Grandparents Provide Safe Haven for Children with Troubled Parents
Mitchell & Boyle (No 2) [2022] FedCFamC1F 798 (20 October 2022)
Despite their parents' criminal histories, drug abuse, and domestic violence, the children were placed in the care of their maternal grandparents in 2018 and have since thrived under their nurturing care. While the father claims to have taken steps to address his abusive behavior, the judge remains skeptical and has concerns about the safety of the children if they were to be placed back into his care.
Facts:
The parents of the children met in 2009 while living in a share house in NSW, and eventually moved to Tasmania where they had their children. Both parents have criminal histories, with the father having a more extensive one, and admit to long-term use of illicit substances. They also have mental health issues related to substance use, and the father has a history of family violence against former domestic partners and the mother.
In 2018, the children were placed in the care of the maternal grandparents by the Department of Communities Child Safety Services Tasmania. At the time, the father had been incarcerated for family violence against the mother, to which the children were exposed. After his release, there was a restraining order against him for the mother's protection. The mother and children were living with her new partner, who was a drug dealer, user, and a violent person.
The only alternatives considered practical and safe for the children by CSS were either entry into state care or placement with the maternal grandparents. The mother consented to the children being placed with the grandparents, who did not want the children placed in care. The grandparents have since cared for the children, and despite their difficult start in life, the evidence shows that the children have started to flourish in their care.
The paternal grandmother was not involved in these proceedings, and the applicants are referred to as "the grandparents" for simplicity. Nothing said in this judgement should be taken as a finding against the mother's new partner.
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”.
Analysis:
The father claims to have taken steps to address his abusive behavior, including completing courses on negotiation, conflict resolution, and domestic violence prevention, as well as undergoing drug and alcohol counseling. However, the judge is skeptical of the father's claims of sobriety, given evidence of public intoxication in early 2021 and an admission of drug use in mid-2022. The judge also notes that the father's past behavior, including making threats to kill the grandparents, suggests that he may continue to be a risk to the children's safety. The father’s proposal is inherently uncertain.
The father’s proposal does not include provision for a preliminary assessment of the children by a family therapist or psychologist to determine whether the supervised time is likely to cause the children trauma or is otherwise appropriate. The grandparents put their lives on hold to take the children. Instead of retiring and enjoying the fruits of their labours, the grandmother now plays the role of the mother to two young children who still have greater than usual needs, and the grandfather continues to work to meet the additional costs of having young children when he thought he would be retired.
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. The applicant maternal grandparents, Mr Mitchell born 1961, and Ms Walberg born 1961 (“the maternal grandparents”) have equal shared parental responsibility for the children. That parental responsibility is to the exclusion of the first respondent father Mr Boyle born 1985 (“the father”), and the second respondent Ms Mitchell born 1991 (“the mother”), who shall have no parental responsibility for the children.
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
