Parkmore & Miglio (No 2)

[2021] FCCA 1280

FEDERAL CIRCUIT COURT OF AUSTRALIA

Parkmore & Miglio (No 2) [2021] FCCA 1280

File number:	DNC 707 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	5 May 2021
Catchwords:	FAMILY LAW – parenting – interim hearing – concerning two children who are eight and four years of age – whether the children are at an unacceptable risk of harm – where the children live with an extended family member – where there is a high level of conflict between the parties – where the applicant alleges the children are at risk of harm and neglect in the respondent’s care – where the applicant was previously a foster carer of the children – where the respondent considers the applicant’s interest in the children is inappropriate and obsessive – where the Family Consultant is concerned about the impact of the children spending time with the applicant – Court not satisfied the children should spend time with the applicant
Legislation:	Family Law Act 1975 (Cth) ss 11F, 60CC, 60I
Number of paragraphs:	29
Date of hearing:	5 May 2021
Place:	Darwin
The Applicant:	Appearing on her own behalf
Solicitor for the Respondent:	Ms Gray of Grays Legal NT

ORDERS

DNC 707 of 2020

BETWEEN:

MS PARKMORE

Applicant

AND:

MS MIGLIO

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	5 MAY 2021

UPON NOTING that the father Mr F and the mother Ms G will be joined as second and third respondent to these proceedings on the next occasion upon receipt of proof of service of the Initiating Application.

THE COURT ORDERS THAT:

1.That the applicant serve the biological mother with a copy of the Initiating Application and supporting documents as soon as practicable.

2.That the respondent MS MIGLIO be known as MS MIGLIO in these proceedings.

3.That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the proceedings X born in 2013 and Y born in 2016 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services 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, such report to be released on a date to be advised.

4.That the family report to deal with the following matters:

(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

5.That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

6.That the parties are to confirm their attendance to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled.

7.That 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.

8.That 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.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 8 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

9.That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

10.That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

11.That leave is granted to the applicant Ms Parkmore and to include the Independent Children’s Lawyer (if appointed), and any family consultant and family report writer) to inspect and copy the material produced by the Northern Territory Police pursuant to the subpoena filed on 8 April 2021 (SAVE AND EXCEPT for those marked confidential). Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses NOTING leave is granted on the condition that all copies are destroyed at the conclusion of the matter and that the legal representatives keep the copies in their possession until that time.

12.That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b)annexing such material as is considered relevant, with

(c)the affidavit to be paginated, indexed and exhibits tagged.

13.The proceedings are adjourned to the trial call-over list on 1 October 2021 at 2:15pm.

14.The parties no less than seven (7) days prior to the call-over date provide to the Court:

(a)A brief Summary of Argument including Minute of Orders sought; and

(b)A Trial plan indicating estimated length of trial sought and witnesses relied upon at trial.

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 Parkmore & Miglio (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting matter concerning X who is eight years old and Y who is understood to be four years old, however, her birth date is unknown on the papers before me. The applicant is Ms Parkmore.  Ms Parkmore is a legal professional.  She acted at one point as a foster carer for the Department of Territory Families, Housing and Communities (Territory Families).  She was a foster carer for X between about 2013 – which was approximately 9 months after X’s birth – until 2015.  In other words, for a period of slightly less than two years. 

2. X and Y are Aboriginal children.  Their biological mother and father are Aboriginal people.  It appears from the Territory Families material that the children, at an early age, were both subject to neglect. This occurred particularly as a result of their mother’s abuse of alcohol, their exposure to family violence and general instability. 

3. This was the background to X being placed with Ms Parkmore.  It appears that the children were then placed with the biological mother again; at least X was and Y was born during that period. This transpired approximately four years ago.  In early last year, it appears that Territory Families had ongoing concerns about these two children being in the care of their mother.  The children were then placed with Ms Miglio, who is an Aboriginal person, from approximately the middle of last year. The arrangement of this placement was informal in nature. The materials are a little unclear, but it seems that Territory Families approached this on the basis that Ms Miglio was related to one of the biological parents. However, the material about the exact nature of the relationship between Ms Miglio and the biological parents of these children is unclear. 

4. It seems that the children have not been subject to a child welfare order. There is no reason why the jurisdiction of this Court cannot be invoked. 

5. Ms Parkmore stated that after the period of foster care ended and X returned to live with her mother Ms Parkmore continued to see X on a regular basis via an informal arrangement.  Ms Parkmore says that she would see X on a regular basis on the weekends. The precise arrangements are a little bit unclear, but it does not appear to be contested that that was the case. Whether Y spent time with Ms Parkmore on a regular basis is less clear.  Ms Parkmore said that she did. However, the evidence is a little bit unclear about what that might mean in concrete terms. 

6. Ms Parkmore brought an urgent application in this Court in December 2020 alleging that the children were at risk of harm or neglect through exposure to family violence. Firstly, I am not satisfied that there was urgency to the application. Secondly, Ms Parkmore did not initially comply with the requirements of section 60I of the Family Law Act 1975 (Cth) (the Act) which requires an attempt at mediation between the parties prior to the application being brought. That failure, which I am satisfied was a failure to comply with section 60I of the Act, has not helped matters.

7. The relationship between Ms Miglio and Ms Parkmore appears to be strained. The commencement of these proceedings has not helped the relationship.  Ms Miglio is opposed to Ms Parkmore’s involvement with either of these children.  Ms Miglio, it would appear, sees Ms Parkmore’s desire to have a relationship with the children (X, in particular) as obsessive and inappropriate. 

8. Ms Parkmore in her submissions to me today has pointed to a number of factors which she says support her allegations that the children are at risk of harm or abuse in Ms Miglio’s care. She points to an undated letter on the Territory Families’ file, which she has attached to an affidavit. The letter appears to come from X’s classroom teacher at H School.  Ms Parkmore says that it can be dated to sometime after August 2020, when it appears not to be in contention that X was living with Ms Miglio and Ms Miglio’s partner, Mr J.  The letter states:

   X often arrives at school in need of a shower and her clothes slept in and obviously worn for many days.  She is often not wearing full school uniform.  Her hair is unwashed and unbrushed and she often has nits.  She often wears shoes which are far too big.  She has told us that at times she has had to sleep outside as there are so many people in the house making a lot of noise.

   There are some other remarks but I do not need to deal with those. 

9. That letter is inconsistent with a letter from the principal of H School which is attached to the affidavit of Ms Miglio dated 19 April 2021. The letter is addressed – “To whom it may concern” – It really ought to have been made clear who was seeking that letter and it should not be addressed “To whom it may concern”.  If it was sought for use in this Court, it should be addressed to this Court.  However, leaving aside that reservation about how this letter was requested, the letter says as follows:

   Ms Miglio enrolled X …into H School on 5 March 2020. 

   X attends school on a regular basis and she is well-presented. 

   The letter then goes on to refer to the fact that X participates in a Centrelink-supported nutrition program which sees her provided with lunch and a recess snack five days a week.  The letter goes on to refer to Ms Miglio as being X’s main carer and says:

   Ms Miglio is an active member in our school community.

10. There is no indication of neglect arising from this letter.  However, as I say, the letter really ought to have been addressed to the Court. 

11. Ms Parkmore also referred to criminal convictions of Ms Miglio and Mr J.  She said that in July 2013, Ms Miglio was convicted of supplying cannabis.  She said in May 2018, Mr J was also convicted of a drug offence involving cannabis.  Ms Miglio was said to be aware of, or involved in this, but she was not convicted. 

12. Ms Parkmore also referred to a number of family violence incidences in the police file. In February 2018, there was apparently a report by Ms Miglio complaining about some neighbourhood dispute.  On 4 March 2018, the father of the children was assaulted. At the time his address was said to be at the house where Ms Miglio lives.  However, I point out that it is not said that the assault took place at the house.  On another date, there were said to be disturbances at Ms Miglio’s house, however, they did not involve Ms Miglio. Apparently that disturbance involved either Mr F or other relatives that were present.  In 2020 there was another domestic disturbance, when again some other person (not Ms Miglio or Mr J) became involved. 

13. The material that Ms Parkmore has referred to is obviously concerning but I am not satisfied that that material necessarily means that the children are at risk of harm or neglect.  This is a case where the evidence would need to be tested more thoroughly and more detailed assessment would need to occur.  I do not believe I can adequately do that in this interim hearing. 

14. Ms Parkmore also made general claims that Mr J was in poor health. He apparently suffers from kidney disease according to Ms Parkmore.  She says that the house where the children were residing, which is on an Aboriginal community in Darwin, does not provide adequate housing.  Ms Parkmore alleged that there was over-crowding.  The record of the disturbances or police callouts she mentioned may lend some support to that. 

15. Much of the thrust of Ms Parkmore’s case concerns allegations that the children are at risk of harm and neglect in Ms Miglio’s care.  I asked Ms Parkmore whether she had notified Territory Families of her concern that the children were at risk of harm or neglect.  She told me that she had made an informal notification to a Territory Families worker but had not raised the matter through the central intake telephone system. That is of significance because nowhere in the extensive materials that Ms Parkmore has relied on from Territory Families is there a record of Ms Parkmore having notified Territory Families that she believed the children were at risk of harm or neglect .  This Court is not a de facto Child Welfare Court, as I explained to Ms Parkmore.  This Court does not have any investigatory powers to directly investigate these kind of allegations.  That is something for Territory Families. 

16. There is no particularly objective material before me which indicates that, as a matter of urgency, I should make any particular order about these children. 

17. It seems to me incumbent upon Ms Parkmore, if her allegations are genuine ones, to raise that with Territory Families in the conventional way. She is a legal professional. She would know exactly what is required. The other issue concerns the relationship of the children with Ms Parkmore. I made an order for the preparation of a Child-Inclusive Conference Memorandum pursuant to section 11F of the Act. The Memorandum documents the concerns of Ms Parkmore and Ms Miglio. Each of their concerns are, essentially, held about the other: Ms Parkmore claims that the children were at risk of neglect or harm in Ms Miglio’s care. Ms Miglio is concerned that Ms Parkmore’s interest in the children (X, in particular) is inappropriate or obsessive.

18. It is not possible to reach any conclusions about those matters.  However, the Family Consultant interviewed both children.  Y was said to be:

    …happy, social, friendly and inquisitive…who was enthusiastic about engaging in play with the writer. She appeared in good health, clean and well dressed.

    Y was observed affectionately engaging with Ms Miglio and her husband in the lobby area. 

19. Y said that things were “good” at home and she “liked” living with Ms Miglio.  Y described Ms Parkmore in the following terms:

    that white lady like you [the Family Consultant]; sometime X go with her, but not me.

    Y did not elaborate any further. 

20. X presented as:

    …a gentle, friendly and articulate girl who appeared in good health, clean and well-dressed.  She engaged confidently with the writer and the writer considered her communication skills and interactions to be age appropriate. 

    X said that she missed her mother (her biological mother) and her maternal grandmother.  She said that she now lived with Ms Miglio and her partner and described them as “Mum Ms Miglio and Dad Mr K”.  Y went on to say:

    I like it there, I like having fun and playing with my cousins and friends and mum makes me nice food like stew.  …It’s good there and mum takes me to visit lots of family and other people like at Suburb L and Suburb M. 

21. X was asked about Ms Parkmore and the child said:

    Ms Parkmore  told me “I am your mum” but she’s not my real mum.  

    X reported that she had previously spent time with Ms Parkmore and said:

    She is nice but it’s boring there because there is no one to play with and I like living with my other mum and dad and I didn’t like how she made me say things about my other mum. 

22. X went on to say:

    I tried to ask if my cousin or sister could come with me when she picked me up and she said no.  I don’t want to go there anymore now. 

23. She was asked about her five most “safe people” and she nominated:  Ms Miglio, Mr J, her older brother, N;  her cousin, E, her little sister, and her cousin B.  She did not identify anything which caused her to feel scared, worried or sad in her current living arrangements. 

24. In summary, the Family Consultant concluded that Y had not developed a significant relationship with Ms Parkmore. She also believed that X had come to feel somewhat ambivalent about spending time with Ms Parkmore.  The Family Consultant referred to the “highly acrimonious, tense and hostile tone between Ms Miglio and Ms Parkmore”.  She expressed – in the context of the hostility between Ms Miglio and Ms Parkmore – concern about the impact on the children if they were to spend time with Ms Parkmore.  The Family Consultant accepted that X had developed a relationship with Ms Parkmore but pointed out that from about two and a half years of age, X had lived with her family or extended family and within a cultural environment.  That was a significant factor in considering arrangements for Aboriginal children.  The Family Consultant considered that in the “absence of evidence of significant risk to the children in their current care arrangements” she did not suggest any change.

25. Having regard to all of the matters in section 60CC of the Act, including subsections (2)(a), (2)(b) and (3), I am not satisfied that I ought to make an order that either of the children spend time with Ms Parkmore on an interim basis. I consider that there are serious issues about the likely impact on these children should I make such an order. This is particularly so, as the Family Consultant pointed out, against the background of real hostility between the parties. This hostility arises due to Ms Miglio’s serious reservations about Ms Parkmore’s motivations. and Ms Parkmore’s allegations about Ms Miglio’s capacity to care for the children.

1. I do, however, propose to make an order for the preparation of a Family Report. 

2. I also propose to make an order that Ms Parkmore is permitted to copy any police material for the purpose of including the material in an affidavit.  The material is not to be used for any other purpose than for these proceedings. 

3. I will make an order that the applicant is to serve the biological mother with a copy of her Initiating Application. 

4. I will adjourn the matter to 1 October 2021 at 2:15pm. 

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       8 June 2021