Leonard & Gregory (No 2)
[2021] FCCA 1712
•28 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Leonard & Gregory (No 2) [2021] FCCA 1712
File number(s): DUC 480 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 28 July 2021 Catchwords: FAMILY LAW – parenting – second interim application – where the paternal grandparents seek orders reducing the mother’s time with child – Rice & Asplund threshold argument – change in circumstances found – adverse credibility findings against the mother – best interests of the child Legislation: Family Law Act 1975 (Cth), s 69ZL Cases cited: Goode v Goode [2006] FamCA 1346
Judd & Pryor (No.2) [2020] FamCA 934
Keats & Keats [2016] FamCAFC 156
King & Finneran [2001] FamCA 344
Leonard & Gregory [2021] FCCA 646
Marsden & Winch [2009] FamCAFC 152
Rice & Asplund [1978] FamCA 84
Number of paragraphs: 42 Date of hearing: 26 July 2021 Place: Dubbo Solicitor for the Applicants: McIntosh McPhillamy & Co Legal Services Counsel for the Applicants: Ms Seric Solicitor for the First Respondent: Peacockes Solicitors Appearing for the First Respondent: Ms Keen Solicitor for the Second Respondent: Silkman Hockey Lawyers Appearing for the Second Respondent: Ms Baker Solicitor for the Independent Children's Lawyer: Osborne Legal Appearing for the Independent Children's Lawyer: Ms McKay ORDERS
DUC 480 of 2020 BETWEEN: MS SUTTON
First Applicant
MR B LEONARD
Second Applicant
AND: MR LEONARD
First Respondent
MS GREGORY
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
28 JULY 2021
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.Orders 9 and 10 dated 18 March 2021 are discharged.
2.That the child X, born in 2010, shall spend time with the mother:
(a)from 10am until 5.00pm each Saturday;
(b)from 3pm on Christmas Eve until 3pm on Christmas Day 2021; and
(c)at all other times as agreed to between the paternal grandmother and the mother in writing.
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 (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC
These are short form reasons made pursuant to s.69ZL Family Law Act 1975 (Cth).
On 18 March 2021, following a contested interim hearing (“first interim hearing”), the Court delivered its reasons for judgement and made interim parenting orders in respect of the subject child of these proceedings, X (see Leonard & Gregory [2021] FCCA 646).
At the conclusion of the first interim hearing, orders were made providing, inter alia, that X live with the paternal grandparents and that she spend time with the mother for 5 nights per fortnight, being Thursday – Tuesday each alternate week and from 3-6 pm Thursday in the alternate week.
The risks identified at the first interim hearing, included the mother’s capacity to act protectively towards X. The Court in its reasons for judgment, identified concerns about the veracity of the mother’s evidence and about her lack of disclosure of relevant matters.
The paternal grandparents now bring a fresh application for interim parenting orders, seeking that X spend time with the mother on Saturday each week and during the school holidays, in the home of the maternal grandmother. The paternal grandparents raise issues of risk to X arising out of the mother’s recent conduct. The documents the parties rely upon have been identified in their respective case outline documents, which also identify the parties’ competing proposals.
On 13 March 2021, the mother was charged with driving whilst suspended and negligent driving. This occurred prior to the first interim hearing, and was a relevant fact within the mother’s knowledge at the time. The mother did not disclose the matter to the Court at the first interim hearing. It is a fresh matter that the Court did not previously have any information about.
It is now apparent from Exhibit 1 that the mother lost control of the vehicle she was driving, “causing the vehicle to head nose first into a table drain before rolling over and coming to rest on the passenger side of the vehicle.” She contacted “triple zero” and was assisted out of the vehicle by passers-by. When the Police attended the scene of the car crash and asked the mother questions in relation to the car crash, the mother apparently responded with “I assume the speed limit, I don’t know how fast I was going, I wasn’t paying attention to my speed.”
X was not in the vehicle when the mother lost control and rolled the car.
According to the evidence presently before the Court, the mother’s driver licence was suspended until 22 March 2021. The time between the offence on 13 March 2021, and the date on when the suspension was to be lifted was not “one week” as suggested by the mother, it was slightly longer.
In her affidavit filed 25 June 2021, the mother appears to downplay the incident. The mother does not explain in her evidence why she did not disclose the charges when the Court was hearing the parties’ interim applications on 18 March 2021, nor does she explain the basis of her mistaken belief that she was licenced to drive on the date she crashed the vehicle she was driving.
It seems that the mother is trying to make light of what occurred and her lack of any disclosure about these charges. It also appears from her evidence that she does not accept full responsibility for her own actions.
If this was the entirety of the matters which have now come to light, the Court would not be making the orders it now makes.
The more concerning matter though, is that on 20 April 2021, the mother was charged with bringing a prohibited drug into City E Correctional Centre for Mr D.
The mother’s relationship with Mr D was identified as a risk to X at the first interim hearing. Mr D is the father of the mother’s other child, 5 month old J. The mother now says to the Court that her and Mr D “remain connected” for this reason. The mother’s “connection” to Mr D is not otherwise explained in her evidence. This lack of disclosure is startling given the Court’s reasons for judgment at the conclusion of the first interim hearing and in particular the Court’s concerns about the veracity of the mother’s evidence concerning her relationship with Mr D.
The mother’s own sworn evidence as to her attempting to smuggle drugs into prison for Mr D is scant, although she does annex to her affidavit the Fact Sheet together with the Court Attendance Notice in respect of the events of 17 April 2021, thus presumably adopting the police facts sheet as the truth of what occurred on that day.
The mother in her affidavit filed 25 June 2021, says to the Court that she is deeply remorseful and that she accepts full responsibility for her actions. The mother says that it was a “very irresponsible decision”. However, the mother does not identify which of the decisions she made leading to her being charged on that occasion were irresponsible. It is clear from the Facts Sheet and Exhibit 1, that she made more than one irresponsible decision. She not only attempted to smuggle prohibited drugs into the City E Correctional Centre, she knew that such drugs were prohibited which is why she hid them and did not disclose that she had them when asked by corrections officers. The drugs were apparently delivered to her house in an envelope and she was requested to provide them to Mr D during her visit with him in prison. The mother refused to provide to the Police details of who it was that had “requested” her to provide the drugs to Mr D, or why she agreed to do what she was asked of her. The mother, despite her stated remorse, does not explain any of these concerning matters in her sworn evidence.
On 7 June 2021, the mother entered a plea of guilty in respect of the charge of bringing in a prohibited drug into a place of detention and received a community corrections order for a period of 12 months. This was in relation to the events of 17 April 2021.
Furthermore, despite the mother saying that she has learnt a “hard, fast and very valuable lesson” as a result of the charges laid in April 2021, it appears that the mother may have had further involvement in attempting to smuggle contraband to Mr D whilst he remained incarcerated. The police records (while slightly confusing) suggest that the mother on 29 May 2021, was using associates in an attempt “to introduce prohibited drugs to her partner who is housed inside City E CC”. The prohibited drug this time was tobacco.
The Independent Children’s Lawyer (“ICL”) and the mother in their submissions both raise a Rice & Asplund argument, submitting that there are no changed circumstances since 18 March 2021 to warrant the Court hearing a fresh application for interim parenting orders (Rice & Asplund [1978] FamCA 84). It is further submitted, that even if the threshold is met, that the evidence does not warrant a reduction of the child’s time with the mother. Neither the mother nor the ICL otherwise move the Court for any other interim orders.
The father supports the application of the paternal grandparents. The father does not otherwise move the Court for any other interim orders.
The rule in Rice & Asplund rule is one that is concerned with the best interests of the child. The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation (King & Finneran [2001] FamCA 344 at [44] and [64]). The matters to which consideration should be given in order to determine the materiality of the asserted change in circumstances, are well known (see for example Marsden & Winch [2009] FamCAFC 152 at [50], cited in Judd & Pryor (No.2) [2020] FamCA 934 at [18]).
It is a fact that the mother is now the subject of two criminal convictions, which was not the case as at 18 March 2021.
It is a fact that despite now having the opportunity of putting on detailed evidence explaining her actions that led to her attempting to smuggle 170 Buprenorphine tabs into prison to Mr D, the mother has not done so.
It is also a fact that despite being on notice about the events of 29 May 2021, and the mother’s apparent involvement in further attempts to bring contraband to Mr D, the mother’s evidence is entirely silent as to these matters – there is not even a denial that she had any involvement or that the police records are incorrect. The records referred to of course, are those that form part of Exhibit 1, which was a joint agreed tender bundle.
The mother’s recent criminal convictions (and her ongoing lack of full and frank disclosure) are a changed circumstance of sufficient magnitude to warrant the Court hearing and considering the paternal grandparents’ present application for interim orders.
The lack of disclosure by the mother of the charges which were pending against her as at the interim hearing on 18 March 2021, her actions on 17 April 2021 and subsequent conviction, her continued lack of proper, full and frank disclosure as to the relevant matters as briefly identified in these reasons, lead the Court to find that on the evidence the mother does not demonstrate real or meaningful insight into her actions and their likely impact on X.
The Court accepts the submissions made on behalf of the paternal grandparents that in order to act protectively towards X, the mother would have to demonstrate appropriate insight.
Pursuant to the orders made on 18 March 2021, X was to spend significant and substantial time with the mother. The choices the mother has made in not disclosing to the Court:
(a)the driving incident on 13 March 2021, the charges arising from that incident and the reasons why she did not bring these matters to the Court’s attention on 18 March 2021 at the first interim hearing;
(b)the current nature of her relationship with Mr D in light of the previously cryptic evidence as to such relationship and denial of a relationship as at 18 March 2021 and the Court’s reasons for judgement of 18 March 2021;
(c)her reasons for bringing contraband to Mr D while he is incarcerated, particularly in light of the Court’s concerns as to the veracity of her evidence and the Court’s concerns about her capacity to act protectively towards X as outlined in its reasons for judgment of 18 March 2021; and
(d)her knowledge or lack thereof of any involvement in attempts to bring tobacco to Mr D while he is incarcerated on 29 May 2021,
all raise significant and further concerns about the mother’s capacity to act protectively towards X.
In its reasons for judgment of 18 March 2021, the Court noted:
[28]… 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.
And:
[53] 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.
It was submitted on behalf of the mother and the ICL that Mr D’s incarceration is a protective factor for X. The problem with this submission is that the Court has very little to no information as to when Mr D is expected to be released and whether the mother, given that she is visiting him at City E Correctional Centre and that they have a 5 month old child together, has plans to continue a relationship with him. The restraint made by consent on 18 March 2021 may not be enough to protect X, given particularly the mother’s conviction for attempting to smuggle drugs to Mr D while he remains incarcerated and her admitted lack of judgment in that regard.
Lest it be misunderstood by the mother, the Court is not simply concerned that she attempted to smuggle drugs to Mr D. It is that (on the evidence in her case) she has had at least one person who is involved in drug smuggling attend her home, she has not co-operated with the Police in providing details of who it was that supplied her with the drugs, and she has not explained why she was involved in the drug smuggling in the first place – for example whether it was because of any threats, whether it was because Mr D had asked her to do so and why she thought it was something that she should be partaking in. The mother’s reasons for her actions are important as they would carry over into her ability to act appropriately and protectively around X. The fact that she has not disclosed her reasons to the Court shows possibly a lack of candour, a lack of insight and maturity, possible vulnerabilities in the mother or a combination of all of those factors – which all pose a potential risk to X.
All of these matters are uniquely within the mother’s knowledge yet she chooses not to disclose them. It cannot simply be a matter of lack of legal advice about putting on evidence as to those matters, and even if it is, it still shows a lack of insight by the mother – her affidavit is after all, her affidavit.
The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346 at [81 –[82]]). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it.
In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156 at [9]).
The Court finds that to leave X in the mother’s care pursuant to the orders of 18 March 2021, would be to place her at an unacceptable risk of harm. It may be that upon a full testing of evidence the concerns which the Court has in respect of: the mother’s capacity to act protectively, her apparent lack of candour and unwillingness to be open and honest about important matters, all melt away. But at present, the Court is minded to act cautiously.
As such, the Court finds that the orders sought by the paternal grandparents are presently in X’s best interest, but only to the extent that they seek to minimise X’s exposure to the risks which have been identified. The difficulty with the orders proposed by the paternal grandparents is that they propose a third party to supervise the mother’s time with X, in circumstances where there is no evidence of that third party’s capacity or willingness to supervise such time.
In addition, the Court is not satisfied that the risks as identified are such that the mother’s time with X must be supervised in the manner suggested by the paternal grandparents or at all. It is sufficient, on the evidence at present, that such risks are ameliorated by reducing the opportunity for X to be exposed to them.
In relation to school holiday periods, it is clear that any escalation in conflict between the parties will not be in X’s best interest, and that such escalation is likely to occur if there are frequent changeovers. Despite the fact that school holidays would be an ideal period for X to spend block time with the mother, thus providing her with an opportunity for meaningful and substantial time with the mother, given the risks identified, the risks associated with such block time outweigh the benefit to X at present. Rather, the Court finds that it is in X’s best interest that there be no overnight time or block time between X and the mother for the present period.
Additional orders will be made to provide a degree of flexibility if there is agreement about time between the relevant parties. The Court accepts that the paternal grandparents will act in X’s best interest, and that they will facilitate additional time between the mother and X (including overnight time) if the mother is able to demonstrate a sufficient level of insight and maturity and/or if there are appropriate safety guards in place, such as for example the maternal grandmother communicating her willingness to the paternal grandparents to assist the mother as needed.
The Court is hopeful that the mother will place X’s interests ahead of her own going forward, and that she will no longer act in a manner which poses not only a significant risk to herself but more importantly her children. Continuing to engage with criminal elements and people who deal with illicit substances places the mother at risk of further police involvement and associated consequences. The mother would be wise to consider acting in a manner that is protective of herself and her children, and to seek out appropriate supports and services that will be of assistance to her in this regard.
Any further turmoil which X may now face as a result of spending more limited time with the mother, will be ameliorated by the consistency in her living arrangements, the care which her grandparents provide to her and by continuing her relationship with both of her parents.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 28 July 2021
0
7
0