Leonard & Gregory

[2021] FCCA 646

FEDERAL CIRCUIT COURT OF AUSTRALIA

Leonard & Gregory [2021] FCCA 646

File number(s):	DUC 480 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	18 March 2021
Catchwords:	FAMILY LAW – interim parenting – short form reasons – best interest of the child – child live with paternal grandparents – unacceptable risk of harm considerations
Legislation:	Family Law Act 1975 (Cth), s 69ZL
Number of paragraphs:	53
Date of hearing:	18 March 2021
Place:	Dubbo
Appearing for the Applicant:	Ms Keen
Solicitor for the Applicant:	Peacockes Solicitors
Appearing for the First Respondent:	Ms Blackman
Solicitor for the First Respondent:	Legal Aid NSW Dubbo Family Law
Counsel for the Second and Third Respondents:	Ms Dart
Solicitor for the Second and Third Respondents:	McIntosh McPhillamy & Co Legal Services
Appearing for the Independent Children's Lawyer:	Ms McKay
Solicitor for the Independent Children's Lawyer:	Osborne Legal

ORDERS

DUC 480 of 2020

BETWEEN:

MR LEONARD
Applicant

AND:

MS GREGORY
First Respondent

MS SUTTON
Second Respondent

MR B LEONARD
Third Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	18 MARCH 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1.The child X, born 2010 shall live with the Paternal Grandparents.

2.The child shall spend time with the Mother as follows:

(a)Each alternate week from after school or 3pm on Thursday until before school or 9am on the following Tuesday, with such time to commence on 18 March 2021.

(b)In the off week, from after school or 3pm until 6pm on Thursday.

(c)During school holidays:

(i)Following the conclusion of Terms 1, 2 and 3, for the first half of the school holiday periods, with such time to commence at 9am on the first day of the school holiday period and conclude at 1pm on the middle Sunday of the school holiday period.

(d)During the Christmas school holidays:

(i)Following the conclusion of Term 4, for half of the school holiday period with such time to be agreed between the parties and in the absence of agreement the first half in 2021 and each odd numbered year thereafter and the second half in 2022 and each even numbered year thereafter with such time to commence at 9am on the first day of the school holiday period and conclude at 1pm on the middle day of the school holiday period.

3.Notwithstanding any other order, the child shall spend time with the mother as follows:

(a)From 3pm on Christmas Eve 2021 until 3pm on Christmas Day 2021; and

(b)From 9am on Mother’s Day until the commencement of school on the following Monday.

4.Notwithstanding any other order, the child shall spend time with the paternal grandparents as follows:

(a)From 2pm until 6pm on Easter Sunday 2021; and

(b)From 3pm on Christmas Day 2021 until 3pm on Boxing Day 2021.

5.Changeover shall occur at the child's school on school days and on non-school days at Location A on B Street in Town C.

6.The child shall spend time with the father as agreed between the paternal grandparents and the father.

7.By consent, the child shall have frequent, liberal telephone communication with each party when the child is not in their care.

THE COURT FURTHER ORDERS THAT:

8.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.

9.The Family Report to deal with the following matters:

(a)Any views expressed by the child/ren the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.

(b)The nature of the relationships of the child/ren with each of the child/ren’s parents and with significant other persons.

(c)The willingness and ability of each of the child/ren’s parents to facilitate and encourage a close and continuing relationship between the child/ren and the other parent.

(d)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child of any separation from:

(i)either of the parents: or

(ii)any other child, or significant person, with whom the child/ren has/have been living.

(e)The practical difficulty and expense of the child/ren spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child/ren’s right to maintain personal relations and direct contact with both parents on a regular basis.

(f)The capacity of each parent, or another person, to provide for the needs of the child/ren, including emotional and intellectual needs.

(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the child/ren’s parents and any other characteristics of the child/ren that the reporter thinks are relevant.

(h)Each parent’s attitude to the child/ren and to the responsibilities of parenthood.

Any family violence involving the child/ren or a member of the child/ren’s family.

Such other issues as the Family Consultant considers relevant.

10.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.

11.The Family Consultant may inspect the Court file.

12.Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

13.Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

(a)A Children’s Court;

(b)A child protection authority;

(c)A State or Territory Legal Aid Authority; and

(d)A convener of any legal dispute resolution conference.

14.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

15.The matter is to be listed on a date to be advised following release of the Family Report.

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 Leonard & Gregory is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)

JUDGE OBRADOVIC

1. These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) concerning the parenting arrangements for the subject child of these proceedings, X, born on 2010.

2. It is a difficult matter where risks and the assessment of risks are at the forefront of the Court’s mind when determining the issues that need to be determined on an interim basis.

3. At the commencement of today’s hearing the Court made orders by consent which include a number of orders which go to ameliorating the risks that have been identified by the parties in these proceedings.

   Relevant Agreed Facts

4. X is ten years old.  She presently lives with her mother and has done so since late September 2020.

5. From November 2020 X has been spending time with the father and the paternal grandparents in accordance with interim orders, pending today’s interim hearing.

6. Between September 2019 and September 2020 X lived with the father at the paternal grandparent’s home.

7. Separation occurred in September 2019. Prior to separation X was living with both of the parents and at times in the home of the paternal grandparents.

8. It appears from all of the parties’ evidence that the paternal grandparents have always had an involvement in X’s upbringing, although, there is significant disagreement as to the level of that involvement.

9. The agreed facts in this matter are set out in Exhibit 4.

   Competing Proposals

10. After considerable discussion and movement from the parties the competing cases are as follows.

    (a)The father asks for orders that the child live with the paternal grandparents and spend time with the mother and with the father;

    (b)The paternal grandparents ask the court for orders for the child to live with them and to spend time with the mother, and also to spend time with the father;

    (c)The mother asks the Court for orders that the child live with her and that she spend time with the paternal grandparents and the father; and

    (d)The Independent Children’s Lawyers asks the Court to make orders for the child to live with the mother and to spend significant and substantial time with the paternal grandparents and, by way of agreement, between the paternal grandparents and with the father.

    Court’s Consideration and Determination

11. There is no evidence in these proceedings of the child’s primary attachment, although there is evidence that she has strong bonds with all of the parties. The Court is satisfied on the evidence as it stands that wherever X lives she will be involved in her Aboriginal culture.

    Risks to X whilst in the father’s care

12. The risks which have been identified if X was either to live with the father or to spend time with the father are as follows;

    (a)Alleged possible continued drug use by the father;

    (b)Past drug use by the father both admitted and alleged; and

    (c)Safety of the child through inappropriate use and access to social media, pornography, drug paraphernalia and drug use.

13. Those risks are ameliorated by the orders which the Court made earlier today by consent and would further likely be ameliorated by an order that the child live with either the paternal grandparents or the mother, in the context of the earlier orders made today, noting that the Court has ordered that the paternal grandparents will ensure that the father does not reside in their house and that there are restraints in relation to drug use both by the mother and the father.

    Risks to X whilst in the paternal grandparents’ care

14. The risks which are associated with the paternal grandparents, that is, X either living or spending time with the paternal grandparents are as follows:

    (a)There is possible undermining of the child’s relationship with the mother, through and including possible systems abuse by the paternal grandparents, whether that be by way of welfare checks, reports of harm etcetera.

    (b)There is limited evidence in the proceedings of the paternal grandparent’s capacity to foster a relationship between the child and her mother; and

    (c)There is significant concerns about the paternal grandparents’ capacity to act protectively towards X, noting the father’s apparent or alleged drug use whilst he was living with them.

15. These risks are ameliorated by the orders made earlier today, that the father not reside with the paternal grandparents, that there be ongoing drug testing, and for an order that if the child was to live with the paternal grandparents that there be significant and substantial time between the child and the mother.

    Risks to X whilst in the mother’s care

16. The risks which have been identified in the mother’s household, whether X lives with her, or spends time with her, are as follows:

    (a)The mother’s capacity to be protective towards X;

    (b)The mother’s attitude towards not only the father, but also towards the paternal grandparents.

    Mother’s Capacity to be protective towards X: allegations

17. The capacity to act protectively towards X are concerning, not only as a result of the allegations that the mother makes during the time prior to her and the father separating, but also the allegations that she makes against the father and the paternal family post separation in circumstances where, until the father commenced these proceedings, the mother had not approached the Court for any orders.

    Mother’s Capacity to be protective towards X: iPad

18. The other concerns identified in respect of the mother’s capacity are as a result of the pictures on X’s iPad which the mother says she became aware of in or about late September 2020, which she says forced her to finally act and to take a stance. Those came to the mother’s attention in late September or early October 2020 in circumstances where the pictures depict the father using illicit substances during the period of time that the parents were together, and at the latest, in February 2020. That is, there was nothing which one might call recent as at September 2020 when the mother took the unilateral action of retaining the child, particularly in circumstances where she says she had previously had concerns about the father’s alleged drug use.

19. There was no application made to this Court, or to any other Court, in September 2020, or October 2020, or indeed until these proceedings were commenced by the father, and there is no evidence that the mother sought clarification from the father or the paternal grandparents about the matters that she viewed on X’s iPad.

20. Indeed, the evidence is at least as contained in the father’s affidavit, at pages 22 and 23 of his affidavit filed on 15 March, where the mother simply informs the father that she will not be returning X and without disclosing the reasons as to why that may be.

21. What does occur later on, is that the mother sends the father a message, as appears on page 30 and 31 of the father’s affidavit, where she alleges that the father is being irresponsible and extremely careless, that the child has been exposed to pornographic pictures, and that the child’s cousin has had involvement in this.

22. Further text messages allege that the father was chasing the dragon, being, the Court understands, a reference to the father using illicit substances. But certainly nothing in here that the Court can see which has drawn the father’s attention or sought his response as to why these pictures might have been on X’s iPad, whether he was aware of them and asking for an explanation from the father about that.

    Mother’s Capacity to be protective towards X: Mr D

23. The biggest concern which has been raised is probably in relation to the mother’s relationship with Mr D. The mother, despite a number of affidavits being filed in these proceedings, only the latest of those being relied upon at interim hearing, and therefore the only evidence that’s before the Court, has not articulated in any detail when her relationship with Mr D started, how long it was for, and what involvement, if any, Mr D had with X. The mother’s evidence seems to suggest that that relationship was of a very short duration, and if the Court understands the mother’s evidence it was a relationship shortly after the break-up of the parent’s relationship, that is, going back to September 2019 when she says that Mr D lived with her for a period of about 10 days. 

24. She says in her affidavit the following, starting at paragraph 75:

    I was in a relationship with Mr D (DOB xx/x/1991) but am no longer in a relationship with him. Mr D lived with me for about 10 days after my separation from Mr Leonard. X has only spent limited time with Mr D as I usually spent time with X when Mr D was not with me so I had one on one time with her.

25. That is anything but satisfactory evidence about the mother’s relationship with a person who is presently incarcerated for what appear to be some very serious charges.  The mother says further in her affidavit that her home was raided by the police in February 2020, but she doesn’t disclose in her affidavit that the reason why the police raided her home is because Mr D was also present at the house on the day of the raid. She doesn’t say whether or not she was in a relationship with Mr D at the time her home was raided. What she does say is that no illegal items or activity was detected during that raid.

26. She says further on, paragraph 77:

    Mr D is incarcerated at City E Correctional Centre pending the outcome of his charges. My former relationship with Mr D never took priority over my parenting and relationship with X.

27. She says:

    I was aware of Mr D’s issues with drugs and understood that he was seeking treatment for his addiction at the time he was arrested in June 2020.

    But she doesn’t articulate in any meaningful way what her awareness entails and what she knew of Mr D’s issues with drugs.

28. This has to be read together with her sworn evidence that she does not condone drug use or dealing, and that she has not exposed X to anyone under the influence of drugs, (which also must mean that in her allegations that the father was using illicit substances during the parties relationship that X was never exposed to the father’s use of drugs, if one is to take her sworn evidence as correct). Next, the mother says that she is not aware of the current status of Mr D’s criminal charges. And, importantly, as at 10 March 2020 she swore that she did not believe that Mr D poses a risk to X. Notwithstanding that she didn’t have that belief, she was happy to agree to an interim order that X not spend any time alone with Mr D. In any event there was little chance of that given that Mr D is presently incarcerated or was certainly incarcerated at the time that she swore her affidavit.

29. This evidence must be understood in the context of other evidence that is before the Court.  For example, the evidence which appears in exhibit 1 in general, but more particularly the evidence that appears in exhibit 2, where the record indicates, that Mr D is of the view that he now has a new girlfriend and that she is pregnant.  Unless that is a reference to the mother in the present proceedings, he has another girlfriend and another child on the way. Presumably, it is a reference to the mother. At tab 2 of exhibit 2 is a reference to Ms Gregory being the partner of Mr D.  At tab 3 there is an entry from the rehabilitation centre which indicates that as at 23 December 2020, or shortly prior to that, that ice had taken over Mr D’s life. And at tab 4 there is an indication that as at July 2020 the senior intake officer had spoken to Mr D’s partner Ms Gregory, and that Ms Gregory was going to arrange for somebody who was involved in the rehabilitation centre, or in Mr D’s rehabilitation, for him to speak to some supporters of Mr D and get back to the senior intake officer with their contact numbers. All of those matters indicate that as at July 2020 and December 2020 that the mother, at least as far as Mr D was concerned, was considered to be his partner.

30. Furthermore, the evidence in the father’s affidavit of Facebook entries, appearing at page 47 of his affidavit, being apparently the mother’s Facebook post from 21 December 2020 reads as follows:

    Been such a massive day… but well worth it! Mr D is at G rehabilitation centre now safe n settling in. Was SO GOOD to see him even if it were only for a couple of hours of him rubbing my belly n me getting us lost on the freeway. I still miss him terribly. All forward from here my gorgeous man. I love you.

    (errors in original)

31. This has to be understood in the context of the mother being the person who was to pick Mr D up from F Correctional Centre and take him to the rehabilitation centre; those being the bail conditions upon which bail was granted to Mr D on 17 December 2020 at Town C Local Court. Indeed it is the mother who transported Mr D, according to the evidence in the proceedings, including her own evidence, from F Correctional Centre to the rehabilitation centre.

1. Lastly, there is a further Facebook post from the mother in the paternal grandmother’s affidavit, which appears at page 34 of that affidavit, which dates earlier than the one that the Court has just referred to, and it reads as follows;

   Happy Father’s Day to this gorgeous human. We’re thinking of u today and wishing that we could spoil u like u deserve. Thank u for always being in our lives, we are forever grateful. Thank u for showing X wat it’s like to see her mother be treated with such respect and unconditional love. Thank u for being there for her as her friend. She has decided that ur more than that to her- ur her stepfather and we can’t wait for u to come home. Looking forward so much to meeting our little addition and building our future family. Loving you unconditionally.

   (errors in original)

2. It is not known on the evidence when Mr D will be released, and it is important that the mother’s sworn evidence, as at 10 March, was that she did not consider Mr D to be a risk.

3. The documents which have been produced under subpoena were produced to the Court no later than 4 February 2021. So certainly between the time of the production of the documents by New South Wales Police and the rest of the material that was subpoenaed, including the section 69ZW material, the mother has had the opportunity of learning what was in that material. The Court infers that she would at least have received advice about the content of the documents produced under subpoena, particularly in circumstances where an agreed tender bundle was prepared by the parties in accordance with most recent Court orders. It was submitted in the mother’s case that the mother now realises, or she realises as of a few days ago, that Mr D might pose a risk. However, the fact is that the Court still has before it the sworn evidence that the mother does not consider him to be a risk, notwithstanding the instructions which she provided to her solicitor and which were communicated to the Court.

4. In the face of the Facebook posts, the Court has serious concerns about the veracity of the mother’s sworn evidence. However, in circumstances where that evidence remains untested all the Court can do is consider the risks which have been identified in the proceedings.  

5. There is furthermore a suggestion in the mother’s affidavit that she was not aware of the allegations made by Mr D’s former partner in relation to an alleged assault by the mother on that person. That appears in her most recent affidavit, the one that has been relied upon in the interim hearing, at paragraph 82, which reads as follows;

   I am aware that after a previous relationship, Mr D’s ex-partner made a complaint to Police and an ADVO was taken out for her protection. I am not aware of the allegations or details of her complaint but am aware that the ADVO is in place.

6. It is unclear whether paragraph 82, having now read it again, is a reference to the mother not being aware of the allegations raised against her, or against Mr D, or against somebody else.  Certainly, if the mother is suggesting that she is not aware of the allegations which have been raised against her that would be difficult evidence to accept given that she is now on a good behaviour bond as a result of some charges that were laid against her.  And indeed those matters do not appear to be disclosed in her affidavit (unless the Court is wrong about that).

   Mother’s Attitude towards Father and Paternal Grandparents

7. The Court also has concerns about the mother’s attitude towards not only the father, but also towards the paternal grandparents. That concern arising as a result of what appear to be text messages that she has sent to the father which are annexed to the father’s affidavit which the Court had previously referred to pages 30, 31, 32 of the father’s affidavit.  The Court is well aware that the evidence in these proceedings is yet to be tested, and that there is likely to come to light a great deal of evidence that is presently not before the Court. However, the Court has to deal with the evidence as it presently stands and do its best in assessing the risks which have been identified.

   Possible Pressure placed on X

8. The evidence also includes the Child Inclusive Conference Memorandum to the Court, which is dated 14 January 2021.

9. The Family Consultant who interviewed the parties, and the child, came to the conclusion, at paragraph 47 of that Memorandum, that in her opinion;

   The paternal grandparents have the strength in this matter and given the dynamics of this matter consideration should be given to X living with them. It is strongly recommended that both parents present for hair follicle tests etcetera, that police records for Mr Leonard, Ms Gregory and Mr D are subpoenaed.

10. What is concerning to the Court is what appears at paragraphs 38 and 39 of that Memorandum.  That is, that X appeared to the Family Consultant to be clearly frightened about saying anything that could get her into trouble, and it appeared to the Family Consultant that there could have been some attempt which was made to encourage her to have a viewpoint about the matter, the Court understanding that to be a suggestion that one of the parties might have attempted to influence X as to what she should say to the Family Consultant.

11. Thereafter, at paragraph 39, it is reported that X began to sob when asked about her grandparents and said that she could not say anything.  She said that her mother looked after her and she really liked the paternal grandmother.  X was asked who she might talk with if she felt anxious and she said that she would talk with her paternal grandmother or her mother.  X said that she liked playing with her friends and playing with her paternal cousins. She had a brief conversation with her mother and appeared to interact well with the mother noting that the mother’s previous controlled demeanour relaxed when she was interacting with X.

12. X was also observed with her father and the paternal grandparents while the mother was being interviewed and she appeared to interact well with them, sitting close to her paternal grandmother. It appears from those brief observations and from those brief interactions between the Family Consultant and the parties and X, that X certainly has particularly strong relationships with her paternal grandmother and her mother, and that she feels particularly close to them. 

13. The mother has put on some evidence about the Child Inclusive Conference Memorandum, clearly indicating that she did not in any way influence the child about what she was to say to the Family Consultant. What the mother says is as follows, at paragraph 62:

    I did not speak at length with X about the interview process but I explained to her that it was for the court proceedings and she’s aware there are proceedings about her living arrangements.  After the interviews X told me she felt scared to speak freely because she was worried her father and Nan would overhear what she told the report writer as they were in the next room.

14. X apparently told the mother that she is worried she will get in trouble from her father if she says that she wants to live with the mother and not her grandparents. The mother said that she reassured X as much as she can, that both her father and mother love her and only want what is best for her.

15. What is evident from the Child Inclusive Conference Memorandum is that there is significant conflict between all of the parties and that X is the meat in the sandwich. The child is clearly upset and torn, and the Family Consultant’s opinion as to what might be in X’s best interest on an interim basis ought not be dismissed out of hand, on the basis it is formed based on limited information and very brief observations, particularly because the Family Consultant must have some relevant expertise otherwise the Child Inclusive Conference Memorandum would not have been sought.

16. There is no evidence in the mother’s case about X’s recent behaviours at school and what might have triggered them, and how the mother is dealing with those. 

    Determination as to Risk and Where X should Live

17. Due to the risks which have been identified as existing in the mother’s home, her apparent lack of insight about Mr D, the possible exposure to the child to drug use, not the mother’s own drug use but possibly Mr D’s drug use, and for all of the reasons which have been identified in respect of the father, neither the mother, but particularly the father, are convincing as having appropriate parenting capacity (as between the two of them). If it was an application as between the mother and the father it is likely that the Court’s decision would have been much easier than it is at the present.

18. While there will be turmoil again for X if she is to live with the paternal grandparents pending the final hearing such turmoil is in part due to the mother’s unilateral actions in retaining her when she did in late September 2020, which on the evidence may have been opportunistic. But once again the Court is not able to make any findings about that. 

19. On the evidence as it presently stands the balance tips ever so slightly in favour of an order that X live with the paternal grandparents. The parties live in close proximity of each other and of X’s school, so there is no practical difficulty with the child spending significant and substantial time with the mother in those circumstances. 

20. There is certainly evidence of cooperation as recently as December 2020 between the paternal grandparents and the mother when X underwent surgery which was organised by the paternal grandmother. Although the Court does have some significant concerns about the apparent lack of involvement of the mother by the paternal grandmother in some decisions which she had made about X being provided with therapy and the medical procedure which was organised for her. Certainly there is no evidence there was any consultation with the mother about those things, and that cannot go on (if it did happen). There is also evidence of significant cooperation between the mother and the paternal grandmother in the past.

21. These are interim orders only based on limited evidence, which is yet to be tested. The Court is today taking a cautionary approach to ensure, as far as possible, stability and safety for the benefit of X and ensuring that she has a benefit of a meaningful relationship with both of her parents and her paternal grandparents.

22. Having regard to all of those matters and the injunctive relief which was earlier made the Court is satisfied that X spending significant and substantial time in the mother’s household is to her benefit, and that there are appropriate safety guards in place to ensure that during any such time she would not be placed at any unacceptable risk of harm or even significant risk of harm

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated:       3 June 2021