Sherwin and Enright and Ors

[2014] FCCA 399

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHERWIN & ENRIGHT & ORS [2014] FCCA 399

Catchwords:
FAMILY LAW – Competing applications by Grandparents – Father of young child in prison – Mother of the child with significant drug, alcohol and gambling issues – assessment of risk to child of [coercive] psychological harm by Father.

Legislation:

Family Law Act 1975, ss.4AB, 60B(1)(b), 60CA, 60CC(2)(b)

Re Frieda & Geoffrey (2009) 40 Fam LR 608
McCall v Clark (2009) 41 Fam LR 483
Mulvaney v Lane (2009) 41 Fam LR 418

Orwell & Watson [2008] FamCA 62
Slater v Light (2012) 45 Fam LR 41

Applicant: MS N SHERWIN

First Respondent: MR ENRIGHT

Second Respondent: MS WALTON

Third Respondents: MR SHERWIN & MS C SHERWIN

File Number: CAC 884 of 2013

Judgment of: Judge Neville

Hearing date: 25 October 2013

Date of Last Submission: 28 February 2014

Delivered at: Canberra

Delivered on: 6 March 2014

REPRESENTATION

Solicitors for the Applicant: Mazengarb Family Lawyers

Solicitors for the First Respondent: Self Represented

Solicitors for the Second Respondent: Self Represented

Solicitors for the Third Respondents:
Elringtons

Solicitors for the Independent Children’s Lawyer: Barker & Barker

ORDERS

1. The “Response” filed by the paternal Grandmother (the Second Respondent) on 24^th December 2013, be dismissed.

2. The Orders sought by the maternal Grandparents in the Application in a Case, filed 25^th October 2013 be made in the following respects (on an interim basis):

   (a)the child, [X] (born [in] 2011) live with the maternal Grandparents,

   (b)the child spend no time with her Father,

   (c)the child spend time with her Mother in accordance with the directions given by the [ACT] Director-General, Community Services Directorate, Office for Children, Youth and Family Services “OCYFS”),

   (d)the child spend specified time with the paternal Grandmother, and

   (e)the paternal Grandmother be restrained from otherwise bringing the child into contact with the Father – either by face to face time while he is in prison, by telephone, or Skype.

3. The child be removed from the airport watch list.

4. The child be permitted to travel outside of the Commonwealth of Australia and with the maternal Grandparents, MR SHERWIN and/or MS C SHERWIN subject to;

   (a)The child residing with the maternal Grandparents at the time of the proposed travel pursuant to an order made under the Family Law Act 1975;

   (b)The maternal Grandparents giving each other party four weeks’ notice in writing of the proposed travel, including details of the itinerary, copies of tickets and details of make up time following the period of travel for any party who forgoes time as a result of the travel; and

   (c)The travel does not exceed a period of four weeks.

5. The Mother shall not remove the child from the maternal Grandparents’ care without the prior approval of Care and Protection and an order of this Court.

THE COURT NOTES THAT:

A.The paternal step-Grandfather shall be permitted to spend time with the child when-ever she spends time with the paternal Grandmother, provided that, like the paternal Grandmother, he is restrained from bringing the child into contact with the Father by any means.

B.The paternal Grandmother filed a Notice of Risk of Child Abuse (Form 4) on 12 February 2014 and these Orders are made in light of, and with consideration of, the Form 4.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 884 of 2013

MS N SHERWIN

Applicant

And

MR ENRIGHT

First Respondent

MS WALTON

Second Respondent

MR SHERWIN & MS C SHERWIN

Third Respondents

REASONS FOR JUDGMENT

Introduction

1. Respectfully, the facts of this matter, and the never-ending range of allegations, claims and counter-claims, could almost pass as a script for one of the more depressing but still occasionally and passingly lurid Russian novels, albeit dressed up in vernacular garb.

2. All that said, the basic focus of the Court is quite simply on appropriate parenting orders for almost three year old [X].  But it is really not that simple.

3. Having been previously convicted for being an accessory (after the fact) to murder, [X]’s Father is currently incarcerated pending trial, among other things, for a charge of arson where it is alleged that he burnt down the maternal Grandparents’ residence.

4. The Applicant Mother has a range of not insignificant allegations with which to contend, including prostitution (which she denies), drug taking (which she admits) and drug trafficking (on which she is silent, but which, it is said, has resulted in her being involved with ‘drug syndicates’ who now seek to extort or otherwise secure outstanding funds from her by presumably less than pleasant means), damage to property, possession of stolen property, fare evasion, and the assault of her Mother.

5. In short, the real contest (which has been on-going for a little time) is between the maternal and paternal Grandparents regarding “time-with” arrangements for the non-resident Grandparents.  The “residence” of the child is, on an interim basis, with the maternal Grandparents.  This has occurred primarily through various and on-going parenting plans worked out with ACT Care and Protection Services.

6. Unsurprisingly, there is a welter of material – indeed, a veritable blizzard of paper - which has only increased since the separate legal representatives of both the Father and his Mother (the paternal Grandmother) ceased to act.  For example, in relation to the current residence and ‘time-with’ application, there have been filed nine (9) sets of submissions, six (6) affidavits, one Response, one Amended Response, and one Reply.

The Current Application

1. On 25^th October 2013, the maternal Grandparents filed an Application in a Case.  Leaving to one side various orders that might more readily be treated as procedural and need not here be set out (e.g. for a report from the relevant authority pursuant to s.69ZW Family Law Act 1975 (“the Act”) – which order has been made), the substantive orders sought are that:

   (a) the child live with the maternal Grandparents,

   (b) the child spend no time with her Father,

   (c) the child spend time with her Mother in accordance with the directions given by the [ACT] Director-General, Community Services Directorate, Office for Children, Youth and Family Services “OCYFS”),

   (d) the child spend specified time with the paternal Grandmother, and

   (e) the paternal Grandmother be restrained from otherwise bringing the child into contact with the Father – either by face to face time while he is in prison, by telephone, or Skype.

2. The substance of the material set out in the two affidavits filed by each of the maternal Grandparents (filed at the same time as the Application in a Case) in support of the orders sought may be summarised by noting that, in addition to having had regular involvement in the child’s life including weekly care of her, since a “Child Protection Case Conference” conducted by ‘Care & Protection Services’ in October 2013, [X] has remained in their full-time care. Copies of the safety plans for [X], confirmed by the ACT Department of Community Services, dated 25^th September 2013 and 11^th October 2013, are annexures A and B to the affidavit of Mr Sherwin (the maternal Grandfather), filed 25^th October 2013.

3. The maternal Grandparents confirm also a range of matters involving the Mother, including her involvement with Care and Protection Services and the hope that, in time and with assistance, the child may return to the full-time care of her Mother.  The Mother has agreed to undergo drug testing and rehabilitation to address her substance abuse issues.  They confirm that the child spends regular time with her Mother at the residence of the Grandparents.

4. The maternal Grandparents confirm that they have no objection to the child spending regular time with the paternal Grandmother

   
   

   (Ms Walton), but remain concerned about her placing the interests of her son (the child’s Father) ahead of the best interests of the child.

5. With few qualifications, the Mother supports the Grandparents’ application, on an interim basis, that [X] should continue to reside with them and spend regular time with her.  The Mother formally opposes any change of residence of the child, submitting that, among other things, the child is well-settled with the Mother’s parents and that the child has had little time with the paternal family, including Ms Walton.

6. These reasons proceed as follows: (a) orders sought (b) [chronologically] the submissions by (and other evidence from) each of the parties, (c) the submissions of the ICL, (d) consideration & resolution.

Orders Sought

1. Subject to what is set out in the various submissions (and additional affidavits noted below), it is sufficient for current purposes to set out here the orders sought by the paternal Grandmother, taken from her Amended Response, filed on 29^th January 2014.  The Father has confirmed his support for the orders sought.

2. The orders sought by the paternal Grandmother are (a) to restrain the maternal Grandparents from taking the child out of Australia, (b) that the child be placed on the airport watch list, and (c) that the paternal step-Grandfather be included in the consent orders made on 13^th November 2013, pursuant to which the paternal Grandmother now spends time with the child.  Certainly ancillary orders are also sought, for example in relation to the notice to be given if any of the “time-with” arrangements are to be changed.

3. It will be immediately obvious that the orders sought, at least as at 29^th January 2014, do not include a change of residence order by the paternal Grandmother.

Chronology & Submissions

1. What follows must be understood in the light of the Father remaining in gaol pending either any bail application (which the Mother suggests, without any obvious reasons why, might occur in May of this year), or the determination of his charges at trial (on which more later).

2. The following submissions should also properly be understood in the context of the various grandparents, as well as the independent children’s lawyer (“the ICL”), consenting to interim orders that were made by the Court on 13^th November 2013, which provide for a regime for the child to spend time with the paternal Grandmother.

3. What follows is a summary of the small mountain of material filed thus far.

4. On 8^th November, the Mother filed submissions in which she confirmed that she (a) supported the orders sought by the maternal Grandparents, (b) confirmed that she was shortly to commence drug rehabilitation, and (c) said that the child’s primary attachments were to her and to the maternal family.

5. On the same date (8^th November) the Father filed submissions in which he said that (a) there was regular violence in the maternal Grandparents’ house, (b) he as concerned about the Mother’s drug-taking and her involvement with “numerous criminal elements”, (c) the maternal Grandparents were hostile to him which, he said, would likely imperil his relationship with his daughter, and (d) in the light of his concerns, he seeks that the Mother’s time with [X] be supervised and that the Mother have regular drug screens.

6. Also on 8^th November, the paternal Grandmother (Ms Walton) filed the first of her many submissions.  As she does in virtually all of her material, Ms Walton asserts/complains about the child’s exposure to (a) violence in the household of the maternal Grandparents, (b) the Mother’s drug-taking, and (c) the unreliable care by the maternal Grandparents.

7. On 12^th November, the ICL filed his submissions.  They are treated separately later in these reasons.

8. On 20^th November 2013, the maternal Grandparents filed further written submissions in which they sought, essentially, that (a) the existing orders continue regarding the child to reside with them, (b) the child spend time with the Mother whilst she remained in their care, and (c) that the child should continue to spend regular time with the paternal Grandmother. A copy of a further safety plan, which was provided by Care and Protection in the s.69ZW Report, confirmed that the Department was content for the child to continue to live with the maternal Grandparents, and that the safety plan would continue until February 2014.

9. The Father filed further submissions on 20^th November in which he sought, among other things, to re-visit the orders of 25^th October (regarding the residence and time-with orders), and to support the application to stop the child being taken out of the country.

10. On 24^th December 2013, the paternal Grandmother filed a “Response” and further affidavit.  In these documents she set out the reasons why she wanted a restraint on [X] being taken out of Australia, and why she should be put on the ‘watch list.’  Essentially, Ms Walton expressed concern about the maternal Grandmother’s family connections in Sri Lanka which, says Ms Walton, are hostile to the maternal Grandmother, which would (it was said) likely expose the child to some risk of she travelled to Sri Lanka with the maternal Grandmother. 

11. The concerns expressed by Ms Walton are made (as later sworn by the maternal Grandparents) in the context of the maternal Grandmother having lived in Australia since 1987, of the child having previously travelled to Sri Lanka without problem, and that the maternal Grandparents are both employed by the (Commonwealth) Department of Foreign Affairs for many years.  Further, on 24^th December 2013, the ACT Department of Community Services wrote to the solicitors who act for the maternal Grandparents to confirm that the Director-General of the Department had no issue with the maternal Grandparents taking the child to Sri Lanka.

12. Unfortunately, the effect of the filing of Ms Walton’s “Response” was to place the child on the watch list.  Only as the maternal Grandmother and the child attempted to proceed through immigration at Sydney Airport did the Grandmother become aware of the watch list order.  Doubtless at significant expense, and certainly at significant disruption (and likely confusion to the child), the Grandmother and child returned to Canberra.  The maternal Grandmother later went to Sri Lanka by herself.

13. It was also in this “Response” that Ms Walton sought to have her Husband, Mr B, included in the consent orders that were made on 13^th November 2013.

14. On 3^rd February 2014, the maternal Grandparents filed a Reply in which they sought orders to have Ms Walton’s Response dismissed.  They also sought orders to enable them to travel overseas with the child (as and when the opportunity/need arose) and for certain details (such as itinerary, etc) to be provided to the paternal Grandparents.

15. In the maternal Grandmother’s affidavit filed on 3^rd February, she confirmed (a) the circumstances of when/how she and [X] were stopped at Sydney Airport from departing the country, (b) that the Mother had entered a residential rehabilitation program in early November, (c) that the Mother now lives with the maternal Grandparents (with the knowledge of Care & Protection), and (d) that she does not object to the paternal step-Grandfather spending time with [X] when the child also spends time with Ms Walton.

16. The maternal Grandfather’s affidavit confirms, in large part, the account given by his Wife, but adds a range of material (primarily “text” and similar/other messages) between he and Ms Walton relating to fixing times/dates (or attempting to do so) for [X] to spend time with the paternal Grandmother.  He too says that he has no objection to the paternal step-Grandfather spending time with the child when she is with Ms Walton.  Mr Sherwin (the maternal Grandfather) also deposes that [X] says that when she is with Ms Walton ‘she speaks with Daddy’ who remains in prison.  If this is so, it would be contrary to the existing orders.

17. On 5^th February, the Mother filed an affidavit in which she deposed that (a) she now attends Alcoholics Anonymous (“AA”) (twice weekly), Narcotics Anonymous (“NA”) (five times per week), and Gamblers Anonymous (“GA”) (once per week); (b) she has entered into a recovery plan with Canberra Recovery Services, such as on 16^th January, she began an 8 week non-residential (but discontinued after 2 weeks); (c) on 3^rd February, she had her first session with her psychologist; (d) she has done three [recent] drug screens (with the results to be provided to the Court); (e) in August 2013 she was placed on a 12 month bond for “DUI”, on 29^th January, she received a good behaviour bond for the assault on her Mother, and on 11^th February she was to attend Court for charges of possession of stolen property and fare evasion; (f) she is now caring for [X] at her parents’ residence; (g) she has no problem with the child spending time with the paternal step-Grandfather; and (h) as previously noted, the Mother thinks the Father will re-apply for bail in May.

18. On 7^th February, Ms Walton filed further submissions, as well as a Form 4.  In both documents, she referred to or make further allegations relating to (a) the Mother’s assault on the maternal Grandmother, and (b) the reliability of the maternal Grandparents. 

19. Remarkably if not astonishingly, Ms Walton also alleges that the maternal Grandparents’ lawyer, Mr Robinson, has brought pressure to bear on her.  This is a scurrilous allegation.  Mr Robinson is a practitioner of long-standing, who also regularly acts in the role of an ICL.  I suggest that he is a practitioner without reproach.  If Ms Walton has any evidence to support her contention she should file it so that the Court can test it.  It may be that she has simply misunderstood something and or taken something totally out of context.  However, she should be in no doubt about the Court’s very grave concerns about such an allegation.  Potentially, she could place herself at some risk of punitive action by the Court if such an allegation was maintained and not substantiated.

20. The Form 4 filed by Ms Walton makes the same allegations raised in earlier material about the child being exposed to violence in the home of the maternal Grandparents.  The alleged violence is said to date from the time of the child’s birth.  She also (again) raises concerns about the risk to the child [in the past] from the Mother’s drug-taking.

21. I simply note here that the filing of a Form 4 does nothing more, in the words of the Full Court in Slater v Light, than “to notify the existence of an issue.  The Court must always critically assess the evidence placed before it in determining the issue.”[1]

    [1] Slater v Light (2012) 45 Fam LR 41 at [46].

22. On 12^th February, Ms Walton filed a further affidavit, and further submissions.  They repeat the material she filed on 7^th February, and therefore, it need not be considered [again].

The ICL’s Submissions

1. The ICL’s submissions refer, among other things, to his earlier written submissions (filed on 10^th October) and those made orally on 25^th October 2013, particularly as they relate to the Father and the paternal Grandmother.

2. It is important to note the following from the ICL’s October submissions. 

3. First, after noting comments by the Full Court in McCall v Clark regarding the positive benefit (in most cases) of the child having a meaningful relationship with both parents, and that there can be cases where there might be no such positive benefit,[2] the ICL observed (at para.13) that if the Father is correct about having a strong relationship with the child, “then in appropriate circumstances that relationship can be rebuilt.  It is conceded that it would require rebuilding as it is unlikely the relationship will survive a lengthy interruption, given the age of the child.”

   [2] McCall v Clark (2009) 41 Fam LR 483 at [118] – [122]. See also the discussion by the Full Court in Mulvaney v Lane (2009) 41 Fam LR 418 at [88].

1. Secondly, at para.14, the ICL commented on s.60CC(2)(b) in the following terms:

   There is no real concern of a risk of physical harm to the child from the Father at the [omitted] [the local prison].  The concern is more in relation to psychological harm.  Serious criminal charges remain outstanding against the Father.  If proven those charges would raise extremely serious concerns about the Father’s character and his attitude towards the Mother and her family….

2. Then at para.15, the ICL stated:

   A finding of guilt against the Father may lead the Court to regard this as one of the minority of cases where an on-going relationship between a child and a parent is not in the best interests of the child.

3. More generally, the ICL did not support the paternal Grandmother’s application for a change in residence for the child to live with her.  I need not detail the reasons for this submission except to record that I accept the ICL’s submissions in this regard.

4. In relation to the ICL’s submissions regarding the Application in a Case filed on 25^th October 2013 by the maternal Grandparents, I note the following.

5. The ICL noted the intervention by Care and Protection Services as a result of concerns in relation to the Mother.  Because of such intervention, the ICL does not dismiss the concerns raised by the Father and Ms Walton.

6. Significantly, the ICL’s position is “entirely dependent” upon the ongoing, active involvement of Care and Protection to ensure that there is no risk to the child arising from the Mother’s admitted (and alleged) issues.  Subject to this on-going involvement of Care & Protection, the ICL [continues] to support the child’s continued residence (on an interim basis) of living with the maternal Grandparents.

7. The next issue addressed by the ICL relates to the Mother’s involvement in various treatment programs.  To a certain degree, the ICL’s submissions, such as the need for the Mother to attend a residential rehabilitation program, have (on the Mother’s most recent affidavit evidence) been complied with.  But in any event, whatever the Mother has completed, or is currently involved in, the ICL supports that her time and engagement with her daughter be subject to the directions of (and assessments by) the Director-General.  I agree particularly with this submission.

8. The ICL supports the orders sought regarding the child spending no time with the Father while-ever he remains in custody and subject to serious charges.  He makes this submission in the light of the protective responsibilities of the Court to the child in relation to family violence and other risks identified by the ICL in his earlier submissions.

9. Finally, the ICL supports the current regime, as set out in the consent orders, made on 13^th November, regarding the time the child spends with the paternal Grandmother.  Given the consent of the maternal Grandparents, and the Mother, these November orders should be taken to now apply to the paternal step-Grandfather.

Consideration & Resolution

1. For current purposes, the essential “touchstones” are the principles set out in s.60CA (the child’s best interests as the paramount consideration), and s.60CC(2)(b) (the need to protect the child from physical and psychological harm from being subject to, or exposed to, abuse, neglect or family violence).[3]

   [3] Section 4AB of the Act and its definition of “family violence” is also relevant, as is s.60B(1)(b) – the “object” of Part VII of the Act in relation to the protection of the child from physical or psychological harm.

2. Section 4AB(1) is also relevant because of its broad, if not expansive, definition of “family violence”, which refers to “… other behaviour by a person that coerces or controls a member of the person’s family….”

3. A further jurisprudential touchstone is that collection of cases that refer to “risk”, which must be considered in the context of the Court’s protective responsibilities.  Cases such as Orwell & Watson, Re Frieda & Geoffrey, and Slater v Light make plain that principles applied in cases where there are allegations of sexual abuse apply similarly to cases where there is a risk of abuse (or harm) in other respects.[4]

   [4] Orwell & Watson [2008] FamCA 62 (risk of psychological harm), Re Frieda & Geoffrey (2009) 40 Fam LR 608 (protection of children under court’s parens patriae jurisdiction), and Slater v Light (2012) 45 Fam LR 41 (discussion of ‘controlling influence’ and whether it can amount to neglect or abuse).

4. Given the interim state of the proceedings, and the regular involvement of Care and Protection Services (detailed earlier in these reasons), it is sufficient for current purposes simply to have noted the relevant decisions.  It may be that, in due course, a more thorough-going examination of the protective responsibilities of the Court in the light of the very fluid factual scenario of the matter is warranted.

5. More recently, the ICL has provided the Court with a copy of the ‘charge sheet’ and the “Case Statement” filed in the ACT Supreme Court in relation to the 7 counts against the Father. Those charges are to be heard in the week of 23^rd June 2014.  The ICL has also passed on advice from the Father’s criminal lawyer in whose opinion it is unlikely that Mr Enright will be released on bail prior to the trial in June.

6. Formally, the ICL added to his two previous sets of submissions with a specific submission, filed 28^th February 2014 (requested by the Court), in which he outlined his concerns regarding (a) the ongoing acrimony between the paternal and maternal families, (b) the risks to the child speaking with the Father whilst he remains in prison and she is with the paternal Grandparents, and (c) having regard to the age of the child (who is not yet 3 years old), a telephone call is unlikely to be of any significant benefit to the child.  Rather, the ICL suggested that the primary (if not only) beneficiary of such calls is the comfort they would provide to the Father.[5]  As understandable as this is, from the Father’s perspective, I accept the submissions of the ICL.  The Mother’s submissions are to similar but much briefer effect, as are those from the maternal Grandparents.

   [5] Through the paternal Grandmother, the Court has received the views of the Father, which are to the effect of a “plea” that the Court permit [X] to speak with her Father while he is in prison.

7. In any event, everyone will likely know reasonably soon the result of the Father’s criminal charges.  In my view, in such circumstances, the ICL’s submissions take on even greater weight.

8. I should also note that, in addition to the arson charge, count 6 of the seven charges the Father faces is “use of an inflammable substance likely to endanger human life or cause grievous bodily harm.” To say that this is “serious” is surely an understatement. I make no other comment, and certainly nothing said in these reasons should be taken as a reflection on the Father’s guilt or innocence in relation to any of the charges he faces. The Court’s sole focus is on orders that are in the best interests of the young child at the current time,[6] and until everyone knows the fate of the Father in the light of the criminal proceedings.

   [6] See s.60CA.

9. Accordingly, on the current material available to the Court in relation to the possible risk to the child even speaking with the Father, the Court formally accepts the submissions by the ICL as earlier noted.  In the light of those submissions, on an interim basis and subject to the consent orders made on 13^th November 2013 (and noting that orders were previously made for a s.69ZW Report), the orders sought by the maternal Grandparents should be made.

10. For more abundant caution, the child should also be removed from the ‘watch list.’

11. Until further order, the paternal Grandparents are restrained from allowing the child to speak with her Father while-ever he remains in prison.

12. For more abundant caution also, the Mother shall not remove the child from the maternal Grandparents’ care without the prior approval of Care and Protection and an order of this Court.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:     6^th March 2014