Federal Circuit and Family Court of Australia
(DIVISION 1)
Mitchell & Boyle (No 2) [2022] FedCFamC1F 798
File number(s): SYC 811 of 2019 Judgment of: SMITH J Date of judgment: 20 October 2022 Catchwords: FAMILY LAW – Parenting – Where there are two children aged ten and seven – Where the children were placed with the maternal grandparents by welfare authorities – Where both parents have issues with substance abuse and mental health impairments – Where the father has engaged in significant family violence and was incarcerated – Where the parties and the Independent Children’s Lawyer agree the children should live with the maternal grandparents and to exercise parental responsibility to the exclusion of the parents – Where it is agreed that the children shall have no time with the father – Where it is agreed that the children shall have communication with the mother at the maternal grandparents’ absolute discretion – Whether the father should have any communication with the children – Where the Court finds that the father poses an unacceptable risk to the children – Whether the mother should have any time with the children – Where the Independent Children’s Lawyer opposed the order that the children spend any time with the mother – Where the children wish to maintain a relationship with the mother – Where the Court finds that the maternal grandparents have the capacity to determine if and what supervised time the children should spend with the mother – Ordered that the children shall spend no time and have no communication with the father – Ordered that the children shall spend no time with the mother except at the sole and unfettered discretion of the maternal grandparents Legislation: Family Law Act 1975 (Cth) Cases cited: In the Marriage of B and B (1993) 16 FamLR 353
McCall & Clark (2009) 41 483 FLR
Stott and Holgar and Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 290 Date of hearing: 25-29 July 2022 Place: Sydney Counsel for the Applicants: Mr Bateman Solicitor for the Applicants: Swifte Law Counsel for the First Respondent: Mr Fantin Solicitor for the First Respondent: SCB Legal Pty Ltd Counsel for the Second Respondent: Ms Kaiti Solicitor for the Second Respondent: Inner West Solicitors Pty Ltd Solicitor Advocate for the Independent Children’s Lawyer: Ms Walberglackman Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 811 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MITCHELL
First Applicant
MS WALBERG
Second Applicant
AND: MR BOYLE
First Respondent
MS MITCHELL
Second Respondent
order made by:
SMITH J
DATE OF ORDER:
20 October 2022
THE COURT ORDERS THAT:
1.All previous parenting orders and injunctions made in these proceedings and in relation to X born 2012, and Y born 2015, together known as “the children” are discharged.
The maternal grandparents
2.The applicant maternal grandparents, Mr Mitchell born 1961, and Ms Walberg born 1961 (“the maternal grandparents”) have equal shared parental responsibility for the children. That…
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- Mitchell & Boyle (No 2) [2022] FedCFamC1F 798
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- [2022] FedCFamC1F 798
- Decision Date
CaseChat Overview and Summary
The parents of two children brought an application for parenting orders, which resulted in a lengthy trial. The parents had a history of substance abuse and family violence, and the children had been placed in the care of the maternal grandparents by the Department of Communities Child Safety Services Tasmania. The grandparents sought parenting orders that would exclude the parents from having any contact with the children. The father sought family therapy to facilitate communication with the children. The Independent Children’s Lawyer also made submissions. The court had to decide whether the parents' past behaviours and the risks they posed to the children were unacceptable and whether any safeguards could ameliorate those risks. The court also had to consider the benefit of having a meaningful relationship with each parent and the children's relationship with other people.
The court found that both parents presented risks of physical and psychological harm to the children, which were unacceptable. However, the court also found that those risks could be ameliorated if adequate safeguards were in place. The court accepted the mother's and the grandparents' submission that the risks of her spending time with the children could be made acceptable by supervision orders. The court rejected the father's submission that the risks of him communicating with the children could be made acceptable by family therapy orders, as there was no evidence that the father had changed or that he could safely communicate with the children. The court also found that there was no positive benefit to the children of having a meaningful relationship with either parent, as this would not be in their best interests. The court therefore made orders that the children would live with the grandparents, that the grandparents would exercise equal shared parental responsibility for the children to the exclusion of the parents or either of them, and that the grandparents would be authorised to obtain passports for the children and to travel outside the Commonwealth of Australia with them. The court also made orders that the parents would not be allowed to approach the school, residence or any other place that the children were spending time, and that the parents would only be allowed to communicate with the children under the express written consent of the grandparents.
The court found that both parents presented risks of physical and psychological harm to the children, which were unacceptable. However, the court also found that those risks could be ameliorated if adequate safeguards were in place. The court accepted the mother's and the grandparents' submission that the risks of her spending time with the children could be made acceptable by supervision orders. The court rejected the father's submission that the risks of him communicating with the children could be made acceptable by family therapy orders, as there was no evidence that the father had changed or that he could safely communicate with the children. The court also found that there was no positive benefit to the children of having a meaningful relationship with either parent, as this would not be in their best interests. The court therefore made orders that the children would live with the grandparents, that the grandparents would exercise equal shared parental responsibility for the children to the exclusion of the parents or either of them, and that the grandparents would be authorised to obtain passports for the children and to travel outside the Commonwealth of Australia with them. The court also made orders that the parents would not be allowed to approach the school, residence or any other place that the children were spending time, and that the parents would only be allowed to communicate with the children under the express written consent of the grandparents.
Orders
Orders of the court
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Background
Background to the litigation
The other issues in the case largely depend upon those findings.BACKGROUND The parents met in late 2009 while they were living in a share house in E Town, NSW. They subsequently formed a relationship and eventually moved to Tasmania in about 2010 where they had the children. The parents both have criminal histories, the father’s more extensive than the mother’s. Both parents admit to long term extensive use of illicit substances. Both parents have, or have had, mental health issues which appear to be related to their substance use issues. The father also has a history of family violence both against former domestic partners and against the mother. In about late 2018 the children were placed in the care of the maternal grandparents by “The Department of Communities Child Safety Services Tasmania” (“CSS”). At the time CSS placed the children with the maternal grandparents the mother and father were separated. The father had been incarcerated in 2018 for family violence against the mother, to which the children were exposed. After his release there was a restraining order on the father for the protection of the mother. The mother and the children were living with her new partner, Mr G. Both parents say that Mr G was a drug dealer, drug user and a violent person. That is accepted as an agreed fact for the purpose of these proceedings. However, as Mr G was not represented, nothing said in this Judgement should be taken as a finding against Mr G. In this context the only alternatives considered practical and safe for the children by CSS at that time were either entry into State Care or placement with the maternal grandparents. Ms H (“the paternal grandmother”) and her partner were considered safe, but were already looking after children and their other grandchildren and were unable to assist. As Ms H played no part in these proceedings, I will refer to the Applicants as “the grandparents”, rather than “the maternal grandparents”, for simplicity of expression. The grandparents and the mother were advised of the two options. The mother consented to the children being placed with the grandparents. The grandparents did not want the children placed in care. In the absence of any other alternative they took the children and since then have cared for them. The evidence establishes that the children have started to flourish in the grandparents care, despite their difficult start in life. THE APPLICATIONS The mother adopted the grandparents’ final proposal contained in their amended minute of proper order.[1] [1] Exhibit 15. In the father’s proposed minute of order he introduced a proposal for family therapy to facilitate communication.[2] This was first raised during the hearing. [2] Exhibit 18. The ICL’s final proposal was contained in their minute of proposed final order.[3] [3] Exhibit 40. The majority of the orders were ultimately agreed. Agreed orders At the conclusion of the Trial, the parties and the ICL agreed that: (1)all previous orders would be discharged, (2)the children would live with the grandparents, (3)the grandparents would exercise equal shared parental responsibility for the children, to the exclusion of the parents or either of them, and,(4)the grandparents would be authorised to obtain passports for the children and to travel outside the Commonwealth of Australia with them.
Evidence
Evidence Before The Court
Further Interim Orders were entered by a Senior Judicial Registrar by consent of the parties on 23 July 2019. The effect of these Orders included a restraint on the mother and the father approaching the school, residence or any other place that the children were spending time and to allow the parents to communicate with the children under the express written consent of the grandparents.Trial and evidence The matter was listed for final hearing before me commencing Monday 25 July 2022. It ran over 5 days, concluding on Friday 29 July 2022. The parties were represented by counsel and the ICL by a solicitor advocate. The grandparents read or relied upon:(a)the Trial Affidavit of Mr Mitchell filed 2 May 2022, (b)the Trial Affidavit of Ms Walberg filed 2 May 2022,(c)Initiating Application filed 12 February 2019,(d)Outline of Case filed 24 July 2020, and,(e)Amended Minute of Proposed Orders dated 25 July 2022. The father read or relied upon:(f)the Trial Affidavit of Mr Boyle filed 8 June 2022,(g)Response filed 22 June 2022, (h)Notice of Child Abuse Family Violence or Risk filed 22 June 2022, (i)Case outline filed 19 July 2022, and,(j)Proposed Minute of Order [Exhibit 18]. The mother read or relied upon:(k)the Trial Affidavit of Ms Mitchell filed 15 June 2022, and,(l)Case outline filed 25 July 2020. The ICL relied upon:(m)Case outline filed 22 July 2022, (n)Family Report of Child Court Expert Ms D dated 27 October 2021, and,(o)Minute of Proposed Final Order [Exhibit 40]. The parties were required to file Court Books. A large number of documents were tendered from the Court Books. These will be referred to as appropriate. Both grandparents, the father, the mother and Ms D (“the expert”), were all required for cross examination. I have not taken out transcript. The references to the evidence is from my notes and where necessary from a review of audio.THE PARENTS’ HISTORIES Despite the narrow ambit of the dispute, it is necessary to consider each parent’s history as disclosed in order to assess and weigh the relevant risks. The parents both have extensive histories of involvement with police and courts, and after the birth of the children with state welfare authorities, often related to or arising from their significant long term use of illicit substances and their associated mental health issues. The father suffers from an injury sustained in 2008. He is on a disability pension. In addition the father gave evidence in relation to his perpetration of family violence, “I believe that my PTSD and Anxiety were also contributing factors because I really struggled to control my emotions when my PTSD and Anxiety were flared up.”[5] He also said in his Affidavit, “When we were intoxicated, things became even more heated and escalated.”[6] The father’s history was that he started using “[a prohibited substance]” from 2015 to 2018, and that he and the mother were using a prohibited substance for almost two weeks before he was arrested and incarcerated for assaulting the mother in 2018.[7] The father’s evidence was that he commenced using a prohibited substance in 2019 “following the loss of” the children.[8][5] Father’s Affidavit, para 38. [6] Father’s Affidavit, para 39. [7] Father’s Affidavit, paras 70-73. [8] Father’s Affidavit, para 76.
Decision
Reasons for decision
Dealing with the risk of physical harm, I am satisfied there is a significant difference between the physical risk the father poses to the children to that the mother poses. She does not have the same history of physical violence as the father. While there is a risk if she is drug affected, the grandparent’s capacity to determine if and when time occurs, under supervision, sufficiently ameliorates that risk.Discussion and decision Each child’s best interests are to be determined by reference to s 60CC of the Act. Section 60CC(2) provides that the primary considerations are “(a) the benefit to the child of having a meaningful relationship with each parent; and “(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.” Greater weight is to be given to child protection. There are a range of additional considerations set out at s 60CC(3)(a)-(m). Subsections 60CC(3)(j) and (k) relate to family violence and family violence orders. The evidence concerning these matters is set out above. The children were exposed to family violence by the father. They have been exposed to family violence and neglected by the mother, including through her choice to partner with Mr G. I find that the father has not changed and that his past behaviours represent his likely future behaviours. I find that the mother probably has not changed significantly either, and that her future behaviours are also likely to be similar to her past behaviours. This means that both parents present risks of physical and psychological harm to the children. I find that those risks of harm present unacceptable risks to the children. However, an unacceptable risk of harm may be ameliorated if there are adequate safeguards in place. As stated in Stott and Holgar and Anor [2017] FamCAFC 152 at [37]:… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …(Emphasis added) In the case of the mother, both the grandparents and the mother say that the risks of her spending time with the children can be made acceptable by the supervision orders the grandparents seek. In the case of the father he says that the risks of him communicating with the children can be made acceptable by the family therapy orders he seeks. A consideration of the children’s relationship with each parent and with other people is required, s 60CC(3)(b), as well as a consideration of the benefit of having a meaningful relationship with each parent. The Full Court in McCall & Clark (2009) 41 483 FLR said at [122]:… No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Ratio Decidendi
Legal Principle Established
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