Mitchell & Boyle (No 2)
[2022] FedCFamC1F 798
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 parental responsibility is to the exclusion of the first respondent father Mr Boyle born 1985 (“the father”), and the second respondent Ms Mitchell born 1991 (“the mother”), who shall have no parental responsibility for the children.
3.The children shall live with the maternal grandparents.
4.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) an Australian passport (including any renewed passports) be issued for each child on the application of the maternal grandparents, or either of them, without the requirement for either the mother’s consent or the father’s consent.
5.That the cost of obtaining any Australian passport for the children shall be met by the maternal grandparents, including the cost of any replacement passports obtained in accordance with these Orders in the future.
6.The maternal grandparents shall retain each of the children’s Australian passports.
7.The maternal grandparents are permitted to travel outside of the Commonwealth of Australia with the children.
8.The maternal grandparents may provide a copy of this Order as sealed by the Court to: NSW Police, Tasmania Police, the children’s schools, any extra-curricular or sporting body at which the children may attend, and to any health or medical practitioner to whom the children are referred or may attend, including any medical doctor, psychologist, counsellor, mental health nurse, social worker or other health or social work professional.
9.The maternal grandparents may provide a copy of the Family Report of Ms D dated 27 October 2021 to any medical doctor, psychologist, counsellor, mental health nurse, social worker or other health or social work professional to whom the children are referred.
The mother
10.The children shall have no communication with the mother, except in accordance with these Orders:
(a)The mother may communicate with the children at the sole and unfettered discretion of the maternal grandparents.
(b)The maternal grandparents may decide that it is not appropriate for the children to communicate with the mother, in which case no communication shall occur.
(c)The maternal grandparents may determine the times and means and any other conditions on which communication shall occur.
(d)The mother is not to be adversely affected by alcohol or by any drug, prescription or otherwise, at the time of any communication.
(e)The father is not to be present with the mother at the time of any communication.
11.The children shall spend no time with the mother, except in accordance with these Orders:
(a)The mother may spend time with the children at the sole and unfettered discretion of the maternal grandparents.
(b)The maternal grandparents may decide that it is not appropriate for the children to spend time with the mother, in which case no time shall occur.
(c)The maternal grandparents may determine the times, places and any other conditions on which time shall occur, subject to the following conditions:
(i)Any time the children spend with the mother must be supervised by one of the maternal grandparents, or by another adult nominated to supervise by the maternal grandparents, and the maternal grandparents do not have the discretion to vary this supervision condition without the leave of the Court; and;
(ii)Any time the children spend with the mother is not to be at a place to which the injunction pursuant to s 68B of the Family Law Act 1975 (Cth) directed to the mother in these orders applies, and the maternal grandparents do not have the discretion to vary this location condition without the leave of the Court.
12.Pursuant to s 68B of the Family Law Act 1975 (Cth) Ms Mitchell born 1991 (“the mother”) is restrained, and an injunction shall issue, prohibiting her from doing any of the following:
(a)Approaching or coming within 1 kilometre of any place where the children or the maternal grandparents reside from time to time.
(b)Approaching or coming within 1 kilometre of any place where either child attends school from time to time.
(c)Approaching or coming within 1 kilometre of any place where either child attends for treatment, extra-curricular or sporting activities from time to time.
13.Pursuant to s68C of the Family Law Act 1975 the injunction pursuant to s68B directed to Ms Mitchell born 1991, is for the personal protection of:
(a)Mr Mitchell born 1961, and
(b)Ms Walberg born 1961, and
(c)X, born 2012, and
(d)Y, born 2015, and
(e)Ms F, born 1987.
14.If a Police Officer believes on reasonable grounds that the mother has breached the injunction naming her herein that Police Officer may arrest the mother without warrant.
The father
15.The children shall spend no time with the father.
16.The children shall have no communication with the father.
17.Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Boyle born 1985 (“the father”) is restrained, and an injunction shall issue, prohibiting him from doing any of the following:
(a)Initiating contact with the maternal grandparents or the children by any means, including through a third party.
(b)Approaching or coming within 1 kilometre of any place where the children or the maternal grandparents reside from time to time.
(c)Approaching or coming within 1 kilometre of any place where either child attends school from time to time.
(d)Approaching or coming within 1 kilometre of any place where either child attends for treatment, extra-curricular or sporting activities from time to time.
(e)Knowingly approaching any protected person at another location.
18.Pursuant to s68C of the Family Law Act 1975 the injunction pursuant to s68B directed to Mr Boyle born 1985 (“the father”) is for the personal protection of:
(a)Mr Mitchell born 1961, and
(b)Ms Walberg born 1961, and
(c)X, born 2012, and
(d)Y, born 2015, and
(e)Ms F, born 1987.
19.If a Police Officer believes on reasonable grounds that the father has breached the injunction naming him herein that Police Officer may arrest the father without warrant.
20.The maternal grandparents shall maintain the email address at ...@... and provide to the father via his email at ...@..., within a reasonable time after receiving same, a copy of the following:
(a)The mid-year school report for each of the children in each year if provided.
(b)The end of year school report for each of the children in each year.
(c)The grandparents may remove from any school report: any photographs of the children, and any home or other address details, and, the school name and address.
21.The father is not to communicate with the maternal grandparents via this email address.
Costs
22.If any party seeks to make an application in respect of costs they are to file an Application in a Case in accordance with Rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, otherwise each party shall bear their own costs.
Application in a case
23.The father’s Application in a Case filed 8 August 2021 is dismissed.
NOTES
A.The Court notes that the maternal grandparents cannot be praised too highly for taking on the obligation of caring for the children.
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).
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitchell & Boyle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE SMITH:
X (aged 10) and her younger brother Y (aged 7) (“the children”) live in Sydney, NSW, with their maternal grandparents, the first and second applicants Mr Mitchell (aged 61) and Ms Walberg (aged 60) (“the grandparents”).
The first respondent mother, Ms Mitchell (aged 31) and the second respondent father, Mr Boyle (aged 37), together known as “the parents”, live in Tasmania.
Both parents have significant histories of drug abuse with associated mental health conditions. The father has a substantial criminal history including for perpetrating family violence against various partners. He was imprisoned for assault on the mother. The children were exposed to his family violence. The mother neglected the children as a consequence of her drug and mental health issues. She also has a history of poor choices of partners, including her subsequent partner, who on her case was an abusive drug dealer. This also exposed the children to family violence.
The parties and the Independent Childrens Lawyer (“ICL”) all agree that the children should continue to live with the grandparents and that the grandparents should jointly exercise parental responsibility to the exclusion of the parents. I agree.
The father conceded the children should spend no time with him. The main issue for determination in the father’s case was what, if any, communication the children should have with him. He seeks family therapy to re-introduce communication and then ongoing audio-visual communication. The ICL and grandparents opposed this, and the mother did not support it.
It was agreed that the children should communicate with the mother at the grandparents’ sole discretion. The main issue for determination in the mother’s, and in the grandparents’ cases was whether the children should spend any time with the mother. The grandparents proposed she should, at their discretion and on the basis of an indefinite supervision order, with supervision to be provided by the grandparents or their nominee. The mother agreed and the father did not oppose this. The ICL opposed any order for time between the children and the mother.
The question of what orders are in the childrens’ best interests is to be determined pursuant to the principles set out in the Family Law Act 1975 (Cth) (“the Act”).
For reasons set out below I find that the children’s best interests require that they have no time and no communication with the father.
After giving careful consideration to the ICL’s opposition to any order for time with the mother, for reasons set out below I find that on balance the children’s best interests will be served by allowing the grandparents the discretion to allow the children to spend time with the mother on a supervised basis.
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.
In respect of the father it was also agreed that:
(1)the children should spend no time with the father,
(2)the father should be subject to an injunction pursuant to s 68B of the Act for the protection of the grandparents and the children. That would extend for 1 kilometre around the places where the grandparents and children reside, and the places where the children go to school or attend extra-curricular activities. That injunction will be enforceable by arrest pursuant to s 68C of the Act, and,
(3)the grandparents will send the father school reports by email twice a year, although not so as to include any photographs of the children.
In respect of the mother, it was also agreed that:
(1)the children may have electronic communication with the mother at the sole discretion of the grandparents, and,
(2)The mother should be subject to a similar injunction pursuant to s 68B of the Act, with the precise terms dependent on the issue of whether or not she should be allowed to spend time with the children at the grandparents’ discretion, discussed below.
In respect of both parties, the grandparents proposed during closing oral submissions that the children’s Aunt Ms F born 1987, be added to the s 68B injunctions, as she apparently spends significant time with the children and helps the grandparents with their care, and so is a member of their extended household. I do not understand anyone opposed this amendment to the agreed order.
The ICL also proposed that a copy of the orders be able to be provided to the children’s schools, health care providers, extracurricular activity providers and others as necessary to ensure the children’s safety, and I do not understand any party opposed that order.
I am satisfied that all of these consent orders are in the children’s best interests, and will make them.
THE ISSUES
Mother – outstanding issues
The outstanding issue concerning the mother was whether or not she should be permitted to have any time with the children.
The grandparents seek an order that the mother be able to spend time with the children at their absolute discretion in their exercise of their parental responsibility. Further, they propose that any such time would always be supervised. The proposal for indefinite supervision was made to meet the ICL’s concern that they did not fully appreciate the risk the mother poses to the children.
The mother supported this proposal. It is implicit in the mother’s consent to an indefinite order that the children spend no time with her unless the grandparents agree it is appropriate, and that the time be as determined by the grandparents, and that even then it always be supervised, that she accepts that she poses an unacceptable risk to the children which precludes unsupervised time. Her position, as with the grandparents, is that the relevant risks are sufficiently ameliorated by making any time dependent on the grandparents’ satisfaction that she is sober and stable and that even then there will always be supervision.
As the proposal is for an indefinite supervision order, and there is no money for professional supervision, for the orders to be capable of being given effect the supervision must be provided by the grandparents, or the children’s aunt Ms F, or another competent adult nominated by the grandparents.
The mother supported this order. The father supported the children spending time with the mother. The ICL initially supported this order, consistent with the submission that the grandparents are competent child focussed adults well placed to exercise parental responsibility for the children.
However, given the evidence that suggested that contrary to the mother’s case she remains in a relationship with the father, which evidence the ICL submitted would be accepted and which was submitted to establish an ongoing “co-dependent relationship”, and given the many facts and matters about the mother of which it became apparent during their cross examinations that the grandparents remained unaware, the ICL ultimately opposed the order that the children spend any time with the mother, submitting that whilst otherwise excellent and child focussed people the grandparents have a “blind-spot” where their daughter, the mother, is concerned.
The ICL’s concern echoes what the Full Court said in In the Marriage of B and B (1993) 16 Fam LR 353 (“Re B&B”), under the heading “Who should supervise the access?”. In that Judgment, the Full Court expressed concerns about “friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists” because they may “have an opinion” about “whether any risks exists” and “may therefore believe that close monitoring of the children is unnecessary.” For that reason the Full Court said:
For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.
The dispute over this proposal raised three primary issues. Firstly, whether the mother is still in a relationship with the father as the ICL submitted. Secondly, whether the nature of the risk the mother poses is qualitatively so much less than that posed by the father that supervised time with her is appropriate. Thirdly, irrespective of whether or not the mother is still in a relationship with the father, whether the grandparents are now sufficiently alive to the risks the mother poses to the children that the risks of supervision by them, as articulated in Re B&B, are now addressed.
Father – outstanding issues
During the hearing, the father amended his proposal to include orders for communication with the children. He seeks orders:[4]
[4] Exhibit 18.
6. That the children spend time with [Mr Boyle] (“the Father”) as follows:
Stage 1:
a. Supervised time with child psychologist or family therapist (and parties to complete all documentation as required to engage the services for child psychologist or family therapist) for a period of 6 months once a month or as directed by the child psychologist or family therapist.
Stage 2
b. Upon the father meeting any requirements set by the child psychologist or family therapist, the father shall have Skype or Facetime (or such other facetime program) calls with the children as follows:
i. During school term, each Tuesday from 4.30pm for up to 15 minutes
ii. for up to 20 minutes on the following special days:
1. Father’s birthday
2. Father’s day
3. Christmas Day; and
4. Easter Sunday
iii. On any time or occasion the children or child makes a request to make such call.
c. For the purpose of Order 6(b), the Maternal Grandparents do all things reasonably necessary to ensure the children (or child) shall be provided with a safe private space in which no persons shall be present other than for general parental or guardian supervision of the children.
7. For the purpose of family therapy as between the parents and/or Maternal Grandparents (either individually or collectively) the therapist shall address the following:
a. Effective child focused parent communication and use of and implementation of Our Family Wizard.
b. Effect and damage of parental conflict on the children.
c. The capacity of the father or each parent to future focus on the benefit of the children’s relationship with the parents and the Maternal Grandparents.
d. The children’s current education, development and engagement with speech therapy.
e. Such other matters as considered by the therapist.
f. All costs shall be met equally for the therapy after the individual sessions which are the responsibility of the father attending.
In submissions, it was clarified that the intention was that the father would be in Tasmania and the children in Sydney in the presence of a psychologist or family therapist, with the sessions taking place by audio-visual means and that he was not seeking time with the children, only communication with the children.
It was confirmed that these were proposed final orders and not suggested as interim orders with the Trial to go part heard. In his evidence, the father said that he would pay for the therapy from his pension, contrary to the form of the proposed orders at [7(f)]. It was not conceded that he had the capacity to meet such costs.
The father’s proposal was opposed by the ICL and the other parties, except to the extent agreed concerning providing some school report information.
While the father implicitly accepted that he posed an unacceptable risk of harm in spending time with the children, his case was that it was not established that he posed an unacceptable risk of causing the children psychological or emotional trauma if allowed to communicate with them, particularly given the proposed safeguard of an introductory process of family therapy.
The proposal was allowed to be raised during the Trial on the basis that if there was any prejudice to the other parties or ICL the Court would consider an adjournment application.
There was no adjournment application, with the grandparents and ICL relying in opposition to the proposal on the facts that there was no expert evidence considering the proposal or its impact on the children, there was no expert identified, and there was no evidence as to its practicability. Given that the proposal was explicitly put on the basis that it was a proposal for final orders and not as a proposal for interim orders, it was submitted that to trial family therapy in the context where the evidence otherwise establishes that any communication with the father poses an unacceptable risk of psychological harm, there was not sufficient evidence about the proposed family therapy on which the Court could consider making such an order. Further, it was submitted that this is in the context where the evidence otherwise establishes that the risk of psychological trauma to the children of any communication is an unacceptable risk.
Part of the factual contest underlying the father’s case was that while he was incarcerated for domestic violence offences against the mother from early to late 2018, she and the children were living with Mr G. Mr G was, on the parties’ accounts, a drug user, drug dealer and perpetrator of family violence. The father’s case was that it was not established that there was in fact any trauma which caused an impact on the children or in the alternative that it was not established that any trauma the children are suffering from was caused by the father’s conduct rather than due to Mr G’s subsequent conduct.
In addition to his proposal for communication with the children, the father sought ancillary orders as follows:
(1)Proposed order [3], that the grandparents notify him of any decision made in relation to the long-term care, welfare and development of the children within 14 days.
(2)Proposed order [4], that the grandparents provide him with “a written update about the Children’s health and well-being, or progress at school including copies of school reports and sporting and extra-curricular activities not less than four times a year…”.
(3)Proposed order [8], that the parties install a communication application and ensure that they advise of any illness or injury, treatment plans or medications, special events, school reports awards or positive events, as well as family therapy or supervised time arrangements and information necessary to give effect to the family therapy.
(4)Proposed order [10], that he be at liberty to send “from time to time or on special occasions, cards, letters and/or gifts to the children with a requirement that these be passed on by the grandparents, subject to any inappropriate content, as deemed by the grandparents”.
(5)Proposed order [13], that the grandparents notify the father within 24 hours of any medical emergency.
These ancillary orders were also opposed on the basis that if there is no communication, proposed order 10 is not appropriate and that the other orders are of no benefit to the children and place an unnecessary burden on the grandparents.
In the father’s case the principal factual issues were:
(1)whether or not he had threatened the grandparents, so that their expressed fears of him were justifiable or were based on unreliable hearsay from the mother,
(2)whether or not the children had suffered trauma which affected them at all and if so whether they had suffered trauma as a consequence of his actions and were frightened of him to the extent that they would or could suffer trauma if they were required to comply with his proposed orders, and
(3)whether the father is now a changed man whose past behaviours are not good predictors of his likely future conduct.
THE PROCEEDINGS
Procedural history
The grandparents commenced these parenting proceedings by Initiating Application filed 12 February 2019. Orders were made ex-parte on 1 March 2019 by a Senior Registrar granting the grandparents sole parental responsibility for the children and that they live with them.
The matter was brought back before the Court on 23 July 2019, at which time the parents appeared and the ICL was appointed. There were consent orders that provided for the grandparents to exercise sole parental responsibility and the children were ordered to remain living with them. The parents agreed to being restrained from approaching the children’s schools, residence, sporting activities or any other place the children were spending time without the grandparents’ prior written consent.
The parents also agreed that they could only spend time with or communicate with the children with the grandparents’ prior written consent and subject to any conditions the grandparents might impose. Time with conditions included “the time and venue of any spend time with periods”, “the presence of professional supervisors”, “drug and alcohol testing” and “the termination of any time with parents in the event that either or both parents engage in inappropriate behaviour.”
Communication with the parents was permitted with conditions which included “the manner of communication, including whether communication should be by phone call, facetime, email or post” and “as to the supervision of any form of communication” and “as to the termination of any communication in the event that either or both parents engage in inappropriate behaviour.”
The parties were to nominate an email address for the purpose of communication. The grandparents created “...@...”, which I shall refer to as the grandparents’ email. It was ordered that the father be restrained from communicating with the grandparents other than in accordance with the orders and that “in any event, the father shall ensure that any such communication is not abusive or threatening.”
The consent orders also provided for the grandparents to notify the parents within 48 hours of any medical emergency involving the children, and an order that an Australian passport be issued for each child without the requirement for the parents' consent with the costs to be borne by the maternal grandparents.
Orders of a Senior Judicial Registrar of this Court dated 1 March 2019, provided that the children live with the grandparents, and that the grandparents have sole parental responsibility for the day to day and long term decisions concerning the welfare of the children.
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.
The mother is not employed. She has also conceded a long history of substance abuse and associated mental health impairment.
The parties’ relevant histories are so entwined that it is easier to consider them in a single chronological fashion rather than trying to deal with each parent’s history separately.
Set out below are the specific events or periods to which reference was made in the evidence. Where appropriate I will comment on the specific event and my findings. In many cases the facts speak for themselves as part of the pattern of behaviours which create the acknowledged risk issues. I include charges which were dismissed or not proven in the context of the mutual evidence of the parties that the mother would often refuse to give evidence against the father, and as part of the overall context noting that very limited weight is placed on events not involving both parties where there was a dismissal.
Mid-2002 – father – juvenile - offence - NSW
In mid-2002, at age 17, the father was charged with an offence.[9] The prosecution accepted a plea of guilty. A conviction was recorded. In early 2003, the father was sentenced by the City J Court to a control order pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW), suspended pursuant to s 33(1B) of that Act subject to supervision by Juvenile Justice NSW.
[9] Exhibit 12, page 76.
Late 2005 – father – offence - NSW
In late 2005, then aged 20, the father was charged with an offence.[10] In early 2006, he was sentenced by the Suburb K Local Court to a bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
[10] Exhibit 12, page 77.
Late 2006 – father – offence - NSW
The father was charged by the NSW Police with an offence.[11] In early 2007, he was sentenced to a fine and a bond and at the same time resentenced for the late 2005 offence for which he received a s 9 bond.
[11] Exhibit 12, page 77.
Early 2008 – mother – juvenile - charged but dismissed - NSW
The mother, then aged 17, was charged by the NSW Police with offences.[12] The charges were withdrawn and formally dismissed by the Children’s Court.
[12] Exhibit 12, page 84.
Mid-2008 – father – offence - Tasmania
The father, by then aged 23 and in Tasmania, was charged with an offence by the Tasmanian Police.[13] In mid-2011, the father entered a plea of guilty. Whilst no conviction was recorded it was on condition that the father appear before the court during the adjournment of 6 months pursuant to an undertaking.
[13] Exhibit 12, page 88.
This was in relation to a prior domestic partner. In mid-2008, the father failed to appear when called on by the court in accordance with his undertaking.[14]
[14] Exhibit 12, page 88.
In mid-2011, some three years later, the father entered a guilty plea in relation to the fail to appear. No conviction was recorded subject to an undertaking for 6 months that the father appear before the court if called upon, and to be of good behaviour for the period of adjournment.
Late 2008 – father – offence - NSW
In late 2008, the father was charged by NSW Police with an offence.[15] A short time later, the father was sentenced to pay a fine by the Suburb M Local Court.
[15] Exhibit 12, page 78.
This was in relation to a prior domestic partner of the father, but not the prior partner in relation to whom he was charged in mid-2008.
Late 2008 and Early 2009 – father – multiple offences - NSW
In late 2008, the father was charged by NSW Police with multiple offences.[16] In late 2009, the father was sentenced by the Central Local Court to a term of imprisonment to commence early 2009, a Bond pursuant to s 9, fines, and licence disqualification.
[16] Exhibit 12, pages 78-79.
In early 2009, the father was charged by the NSW Police with various offences.[17] In late 2019, the father was also convicted of multiple offences multiple offences.[18] He was sentenced to a term of Imprisonment to commence early 2009, with a non-parole period, a s 9 Bond, and a fine.
[17] Exhibit 12, page 79.
[18] Exhibit 12, page 80-81.
This relates to the same prior domestic partner in respect of whom charges were laid on late 2008.
Early 2009 – mother – offence - NSW
The mother was charged by the NSW Police with an offence.[19] In mid-2009, the Suburb N Local Court dismissed the charges pursuant to section 10.
[19] Exhibit 12, page 84.
Late 2009
The parents meet in E Town and commence their relationship shortly thereafter.
Early 2010 – father – offence - NSW
In early 2010, the father was charged by the NSW Police with an offence.[20] In mid-2010, the father was convicted in his absence and a warrant issued for his arrest by Suburb K Local Court. This also relates to a prior domestic partner.
[20] Exhibit 12, page 81.
Mid-2010 – father - breach parole - NSW
The father moved to Tasmania in breach of his parole. A warrant was issued by the Suburb K Local Court in mid-2010.[21] The father was later arrested and convicted and sentenced to a s 9 Bond for this breach in 2017.
[21] Exhibit 12, page 82.
Mid-2011 – father - fail to appear - Tasmania
As noted above, the father was dealt with by the City O Court in respect of his failure to appear in mid-2008.[22]
[22] Exhibit 12, page 88.
Mid-2011 – father – offences - Tasmania
The father was charged by the Tasmanian Police with two offences.[23] The charges were held not to be proven and formally dismissed in early 2012.
[23] Exhibit 12, page 88.
The father said in his affidavit that:
35. The mother went to Court and told them that she lied and that she was drunk, and she punched herself. She said that she lied to the Police and that the assault never occurred. She did this to protect me however, I did assault her on this occasion as outlined above.
The evidence establishes that the mother repeatedly declined to assist police in proving domestic violence charges against the father.
2012 – X born
The parties’ eldest child X was born.
Early 2013 – marijuana – both - Tasmania
Tasmanian Police conducted a search of the parents’ home and discovered a number of cannabis plants. The father told police that the cannabis was intended to be used for medicinal purposes as an alternative to, more addictive, drugs.
The father and the mother were each charged by the Tasmanian Police with cultivating controlled plant (minor offence) and possess controlled plant or its products (minor offence).[24]
[24] Exhibit 12, page 89.
In early 2014, the father entered a guilty plea for all charges and convictions were recorded. The father was sentenced to community service. The mother entered a plea of guilty for the possession charge and was sentenced to a good behaviour bond for … months. The cultivation charge was formally dismissed.
7 March 2013 – father – family services – drug use and family violence - Tasmania
The Department of Disability, Child, Youth & Family Services Tasmania (“Family Services”) recorded that the father told police that he was addicted to drugs and was attempting to discontinue use but that:[25]
He makes failed attempts to do so which then flows to his behaviour towards [Ms Mitchell] in particular (previous FVMS/assault history exists). Their situation is compounded by a complete lack of any support network (family or professional), leaving them socially isolated. … … While the child appears healthy, she is undoubtedly affected by the nature of the family dynamics. It would be hoped that the creation of a support network/counselling could minimise any future harm.
[25] Exhibit 12, page 34.
Although this is hearsay and opinion evidence admitted only by reason of these being parenting proceedings, I give weight to the contemporaneous opinion of child welfare workers that X would “undoubtedly” have been affected by her exposure to the family violence and neglect they documented, and which was not substantially in dispute at Trial. This evidence is relevant to the assessment of the likelihood that X experienced trauma which did and has continued to affect her, and that any such trauma was at least in part attributable to her experience of the father’s family violence and neglect.
Early 2013 – father – offences - Tasmania
The father was charged by the Tasmanian Police with three offences.[26]
[26] Exhibit 12, 88.
In late 2013, the father was found guilty of all charges and a conviction was recorded. The father was sentenced to a term of imprisonment, wholly suspended on condition that the father not commit another offence punishable by imprisonment for 12 months, community service, and probation with conditions that the father attend educational programs as directed by the court or a probation officer. The father was further ordered to submit to drug and alcohol testing, and medical, psychological and psychiatric testing as directed by a probation officer.
Early 2014 – father’s submissions to grandfather’s employers website
In early 2014, the mother briefly returned to the grandparents in Sydney.
In his affidavit, the father gave evidence that:
12. In late 2014, the mother and I had a disagreement which resulted in the mother and [X] leaving me and moving to Sydney. I was not aware of this at the time.
13. Upon finding out that the mother had left and taken our daughter, I became quite distraught and emotional. I regrettably made several telephone calls to the mother's relatives including leaving some very erratic voicemails on the maternal grandfather's mobile phone.
14. The mother and I resolved our issues and decided to recommence our relationship.
The grandparent’s evidence and contemporaneous dated documents indicate that these events occurred in early 2014 and not late 2014.
The grandfather said in his affidavit that:
22. In [early 2014] [Mr Boyle] made repeated contacts to my place of employments sending multiple emails to multiple persons that worked for me and to me directly as well as leaving voicemails threatening me and claiming that [Ms Mitchell] was a prostitute and wanting to know her whereabouts, so he could find her and my granddaughter [X].
23. At this time, on more than one occasion [Mr Boyle] was able to contact me and I spoke to him personally. On these calls he repeatedly told me that [Ms Mitchell] was a prostitute and he threatened to kill me and my wife, [Ms Walberg] for interfering with [Ms Mitchell] and [X] and helping them escape from him.
The webpage submissions included a link. That was a hyperlink to an online pornography site which contained images of the mother. The messages read:[27]
[27] Paternal grandfather’s Affidavit, Annexure A.
[… 2014] 06:32
How can we help you?
Here is a website i found with [Ms Mitchell] or [Mr Mitchell] daughter 12:16
How can we help you?
Why is the mangers daughter on this site [Mr Mitchell]?
[…2014] 12:17
How can we help you?
Please employee me
23:11
How can we help you?
This is [Mr Mitchell] daughter she has run off with my 18month old she is a sex worker and i want to try and find my baby girl if you have any information about the whereabouts of my baby girl please email me back 23:13
How can we help you?
This is [Mr Mitchell] Daughter she has run off with my 18month old she is a sex worker and i want to try and find my baby girl if you have any information about the whereabouts of my baby girl please email me back This is his pride and joy
per the original text)
In addition to the verbal threats on voice messages and in telephone calls, the grandparents considered this an intentional attempt to harm them by publicly humiliating the grandfather at his place of employment “[P Company]”, and trying to humiliate the mother by bringing this material to her parents’ attention.
The father was cross examined on these webpage submissions by counsel for the grandparents. My notes are that the effect of the evidence was:
Q: Okay. That you’ve sent this message. Okay. But I will just put the timing in. 12.16 pm, [… 2014]:
Why is the manager’s daughter on this site?
Then you’ve put the link again to the […] pornography site and then you’ve put “[Mr Mitchell]?” Do you remember sending that message?
A: Actually, I don’t remember sending that message. I was in a very emotional state, as you can imagine. My daughter was just flown away from me and we had two days to find a rental and, yes.
Q: But this is less than six hours after the first message was sent:
Here is a website I found, [Ms Mitchell] or [Mr Mitchell] daughter with that same, very same link off the very same page, through the very same delivery mechanism. You accept, don’t you, in those circumstances that it was, in fact, you that wrote that:
Why is the manager’s daughter ‑ ‑
…
[Objections]
…
Q: Thank you, your Honour.
All right. Then it appears that a minute later you’ve sent another one:
Please employee me.
And you put the same – you’ve put the same link, the […] pornography link and sent that through the same mechanism of the contact page on the [P Company] website; what do you say about that?
A: I must have done that.
Q: I can just indicate I’ve received an indication that that document has been provided to your associate, your Honour, and I’m assuming that has gone to everyone else as well.
Okay. Then at 11.11 pm on the next day, that is, [… 2014], you’ve submitted another form, same website, same contact page, with this:
This is [Mr Mitchell] daughter. She has run off with my 18 month old. She’s a sex worker and I want to try and find my baby girl. If you have any information about the whereabouts of my baby girl, please email me back.
And then you’ve put the same link to the pornography website. You say that you sent that message?
A: Yes. I thought they were going to [Mr Mitchell].
Q: You thought they were going to [Mr Mitchell]?
A: Yes.
Q: Even though you wrote:
This is [Mr Mitchell] daughter.
A: Yes.
Q: Wouldn’t you just say, “This is your daughter”?
A: I was in such an emotional wreck that that could have read as, “This is your daughter”. You could understand that this is a really emotional time for me and my daughter had just been flown away. I was in a house alone. I managed to find a rental in two days, relocate all the – [X’s] stuff, and then she came back as soon as – it’s – I was really upset.
Q: Okay. Two minutes later, that is, 11.13 pm on […2014], you sent another message, same mechanism off the contact form of the [P Company] website. This is the message this time. It’s a bit repetitive with a little bit extra:
This is [Mr Mitchell] daughter. She has run off with my 18 month old. She’s a sex worker and I want to try to find – and find my baby girl. If you have any information about the whereabouts of my baby girl, please email me back. This is his pride and joy –
and the link to the pornography website. Do you say you wrote that?
A: I can’t recall. Honestly, I cannot recall.
Q: You probably did, though; you accept that?
A: Yes.
Q: Okay. And when you wrote, “This is his pride and joy”, you were referring to [Mr Mitchell]. “This is [Mr Mitchell]’s pride and joy. Here’s the link on the pornography website”. You agree about that?
A: I honestly can’t remember.
Q: Righto. Well, look, I’m just telling you what it says. “This is his pride and joy”, and then there’s the link to the pornography website?
A: That message ..... my pride and joy. You’ve got to understand I took – I took a lot of my anti-anxiety medication prior to doing all this.
So when ‑‑‑‑And I ..... mistake. I can’t remember these. I was trying to reach out. These messages happened. I’m not denying that. But I can’t remember. I wasn’t in a state, like ‑ ‑ ‑.
Q: “This is his pride and joy”, and the link to the pornography website was you saying, “This is [Mr Mitchell]’s pride and joy and here’s his daughter”, wasn’t it?
A: No.
Q: That’s what you were – no. And so you say when you wrote, “This is his pride and joy”, you were writing ‑ ‑ ‑
HIS HONOUR: Ms Bateman, he has given his answer. The document speaks for itself. It’s a matter for submissions. I can read English.
Counsel: Fine, fine. Thank you, your Honour.
Q: It is the case then that you knew that these messages were being read by people other than [Mr Mitchell], didn’t you?
A: No, to be honest, I didn’t.
Q: Okay. It is the case that you highly suspected that these messages that you were sending off the contact form – contact page were being read by people – a person or people other than [Mr Mitchell]; is that right?
A: I was trying to reach out to [Mr Mitchell].
This evidence was indicative of much of the father’s oral evidence.
The father’s evidence that he was merely reaching out to the grandfather through his employer’s website was disingenuous. The father’s affidavit evidence was that he had the grandfather’s telephone number. He left messages which he described as “erratic”, and of which he said it was regrettable. He did not disclose that he had made threatening phone calls, as attested to by the grandfather.
If the father’s sole intention was to locate the mother and X by trying to contact the grandfather, and he felt that he was not reaching the grandfather through his mobile phone, then there was no reason to include references in the submissions to the company’s website to the mother’s sex work or hyperlinks links to pornographic images of the mother.
Nor was it credible that the father did not intend other people to read this material. The first message identified the mother as the grandfather’s daughter. The second refers to “the manager’s daughter”. The fourth and fifth messages again identify the mother as the grandfather’s daughter. None of that was makes sense unless the intention was that the messages be read by other people. I am satisfied that the messages were intended for people other than the grandfather to read. The only purpose for the content and links of these messages was to seek to humiliate the grandfather and or the mother.
Further, when pressed, the father sought to justify his behaviour on the basis that others had to “understand” that he had taken a lot of medication before he did this. There is no doubt, as the father candidly admitted in evidence, that he has had major long term substance abuse issues and that this is likely relevant to his conduct.
A major difficulty with this passage of evidence is that it is inconsistent with his father’s case that he now recognises and accepts responsibility for his prior bad behaviours and the harm they caused other people and that it is unlikely he will act the same way in future.
I return to this issue elsewhere when considering the issue of whether the father is, as he says, a changed man.
Early 2014 – mother – driving - Tasmania
The mother was charged with an offence.[28] In early 2014, the mother was found guilty and sentenced to a driving disqualification and fine.
[28] Exhibit 12, page 96.
Mid-2014 – both parents – domestic violence - Tasmania
Tasmanian Police were called and attended upon an address where both the mother and father were present following a report.[29] The initial report made to the police noted that the mother had injured the father. On attendance both parents declined to speak to the police other than to advise that the father “had been drinking intoxicating liquor” that evening and that an argument had occurred. There was a small bloodspot on the father’s body, however the father declined to confirm the cause of the injury. The record further notes that the “[p]olice were not satisfied that family violence would not occur if not for police intervention”. The father was removed from the location by the police.
[29] Exhibit 12, page 34.
Late 2014 – father – domestic violence - Tasmania
Family Services records a notification made by the Tasmanian Police to attend the parents’ residence.[30] The mother reported that she and the father had an argument and the father ordered her out of the house. The mother phoned police and locked herself in the bathroom of the premises while waiting for them to arrive.
[30] Exhibit 12, page 34.
Early 2015
Family Services records a notification made concerning the mother and father attending antenatal care appointments together whilst there was an operative Non Approach Order (‘NOA’) restraining the father from approaching the mother.[31] The notification further stated that Family Services were not informed of the NOA during the family violence screening process. The mother and father advised the department that they were engaged in the process to rescind the NOA.
[31] Exhibit 12, page 35.
2015 – Y born
The parties’ second child Y was born.
Mid-2015 – both parents – family violence - Tasmania
In mid-2015, the Tasmanian Police record attending the parent’s residence following a call by a neighbour in response to the mother shouting “call the police”.[32] The mother and father each disclosed that the other was a drug user and needed help. The police record that the mother stated clearly, and on more than one occasion, that there had been no violence toward her.
[32] Exhibit 12, page 35.
Late 2015 – both parents – family violence - Tasmania
In late 2015, Family Services recorded a notification that in late 2015 the father was observed “belting into the mother”, and that this occurred in front of the children.[33] The notifier said that X was crying and screaming. They further noted that the parents departed prior to the arrival of police and that the father appeared to be “high’ on his return to the residence. The notification recorded that X would wake up crying at night and that the mother would shout “fuck up” in response to her.
[33] Exhibit 12, page 35.
Late 2015 - – both parents – family violence - Tasmania
Family Services records a notification made by the Tasmanian Police listing police concerns regarding the fathers conduct:[34]
Will resist police and act in a violent manner to avoid apprehension. OC has little effect. [Mr Boyle] has current Restraint Order and has had […] prior PFVO; […] prior FVO and […] prior IFVO. Prior PFVO, IFVO and FVO relate to [Mr Boyle's] previous partner; remaining orders aside from RO relate to Victim ([Ms Mitchell]). [Mr Boyle] has prior criminal history […].
Prior FVMS entries indicate the [Ms Mitchell's] reluctance to disclose information regarding domestic violence by [Mr Boyle] and attending officer's suspicion that [Mr Boyle] presents rehearsed explanations to explain reported incidents of violence. [Mr Boyle] presented as manipulative, coercive and intimidating to reporting officer.
Grounds/Basis for Concerns:
About 1830hrs on […2015] [Ms Mitchell] rang her Father, [Mr Mitchell] on her mobile phone. [Mr Mitchell] lives in NSW. During the phone call [Mr Boyle] was heard screaming at [Ms Mitchell] and [Ms Mitchell] was heard yelling, "Get off me!" The Informant heard [Mr Boyle] screaming at [Ms Mitchell] about taking $20 from his wallet. The Informant heard a number of thuds and [Ms Mitchell] screaming, "Stop!" The Informant heard the phone drop and [Ms Mitchell] screaming became faint as if she was running away. The Informant terminated the call and rang 000.
[34] Exhibit 12, page 36.
Late 2015 – both parents – family violence - Tasmania
Family Services records a notification made by the Tasmanian Police stating that the police attended following an incident between the father and the mother.[35] The police suspected that the father had attempted to strangle the mother, however, the mother did not cooperate with the police investigation. The police determined that there was insufficient evidence to charge the father with assault. The police applied for a Family Violence Order.
[35] Exhibit 8, page 36.
The report later states that this incident was the catalyst for the mother again returning to NSW to reside with the grandparents and taking the children with her. That appears to have lasted for only a short period of time (one week) before she decided to return to Tasmania with the children.
Late 2015 – father – family violence order - Tasmania
In late 2015, a Family Violence Order was made by the City O Court restraining the father from conduct including approaching within 100 metres, contacting directly or indirectly, stalking, threatening, abusing or assaulting the mother for a period of 12 months.[36]
[36] Exhibit 12, page 36.
Late 2015 – father – family violence – “tug of war” with X – other offences - Tasmania
In late 2015, Family Services records a notification, made by the Tasmanian Police of an event that occurred the day before.[37] The mother had returned to Tasmania from NSW and commenced residing with the paternal grandparents.
[37] Exhibit 12, page 37.
The notifier said that on that day, the father attended the residence of the paternal grandmother in breach of the FVO and picked X up whilst verbally abusing the paternal grandmother. They said that the father’s step-father arrived and directed the father to leave. The dispute continued between the father and his step-father whilst the father continued to hold X, who was said to be visibly distressed and calling for the mother. The mother then approached the father requesting that X be handed to her after which there was “some form of tug-o-war” with X that culminated with the mother, the father, and X all falling on the ground. The mother was then able to return to the house with X.
It was reported that the father “made general threats to end his life”, before leaving in the mother’s car after being informed that police were on their way. The father is reported to have told the mother that he intended to crash the vehicle into a tree and “end it all”. The father was said to have sent the mother a text message which read, “I love u, bye boo”.
Later that afternoon the police attended a motor vehicle accident involving the father. He was transferred to the Q Hospital via Ambulance.
In late 2015, the father was convicted in the City O Court with breaching a family violence order.[38] He was sentenced to community service and probation. The father was also charged, and later convicted of a second group of offences alleged to have been committed in late 2015. In early 2016, the father entered guilty pleas to all offences and was sentenced.
[38] Exhibit 12, pages 89-90.
Early 2016 - mother – marijuana - Tasmania
The mother was charged with possess controlled plant or its products and possess thing used for administration of controlled drug.[39] In mid-2016, the mother entered guilty pleas for both offences and was sentenced.
[39] Exhibit 12, page 96.
Mid-2016 – mother – offence - Tasmania
In mid-2016, the mother appeared before the court charged with an offence[40] The mother was found guilty and sentenced to pay a fine.
[40] Exhibit 12, page 96.
Late 2016 – mother – offence - Tasmania
The mother was issued a traffic infringement notice.[41] A fine was imposed.
[41] Exhibit 12, page 97.
Late 2016 – mother – offence - Tasmania
The mother was issued a traffic infringement notice[42] A fine was imposed.
[42] Exhibit 12, page 97.
Early 2017 – both parents – substance use – child neglect and injury – Tasmania
In early 2017, Family Services received a notification. It is recorded that in early 2017, the mother and father attended R School with Y. The notifier said they observed the mother and the father to be “absolutely off their faces stoned” and they were so inebriated that the notifier could not engage them in conversation. The notifier advised that they observed Y to be on the shoulders of the father and that the father caused Y to bang his head on door the door frame each time he passed through.
The notifier contacted CCS due to a second interaction with the parents later that same month in 2017. The notifier described their observation of Y’s physical condition, including that “the young boy had a black eye, welts all over his face, bruising on his cheeks, and bruises on his forehead”. The notifier said the parents offered an unsatisfactory explanation for the visible injuries. The notifier stated that X “has never made any disclosures about anything concerning at home” and did not display any injuries or bruising.
Late 2017 – mother – offence – Tasmania
The mother was charged with an offence.[43] In early 2018, the mother was found guilty and sentenced to a fine.
[43] Exhibit 12, page 97.
Late 2017 – father – breach parole from 2010 - NSW
The father was is arrested pursuant to the warrant issued by the Suburb K Local Court in mid-2010.[44] The father was convicted and sentenced to a section 9 Bond.
[44] Exhibit 12, page 81.
Late 2017 – mother – offence - Tasmania
The mother was charged with an offence.[45] In early 2018, the mother was found guilty.
[45] Exhibit 12, page 97.
Late 2017 – mother – substance abuse – neglect - Tasmania
In late 2017, Family Services received a notification stating that the mother was observed to have slurred speech and to lack coordination. It was the notifier’s opinion that the mother was “under the influence of drugs or medication”. The record states that the children were in the mother’s care and that she was reported to be “highly inattentive, allowing children to walk out of [the] surgery into the street”. The record notes that the notifier was concerned about the mother’s “capacity to care for the children in her current state.”
Early 2018 – both – substance abuse – neglect - Tasmania
In early 2018, Family Services records a notification made to them that the paternal grandmother had received a call from the father who was highly agitated and concerned that the mother had gone missing and worried that she might commit suicide.[46] Once the paternal grandmother and her adult son arrived at the parent’s home, the mother was there and the police had been and left. The father’s speech was observed to be “very fast” and “he couldn’t sit still.”
[46] Exhibit 12, page 38.
The following day the father disclosed to the paternal grandmother that he and the mother had recently used illicit substances, and both were reported to be in a heightened state. The father is reported as making statements that he could “see the universe and into people’s [sic] brains and can see where their children come from”. The father is also reported to state to the notifier,“I am going to kill myself and you know I am very good at things when I want to”.
The notifier reports that the paternal grandmother put the mother and X in her car and called the mental health line and advised them of the father’s mental health status. The notifier further advised that the paternal grandmother did not leave as the father had retained Y within the house. The father was reported to have released Y to the notifier after an undisclosed duration.
The notifier appears to be the paternal step-grandfather.
Early 2018 – father – family violence - Tasmania
In early 2018, the mother attended the S Town police station and made a complaint to police about the father’s conduct and treatment of her. Apparently while driving the father and the child Y, the father said to the mother, “just you wait until you get into the house, I’m gunna slit you and the kid’s throat”.[47]
[47] Exhibit 12, page 40.
The next day, two police officer’s from the family violence unit attended the home and advised that a non-contact order was in place and that a condition of the order was that the father was not permitted in S Town.
Later in the evening of the same day, whilst asleep in her bed with the children, the mother woke up to the father leaning over her with his face very close to hers. The mother said before she had gone to bed, she had made sure all the doors and windows to the home were locked. The mother reported to police that the father was professing his love for her and trying to convince her to recommence their relationship. She says she the father that if he left, she would not contact the police. However, she reports that the father’s behaviour escalated and he knocked her to the floor, pinned her down and placed his hand over her mouth. At that time the mother started yelling help and get out. The father then again placed his hand over the mouth of the mother to stop her from yelling. The mother bit the father’s hand and managed to get up off the floor and retreated to the toilet, locked the door, and called police for assistance. Whilst the mother was on to the phone to the Tasmanian Police Dispatch, the father forced entry into the toilet. He is alleged to have, once again, pinned the mother to the floor, pressing her head into the toilet floor tiles. The mother struggled free and took the children and barricaded herself and the children in the son’s bedroom. Once police arrived, they forced entry into the home and located the father in the daughter’s bedroom.
The police note that this incident was the second in two days. At the time the father was subject to an order restricting him from approaching within one thousand metres of the mother.
The father was charged by the Tasmanian Police with multiple offences.[48]The father was incarcerated, bail refused, until late 2018 when he pleaded guilty and was sentenced.
[48] Exhibit 12, pages 90-91.
In relation to this event, the father’s evidence was that “two days prior to being arrested, the mother and I were using drugs … and an argument occurred, which was common when we used drugs.”[49]
[49] Father’s Affidavit, para 43.
Mid-2018 – mother – offence - Tasmania
In mid-2018, the mother was charged with an offence.[50] In late 2018, the mother was found guilty.
[50] Exhibit 12, page 97.
Mid-2018 – mother and Mr G – substance use – family violence – child neglect and injury - Tasmania
In mid-2018 Family Services records a notification concerning the welfare of the children because of their exposure “to a violent mother and her partner ([Mr G])”.[51] It was reported that the mother and Mr G are “on [drugs] 7 days a week, as well as selling the drugs, having people and cars coming and going at all times of the night and during the week” and “the children witness all of this.” It is recorded that the children are covered in bruises and the son “is so frightened he can hardly talk due to his nerves”. It was also suggested that the mother may have been working as a sex worker from the residence. The notation further records that “the mother was tested for drugs at school by the police and no drugs were found in her system, however she did disclose that she had been subjected to family violence on the day that she attended the school”.
[51] Exhibit 12, page 32.
Mid-2018 – mother and Mr G – substance use - child neglect - Tasmania
In mid-2018, Family Services records a notification of concern for the welfare of the children. The record states, [m]other and partner on [drugs]. Selling [drugs]. Driving unlicensed on [drugs] erratically with the kids in the car”.[52]
[52] Exhibit 12, pages 31-32.
Mid- 2018 – mother and Mr G – child abuse and neglect - Tasmania
A short time later in 2018, Family Services records a notification made to the department that Y had been “bashed” by [Mr G].[53] The notification further states that the mother and her partner have “returned positive drug test via roadside lick test” and that the “children are suffering and looking very scared at current home”.
[53] Exhibit 12, page 33.
Late 2018 – father conviction and sentence family violence - Tasmania
In late 2018, the father entered guilty pleas for all charges from the early 2018 incident and convictions were entered.[54] The father was sentenced to a term of imprisonment, partially suspended, with a condition that he not commit another offence punishable by imprisonment for a period of 2 years, community service and probation.
[54] Exhibit 12, pages 90-91.
As the father had been incarcerated since early 2018, the effect of the sentence and partial suspension was that he was released with time served.
Late 2018 – mother – suicide attempt - Tasmania
The day following the father’s release from incarceration the mother presented to the Q Hospital. The mother had ingested a substantial amount of medication with the intention of taking her own life. The mother disclosed to the hospital’s Child Safety Liaison Officer that she had “attempted suicide many times in the past and has several plans...”[55]
[55] Exhibit 16, page 43.
Late 2018 – father – family violence order - Tasmania
In late 2018, the City O Court made a Family Violence Order naming the father as the defendant for the protection of the mother and the children.[56] The order was in force until midnight on a date in early 2019.
[56] Exhibit 1, page 63.
Late 2018 – X’s views on time with the father
Following the father’s release he wanted to spend time with the children and contacted CSS. The children and the mother were still living with Mr G. Ms U (‘Ms U’), the CCS Officer managing the children’s case, recorded in her notes that:[57]
He initially stated that he wanted to know if he could have supervised access with the children if he went through [L Service]. I explained that from reading the notes that I was aware that there is a complicated FVO in place which also protected the children. I also explained that in your meeting with him in [T Town] [in 2018], that you had explained that [X] had made the decision that she did not want to see her father, and that CSS would acknowledge this request from [X]. [Mr Boyle] stated that he thought she may have been coached regarding access with [Mr Boyle].
…
[Ms H], [Ms Mitchell] and [Mr G] are worried about [Mr Boyle] and his mental abuse towards the family. He is thinking of himself first then the children. They believe his actions and words are all for show/image. [Mr Boyle] believes he has ownership over the children.
(As per the original)
[57] Exhibit 16, pages 31-32.
I note that Ms H is the paternal grandmother.
I note that it is hearsay evidence of X’s then view, but have no reason to doubt the accuracy of the record.
This expression of a view by X that she did not want to spend time with the father was given significant weight by the expert in her oral evidence, in the context of a challenge by counsel for the father as to whether there was sufficient evidence to find that the father’s behaviours, as opposed to those of the mother and Mr G to which the children were also exposed, had caused any trauma to the children.
The father’s view that X may have been “coached” to say she did not want to spend time with the father is similar to the view he continues to hold, although now the coaching is said to come from the grandparents.
Given the family violence and neglect to which it is accepted X was exposed to by the father, and given these were of a kind which would be consistent with a child experiencing significant trauma, and given X’s expressed view, and given that though young X was of an age to be expected to be able to distinguish between the father and Mr G, I accept the expert’s opinion and find that it is likely that this was a genuine expression by X of her views based on her own perceptions of the father’s behaviours and indicative of having suffered trauma as a consequence of his behaviours.
Late 2018 – mother – further suicide attempt - Tasmania
In late 2015, the police record an incident where they suspected that the father had attempted to strangle the mother.[58]
[58] Exhibit 12, page 36.
The evidence establishes that these injuries in fact resulted from a failed suicide attempt by the mother.
Late 2018 – children removed - Tasmania
In late 2018, Family Services records a further notification of concern in respect of the children. Family Services and CSS temporarily placed the children with the paternal grandparents.
The paternal grandparents were not in a position to provide long term care for the children.
Late 2018 - Early 2019 – children placed with grandparents
The grandparents attended in Tasmania and spoke to Ms U. Ms U later provided them with an undated letter addressed “To whom it may concern” [Ex ICL 3] 1.66 to facilitate their care for the children.[59] Ms U summarised the position that:
[X] DOB: [2012] and [Y] DOB: [2015] have been placed in the full time care of their maternal grandparents [Ms Walberg] and [Mr Mitchell]. This is a voluntary arrangement by their mother [Ms Mitchell]. Therefore [Ms Mitchell] is handing over temporary guardianship and custody of [X] and [Y] to her parents [Ms Walberg] and [Mr Mitchell]. There is a current full non-contact family violence order preventing the children's father, [Mr Boyle] to have any contact with the children.
[Ms Mitchell] and [Mr Boyle] both need to demonstrate over an extended period of time that they have addressed and are gaining ongoing support for their Mental health, Drug use and Family violence. The parents need to demonstrate the ability to maintain stable accommodation over an extended period of time. If [Ms Mitchell] and [Mr Boyle] were to enter a relationship Child Safety would not support the children to return to their parents care.
Unless the [Ms Mitchell] and [Mr Boyle] mental health, drug use and family violence was stabilised and these concerns would not impact on their ability to provide care or provide safety to their children Child Safety would not support the children being in either parents care.
If extended family felt the children were at risk in their parents care. Child Safety would expect the extended family to either attend family law court to put more permanent arrangements in placement, in relation to the children residing with their grandparents. Alternatively, that the Grandparents contact Child Safety to assess the children's safety, in their parents care. If the children return to the parents care and further concerns are raised in the future. Child Safety will complete a new assessment. If the assessment determines the children are unsafe, then Child Safety may seek a 12 month Care and Protection order, placing the children in Child Safety's care.
While the children remain in their grandparents care [Ms Mitchell] needs to support her parents to enrol the children in education and child care in 2019. Child Safety supports the grandparents to enrol both children in either education or child care as required to meet the children ongoing needs.
If [Ms Mitchell] is not supporting her parents to meet the children's needs into the future. The grandparents can contact Child Safety. Child Safety may then determine that a Child Safety Protection order is required to meet the children daily needs...
[59] Exhibit 1, page 64.
During cross examination, counsel for the father suggested to the grandfather that the speed with which they commenced these proceedings on 12 February 2019 was evidence that the grandparents were intent on keeping the children from the start, and uninterested in whether the parents recovered them.
The grandfather’s evidence was that having brought the children to NSW in late 2018 CSS advised them that they no longer had jurisdiction to seek State parenting orders in Tasmania, and that the NSW child protection authorities advised that as the children were not currently at risk in NSW they would not take any action. The grandfather said they were further advised the only available option to obtain the legal authority necessary to adequately care for the children, including for example to enrol them in school and to access medical and allied health care, was to commence these proceedings, which they did in February 2019. That is consistent with the content of the CSS letter and I accept that explanation.
Late 2018 - Early 2019 – parents re-commence cohabitation - Tasmania
The father’s evidence was the parties resumed cohabitation, despite there being an active family violence order preventing the father from contacting the mother.[60] That is consistent with the grandparent’s observations of the father with the mother when facilitating communication with the children in early 2019.
[60] Father’s Affidavit, para 48.
In early 2019, the grandparents emailed CSS and advised, in part, that:[61]
…its trending for the worse at the moment – [Mr Boyle] actually tried to speak with the children when we called [Ms Mitchell] last night when we were saying our good-byes for the evening.
It is clear that [Ms Mitchell] is now living somewhere in [City O] full time with [Mr Boyle] and that never ends with a good outcome.
(As per the original)
[61] Exhibit 16, page 11.
In these circumstances there is no reason to think that the father’s future conduct is likely to be any different to his past conduct. I assess the risk the father poses to the children in future on the basis that it is likely to be similar to his past proven conduct.
Is the mother spending time with the children an unacceptable risk?
No party opposed the mother having communication with the children.
The ICL considered that both the father and the mother present an unacceptable risk to the children of spending time with them.
The mother was, in her own way, almost as unimpressive a witness as the father. I did not consider her a witness of truth. Her concession that the children should live with the grandparents, and that the grandparents should have parental responsibility to the exclusion of both parents was entirely appropriate and necessary, as was her concession that her time and communication with the children would need to be at the grandparents’ discretion and supervised.
The mother denied that she and the father were still in a relationship. The father’s evidence on this topic was more credible than the mother’s denials. I am satisfied that the mother is still in a consensual, and possibly as the ICL submitted a co-dependent, relationship with the father. On this basis, and noting the expert’s concerns and opinion, the ICL considers the mother presents an unacceptable risk of spending time with the children. Given the view I have formed of the appropriate orders, which the mother supports, it is not necessary to go into more detail on why I find that there continues to be a relationship.
The mother has, and may still have, serious substance abuse and mental health issues which caused her to neglect the children. She failed to provide a safe environment for the children, including by taking them to live with Mr G. Whilst this history, and the likelihood that she continues in a relationship with the father and may be or return to using illicit substances, means that at best any time she has with the children should be supervised, I accept the submission of the grandparents that there is a clear qualitative difference between the mother’s neglect and the father’s outright violent behaviours.
Further, I accept the submission that it is significant that the children wish to maintain a relationship with the mother, which suggests they did not experience the trauma as coming from her and that they may obtain psychological benefit from being able to maintain a relationship with her not only by video but also with some supervised time in person. I also accept that it is relevant that while the grandparents are genuinely and reasonably scared of the father, the mother has not threatened them and has managed to maintain a relationship with them so that the grandparents are not placed in a position of risk of family violence by the orders that they themselves propose.
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.
The children last spent regular time with the father in early 2018 before he was incarcerated. X said she did not wish to spend time with him when asked in late 2018. In the four years since then neither X nor Y have had a relationship with the father. I find that the children do not currently have a meaningful relationship with the father. I find that the children continue to suffer trauma as a consequence of his conduct. Given the view I have formed of the father, and in particular that he has not changed, I am not satisfied that it is established that there is any positive benefit to be derived by the children from having communication with him.
The children’s relationship with the mother has also been impacted by the trauma they experienced in her care. Since late 2018 they have primarily had a relationship with her by audio-visual means. Nevertheless, it appears that they have maintained a relationship with her. I am satisfied and find that the children have maintained a meaningful relationship with the mother through the communication facilitated by the grandparents, and that it will be in their best interests to develop that relationship further though continuing communication, and also through spending time with the mother if it is safe to do so.
The children both have excellent relationships with the grandparents.
The maturity, sex, lifestyle and background of each parent, their attitudes to the children and to the responsibilities of parenthood, as well as their parental capacity, participation in the children’s lives and fulfilment of their obligations to maintain the children are matters that must be considered pursuant to s 60CC(3)(ca),(c),(f),(g),(i).
The father clearly struggles with his addictions and with behaving in compliance with accepted legal norms. Consequently, he displays limited maturity, has limited parental capacity, has shown a poor attitude to the children and to the responsibilities of parenting, and has put himself in a position where he could not participate in the children’s lives and has failed to maintain them. The mother has shown similar limited capacity to care for the children, but while neglecting them she has not actively engaged in family violence against them.
I am required to consider the children’s views, maturity, sex, lifestyle and background 60CC(3)(a)(g). X expressed a view at age six. The grandparents say they are scared of the father. The children have suffered trauma which has had a major impact on their development. With great assistance they appear to have overcome many of these hurdles. While I note these views, given their ages I place limited weight on them.
I am also required to consider 60CC(3)(d), the effect of any change in the children’s lives as a consequence of these orders. There will be no substantial change, except perhaps some time with the mother and I am satisfied that any such change will be in their best interests. The father’s proposal would constitute a change which has the risk to re-introduce trauma.
The father says he can pay for his proposal. Otherwise, there is no other practical impediment.
I am required to consider the possible impact of future litigation and whether it would be preferable to make the orders least likely to lead to further litigation as well as practical difficulty and expense of arrangements 60CC(3)(e),(l).
The father’s submitted that his proposal adequately addressed and provided safeguards against any risk of psychological trauma by ensuring that the process of re-introduction would be managed by a professional in a way that would avoid trauma to the children.
The father’s proposal is inherently uncertain. The father’s proposal does not include provision for a preliminary assessment of the children by a family therapist or psychologist to determine whether the supervised time is likely to cause the children trauma or is otherwise appropriate. It does not address what would occur if the family therapist was engaged and having met the children recommended against the ordered communication. On their face the proposed orders would require the children to engage in this process despite their views or any evidence of psychological harm that arose.
The proposal does not specify what the requirements to be set by the family therapist would be, or deal with the delegation to the family therapist of the authority to determine those requirements, or specify what would happen if the father never meets those requirements, or if there is a dispute about whether or not the father has met those requirements. To the extent that it may be intended that the orders permit the family therapist to effectively terminate the process by directing that there be no sessions per month in stage 1(a), I would not consider that an appropriate mechanism, even if delegation of that decision to the family therapist is permissible. The same issues arise with stage 2.
The expert did not support the proposal as being in the children’s best interests. In my view the unacceptable risk is not adequately ameliorated by the safeguards proposed by the father. While it may have been appropriate as an interim order, it is too uncertain and is inappropriate as a final order. It also increases the risks of ongoing litigation.
Having considered these matters, I find that the risk of psychological harm to the children from the making of the father’s proposed orders [6] and [7] exceeds the benefit to the children of having an opportunity to establish, or re-establish, a meaningful relationship with the father. I will not make those orders. The same reasoning applies to the father’s proposed orders for communication with the children by way of cards and letters. I will not make those orders.
That then leaves the father’s proposals concerning being informed and having access to information. There is no clear benefit to the children in the grandparents being required to keep the father informed of all of the matters identified by the father in his other proposed orders, subject to the possibility that when the children are adults they may wish to speak with the father, and it may assist them in the process if he knows something about their development over time. For this reason the ICL proposed, at [7] of the ICL’s orders, that the grandparents email the father the children’s mid and final year reports each year and a school photo and such other information as the grandparents may deem appropriate. It was clarified that the grandparents would only have to send emails and would not have to read or engage with any response.
The grandparents indicated that, in view of the ICL’s reasons for the proposal they would consent to the proposed orders so long as no photograph was included. They appear to be concerned, given the father’s criminal history, that providing photographs may facilitate any attempt by him to attend near the school or elsewhere and take the children. I cannot assess the likelihood of that occurring, but there being no benefit to the children, and given the grandparents position I will make the ICL’s proposed order [7] subject to these amendments.
I note that I have considered, in the alternative, the situation if I had found that the evidence did not sufficiently establish whether or not the children’s experience of the father was the cause of their trauma. Even if the evidence only raised the issue of the children’s trauma as being possible due to their experience of exposure to the father’s conduct, rather than as I have found probably being due to exposure to his conduct, taking into account all of the above risk issues, I would still consider that the risks to the children of being required to engage in the uncertain process proposed by the father would constitute an unacceptable risk and not in their best interests.
The ICL submitted that the father had committed acts of family violence against the mother which were witnessed by the children and that the presumption of equal shared parental responsibility did not apply to the father in these proceedings. The evidence establishes this and the father conceded parental responsibility to the grandparents. The presumption may apply to the mother, although it is arguable that she too has relevantly exposed the children to family violence through her conduct. It is unnecessary to determine that issue given that the mother also conceded that is in the children’s best interests that the grandparents should exercise parental responsibility.
I am satisfied and find that neither parent has the capacity to exercise parental responsibility in the children’s best interests. I am satisfied that the grandparents have the capacity to exercise parental responsibility. I am satisfied that the consent position that the grandparents should jointly exercise parental responsibility to the exclusion of both parents in is the children’s best interests and will make that order.
The outstanding issue on risk is whether, in the mother’s case, the risk of harm from the mother spending time with the children can be sufficiently ameliorated by only allowing time at the grandparents absolute discretion and subject to supervision by the grandparents, or if they prefer by a professional supervisor.
The ICL, whilst initially supportive of this position, formed the view that the grandparents did not have a realistic idea of how the mother was living or of the extent of her ongoing relationship with the father. It was submitted that they clearly were surprised by a lot of what they heard in these proceedings and remained in the dark about the nature and extent of the mother’s ongoing issues.
The grandparents’ submission was that while both parents suffered from severe drug addiction and lacked parenting capacity, the mother was primarily the victim of family violence, and that though she has a criminal history it is qualitatively different to the fathers. Further, and significantly from the grandparents’ point of view, unlike the father the mother has not threatened them so they do not consider that engaging with the mother exposes them to the risk of ongoing family violence.
Ultimately, the question requires an assessment of the capacity of the grandparents as the people exercising parental responsibility to adequately safeguard the children from the risk posed by the mother. The grandparents’ position is that part of the trust the Court is residing in them in granting parental responsibility is the faith that they will priorities the children’s best interests by properly supervising any time with the mother.
While I give significant weight to the ICL’s position, and had similar concerns during the Trial, and consider it likely that the grandparents did not fully appreciated the risk the mother posed at the start of the Trial, or the extent to which she consistently lies to them, I am satisfied they do now.
I assess the grandparents as highly competent people who are child focussed and who will act to ensure that the children are kept safe when spending time with the mother. I am satisfied that they will not allow the children to spend time with the mother unless they are satisfied that she is not affected by drugs or acting in a manner likely to cause the children distress.
Further, recognising the ICL’s concerns, they do not seek an unfettered discretion to allow the children to spend unsupervised time with the mother. They instead propose a restriction that they never allow unsupervised time with the mother without a further Court order.
Accordingly, I find that the orders proposed by the grandparents adequately safeguard the children and turns the unacceptable risk of harm from spending time with the mother into an acceptable risk. I note the usual concerns about long-term supervision apply here. However, on the facts of this case, where the grandparents support time with the mother, at their discretion, and are willing to provide the supervision, and where I think the children will benefit from a relationship with the mother, I am satisfied that it is in the children’s best interests to make the grandparents proposed orders for time with the mother.
There is an outstanding interim Application in a Case filed 8 August 2021 by the father seeking orders similar to those in his final application. It is extant but now redundant. It is formally dismissed.
Conclusion
The children had difficult introductions to life. Their futures looked bleak. The grandparents put their lives on hold to take the children. Instead of retiring and enjoying the fruits of their labours, the grandmother now plays the role of the mother to two young children who still have greater than usual needs, and the grandfather continues to work to meet the additional costs of having young children when he thought he would be retired.
It would be difficult to praise the grandparents too highly.
For the reasons set out above I am satisfied it is in the children’s best interests to make the agreed orders, and the grandparents proposed orders for the mother to spend supervised time with the children. I am satisfied that it is not in the children’s best interests to make the father’s proposed orders concerning family therapy, communication with the children or concerning being kept informed other than as agreed by the grandparents.
Costs, including Independent Children’s Lawyers Costs
If any party seeks to make an application in respect of costs they are to file an Application in a Proceeding and supporting Affidavit in accordance with the Rules.
I certify that the preceding two hundred and ninety (290) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 20 October 2022
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