Baines & Tanner

Case [2021] FedCFamC1F 69

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Baines & Tanner [2021] FedCFamC1F 69

File number(s): MLC 14205 of 2019
Judgment of: MCCLELLAND DCJ
Date of judgment: 23 September 2021
Catchwords: FAMILY LAW – CHILD – BEST INTERESTS – Undefended hearing – Where paternal grandmother seeks orders to maintain the existing parenting arrangements in respect to the children – Where the father and Independent Children’s Lawyer supports the paternal grandmother’s application – Where the mother has disengaged from the proceedings – Where the eldest child currently lives with the paternal grandparents and the youngest two children currently live with the father – Where the Court finds that the mother has and continues to experience mental health and substance abuse issues – Finding that the children would be at unacceptable risk of harm in the mother’s care which cannot be mitigated by court orders – Orders made in accordance with those sought by the paternal grandmother
Legislation: Family Law Act 1975 (Cth) Pt. VII, ss. 4AB, 61DA, 60CA, 60CC, 64C, 65C, 65DAA and 67Z
Cases cited:

A v A (1998) FLC 92-800

B and B (1993) FLC 92-357

Blinko & Blinko [2015] FamCAFC 146

Cotton & Cotton (1983) FLC 91-330

Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5

G & C [2006] FamCA 994

Johnson and Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Malcolm & Monroe (2011) FLC 93-460

McCall & Clark (2009) FLC 93-405

Mulvany & Lane (2009) FLC 93-404

Russell & Close [1993] FamCA 62

Stott and Holgar [2017] FamCAFC 152

Valentine & Lacerra (2013) FLC 93-539

The Hon. John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
Division: Division 1 First Instance
Number of paragraphs: 124
Date of hearing: 9 September 2021
Place: Melbourne by web conference
Solicitor for the Applicant: Lawyers By The Bay
No appearance by or on behalf of the First Respondent
Solicitor for the Second Respondent: Marshalls And Dent And Wilmoth
Counsel for the Independent Children's Lawyer: Mr O’Connell
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 14205 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BAINES

Applicant
AND:

MS TANNER

First Respondent

MS C BAINES
Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

23 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.In respect to the children X (“X”) born … 2013 and Y (“'Y”) born … 2015:

(a)The Applicant Mr Baines (“the Father”) have sole parental responsibility for X and Y; and

(b)X and Y live with the Father and spend time and communicate with the First Respondent Ms Tanner (“the Mother”) as agreed between the Father and the Mother in writing.

3.In respect to the child W (“W”) born … 2011:

(a)The Second Respondent, Ms C Baines (“the Paternal Grandmother”)…

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Details
AGLC
Baines & Tanner [2021] FedCFamC1F 69
Case
[2021] FedCFamC1F 69
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with a case concerning the best interests of four children, where the paternal grandmother sought to maintain the existing parenting arrangements. The father and the Independent Children's Lawyer supported the application, while the mother had disengaged from the proceedings. At the time of the hearing, the eldest child was living with the paternal grandparents, and the youngest two children were living with the father. The court was required to consider the evidence presented and determine whether the existing parenting arrangements were in the best interests of the children.

The court found that the mother had and continued to experience mental health and substance abuse issues, which posed an unacceptable risk of harm to the children. The court concluded that the risk could not be mitigated by court orders. The court considered various factors, including the parents' decision-making abilities, the time spent with the children, and the capacity of each parent to provide for the children's needs. The court also took into account the children's exposure to family violence in their mother's household.

The court decided that the existing parenting arrangements, which had been in place since June 2019, were in the best interests of the children. The court made orders in accordance with those sought by the paternal grandmother. Sole parental responsibility for the youngest two children was awarded to the father, while the eldest child's sole parental responsibility was awarded to the paternal grandmother. The court also noted that all parties empathised with the mother's situation and hoped for her recovery so that the children could maintain a relationship with her.

In conclusion, the Federal Circuit and Family Court of Australia determined that the existing parenting arrangements were in the best interests of the children, taking into account the various factors outlined in Section 60CC(3) of the Family Law Act 1975. The court made orders consistent with the paternal grandmother's application, providing stability and safety for the children while acknowledging the desire for the mother's recovery and potential future relationship with the children.

Orders

Orders of the court

MLC 14205 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BAINES

Applicant

AND:

MS TANNER

First Respondent

MS C BAINES

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

23 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. In respect to the children X (“X”) born … 2013 and Y (“'Y”) born … 2015:

(a) The Applicant Mr Baines (“the Father”) have sole parental responsibility for X and Y; and

(b) X and Y live with the Father and spend time and communicate with the First Respondent Ms Tanner (“the Mother”) as agreed between the Father and the Mother in writing.

3. In respect to the child W (“W”) born … 2011:

(a) The Second Respondent, Ms C Baines (“the Paternal Grandmother”) have sole parental responsibility for W; and

(b) W live with the Paternal Grandmother and spend time and communicate with the Mother as agreed between the Mother and the Paternal Grandmother in writing.

4. The Independent Children’s Lawyer is discharged.

AND IT IS NOTED THAT:

A. Pursuant to section 65DA(2) 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 Attachment A and these particulars are included in these orders.

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.

Background

Background to the litigation

During the course of the proceedings, I also read from an Affidavit of the mother filed 1 June 2020 (“the mother’s Affidavit”), and, in this decision, to ensure that the position of the mother is understood, I will make reference to information contained in that Affidavit.RELEVANT BACKGROUND In 1959, the paternal grandmother was born. She is currently aged 62 years and employed part-time as a health professional at J Hospital. In 1991, the father was born. He is currently aged 29 years and employed as a tradesperson. In 1991, the mother was born. She is currently aged 29 years. In 2011, W was born and given his biological father’s surname. He is currently aged 10 years. In late 2011, the mother and W’s biological father separated on a final basis. It was not disputed that W’s biological father has had little to no involvement in W’s life, since separating from the mother. The father contends that, in October 2012, the parents commenced their relationship. Comparatively, the mother contends that the parties commenced their relationship in May 2012, and moved in together later that year. It has been unnecessary to resolve that factual controversy, for the purpose of the orders that I make in these proceedings. Since October 2012, the paternal grandmother has witnessed W exhibiting emotional and behavioural issues and experiencing difficulty controlling his emotions, which has resulted in screaming fits, hitting and swearing which could last up to two (2) hours and occur multiple times per week. Her observations are consistent with the Department’s reports set out in the section 67Z response. During the course of the parents’ relationship, and since separation, the mother has continued to abuse alcohol and illicit substances, namely methamphetamines, commonly known as “ICE”. In 2013, X was born. She is currently aged seven (7) years. In or about 2014, W’s biological father Mr D submitted relevant documentation to the New South Wales Department of Birth, Death and Marriages for the purpose of changing W’s surname to Baines. On 14 December 2014, the Department first became involved with the children, in respect to concerns that the mother was neglecting the children. In 2015, Y was born. She is currently aged five (5) years. In 2017, Z was born. He is currently aged four (4) years. It is not disputed that the mother has attempted suicide on three (3) occasions. On one occasion, the children were in the mother’s care. While reflective of personal struggle, this clearly presents a major concern for the physical and emotional safety of the children if they were to be placed in her care, or spend time with her, if it were to be the case that the mother again attempted to self-harm. Since December 2014, the Department have made a number of Applications, in respect to the children, as a result of protective concerns they had regarding the mother’s abuse of methamphetamines and alcohol, as well as concerns regarding the mother’s mental health. Those interventions are detailed in the section 67Z response. I do not see any utility in detailing those interventions, in circumstances where this decision will already be extremely difficult for the mother to read.

Evidence

Evidence Before The Court

Both the father and the Independent Children’s Lawyer agreed with the proposed orders sought by the paternal grandmother, set out immediately above.EVIDENCE The father relies upon the following documents:(a)Initiating Application filed 12 December 2019 and sealed 17 December 2019;(b)Notice of Child Abuse or Family Violence filed 12 December 2019 and sealed 17 December 2019; and(c)Affidavit of the father sworn and filed 12 December 2019 (“the father’s Affidavit”). The paternal grandmother relies upon the following documents:(d)Amended Response to Initiating Application filed 6 September 2021;(e)Affidavit of the paternal grandmother sworn 27 February 2020 and filed 3 March 2020, with annexures (“the paternal grandmother’s first Affidavit”); and(f)Further Affidavit of the paternal grandmother sworn and filed 6 September 2021 (“the paternal grandmother’s second Affidavit”). The Independent Children’s Lawyer relies upon the following documents:(a)Section 67Z response received from the Department of Health and Human Services, Victoria (“the Department”), which has been marked ‘Exhibit 1’ in these proceedings (“the section 67Z response”). During the course of the proceedings, I also read from an Affidavit of the mother filed 1 June 2020 (“the mother’s Affidavit”), and, in this decision, to ensure that the position of the mother is understood, I will make reference to information contained in that Affidavit.RELEVANT BACKGROUND In 1959, the paternal grandmother was born. She is currently aged 62 years and employed part-time as a health professional at J Hospital. In 1991, the father was born. He is currently aged 29 years and employed as a tradesperson. In 1991, the mother was born. She is currently aged 29 years. In 2011, W was born and given his biological father’s surname. He is currently aged 10 years. In late 2011, the mother and W’s biological father separated on a final basis. It was not disputed that W’s biological father has had little to no involvement in W’s life, since separating from the mother. The father contends that, in October 2012, the parents commenced their relationship. Comparatively, the mother contends that the parties commenced their relationship in May 2012, and moved in together later that year. It has been unnecessary to resolve that factual controversy, for the purpose of the orders that I make in these proceedings. Since October 2012, the paternal grandmother has witnessed W exhibiting emotional and behavioural issues and experiencing difficulty controlling his emotions, which has resulted in screaming fits, hitting and swearing which could last up to two (2) hours and occur multiple times per week. Her observations are consistent with the Department’s reports set out in the section 67Z response. During the course of the parents’ relationship, and since separation, the mother has continued to abuse alcohol and illicit substances, namely methamphetamines, commonly known as “ICE”.

Decision

Reasons for decision

In a perfect world, it would be ideal, of course, if W could live with his sisters, who he has bravely attempted to protect in circumstances which they have also confronted. However, understandably, in the context of the significant challenges faced by W, the father has formed the view that he is not in a position to provide the level of care and support for W that is necessary, in circumstances where he also has responsibility for the care of the two younger children. Fortunately, that love, care and support for W is being provided by the paternal grandparents. Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i) For reasons which I have set out above, the mother has been unable to provide the physical and emotional care required of the children. As I have earlier noted, the evidence satisfies me that the paternal grandparents are providing appropriate care for W. This is confirmed in the observations of the Department, as set out in the section 67Z response, to which I have earlier referred. The father’s Affidavit details the care that is being provided for his two daughters, X and Y, and the father is supported in that respect by his current partner. The evidence satisfies me that the girls are also living in a household which offers them safety, stability, structure and routine, as well as love, affection and support.Issues of family violence: ss 60CC(3)(j) and (k) The children, regrettably, have been exposed to significant family violence in their mother’s household. The prospect of the children being returned to that situation cannot be countenanced. Effect of change: s 60CC(3)(d) The current parenting arrangements for the children have been in place since 25 June 2019, and the orders sought by the paternal grandmother will retain that stability for the children.Practical difficulty of implementation: s 60CC(3)(e) There are no practical difficulties in retaining the current parenting arrangements.Avoiding further proceedings: s 60CC(3)(l) In this matter, I will make final orders as sought by the paternal grandmother that provide for parenting arrangements of the children which are consistent with the recommendations of the Department, and which have been in place since June 2019. There is no reason to anticipate that there will be further proceedings.Other relevant matters: s 60CC(3)(m) As I have previously set out, the legal representatives for both the paternal grandmother and the father specifically requested that the Court note that each of the parties empathises with the mother’s current situation, and it is their sincere desire for the mother to be able to address her mental health and substance abuse issues. They both advised the Court, through their legal representatives, that if the mother is able to start on the road to recovery, they will both make every reasonable endeavour that they possibly can to ensure that the children retain a relationship with their mother. As previously noted, the Court acknowledges and respects the genuineness of the commitment they have both made.Parental responsibility

Ratio Decidendi

Legal Principle Established

Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:(a)Issues relating to the children – their views, level of maturity, culture and relationships:·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child; ·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.(c)Issues of family violence:·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.(d)Effect of change:·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.(e)Practical difficulty of implementation:·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.(f)Avoiding further proceedings:·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. (g)Other relevant matters:·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.CONSIDERATION