Mallott & Bates

Case [2021] FCCA 1061

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mallott & Bates [2021] FCCA 1061

File number(s): WOC 165 of 2015
Judgment of: JUDGE B SMITH
Date of judgment: 18 May 2021
Catchwords: FAMILY LAW – PARENTING –  final hearing – 3 children – raised by paternal grandparents due to mother and father’s history of anti-social behaviour – father remains incarcerated – mother released  - paternal grandparents facilitate time with mother – mother has substantially turned life around - mother actively seeks to alienate children – children believe they were “stolen” by paternal grandparents – 2 older children 16 and 15 years old unilaterally relocated to live with mother – youngest child 10 years old still lives with paternal grandparents – youngest torn between families – feels like a “stretchy doll” – expert evidence – likely youngest will eventually unilaterally relocate to live with mother and siblings –  risk of complete alienation from paternal grandparents if that occurs – importance of sibling relationships - assessment of risks in mother’s household – orders to ameliorate risks – mother’s parental capacity adequate – agreement older children live with mother – conflict and poor communication between parties – no real prospect of co-parenting: Order children live with mother –mother to have sole parental responsibility – youngest child to spend regular time with paternal grandparents – older children to spend time with paternal grandparents in accordance with their wishes - supervised time only with father – request extension of ICL appointment – consequential orders.  
Legislation:

Family Law Act 1975 (Cth) ss 60CA, 60CC,

60CC(2)(a), 60CC(3)(m), 65AA, 65C, 65D
Cases cited:

Adamson and Adamson (2014) FLC 93-622

B and B (1993) FLC 92-357

Carlson & Fluvium[2012] FamCA 32

Donnell & Dovey [2010] FamCAFC 15

M v M (1988) 166 CLR 69

Re Evelyn (1998) FLC 92-807
Number of paragraphs: 193
Date of last submission/s: 6 December 2019
Date of hearing: 2-4 September 2019, 5-6 December 2019
Place: Sydney
Counsel for the First Applicant: Ms Petrie
Counsel for the Second Respondent: Ms Harris
Counsel for the Third Independent Children's Lawyer: Ms Reynolds

ORDERS

WOC 165 of 2015
BETWEEN:

MR MALLOTT AND MS MALLOTT

Applicant
AND:

MS BATES

First Respondent

MR C MALLOTT

Second Respondent

ORDER MADE BY:

JUDGE B SMITH

DATE OF ORDER:

18 MAY 2021

THE COURT ORDERS THAT:

1.That all previous parenting Orders be discharged.

2.That the Care Orders made on 21 August 2009 in City D Children’s Court pursuant to the Children and Young Persons (Care and Protection) Act, 1998 be discharged.

3.That Ms Bates (the Mother) have sole parental responsibility for the children X born 2004, Y born in 2005 and Z born in 2011 ("the children"), and shall advise the paternal grandparents of any long term decisions in regard to the children’s health and education within 14 days of making such decision.

4.That X and Y live with the Mother.

5.That Z live with the mother from the first Monday of the next school holidays period.

Father’s time

6.That subject to Orders 6…

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AGLC
Mallott & Bates [2021] FCCA 1061
Case
[2021] FCCA 1061
Decision Date

CaseChat Overview and Summary

This case involved an application concerning parenting orders for three children, X, Y, and Z, with Mr and Ms Mallott (the paternal grandparents) as applicants and Ms Bates (the mother) and Mr C Mallott (the father) as respondents. The dispute centred on the future care arrangements for the children, particularly whether they should reside with the mother or continue to live with the paternal grandparents, and the extent of parental responsibility and contact arrangements for both parents and the paternal grandparents. The matter was heard by B Smith J.

The court was required to determine several key legal issues. These included assessing the best interests of the children pursuant to Part VII of the *Family Law Act 1975* (Cth), considering the primary and additional considerations under section 60CC of the Act, and evaluating the mother's current parenting capacity and the risks associated with the children living with her. The court also had to consider the likelihood of the child Z unilaterally changing residence, the feasibility of shared parental responsibility given the high level of conflict between the mother and paternal grandparents, and the father's limited role due to his incarceration.

B Smith J's reasoning was heavily influenced by the expert opinion of Dr F, a child psychiatrist, who concluded that the children were becoming alienated from the paternal grandparents and that the mother had made significant progress in her stability and parenting capacity. The court found that it was likely Z would unilaterally relocate to live with the mother regardless of court orders, and that the risk to Z living with the mother was not unacceptable, given her improved circumstances and low risk of returning to drug use. Consequently, the court determined that the children's best interests were served by them living with the mother, with regular contact with the paternal grandparents. Shared parental responsibility was deemed unworkable due to the conflict between the mother and paternal grandparents, leading to the mother being granted sole parental responsibility for all three children. The court also made detailed orders regarding the father's supervised time with the children upon his release from custody, and specific arrangements for the children to spend time with and communicate with the paternal grandparents, including provisions for special occasions and communication protocols.

Orders

Orders of the court

WOC 165 of 2015

BETWEEN:

MR MALLOTT AND MS MALLOTT

Applicant

AND:

MS BATES

First Respondent

MR C MALLOTT

Second Respondent

ORDER MADE BY:

JUDGE B SMITH

DATE OF ORDER:

18 MAY 2021

THE COURT ORDERS THAT:

1. That all previous parenting Orders be discharged.

2. That the Care Orders made on 21 August 2009 in City D Children’s Court pursuant to the Children and Young Persons (Care and Protection) Act, 1998 be discharged.

3. That Ms Bates (the Mother) have sole parental responsibility for the children X born 2004, Y born in 2005 and Z born in 2011 ("the children"), and shall advise the paternal grandparents of any long term decisions in regard to the children’s health and education within 14 days of making such decision.

4. That X and Y live with the Mother.

5. That Z live with the mother from the first Monday of the next school holidays period.

Father’s time

6. That subject to Orders 6 and 7 herein, upon Mr C Mallott (the Father)’s release from custody, and provided that he first makes request of the Mother to spend time with the children, then the children are to spend time with the Father for 2 hours each month, to be supervised by a professional contact supervision agency agreed between the Father and Mother (‘the agency’) at such times as nominated by the agency, and in regard to X and Y their attendance at such time is to be in accordance with their wishes.

7. That the father’s time with the children shall be supervised by the agency as agreed between the Mother and Father and the costs of such supervision be paid by the Father.

8. The parents are to promptly comply with all requirements and recommendations of the agency.

Paternal grandparents’ time

9. That the children X and Y spend time with and communicate with Mr Mallott and Ms Mallott (the paternal grandparents) in accordance with the wishes of X and Y, and, the mother shall do all acts and things necessary to encourage and facilitate X and Y spending time with and communicating with the paternal grandparents.

10. That after changing residence the child Z spend time with the paternal grandparents as agreed with the Mother and failing agreement as follows:-

10.1 Each alternate weekend from 4.30pm on Friday to 4.30pm on Sunday;

10.2 During the December school holiday period, the time in Order 10.1 be suspended and in lieu thereof on dates as agreed and if no agreement on dates nominated by the Mother:

10.2.1 for one weekend from Friday at 4.30pm to Sunday at 4.30pm, and

10.2.2 for a separate block of 4 nights;

10.3 Such other times as agreed between the Mother and Paternal Grandparents.

Special Occasions

11. That on special occasions Z shall spend time with the parties as follows:

11.1 That should Z not already be spending time with the Mother:

11.1.1 With the Mother on Mother’s day from 9.00am to 5.00pm;

11.1.2 With the Mother on the Mother’s birthday for 4 hours;

11.1.3 On Z’s birthday for 4 hours

or such other time as agreed.

11.1.4 For Christmas each year the children shall be with the Mother from Christmas Eve at 2.00pm until Boxing Day at 9.00am, unless otherwise agreed.

11.2 That should Z not already be spending time with the paternal grandparents:

11.2.1 On each of the paternal grandparents birthdays, then Z shall spend time with them for 2 hours on a school day from 4.00pm to 6.00pm or for 4 hours on a non-school day from 12 noon to 4.00pm, or such other time as agreed, with X and Y’s attendance to be subject to their wishes;

11.3 Such other special occasions as agreed.

12. That should the children request to communicate with the paternal grandparents then the mother is to facilitate such communication.

13. That for the purposes of the changeover for the paternal grandparents’ time, the paternal grandfather is to collect and return the children from the home of the mother, unless otherwise agreed.

14. That the paternal grandparents be restrained from allowing the children to come into contact with the father during any time the children spend with them.

Communication

15. That the paternal grandparents shall ensure that the mother is kept informed as soon as is practical of:

15.1 Any medical emergencies, serious medical problems or illnesses suffered by any of the children whilst in their care.

15.2 Other matters relevant to the welfare of the children.

15.3 The telephone number of the paternal grandfather with any changes to be advised within 24 hours.

15.4 Any change in residential address of the paternal grandparents 7 days prior to any move.

15.5 The email address of the paternal grandfather with any changes to be advised within 24 hours.

16. That the mother shall ensure that the paternal grandparents are kept informed as soon as is practical of:

16.1 Any major medical issues suffered by Z, whilst in her care.

16.2 Any change to her email address or contact telephone number within 24 hours of any change.

16.3 Her residential address and any changes thereto, 7 days prior to any move.

17. That the mother and paternal grandparents communicate in relation to matters relating to the care, welfare and development of the children:-

17.1 By telephone in case of emergency;

17.2 By short factual text message or email in the case of a non-emergency.

Restraints

18. That the parents and paternal grandparents are each restrained from swearing at or within hearing of the children, putting the children down or name calling, or using any form of physical discipline with the children or allowing any other person to physically discipline the children.

19. That the parties are restrained from allowing the children to spend time with the following:

19.1 Ms E

19.2 Mr B, except in the context of Mr B spending time with his children to the Mother in these proceedings.

20. That each parent and the paternal grandparents are restrained from exposing the children to an environment of domestic violence and in the event that domestic violence does occur, is to immediately remove the children from the presence of any such violence.

21. That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence of, or within hearing of the children and that the Father will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence of, or within hearing of the children.

22. That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence of, or within hearing of the children and that the Mother will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence of, or within hearing of the children.

23. That the paternal grandparents shall refrain from making critical or derogatory remarks about the Father, the Mother or members of her family in the presence of, or within hearing of the children and that the paternal grandparents will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father, the Mother or members of her family in the presence of, or within hearing of the children.

24. That the mother, father and paternal grandparents be restrained from criticising or denigrating the other parties or their families on any forms of social media or encouraging others to do so.

25. That all parties (with the exception of the Independent Children’s Lawyer) be restrained from discussing the outcome of these proceedings or where the children are living, with the children or within the hearing of the children, except in the context of therapy with a qualified counsellor/therapist.

26. That within 28 days of the date of these Orders the Mother is to arrange for the children to be taken to the Independent Children’s Lawyer (ICL) at a time of the ICL’s request, for the purpose of the ICL informing the children about the drug and criminal history of both parents to assist the children in understanding their life story and the reasons for them being in the care of the paternal grandparents.

27. That the mother ensure that the children are appropriately supervised at all times whilst in her care.

Drug and Alcohol use

28. That the Mother be restrained from consuming alcohol in excess of the legal limit for driving, being 0.05 (grams of alcohol per 100ml of blood) whilst the children are in her care.

29. That the mother be restrained from consuming any prohibited drugs, or any prescribed medication unless is it prescribed for her by a doctor and only taken in the prescribed dosage.

30. That the father be restrained from being under the influence of illicit substances or alcohol during such times as he is spending time with the children.

Counselling

31. That the mother is to continue to engage with therapy and support services including VANS counselling, Acceptance and Commitment Therapy ACT, Dialectical Behaviour Therapy program and AMS Family Support, for such time as required by the service and for the purpose of this Order the ICL shall provide a copy of these Orders to those services.

32. That within 28 days the Mother is to facilitate each of the children’s attendance at a counsellor for the purpose of dealing with the changes in their placement, to deal with the information about their family history and their relationship with the paternal grandparents and the Mother is to continue to facilitate such attendance for such time as recommended by the counsellor.

33. That for the purposes of Order 31 the Independent Children’s Lawyer be permitted to provide to the counsellor a copy of the Expert Reports prepared by Dr F and a copy of these Orders, as well as a summary of the information provided to the children in accordance with Order 25 above.

34. That the Expert Reports prepared by Dr F dated 23 July 2018 and 13 December 2015 be released to any counsellor or family therapist working with the family, or children.

35. That the Mother encourage the children to have a relationship with the paternal grandparents.

36. That the Mother and paternal grandparents each undertake a parenting adolescents course within 6 months.

37. That all parties refrain from allowing the children to access age inappropriate media, video games and movies.

Independent Children’s Lawyer – Extension

38. The Court requests the Legal Aid Commission of New South Wales to extend the appointment of the Independent Children’s Lawyer for 12 months from the date of this order.

39. The Court grants leave to the Independent Childrens Lawyer to relist the matter on 7 days notice.

40. The Independent Childrens Lawyer is to take make reasonable efforts to provide the father with a copy of these Reasons for Judgment and Orders.

Costs

41. If any party or the Independent Childrens Lawyer seeks to make an application in respect of costs they are to file an application in a case and supporting affidavit within 28 days, and to notify the chambers of Judge B Smith, otherwise there is no order as to costs.

AND THE COURT NOTES THAT:

A. 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

Due to the delay in delivering this judgment, for which I apologise, I have obtained the transcript and reviewed that together with the affidavits, exhibits and written submissions.Background The mother’s childhood and early adult life were extremely unstable. The father’s early adult life became dysfunctional. The parents commenced a relationship in 2002. The boys were born in 2004 and 2005. On the mother’s account, largely corroborated by the paternal grandparents, the relationship was an unstable and highly volatile one. In 2006, when X was 2 and Y 1, the father was sentenced to a term of imprisonment. The mother was not then in a position to care for the boys. They were placed with the paternal grandparents by the Department of Community Services. They lived with the paternal grandparents between 2006 and 2009. The mother engaged in residential drug rehabilitation. In 2009 the mother sought to have the boys returned to her care and the paternal grandparents did not oppose that. The parents reconciled before Z was born in 2011. In 2012, the mother was convicted on criminal charges and incarcerated for 14 months until she was released in November 2013. The mother sought to downplay the seriousness of the conduct involved. Suffice to say in my view the mother engaged in serious criminality consistent with the penalty imposed. The father and the three children had returned to live with the paternal grandparents. The paternal grandparents also allowed the mother to live with them, which assisted in her application for parole, and so she came to live with the paternal grandparents. This arrangement only lasted a few months, and after conflicts between them, the mother left the paternal grandparent’s home in about April 2014. The mother was homeless for a while and experienced instability in her relationships and accommodation. In February 2015 the paternal grandparents commenced proceedings. At that time the mother was in a relationship with Mr B. The mother took Z in March 2015, while apparently still homeless, and a recovery order was granted and executed. In April 2015 interim parenting orders were made for the children to live with the paternal grandparents and for the mother to have supervised contact, with the grandfather supervising. The parties obtained Dr F’s first report of 13 December 2015 and on 6 September 2016 final parenting orders were made by consent (the 2016 orders) by Judge Altobelli of this Court (as he then was). Those orders were broadly in line with the recommendations in Dr F’s 2015 report. The children were to live with the paternal grandparents. The mother was granted sole parental responsibility in relation to cultural issues for the children and arranged indigenous education for them, and the paternal grandparents were granted sole parental responsibility in relation to other matters, subject to consultation with the mother about major long-term decisions. The paternal grandparents and mother otherwise had equal shared parental responsibility. The father was to spend supervised time with the children. The mother was to spend time with the children on an increasing basis, leading up to each alternative weekend plus school holidays and special days. A number of other orders were made.

Evidence

Evidence Before The Court

I emphasise that in this complex case my obligation is to make parenting orders in the best interests of the children pursuant to the principles in Part VII of the Family Law Act 1975 (Cth) (“the Act”). My duty is not to decide what is “fair” between the parties. Expert evidence Dr F’s first report was dated 13 December 2015 (Exhibit ICL 1) (the 2015 report) and his second was dated 23 July 2018 (Exhibit ICL 2) (the 2018 report). There was no challenge to his expertise. The Child Dispute Conference Memorandum of Ms J dated 7 September 2017 was tendered (Exhibit ICL 3) but, in the context of Dr F’s evidence, no party placed weight upon it. Dr F concisely summarised his final opinion, which did not change under cross-examination, at page 2 of the 2018 report. Executive Summary In summary, it appears now that the tide has turned for the children who are moving away from the grandparents towards the mother. Ms Bates does appear to have made some significant progress has now made a substantial case to have the children restored as she is drug and alcohol free, has stable accommodation and is free of any new criminal charges. Whilst I believe that the paternal grandparents are able to provide the most stable caring arrangement for the children this is unlikely to be successful because realistically now as the children are now in the process being alienated from the paternal grandparents. Therefore, I am suggesting that the children reside with the mother as the primary carer in the hope that a positive relationship with the grandparents could be maintained and that the alienation could stop. Despite going against what they clearly believe, I recommend that the paternal grandparents in the best interest of the children need to support Ms Bates with as much emotional and logistical support as possible. By the time of hearing that process of alienation had progressed. The boys were largely estranged from the paternal grandparents, and Z’s relationship with them had significantly degraded. Dr F considered that the facts, inter alia, that: Z wants to live with the mother, and also with her brothers with whom she has strong and important relationships; her age, and in particular the fact that she will soon be entering adolescence; the ongoing pressure and emotional stress she is under due to her divided loyalties; and, the example of her brothers who have already unilaterally left the paternal grandparents, when taken together make it likely that, regardless of this Court’s orders, Z eventually follow the boys’ lead and unilaterally change residences to live with the mother. It is not known when, but as Z moves towards adolescence the likelihood increases. On that basis Dr F considered that the best chance of Z retaining a connection with the paternal grandparents would to be for Z to be allowed to live with the mother now. Dr F carefully considered the risk issues for Z, and the boys, in living with the mother. He also considered the many troubling issues in relation to the mother’s parenting capacity identified by the paternal grandparents and the ICL. However, given the likelihood that Z will eventually “vote with her feet” and move, and weighing that alongside the mother’s current much improved stability and parenting capacity, Dr F recommended that the children live with the mother.

Decision

Reasons for decision

In relation to the time the children spend with their father, there was a consensus that all children should only spend time with him at a supervised contact centre. That may be difficult to enforce if the boys take a different view.The central issues and decision The central issues before me include: whether it is likely that Z will eventually unilaterally relocate regardless of Court orders; the assessment of the mother’s parenting capacity; the assessment of the risks associated with the children living with the mother and whether she presents an unacceptable risk; whether Z’s best interests are served by her living with the paternal grandparents or with the mother; and, whether shared parental responsibility is feasible. For reasons set out below, and noting the relevant considerations pursuant to s 60CC of the Act and the opinion of Dr F, as well as my assessment of the evidence and the parties, I find that it is likely that Z will eventually unilaterally relocate regardless of Court orders. That is the essential foundational finding of fact on which the decision is made. In reaching that conclusion I place significant weight on Dr F’s expertise as a child psychiatrist with specialised knowledge in relation to child development. I further find that the mother has, to her credit, substantially turned her life around, and that the risk of the mother being so overwhelmed that she returns to drug use and other anti-social behaviour is low. Therefore, there is no unacceptable risk to Z in living with the mother. While the mother may not be in a position to provide the same level of parenting and support to Z as the paternal grandparents, her parenting capacity is adequate. Given those findings it follows that Z’s best interests require that she change residence and live with the mother, and maintain regular fortnightly contact with the paternal grandparents. Given the current level of conflict between the mother and the paternal grandparents I find that shared parental responsibility is not feasible. Thus, the parental responsibility must follow the “live with” arrangements for all three children. Procedural history, witnesses and evidence The matter was listed for hearing for three days commencing 2 September 2019 and ran until 4 September 2019. The matter was not concluded and continued on 5 December and 6 December 2019. The paternal grandparents moved on the Amended Initiating Application filed 20 August 2019, relied upon a detailed written case outline dated 29 August 2019 (aide-memoire 1) and read affidavits of the grandfather affirmed and filed on 21 August 2019 and of the grandmother also affirmed and filed on 21 August 2019. They also read, without objection, updating affidavits of each of them affirmed and filed 4 December 2019. The mother moved on the Further Amended Response filed 16 August 2019, a preliminary case outline dated 30 August 2019 (aide-memoire 2) with proposed orders which were updated during the hearing, read the affidavit of the mother filed 16 December 2019, and also relied upon an amended case outline dated 4 December 2019.

Ratio Decidendi

Legal Principle Established

The issue of parental responsibility in relation to Z is also a relatively discrete one. Given the current level of conflict and low quality of communication this is a case where parental responsibility must be granted solely to the person with whom Z lives, as I consider any order for shared care to be unworkable and therefore, not in the best interests of Z. Accordingly, parental responsibility for Z will follow the “live with” order and rest with the mother. Z Best interests and primary considerations The Court is required to regard Z’s best interests as the paramount consideration when making parenting orders. (ss 60CA, 65AA and 65D of the Act). The Court must consider the primary and additional considerations set out in s 60CC of the Act. The primary considerations are “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” and “the benefit to the child of having a meaningful relationship with both of the child's parents”. The Court is to give greater weight to protection from harm. There are a range of additional considerations, not all of which will be relevant in all cases. There was no challenge to the paternal grandparents’ standing to seek parenting orders (s 65C). There is no presumption in favour of the mother as a “parent” in the context of the consideration of the children’s best interests. See Re Evelyn (1998) FLC 92-807, and also Donnell & Dovey [2010] Fam CAFC 15. Section 60CC(2)(a) refers to the benefit of the child having a meaningful relationship with both of the child’s parents. I am satisfied s60CC(3)(m) enables the Court to explore the issue of Z’s meaningful relationship with the paternal grandparents as a relevant consideration and also a consideration of the paternal grandparents’ in relation to the various s 60CC factors which otherwise refer only to parents. The totality of the evidence clearly indicates that Z has a “meaningful relationship” with the mother and the paternal grandparents, but not necessarily with her father who has been absent in her life for extensive periods. That there would be benefit in these meaningful relationships continuing is self-evident from the evidence, particularly of Dr F, but also of the parties. On the paternal grandparent’s proposal, the court is satisfied that Z would be able to continue her meaningful relationship with the mother. However, if Z decides to “walk” there is a significant risk that Z’s alienation from the paternal grandparents will become complete. Thus, their proposal involves, I find, a significant medium- to long-term risk that Z may completely terminate her relationship with the paternal grandparents, and that if she does that the relationship may never recover. On the mother’s proposal, and accepting as I do Dr F’s concerns, there is also a real risk that Z’s meaningful relationship with the paternal grandparents will be threatened, if not lost, if the mother does not cease her alienating behaviours. Whether this occurs or not will at least partly depend on the mother’s compliance with orders that this Court makes, not just in relation to her facilitating Z’s time with the paternal grandparents, but also in relation to the extent in which the mother engages in the therapeutic work she has proposed, which will enable her to see the importance of Z’s relationship with the paternal grandparents.