Mills and Mills

[2016] FamCA 457

FAMILY COURT OF AUSTRALIA

MILLS & MILLS [2016] FamCA 457

FAMILY LAW – CHILDREN – With whom a child spends time – With whom a child communicates – Interim order that maternal grandfather spend supervised with the child – Maternal grandmother to provide undertaking to court re supervision of child – Matter adjourned to fixed date for interim hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Mills

RESPONDENT: Ms Mills

FILE NUMBER: LNC 524 of 2008

DATE DELIVERED: 18 May 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 18 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mooney

SOLICITOR FOR THE APPLICANT: PWB Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lewinski

SOLICITOR FOR THE RESPONDENT: Butler McIntyre & Butler

Orders

IT IS NOTED

1. The Court notes and accepts the undertaking of the respondent mother that she will ensure that the child B born … 2006 (‘the child’) is not left in the unsupervised care of the maternal grandfather except if he is supervised by her, her sister Ms C, her partner Mr D or the maternal grandmother, subject to the maternal grandmother having filed in court an undertaking to abide by the undertaking not to leave the child unsupervised.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and 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 these particulars are included in these orders.

3. These proceedings be adjourned for further interim hearing before me at 10.00am on 5 July 2016 at Hobart.

4. Leave be given for the legal practitioners for the parties to photocopy the files from the Department of Child Protection, but they are to remain in the offices of the practitioners and in the event that their instructions are terminated in one form or another such material is to be returned to the Court.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mills & Mills has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 524 of 2008

Mr Mills

Applicant

And

Ms Mills

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought by Mr Mills (‘the father’) in relation to the child, who has just celebrated his tenth birthday.  The respondent is Ms Mills (‘the mother’).  These proceedings commenced in December 2015 in the Federal Circuit Court in Launceston.  the child lives primarily with his mother and spends regular time with his father.  From some of the material I have read so far, the relationship with each of his parents is continuing adequately. 

2. At the time this matter was before the Court some five or so years ago there was an allegation raised in relation to the maternal grandfather and that was dealt with, as is the case in most courts exercising jurisdiction under the Family Law Act 1975 (Cth), with a proportionate response. In this case, it was an undertaking by the mother than the child would not be left alone with the maternal grandfather.

3. Of course, that related, then, to a five-year-old child.  Since that time, the mother’s adherence to that undertaking has perhaps not been as the father would have expected.  I make no finding one way or the other in terms of that.  There was an issue which the father discovered from some two or three years ago, which is set out in his affidavits, and the father commenced proceedings seeking orders restraining the child from coming into contact with the maternal grandfather other than properly supervised contact.  The parties, to their credit, are endeavouring to do a number of things.

4. Each of them, in their own way, is endeavouring to protect this child from what they see as risk to the child.  In terms of the father, his case is that the child is and remains at an unacceptable risk in the unsupervised care of the maternal grandfather.  The case of the mother is that it appears the child is not at risk in the care of the maternal grandfather and asserts this is an example of the father unnecessarily imposing obligations upon her and continuing what she regards as some form of bad behaviour of him following separation and from before separation.

5. In other words, it is a reflection of the conflict continuing between the parties.  I intend to list the interim matter for a half day interim hearing before me on 5 July 2016, which is some almost two months away.  I will list the matter in Hobart at the request of counsel for both parties.  I raised with the parties what should happen in the meantime and whether the mother confirms that she adheres to the undertaking would satisfy the father for that period of time.  The parties sensibly reached an agreement in all areas bar one.  That agreement was that the mother would ensure that the child was not left in the unsupervised care of the maternal grandfather between now and that return date and that if the child came into the care or was in the presence of the maternal grandfather either the mother, her sister, Ms C, her partner, Mr D, and her mother, Ms E, would be present and would be supervisors.

6. That was accepted by the father, with the exception of his concerns about Ms E.  Ms E, it was said by the father, has two disentitling factors.  One is that she is frail and would be, in many ways, dependent upon the maternal grandfather and, as such, could not be reliable in that respect.  I am not sure that that is the strongest part of Mrs Mooney’s argument.  In fact, it is not the strongest part of her argument.  The strongest part of her argument is that Ms E has been married to her husband for 51 years and is so attached to him that she would put the interests of him and her relationship ahead of her interests of the child.

7. Mrs Mooney quite rightly points out the long line of authorities saying that the Court should be careful about supervisors and I acknowledge that history.  I am also aware that, in this case, there has been a relatively gentle level of supervision over the last five years and very little has shown up in any meaningful way since that time.  The only issue may have been the interaction of some cousins with each other as small children, which could be as depicted by the father, which is hearsay, of course – or it could well have been little boys and little girls “showing me yours and I will show you mine”.  I do not know.

8. My other concern in this case is polarising the parties so that they end up having a battle in relation to parenting in this Court, which would not, in the long-term, be in the best interests of the child.  What I intend to do is make the orders or note the undertaking offered by the mother and I will accept Ms E as a supervisor, subject to her signing an undertaking and having it filed in court in terms sought by the father.  That seems to me, in the context of this matter, using the words of, Tree J, a “proportionate response”, on the basis that it ups the ante for Ms E that if the child is not supervised by her she faces the possibility of imprisonment.

9. That way the child is protected, the relationships that the child has at the moment are continued and the child is not unnecessarily disturbed by these proceedings, which also have the effect of impacting upon him. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 May 2016.

Associate:     G Doyle

Date:              18 May 2016