Parkmore & Miglio - [2022] FedCFamC2F 1279

Federal Circuit and Family Court of Australia
(DIVISION 2)
Parkmore & Miglio [2022] FedCFamC2F 1279

File number(s): DNC 707 of 2020

Judgment of: JUDGE YOUNG

Date of judgment: 21 September 2022

Catchwords: FAMILY LAW - parenting - concerning two children who are nine and five years old - where the children live with the first and fourth respondents who are non-parent parties - where the second and third respondents are the parents - where the parents agree the children should live with the first and fourth respondents - where the applicant is a non-parent party and former foster carer - whether the children should live with the applicant - whether the children should spend time with the applicant - whether there is a risk to the children in the care of the respondents

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC 65C
Care and Protection of Children (Placement Arrangements) Regulations 2010 (NT)

Cases cited: Aldridge & Keaton [2009] FamCAFC 229, [83]

Division: Division 2 Family Law

Number of paragraphs: 64

Date of hearing: 24 and 25 August and 6 September 2022

Place: Darwin

The Applicant: Appearing on her own behalf

Counsel for the Respondent: Mr Lipert

Solicitor for the Respondents: Grays Legal NT

ORDERS

DNC 707 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PARKMORE

Applicant

AND:
MS MIGLIO

First Respondent

MS G

Second Respondent

MR F

Third Respondent

MR J

Fourth Respondent

order made by:

JUDGE YOUNG

DATE OF ORDER:

21 September 2022

THE COURT ORDERS THAT:
1.That Ms G and Ms Miglio have equal shared parental responsibility for X born in 2013 and Y born in 2016 (“the children”).
2.That the children live with Ms Miglio and Mr J.
3.That the children spend no time with Ms Parkmore.
4.That Ms Miglio is to authorise the school or schools of the children to provide to Ms Parkmore, at Ms Parkmore’s expense, copies of any awards or school photographs, which are ordinarily available, of the children.
5.Ms Parkmore may send to the children at Christmas and on their birthdays a card and modest gift and Ms Miglio is to ensure that the card and/or gift is given to the children.
6.Ms Miglio and Mr J are to consult their general medical practitioner/s (“GP”) about the effect of cannabis use on parenting capacity and, if recommended by the GP, undertake a course of counselling as to the same.
7.There be an injunction restraining all parties to these proceedings from:
(a)Denigrating the other party or the party’s partners or members of that party’s family via any social media platform or in the presence of or within the hearing of the child, and each party remove the child from the hearing of anyone else who may be denigrating the other party or that party’s partner or family and posting or making any reference to the child or parties to these proceedings on any social media platform;
(b)Using the children as a conduit to pass messages…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parkmore & Miglio

Details

AGLC: Parkmore & Miglio [2022] FedCFamC2F 1279
Case: [2022] FedCFamC2F 1279
Decision Date

CaseChat Overview and Summary

This case involves a parenting application concerning two Aboriginal children, X and Y, who are nine and five years old. The applicant, Ms Parkmore, a former foster carer for X, seeks orders for the children to live with her and spend time with her. The respondents are Ms Miglio and Mr J, the children's carers, and the children's parents, Ms Miglio's cousin and Mr J's cousin. The parents agree that the children should live with Ms Miglio and Mr J. The legal issues revolve around determining the best interests of the children and whether it is appropriate for a non-parent to have a role in their lives.

The court found that Ms Parkmore's allegations of abuse and neglect against the respondents were unsubstantiated and rejected them. The court found that Ms Parkmore's conduct had engendered hostility and mistrust between her and the respondents, which would be detrimental to the children's best interests. The court found that the children wished to remain with Ms Miglio and Mr J and their extended family. The court concluded that it was not in the children's best interests for them to spend any time with Ms Parkmore, given the lack of a respectful relationship between her and the respondents and the potential for further unmerited reports to child welfare authorities.

The court made orders that Ms Miglio and the mother have equal shared parental responsibility for the children and that the children live with Ms Miglio and Mr J. The court also ordered that Ms Parkmore may send cards and modest gifts to the children at Christmas and on their birthdays and obtain copies of their school awards and photographs at her own expense. The court considered these orders to be in the children's best interests and did not pose a risk of destabilising their current living arrangements. The court also made injunctions to protect the children from exposure to family violence and substance abuse.

In summary, the court found that it was not in the best interests of the children to spend time with Ms Parkmore, given the history of mistrust and hostility between her and the respondents. The court ordered that the children live with Ms Miglio and Mr J and that Ms Parkmore have limited contact with the children in the form of sending cards and gifts and obtaining school photographs.

Orders