MCCREADIE & ORAM & ANOR (No.2) - [2018] FCCA 1214

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCREADIE & ORAM & ANOR (No.2)

[2018] FCCA 1214

Catchwords:
FAMILY LAW – Parenting – order made for children aged 5 & 7 to live with the younger child’s father and the older child’s psychological father – where the mother has been the children’s primary carer for most of their lives but has been using methamphetamine and recently served a prison sentence for dealing cannabis – where the court cannot be satisfied that the mother’s lifestyle has changed - where the children would be at unacceptable risk of harm in the mother’s care – where the maternal grandmother is an apologist for the mother and is not a suitable alternative carer.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Applicant:

MS MCCREADIE

First Respondent:

MS ORAM

Second Respondent:

MR LAMBERT

File Number:

NCC 2354 of 2016

Judgment of:

Judge Terry

Hearing date:

26, 27, 28, 29 March 2018

Date of Last Submission:

29 March 2018

Delivered at:

Newcastle

Delivered on:

18 April 2018

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr Davies

Solicitors for the First Respondent:

Birtles Legal

Counsel for the Second Respondent:

Mr Bithrey

Solicitors for the Second Respondent:

Moin & Associates

Counsel for the Independent Children’s Lawyer:

Mr Bateman

Solicitors for the Independent Children’s Lawyer:

Emalene Gemmell Solicitor

ORDERS

All previous parenting orders are discharged.
The children [X] born 2012 and [Y] born 2011 (“the children”) shall live with the father.
The father shall have sole parental responsibility for the children.
The mother shall spend time with the children:
(a)Once each month supervised for 2 hours either at the Suburb A Children's Contact Centre for as long as they are able to provide that supervision by some other person or at some other place agreed in writing between the parents.
(b)Unless there is some difficulty with the Suburb A Children's Contact Centre facilitating time on the weekend nominated in these orders and unless otherwise agreed between the parents, the mother’s time with the children shall take place on the last weekend of each month.
The mother may also spend such additional or alternate time with the children as the father may agree in writing NOTING THAT the father’s determination out about whether any additional time occurs or whether it is supervised is final.
The mother may have telephone communication with the children once each fortnight and failing agreement between 6.30pm and 7.30pm on Monday commencing on Monday 30 April 2018 but the father may place the telephone on speaker and may terminate the call if he forms the view that anything inappropriate or unsettling has been said to the children.
The maternal grandmother may spend time with the children by attending supervised visits with the mother once a month if she wishes.
The mother and the maternal grandmother may each send a card and gift to the children at or about the time of each of the children’s birthdays and at Easter and Christmas.
The father shall promptly notify…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MCCREADIE & ORAM & ANOR (No.2)

Details

AGLC: MCCREADIE & ORAM & ANOR (No.2) [2018] FCCA 1214
Case: [2018] FCCA 1214
Decision Date: 18 April 2018

CaseChat Overview and Summary

In the matter of MCCREADIE & ORAM & ANOR (No.2), Judge Terry of the Federal Circuit Court of Australia considered parenting orders concerning two children, [X] born in 2012 and [Y] born in 2011. The dispute involved the father and mother of the children, with the maternal grandmother also involved in the proceedings. The court was tasked with determining the living arrangements and parental responsibility for the children, as well as the nature and extent of the mother's time with them.

The court was required to determine the best interests of the children, considering various factors including their maturity, sex, lifestyle, and background, as well as the attitude of each parent towards their responsibilities. Specifically, the court had to assess the capacity of each parent to provide for the children's emotional and intellectual needs, the likely effect of any change in the children's circumstances, and the practical difficulties and expenses associated with the children spending time with and communicating with each parent. The court also had to consider any family violence involving the children or their family members.

Judge Terry's reasoning focused on the mother's demonstrated poor attitude towards her parental responsibilities and her significant issues with drug use and involvement in the drug culture, which had exposed the children to risk. The court noted the mother's lack of acknowledgment of the harm caused to the children and her focus on attacking the father in her affidavit. The court also expressed concern about the maternal grandmother's similar attitude and her forceful attack on the father without acknowledging the mother's failings. While acknowledging an incident of family violence involving the father, the court found the mother's allegations of further violence to be lacking in credit and corroboration. The court considered the practical difficulties of supervised contact, including the distance between the parents and the limited availability and potential cost of contact centres.

Consequently, the court ordered that all previous parenting orders be discharged. The children were to live with the father, who was granted sole parental responsibility. The mother was to have supervised time with the children once a month for two hours, with specific provisions for the timing and location of this contact. Additional time was at the father's discretion. The mother was permitted limited telephone communication, subject to the father's supervision and ability to terminate calls. The maternal grandmother was permitted supervised visits with the children when accompanying the mother. The father was permitted to travel internationally with the children and apply for passports without the mother's consent. The father was restrained from physically disciplining the children, discussing the proceedings with them, or eliciting their views on the proceedings or other parties.

Orders

Orders of the court

All previous parenting orders are discharged.

The children [X] born 2012 and [Y] born 2011 (“the children”) shall live with the father.

The father shall have sole parental responsibility for the children.

The mother shall spend time with the children:

(a) Once each month supervised for 2 hours either at the Suburb A Children's Contact Centre for as long as they are able to provide that supervision by some other person or at some other place agreed in writing between the parents.

(b) Unless there is some difficulty with the Suburb A Children's Contact Centre facilitating time on the weekend nominated in these orders and unless otherwise agreed between the parents, the mother’s time with the children shall take place on the last weekend of each month.

The mother may also spend such additional or alternate time with the children as the father may agree in writing NOTING THAT the father’s determination out about whether any additional time occurs or whether it is supervised is final.

The mother may have telephone communication with the children once each fortnight and failing agreement between 6.30pm and 7.30pm on Monday commencing on Monday 30 April 2018 but the father may place the telephone on speaker and may terminate the call if he forms the view that anything inappropriate or unsettling has been said to the children.

The maternal grandmother may spend time with the children by attending supervised visits with the mother once a month if she wishes.

The mother and the maternal grandmother may each send a card and gift to the children at or about the time of each of the children’s birthdays and at Easter and Christmas.

The father shall promptly notify the mother if either of the children are involved in an accident or medical emergency requiring attendance at hospital or are diagnosed as suffering from a serious illness.

10.

The father shall keep the mother advised of the name of the school the children are attending and the mother may obtain from the school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents BUT MAY NOT ATTEND events at the children’s school such as parent teacher interviews, assemblies, sporting events or other events to which parents are invited unless the father consents in writing to that occurring.

11.

Each parent shall inform the other parent as soon as practicable of any change to that parent’s residential address and/or fixed or mobile telephone number.

12.

The father is permitted to travel internationally with the children and apply for a passport for the children notwithstanding the consent of the mother has not been obtained.

13.

The father is hereby restrained from:

(a) Physically disciplining either of the children, or allowing a third party to physically discipline either of the children;

(b) Discussing any aspect of these proceedings with either of the children;

Background

Background to the litigation

I must consider the children’s maturity, sex, lifestyle and background but that is not relevant as a separate consideration. I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents. The father has not always been as proactive as he should have been in spending time with the children although in some respects to be critical of him for that is to use 20/20 hindsight because it is not at all clear, and in fact I consider it unlikely, that the father was aware of the extent of the problems in the mother’s life prior to 2017. The mother has shown a very poor attitude to the children and the responsibilities of parenthood over and over again in the last few years. Her actions led to the children being exposed to a drug culture, to her sometimes being under the influence of ice and to her serving six months in prison which separated the children from her and there was absolutely nothing in her affidavit to suggest that she recognised the harm she had done. Instead she devoted much of her affidavit to attacking the father over things like not letting her read the children a bedtime story or ensuring that the children cleaned their teeth. I am also concerned, although this would really normally be under the heading “Any other relevant matter,” about the maternal grandmother’s attitude to the children. She similarly mounted a forceful attack on the father in her affidavit without once acknowledging the harm that her daughter had done to the children and the way she had let them down. I must consider any family violence involving the children or members of the children’s family. There was an incident of family violence where the father kicked in the back door after the mother refused him admittance to the house after an argument. He wasn’t charged but a “without admissions” ADVO was made. The father said, and I accept, that he repaired the door. The mother alleged that there were other occasions of violence. She alleged she was threatened with a knife and pushed. She was not a witness of credit. There was no corroboration. I do not accept that evidence. She also alleged the father held her by the throat. The same comment applies to that evidence. There is reference in the family report to the father’s claim that on a couple of occasions the mother committed some acts of violence and those allegations were the subject of some cross‑examination.[13] He claimed that the mother parking his car in, stalked him around town and jumped on the bonnet of his car causing a scratch. [13] Family Report paragraph 28, 129 The mother said that what happened with jumping on the car was really a bit of an accident and that she fell on the bonnet. These incidents happened about five or six years ago. There is some evidence about the incidents in the police reports but there is always a risk that people’s recollections about these events now are not entirely accurate. I cannot make any findings about what happened on the occasions that the father alleged occurred. There is no doubt that there was an incident where the mother landed on the bonnet of the car and there was no doubt the car was scratched. To what extent that was deliberate is just something I cannot say.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I must consider the likely effect of any change in the children’s circumstances including the likely effect of separation from any person or other child with whom the children have been living. That is an issue I am going to have to consider at the conclusion of the judgment. I must consider the practical difficulty and expense of the children spending time with and communicating with a parent. Suburb A and Region 1 are about one and a half hours apart. That sort of a distance does not pose an insurmountable problem to people spending time with children no matter how little they are earning or how poor their motor vehicle is. The practical difficulty that is going to arise is if I find that only supervised time can occur. The only contact centre in that area is in Suburb A. The maternal grandmother complained about the cost to her and the mother of getting to Suburb A for a short visit. She complained that the train times did not fit in with the contact centre times. An additional practical issue is that the contact centre may not be willing to continue supervised time once final orders are made unless the parties are people of means who can afford to pay at a higher rate. I have no evidence about that but it is a concern in my mind and to my knowledge there are no people up in that area who offer any other private supervision. I must consider the capacity of each of the children’s parents and any other person, including a grandparent or relative of the child, to provide for the needs of the children including their emotional and intellectual needs. I am going to start the consideration in this section with the mother because although the mother and the grandmother refuse to admit it, there are serious concerns about the mother’s parenting capacity both historically and potentially in the future. The mother left school young and she has had long-standing problems in her life, problems which first manifested themselves when she was 13. She had involvement with the police in her teens which has led to some minor criminal charges. The maternal grandmother commented in her affidavit that as a teenager the mother was very difficult to parent and would frequently run away. She only completed Year 8 at school and she has no history of adult employment. Around 2015, although it could have been earlier and I have no means of fixing on when it started, the mother commenced selling cannabis from her home and in July 2015 there was the raid and cannabis and the methamphetamine was seized. I have already set out the other incidents that followed: the police attending in December, the two drug driving charges in 2016 and the home invasion. The mother’s drug use and immersion in the drug culture exposed the children to risk and it is of considerable concern that the mother and grandmother both refuse to acknowledge that. They both claim that during the time the mother was engaged in selling drugs and was immersed in the drug culture and using methamphetamine the children were somehow happy, healthy and surfing ahead of the wave.