Princeton & Gleeson
[2022] FedCFamC1F 486
Federal Circuit and Family Court of Australia
(DIVISION 1)
Princeton & Gleeson [2022] FedCFamC1F 486
File number(s): BRC 9261 of 2019 Judgment of: BAUMANN J Date of judgment: 1 April 2022 Catchwords: FAMILY LAW – PARENTING – Where both parents and the maternal grandfather have reached final consent orders – Where the maternal grandmother does not consent to the orders in their entirety – Final orders made with the exception of overseas travel –Maternal grandmother to file an application in relation to international travel orders to be made a final basis Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 1 April 2022 Place: Brisbane The First Applicant: Litigant in person The Second Applicant: Litigant in person Solicitor for the First Respondent: Doyle Family Law Solicitor for the Second Respondent: KLM Solicitors Solicitor for the Independent Children’s Lawyer: Pippa Colman & Associates Law Practice Pty Ltd ORDERS
BRC 9261 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR C PRINCETON
First Applicant
MS D PRINCETON
Second Applicant
AND: MS PRINCETON
First Respondent
MR GLEESON
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous Orders be discharged.
Parental responsibility
2.That the father, MR GLEESON (“the father”) and the mother, MS PRINCETON (“the mother”) have equal shared parental responsibility for the child, X born 2014 (“the child”) in respect of all major long-term issues, including but not limited to:
(a)the child’s religious and cultural upbringing;
(b)the child’s health;
(c)the child’s name;
(d)the child’s education; and
(e)any changes to the parenting arrangements which make it significantly more difficult for one party to spend time with the child.
3.That for any decisions that do not relate to major long term issues, the following shall apply:
(a)The mother shall be responsible for the day-to-day care, welfare and development of the child when the child is in her care pursuant to this Order;
(b)The father shall be responsible for the day-to-day care, welfare and development of the child when the child is in his care pursuant to this Order; and
(c)The maternal grandparents shall be responsible for the day-to-day care, welfare and development of the child when the child is in their care pursuant to this Order.
Living arrangements
4.That the child shall live with the mother.
During school terms
5.That the child shall spend time with the father, as may be agreed to by the mother and the father, and failing agreement commencing 30 March 2022 and each alternate week thereafter from after school Wednesday (or 3.00pm if a non-school day) to before school Monday (or 3.00pm if a non-school day).
6.That the child shall spend time with the maternal grandparents as may be agreed between the mother and the maternal grandparents, and failing agreement commencing 4 April 2022 and each alternate week thereafter from after school Monday (or 3.00pm if a non-school day) to before school Tuesday (or 3.00pm if a non-school day).
School holidays
7.That the child shall spend time with the maternal grandparents during the school holiday periods as may be agreed between the mother and the maternal grandparents and failing agreement as follows:
(a)For four (4) nights during the Easter, June/July and September/October holiday periods and for such purpose the time shall commence at 3.00pm on the last Friday of the school term and conclude at 3.00pm on the day four (4) nights after the commencement of such time; and
(b)For one (1) week during the December/January holiday period and for such purpose the time will commence at 3.00pm on the second last Friday of the school holiday period and conclude at 3.00pm on the last Friday of the school holiday period.
8.That the child shall spend time with the parents during the school holidays as may be agreed between them and failing agreement as follows:
(a)For one half of the Easter, June/July and September/October holidays as follows:
(i)Commencing 2022 and each alternate year thereafter with the father for the first half of the school holiday period and with the mother for the second half of the school holiday period;
(ii)Commencing 2023 and each alternate year thereafter with the mother for the first half of the school holiday period and with the father for the second half of the school holiday period;
(iii)For the purpose of Order 8(a)(i)-(ii):
1.the school holiday period is taken to commence on the last day of the school term;
2.the school holiday time is taken to conclude when school resumes for the new school term; and
3.the halfway point is to be calculated by adding the number of nights in the school holiday period, subtracting four (4) nights (being the time the child spends with the maternal grandparents pursuant to Order 7(a)) and dividing same by two (2). If there are an odd number of nights, the child shall spend the additional night with the father.
(b)For one half of the December/January school holidays as follows:
(i)Until the child commences grade five (5) (in 2024), with the parents on a week about basis as follows:
1.For the 2022/2023 holiday period and each alternate year thereafter, with the father for the first, third and fifth weeks of such holiday period and with the mother for the second, fourth and six weeks of such holiday period; and
2.For the 2023/2024 holiday period and each alternate year thereafter, with the mother for the first, third and fifth weeks of such holiday period and with the father for the second, fourth and six weeks of such holiday period; and
3.For the purpose of Order 8(b)(i)(1)-(2) the school holiday period will commence 3.00pm on the last day of the school term and conclude at 3.00pm on the last Friday of the school holiday period. Changeover shall occur at 3.00pm each Friday during the school holiday period at which time the child will be returned to the care of the mother.
(ii)When the child commences grade five (5) (in 2024) as follows:
1.Commencing 2024 and each alternate year thereafter with the mother for the first half of the school holiday period and with the father for the second half of the holiday period (subject to the maternal grandparents’ time pursuant to Order 7(b));
2.Commencing 2025 and each alternate year thereafter with the father for the first half of the school holiday period and with the mother for the second half of the school holiday period (subject to the maternal grandparents’ time pursuant to Order 7(b));
3.For the purpose of Order 8(b)(ii)(1)-(2):
(c)the school holiday period is taken to commence on the last day of the school term;
(d)the school holiday time is taken to conclude on the last Friday of the school holiday period; and
(e)the halfway point is to be calculated by adding the number of nights in the school holiday period, subtracting seven (7) nights (being the time the child spends with the maternal grandparents pursuant to Order 7(b)) and dividing same by two (2). If there are an odd number of nights, the child shall spend the additional night with the father.
9.That the child’s time with the father and the maternal grandparents, pursuant to Orders 6 and 7 will resume at the commencement of each school term, as if the school holiday period had not intervened.
Special days
10.That for the child’s birthday:
(a)the child shall spend time with the parent she is not living with on that day, as may be agreed between the parents and failing agreement:
(i)if the birthday falls on a school day, from after school until 6.00pm; and
(ii)if the birthday falls on a non-school day, from 1.00pm to 5.00pm.
(b)the maternal grandparents are at liberty to call or visit the child on her birthday as agreed between the mother and maternal grandparents during the time the child would otherwise be with the mother.
11.That for the birthdays of the father, mother, maternal grandfather and maternal grandmother, if the child is not otherwise spending time with the person having the birthday, the person with whom the child is living on the day of the birthday will facilitate the child telephoning the party whose birthday it is between 5.00pm and 5.30pm on the birthday.
12.That if the child is not otherwise in the care of the mother on Mother’s Day, the child will spend time with the mother from 5.00pm on the Saturday prior to Mother’s Day until before school Monday, (the day after Mother’s Day) and any other Order inconsistent with this time is suspended to facilitate this time occurring.
13.That if the child is not otherwise in the care of the father on Father’s Day, the child will spend time with the father from 5.00pm on the Saturday prior to Father’s Day until before school Monday (the day after Father’s Day) and any other Order inconsistent with this time is suspended to facilitate this time occurring.
14.That the child shall spend Easter Sunday and Christmas Day with the party in whose care the child would ordinarily be, pursuant to these Orders.
Changeovers
15.That changeovers shall occur as may be agreed between the parties, but failing agreement as follows:
(a)At the child’s school (if changeover is to occur on a school day);
(b)At B Contact Centre, H Street, R Town when the child is to commence spending time with the father and at the conclusion of the child’s time with the father; and
(c)At the residence of the maternal grandparents or the mother as agreed between the mother and the maternal grandparents when changeover is between the mother and maternal grandparents.
Telephone communication
16.That the child is at liberty to communicate with all parties by way of telephone, FaceTime, Skype or other such electronic means, at any time the child may reasonably request to do so and the party with the care of the child at that time shall facilitate any such requested communication.
17.That the parent with whom the child is not living is at liberty to contact the child by way of telephone, FaceTime, Skype or other such electronic means each Tuesday and Thursday between 5.00pm and 5.30pm and the parent with whom the child is living at that time shall facilitate such communication.
18.That the maternal grandparents are at liberty to contact the child by way of telephone, FaceTime, Skype or other such electronic means each Wednesday, when the child is in the care of the mother, between 5.00pm and 5.30pm.
Extra-curricular activities and school events
19.That the parties shall not enrol the child in any new school or non-school based extra-curricular activities if such activity will require the child’s attendance during the time the child spends with the other parties, unless agreed in writing by the parents.
20.That all parties and their partners are at liberty to attend any school, sporting or other significant school or extracurricular activity involving the child, excluding day-to-day training.
Therapeutic assistance
21.That the child and the mother shall engage in attachment therapy, as recommended by the child’s treating Psychologist and for such purpose:
(a)the mother is directed to provide a copy of the Family Report prepared by Ms K and this Order to the treating Psychologist; and
(b)the mother and the child shall attend such attachment therapy as recommended by the treating psychologist for as long as therapeutically recommended by the treating Psychologist.
22.That the parties shall cause the child to continue to engage with the child’s dietician as and when requested by the child’s dietician and all parties shall adhere to the dietary recommendations made by the child’s dietician.
23.That the mother shall continue to engage with her treating mental health practitioner as and when therapeutically recommended by the mother’s treating mental health practitioner and for such purpose the mother is directed to provide a copy of the Family Report prepared by Ms K and this Order to her treating mental health practitioner.
Authorities and injunctions
24.That the parents shall:
(a)keep the other parent informed at all times of their residential address, contact telephone number and email address, and notify each other of any change within forty eight (48) hours of such change occurring;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treats the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child;
(d)inform the other parent as soon as reasonably practicable, and at the latest within two (2) hours, of any emergency care or hospitalisation required for the child.
25.That this Order shall be an authority to the child’s doctors and any other treating medical or health practitioners to provide each parent with any and all information, including documents and reports, relating to the health, wellbeing and treatment of the child and to discuss with either parent all matters relating to the child’s health and well-being, at the requesting parent’s cost.
26.That during the time the child is with any party, the parties shall:
(a)respect the privacy of the other parties and not question the child about the personal life of the other parties;
(b)speak of and to the other parties respectfully; and
(c)not denigrate or insult the other parties in the presence or hearing of the child and use their best endeavours to ensure that other do not denigrate or insult the other parties in the presence or hearing of the child.
27.That the parties shall ensure the child has use of her own bed and bedroom in each residence and will encourage the child to sleep in her own bed and bedroom and the father shall not bathe the child.
28.That the parties are restrained from permitting the child to come into contact with or have any communication with Mr L.
29.That the parties:
(a)are restrained by injunction from consuming illicit substances or alcohol to excess of the legal driving limit at any time the child is in the care of that party; and
(b)shall use their best endeavours to ensure the child is not exposed to any person using and/or under the influence of illicit substances or excess alcohol, when in the care of that party.
Parent’s admission
30.That if at any time a parent requires admission to a rehabilitation facility the following shall apply:
(a)If the mother is the parent requiring admission, then the maternal grandparents shall care for the child during the time the child would have otherwise been in the mother’s care under these Orders for the entirety of the mother’s admission and for one (1) month following her discharge; and
(b)If the father is the parent requiring admission, then the mother shall care for the child during the time the child would otherwise been in the father’s care under these Orders for the entirety of the father’s admission and for one (1) month following his discharge; and
(c)If both parents require admission at the same time then the child will be cared for by the maternal grandparents for the time the child would have otherwise been in the care of the parents pursuant to these Orders and for one (1) month following the parents discharge.
31.That the child’s time with the parents (or parent) pursuant to these Orders will recommence one (1) month after the parents/that parent’s release from the rehabilitation facility attended by the parents/that parent pursuant to Order 30.
THE COURT ORDERS UNTIL FURTHER ORDER:
Overseas travel
32.That the child be permitted to depart from the Commonwealth of Australia to spend time with either parent, or the maternal grandparents as follows:
(a)Any travel shall occur during the time the child would be in that party’s care under these Orders, unless otherwise agreed in writing by the parents;
(b)The travelling party shall provide the other parties at least eight (8) weeks’ notice of the intended departure date of the child.
(c)Not less than two (2) weeks prior to the departure date, the travelling party shall provide the other parties with:
(i)a copy of the pre-paid return air ticket for the child and the travelling party;
(ii)a copy of the pre-paid comprehensive travel insurance policy for the child and the travelling party;
(iii)a copy of the itinerary for the child and the travelling party; and
(iv)a list of contact addresses, telephone numbers and where possible email addresses where the child may be contacted by the party/ies who is not travelling.
33.That the father and the mother shall sign all documents as may be necessary to renew/obtain a passport for the child within seven (7) days of receiving a written request from the other parent, and the father and the mother shall be equally responsible for any costs associated with the renewal/obtaining of the child’s passport.
34.That the child’s passport shall be held by the mother and provided to any travelling party who complies with Order 32, at least fourteen (14) days prior to the departure date of any travel. The travelling party shall return the passport to the mother forthwith upon their return to Australia.
THE COURT ORDERS:
35.That in the event the maternal grandmother wishes to continue to seek an order for the child to spend time with her overseas for longer than is provided for in the interim Orders at Orders 32, 33 and 34 hereof, then:
(a)the maternal grandmother shall file and serve within two (2) months of the date of this Order, an Application in a Proceeding supported by affidavit, setting out the orders she seeks with particularity on a final basis;
(b)if the maternal grandmother fails to comply with Order 35(a) hereof, then the interim Orders herein will be made as final orders; and
(c)if the maternal grandmother does file such Application in a Proceeding, then the maternal grandfather, the mother and the father, if they wish to oppose the Application, shall within three (3) months file a Response to an Application in a Proceeding supported by affidavit.
36.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That with respect to Order 27 it is noted that the child is presently sleeping in the bed of both the mother and the father when spending time with them, and in her own bed whilst in the care of the maternal grandparents, although it is noted the maternal grandmother has a separate bed in the same room as the child. The parties are working together to transition the child back into her own bed.
B.That the parties agree that the child shall attend F School and the parents shall be equally responsible for the costs associated with the child’s attendance at this school.
C.That the parties acknowledge that the child is presently enrolled in swimming lessons at E Swim School or G Swim School and M Gymnastics.
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 the pseudonym Princeton & Gleeson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
This case is all about an eight year old little girl, X, who was born in 2014 and who had been diagnosed with an anxiety condition. X’s biological parents are not young. The father is now 34 and the mother is 41. The parents never seem to have had a committed relationship but nonetheless conceived this child during that relationship, as it was. The evidence is that, at times, both parents had been subjected to the demons associated with illicit drug use.
On 14 May 2019, Judge Cassidy in the Federal Circuit Court of Australia (as it then was) made final orders by consent, the effect of which were that X would live with the maternal grandfather Mr C Princeton and the maternal grandmother Ms D Princeton; that the maternal grandfather and the father would have equal shared responsibility for the child, and that, at that stage, the child would spend supervised time to the mother, supervised by the maternal grandparents.
At the time of those Orders, the child was ordered to spend alternate weekend time with the father, and from January 2020, that time commenced on a Wednesday and proceeded through to Monday each alternate weekend. Holiday time was also ordered.
It is apparent from that final Order that at the time, the mother had unresolved issues relating to her capacity, in particular her use of drugs. By October 2019, or namely within five months of those final Orders, the maternal grandparents filed a new application and through the course of that new Application, Judge Spelleken discharged supervisory orders in July 2020 and with further family reports obtained by the Independent Children’s Lawyer at the time, further amendments to the arrangements for X took place on an interim basis.
Ms K, an experienced social worker and family report writer, was engaged by the Independent Children’s Lawyer to prepare a family report. Interviews took place in October 2021 and a report was published on 27 October 2021. At the time of the report, X was living with her grandparents, but was having substantial time, effectively, and unsupervised with the mother from Wednesday to Monday in week one and with the father from Wednesday to Monday in week two, and effectively with the maternal grandparents Monday and Tuesday to probably 3.00pm on Wednesday.
This was effectively three seriously caring adult groups in X’s life sharing her care. It was reported in the family report of Ms K that when they expressed their views to Ms K, they said they wanted the child to live with the mother. This reflected, it seemed to me, an acceptance by the mother’s parents that whatever issues had been a difficulty for her in terms of her functioning, leaving aside her relationship with the father, she had dealt with those demons and could manage the care of X.
The mother expressed the view that, although thankful for the role her parents had played in X’s early years, she just wanted the maternal grandparents to simply be grandparents.
Recommendations were made by the family report writer which are to a large degree consistent with the orders which were presented to me yesterday. I acknowledge that the Court is not bound by the evidence of a family report writer. It is but part of the evidence. However, yesterday, 31 March 2022, I was presented with a minute of consent order signed and consented to be the maternal grandfather Mr C Princeton, the mother Ms Princeton, the father Mr Gleeson and the Independent Children’s Lawyer Ms Bolton. Those orders had 43 agreed orders and three notations.
I note that the mother and father have the benefit of separate legal representation. The maternal grandparents were unrepresented.
Sadly, it seems that in recent times the maternal grandparents have separated and no longer have a common view as to what is in the best interests of X. The maternal grandmother says, as a result of these orders, X’s interests are not being met.
The maternal grandmother appeared by telephone today from Country T. She is looking after a sick friend in that country. It was apparent to me that the maternal grandfather, when questioned, does fully support the orders. He has signed them. He supports his daughter and has no current concerns about the father. It is clear that in the past he shared the concerns that the maternal grandmother had about the father.
Although it is a little unclear from the statements made by the maternal grandmother to me yesterday, I prefer to accept that she does support her daughter. But her comments made it clear that she seeks to regulate how her daughter may parent, and particularly interact with the father.
The maternal grandmother has made it clear that she clearly distrusts and expressed, essentially, a concern about the father – who she regarded as having a coercive controlling nature and behaviour towards her daughter. I should at this point note that there is no evidence of any current State protection orders or domestic violence orders between the parents.
The maternal grandmother had a copy of the orders that were signed by everybody but herself, and as the records and transcript would reveal, I took over an hour to go through her concerns in those orders. Importantly, she did not indicate to the Court any concern with order 1 which discharged earlier Orders; order 2 in relation to parental responsibility being shared between the mother and father, and relevantly, order 4 which provided that the child will live with the mother. Critically, however, she did not agree for reasons not patently clear to me, with order 5. That order prescribed the child spending time Wednesday to Monday alternate weeks with the father as has been happening and as was recommended by the report writer. Her concern, as expressed, appeared to relate to the words “as may be agreed between the mother and father”, because it was, in her view, open-ended and could lead to the father having more time with the child than she believes is appropriate.
Sadly, the maternal grandmother did not seem to grasp the reality that that would only occur with the consent of her daughter who would be aware of the circumstances why there may, occasionally or even in a more permanent way be an increase in time, and whether it was in the best interests of X or not at that time.
It would be hard to take the maternal grandmother’s expressed position to me yesterday as other than based on a lack of trust that her daughter may increase time between X and the father because of his alleged controls over her. The transcript will reveal that I then went through the other orders the maternal grandmother opposed, which was essentially as follows:
(a)Order 9, because it was different than the earlier consent orders, I explained why, in my view, the order was appropriate;
(b)Orders 19 and 20, being the first right of refusal of care “between the parents”. Again, the maternal grandmother felt this gave the father more control than he deserved. After indicating I would not make those orders, which was a matter totally within my discretion as I explained to the parties, the judge being required to be satisfied that the orders are in the child’s best interests, none of the parties who signed the consent order sought to retain those orders any further. They would therefore be removed;
(c)For similar reasons, and with a similar outcome, concerns were raised about order 22 which was also removed;
(d)Order 23 required the maternal grandmother to engage in psychological treatment. The maternal grandmother made a valid objection to that order. She sees no need for it and she does not agree with it. At 62 years of age and with limited time with X in the future under the orders as I will make them, I do not believe the injunctive power to mandatorily cause the maternal grandmother to undertake such “therapeutic treatment” as may be recommended was appropriate. As a result, it will be removed, and was no longer pressed;
(e)Despite the best-intentioned recommendations of the family report writer, orders 28, 29, 30, 31 are removed. I will not make them for the oral reasons expressed and accepted by all parties;
(f)Order 32(a) as drafted was beyond power and, as acknowledged by Ms Bolton, there was no objection by any of the parties at the bar table that it be removed;
(g)After hearing submissions from the maternal grandmother and with the consent of the other parties, order 35 was amended to include the words “and the father shall not bathe the child” at the end of that paragraph. The maternal grandmother wished to extend that order to an injunction restricting the child from sleeping in the father’s bed. I explained to the maternal grandmother why the enforcement of such an order is almost impossible; that there is an order quite appropriate for a child of this age and to develop her independence; that all the parties which included, of course, the maternal grandparents, should encourage the child to sleep in her own bed. At least at the time of the family report, the child, perhaps because of her anxious state, it would seem, often slept in the bed of the maternal grandparents. I raise no concerns about that. She is an anxious child, and I explained that to the maternal grandmother how I was not prepared to make the order that she sought so far as it related to the child in the father’s home. She no longer pressed that order.
Future overseas travel was a particular concern to the grandmother, who as I mentioned was in Country T at the time of the case management hearing. Because the maternal grandmother feels the limited school term time the child (as prescribed under the orders I will make) will spend time with the maternal grandmother, she believes the holiday time was insufficient to allow her to travel overseas with X, which in a practical sense is entirely correct. She indicated she would like the opportunity to seek an order, as I understand it, not currently particularised, that could allow the child on occasion to spend up to four weeks a year overseas with the maternal grandmother.
It was not possible, in my view, in terms of this matter appropriate to seek to “negotiate” an outcome on that issue. I will make orders 40 to 42 of the draft handed to me yesterday as interim orders and reserve the right for the maternal grandmother within two months to file an Application in a Proceeding supported by affidavit setting out the terms of the order she seeks for overseas travel into the future.
As I will not require the Independent Children’s Lawyer participation in that dispute, the order I propose to make for the Independent Children’s Lawyer to be discharged will continue.
I should mention that without any evidentiary foundation, I was not prepared to extend the injunction at order 36 to the father’s adult cousin, Mr N, who the maternal grandmother claims is a well-known drug dealer or addict. Ms Bolton confirmed there was no evidence before the Court of such issue. Even if there had been, in my view, the father, who has unsupervised time with the child, must take responsibility for ensuring the child is safe in his care.
Importantly, the maternal grandfather had no objection to the orders that he had signed. He clearly was comfortable that his relationship with his daughter is such that she will facilitate time between the child and him without court orders. Accordingly, as Ms Bolton suggested yesterday and I agree, references in the draft orders handed to me and signed by the parties, will reflect that the time the child is to spend with the maternal grandparents will in fact be the time the child is to spend with the maternal grandmother.
I would have delivered these ex tempore reasons for judgment yesterday, however before the matter was stood down at 3.00pm to allow the Court to deal with other matters, I was informed that the maternal grandmother wished me to consider the contents of her affidavit filed 4 February 2022 (sworn 11 January 2022), and an email the maternal grandmother had apparently sent to my Associate on 15 March 2022. I have, without objection from the other parties, marked the email as Exhibit 1.
Although the Independent Children’s Lawyer says such material does not take the matter anywhere, in fairness to the unrepresented and clearly passionate maternal grandmother, I elected to read this new material overnight and deliver these Reasons today after doing so.
As to the affidavit, it raises inter alia these issues:
(h)complaints about the compliance by a Ms O, a person who was said to be a counsellor for the father. The maternal grandmother asserts not only non-compliance with the subpoena she issued, but more seriously, “tampering of evidence”. I do not propose to analyse what the maternal grandmother asserts as criminal behaviour of Court staff and/or the Independent Children’s Lawyer Ms Bolton, or the assertions that Ms O was required to provide a sample of her handwriting. I know of no order made by the Court for that to occur. The alleged conspiracy which is effectively what the maternal grandmother is alleging, deposed to at paragraphs 11 to 27, is not demonstrated on that evidence. No doubt if the maternal grandmother followed through with her intended complaint to the Australian Federal Police, the Ombudsman or other regulatory bodies that had powers to investigate criminal behaviour, then she has exercised those remedies and has her answer;
(i)Paragraphs 28 to 32 of her affidavit raises allegations about alleged inconsistency between the father’s evidence and the counselling offered by Ms O (and further, clearly does not accept Ms O’s response to the letter from the maternal grandfather dated 15 December 2021). It seems to me abundantly clear, whatever the position may have been earlier, that the maternal grandfather Mr C Princeton does not seem to join the maternal grandmother in her concerns about Ms O now. It follows, as I have indicated to the maternal grandmother, that if she felt she had some cause to assert that Ms O had not complied with the subpoena, then she could bring an appropriate application. But for reasons given, clearly the Application in a Proceeding which I dismissed yesterday was fundamentally and fatally flawed. I gave the maternal grandmother fair notice. If, of course, she pursued such relief against Ms O and was not successful, then she would face the consequences of such a costs application likely to be brought. I would hope that the maternal grandmother will consider whether she would bring such an application. That is ultimately a matter for her.
In respect of the email of 15 March 2022 marked Exhibit 1, I indicated in open court yesterday that it was both inappropriate for litigants to email a judge. To do so, even when the parties have a copy, does not remedy the failure to apply appropriate protocol. Further, there should be no expectation that any judge would read an email sent to them on an ongoing matter.
However, as reflected, I have permitted the maternal grandmother to tender the letter. I have now read it. The email asserts tampering again of evidence and that “criminal offences have occurred” and that “the court wishes for those criminal matters to be covered up”. This allegation is both rejected and has already been referred to in these Reasons. The alleged “corruption and criminal anomalies in our matter” referred to in Exhibit 1 asserts criminal or unprofessional conduct by her original solicitor; bias by a former solicitor and effectively collusion with another solicitor; unprofessional conduct by the Independent Children’s Lawyer (particularly during the first trial), but involving concealing evidence and engaging the family report writer and by engaging the family report writer she did, it amounted to some form of “contempt of court”.
I found it difficult to understand some of the allegations made, but I take into account they are made by a person, although clearly intelligent, who has no legal training. I am unaware of any earlier applications for a recusal of the Independent Children’s Lawyer, “because she has not acted in the best interests of the child” when the proceedings were in the Federal Circuit Court of Australia. However, there are no pending applications before me in this Court at this time, although the maternal grandmother refers to some affidavit where such an allegation may have been made. That is not an application, and no such application is before me.
If there had been a proper application properly made and asserted, the Independent Children’s Lawyer Ms Bolton would be given the opportunity to respond. As the Independent Children’s Lawyer is now being discharged, any application would be futile.
The maternal grandmother in her letter pleads that:
Justice Baumann, you have sworn to uphold the justice, and that the court was there for the best interests of the child. For this reason, this matter needs to go to trial, and the perjured affidavits by the father and the coverup of his drug use on parole and later need to be addressed. The AFP need to investigate the collusion with [P Services], given the handwriting of the first document was seen by your manager […], then had another handwriting replace it. This implicates many people in this fraudulent coverup. Currently, in subpoenaed documents, you will see that [P Services] state that the father attended all appointments at [U Town] offices. When I stated this didn’t coincide with the father’s affidavit, then another letter arrives stating: Father had two phone sessions, one of them with [Ms O]. Father’s affidavit states he attended upon his unknown counsellor, so nothing aligns, and the documents that had been – the documents, had they been authentic and not had different incorrect date stamps on them as having entered the court’s mailroom, then this tampering anomaly would never have occurred and the need to change these documents five times in a court evidence office would not have taken place.
It seems that on this basis, the maternal grandmother says that there is a necessity for the matter to be listed for trial despite all the persons interested in the life of this child at this stage, including her former husband, having consented to arrangements which, on the face of the evidence from the report writer at least, is consistent with the child’s best interests.
While such a submission might have been supported by the maternal grandfather Mr C Princeton, on 15 March 2022 which is the date of Exhibit 1 (which I am by no means certain as it only comes from the email address on which I do not know who has control of it), Mr C Princeton’s execution of the consent orders is subsequent to that letter, and his brief submissions to me yesterday making it entirely clear that he does not support that position at this stage.
The final paragraph of the email contends that:
Judge Cassidy is a judge favoured by all the parties to hear this matter due to her previous involvement, and we ask that you give this your consideration. Judge Spelleken went to university with [Mr Q], so I believe this is a reason she chose to our matter removed from her jurisdiction to the Family Court.
Judges do not get to choose their cases, and parties do not get to choose their judge. I am satisfied that it is in the best interests of the child to make final orders notwithstanding some aspects of the orders to which I have referred, the maternal grandmother opposed. What the Court does every day in its work must be directed to the best interests of the child.
I will leave it for another day, if the grandmother wishes to pursue the issue as to the overseas travel with her. The Independent Children’s Lawyer does not need to be retained for that limited issue to be determined. I do not anticipate that anything I have said today will satisfy the expressed concerns of the maternal grandmother, who I suspect now feels somewhat isolated by the maternal grandfather agreeing that the agreed time for the child to spend with the maternal grandmother in the orders being available for her alone hopefully just means when the maternal grandmother is able to return from overseas, she can take up all the opportunities for time the orders provide.
I do not, of course, ignore the reality of this life for X, that for a period when the mother – and I would infer, to a large degree the father – were not capable of meeting the needs of the child, that grandparents stepped in. That would have given them a significant impact on their life and no doubt, with continual time between the grandparents and the child, the relationship of grandparent and child can be preserved. However, it is to be hoped that the earlier correspondence and statements of the maternal grandmother, some of which I had set out in these brief Reasons, do not demonstrate on her part an inability to support her daughter. Her daughter is the biological mother of the child, and she is, under the order, everyone agrees, the person who should be the primary carer of X. I fear that these Reasons will not explain to the maternal grandmother well enough the fact that the orders may not sustainably resolve these parenting issues forever. At some future time, the Court might again be asked to intervene into the arrangements for this somewhat anxious little girl. Until then, however, the orders I make today are in her best interests, in my view, and I make them on a final basis.
If however the Court is ever asked to intervene in this young girl’s life again, there is every risk that such an outcome is likely to seriously and negatively affect her development and her ability to reach her potential. Having made those orders today, as I have indicated according to these Reasons, I make the following orders, noting that the orders as to overseas travel shall be made on an interim basis only.
If the maternal grandmother wishes to continue to seek an order for the child to spend time with the maternal grandmother overseas for longer than is provided for in the interim orders made, then:
(a)the maternal grandmother shall file and serve, within two months, an Application in a Proceeding supported by affidavit setting out the orders she seeks with particularity on a final basis;
(b)if the maternal grandmother fails to comply with the preceding order, then the interim order pronounced today will be a final order;
(c)if the maternal grandmother does file such an application, then the mother, father, and maternal grandfather, if they wish to oppose the Application in a Proceeding relied upon by the maternal grandmother, shall within three months from this date file a Response supported by affidavit.
If the Application in a Proceeding is filed in accordance with this order, it shall be listed for case management hearing on a date to be fixed before me.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 8 July 2022
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