· 2023-03-31T12:08:08+0000 · 664 posts

Maternal Grandparents Granted Custody and Parental Responsibility of Children

Mitchell & Boyle (No 2) [2022] FedCFamC1F 798 (20 October 2022)

This case involves the placement of children in the care of maternal grandparents due to their parents' drug abuse, mental health issues, and history of family violence. The mother consented to the children being placed with the grandparents, who have provided a safe and nurturing environment for the children to thrive.

Facts:

The parents of the children have a history of drug abuse and mental health issues. In 2018, the children were placed in the care of the maternal grandparents by The Department of Communities Child Safety Services Tasmania due to their parents' separation, the father's incarceration for family violence, and the mother's new partner's involvement in drugs and violence. The mother consented to the children being placed with the grandparents, and since then, the children have started to flourish in their care.

The grandparents were advised of two options - either placing the children in State Care or with them. As the paternal grandmother was unable to assist, the mother consented to the children being placed with the grandparents. Although both parents have criminal histories and mental health issues, the children have thrived under the grandparents' care, despite their difficult start in life. The father has a history of family violence, and the mother's new partner was involved in drugs and violence, which led to the children being placed with the grandparents.

Issue:

The dispute raises three primary issues: whether the mother is still in a relationship with the father, whether the nature of the risk the mother poses is acceptable for supervised time, and whether the grandparents are sufficiently aware of the risks the mother poses to the children.

Applicable law:

In the Marriage of B and B [1993] FamCA 143; (1993) 16 FamLR 353 - the Full Court expressed concerns about “friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists” because they may “have an opinion” about “whether any risks exists” and “may therefore believe that close monitoring of the children is unnecessary.”

McCall & Clark (2009) 41 483 FLR - provides that no doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

Stott and Holgar and Anor [2017] FamCAFC 152 - wherein it was noted that "unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’"

Analysis:

The expert did not interview the children due to their reluctance to engage with her, but interviewed the grandparents and the father instead. The report writer remained concerned about the level of risk the father posed for the children and their mother due to his history of substance abuse and allegations of family violence. The report concludes that the maternal grandparents are capable and willing to place the children's needs first and it is in their best interest to remain in their care. The expert does not support any time spending between the father and the children due to the issues of concern about him.

The expert witness's opinion of the case was based on her knowledge of the father's lack of candor and his failure to accept responsibility for his actions, as well as the mother's history of mental health issues, substance abuse, and entering abusive relationships. The expert witness believed that the children suffered trauma due to their exposure to the father's family violence, and the grandfather testified that the children expressed fear and distress about having contact with their father. The grandfather also testified that they were waiting for funding for psychological treatment for the children, which the expert witness did not believe indicated a lack of need for such treatment. The expert witness rejected the notion that a child's ability to verbalize the effects of trauma was linked to the impact of the experience on the child.

Conclusion:

All previous parenting orders and injunctions made in these proceedings and in relation to X born 2012, and Y born 2015, together known as “the children” are discharged.

#Parenting

Case: Mitchell & Boyle (No 2) [2022] FedCFamC1F 798

Judgment of: SMITH J

Counsels:

Counsel for the Applicants: Mr Bateman

Solicitor for the Applicants: Swifte Law

Counsel for the First Respondent: Mr Fantin

Solicitor for the First Respondent: SCB Legal Pty Ltd

Counsel for the Second Respondent: Ms Kaiti

Solicitor for the Second Respondent: Inner West Solicitors Pty Ltd

Solicitor Advocate for the Independent Children’s Lawyer:
Ms Walberglackman

Solicitor for the Independent Children’s Lawyer:
Legal Aid NSW

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