Chika & Ragnall

Case [2024] FedCFamC1F 296

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Chika & Ragnall [2024] FedCFamC1F 296

File number: NCC 267 of 2022
Judgment of: AUSTIN J
Date of judgment: 7 May 2024
Catchwords: FAMILY LAW – CHILDREN – Final parenting orders – Where the interim residence of the child was reversed from the mother to the father in November 2023 – Where the maternal grandparents joined the proceedings in February 2024 – Where the father and the maternal grandparents (“the grandparents”) respectively sought sole parental responsibility for and residence of the child – Where the mother endorsed the proposal of the grandparents – Where the grandparents contended the child is at risk of neglect by both parents, caused by their use of illicit drugs – Where the mother admitted the child should only spend time with her under the supervision of the grandparents – Where the father refuted the claim of neglect made against him by the grandparents – Where the suspicions and speculation of the grandparents are no substitute for probative evidence and valid inferences – Where the potential for harm to the child cannot be quantified as being unacceptably high on the state of the current evidence – Where the grandparents are no better equipped than the father to meet the child’s emotional and intellectual needs – Ordered the child live with the father and he have sole parental responsibility for the child – Ordered the child spend expansive amount of time with the grandparents – Ordered the mother spend restricted time with the child during the periods of time he spends in the grandparents’ care – Child’s time with the mother to be supervised by either grandparent
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65AA, 65DAA, 68B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15

Cases cited:

Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229

Malcolm & Monroe & Anor (2011) FLC 93-460; [2011] FamCAFC 16

Maldera v Orbel (2014) FLC 93-602; [2014] FamCAFC 135

Valentine & Lacerra (2013) FLC 93-539; [2013] FamCAFC 53

Division: Division 1 First Instance
Number of paragraphs: 93
Date of hearing: 22, 23 & 24 April 2024
Place: Newcastle
Counsel for the Applicant: Ms Evelyn
Solicitor for the Applicant: The Family Law Co
Counsel for the First Respondent: Ms Beckett
Solicitor for the First Respondent: Grace Family Law Solicitors
Counsel for the Second and Third Respondent: Ms Van Oosterom
Solicitor for the Second and Third Respondents: Charlestown Law Firm
Counsel for the Independent Children's Lawyer: Mr Mooney
Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers

ORDERS

NCC 267 of 2022

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

MR CHIKA

Applicant
AND:

MS RAGNALL

First Respondent

MS MINKIN

Second Respondent

MR B MINKIN

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

7 MAY 2024

THE COURT ORDERS THAT:

1.All former orders relating to the child X, born 2015, (“the…

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AGLC
Chika & Ragnall [2024] FedCFamC1F 296
Case
[2024] FedCFamC1F 296
Decision Date

CaseChat Overview and Summary

The case of Chika & Ragnall involved the Federal Circuit and Family Court of Australia (Division 1), which was tasked with making final parenting orders for a child born in 2015. The parents, who separated in 2018, had a contentious history, including allegations of drug use and non-compliance with interim orders. The maternal grandparents later joined the proceedings, seeking sole parental responsibility for the child and alleging neglect by both parents due to drug use. The mother agreed that the child should only spend time with her under the supervision of the grandparents.

The legal issues before the court included determining the allocation of parental responsibility and the best living arrangements for the child, considering the allegations of neglect and the need to protect the child from potential harm. The court had to weigh the concerns raised by the grandparents against the evidence presented, including the father's denial of current drug use and the child's apparent well-being in his care.

In its reasoning, the court found that the suspicions and speculations of the grandparents were not sufficient to establish neglect on the current evidence. The court also noted that the grandparents were no better equipped than the father to meet the child's emotional and intellectual needs. The court concluded that the child should live with the father, who was granted sole parental responsibility. The child would spend extensive time with the maternal grandparents, with supervised visits to the mother, who would also be restricted in her contact with the child. The court further ordered that all parties should refrain from allowing the child to have contact with Mr D, the mother's former partner.

The final orders specified the detailed schedule for the child's time with the father and the grandparents, including supervised contact with the mother, and included provisions for communication and information sharing among the parties. The Independent Children's Lawyer was discharged, and costs were reserved for further determination.

Orders

Orders of the court

NCC 267 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CHIKA

Applicant

AND:

MS RAGNALL

First Respondent

MS MINKIN

Second Respondent

MR B MINKIN

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

7 MAY 2024

THE COURT ORDERS THAT:

1. All former orders relating to the child X, born 2015, (“the child”) are discharged.

2. The applicant (“the father”) shall have sole parental responsibility for the child.

3. The child shall live with the father.

4. The parties shall take all reasonable steps to ensure the child spends time with the second and third respondents (“the maternal grandparents”) as follows:

(a) during public school terms, each alternate weekend from the conclusion of school on Friday (or 4.00 pm if not a school day) until the commencement of school on the following Monday (or 9.00 am if not a school day), commencing on the first Friday of each term;

(b) during the Autumn, Winter and Spring school holidays, for the first half of such holidays in every even numbered year and for the second half of such holidays in every odd numbered year;

(c) during the Summer school holidays, for two continuous weeks ending at 4.00 pm on the last Saturday before the new school term and beginning at 4.00 pm on the Saturday two weeks before..

5. For the purposes of implementation of these orders, the school holidays are deemed to commence at 4.00 pm on the last day of school term, the holidays are deemed to end at 4.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid-point is the day halfway between those first and last days.

6. Orders 3 and 4 are suspended during the following periods:

(a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the maternal grandparents from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years;

(b) between 10.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the maternal grandparents on Mother’s Day and with the father on Father’s Day.

7. For the purposes of implementing Orders 3, 4 and 6, the father and the maternal grandparents shall exchange the child:

(a) at school whenever the exchange is due to occur on a school day, or

(b) at the maternal grandparents’ residence whenever the child is to begin spending time with them; or

(c) at the father’s residence whenever the child is to resume living with him.

8. The parties shall take all reasonable steps to ensure the child spends supervised time with the first respondent (“the mother”) as follows:

(a) from 10.00 am until 5.00 pm on each Saturday and Sunday the child spends time with the maternal grandparents pursuant to Order 4(a);

(b) from 10.00 am until 5.00 pm on each Saturday and Sunday the child spends time with the maternal grandparents pursuant to Order 4(b);

(c) from 10.00 am until 5.00 pm on each Saturday and Sunday the child spends time with the maternal grandparents pursuant to Order 4(c); and

(d) at times the child spends with the maternal grandparents pursuant to Order 6.

9. For the purpose of implementing Order 8, one of the maternal grandparents must supervise any time spent by the child with the mother.

10. Pursuant to s 68B of the Family Law Act 1975 (Cth), the parties are restrained from causing or allowing the child to come into physical or communicative contact with, or remain in the presence of, Mr D.

11. While the child is residing with the father, the parties shall take all reasonable steps to ensure the child is able to communicate with the maternal grandparents by telephone each Tuesday at 6.00 pm for 15 minutes.

12. While the child is residing with the father, the parties shall take all reasonable steps to ensure the child is able to communicate with the mother by telephone each Wednesday at 6.00 pm for 15 minutes.

13. While the child is spending time with the maternal grandparents pursuant to Orders 4(b) and 4(c), the parties shall take all reasonable steps to ensure the child is able to communicate with the father by telephone each Tuesday at 6.00 pm for 15 minutes.

14. Each party is restrained from denigrating any other party in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating another party.

15. Each party shall notify the others of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party and the father shall authorise any treating health professionals to communicate with the mother and maternal grandparents about the condition and treatment of the child.

16. The father shall authorise and request the principal of any school attended by the child to provide to the mother and the maternal grandparents, at their expense, copies of all school reports and school photograph order forms relating to the child.

17. Each party shall forthwith inform the others and keep the others informed, in writing, of their respective current residential address, mobile telephone number, and email address.

18. Leave is granted to the father to furnish to the child’s counsellor copies of the two Family Reports released in these proceedings.

19. The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.

20. The Application in a Proceeding filed on 23 March 2024 is dismissed.

21. Costs are reserved for 28 days.

22. Otherwise, any and all other outstanding applications are dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons which follow, the child will live with the father, but will spend expansive amounts of time with the maternal grandparents. The child will also be able to spend time with the mother for parts of the time he spends with the maternal grandparents, provided one of them supervises the child and the mother.BACKGROUND The parents commenced their relationship in 2011 and finally separated in February 2018. Their child was born in 2015 and is now nearly nine years of age. After the parties’ separation in early 2018, the child spent no time at all with the father for some years. That was initially because the conditions of his probation precluded his contact with the mother, but latterly because the mother either ignored or rebuffed the father’s requests to see the child. As a consequence, the child did not see the father again until after he commenced these proceedings and interim orders were made in 2022. After their separation, both parents re-partnered. The father had two more children with his current partner (“Ms C”). The mother had one more child and is now pregnant with another, both conceived with the same man (“Mr D”). The mother has been coy about the nature of her relationship with Mr D, but their sexual association has now endured for several years. Even if she severed her relationship with him in late 2023 after conceiving her current pregnancy, as she alleged, she will likely still have an ongoing parental relationship with him in respect of their two very young children. In March 2022, shortly after the proceedings were commenced, the ICL was appointed and the parents were both ordered to submit to drug testing. Evidently, their propensity to use illicit drugs was a contentious issue from the very beginning of the litigation. In November 2022, interim orders were made providing for, subject to the parents’ satisfaction of certain conditions, the mother to have parental responsibility for the child, the child to live with her, and the child to spend time with the father once per week under professional supervision. The conditions with which the parents had to comply included their submission to drug testing and their sobriety whilst around the child. In addition, the mother was restrained from bringing the child into contact with Mr D. In May 2023, the proceedings were transferred by the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1). During the course of 2023, the father formed the view that the mother was disregarding the order restraining her from allowing the child to come into contact with Mr D, compliance with which restraint was a condition of the child’s continued residence with her. The father subsequently filed an interim application to vary the interim parenting orders, proposing that the child live with him instead. His application was supported by the ICL but opposed by the mother, even though she conceded some form of ongoing association with Mr D.

Evidence

Evidence Before The Court

Significantly, common ground was reached in respect of several issues. First, parental responsibility for the child should be conferred exclusively upon the party or parties with whom he resides. Secondly, the child should not live with the mother. Thirdly, the child should only spend time with her under the supervision of one of the maternal grandparents. Fourthly, the supervised time spent by the child with the mother should not exceed a portion of the time the child spends with the maternal grandparents. Fifthly, all parties should be restrained from allowing the child to have any contact with Mr D.EVIDENCE The father relied upon:(a)his affidavit filed on 15 March 2024;(b)his affidavit filed on 16 April 2024; and (c)the affidavit of Ms C, filed on 15 March 2024. The mother relied upon her affidavit filed on 20 March 2024. The maternal grandparents relied upon their affidavits filed on 4 April 2024, together with a second affidavit filed by the maternal grandmother on 19 April 2024. All annexures to the affidavits were included, notwithstanding r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The ICL relied upon:(a)the Family Report dated 17 March 2023 (“the first Family Report”); and(b)the Family Report dated 10 April 2024 (“the second Family Report”).LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent or any other person, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern grandparents may still be considered under s 60CC(3)(m) of the Act and are relevant under whichever provision they are discussed (Aldridge & Keaton at [111]–[112] and [119]; Malcolm & Monroe & Anor (2011) FLC 93-460 at [94]–[100]; Valentine & Lacerra at [51]–[53]). CHILD’S BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) It was common ground the child would derive benefit from the retention and promotion of his meaningful relationships with both parents, so all parties proposed orders to achieve that objective.Section 60CC(2)(b) It was not contended the child needs any protection against the risk of either physical or psychological harm by reason of his subjection or exposure to either “abuse” or “family violence” by any party, save that it was common ground an injunction made under s 68B of the Act should bind and restrain the parties from allowing the child to be brought into contact with Mr D. Rather, the maternal grandparents contended the child needs protection against the risk of physical or psychological harm by reason of his “neglect” by both parents, caused by their intoxication through use of illicit drugs. It was contended they could not properly care for or supervise the child if stupefied by drugs and, at least by inference, the child is liable to suffer emotional harm as he matures if he becomes conscious of his parents’ illicit drug use. The mother did not expressly concede the proposition, but she did admit the child should only now spend time with her under the maternal grandparents’ supervision. Most likely she made the concession in full awareness of the concerns aroused in the maternal grandparents, the father, and the ICL by her past drug use and her continuing association with Mr D. There could be no other rational explanation. The father refuted the claim of “neglect” made against him by the maternal grandparents. His rebuttal was consistent with: the absence of any evidence of his intoxication when spending time with the child during 2023; the absence of any evidence of his intoxication when the child has been in his direct care since beginning to live with him in November 2023; Ms C’s evidence about his abstinence from drug use in the children’s presence at their home; and the strong inference springing from the totality of the evidence that the child and the father’s other two children are thriving in the joint care of he and Ms C. The father admitted his heavy past use of cannabis. Nonetheless, the extent of his admission must be approached cautiously because he recently admitted having earlier lied to the court child expert when he denied his use of an illicit drug in early 2024 when discussing his positive test result returned in March 2024. The maternal grandparents suspect the father used illicit drugs in the past more heavily and more widely than he actually admits and that, despite his alleged current abstinence, he still uses illicit drugs and will continue to do so. However, their suspicions and speculation are no substitute for probative evidence and valid inferences.