpatient to a mental health unit at the Region C Hospital;
(e)The Mother alleges that when she was growing up she remembers many occasions when the maternal grandmother was working as a prostitute and that she would have sex in the home with the bedroom door open while her Mother and her brothers were there;
(f)The Mother alleges that as a child she was sexually abused by the maternal grandmother’s ex-partner.
(g)And the Mother alleges that she was never protected from such alleged sexual abuse, and that she was removed from the maternal grandmother’s care by DCS.
The Mother submitted that should the child be returned to her primary care the child may well miss spending time with the maternal grandmother. The Court proposes to make an interim Order, in conjunction with the Court’s proposed recovery order in favour of the Mother, that the child spend time with the maternal grandmother in accordance with any agreement reached between the Mother and the maternal grandmother. Such agreement to be evidenced in writing either through text message or email.
The Court proposes to appoint an Independent Children’s Lawyer and bring this matter back for further consideration on 4 August 2021 at 9.30 am, particularly in relation to the child possibly spending some regular time with the maternal grandmother if this does not occur in the interim.
Evaluating the above discussed relevant considerations under s 60CC of the Act, it will be in the best interests of the child to make the following interim parenting orders and the Court make such Orders:
1.The maternal grandmother shall cause the child, X born in 2017, to be returned to the Mother’s primary care today, 28 May 2021, at 7 pm in the foyer of the Suburb B Police Station.
2.Should the maternal grandmother fail to comply with the above order, then the Court makes the Mother’s proposed interim orders 5, 6 and 7 set out in her Initiating Application filed 19 May 2021.
3.The child shall live with the Mother.
4.Without admissions, the Mother shall not perform or exhibit any form of sexualised behaviour by herself in the presence of the child.
5.The child shall spend time with the maternal grandmother in accordance with any agreement reached between the Mother and the maternal grandmother, such agreement to be evidenced in writing, either through text message or email.
6.The Court appoints an independent children’s lawyer to represent the child. Leave to the parties and ICL to issue more than five subpoena for production of documents.
7.The proceedings are listed for mention 4 August 2021 9.30 am. The ICL is requested to attend this mention.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 17 June 2021
Key Legal Topics
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Family Law
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Equity & Trusts
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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