Mitchell & Mitchell

Case [2024] FedCFamC1F 527

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mitchell & Mitchell [2024] FedCFamC1F 527

File number: LNC 180 of 2023
Judgment of: MCNAB J
Date of judgment: 7 August 2024
Catchwords: FAMILY LAW – PARENTING – Where this is the fourth set of proceedings between the parties – Where final orders were made in December 2022 for the child to live with the mother and spend time with the father – Where the father initiated proceedings shortly thereafter following allegations against the mother’s partner – Where the mother and her partner separated prior to the final hearing – Where the father has failed to facilitate time between the mother and the child – Where there is evidence of the father coaching the child and colluding with one of the mother’s previous partners – Where the child is not at an unacceptable risk in the mother’s care – Where the Court has concerns regarding the mother’s accommodation – Where the mother has given evidence that she will secure alternative accommodation – Where the presumption of equal shared parental responsibility is rebutted by evidence of the parties failure to cooperate due to the conduct of the father – Orders for the mother to have sole parental responsibility – Orders for the child to live with the mother and spend time with the father.
Legislation: Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAC, 65DAE, 149.
Cases cited:

Bielen & Kozma [2022] FedCFamC1A 221

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Isles & Nelissen (2022) FLC 94-092

Mitchell & Mitchell [2022] FedCFamC1F 955

Division: Division 1 First Instance
Number of paragraphs: 160
Date of hearing: 8-12 April 2024
Counsel for the Applicant: Ms Mooney SC
Solicitor for the Applicant: Bishops Barristers & Solicitor
Counsel for the Respondent: Mr Verney
Solicitor for the Respondent: Hamilton Purcell Lawyers
Counsel for the Independent Children's Lawyer: Ms Hunt
Solicitor for the Independent Children's Lawyer: Tasmania Legal Aid

ORDERS

LNC 180 of 2023

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

MR MITCHELL

Applicant
AND:

MS MITCHELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

7 AUGUST 2024

THE COURT ORDERS THAT:

1.All extant parenting orders be discharged.

Parental Responsibility

2.The mother have sole parental responsibility for the child Z born 2013 (“the child”) and have the authority to make sole decisions for any long-term issues affecting the child subject to the following:

(a)The mother keeps the father informed as to what school the child attends and will ensure that the father is placed on the child’s school enrolment as an emergency contact;

(b)The father be entitled to receive copies of all school reports, school notices, newsletters and all other information that would ordinarily be provided to a parent and the father be at liberty to attend school events and extracurricular activities that parents would ordinarily be invited to attend;

(c)The mother is to inform the father as soon as practicable in regard…

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Mitchell & Mitchell [2024] FedCFamC1F 527
Case
[2024] FedCFamC1F 527
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CaseChat Overview and Summary

This case involves the parents of Z, Mr and Ms Mitchell, who have been engaged in a series of contentious proceedings before the Federal Circuit and Family Court of Australia. This is the fourth set of proceedings between the parties, following allegations of abuse against the mother’s partner. The court was required to decide the allocation of parental responsibility and the living and spending time arrangements for Z. The court found that the presumption of equal shared parental responsibility was rebutted by the father's conduct, which was deemed controlling, coercive, and harmful to the child's relationship with the mother.

The court considered the father's inappropriate comments and behaviour towards the mother, which undermined the mother's role in the child's life and exposed the child to negative influences. The court was also concerned about the father's failure to cooperate with the mother and his attempts to undermine the child's relationship with her. The mother, on the other hand, was found to be a fit and proper person to have sole parental responsibility for the child. The court determined that the child's best interests would be served by the mother having sole parental responsibility and the child living with her, while spending time with the father under specified conditions. The court also imposed injunctive orders to protect the child from further exposure to parental conflict and required the mother to obtain mental health support for the child.

The final orders granted sole parental responsibility to the mother, required the child to live with the mother and spend alternate weekends and specified holidays with the father, and imposed injunctive orders to prevent parental conflict in the child's presence. The mother was also required to obtain a mental health plan for the child and engage with family services to support the implementation of the orders. The Independent Children’s Lawyer was discharged.

Orders

Orders of the court

LNC 180 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MITCHELL

Applicant

AND:

MS MITCHELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

7 AUGUST 2024

THE COURT ORDERS THAT:

1. All extant parenting orders be discharged.

Parental Responsibility

2. The mother have sole parental responsibility for the child Z born 2013 (“the child”) and have the authority to make sole decisions for any long-term issues affecting the child subject to the following:

(a) The mother keeps the father informed as to what school the child attends and will ensure that the father is placed on the child’s school enrolment as an emergency contact;

(b) The father be entitled to receive copies of all school reports, school notices, newsletters and all other information that would ordinarily be provided to a parent and the father be at liberty to attend school events and extracurricular activities that parents would ordinarily be invited to attend;

(c) The mother is to inform the father as soon as practicable in regard to any major medical procedures that the child is to undergo, any serious accidents the child is involved in and any serious illnesses or injury the child may sustain;

(d) The father be at liberty to receive any information regarding any medical treatment from any healthcare provider (including mental health practitioners) that the child may attend from time to time that would ordinarily be provided to a parent.

3. The child live with the mother.

Spend Time

4. The child spend time with the father as follows:

School Term

(a) Each alternate weekend from after school on Friday (or 3:00pm in the event of Friday being a public holiday or student free day) until the commencement of school Monday (or until the commencement of school on Tuesday in the event of Monday being a public holiday or student free day) and each alternate week thereafter commencing on 16 August 2024; and

School Holidays and Special Occasions

(b) For the first half of each Tasmanian gazetted mid-term school holidays from Friday at the conclusion of school until the second Saturday at 12 noon;

(c) For one half of the longer Christmas/Summer school holidays:

(i) In even numbered years commencing 2024/2025 for the second half of such holidays from 12 noon on the middle Saturday until the first day the term/year commences.

(ii) In odd numbered years commencing in 2025/2026 for the first half of such holidays from the conclusion of the last day of the term/year until the middle Saturday at 12 noon.

(d) For Christmas Eve each year with the parent he is not otherwise with pursuant to Order 4(c) between 9:00am and 7:00pm with changeovers to take place at the Town F outlet at the start of such time and Town C McDonald’s at the end of such time.

(e) If not already in the father’s care on the child’s birthday, the child spend half the day with the father at times to be agreed between the parents and failing any agreement, on a non-school day, from 2:00pm until 7:00pm and on a school day by way of electronic communication whereby the father telephone the child on the mother’s mobile phone at 6:00pm or other such times as agreed between the parents;

(f) If the child is not otherwise in the care of the father on Father’s Day, he spend time with the father from 10:00am until 6:00pm on Father’s Day.

5. Unless otherwise provided for in these Orders, the child will be in the mother’s care at the following times:

(a) If not already in the care of the mother on the child’s birthday, that the child spend half the day with the mother at times to be agreed between the parents and failing any agreement, on a non-school day, from 2:00pm until 7:00pm and on a school day by way of electronic communication whereby the mother telephone the child on the father’s mobile phone at 6:00pm or other such time as agreed between the parents;

(b) If the child is not otherwise in the care of the mother on Mother’s Day, that he spend time with the mother from 10:00am until 6:00pm on Mother’s Day.

6. Such variations to the above and further or alternate times as agreed in writing between the parents.

7. Changeovers shall occur as follows:

(a) On school days, the father shall collect the child from school at the commencement of his time and return him to school at the end of his time.

(b) On non-school days, the mother will deliver the child to the Town F outlet at the commencement of time and the father shall return Z to Town C McDonald’s at the end of his time.

Injunctive and Other Orders

8. Neither parent will denigrate the other parent in the presence of or within hearing distance of the child and will use all reasonable endeavours to prevent any third parties from denigrating the other parent in the presence or hearing distance of Z.

9. The mother will ensure that the child is at all times accompanied by an adult if he is ever in the presence of Mr N.

10. The mother as soon as practicable obtain a mental health plan from the child’s general practitioner for the purposes of the child attending with a psychologist (or such other mental health practitioner as recommended by the child’s general practitioner) for the purposes of non-reportable therapeutic support to assist him with (amongst other things) transitioning to the mother’s household and that the mother follow all reasonable recommendations made by the child’s treating mental health practitioner.

11. Leave be provided for a copy of these orders to be provided by either parent to the child’s school and any mental health practitioner providing therapeutic support to the child in accordance with Order 10.

12. Leave be provided for any mental health practitioner treating the child to be provided with a copy of the Family Report dated 16 February 2024.

13. Within 14 days the mother engage with BB Family Services in order to obtain support in relation to the operation these orders.

14. The Independent Children’s Lawyer be discharged 60 days from the date of these orders.

15. A copy of these orders, reasons for judgment and Exhibit R4 at p 563 of 674 and p573 of 674 be referred to the Marshal of the Federal Circuit and Family Court of Australia.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Other adults involved in this matter are: (1)Mr H, the father to Mr X and Y and former partner of the respondent.(2)Ms AA, the current wife of Mr H and stepmother to Mr X and Y. BACKGROUND The relationship between the respondent mother and Mr H is relevant to these proceedings due to allegations of collusion between Mr H and the father. The two children of that relationship are estranged from the mother and were unilaterally removed from the mother’s care by Mr H in or around July 2020. Z still spends time with his stepbrother and stepsister when in his father’s care. A family violence incident occurred in late 2012 between the mother and father and both parties were issued with a Police Family Violence Order naming them as a respondent and protected person respectively. There have been mutual allegations of family violence between the parties and there is a current Police Family Violence Order in place for the protection of the father against the mother until late 2024. The mother states that the parties separated in July 2013. In early 2014 the mother left Town B with the child, and the father commenced proceedings seeking parenting orders in December 2014 after the mother unilaterally ceased time. In June 2015 final parenting orders were made by consent for the child to live with the mother and spend each alternate weekend with the father. The father filed an Application for further parenting orders in late 2015 which were dismissed and he was ordered to pay costs. In mid-2016 the mother began a relationship with Mr N. Z commenced prep in January 2019 at DD School and on 17 July 2020 the father unilaterally withheld him from the mother due to concerns of inadequate supervision, food, health and hygiene at the mother’s residence. Mr H also unilaterally removed Mr X and Y from the mother in July 2020 and proceedings between the mother and Mr H concluded shortly prior to the allegations of abuse being raised by Y in March 2023. The mother commenced proceedings on 24 July 2020 and following an interim hearing on 31 July 2020 orders were made which gave care of the child to the father with orders for spend time with the mother. In August 2020 the father enrolled Z at FF School. Justice McGuire made orders on 20 December 2022 following a four-day hearing for the parents to have equal shared parental responsibility and for the child to live with the mother and spend time with the father each alternate weekend until the commencement of school on Monday in conjunction with optional time fortnightly on Wednesday evenings and half of the school holidays. The mother states that the applicant was unhappy with the orders made and texted her on 20 December 2022 to express this, and thereafter agitated over the following three months for changes to the orders. This included seeking for a change in his time on 27 December 2022 which the mother agreed to as it was an event which was organised prior to final orders. On 31 January 2023 the father again sought more time with Z, outside of that allowed by the orders, in the form of further phone time with the child which the respondent was agreeable to. He further sought to vary the orders for changeover to occur on Sunday night rather than Monday morning. The mother did not agree to this change as she was of the view that this was likely to expose Z to parental conflict.

Evidence

Evidence Before The Court

In support of this application for sole parental responsibility the ICL notes:(1)This is the fourth set of proceedings.(2)There is a history of family violence with mutual allegations of verbal abuse and denigration:(a)historical allegations by the mother of physical and sexual abuse by the father; and (b)current Police Family Violence Intervention Order for protection of the father against the mother until 22 November 2024.(3)Justice McGuire’s findings at [138] of his Judgment dated 20 December 2022 of the father as “dominant and assertive … controlling and coercive” [1]and at [146] where he has “serious reservations” [2] in making an order for equal parental responsibility.(4)Sole parental responsibility to be exercised by the mother is recommended at [92] of the Family Report.[1]Mitchell & Mitchell [2022] FedCFamC1F 955 at [138].[2]Mitchell & Mitchell [2022] FedCFamC1F 955 at [146].EVIDENCE The applicant father relies upon:(1)Affidavit of Mr HH 3 April 2024.(2)Outline of Case filed 28 March 2024.(3)Amended Initiating Application filed 28 March 2024.(4)Notice of Risk filed 28 March 2024.(5)Affidavit of Ms M filed 22 March 2024.(6)Affidavit of Ms AA filed 22 March 2024.(7)Affidavit filed 19 March 2024.(8)Affidavit of Ms JJ filed 19 March 2024.(9)Family Report dated 16 February 2024.(10)Section 67ZA response from Child Safety filed 26 April 2023.(11)Affidavit of Mr H filed 23 March 2023.(12)Various subpoena documents.(13)Applicant’s documents in Tender Bundle. The respondent mother relies upon:(1)Outline of Case filed 28 March 2024.(2)Affidavit filed 18 March 2024.(3)Family Report dated 16 February 2024.(4)Response to Initiating Application filed 26 May 2023.(5)Notice of Child Abuse, Family Violence and Risk filed 26 May 2023. The Independent Children’s Lawyer relies upon:(1)Affidavit of Mr KK filed 3 April 2024.(2)Affidavit of Ms R filed 28 March 2024.(3)Family report dated 16 February 2024.(4)Section 69ZW Response by Tasmania Police filed 31 October 2023 and 6 June 2023.(5)Section 67ZA Risk Response Child Safety Services filed 26 April 2023.(6)Subpoena Material in Court Book.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a "parenting order" is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child's best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child's best interests (s 60CC). The Act imports a rebuttable presumption that a child's best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to "major long-term issues" concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

Decision

Reasons for decision

The psychological risk associated with the breakdown of the relationship between the child and his mother is identified at [87] of the Family Report where the author states:[34]87.If [Z] does not experience adequate support for his relationship with his mother, this is likely to result in his becoming further estranged from her which may lead to a range of negative life impacts for him in the future. A long-term estrangement from his mother would likely be detrimental to [Z’s] sense of belongingness, capacity to trust and to form and maintain positive relationships, and to his learning and development. It may also result in difficulties in his relationship with his father in the longer term, and result in a possible lack of support for him as he matures and ages.[34] Family Report at [87].CONCLUSIONS REGARDING RISK There is risk to the child’s psychological health if he is not removed from being the focus of ongoing litigation between the parents. Additionally, the father’s aberrant and obnoxious attitude to the mother and his persistent refusal to accept that the mother has a role in the child’s life presents a risk to the child. The father’s behaviour as expressed towards the mother, his expression of his opinions in relation to the mother, the Court and the judicial officer who presided over the 2022 hearing, is disgraceful and profoundly concerning. I understand that once allegations were raised against Mr N, the father and Mr H were entitled to act protectively and express strong views in private, however the father’s conduct and comments preceded those allegations being raised. I do not regard his comments as simply “tough talk” between men. Not only has he expressed wholly inappropriate views, but he has effectively waged a campaign against the mother since orders were made in December 2022. By his affidavit evidence, he seeks to convey himself as a reasonable person cast in a difficult set of circumstances but doing the best he can for his child without cooperation from the mother. That is not an accurate position, and in truth, he has set about to undermine the mother and he has not supported the orders since they were made. That behaviour puts this child at risk as if he is exposed to those attitudes whilst in his primary care of the father, he will observe the controlling behaviour of the father and his views of the mother and accept it as normal. The ICL and the father raised issues in their outlines of case and in the course of the proceedings that the mother had failed to act protectively of the I do not accept that the risk of a loss of relationship between the mother and child because of the father and his cohorts’ behaviour might be mitigated somewhat by adopting the father’s proposal that the child live with him on a 9/5 arrangement. The father has previously sought to set aside consent orders. In this instance, he made the proposal for that arrangement at the conclusion of the hearing, presumably after receiving advice from senior counsel and with an awareness of all the evidence in the case, including evidence that starkly exposed his attitude to the mother and the Court. I do not accept the submissions made on his behalf that the text messages were the expression of strong views expressed in the vernacular and that not too much can be read into it. On the balance, neither do I accept that the father will encourage the child’s time with the mother and if he has the majority of time with the child as there is a real risk he will use that time as an opportunity to further influence the child against the mother. I do not accept that the proposal made by the father is in the best interests of the child. The evidence does not support a finding that the mother has or will try and undermine the child’s time with the father.

Ratio Decidendi

Legal Principle Established

In the event an order is made allocating equal shared parental responsibility to the child's parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court's discretion about the child's care arrangements is at large, though the discretion must still be exercised in the context of the child's best interests being the paramount consideration.BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) The Benefit of the Child having a Meaningful Relationship with Both Parents The child would benefit from having a meaningful relationship with both his parents. He has a close and affectionate relationship with his mother which is being significantly undermined by the father, both by his conduct towards the mother and the child. The father’s conduct is so corrosive of the relationship between the child and mother that orders must be made so as to give a proper opportunity for the child to maintain a meaningful relationship with his mother. The father raised several examples which he says have been captured on video and establishes that the mother has failed to cooperate with orders whilst he did all that he could to support the orders made 20 December 2022 and the child’s relationship with the mother. The evidence produced establishes otherwise. By way of example, the father referred to an incident at McDonalds in early 2023 during a changeover whilst the child was in the father’s care. The father gave evidence that he tried to facilitate a changeover for Z to go to the mother at 8:00pm on this day per the orders, but that Z locked himself in the car and that he was unable to open the car, as the keys were inside the car with the child. He said he tried for about five minutes to coax Z out of the car with no success and said he sought the mother’s assistance but that she would not help him. The father stated in his affidavit evidence that he regarded this as a response typical of the mother and that she “will simply tell me that it is my problem and does not want to try and present a united front so that [Z] knows that both his parents are on the same page and working together and it is what we both want.” [3][3] Exhibit A2 at [51] Counsel put to the father:Mr Verney It's not surprising that she wasn't going to get out of the car and put herself any closer to you than she necessarily needed to be. There’s not a level of trust between you two is there?[Mr Mitchell] Not at that pointMr Verney: No, no, not at any point [Mr Mitchell] do you agree?[Mr Mitchell]: No we don’t Counsel asked the father if he hated the mother which he replied he did not. The father stated a woman, who was a stranger passing by, assisted him by encouraging Z to get out of the car, agreeing that he was not able to do this on his own, and that he walked over to the mother’s car with the stranger and Z, but that “without warning [Z] ran back to my car, hopped in and locked himself in again.”[4][4]Exhibit A2 at [63].