Parkmore & Miglio
[2022] FedCFamC2F 1279
Federal Circuit and Family Court of Australia
(DIVISION 2)
Parkmore & Miglio [2022] FedCFamC2F 1279
File number(s): DNC 707 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 21 September 2022 Catchwords: FAMILY LAW - parenting - concerning two children who are nine and five years old - where the children live with the first and fourth respondents who are non-parent parties - where the second and third respondents are the parents - where the parents agree the children should live with the first and fourth respondents - where the applicant is a non-parent party and former foster carer - whether the children should live with the applicant - whether the children should spend time with the applicant - whether there is a risk to the children in the care of the respondents Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC 65C
Care and Protection of Children (Placement Arrangements) Regulations 2010 (NT)Cases cited: Aldridge & Keaton [2009] FamCAFC 229, [83] Division: Division 2 Family Law Number of paragraphs: 64 Date of hearing: 24 and 25 August and 6 September 2022 Place: Darwin The Applicant: Appearing on her own behalf Counsel for the Respondent: Mr Lipert Solicitor for the Respondents: Grays Legal NT ORDERS
DNC 707 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PARKMORE
Applicant
AND: MS MIGLIO
First Respondent
MS G
Second Respondent
MR F
Third Respondent
MR J
Fourth Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
21 September 2022
THE COURT ORDERS THAT:
1.That Ms G and Ms Miglio have equal shared parental responsibility for X born in 2013 and Y born in 2016 (“the children”).
2.That the children live with Ms Miglio and Mr J.
3.That the children spend no time with Ms Parkmore.
4.That Ms Miglio is to authorise the school or schools of the children to provide to Ms Parkmore, at Ms Parkmore’s expense, copies of any awards or school photographs, which are ordinarily available, of the children.
5.Ms Parkmore may send to the children at Christmas and on their birthdays a card and modest gift and Ms Miglio is to ensure that the card and/or gift is given to the children.
6.Ms Miglio and Mr J are to consult their general medical practitioner/s (“GP”) about the effect of cannabis use on parenting capacity and, if recommended by the GP, undertake a course of counselling as to the same.
7.There be an injunction restraining all parties to these proceedings from:
(a)Denigrating the other party or the party’s partners or members of that party’s family via any social media platform or in the presence of or within the hearing of the child, and each party remove the child from the hearing of anyone else who may be denigrating the other party or that party’s partner or family and posting or making any reference to the child or parties to these proceedings on any social media platform;
(b)Using the children as a conduit to pass messages to the other parent, questioning or seeking information from the children with respect to their living or extended family communications and arrangements;
(c)Consuming alcohol to excess 12 hours prior to any commencement of time spent and the children shall be removed from the presence of any intoxicated individuals;
(d)Consuming illicit substances 24 hours prior to or during any time spent and the children shall be removed from the presence of any individuals who have consumed illicit substances;
(e)Physically disciplining or restraining the children or permitting a third party to do so; and
(f)Exposing the children to abuse (including verbal abuse) or family violence and that the parties will take all measures necessary to remove the children from any act of family violence should such circumstances arise.
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 a pseudonym Parkmore & Miglio has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG
This is a parenting application about two sisters, X, who is 9 and a half years old, and Y, who is 5 years old. Both children are Aboriginal children.
The applicant is Ms Parkmore. She is 53 years old. Ms Parkmore is a qualified legal professional, although she has now ceased working. X was placed with Ms Parkmore, who was a volunteer foster carer, by the Department of Territory Families, Housing and Communities (“Territory Families”) between the ages of about nine months and 2 and a half years.
The first respondent, Ms Miglio, is aged 47 years and her partner, Mr J, the fourth respondent, is aged 45 years. They are carers with whom the children were placed by Territory Families in September 2020. They also have two of their own children living with them, aged eight years and 21 years. The second and third respondents are the biological mother and father, aged 39 and 46 years respectively, of the children. The mother is the cousin of Ms Miglio. The father is the cousin of Mr J, Ms Miglio's partner. The children were placed with Ms Miglio and Mr J by or with the agreement of the parents. The parents wish the children to continue to live with Ms Miglio and Mr J, acknowledging that they themselves are unable to adequately care for the children, primarily because of their history of alcohol abuse.
In her initiating application Ms Parkmore seeks orders that the children live with her and that the children "visit" their mother or father or other family if she, Ms Parkmore, assesses it is safe to do so. Her application says nothing about parental responsibility. In the alternative, she seeks orders that the children spend time with her on alternate weekends
Ms Parkmore's case outline refers to parental responsibility and apparently intends that it should remain with the biological parents. The outline does not say with whom the children are to live. The outline proposes orders that the children spend one weekend a school term with Ms Parkmore, that is, four times a year. As the conduct of the applicant's case involved a vigorous attack on the parenting capacity of each of the respondents, including Ms Miglio and Mr J, I asked the applicant what orders she actually sought. After some discussion it was apparent that primarily she sought orders that the children live with her and, in the alternative, that they spend time with her.
The proposal of the respondents, who were represented by the same solicitor and counsel at trial, was that the children live with Ms Miglio and Mr J and that she and the mother have shared parental responsibility. They did not propose that the children spend any time with Ms Parkmore.
The Independent Children’s Lawyer (“ICL”) initially proposed that the children live with Ms Miglio and Mr J and spend four weekends a year, one each school term, with Ms Parkmore. By the time of final submissions the ICL no longer sought orders for the children to spend time with Ms Parkmore. Her position was substantially the same as the respondents’ position in relation to parental responsibility and live with orders. Although the ICL sought an order that the children spend no time with Ms Parkmore, she also sought orders that Ms Parkmore be permitted to send the children Christmas and birthday gifts and be able to obtain school photos directly from the school. The respondents did not oppose such orders.
Background
X, the eldest child, was the subject of a child welfare order when she was about nine months old. She was at risk of harm or neglect in the mother's care due to her mother's misuse of alcohol. X was placed with Ms Parkmore, who was then a volunteer foster carer with Territory Families. Ms Parkmore understood that the placement may be temporary. There is no evidence that Ms Parkmore's care of the child was anything other than adequate and appropriate. In mid-2015, when she was about 2 and a half years old, X was returned to her mother's care. She had spent about one year and nine months in Ms Parkmore's care.
It appears that the mother and father lived with X, primarily in the Region C, on the mother's traditional lands. Later, they appear to have moved to Town K, on the father's traditional lands.
In 2015 Ms Parkmore visited the Region C and X subsequently spent some time on a couple of occasions in Darwin with Ms Parkmore.
X spent no time with Ms Parkmore from 2015 to early 2018, probably because of the unstable living arrangements of her parents. It appears that Ms Parkmore re-established contact with the mother and X in 2018. Ms Parkmore asserts that from then until August 2020 X spent regular weekend time with her, including most weekends, from Friday to Sunday evening. It appears that Y spent very limited time with Ms Parkmore.
It is clear from Ms Parkmore's trial affidavit and oral evidence that during this time she encouraged X, at least, to call her "mummy".
In about March 2020 the mother, with X and Y, came to live with Ms Miglio and Mr J at Location O in Suburb P, a small Aboriginal community in the Darwin suburbs. X was enrolled at H School. Ms Miglio disputed that after that time X spent every weekend with Ms Parkmore, as Ms Parkmore asserted. Ms Miglio claimed it was more like three weekends in total. I do not find it necessary to resolve that dispute but I accept that it was probably more than three weekends but less than every weekend over that period.
From March 2020 to September 2020 the mother was responsible for the care of the children. It appears, however, that she was unable to properly care for them and her lifestyle was unstable. She appears to have left Ms Miglio’s home with Y for a period, leaving X in the care of Ms Miglio.
From sometime in 2019 the father was imprisoned following a serious aggravated assault against the mother. He was released in 2021.
Ms Parkmore asserts that when X came to spend time with her over weekends during this period X was dirty, with dirty clothes and did not look well cared for. Ms Miglio denied this. Although the mother was living at least part of the time in Ms Miglio’s home I consider it likely that, as the children were primarily in the mother’s care, there were probably some indications of inadequate care. Given the mother's unstable living arrangements and her misuse of alcohol I would expect this would be reflected in the children’s care. It is notable that the school does not provide any current indications of concern now that the children are in Ms Miglio’s care.
Between September 2019 and August 2020 Territory Families conducted an investigation into the mother's care of the children. As a result of this investigation the children were placed in the care of Ms Miglio, with the agreement of the mother and father. Territory Families concluded that the children had "suffered harm in the form of neglect" and the mother was responsible. The investigation report recorded a long history of neglect concerns.
Once the children came into Ms Miglio's care in September 2020 she ceased permitting them to spend time with Ms Parkmore. In her trial affidavit and her oral evidence she explained her reasons for doing so. She said that she did not know Ms Parkmore. She said she first met Ms Parkmore when Ms Parkmore came to her house with a gift for X. She said Ms Parkmore introduced herself by saying "I used to look after X. I am her mother". Ms Parkmore in evidence made it clear that X addressed her as "mummy". I am satisfied that Ms Parkmore encouraged X to address her as "mummy" throughout the relationship and probably introduced herself to Ms Miglio in that way or something similar.
Ms Miglio said that Ms Parkmore had initially made repeated telephone calls asking for X to spend time with her. Ms Miglio said that she agreed to this on three occasions. As noted, Ms Parkmore asserted that it was more than this. In any event, once the children were officially placed with her in September 2020 Ms Miglio sought advice from Territory Families about whether she was obliged to permit Ms Parkmore to have X spend time with her. On receiving advice that she was not so obliged, she ceased the time.
Ms Miglio gave evidence that she felt harassed by Ms Parkmore and she believes that Ms Parkmore was "obsessed" with X. She felt that Ms Parkmore did not respect or support X’s Aboriginal family and that Ms Parkmore would undermine X’s relationship with her Aboriginal family. It is clear that Ms Parkmore's application to remove the children from Ms Miglio and have them live with her has engendered great hostility towards Ms Parkmore from Ms Miglio and the mother. The children's father, Mr F, also gave evidence. He was more conciliatory towards Ms Parkmore but he was resolute in his view that Ms Parkmore's role was that of a foster carer, that her role had finished and Ms Parkmore should not pursue her application because the children were properly and adequately looked after by Ms Miglio and Mr J, members of her Aboriginal family.
In her evidence Ms Parkmore was very critical of the investigation and assessment carried out by Territory Families in 2019 and 2020. She asserted that Ms Miglio and Mr J were not appropriate carers for the children. Notwithstanding her criticism of Territory Families Ms Parkmore, according to her notice of risk, complained to Territory Families in October 2020 and December 2020 that the children were risk of harm from Ms Miglio and the mother. It would appear that this was around the time that Ms Miglio stopped X spending time with Ms Parkmore. In her notice of risk Ms Parkmore alleged that the children had experienced, or were at risk of experiencing, physical abuse, psychological abuse, neglect and exposure to family violence in Ms Miglio's care. Ms Parkmore's trial affidavit does not directly address the outcome of the complaints but it is clear they were not substantiated and Ms Parkmore records a Territory Families officer explaining to her the reasons for the placement with Ms Miglio.
Ms Parkmore has some history with Territory Families. It appears from proceedings in the Northern Territory Supreme Court, that in 2016 Ms Parkmore was the subject of a complaint in her role as a volunteer foster carer with Territory Families. An investigation was conducted by Territory Families and the child in her care was removed. Subsequently, Territory Families undertook a review of her authorisation as a foster carer pursuant to the Care and Protection of Children (Placement Arrangements) Regulations 2010 (NT) and the CEO revoked her authorisation. Ms Parkmore then lodged a complaint with the NT Anti-Discrimination Commissioner alleging that Territory Families discriminated against her on the ground of parenthood. She attached about 75 pages of documentation to her complaint, including copies of correspondence with the CEO of Territory Families, the relevant Minister (presented in random order, the court noted) and her 13 page submission to the Royal Commission into the Protection and Detention of Children in the Northern Territory. The Anti-Discrimination Commission declined to accept the complaint because it did not disclose prohibited conduct.
Ms Parkmore then sought judicial review of that decision in the Northern Territory Supreme Court. It is apparent from the judgment of Justice Q that the application lacked merit and was prosecuted by the applicant, who represented herself, in an unsatisfactory and ill-considered manner. The application was dismissed.
As noted, Ms Parkmore made allegations to Territory Families in October 2020 and December 2020 about Ms Miglio’s and Mr J's care of the children. Ms Parkmore continued to allege in these proceedings that the children were at risk of harm from Ms Miglio, that Ms Miglio assaulted X repeatedly, alleging that X said that Ms Miglio had hit her, that the children were risk because of Ms Miglio’s and Mr J's cannabis use, that the children were exposed to family violence and that Ms Miglio’s motivation in caring for the children was financial.
The allegations, except perhaps the last (for which there is no evidence), were the same as those investigated by Territory Families and were assessed as "did not meet the threshold to investigate".
However, mention should be made of the criminal history of Mr J. In 2017 he was apprehended driving a car while in possession of cannabis and subsequently convicted of possess a traffickable quantity of cannabis and fined $600. Ms Miglio was with him but she was not charged. In 1998, when he was 21 years old, he was found guilty of assaulting police and placed on good behaviour bond. He has no other criminal history.
Ms Parkmore alleges that on one occasion when she visited Ms Miglio’s home Ms Miglio had been smoking cannabis. Ms Miglio denied this and, having regard to my reservations about the reliability of Ms Parkmore’s evidence, I do not make any finding. However, Ms Miglio did acknowledge that Mr J had used cannabis, at least in the past. The Court Child Expert recommended that both Ms Miglio and Mr J undertake counselling about cannabis awareness and I will make such an order.
Ms Parkmore also alleged that the children were exposed to family violence in Ms Miglio’s care. Two relevant incidents of family violence at Ms Miglio’s house were recorded in police records attached to Ms Parkmore’s trial affidavit. On 6 December 2015 Mr J complained to police that two of his brothers were arguing about money and his car window had been broken. Police attended and there was no further action. The children were not in Ms Miglio’s care at that point. The other relevant incident occurred on 31 August 2020 when Ms Miglio complained to police after an intoxicated couple, one of whom was a relative, engaged in a dispute and one of them was injured. No further action was taken. Also of relevance is a call from Ms Miglio to police reporting the mother's neglect of the child in 2019.
After closing submissions Ms Parkmore sent another record, apparently taken from a Territory Families file, to my chambers which was said to support her allegations against Ms Miglio and Mr J. This referred to an incident on 13 November 2013, immediately preceding X being taken into care by the child welfare authorities. Mr F was apparently present at the home of Ms Miglio and Mr J in Suburb P. The mother arrived with X, who was then about 9 months old, in her arms, wanting to see Mr F. She was intoxicated. Outside the house a physical altercation began between her and Mr F, with X remaining in the mother’s arms. There is no indication in the document that Ms Miglio or Mr J were involved in any way in the altercation. The mother was slightly injured but left the area, leaving X with a person not named but probably Ms Miglio. That person, probably Ms Miglio, called the police and reported the child had been left with her but the child, who was apparently breastfeeding, needed her mother urgently. The child welfare authorities were notified and the child was subsequently taken into care.
I am satisfied that, contrary to Ms Parkmore's claims, police and other records indicate that Ms Miglio and Mr J have taken at protective approach to the children and have not voluntarily exposed them to family violence. It is noteworthy that Ms Miglio gave unchallenged evidence that neither she nor Mr J consume alcohol.
Ms Parkmore also referred to a letter from X’s class teacher dated August 2020. The letter raised concerns that X had come to school without breakfast and was dirty. It is unclear exactly when this was observed by the teacher but the children were not placed in Ms Miglio’s care until after Territory Families’ investigation in September 2020. It may be that this related to a period of the mother's care or a period of transition to Ms Miglio’s care. Territory Families had a copy of that letter at the time they placed the children with Ms Miglio. A letter from the school principal dated 19 April 2021, when X was in Ms Miglio’s care, said that X attended school regularly and was well presented. It said that X participated in the school nutrition program which provided lunch for children. The letter said that Ms Miglio was an active member of the school community.
I am satisfied there is no proper basis for Ms Parkmore's allegations against Ms Miglio and Mr J.
The witnesses
Ms Parkmore's affection for X and her wish to maintain a relationship with her was not in dispute. Ms Parkmore’s answers in cross-examination were discursive, often non-responsive and self-justifying. She displayed little insight or empathy. For example, she was asked to imagine X’s feelings knowing, as X did, that Ms Miglio and her mother were opposed to X spending time with Ms Parkmore. She said in response that Ms Miglio should change her attitude. She did not answer the question and I had the impression that Ms Parkmore had difficulty accommodating or imagining points of view other than her own. I was also concerned by Ms Parkmore's encouragement to X to call her "mummy" years after she had ceased being a foster carer. I was left with the suspicion that Ms Parkmore was strongly motivated by our own emotional needs rather than the best interests of the children.
Ms Miglio, the mother and the father each gave evidence. They were unified in the position that the children should live with Ms Miglio and Mr J and she and the mother should have shared parental responsibility. It was clear that they were also unified in their position that the children should not spend time with Ms Parkmore. They expressed gratitude to Ms Parkmore for her care of X as a toddler but said her role as foster carer was over and the children, as Aboriginal children, should be developing their links with their family and extended family.
It was clear that Ms Miglio in particular considers Ms Parkmore's conduct, including her unsubstantiated reports to Territory Families and her pursuit of these proceedings in which she seeks as her primary object that the children live with her, to be intrusive and obsessive. I consider that Ms Miglio’s view is genuinely held and that she has a reasonable basis for that view. I consider it highly unlikely that Ms Miglio and the mother will change that view. Although the father was inclined to a more compromising position, it was clear that he considered Ms Parkmore's pursuit of the orders she seeks as inappropriate interference with an Aboriginal family.
I am satisfied that any significant involvement by Ms Parkmore in the children's lives, while they live with Ms Miglio, will cause dispute, hostility and mistrust between Ms Miglio, the mother and others, on the one hand, and Ms Parkmore on the other hand. I am also satisfied that Ms Parkmore is unable to establish any trust between herself and Ms Miglio and the children's family and, further, that Ms Parkmore is likely to use any knowledge she has of the children's lives to monitor Ms Miglio and the family. As noted, Ms Parkmore has made reports against Ms Miglio to Territory Families which were not substantiated and she has made allegations in this proceeding of serious abuse against Ms Miglio and Mr J unsupported by evidence and which I reject.
There is no evidence to support Ms Parkmore’s allegations of serious abuse and neglect of the children against Ms Miglio and Mr J. The school reports of both children were tendered in evidence and indicate regular attendance and no signs of neglect. The children appear engaged in school and to be developing normally. The ICL submitted that there was no evidence to support Ms Parkmore’s allegations. I accept that submission. The allegations should not have been made.
A family report was prepared. The Court Child Expert observed that Ms Parkmore reported experiencing grief and loss when X was reunified with the mother in 2015 after her foster care placement ceased. In the observation of the children and Ms Parkmore, Y was observed to give Ms Parkmore a hug and played with the clothes and toys brought to the observation by Ms Parkmore. X was initially reluctant to engage with Ms Parkmore but became more comfortable and they engaged in conversation. She only gave Ms Parkmore a hug at the end of the observation. The Court Child Expert noted no concerns during the observation.
During the observation with Ms Miglio and Mr J, which the mother later joined, the children initiated affection and general conversation. Y sought affection from her mother. X played a game with Ms Miglio. The children appeared comfortable in the company of each adult. The Court Child Expert noted no concerns.
The children were interviewed by the Court Child Expert and were observed to be neat and appropriately addressed, with their hair in plaits. X presented as polite, articulate and somewhat guarded in her responses. Y was an energetic and affectionate child.
X expressed a wish to remain living with Ms Miglio and Mr J, whom she described as “Mum Ms Miglio and Dad Mr J”. She discussed living at Suburb P Community. She said there were no drinkers in the house but sometimes extended family members argued but “Mum Ms Miglio or Dad Mr J told them to go away”. She described receiving an appropriate diet.
She was asked about Ms Parkmore and was aware of her family's hostility to Ms Parkmore. She said she needed her family and did not want to upset them. She said it would be "okay" to see Ms Parkmore but it would be confusing as she knew her family did not agree. In her oral evidence the Court Child Expert said that she thought it likely that X would like to see Ms Parkmore sometimes but the child was unwilling to say that. In her cross-examination by Ms Parkmore, the Court Child Expert said she believed there was an attachment between X and Ms Parkmore but she was not prepared to agree it was a “strong attachment”.
Y said nothing about Ms Parkmore to indicate any deep relationship. She indicated, as did X, a desire to continue residing with her extended family.
In her general observations, the Court Child Expert noted the important role a foster carer may have in a child's life. However, reunification of the child with the child's parents or family is the primary goal. She said that research indicates that children do best with a strong sense of identity formed from their relationships to their "family, community and country". By "country" the Court Child Expert evidently meant, in the case of Aboriginal children, their Aboriginal traditional lands.
The Court Child Expert accepted that there may be benefits for X from a relationship with Ms Parkmore: she gave the example of “enhanced social capital”, but considered there was a risk of undermining and destabilising the children's current living arrangements due to the hostile and acrimonious relationship between the parties.
The Court Child Expert observed that if contact between the children and Ms Parkmore was held to be in the children's best interests it should be limited to, for example, once a year on X’s birthday.
I accept the Court Child Expert’s opinions and observations which are consistent with the evidence before the court. In particular, I am satisfied there is a risk of destabilising the present arrangements of the children, the continuation which is, in my view, likely to be in the best interests of the children.
The risk, in my view, stems from Ms Parkmore’s failure to establish a respectful relationship with Ms Miglio and Mr J. Ms Parkmore’s conduct of the trial, with allegations of serious abuse, which I have rejected, has been damaging to any prospect of such a respectful relationship. It was ill-considered and reflected a lack of mature judgement. I am concerned that any continuing role of Ms Parkmore in the children's lives would lead to "monitoring" of Ms Miglio and Mr J, with the potential for further unmerited reports by her to Territory Families. I am satisfied that Ms Miglio and Mr J are likely to find any such continuing role to be deeply intrusive and unwelcome. In my view, such a response is understandable.
The legislative pathway
The court must follow the legislative pathway in Part VII of the Family Law Act 1975 (Cth) (“the Act”). A notable aspect of this case is that the contending parties, Ms Parkmore on the one hand, and Ms Miglio, Mr J, the mother and the father on the other hand, each contend that the children should live with a non-parent or non-parents. The provisions of the legislative pathway distinguish between parenting applications brought by parents and those brought by other persons who may be concerned with the care, welfare and development of a child. In the latter case a two-step approach is required involving the questions, first, is the applicant such a person and, second, if so, what order should be made in the best interests of the child: Aldridge & Keaton [2009] FamCAFC 229, [83].
In this case it was not in dispute that Ms Parkmore, Ms Miglio and Mr J were persons concerned with the care, welfare, or development of the children and were entitled to apply for parenting orders pursuant to s 65C of the Act.
The objects of Part VII of the Act are set out in section 60B(1) which provides that the objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential;
(d)ensuring that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying the objects of the Act (except when it is or would be contrary to the child’s best interests) are relevantly:
(a)children have the right to know and be cared for by both of their parents …; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development …; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children …; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(3) provides that, for the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Section 60CA provides that, “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”.
In determining what is in a child's best interests the court must consider the matters set out in s60CC (2) and (3). The primary considerations in determining the best interests are (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying the considerations the court is to give greater weight to the consideration in (b).
In this case I am satisfied that the need to protect the children from harm, particularly from neglect, is real. The children have a history of being involved with the child welfare authorities because of, primarily, alcohol misuse, family violence and instability in the lives of their parents. To the credit of the parents they have a degree of insight into the risks that these matters pose for the welfare of their children. They have, in response, agreed that the children should be placed with Ms Miglio and Mr J, who are members of their extended families, to ensure that the children are protected from harm. I am satisfied that while the children continue to live with Ms Miglio and Mr J they are adequately protected from the risk of harm from neglect. I am not satisfied, as Ms Parkmore claims, that it is necessary that the children live with her to adequately protect them from harm. I expressly reject that claim.
I am satisfied that while the children remain in the care of Ms Miglio and Mr J they will have the benefit of a meaningful relationship with both of their parents, having regard to the limits I have described, and be protected from harm. It appears that the mother lives with or regularly visits Ms Miglio and Mr J and in that way maintains a close relationship with her children. She has received some treatment for her alcohol misuse disorder but it is unclear to what degree, if any, that has been successful. She was sober and attended each day of the trial, and was attentive and engaged. The continuing role of Mr F in his daughters’ lives is less clear. Perhaps surprisingly, given his history, he demonstrated a high degree of insight into his children's needs. It was evident to me that he was aware he could not adequately care for his children. I did not doubt that he cared for them very much, within the limits of his capacity.
Ms Parkmore based her application on the principle set out s 60B(2)(b) which, relevantly, provides:
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
…(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); … (emphasis added).
As noted, it was not in dispute in the trial that Ms Parkmore satisfies the description, at least in relation to X, of a person significance, certainly in the past, to her care, welfare and development. However, the nature of that significance, and weight and importance to be given to it in future, was in dispute. Nevertheless, I have approached the matter on the basis that the principle described must be given full recognition, subject to the qualification described, that is, except when (I am positively satisfied) that it is or would be contrary to a child’s best interests.
I recognise that the considerations in subsection 60CC(3), or aspects of them, do not all apply to non-parents, but the parents in this case do not contend that the children should live with them, and the effective dispute is between non-parents. Nevertheless, the consideration provides a useful framework within which to consider the competing claims.
In relation to the additional considerations in subsection 60CC(3):
(a)The children both expressed a wish to continue living with Ms Miglio and Mr J and their extended family. Neither child expressed any wish to reside with Ms Parkmore. X, in the opinion of the court expert, would like to spend some time with Ms Parkmore, but the child was not willing to express that unequivocally.
(b)I am satisfied that each child has a close relationship with Ms Miglio, Mr J and the mother. I am satisfied that X has a significant relationship with Ms Parkmore, built up over some years, but I am not satisfied Y has any significant relationship with Ms Parkmore.
(c)The role of each of the parents in the upbringing of these children is apparent from the history given above. It has been fraught and marked by very serious issues of neglect, family violence and alcohol misuse. Nevertheless , I am satisfied that the parents, within their respective limits, have participated in decision-making about the children, most importantly in relation to their agreement that it is in the best interests of the children that they live with Ms Miglio and Mr J for the foreseeable future.
(ca) There was no evidence about the maintenance of the children.
(d)The will be no changes in the children’s circumstances.
(e)The children appear to have no difficulty spending time with both the mother and father, subject to the mother and father being available. Ms Miglio and Mr J support the children's relationship with their mother and father, subject to the necessity to keep the children safe.
(f)The parents do not have the capacity to provide for the children’s needs. Ms Miglio and Mr J have the capacity, for the reasons described above, to provide for the needs of the children, including emotional and intellectual needs. I am not satisfied that Ms Parkmore is in a position to provide for the needs of the children, including their emotional and intellectual needs in the same way or as comprehensively as Ms Miglio and Mr J. I was particularly concerned that Ms Parkmore levelled serious allegations against Ms Miglio and Mr J that were unsubstantiated or untrue. I was not satisfied that Ms Parkmore showed any real insight into the emotional needs of the children, particularly X, in the circumstances where X was painfully aware of hostility between her family and Ms Parkmore.
(g)I do not propose to say anything further about the maturity, lifestyle and background of the parties.
(h)The children are Aboriginal children and their right to enjoy their Aboriginal culture is, at their respective ages, most practically expressed through their right to spend time with their family and extended family. The orders I propose will recognise that right.
(i)I will not make any further comment about the attitude to the children and the responsibilities of parenthood demonstrated by the parents or other parties.
(j)I am satisfied that while the children were in the care of the mother and father they were exposed to family violence. I am satisfied that while they remain living with Ms Miglio and Mr J they are protected from exposure to family violence.
(k)There is no relevant family violence order of which I am aware.
(l)I have regard to these matters.
(m)There is no other relevant fact or circumstance.
I am satisfied that it is not in the children's best interests that they should spend any significant time, or any time at all, with Ms Parkmore for the reasons given above. While I accept that Ms Parkmore is genuinely motivated to maintain a relationship with X, in particular, I am also satisfied that the way Ms Parkmore has gone about pursuing such a relationship and in taking these proceedings has engendered enormous mistrust and hostility from the children's extended family. I am also satisfied that any significant involvement in the children's lives by Ms Parkmore, for example in receiving school reports, is not in the children's best interests. I am satisfied that such an involvement is likely to involve unnecessary "monitoring" of the children by Ms Parkmore. The reports she made to Territory Families in October and December 2020 were not substantiated. The allegation she has made in these proceedings were rejected. The basis for a constructive engagement in the children's lives is non-existent.
I acknowledge that X has a degree of attachment to Ms Parkmore. I am satisfied that X, if supported by her family, would like to spend some time with Ms Parkmore. However, in the absence of that support I am satisfied that any order that X spend time with Ms Parkmore is likely to be confusing and stressful for the child and productive of hostility between the extended family and Ms Parkmore which X, in particular, would be aware of. This is not in X’s best interests.
I propose to make an order that Ms Parkmore is permitted to send cards and a modest gift to the children at Christmas and on each of their birthdays. Hopefully, that may be of some comfort or reassurance to X if she feels that Ms Parkmore has forgotten her or is indifferent to her. The respondents did not oppose such an order. I also propose, as the respondents consented, to make an order that Ms Parkmore may, at her own expense, obtain copies of any awards or school photos of the children, which are ordinarily available, from their school or schools.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 21 September 2022
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