Parsons and Berry and Anor

[2020] FCCA 700

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARSONS & BERRY & ANOR [2020] FCCA 700

Catchwords:
FAMILY LAW – Parenting – parental responsibility – best interests of the child – where child lives with mother – where paternal grandmother seeks child live with her – where father has not participated in Court proceedings – where mother and father have history of illicit drug use – where hostile relationship between mother and paternal grandmother – where real risk the child will not be shielded from expressions of the paternal grandmother’s hostility towards o denigration of the mother – child is to live with mother – child is to spend limited time with paternal grandmother.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DA, 65B

Applicant: MR PARSONS

First Respondent: MS BERRY

Second Respondent: MS PARSONS

File Number: DNC 278 of 2018

Judgment of: Judge Young

Hearing dates: 11 & 12 March 2020

Date of Last Submission: 12 March 2020

Delivered at: Darwin

Delivered on: 12 March 2020

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the First Respondent: Ms Farmer

Solicitors for the First Respondent: Withnalls Lawyers

Counsel for the Second Respondent: In person

Independent Children’s Lawyer: Ms Holtham

ORDERS

1. That the Mother have sole parental responsibility for the child X born … 2012.

2. That the said child live with the Mother.

3. That the said child spend time with the Paternal Grandmother as agreed between the Paternal Grandmother and Mother, and in default of agreement, as follows:

   (a)For three (3) months, from 9am to 5pm each second Saturday, commencing on the Saturday first available with CatholicCare NT (“CCNT”), with changeover to occur at CCNT;

   (b)For the following two (2) months, from after school Friday (or 2.30pm if Friday is a non-school day) until 5pm Saturday with the child returned to CCNT;

   (c)Thereafter, on the third weekend of each month, from after school Friday until 12 noon the following Sunday; and

   (d)During Easter each year, in Holy Week from after school Wednesday (or 2.30pm if it is a non school day) until after school the following Monday (or 2.30pm if it is a non school day)

4. That handovers occur at the child’s school on school days and at CCNT at other times.  In the event that CCNT is not available, then handover occur at Church A, B Street, Darwin, and if that is not available, then at a public place to be agreed between the parties prior to time commencing, NOTING if there is no agreement as to a changeover location, the time to be spent shall not occur.

5. In the event that the child is unable to spend time with the Paternal Grandmother pursuant to order 3 above, due to not being in the Darwin area, then the Mother shall ensure that the child has make up time with the Paternal Grandmother as soon as practicable afterwards.

6. That the said child spend time with the Father if the Mother agrees to such time occurring and it shall only be on a supervised basis at CCNT.

7. That the Paternal Grandmother is permitted to allow the Father’s daughter C to be present during the child’s time with the Paternal Grandmother.

8. That the child communicate with the Paternal Grandmother by telephone at the following times, commencing five (5) months from the date hereof:

   (a)On the first Sunday of each month at 6pm, unless the Mother and Paternal Grandmother agree otherwise in writing; and

   (b)On Christmas Day, the child’s birthday, and the Paternal Grandmother’s birthday and name day, at 6pm if a school day, and otherwise at 9am on those days.

9. That for the purpose of telephone communication in accordance with order 8 above, the Paternal Grandmother shall ring the Mother’s phone.  The Mother shall ensure that the child is available to answer the call, and the Mother will not speak to the Paternal Grandmother and shall provide the phone to the child.

10. That the Mother is authorised to obtain a passport and any renewals for the child without having to first obtain the consent of the Father.

11. That the child is permitted to travel within Australia and overseas with the Mother upon the Mother providing the Paternal Grandmother with at least 21 days’ notice of the intention to travel and providing the Paternal Grandmother with the child’s departure and return dates, except the Mother is not required to give 21 days’ notice if there is an emergency, such as a death overseas.

12. That the Paternal Grandmother is permitted to attend at the child’s school for school assemblies, sports days, concerts and other activities or events routinely attended by grandparents, and at extra-curricular events the child may be engaged in from to time.

13. That a copy of this order will authorise the child’s school and/or medical practitioner/s to provide to the Paternal Grandmother, records, notices or other material concerning the education, health and welfare of the child, including but not limited to school reports and other information pertaining to the child’s ongoing education, and information regarding the health and wellbeing of the child.

14. In the event that the child suffers a serious injury or illness or is hospitalised while in the care of the Paternal Grandmother, then the Paternal Grandmother is authorised to seek medical attention for the child, and she shall immediately notify the Mother by telephone and provide her with all relevant details including the child’s treating practitioners.

15. In the event that the child suffers a serious illness or injury while in the care of the Mother, the Mother shall notify the Paternal Grandmother in writing of such injury or illness and provide relevant updates as they occur, within 24 hours, and the Paternal Grandmother shall provide such information to the Father when she is reasonably able to do so.

16. That the Paternal Grandmother and Mother shall provide to each other their respective telephone numbers, residential addresses and email addresses and provide details of any change within 48 hours.

17. That each party is restrained and injunctions are granted restraining each of them from:

    (a)Speaking negatively to the child about the other or that other’s family, and allowing the child to remain in the presence of any other person who may be speaking negatively about the other party or their family;

    (b)Exposing the child or allowing the child to be exposed to family violence, and each has a positive obligation to remove the child from any environment where family violence is occurring;

    (c)Exposing the child to drug misuse or allowing the child to remain in the presence of any person affected by illicit drugs;

    (d)Discussing any aspect of these proceedings with the child, or allowing any other person to do so; and

    (e)Physically disciplining the child.

18. That each party shall speak positively and politely to the other at all times during handover and on any other occasion when the child may be present or in the vicinity.

19. That the Paternal Grandmother be restrained and an injunction issue restraining her from:

    (a)Providing either directly or indirectly to the Father, the Mother’s address;

    (b)Permitting the child to spend time or communicate with the Father;

    (c)Making arrangements for the child to spend time with or communicate with the Father; and

    (d)Allowing any third person to do any of the above.

20. In the event that the Father attends the Paternal Grandmother’s home when the child is visiting, the Paternal Grandmother shall ask the Father to leave, and in the event he will not, she shall call the police for assistance and shall notify the Mother of what has occurred as soon as practicable.

21. That the Paternal Grandmother and the Father are restrained and injunctions are granted restraining each of them from allowing the child to have contact with or to come into the presence of the Father’s partner, Ms D.

22. That the Paternal Grandmother and the Mother enrol into “Family Relationship Education and Skills Training” and “Triple P” Parenting programs within 6 months from the date hereof, and provide a Certificate of Completion to each other within 7 days from receipt of such certificate.  If either program is not available but a similar program is available instead, then the parties shall instead enrol in and complete such alternate program, as soon as practicable.

23. That the Mother shall attend upon her General Practitioner as soon as practicable but by no later than 21 days from the date hereof, with a view to obtaining a Mental Health Care Plan, and if her GP considers such Plan to be appropriate, the Mother shall ensure that she accesses the services available pursuant to the Plan, until such time as she no longer requires assistance as assessed by her GP or mental health provider.

24. That each party pay one-third (1/3) of the costs of the Independent Children’s Lawyer if requested to do so by the Northern Territory Legal Aid Commission in respect of these proceedings.

25. That the appointment of the Independent Children’s Lawyer be discharged.

26. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A attached hereto, and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Parsons & Berry & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 278 of 2018

MR PARSONS

Applicant

And

MS BERRY

First Respondent

MS PARSONS

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case concerning a child, X, who is almost seven and a half years old. She was born in 2012. Her parents began a relationship in about 2008. The relationship appears to have been marked by family violence and use of illicit drugs, particularly methamphetamine.

3. It appears to be not in dispute that for the entirety of the relationship between the parents, from 2008 to around about 2014, both parents used methamphetamine. The mother says that it was under the influence of or under pressure from the father. I cannot make any findings about that and I do not propose to make any findings about that. I am satisfied however that there is a very significant history of misuse or use of illicit drugs in the background of both parents.

4. The mother says that she ceased use of methamphetamine about the time she separated from the father. She said that she continued to use cannabis after that, only cannabis, and she told me that she ceased her cannabis use about a month ago. Whether or not that is true, I do not know.

5. The mother also said in cross-examination that she had been stopped by police, I think in 2018 or perhaps 2017, and was given a roadside drug test.  This resulted in a suspicion of drugs in her system and she was taken to the hospital for a blood test.  She said during that test she returned a positive result for methamphetamine. 

6. She said that the reason for that was that she had purchased cannabis from a drug dealer a relatively short time before or some time before and, unbeknown to her, the plastic bag in which her cannabis was contained had previously been used to hold methamphetamine. Therefore, she implied, the cannabis was adulterated or affected by methamphetamine. Whether or not that is true, I do not know. However, the mother in 2019 I think, was ordered to undertake a hair follicle test. That test was negative for methamphetamine. It was positive for cannabis but was negative for methamphetamine.

7. The mother also said to the family consultant in the first report prepared in February 2019 that she had ceased using cannabis.  That does not appear to have been correct.  In the second report prepared in October 2019, she said she was occasionally using cannabis.  She told me in oral evidence that until about a month ago she continued to use cannabis on a daily basis. 

8. I consider that the mother is likely to be dependent to some degree on the use of cannabis and I think it will prove quite difficult for her to cease using cannabis.  I accept that she would like to cease using cannabis and, so far as she can, intends to cease using cannabis.  The fact remains that it is part of her history and there has been a long history of illicit drug use.

9. The father, who did not participate in these proceedings, is an unknown quantity. I accept that he has been a user of methamphetamine, and as far as I know, could still be a user of methamphetamine. He has not participated in the proceedings in any significant way. He did not attend a child-inclusive conference ordered by the Court and he did not participate in the family report interviews. I was told in evidence that he was incarcerated last year for a period of about six weeks. The paternal grandmother did not know why he was incarcerated. I consider it is likely that the father continues to use, or misuse, illicit drugs, including methamphetamine.

10. I should say something about the credibility of the two principal witnesses, that is, the mother and the paternal grandmother. I was not satisfied that the mother is a particularly reliable historian. I had the impression that, particularly in relation to events between about 2016 and 2018, when the mother went to Queensland leaving the child in the care of the father and at times the paternal grandmother, that she very significantly underplayed her responsibility for leaving the child in the care of others and to some degree, I am satisfied, refusing to discharge her responsibility as a parent.

11. As for the paternal grandmother, I have very significant concerns about her credibility and reliability.  The paternal grandmother consistently downplayed the problems associated with her son and has at various times denied, in the face of the evidence, that he is an abuser or misuser of illicit drugs.  I am satisfied, she has been quite unable to acknowledge the mother’s legitimate concerns and indeed the Court’s legitimate concerns about her son’s capacity as a parent. 

12. My particular concern arose in relation to her evidence about a particular incident.  According to the orders of the Court, she was to supervise any time the child spent with her son and in an incident in about September last year the mother took the view that the paternal grandmother was not complying with that order. 

13. The paternal grandmother told me that there had been an event when the child accompanied her father to the park near the paternal grandmother’s home. Initially the paternal grandmother told me that she had watched the child and her father from her home or from the yard of her home. She lives in a block of units. When shown a map it became obvious that that could not be correct. The paternal grandmother then said that she had in fact walked down the street, where she could keep the child and the father in sight.

14. I am not satisfied that the evidence the paternal grandmother gave me about that is correct. I am also not satisfied that she breached orders, which were simply for supervision. It might be that if the child and the father were out of her sight for a relatively short time that is not a breach of the order. I am not talking about that. I am talking about credibility and reliability.

15. The history, as I have said, is that the parties separated in 2014 when the child was between 18 months and two years old. The circumstances immediately following separation appear to have been turbulent. It would appear that the father certainly, and possibly the mother, continued to be involved in a drug milieu. The mother was in fact stabbed in the leg in 2016 as I understand it, in circumstances that were unclear.

16. She and her then partner and, I understand, now fiancé, Mr E, moved to Queensland and lived there for two years. X was effectively left with her father and the paternal grandmother. The mother says that the father kept the child from her and she was unable to do anything about it. I do not accept that. I do not accept that the mother was unable to do anything about that. I think the most likely reason for her failure to take steps to recover the child was that her life was unstable and turbulent. The reasons are not entirely clear, but I am satisfied that the basic reason for her failure to recover the child or take steps to have the child returned to her care was instability in her own life.

17. In 2018 or thereabouts the mother moved back to the Northern Territory and began to spend some time with the child, with the cooperation of the paternal grandmother, who was caring for the child at that time. The mother and the paternal grandmother initially appear to have had a reasonably cooperative relationship. In June 2018 however, the mother went to the home of the paternal grandmother and without the permission of the paternal grandmother removed the child and took her to Town F.

18. That resulted in an application to the Court by the father, with the paternal grandmother being joined later as a respondent to the proceeding. That resulted in a recovery order and an order that the child be delivered back to the paternal grandmother where she had been living. There were also orders that the child spend time with the mother. Those issues were resolved very significantly in May 2019 when consent orders were made that the child live with the mother. The mother, at that stage and her partner Mr E were living in Darwin as I understand it.

19. The paternal grandmother initially sought orders that the child live with her but as the proceedings have unfolded it appears that the position of the paternal grandmother is that the child should spend every second weekend with her and some holiday time as well. The mother’s position, which is exactly the same as the independent children’s lawyer’s position, is that the child should live with the mother. The mother should also have sole guardianship of the child and, after a graduated process, the child should be spending one weekend a month with the paternal grandmother, from after school Friday to noon on Sunday.

20. The real issue for determination is the significance of the paternal grandmother’s hostility to the mother. Both family reports, and most particularly the first family report from Ms G which was dated 18 February 2019, noted the very close relationship between the child and the paternal grandmother. At the time of that report the child was, after the making of the recovery order, living with the paternal grandmother.

21. Ms G noted that there was a close relationship between the child and the paternal grandmother and was of the view that, while the child should live with the mother, the child should spend significant and substantial time with the paternal grandmother.  She recommended that the child spend alternate weekends with the paternal grandmother and a week-about regime during the long summer school holidays and also for additional time during the short school holidays.  That was Ms G’ position as at 18 February 2019.

22. I might say the reason why she recommended that the child live with the mother was that Ms G was impressed by the mother and considered the mother to be a responsible and child-focused parent, clearly accepting that the mother had changed and/or matured since her period in Queensland between 2016 and 2018. I also accept that view, that the mother’s stability, maturity and child focus has improved dramatically since the period that she was absent in Queensland. I accept the opinion of the family report writer about the mother and her capacity as a parent, that is, that she is at present perfectly capable of caring for this child very well and indeed all the evidence suggests that the child is presently happy and well cared for.

1. The significance of that is this.  The paternal grandmother has a deeply hostile or negative view of the mother.  In large part, that appears to have been precipitated by the mother’s ill-judged action in going to the paternal grandmother’s home in June 2018 and effectively removing the child without any notice or without the paternal grandmother’s agreement.  That has led to a breakdown in trust between the parties and growing hostility.  That is most regrettable but it has happened and there is no evidence, or no indication, that it is likely to change in the future.  Neither party trusts the other party one millimetre.

2. The difficulty for the child or the effect that has on the best interests of the child is as follows. If the paternal grandmother is unable to shield the child from her intensely negative view of the mother and her deep hostility, then it can be expected, as Ms G the family consultant said in evidence, that the child will pick up on that and the child will be conflicted.

3. Some of the things the paternal grandmother said to the family consultant who prepared a limited issues report dated 11 October 2019 were as follows. She said that the mother brainwashes the child. She said the mother “may give drugs” to the child. She expressed a concern that the mother’s partner, Mr E, could sexually interfere with the child.  She denied that her son, Mr Parsons, was responsible for his misuse of illicit drugs and she blamed the mother for that. And at paragraph 74 of the report, when the paternal grandmother said that she did not know the mother’s address, she commented “That’s how smart the bitch is.”

4. Considering that the paternal grandmother was speaking to a family consultant attached to the Court at that point and that she would have known that family consultant was preparing the report for the Court, in other words, that the occasion was formal and official and that her words would be recorded, her lack of reserve in describing the mother in that way is, in my view, indicative of not only the intensity of her hostility to the mother, but raises a very significant question about whether the paternal grandmother is able to restrain her expression of hostility to the mother in any circumstances. That, therefore, gives rise to the fear that should the child spend significant and substantial or extended time with the paternal grandmother, that the child will not be shielded from expressions of the paternal grandmother’s hostility to the mother.  I am satisfied that there is a real risk of that.

5. The evidence of Ms G, the family consultant, is that she was of the view, once she was informed of the evidence about that, that her recommendation in her report from February 2019 was no longer appropriate. She considered that there may be an argument for the child’s time with the paternal grandmother to be supervised. Where the mother does not propose supervision and the independent children’s lawyer does not propose supervision, I do not propose to discuss that further. It is indicative however of the level of concern that the family consultant had on hearing evidence of those expressions of the paternal grandmother’s hostility to the mother.

6. Ms G then agreed with the position adopted by the independent children’s lawyer and the mother that the appropriate amount of time for the child to spend with the paternal grandmother was one weekend a month after a graduated introduction to that.

7. I might say that the mother and the independent children’s lawyer adopted a further position that the child should spend Easter with the paternal grandmother. It is from after school on Wednesday to before school on Monday if it is a school day or at CatholicCare, if it is not a school day or a public holiday, or another location if CatholicCare was not available. Church A was proposed, which as I understand it is agreed.

8. I do find that the paternal grandmother’s level of hostility to the mother and the intensity of her dislike along with the allegations that she made, not only to the family consultant but in oral evidence to this Court, which largely mirrored the allegations made to the family consultant – that is of exposing the child to drugs or the risk of the child being sexually assaulted and so on, for none of which was there any evidence before this Court – that the paternal grandmother’s hostility and distrust is unabated and is not likely to abate in the foreseeable future.

9. I am satisfied that there is a real risk, and I consider it an unacceptable risk, that should the child spend extended periods with the paternal grandmother, the paternal grandmother will express or may express those views to the child and I am satisfied that that would not be in the child’s best interests. Accordingly, in general terms, I consider that the proposals of the mother and the independent children’s lawyer should be adopted.

10. As the father has not participated in proceedings to any degree and there is evidence that the father has a history of misuse or use of illicit drugs, including methamphetamine, and there is evidence that the father was imprisoned last year for matters which I have not heard evidence about, I am not satisfied that it is in the child’s interest to spend any time with the father.  I propose to make an order that if the mother does agree for the child to spend time with the father, it is to be supervised at CatholicCare.

11. Turning to the legislative pathway. The primary considerations in assessing the child’s best interests are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents. As I have said, the father has not participated in proceedings. The evidence is that he has a history of misuse of serious drugs, including methamphetamine and has been incarcerated for reasons that are unknown. In the circumstances I am not satisfied that a relationship with the father, at least one that is unconstrained, is in the child’s best interests.

12. Although section 60CC, subsection (2)(a) does not speak in terms of grandparents, I am satisfied that subject to appropriate restraint, it is in the child’s interest to have a relationship with the paternal grandmother. I am satisfied that they have been very close in the past and that that is an important relationship to the child.

13. Part (b) is a factor, the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. While the risk that I have described, that is, of the paternal grandmother failing to shield the child from her views of the mother, probably does not constitute family violence or neglect, I consider that if that were to occur, it would constitute abuse for the purposes of that section – emotional abuse. So that is a factor that is present in this case and I have to give weight to. In fact, I have to give it the greatest weight of those two factors.

14. The additional considerations in section 60CC are as follows: (a) “any views expressed by the child”.  I am not aware of any particular views being expressed by the child about these matters.  It is clear thought that the child has a very close relationship with her mother, with Mr E the mother’s partner and with the paternal grandmother. 

15. (b): “The nature of the relationship of the child with each of the child’s parents and other persons, including grandparents”. I think I have already said enough about that. The child also has a half-sister, the other child of her father, C, who it appears she spends some time with, though the precise amount of time and the nature of the relationship was unclear. The mother also has had two subsequent children with Mr E, one child who is 20 months old and one child who is about four months old, I think. There do appear to be indications that X has a close relationship at least with the elder of those two children.

16. (c): “the extent to which each of the child’s parents have taken, or failed to take, the opportunity to participate in making decisions about long-term issues, spending time, and communicating with the child.” I have said something about that and in particular what appears to have been the mother’s substantial absence from the child’s life between 2016 and 2018 and in more recent times the father’s absence from the child’s life. In relation to (ca), I am not aware of any evidence about that matter.

17. (d):“the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child.” The child has been living with the mother since the consent orders made in May last year, so there will be no significant change. However, the orders I propose to make will see that the child does not spend time with the father, unless the mother agrees or unless the time is supervised at CatholicCare.  I am satisfied, given the evidence of the paternal grandmother’s attitude to her son, in particular her denial and downplaying of his drug history and ignorance of his criminality, or alleged criminality. For example, in relation to the reason for his imprisonment last year the paternal grandmother is either in denial or is ignorant of her son’s behaviour.  In those circumstances she is, in my view, not an appropriate supervisor for any time the child spends with the father.

18. (e): is not a factor. 

19. (f):“the capacity of each of the child’s parents and any other person, including a grandparent, to provide for the needs of the child, including emotional and intellectual needs”.  I have said enough about the father.  In relation to the mother, I am satisfied that she is able to provide for the needs of the child and has been doing so satisfactorily, including the emotional and intellectual needs.  As I have indicated already in these reasons, some reservations about the capacity of the paternal grandmother to provide for the emotional needs of the child in particular.  I am speaking about my concern about her inability to shield the child from the paternal grandmother’s hostility to the mother. 

20. (g): I do not propose to say anything more about as I have made relevant comments. 

21. (h): The child is an Aboriginal child. Her mother is of Aboriginal descent. There was no real evidence about the significance of the child’s Aboriginal culture or questions about her right to enjoy that culture.

22. (i): “the attitude to the child and to the responsibility of parenthood demonstrated by each of the child’s parents”.  As I have said about the mother, I am satisfied she historically has not discharged her responsibility as a parent satisfactorily.  Over the past year at least however, she has done so and the child appears to be doing very well in her care.  As for the father, in my view there is no evidence to suggest anything other than that the father’s capacity and attitude to the responsibilities of parenthood is very limited indeed.

23. There are allegations of historical family violence, particularly between the mother and the father, but as they have separated some years ago, those allegations are of little or no significance in this case.  While there has been some evidence of a family violence order concerning the protection of the mother against the father’s current partner, there are no orders between the paternal grandmother and the mother, and it is unnecessary to say anything more about that subject.

24. In relation to (l), whether it would be preferable to make an order least likely to lead to institution of further proceedings.  Ms Holtham, as the independent children’s lawyer suggested at one point that interim orders may be appropriate.  The family report writer thought that was a bad idea and so do I.  I propose to make final orders today.  It is time this proceeding was brought to an end and I am satisfied that it is in the best interest of the child that final orders be made today.  There are no other facts or circumstances I consider relevant.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  26 March 2020