Boardman & Labarge
[2021] FedCFamC2F 356
•3 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Boardman & Labarge [2021] FedCFamC2F 356
File number: MLC 4232 of 2018 Judgment of: JUDGE O'SHANNESSY Date of judgment: 3 November 2021 Catchwords: FAMILY LAW – final parenting – undefended – where applicant maternal grandmother discontinued - where respondent father and respondent mother do not attend – where orders are by consent of paternal grandparents and independent children’s lawyer – parental responsibility – live with arrangements – spend time arrangements – chaos of unilaterally changing longstanding arrangements. Legislation: Family Law Act 1975 (Cth), ss 4, 60CA, 60CC, 65DAA, 65DAC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 10.13
Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 3 November 2021 Place: Melbourne The Applicant: Discontinued Solicitor for the First Respondents: Ben Von Einem & Associates The Second Respondent: No Appearance Counsel for the Third Respondent: Mr D McGann (withdrew) Solicitor for the Third Respondent: Peter Baker & Associates (withdrew) Counsel for the Independent Children's Lawyer: Mr D Goddard Solicitor for the Independent Children's Lawyer: Ebejer & Associates ORDERS
MLC 4232 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BOARDMAN (DISCONTINUED)
Applicant
AND: MR AND MS LABARGE
First Respondents
MR D LABARGE
Second Respondent
MS C BOARDMAN
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
3 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The solicitor for the Third Respondent and counsel retained for the final hearing be at liberty to withdraw and the solicitor for the Third Respondent do all acts and things to ensure a copy of these orders are provided to the Third Respondent.
2.All previous orders are discharged.
3.MR LABARGE and MS LABARGE (“the paternal grandparents”) have sole parental responsibility for all health and education issues relating to the children X born in 2007, Y born in 2011 and Z born in 2012 ("the children") and that otherwise the parents and the paternal grandparents have shared parental responsibility, and when the paternal grandparents are required to make a decision of a long-term nature about health or education, except in the case of emergency, the paternal grandparents:
(a)Inform the parents in a timely manner of their proposed decision;
(b)Consider any input from the parents in a timely manner in relation to the proposed decision;
(c)Make their decision in a timely manner; and
(d)Advise the parents of that decision, with the paternal grandparents to have the ultimate decision.
4.Y, X and Z live with the paternal grandparents.
5.Y, X and Z spend time with the Second Respondent Father;
(a)At any time as agreed between the paternal grandparents and the Second Respondent Father;
(b)With that time to be supervised by either or both paternal grandparents.
6.Y, X and Z spend time with the Third Respondent Mother;
(a)At any time as agreed between the paternal grandparents and the Third Respondent Mother, and failing agreement once per month on a Sunday from 10am until 1pm;
(b)With that time to be supervised by either or both paternal grandparents, or alternatively under professional supervision by a service as nominated by the Third Respondent Mother, with the costs of such supervision to be borne by the Third Respondent Mother; and
(c)In the event it is required, the paternal grandparents and Third Respondent Mother shall forthwith do all acts and things to enrol and undertake intake at the nominated professional contact service.
7.The Second Respondent Father and the Third Respondent Mother be and are hereby restrained from consuming drugs and/or alcohol in the 24 hour period prior to spending time with the children, or during any time spent with the children.
8.The Second Respondent Father and the Third Respondent Mother be and are hereby restrained from living in the same residence as the children.
9.Y, X and Z be at liberty to communicate with their sister B as follows:
(a)By telephone at all reasonable times and the paternal grandparents shall provide Y, X and Z with privacy during the telephone calls;
(b)By Messenger, Facebook, Snapchat, Skype, or other similar electronic communication at all reasonable times; and
(c)Y, X and Z shall be entitled to speak to B freely and without interruption or interference.
10.Y, X and Z be at liberty to spend time with their sister B as follows:
(a)While Z is under 12 years of age, at any reasonable time at the home of the paternal grandparents and or otherwise any other place as agreed between B and the paternal grandparents; and
(b)Once Z attains 12 years of age and is able to meet B in a public venue without the supervision of an adult, at any reasonable time.
11.Each of the parties, their servants and agents be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party, and discussing these proceedings with or in the presence or hearing of the children or permitting any other person to do so.
12.The appointment of the Independent Children's Lawyer be discharged.
AND THE COURT NOTES THAT:
A.The maternal grandmother MS BOARDMAN discontinued with her application and therefore is no longer a party to these proceedings.
B.The child B born in 2004 shall live with the maternal grandmother until such time she wishes to return to the home of the paternal grandparents. The parties are not seeking any orders with respect to B.
C.The Independent Children's Lawyer intends on speaking with B, Y, X and Z about the meaning of these orders.
D.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym Boardman & Labarge has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are undefended proceedings concerning the four children, B, X, Y and Z (‘the children’). B is 16; X is 14; Y is 10 and Z is 8. The children have, since sometime in 2015, lived with their father's parents, that is their paternal grandparents, Mr and Ms Labarge (‘the Paternal Grandparents’), in City E and until January of 2021 were settled in their care. The father, Mr D Labarge (‘the Father’) and the mother Ms C Boardman (‘the Mother’) have had problems with substance abuse in the past and it is unclear to me the extent to which those problems continue. There have been points when the father's circumstances pointed towards some rehabilitation. Similarly, for the mother there have been circumstances that pointed towards her rehabilitation including full-time employment.
The first issue I must determine is whether I should proceed undefended in the sense that the Father is not present today and the Mother, had previously appeared by her solicitor a number of the times. The matter has been heard before me on 5 October 2020, 21 January 2021, 11 February 2021 and then on 15 October 2021 for a compliance mention before the final hearing listed 3 November 2021.
On a number of occasions since the matter came before me urgently in January 2021 the Father has appeared by video link from his motor car, and the Mother has appeared by solicitor. The Father appeared before me when the matter was last before me for compliance mention on 15 October 2021. At that time the Father indicated that he was likely to agree with orders proposed by the Independent Children’s Lawyer (‘the ICL’) and his parents.
The Mother's solicitor indicated there were aspects of what he understood to be the orders sought by the ICL that the Mother disagreed with. I find that both parents have had every opportunity to participate in the proceedings should they wish. I say that in the sense of every opportunity in that they have physically had the opportunity to attend. I do not underestimate how difficult it can be for someone who has a substance abuse disorder, with all the chaos that that adds to their life, to participate in proceedings. That is it might turn out to be very difficult to manage. Nonetheless, it is in these children's interests that this Court proceeding be finalised.
Proceedings commenced on 27 April 2018 when the maternal grandmother Ms Boardman (‘the Maternal Grandmother’) filed proceedings seeking orders relating to school holiday time with the children. The geography of the case at that time was the Maternal Grandmother lived in the Victorian town of Town F and the Paternal Grandparents lived in City E. At that time the four children had lived with the Paternal Grandparents in City E for roughly three or so years and pursuant to final orders made on 20 November 2015. Interim orders were made on 29 May 2018. There was, on the face of it, when I called the matter over in October 2020, not much in dispute between the parties.
At that time the Mother was living with her mother in Town F and in full-time employment, and during school holidays the children were moving between the Town F household and the City E household. The Father of the children was keeping in touch with the children by seeing the children at his parent's home and supervised by them. The child B went to live with her grandmother in November 2020. The Mother and her mother had some significant conflict and the police attended at the end of November. On or around 19 December 2020 the Mother was arrested following allegations of criminal behaviour against her in Town F and she remained in custody until 30 December 2020. The Maternal Grandmother then issued proceedings seeking that B live with her.
The four children were then with the Maternal Grandmother in Town F over the Christmas school holidays of 2020 and 2021. On or about 5 January 2021, instead of returning those children as had been agreed, the Maternal Grandmother overheld the children. The Maternal Grandmother put forward, as part of the overholding basis, a concern that the children were being brought into contact with their Mother and/or their Father, and that they were exposed to severe discipline in the home of the Paternal Grandparents. The Maternal Grandmother had taken the children to the local GP in Town F, Dr G (‘Dr G’) who became involved in the proceedings and wrote a report that indicated significant concern based upon what he was told in regard to the children's welfare. It was not so much a report as a discharge summary.
I called Dr G to give viva voce evidence upon merely a couple of hours' notice in February 2021. Dr G's evidence was helpful to me and it showed a very kind and caring GP who had been placed in the position of having to act on information where he was provided with one side of the story. The Paternal Grandparents filed an application for a recovery order. I determined that the three younger children should return to live with their Paternal Grandparents in City E until further order, and that B should remain living in Town F. B, I am told and I accept, attended year 12 in Town F this year. B shares an interest in sports with her Maternal Grandmother, who is a very accomplished sportswoman.
The events of 19 December 2020 continue to playout in the Mother's life and she has been charged with various criminal acts and committed for trial in the County Court of Victoria. I am told, and I accept, those proceedings are listed for mention in February 2022. The Mother appeared by counsel this morning, instructed by the Mother's solicitor, and sought to be released from the proceedings on the basis that neither counsel, despite repeated phone calls to the Mother, nor the Mother's solicitor had been able to have any contact with the Mother. The Mother's solicitor last had contact with his client on 14 October 2021, shortly before the matter was before me for compliance check.
In all of those circumstances, I know that the ICL has undertaken significant work to try and broker an agreement in accordance with common sense and the children's best interests for the purpose of these proceedings. The orders that the ICL seeks are agreed to and consented to by the Paternal Grandparents. Their son (the Father) does not oppose those orders and almost completely consents, but not completely, and given his equivocation that I am told about by Mr Goddard, I do not propose to treat him as having consented to the orders, but I am proceeding to make them on an undefended basis. The Mother is unable, or unwilling, to participate in the proceedings this day.
The further matters I should note is that there was a family report undertaken in this matter on 12 March 2021. The recommendations from that report were:
Recommendations
187.It is recommended that Mr and Mrs Labarge have sole parental responsibility for the children.
188.It is recommended that Y, X and Z live with Mr and Mrs Labarge.
189.It is recommended that B live with Ms Boardman until such time she wishes to return to the home of Mr and Mrs Labarge.
190.It is recommended that Y, X and Z spend supervised time with Mr D Labarge and Ms C Boardman.
191.It is recommended that Mr D Labarge and Ms C Boardman be restrained from living at the same address as the children.
192.It is recommended that the ICL explain to the children the reason for Ms Boardman previously retaining the children.
193.It is recommended that Y, X and Z spend a minimum of three nights of each school holiday with Ms Boardman.
194.It is recommended that if Ms Boardman again retains the children, that the time with Y, X and Z be withdrawn.
195.It is recommended that Y, X and Z have liberal telephone contact with B.
196.It is recommended that B have liberal face to face contact with Y, X and Z at the home of Mr and Mrs Labarge until Z is 12 years of age and is able to meet B in a public venue without the supervision of an adult.
I note that at the time of the family report interviews the three younger children had only recently been returned to the care of the Paternal Grandparents. I accepted, when I dealt with the matter previously, that the maternal grandmother's concerns were genuine. However, this case is an example of the chaos that can be added to children's lives when parties, however well meaning, unilaterally determine to interfere with longstanding and established living arrangements.
The ICL has spoken to the children again quite recently and also to B. B really wants to see her younger siblings and the younger siblings want to see and connect with B. The ICL has told B that she will need to contact the paternal grandparents herself to make those arrangements. Mr Epstein, solicitor for the Paternal Grandparents, tells me, and I accept, that his clients very much would like B to spend time with her siblings and I also note that they had, for sometime when communication was better between Town F and City E, gone out of their way to ensure that that time occurred. The tragedy of this family is that B is not spending any time with her siblings at this time.
The ICL proposed and the Paternal Grandparents would have consented to an order for sole parental responsibility. Following discussion with me today, counsel for the ICL and the solicitor for the Paternal Grandparents agreed to my suggestion that the Paternal Grandparents have sole parental responsibility for all and any aspect relating to the health and education and future education of the three younger children. No party this day, or in these proceedings any longer, seeks any orders in regard to B and I should indicate that the Maternal Grandmother filed a Notice of Discontinuance in January 2021 shortly after I made the decision that the three younger children be returned.
The definition of major long term issues in section 4 of the Family Law Act 1975 (Cth) (‘the Act’) is:
“major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Because the suite of powers that sole parental responsibility covers, I find it unnecessary and not in the children's interests to unintentionally handover such a wide parental responsibility as would be envisaged by that simple order, and I note that the Paternal Grandparents, in substance, seek to be able to deal with the children's health and education, and have no intention of entering into any of the other matters that sole parental responsibility may include. The Paternal Grandparents and the ICL told me, and I accept, they consent to the orders as proposed by me in regard to sole parental responsibility and I insert that order in place of order 2 of the ICLs minute.
I also note and commend the ICL for undertaking to speak to each of the children and to B to explain these orders. So I will otherwise make orders in terms of the ICLs minute. The scheme of those orders is that the three younger children will live with the Paternal Grandparents and that each of the parents will spend time and communicate with the children, as in the Father's case, as agreed between the Father and his parents.
In regard to the Mother, the Mother will spend such supervised time as she and the Paternal Grandparents can arrange, and that the children will otherwise live with the Paternal Grandparents. I will include in the orders the notation that relates to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which highlights the ability of a party to apply to set aside these orders in the event that there is some catastrophe which prevented them from being present. I will make those orders with that note, which will be a notation D.
I also find that one of the reasons that sole parental responsibility for health and education is required, and in the children's best interests, is the impracticality and well-nigh impossibility of compliance with section 65DAC which requires consultation about these matters beforehand.
Section 60CA of the Act states:
60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act states:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Note:Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(ii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 65DAA of the Act states:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
(6) If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note:Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.
Section 65DAC of the Act states:
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
In all the circumstances, the orders now proposed by the ICL and the Paternal Grandparents are in the children’s best interest and I make those orders.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 16 November 2021
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