Giffin & Merrion

Case [2022] FedCFamC1F 684

Federal Circuit and Family Court of Australia

(DIVISION 1)

Giffin & Merrion [2022] FedCFamC1F 684

File number(s): MLC 10024 of 2014
Judgment of: MCCLELLAND DCJ
Date of judgment: 9 September 2022
Catchwords: FAMILY LAW – PARENTING – Best interests of the child – Where the parties previously entered into consent orders in 2017 for equal shared parental responsibility and a week about time arrangement – Where the father unilaterally ceased time for the children with the mother in 2020 due to concerns of substance abuse and criminal activity – Where the mother was incarcerated from December 2020 to June 2021 – Whether the children should spend unsupervised time with the mother – Orders made for the father to have sole parental responsibility and for the children to spend supervised time with the mother until she addresses her substance abuse issues.
Legislation:

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 67Z

United Nations Convention on the Rights of the Child
Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 25

B and B (1993) FLC 92-357; [1993] FamCA 143

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

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

Isles & Nelissen [2022] FedCFamC1A 97

Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127

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

M v M (1988) 166 CLR 69; [1988] HCA 68

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Russell & Close [1993] FamCA 62

Sigley v Evor (2011) 44 Fam LR 439

Stott & Holgar & Anor [2017] FamCAFC 152
Division: Division 1 First Instance
Number of paragraphs: 100
Date of hearing: 1-2 August 2022
Place: Sydney (via videolink)
Counsel for the Applicant: Ms Elleray
Solicitor for the Applicant: Nevett Ford
Solicitor for the Respondent: Litigant in person
Counsel for the Independent Children's Lawyer: Ms Treyvaud
Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers

ORDERS

MLC 10024 of 2014

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

MR GIFFIN

Applicant
AND:

MS MERRION

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

9 september 2022

THE COURT ORDERS THAT:

1.All previous orders be discharged.

2.MR GIFFIN (“the father”) have sole parental responsibility for X born in 2007 and Y born in 2011 ("the children").

3.The children live with the father.

4.The children spend time with MS MERRION (“the mother”):

(a)As agreed between the mother and the father in writing; or

(b)Failing agreement, each alternate Saturday from 10.00 am until 2.00 pm with such time being supervised by the father or his nominee at a location nominated by the supervisor.

5.The children be at liberty to contact the party with whom they are not then residing upon any such request by the children…

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Details
AGLC
Giffin & Merrion [2022] FedCFamC1F 684
Case
[2022] FedCFamC1F 684
Decision Date

CaseChat Overview and Summary

This case concerns the children, X and Y, born in 2007 and 2011, respectively, and their parents, Mr Giffin, the father, and Ms Merrion, the mother. The parents are in dispute over the children's future parenting arrangements. The legal issues before the court were whether the children should reside with the father, whether they should spend unsupervised time with the mother, and whether the mother should be permitted to attend school and extracurricular events during times when she is not spending time with the children.

The court considered the best interests of the children, as outlined in section 60CC of the Family Law Act 1975. The court found that the father had genuine concerns about the mother's substance abuse and criminal activity, which led him to cease the children's time with her in 2020. The mother was incarcerated from December 2020 to June 2021, further complicating the situation. The court held that the children should not spend unsupervised time with the mother until she addresses her substance abuse issues.

The court ordered that the father have sole parental responsibility for the children, who will live with him. The children will spend time with the mother under supervised conditions, as agreed between the parents or, failing agreement, on alternate Saturdays from 10.00 am until 2.00 pm, supervised by the father or his nominee at a location nominated by the supervisor. The mother is restrained from attending school and extracurricular events during times when she is not spending time with the children. Both parents are restrained from consuming any form of illicit substance and/or prescription medicine that has not been prescribed to them by a qualified medical practitioner.

The court's decision aims to protect the children's welfare while encouraging the mother to address her substance abuse issues. The father has expressed a willingness to facilitate more time with the mother if she takes steps to confront her challenges. The outcome of these proceedings is hoped to be a transformative event for the mother, enabling her to contribute positively to the children's lives in the future.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. All previous orders be discharged.

2. MR GIFFIN (“the father”) have sole parental responsibility for X born in 2007 and Y born in 2011 ("the children").

3. The children live with the father.

4. The children spend time with MS MERRION (“the mother”):

(a) As agreed between the mother and the father in writing; or

(b) Failing agreement, each alternate Saturday from 10.00 am until 2.00 pm with such time being supervised by the father or his nominee at a location nominated by the supervisor.

5. The children be at liberty to contact the party with whom they are not then residing upon any such request by the children and at all reasonable times.

6. Any time spent by the children with the mother is conditional upon the father or his nominee supervising such periods of time at a location that the supervisor nominates.

7. Both the father and mother are restrained from consuming any form of illicit substance and/or prescription medicine that has not been prescribed to them by a qualified medical practitioner.

8. The father be and is hereby authorised on behalf of both parents to apply for and sign any forms required to apply for or renew the children's Australian Passports, AND IT IS REQUESTED that the Australian Passport Office and the Department of Foreign Affairs and Trade accept this Order as authority to issue Passports for the children on the father's sole application.

9. The father shall be permitted to take the children outside of Australia provided that he:

(a) within 14 days of his departure date, provides the mother with a travel itinerary including the departure and return dates, the destination/s, the approximate dates on which the children will arrive and depart each destination and a telephone number and address at which the children can be contacted;

(b) during such travel, makes the children available for communication with the mother at all reasonable times; and

(c) provides the mother with appropriate make-up time (if necessary).

10. The parents immediately inform the other of any illness and/or injury sustained by the children (or either of them) whilst in their respective care and provide particulars of any treatment received by them, together with the name and address of the treatment provider and/or location at which they are being treated.

11. The parents each make available to the other all medication prescribed to the children to administer during their respective time periods.

12. The parents each authorise and direct all schools, educational facilities and extracurricular providers of the children to provide each party (at their request and cost) all information reasonably provided regarding their attendance, including but not limited to notices, information, newsletters, reports and/or photographs.

13. The mother only attend such school events, sporting events, training and extra-curricular activities that fall during time she is ordinarily spending with the children.

14. The parents keep each other informed as to their residential address and, with no less than 7 days’ written notice, provide the other of any change to same and/or their telephone number.

15. The parties, their servants and/or agents be and are hereby restrained from abusing, insulting or otherwise denigrating the other party, their family, partner and/or partner’s family in the presence of the children or in circumstances where that attitude could come to their attention.

16. The parents are at liberty to provide a copy of these Sealed Orders to any school or educational institution, allied health practitioners or treating doctors for a child or children subject to these Orders.

17. The Independent Children's Lawyer's appointment be discharged.

18. Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create, the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and are included in these orders.

AND IT IS NOTED

A. The parties acknowledge that the child X is now 14 years of age and may choose not to spend time with his mother in accordance with these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Background

Background to the litigation

This matter concerns the children, X born in 2007 and Y born in 2011 (“the children”). Their parents, the applicant, Mr Giffin (“the father”) and the respondent, Ms Merrion (“the mother”) are in dispute about the children’s future parenting arrangements.Background The father was born in 1980. The mother was born in 1983. The parties commenced their relationship in 2005 and married in late 2008. The parties separated on 31 August 2013 and divorced in 2016. As noted above, X was born in 2007 and Y was born in 2011. In the period immediately subsequent to the parties’ separation in 2013, the children lived with the mother but spent substantive time with the father. In late 2014, the children commenced living with the father. This occurred in circumstances where the children had expressed concerns about events that had occurred at the mother’s home. On 7 November 2014, the mother initiated proceedings in the Federal Circuit Court of Australia (as it was then known). On 9 May 2017, final orders were made by consent. Those orders provided for the children to live with the parents on a week about basis. In February 2020, the father suspended the time that the children spend with the mother. He stated this was because of his concern for their safety including his concern that the mother was engaging in drug use and that she had mental health concerns. The father was also concerned that the mother appeared to have no fixed address. On 28 February 2020, the father initiated proceedings seeking inter alia sole parental responsibility and orders for the children to live with him. In his supporting affidavit, the father alleged that the mother had engaged in criminal activity and drug use. For reasons which I set out, those concerns on the part of the father were justified. On 13 March 2020, the mother attended Y’s school to collect her and subsequently failed to return her to the father’s care. The father then filed an Application in a Case seeking the return of Y. Y was ultimately returned to the father’s care on 18 March 2020. On 18 March 2020, the Victorian Department of Health & Human Services prepared a report pursuant to s 67Z of the Family Law Act 1975 (Cth) (“the Act”). That document has been marked as Exhibit “D” in the proceedings. On 23 March 2020, orders were made inter alia for the parents to complete urine drug screens within 24 hours and for the mother to disclose her residential address. The father completed his drug screen in accordance with those orders and provided a negative result. The mother submitted results which, for reasons that I explain, I am satisfied had been falsified. In the period between 24 and 30 March 2020, the mother filed a Contravention Application and an Application in a Case contending that the father had not made the children available. In her supporting affidavit evidence, the mother alleged that the father committed family violence and had fabricated evidence against her. The mother’s applications were ultimately dismissed.

Evidence

Evidence Before The Court

The mother was self-represented in these proceedings. Neither the father nor the ICL objected to the mother’s late filing of an affidavit in support of the orders she is seeking. Evidence The documents relied upon by the father were as follows:·Affidavit of the father filed 8 July 2022;·Amended Application for Final Orders filed 8 July 2022;·Notice of Risk filed 28 February 2020; and·Child Responsive Program Memorandum of Court Child Expert, Ms A, dated 21 August 2020. The documents relied upon by the mother were as follows:·Affidavit of the mother filed 30 July 2022;·Response to Initiating Application filed 30 July 2022; and·Notice of child abuse, family violence or risk filed 30 July 2022. The documents relied upon by the Independent Children’s Lawyer were as follows:·Victorian Department of Health and Human Services s 67Z Response dated 18 March 2020;·Child Dispute Conference Memorandum of Family Consultant dated 27 March 2020;·Child Responsive Program Memorandum of Court Child Expert, Ms A, dated 21 August 2020;·Subpoena to Victoria Police issued on 12 October 2020; and·Subpoena to Clinic B issued on 12 October 2020.proposed orders In circumstances where the ICL agreed with the orders proposed by the father, it is convenient to firstly set out the orders proposed by the mother, which were contained in her Amended Response to Initiating Application filed on 30 July 2022. The proposed orders were as follows:1The children reside with the applicant father at [C Street, Suburb D].2The children spend time with the mother as agreed on by parties including but not only on weekends, school holidays, overnights and any other times agreed on by parties so long as appropriate notice is provided in advance.3The mother be reinstated parenting rights to contact with schools and medical and be included in any schooling events, end of year reports and listed as an emergency contact.4The mother be permitted to communicate with the school directly and attend any special days within the school as requeted by the children including but not limited to special person days, class cooking days or school excursions.5Order 3 to appy to childrens medical records and current medical practitioners.6Any overseas travel is to be discussed and approved by both parents and both parents signatures be required for the purpose of passport applications.7Once a year for the school holidays, the children stay with their maternal grand parents in Tasmania for all or part of the School Holidays as agreed on between parties to allow the children to their right to having a meaningful relationship with family on bath parents sides.8 Flights for the children to spend time with the maternal grandparents in Tasmania is to be paid by equal share of cost of flights by both parents.9.All food and accommodation in Tasmania will be provided for at the grandparents home at [F Street, Suburb G].(As per the original) It is to be noted that, significantly and to her credit, the mother was not proposing that there be a change of residence for the children.

Decision

Reasons for decision

Proposed Order 17 will discharge the appointment of the ICL who, it should be recorded, has provided great assistance to the Court and the parties in these proceedings but whose services are no longer required in the context of these final orders. Conclusion In one sense, this has been a particularly tragic case. The mother appears to be highly intelligent and articulate and potentially has much to contribute to the lives and welfare of the children. It is regrettable in the extreme that the mother is unable to make that contribution unless and until she addresses her challenges with substance abuse. While it has not been the subject matter of my decision, as I indicated to the mother during the course of these proceedings, it is evident that such a transformation will not occur for the mother whilst she continues to associate with persons who are either users and/or suppliers of illicit substances. On several occasions during the course of these proceedings, the father indicated his genuine desire for the mother to confront that challenge, in which event he stated that he would have no hesitation in facilitating the children spending more time with their mother. There are many events that we experience during our lives that can result in a transformation. It is hoped that the outcome of these proceedings will, in the mother’s case, be one such event. Orders For all of the above reasons, I make the orders as set out at the commencement of these reasons for judgment.

Ratio Decidendi

Legal Principle Established

In Stott & Holgar & Anor [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm and, if so whether steps can appropriately be taken to mitigate against those risks.Additional considerations Section 60CC(3) of the Act 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 towards the child and parental responsibilities, of 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.Issues