Mitchell & Mitchell
[2024] FedCFamC1F 527
•7 August 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitchell & Mitchell has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J
Parties in the matter are the:
(1)Applicant father, Mr Mitchell, born 1982 aged 41 years, Mr Mitchell resides in Town F, Tasmania with his wife Ms M. The couple married in 2023. Mr Mitchell owns a business, EE Pty Ltd, and has a number of employees. He has flexible working hours. Ms M has worked in the public sector for the past 16 years and currently works at a government corporation five days a week. She has a son who lives with his grandparents.
(2)Respondent mother, Ms Mitchell, born 1983 aged 40 years, she lives alone on her property in Town CC, Tasmania, but until recently was in a long-term relationship with Mr N whose son, O aged 16 years, was also spending time with them. The mother works part-time for a local business up to a few days a week and runs her own business, working from home.
The parents were in a relationship from 2010 to 2012. They married in 2012 and separated shortly thereafter having suffered a family tragedy. The parents separated in late 2012 / early 2013.
The respondent has two children from a previous relationship who live with their father, Mr H:
(1)Mr X born 2006 aged 18 years who has spent no time with the respondent mother since September/October 2020.
(2)Y born 2007 aged 16 years who has spent no time with the respondent mother since July 2021. In early 2023, Y made allegations of sexual abuse by Mr N.
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.
Z returned to DD School at the beginning of 2023.
On 11 March 2023 the father became aware of disclosures made by Y in relation to alleged sexual abuse by the mother’s partner, Mr N, and on 17 March 2023 the father withheld the child.
The father filed an Initiating Application on 23 March 2023 seeking interim orders for the suspension of Orders 3 and 4 of the orders of 20 December 2022 for the child to live with him and be restrained from being brought into contact with Mr N, with the child spending time with the mother as agreed in writing. He sought final orders in similar terms. He did not specify orders sought in terms of parental responsibility.
Interim Orders of 13 June 2023
Orders were made by a Senior Judicial Registrar (“SJR”) on 13 June 2023 suspending the orders of 20 December 2022 and granting equal shared parental responsibility to the parents and for the child to live with the father and spend time with the mother each Saturday commencing 17 June 2023 from 10.00am until 5.00pm and at other times as agreed in writing. The mother was required to ensure that she was present at all times when Mr N was in the presence of the child. The child was to remain enrolled at FF School and the father was to name the mother on the enrolment form and nominate her as a contact. Neither party was permitted to take the child to see a psychologist, therapist or social worker (save and except for a school social worker) without the written consent of the other party or by order of this Court.
Interim Orders of 6 July 2023 (amended 18 July 2023)
Orders were made by the SJR on 6 July 2023 (amended 18 July 2023) discharging the 13 June 2023 orders. The SJR again made orders which suspended the 20 December 2022 orders and granted equal shared parental responsibility for long-term issues including, but not limited to, education (both current and future) and health (including mental health) with neither parent being able to restrict the other parent from liaising with educational institutions or healthcare professionals pertaining to the child and neither parent being able to remove the child from FF School without the written consent of the other parent or an order of the Court.
The orders provided for the child to spend time with the mother each alternate weekend from after school on Friday to the commencement of school on Monday (with exceptions for public/pupil-free days) and in the alternating week from the conclusion of school on Friday until Saturday 12.00pm. The orders also provided for the child to spend half of the school holidays with each parent.
There were conditions of live with orders for both parties. Conditions for the mother included that between 8pm and 6am, Mr N was not to be brought into the presence of the child and at all other times the child was not to be left unsupervised with Mr N. Conditions for the father were that he was not to canvass the views of the child as to his live with arrangements, not to discuss proceedings in the presence of the child and that he was to promote the relationship between the mother and the child. The SJR noted there was no finding against Mr N at that stage and that continues to be the case.
Procedural orders were made transferring the Initiating Application of 23 March 2023 and Response to Initiating Application filed 26 May 2023 to Division 1 pursuant to s 149 Family Law Act 1975 (Cth) (“the Act”). All extant interim applications were dismissed.
The matter was referred to the Magellan Registrar in Chambers by order of the Judicial Registrar on 20 October 2023, in the absence of the parties, for consideration of allocation to the Magellan List noting the matter had already been transferred to Division 1.
On 30 October 2023, a Judicial Registrar made orders in Chambers determining that the matter would not be recommended for the Magellan List and that the matter remained listed for mention before McGuire J on 3 November 2023.
Justice McGuire made orders on 3 November 2023 that the proceedings be listed for final hearing before McNab J on 8 April 2024 for an estimated hearing time of five days and with the following notation:
9.Justice McGuire, having heard the substantive litigation between these parties previously has recused himself from carriage of the final trial and another judge of Federal Circuit & Family Court of Australia Division 1 will be allocated to the trial in April 2024.
Spend Time from October 2023
In October 2023 difficulties emerged with Z refusing to spend time with his mother. In addition, during this period, the mother ended her relationship with Mr N.
In November 2023 GG Children's Contact Service advised that they could no longer assist the parties due to Z’s refusal to leave with his mother. In December 2023 there was a successful changeover assisted by the paternal grandmother and Ms M’s sister and in January 2024 there were unsuccessful changeover attempts resulting in Z not spending time with his mother. On 9 February 2024 Z commenced spending time with his mother following the Family Report interviews.
28 March 2024
On 28 March 2024 the father submitted an Amended Initiating Application for final orders seeking sole parental responsibility save for some specific decisions (application outlined below at [30]).
At the conclusion of the final hearing, interim orders were made on 12 April 2024 that the child live with the mother during the school holidays from Saturday 13 April 2024 until the commencement of school on Monday 29 April 2024 and Judgment was reserved.
PROPOSALS
The father initially sought by his Amended Initiating Application filed 28 March 2024 that:
1.The father have sole parental responsibility for [Z] save and except for the father and mother having equal shared parental responsibility in respect of [Z’s] name and any changes to [Z’s] living arrangements which would make it significantly more difficult for [Z] to spend time with a parent.
2.[Z] live with the father.
3.[Z] spend time with the mother by agreement and failing agreement:
a. during school terms:
i.each alternate weekend from Friday 5.00 pm until Sunday or extended until Monday 5.00 pm if a public holiday or student-free day.
ii.each fortnight on the Thursday following the weekend from the conclusion of school until 7.00 pm.
b.Mid-term school holidays from 5:00 pm on the first Friday of holidays when [Z] would ordinarily spend time with the mother until 5:00 pm on the Friday and each alternate week.
4. Conditions in relation to [Mr N]:
a.Overnight time (between 8.00 pm and 6.00 am) [Mr N] is not to be brought into the presence of [Z].
b.At all other times the mother is not to leave [Z] unsupervised in the care of [Mr N].*
5.Changeover to be at McDonald's [Town C]/[Town K] Police Station.
6.Both parties sign necessary documents for the issue of an Australian Passport for [Z] or other documents for travel outside of Commonwealth of Australia/travel.
*[Note: these orders are already in place in the 6 July 2023 orders of [the SJR], Order 9]:
9.Whilst the child is living with or spending time with the mother the following conditions shall apply:
a.That for all overnight (between the hours of 8 pm and 6 am) time her partner, [Mr N], is not to be brought into the presence of the child;
b.At all other times the mother will remain present at all times when the child is spending time with her in the presence of [Mr N] and will not leave the child unsupervised in his care.
In the course of final submissions, the father modified his position by seeking orders that each parent have shared parental responsibility and that in the event that the mother obtained rental accommodation which could accommodate her and the child, that the child spend five nights per fortnight with the mother and nine with the father subject to the conditions in relation to Mr N remaining in place.
The mother seeks by way of her Response to Initiating Application filed 26 May 2023 and final submissions:
(1)The mother have sole parental responsibility for Z;
(2)Z live with the mother;
(3)The father spend time with Z on alternate weekends from Friday afternoon to Monday morning; and
(4)Z spend the first half of each school term holidays with the father.
The ICL seeks:
(1)Pursuant to s 61DA(4) of the Act that the presumption be rebutted as it is not in the best interests of Z for the parents to share equal parental responsibility.
(2)The parent with whom Z lives ought to have sole parental responsibility with appropriate orders informing the other parent of long-term decisions such as school and medical details.
In final submissions, the ICL submitted that the Court should make orders for the mother to have sole parental responsibility and for the child to spend alternate week and school holiday time with the father.
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).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child's best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
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 CONSIDERATIONS
Section 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 point
Mr 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].
The mother submitted video evidence which does not support the father’s account of the child’s behaviour and shows the father coming to the mother’s car with Z but without his bag and jacket. A stranger who was passing by began heckling the mother saying: “It’s not like he’s trying to keep your son away from you.” Z was present for this exchange. The mother asked the father to get Z’s bag and jacket and the father walked arm in arm with Z slowly back to the car. What the video evidence then shows is strangers surrounding the mother’s car giving unsolicited advice to her about parenting in a hectoring manner, with the father returning to join in and hurl verbal insults at the mother.[5] The father did not support the mother in front of the child when she was being assailed by strangers. There was nothing in the video which provides any basis for the strangers’ treatment of the mother. In cross examination it was put:
Mr VerneyAnd yet I put to you, you couldn't help yourself, could you, instead of doing the right thing and telling these people to mind their own business, you joined in and had to go at it, didn't you?
[Mr Mitchell] Yes
[5]Exhibit R1, Court Book (“CB”) 672.
The father then left with Z. That incident would have been upsetting for the child and the mother. The father’s account of the incident in his affidavit diverges so far from what is shown in the video that I find that the father was not truthful in his affidavit regarding that incident.
The father received a letter of demand on 9 March 2023 from the mother’s solicitors that Z be returned. The father agreed that he did not take Z to school on the morning of 9 March 2023 and agreed he was in breach of the Court orders and that by law he was required to take Z to school. He said he did try but was unable to get Z to go to school in the morning. When the father finally took Z to school, Z refused to get out of the car, and the father had to go to the school office for assistance. A teacher succeeded in getting Z out of the car. The father agreed that, just like the night before, he was unable to get Z out of the car without assistance from someone else.
The father messaged the mother on 9 March 2023 as follows:
FatherHi, I’ll have a good talk with [Z] today about returning to you & see if I can get him to agree to come back later today hence getting him in the car & out at [Town C]
Mother:My suggestion is that you ring [the ICL] to have a talk to him
Father:I can try, that was some you was meant to organise when [Z] was returned to your custody in December.[6]
[6]Exhibit R2, CB 570.
He could not give a reason as to why his fallback position was to criticise the mother for making a reasonable suggestion.
The father then sent a copy of this text exchange between himself and the mother to Mr H, who responded “She’s lost for words lol”[7] It was put to him that this was just another instance of he and Mr H working together against the mother in relation to the child. I accept that it is evidence of the father’s malevolent attitude to the mother.
[7]Exhibit R4, CB 571.
The father also produced video evidence which was intended to prove that the mother had been aggressive and abusive at a changeover inside the McDonald’s restaurant in late 2023, and was titled ‘[Ms Mitchell] Abusive McDonald’s. The father gave evidence that the mother had arrived at the changeover about 20 minutes late. The video showed the mother arriving to see the father, child and stepmother in a booth. There is no apparent acknowledgement of the mother nor is there any sign of the father encouraging the child to acknowledge the mother or to go with her. The father and stepmother are shown sitting either side of the child in the booth effectively wedging him in. The father is seen reading the newspaper and ignoring the mother. There is nothing in the video to indicate the father is encouraging the child to go with the mother.[8]
Mr VerneyWhat it looks like to me is that [Z] is sitting in the booth, boxed in by you and boxed in by your wife, and the only way that he could if he was wanting to go to his mum, get out his either over the table, under the table or you or your wife getting out of the way, none of which happened particularly the last two do you agree or disagree?
[Mr Mitchell] Agree.
[8]Exhibit R6.
The father alleges that the mother was the aggressor in the situation. He says that the mother became verbally abusive to the extent that staff at the restaurant became concerned and said that the behaviour of the mother was unacceptable.
The video does show the mother remonstrating with the father and stepmother in response to what appeared to be their stonewalling. As a result of this incident, the father reported the matter to the police and obtained an Interim Family Violence Order against the mother in late 2023. This was obtained administratively and without a hearing.
The video, despite being proffered by the father as evidence of the mother’s verbal abuse, is indicative of the father actively undermining the mother having a meaningful relationship with the child.
A changeover did occur on 2 December 2023 without the father being present, but with the paternal grandmother, and the father’s partner’s sister being present. It seems that changeovers to the mother’s care occur best when the father is not there or when he is assisted by someone else. The Court Child Expert notes at [49] of her report dated 16 February 2024 that:
49.[Mr Mitchell] reported that while he was encouraging of [Z's] relationship with his mother, he will not force [Z] to go into the care of his mother if he does not wish to. This appears to be a limitation in his parenting capacity given if [Z] was told by his father that he was fully supporting of and wanted [Z] to go with his mother and spend time with her, [Z] would likely comply to his parenting as he reportedly does in other contexts given his reportedly easy nature. Behaviour management is an important part of parenting which involves having rules and boundaries that are enforced using consistency, warmth and understanding.
(Emphasis added).[9]
[9]Family Report, Court Child Expert Ms LL dated 16 February 2024 (“Family Report”) at [49].
There were four significant periods of time that Z did not see his mother because the father either withheld him or could not get Z to go with the mother despite orders for spend time being in place. These were:
(1)a block of time in 2020 when the father unilaterally withheld Z;
(2)from 17 March 2023 when the father picked Z up from school until 17 June 2023;
(3)from 23 September 2023 to 2 December 2023;[10] and
(4)from 24 December 2023 until 6 February 2024.
[10] Respondent Mother’s trial affidavit filed 18 March 2024 at [68] – [70].
The father is unable to facilitate, nor does he encourage the relationship between Z and the mother. He is not concerned if their court ordered time does not occur and places the onus of ensuring that such time occurs largely on the mother. Whilst the mother does currently have a meaningful relationship with the child, it is at significant risk due to the actions of the father.
The child has a meaningful relationship with the father, and I did not get a sense from her evidence that it was the mother’s aim to undermine that relationship.
Section 60CC(2)(b)
The Need to Protect the Child from Physical or Psychological Harm from being Subjected to, or Exposed to, Abuse, Neglect or Family Violence
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In relation to unacceptable risk, in Isles & Nelissen (2022) FLC 94-092, the Full Court adopted Austin J's dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212, which emphasised that risk assessment is a predictive exercise that involves evaluating the potential seriousness of harm in the context of the probability of its occurrence. The Court stated that the higher the chance of harm, the greater the risk, and risks of harm must be considered even if they are improbable eventualities. The Court also noted that a comparatively small risk of serious harm can justify action in child-related proceedings, while the virtual certainty of slight harm might not. The Court highlighted the need for trial judges to assess not only the potential harm but also the probability of such harm occurring. The Court may conclude that an unacceptable risk exists based on an accumulation of factors, even if each individual factor is not proven on the balance of probabilities. Finally, the level of confidence in a prediction of future risk will be based on the factual findings underlying the prediction.
Further, in relation to the consideration of unacceptable risk, the Full Court in Bielen & Kozma [2022] FedCFamC1A 221 at [51-54] held:
51.In Helbig & Rowe [2016] FamCAFC 117, the Full Court explained at [214] (citing A v A [1998] FamCA 25; (1998) FLC 92-800), that where a case is conducted on the basis of it being contended that there is an unacceptable risk of harm to a child in the care of one parent, “[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk”
52After referring to and applying that decision, the Full Court in Keane & Keane [2021] FamCAFC 1; (2021) 62 Fam LR 190 at [84] stated: In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
53.In Summerby & Cadogen [2011] FamCAFC 205 at [95], the Full Court also noted the potential adverse impact upon a child of permanent separation from their parent and, in the context of that case, agreed with and applied the analysis of the trial judge in those proceedings to conclude that “the termination of a child’s relationship with one of her parents is a course of last resort.”
54.Given the potential consequences for a child of such a separation, careful consideration is required on the part of a trial judge before reaching a conclusion of no time and no communication. This is made clear in Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) where the Full Court said at [28]: The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.
Section 60CC(2)(b) – alleged physical abuse
The mother gave evidence of Mr Mitchell physically and verbally assaulting her during their relationship. She states in her trial affidavit:
8.This included [assaulting] me, causing [an injury]. I was pregnant with [Z] at the time.
The allegations that the mother has committed family violence arises from the incident at the McDonald’s restaurant. As was canvassed above, I do not regard that as a significant incident and do not accept the father’s or the stepmother’s account of that incident.
The issue of the risk of the child being subjected to physical abuse by Mr N is effectively mitigated by the fact that the relationship between Mr N and the mother is over, and I accept the mother’s evidence in that regard. Text messages produced by the mother of text exchanges between herself and Mr N suggested that Mr N was keen to maintain a relationship but that the mother was not. The messages also referred to the mother having been assaulted by Mr N and him placing tracking devices on her vehicle. The orders proposed by each party include injunctions regarding the child spending unsupervised time with him.
Apart from the concerns raised by the father regarding Mr N, the father identified concerns regarding neglect arising from the lack of supervision of the child, the squalid state of the mother’s house, the child’s health and hygiene and inadequate food. In relation to the child’s health and hygiene and inadequate food, there has been no concerns raised by any school that the child has returned from the mother’s care in an unhygienic state, whether smelling, looking dirty and uncared for, or wearing dirty clothes. There is no report that the child presents at school hungry or without food.
As a result of the breakdown of the relationship between the mother and Mr N, the mother has had to move from the home they shared to live on her property in Town CC. The father has raised concerns about the standard of accommodation on the property and had a friend enter onto the mother’s property to take photographs of the exterior of the dwellings. Those photographs were produced to the Court and show what appears to be an old mobile home with an unfinished small structure next to it. There is a shipping container separate from the mobile home. There is no power except for a generator and there does not appear to be any means of collecting rainwater. The mobile home and the general style of the buildings from the exterior are in poor condition. The father’s trial affidavit raises that the property does not have a shower or functioning toilet and that the child has to go toilet outside by digging a hole. It was submitted that there is no functioning kitchen and that meals must be prepared at a nearby facility.
The mother has given sworn evidence in response to a series of questions raised about the quality of accommodation and amenities. She states that there is a portable gas fired shower located in the shipping container and there is a temporary portable chemical toilet. The mother has attached photographs of the shower, the living area of the mobile home and the child’s bed. The location of the mother’s bed was not shown but given the size of the mobile home could not have been far from the child’s bed.
The area looks small but well organised, although it could become disorganised very quickly unless meticulously maintained. There is no sheltered deck area. The shower appears to be located in a shopping container about 50 metres from the mobile home. It is unclear how water is delivered to the shower or how rainwater is collected, but I assume that there is water available for the shower and for drinking. The Court Child Expert was asked whether she had any concerns for the child in that environment and she seemed sanguine about those conditions, viewing concerns regarding the well-being of the child resulting from the conduct of the father as being of greater importance.
It is possible to successfully raise healthy and happy children in a variety of settings including in very basic settings. The mother gave impassioned evidence that she has been placed in the situation of having to live on property because of what she viewed as the concerted efforts of the father and Mr H to destroy her relationship with Mr N and where the father pays minimal child support (notwithstanding that he is a self-employed employing staff and being able to pay for multiple tranches of legal proceedings). The mother submitted that work is being undertaken to complete a tiny home which will be able to accommodate her and the child. It was not made clear when that work would be completed.
I have concerns that the accommodation on the property is not suitable as full-time accommodation for the mother and child, particularly through the school year. I could see no area where the child might sit at a desk and do homework. Spending a winter in an uninsulated mobile home[11] and having to traipse about 50 metres to have a shower or go to the toilet in a shipping container will lose its appeal, particularly in the face of what will no doubt be continuing efforts by the father to undermine the mother.
[11] CB 663.
I did not visit the property and only have the photographs produced by the parties to consider. The exposure of the child to those living conditions over a period that might extend for months may lead to accusations that the child is being subjected to neglect due to the living conditions. This is particularly the case given that the father and stepmother live in a house which is large, extremely well appointed and offering every reasonable comfort, including that the child has his own room and study area. I am not suggesting that the father and stepmother are better parents than the mother because of the quality of their housing: my concern is that a campaign may be waged to undermine the mother if she chooses to live with the child in those conditions. If the mother had a better standard of accommodation the consideration of this matter would be far more straightforward.
Notwithstanding my concerns about that accommodation, I am confident that with access to support the mother will be able to provide safe and appropriate accommodation for herself and the child, noting that she has provided accommodation to date which has not resulted in harm to the child.
The mother was cross examined but was not significantly challenged in relation to her evidence generally or regarding her capacity to provide suitable accommodation. She gave her evidence in a clear and straightforward manner. She gave evidence that she had assistance from friends who were working to make her housing more hospitable and habitable. She also deposed to having made inquiries to rent accommodation in Town C but says that her capacity to do so was constrained.
The mother produced a residential tenancy agreement for a 2-bedroom, self-contained fully furnished apartment that she could enter if needs be if orders were made for the child to live with her. The mother gave evidence that she is reliant on the decision as to where the child resided, which would alter her Family Tax Benefit and her capacity to pay rent. It is noted that the father pays minimal child support to the mother. The father claimed in his evidence that any apparent wealth and comfort that he displays in his housing, vehicles, is a reflection of the wife’s earning capacity not his, and that this was an explanation for his low income and low level of child support payments. I have some difficulty accepting this evidence, however, that it not a matter which I have to finally determine.
I am confident that the mother will make arrangements to properly care for the child in relation to her housing arrangements. Her capacity to obtain suitable accommodation was contingent on her knowing the orders that the Court might make. The Court Child Expert made reference at [91] of the Family Report to the BB Family Services and the benefits to the mother in engaging with that service in order to support the reintegration of the child into her household and to put her in touch with other supports. The mother should access these services. The ICL may be in a position to assist the mother by referring her to suitable services, I will discharge the ICL 60 days from the date of these orders so that this can be done. I accept the evidence of the Court Child Expert that concerns arising from the conduct of the father are greater than any risk to the child in the mother’s care. That conduct is discussed further below.
Section 60CC(2)(b) – alleged “serious psychological harm”
The Act requires advertence to the need to protect the child from “psychological harm” which may be caused by subjection or exposure to “abuse”.
For that purpose, “abuse” is defined to include causing “serious psychological harm” to the child, howsoever that may occur and regardless of whether or not it is intentional (s 4(1)).
There were extensive text messages produced to the Court which were not only evidence of collusion between the father and Mr H, but also depicted denigration of the mother. Counsel drew the father’s attention to text messages between himself and Mr H from 7 February 2023 speaking about the mother in the following terms:
[Mr H]She’s just a Fucken dog maté Jesus I hate her
[Mr Mitchell] She can get fucked[12]
[12]Exhibit R4, CB 557.
Further, on 9 February 2023:
[Mr Mitchell] Could of brought a couple each [[vehicles]] of it wasn’t for Karen
[Mr H]Not wrong the dead cunt[13]
[13]Exhibit R4, CB 560.
The father agreed that ‘Karen’ was a nickname he and Mr H had for the mother. Texts between Mr Mitchell and Mr H were consistently derogatory towards the mother. He agreed that he and Mr H texted regularly during this time, once, if not twice a day.
Text messages from Mr Mitchell to Mr H on 17 February 2023, a month before Mr Mitchell withheld Z, suggest he was already planning to do so. He was so displeased with both the mother and McGuire J that he said they each needed to be shot and he was also pleased that Z had said the judge had made a mistake:
[Mr Mitchell] The boys come back with some killer stories I hate that cunt [the mother]
[Mr H]Oh dear that poor boy.
[Mr Mitchell] Yep he told his teachers his not going back and he doesn’t want to be there I had to sign consent forms today so he can see social worker
…
[Mr H]That’s so wrong what she’s doing the cunt
[Mr Mitchell] Pretty much spent the fortnight bagging us out
[Mr H]Yep I can imagine and we got our ass kicked for telling the kids anything about her
[Mr Mitchell] Yeah [Z] told her the judge made a mistake and he doesn’t want to live there he said he didn’t put [Mr X] in the shit he said [Mr X] just said stuff. The cunt[mother] was trying to fish info out of me
[Mr H]She needs to be shot
[Mr Mitchell] Agreed so does [Justice] McGuire
[Mr H]Yep[14]
(Emphasis added).
[14]Exhibit R4, CB 562-3.
Mr Mitchell had no explanation as to why Z would know he was not returning to DD School and what he had meant by not putting ‘[Mr X] in the shit’. In relation to his assertion that McGuire J should be shot, he was asked:
Mr VerneyAnd you're referring to shooting a judge of this court, aren't you in context?
[Mr Mitchell] Yes, in context, yes
Mr VerneyAre you guys going to say the same about his honour? If he makes a decision that you're unhappy about.
[Mr Mitchell] No
Mr VerneyVery easy for you to say that now when you're under cross examination, [Mr. Mitchell].
(Emphasis added).
The father was questioned about texts on 2 March 2023 where he again referred to the mother as a “cunt”:
[Mr Mitchell] That cunt [the mother] of a thing just told [Z] he wasn’t allowed to talk to me on the phone.
[Mr H]Wtf mate surely something can be done about that
[Mr Mitchell] I doubt it [Z] knew I wasn’t happy
[Mr H]That poor kid must be under so much pressure she is mentally abusing him.
[Mr Mitchell] He’s going to end up mentally destroyed
[Mr H]He needs help and so do you mate this is no good big fella.[15]
[15]Exhibit R4, CB 566.
The father agreed that the “cunt” he was referring to was the mother.
He was also asked about a text he sent to Mr H on 3 March 2023:
[Mr Mitchell] Need to work on [Z] this is no good.[16]
[16]Exhibit R4, CB 568.
It was put to him that what this meant was Mr Mitchell was going to work on convincing Z that he should not be going back to his mum’s. He denied any coaching of Z. This is notwithstanding that the conversation took place nine days before Z told his teacher he would not be returning to DD School. I accept that the father was actively encouraging the child not to return to his mother.
There was a pause in communication between the father and Mr H between 9 and 12 March 2023. The father agreed that the absence of text messages was because he spent that time with Mr H and his family on holidays together.
The father gave evidence in his trial affidavit that on 11 March 2023 his partner, Ms M, was contacted via text by Ms AA with allegations of inappropriate behaviour by Mr N. Ms AA spoke to Mr Mitchell and Ms M on 12 March 2023 stating that Y had disclosed that she had been sexually abused by Mr N. [17]
[17]Exhibit A2 at [90] – [92].
When texting between Mr H and Mr Mitchell resumed on 13 March 2023, there was the following exchange in relation to the mother:[18]
[Mr H] She needs killing fuck I hate her
[Mr Mitchell] Yes
[18] Exhibit R4, CB 573.
After being taken to that text message, the father was asked again whether he hated the mother, to which he disagreed. When asked why he did not to say to Mr H ‘don’t say that about the mother of my child’ he responded that Mr H was “probably upset at the allegations” and disagreed again that he hated the mother, even though he had agreed in the text message that she needed killing.
It was put to the father that he wants to have a relationship with Z on his terms and that the Court Child Expert had outlined in her Report that he would agree to more time with the mother and Z provided it did not inconvenience him, and that it was ‘his way or the highway’.
On 13 March 2023 the father again sent screenshots of texts between he and the mother to Mr H whose response was: [19]
[Mr H] Fucken lying cunt
[Mr Mitchell] Cunt lives on her phone
[Mr H] Yep
[19]Exhibit R4, CB 574.
The father stated he sent those text messages to Mr H “because I wanted to speak to my son”.
The father was asked how it was that Z knew he would not be returning to DD School referring to evidence given by his teacher about a conversation with the child on 14 March 2023 which is recorded in the following terms:
After recess, [Z’s] mood changed from being very happy to a very ‘dark’, serious one. He wanted to go to green room where TA took him after a conversation. He talked about dying, hating being with Mum and he would sort out things this weekend. He mentioned he wouldn’t be back at school after the weekend. When I start to talk to him, he progressively becomes more emotional and mentioned that he wasn’t allowed to talk to social worker.[20]
(Emphasis added).
[20]Exhibit R3, CB 290.
The father could offer no explanation for why Z was so sure he would not be returning to the primary school after the weekend. The father was reminded that the Court Child Expert had also commented on this issue and relevantly it is noted that she raised concerns about:
85.… [Z's] knowledge of and discussion about changes in his care prior to his being withheld by his father, as indicated in the subpoenaed Department of Education information, is concerning. This alludes to the possibility of [Mr Mitchell] actively influencing [Z] either against his mother, or in favour of being in his care. [Mr Mitchell] lack of willingness to facilitate [Z's] Court ordered time with his mother raises further concerns about the overt and covert messaging being given to [Z] about his relationship with his mother from his paternal household. The misalignment between the level of [Z's] negativity about his mother and his actual experiences of being in her care in the context of concerns regarding the messaging [Z] receives about his mother in his paternal household suggests significant caution should be taken in weighting his expressed views.[21]
(Emphasis added).
[21]Family Report at [85].
The father says that on 14 March 2023, Mr H contacted him directly to confirm Y had spoken to him about the alleged sexual abuse. That evening at 7:59pm, Mr Mitchell sent Mr H further screenshots of messages between himself and the mother where she stated she had not seen the father’s text to which there was the following exchange:
[Mr H]That’s bad mate I can’t wait fox [for] what’s coming for them fuck whits
[Mr Mitchell] He and she are fucked and when I get her back to Crt this will look terrible for her
[Mr Mitchell] When do your orders get signed I don’t want to rock the boat till then
[Mr H]No idea soon I hope judge wants them All sorted before 3rd April we are waiting on her[22]
(Emphasis added).
[22]Exhibit R4, CB 575.
It was put to the father that this message was evidence of Mr Mitchell and Mr H coordinating their actions:
Mr VerneyThis conversation between yourself and [Mr H] is evidence of you and he coordinating your actions because, look at your message, ‘I don’t want to rock the boat till then’ until his orders are signed that’s what you meant wasn’t it?
[Mr Mitchell] Yes
Mr VerneyDon’t say I don’t know because it’s pretty obvious.
[Mr Mitchell] I said yes.
Mr VerneySo this is 14 March again that [Z] tells his teacher he’s not coming back after the weekend. It’s a period of time when you learn of [Y’s] allegations at face value extremely serious allegations undoubtedly and look what your attitude is to [Mr H] ‘I don’t want to rock the boat till then’. What you meant I suggest to you is that if you raised this with my client and her lawyers then she might have backed out of any agreement with [Mr H and Ms AA] in terms of their orders that’s what you meant wasn’t it?
[Mr Mitchell] Yes
Mr VerneySo can I suggest to you that in this instance you prioritised [Mr H] being able to get his parenting case settled, you prioritised that above any concern you might have had for [Z].
[Mr Mitchell] Well I’d been trying to call him and I couldn’t get a hold of him.
Mr VerneyThat wasn’t my question. Just listen to my question. I didn’t ask you about calls did I?
[Mr Mitchell] No
Mr VerneySo just listen to the question and just answer that. We’ll get through this a bit quicker. So I’ll ask you again. I put to you that you prioritised [Mr H] getting his family, his parenting case settled above whatever concern you may have had for [Z] and that message confirms that do you agree or disagree.
[Mr Mitchell] Yes.
Mr VerneyYou agree.
(Emphasis added)
Counsel for the mother contextualised this exchange as being just after the father had learned of serious sexual allegations about Mr N. Despite Mr Mitchell telling the Court Child Expert at the beginning of 2024 that he was “concerned that [Z] would be sexually abused by [Mr N] if in his mother’s care”[23] he held off on any action in relation to the allegations seemingly as a strategic move for the good of the ‘team’ of he and Mr H.
[23]Family Report at [22].
The following day on 15 March 2023, there were text exchanges between Mr Mitchell and Mr H:
[Mr H][Mr MM] is onto it
[Mr H][Mr MM] is onto it
[Mr Mitchell] What does he recommend?
[Mr H] He’s getting a interview set up asap not happy the boy he said don’t turn into […].
[Mr Mitchell] Jesus fucking Christ
[Mr Mitchell] Fuck I hate that cunt
[Mr H]We will bring the cunts down mate and get the boy outa that shit
[Mr Mitchell] I just hope he’s ok. [24]
[24]Exhibit R4, CB 575.
When asked to explain this exchange, Mr Mitchell stated that Mr MM is a policeman and that the person referred to is someone not related to these proceedings. Counsel for the mother put to the father:
Mr VerneyDo you agree that those messages have a ring about them of you and [Mr H] just colluding in respect of these allegations about [Mr N]? ‘I can’t wait for what’s coming for them ‘fuckwits’, we’ll bring the ‘cunts’ mate down and get the boy out that shit.
[Mr Mitchell] I just hope he’s ok.
Mr VerneyYeah. I asked you a question do you agree or disagree?
[Mr Mitchell] I agree.
Mr Verney You agree with what?
[Mr Mitchell] I agree it looks that way.
(Emphasis added)
There was a further text sent by Mr Mitchell that evening which said “[Mr MM] on a war path” and Mr H responded “Yep she’s on now mate”.[25] Mr Mitchell confirmed that this was a reference to the police officer mentioned before, Mr MM. He was asked where Mr MM was located and Mr Mitchell said it was in City P.
[25] Exhibit R4, CB 576.
Throughout the text exchanges between the father and Mr H, the mother is referred to in nothing but the most derogatory terms and there is absolutely no expression of his support for her or comments which might suggest that he was supportive of the Court orders.
Throughout the trial, as well as putting to Mr Mitchell that he and Mr H were colluding, it was also put to Mr Mitchell that he was coaching Z in what to say so that Z could be returned to his care. On the final day of the trial, 12 April 2024, subpoenaed material from the Department of Education Children & Young People was produced and a file note produced in March 2024 noted:[26]
[Z] disclosed that he wanted to [hurt] himself to his class teacher in the morning. He said he had been thinking about it more, had thought of some ways but didn’t think he would do it. He had evidence of future planning and said he felt emotionally overwhelmed. We talked about safety plan and things to do to help reduce stress. We also talked about kids help line and I gave him the card. Talked about reasons to continue and he said he wouldn’t want to upset his dad. I did feel like there was some element of potential coaching, I felt he was telling me things that have come from an adult? That mum tells lies, that I cant have counselling because the court orders say. Things he probably shouldn’t know about. I said I would have to contact dad as he had disclosed some thoughts on means ([self harm]). He understood. I rang Dad at the end of the day and said I would follow up again on Tuesday with […] his counsellor. Dad mentioned that I could be subpoenaed by court, which was an interesting thing to say. Dad said he knew that [Z] wanted to [hurt] himself as he had told him yesterday. Went through the numbers to contact if he has concerns over the weekend.
(Emphasis added)
[26] Exhibit R16.
In his trial affidavit filed 19 March 2024, the father seeks to convey the impression that he did not have any particular issues with the orders of the Court made on 22 December 2022 and in fact states at [21] of his affidavit that, “There were no real issues in the parenting arrangements.” At [26] he gives evidence that “[he] was encouraging of those arrangements and spoke positively to [the child] about [Ms Mitchell] and the fact that he was going to live with her”.
It was put to the father that these proceedings had been ongoing for most of Z’s life and that the majority of the proceedings had been issued by Mr Mitchell except for the first set of proceedings when consent orders were made in 2015. Further, as Mr Mitchell kept insisting he did not hate the mother, he was asked what had changed his view of the mother in the last 12 months. He was unable to answer that question other than to state he was “just trying to get on with life”.
In the course of closing submissions, the ICL stated that she had been involved as an ICL with this family over a number of years. She spoke of the changes that has occurred to the child over the last few years, from being a happy relaxed child to one who seemed overborne by the stresses arising from the ongoing conflict between the parents and ongoing legal proceedings.
Ms R, Z’s teacher, has also seen a notable difference in Z. In Grade 3, Z was well-regulated, however, he is now easily distracted and pre-occupied.[27]
[27]Affidavit Ms R filed 28 March 2024 at [5] – [7].
Most concerning is the following at [15]:
15.Approximately 2 weeks ago, [Z] confided in me saying he was not having good thoughts. He said to me if he was not around, life would be easier and that he had 3 options: 1) he could run away, 2) he could turn to violence and 3) he could self-harm. These were his exact words.
Z has told his teacher “I am the pawn in the middle” which is a direct reference to the conflict going on between his parents.[28]
[28]Ms R at [20].
Ms R deposes that Z “idolises his father and his stepmother and wants to stay living with them and I would have concerns that he would dig his heels in if he had to live with his mum and possibly run away.”[29]
[29]Ms R at [22].
Further, during the interviews for the Family Report, Mr Mitchell was asked whether he had told Z the nature of the visit to the Court Child Expert, as the Court Child Expert stated:[30]
54.…[Z] indicated that he was aware of the reason for this meeting, that being, whether he could live with his father or had to return to his mother and was vehement from the outset that he did not wish to return to the care of his mother.
[30] Family Report at [54].
The father stated that he had not told Z that. He agreed that he spoke with the Court Child Expert as outlined in her report:[31]
66.There had been discussion with [ Mr Mitchell] where he had advised that it was unlikely that [Z] would see [Ms Mitchell] for the observation. [Mr Mitchell] reported that while he had encouraged [Z] to engage in the process, [Z] had displayed extreme reluctance to coming for interview or for observation.
[31] Family Report at [66].
In fact, the interaction between Z and the mother was reported as quite warm.
I find that the father has involved the child in the thick of legal proceedings and has encouraged the child to act and speak to school counsellors and teachers for the purposes of bolstering the father’s position in this litigation. In that regard, I refer to the terms of the school file note dated 19 March 2024[32] where it appears that the child had spoken to his teacher regarding self-harm and the father having raised that the person taking the note could be subpoenaed to Court. This does give the impression that the father has been involved in coaching the child in what to say to the school and counsellors for the purposes of then producing records in court which purport to demonstrate that the child is unhappy to the extent that he is threatening self-harm.
[32] Exhibit R16.
Whilst there is no evidence that the father has spoken of the mother in the terms that he communicated with Mr H in the text messages referred to above, I do find that it is inevitable that the child will have been exposed to the extremely negative views of the mother held by the father, the stepmother, Mr H and his older siblings. The father’s disdain for the mother was palpable when he was giving evidence.
The child has been exposed to the father publicly denigrating the mother at the changeover on 8 March 2023 and effectively allowing strangers to denigrate her as outlined above. This is a matter of significance. This is a point made by the Court Child Expert at [49] of her report in the following terms:[33]
49.…[Mr Mitchell] spoke of his role as a manager of young adults at work and his skillset to encourage and enforce rules and boundaries in the workplace, these skills are similar to those required to utilise his parenting authority with [Z]. [Mr Mitchell] appears to choose not to facilitate [Z’s] time with his mother, rather than it being an issue for him not being able to.
[33] Family Report at [49].
The child is able to transition into the mother’s care when the changeover is attended by people other than the father.
The father also reported the mother to the police about six or seven weeks before the trial in relation to a Facebook photo of the mother holding a weapon and said that he recognised the mother’s arm. He claimed that Z showed him the photo, despite Z not having a Facebook page. The mother gave evidence that in the picture the weapon she was holding was one for the purpose of sport. She was interviewed by police, but no charges were laid. When asked whether he had considered simply asking the mother about this issue before making a complaint to Tasmania Police, he responded no.
As a result of the father’s attitude and conduct since final orders were made on 22 December 2022, the father has exposed the child to a risk of psychological harm. The father has worked hard in company to undermine the relationship between the child and the mother.
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.
The mother and the child have been exposed to family violence. The father engaging others to surveil the mother by way of the person who entered onto the property without permission and took photographs and through the engagement of a private investigator to follow her. This was done when proceedings were issued and the process of disclosure was subject to the Rules of this Court. If the father wanted information, there were ways for him to obtain it without taking the actions that he did.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a)
Any Views Expressed by the Children and any Factors, such as the Children’s Maturity, that the Court Thinks Relevant to the Weight it Should Give to the Child’s View
The father agreed that a central part of his case was that he wanted to give effect to Z’s wishes which was a theme in his evidence before the Court and was noted in the Family Report:
23.[Mr Mitchell] emphasised that he only wants what is best for [Z]; both what is in his best interests and aligns with his expressed wishes. He believes his proposal that [Z] residing with him and spending regular ongoing time with his mother as can be agreed between them best reflects [Z's] wishes and best interests.[35]
[35]Family Report at [23].
The child has expressed strong views to the Court Child Expert that he wishes to live with his father and spend less time with his mother. The expression of those views is recorded in the Family Report. He has also expressed those views to the teachers, after care workers and school counsellors. The expression of those views and the reasons for it are not fully developed and his expressed view stood in contrast to the comfortable and easier rapport he showed when meeting with the mother for the purpose of the report. His stated reluctance to see the mother fell away when he saw her. Sadly, the expressions by the child of ambivalence towards his mother appear to be a manifestation of the father, his stepmother and wider family, including his step siblings, having turned the child against the mother. Whilst the child has expressed views, those views reflect the intensive coaching and negative input from the father regarding the mother.
The principal of the child’s school gave evidence that on an occasion when the child was to spend a long weekend with the mother in 2023, the child was apprehensive and expressed concern regarding the spend time before having a meltdown at the end of the school day. After spending the weekend with his mother, he returned to school happy and on leaving her care said: “thanks mum, love you” and later told the principal that he had a really good time.[36]
[36] Affidavit of Mr KK filed 3 April 2024 at [4]-[5],
This illustrates that the child does enjoy spending time with his mother notwithstanding difficulties at changeovers and his initial views expressed to the Court Child Expert.
Section 60CC(3)(b)
The Nature of the Relationship of the Children with Parents and other Relevant Parties
The child has spent most of his life living with the mother and notwithstanding the efforts of the father, they continue to have a close relationship, albeit that is under threat. The child has a close relationship with his father and stepmother and to some extent his stepsiblings. The extent that he could maintain relationships with his stepsiblings if the orders sought by the mother were made, is open to question particularly given that they have no relationship with the mother currently. However, they are older than Z and at a different stage in life, whether their relationship with Z continues is a matter for the father and Mr H.
Section 60CC(3)(c)
The Extent to which each of the Children’s Parents has Taken, or Failed to Take, the Opportunity to Participate in Decisions, Spend Time and Communicate with the Children
Both parents have taken the time to spend time with the child. There is no question that each of the parents love the child and take the time that is available to spend time with him.
Section 60CC(3)(ca)
The Extent to which each of the Children's Parents has Fulfilled, or Failed to Fulfil, the Parent's Obligations to Maintain the Children;
The father has been critical of the mother’s circumstances and her ability to provide for the child. At final submissions, counsel for the father submitted that there are two central issues in this matter, being the mother’s ability to provide for the child due to her living conditions whilst the child is in the mother’s care and concerns regarding Mr N.
The mother deposes at [49] of her affidavit that she contacted the Child Support Agency whereby she was informed that the father had told the agency that his income had reduced from $110,000 to $65,000, which caused his payments to the mother to be reduced to nothing. The father contacted the agency again on 10 March 2023, where the father objected to the care division of the child, which the mother says accurately reflected the final orders that were made. The father annexes to his affidavit various photos of his residence, which depicts a very well‑appointed house, a stark contrast to that of the mother's and his $65,000 income. In any case, the father runs a business with several employees. I do not accept that the father has done what he is can to support and maintain the child.
Otherwise, evidence was given by Z’s teacher that there are “no red flags” on return from time with his mother, with Z always presenting as “clean and tidy with prepared, healthy lunches.” She further says that “[Z] always seems to have had a good time at his mum’s despite often being anxious before he goes on the Friday”.[37]
[37]Ms R at [23] – [24].
The Court Child Expert described Z as healthy, carrying an Epipen for an allergy, in Grade 5 at FF School finishing the previous year at standard for most subjects and above standard for Science and Humanities and Social Sciences. There had been disruption to his schooling the year before where he also attended DD School and he saw a social worker in early 2023 for support.[38] Z presented to the Court Child Expert as engaging and open and “somewhat advanced in his use of language and how he articulated his views and wishes”.[39]
[38]Family Report at [5].
[39]Family Report at [6].
Section 60CC(3)(d)
The Likely Effect of any Changes in the Children’s Circumstances, including the Likely Effect on the Children of any Separation from a Parent/Grandparent they have been Living with.
This is the most problematic aspect of this case. The father has worked to undermine the orders that were made on 22 December 2022 since their inception by actively discouraging the child from spending time with the mother. In usual circumstances, the Court would simply order that the arrangements fixed by those orders be reinstated. The difficulty in this case is that the mother’s living arrangements have changed considerably since the December 2022 Orders were made. I will make orders adopting the proposals of the mother and the ICL. The mother gave evidence that she could have access to rental accommodation in Town C, she gave evidence that the accommodation would become available in mid-2024. I accept that evidence, and I am confident that the mother will arrange for suitable accommodation for her and the child, particularly if she accesses support.
Section 60CC(3)(e)
The Practical Difficulty and Expense of Children Spending Time with and Communicating with a Parent and whether this will Substantially Affect the Children’s Right to Maintain a Relationship with Both Parents on a Regular Basis
The parties live approximately 100km apart. Whilst that distance creates inconvenience, neither party referred to it as an insurmountable problem. The orders proposed by the mother and ICL involves travelling, but this does not substantially affect the parents maintaining a relationship with the child.
Section 60CC(3)(f) and (i)
The Capacity of Parents/Grandparents to Provide for the Needs of the Children and their Attitudes to the Children
Both parents have the capacity to care for the child. The father criticises the mother’s capacity, however, there is no evidence that she suffers from any mental illness nor is there any report from any third person or agency that the child is not cared for.
The father’s capacity to care for the child is undermined by his failure to appreciate that the one of the child’s needs is to have a functioning relationship with his mother. The fact that he is so driven to undermine the mother affects his capacity to provide for the needs of the child.
Section 60CC(3)(g)
Maturity, Sex, Lifestyle and Background of the Children/Parents
This is not relevant.
Section 60CC(3)(h)
Whether the Children are Aboriginal or Torres Strait Islander Children
This is not relevant.
Section 60CC(3)(j) and (k)
Any family violence involving the child or a member of the child’s family and if a family violence order applies or has applied to the child or a member of the child’s family.
I find that the mother has been verbally abused by the father at changeovers and has been subjected to denigration by the father which has been witnessed by the child. I find that the mother has been subjected to family violence by being subjected to surveillance by a private investigator engaged by the father and by the father arranging for a person to enter her property without her permission and photographing her home.
There have been mutual allegations of family violence since about 2012. The relationship has been highly charged and the child has been exposed to this since he was very young. There is a current Police Family Violence Order in place for the protection of the father against the mother until late 2024. That order arises from the events at the McDonald’s restaurant in late 2023 to which I have made reference to at [56]. After receiving and considering evidence in relation to that incident, I do not regard the mother as the protagonist, although she may have spoken angrily in response to what had happened.
I do not find that the mother is the instigator of family violence, and she has had to respond to the concentrated and concerted conduct of the father. Given the father’s behaviour, the mother is entitled to be fearful that she will continue to be surveilled by the father and the family violence perpetrated by the father does have an impact both on the mother and the child.
Section 60CC(3)(l)
Whether it would be Preferable to make the Order that would be Least Likely to Lead to the Institution of Further Proceedings
The orders made have in mind the need for the child to be removed from being the focus of proceedings in the hope that this will lead to an end to the proceedings involving this child since he was very young.
Section 60CC(3)(m)
Any other Factors or Circumstances that the Court Thinks is Relevant
No other matters are relevant.
CONCLUSION
Parental Responsibility
Section 60DA(1) of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. Section 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)Abuse of the child or another child, who at the time was a member of the parent’s family or that other person's family; or
(b)Family violence.
Mr Mitchell gave evidence he understood the meaning of shared parental responsibility and that McGuire J had made orders in December 2022 for equal shared parental responsibility. Notwithstanding that order, he had unilaterally organised for Z to see a social worker without consulting the mother and that he had also done so previously, as outlined in Mitchell & Mitchell [2022] FedCFamC1F 955 by McGuire J at [88]:
88.The father’s tendency to act unilaterally in respect of [Z] appears unabated despite his protestations in the witness box of newfound insight and empathy towards the mother and [Z’s] relationship with her. Not only did the father unilaterally retain [Z] on 17 July 2020, the evidence shows that he also unilaterally enrolled [Z] at the [FF School] and then arranged counselling for [Z] with the school teacher and later with the [Ms T] all without consultation with the mother …
In the course of final submissions, counsel for the father indicated that the father was seeking orders for joint parental responsibility rather than orders that the father to have sole parental responsibility as was set out in his final application before the Court. It was also said in the course of final submissions that the Court may be of the view that orders for a 9/5 arrangement (in favour of the father) might be considered, however, no evidence was led in support of that arrangement and the Court Child Expert was not cross examined in relation to that proposal.
Given the extraordinary level of conflict generated by the father towards the mother, I do not believe that it would be in the best interests of the child for the parties to have equal shared parental responsibility. When there has been shared parental responsibility previously, the father has acted unilaterally and without the agreement of the mother. Accordingly, I will order the mother have sole parental responsibility, subject to her keeping the father informed or major decisions regarding health and education.
SPEND TIME ARRANGEMENTS
Ms LL outlined the following recommendations in her report:[40]
[40] Family Report at [93]-[97].
RECOMMENDATIONS
Based on the information gathered in this assessment, the following is recommended:
93.That [Z] would benefit most from maintaining a primary care home with one parent and spending regular time in the home of the other parent.
94.If there is to be a change of residence for [Z] into [Ms Mitchell's] care, this transition would likely be best supported by restricting and containing [Z's] time with [Mr Mitchell] for three to six months following this change, either via a full moratorium of time or limited professionally supervised contact, to allow [Z] to settle into the new routine without any disruptions to his circumstances as may occur given the history of the case.
95.That [Z] be provided with non-reportable therapeutic support from a psychologist.
96.That [Ms Mitchell] engages in professional support to assist her with understanding the emotional experiences of [Z] in the context of her parenting. If providing primary care to [Z], it is recommended that she also engage with the [BB Family Services] to assist in this transition.
97.That if [Z] returns to the primary care of [Ms Mitchell], [Mr Mitchell] seek therapeutic support to assist him to reconcile this outcome and provide appropriate support and care to [Z] in the context of such arrangements into the future.
The mother and the ICL were largely in agreement that the child should live with the mother and spend time with the father each alternate weekend. The ICL proposed that the father also have the option of fortnightly time on Wednesday until 8:00pm. In light of the evidence canvassed above, I will not make orders for the optional time on the Wednesday as I anticipate that making arrangements for same will incite more disputes between the parties which are likely to cause more detriment than benefit. I regard orders of that kind are in the best interests of the child in order to protect him from the risk of psychological abuse or harm and in order to ensure that the relationship between him and his mother continues.
The orders proposed by the father that the child live with him and spend alternate weekends and half school holidays, or his alternative proposal of a 9/5 arrangement, are likely to see a continuation of the father’s effort for there to be limited time between the mother and the child. I am also concerned about the impression created if the Court makes orders sought by the father after he has waged a campaign against the mother and worked to undermine the orders made in December 2022. That would be a case of the Court determining the child’s best interests against a background created by the father to undermine the mother.
CONCLUSION
I adopt the proposed orders of the ICL and the mother, with necessary modifications. I do not adopt the proposal that there be a moratorium on the father’s time or that the father’s time be supervised. I expect that the child would not enjoy that in the least and it would likely lead to greater unhappiness for the child. The potential psychological impacts of a complete separation between the father and child for a period were not explored. The most important thing for this child is for him to have a relationship with both parents and not be subject to ongoing legal proceedings.
On a final note, I will refer the extract of the transcript during the father’s evidence at [86], a copy of this judgment and the relevant evidence in the form of the father’s text messages to the Marshal of the Court in relation to the comments made by the father in reference to a Justice of this Court.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 7 August 2024
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