Bohr & Roper
[2022] FedCFamC1F 814
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bohr & Roper [2022] FedCFamC1F 814
File number: CAC 2466 of 2019 Judgment of: GILL J Date of judgment: 18 October 2022 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives – Consent orders – Where the eldest child (15 years) lives with the first respondent father and the two younger children (13 and 10) live with the applicant maternal grandmother – Where the parents of the three children in the matter have experienced challenges with drug use and addiction – In context where the mother is in a relationship with the third respondent father and has resisted relapse into drug use, despite his usage – Where the proceedings continued despite absence of third respondent father – Where the mother’s vulnerabilities are acknowledged –Discussion on the promotion of healthy sibling relationships as being in the best interests of the three children. Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 17 & 18 October 2022 Place: Canberra Counsel for the Applicant: Dr Leslie Solicitor for the Applicant: Jacqueline Gore & Associates Counsel for the First Respondent: Ms Gibbons Solicitor for the First Respondent: Simplicity Law Solicitor for the Second Respondent: Self-represented litigant Solicitor for the Third Respondent: Self-represented litigant (No appearance) Solicitor for the Fourth Respondent: Mr Hubert, Capon & Hubert Lawyers Solicitor for the Independent Children's Lawyer: Ms Cruise, Legal Aid, ACT ORDERS
CAC 2466 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOHR
Applicant
AND: MS ROPER
First Respondent
MR MARCEL
Second Respondent
MR SANDERSON (and another named in the Schedule)
Third Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
18 OCTOBER 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.All previous orders be discharged.
2.The Second Respondent Father have sole parental responsibility for X (born: 2007) (“X”).
3.The Applicant Maternal Grandmother shall have sole parental responsibility for Y (born: 2009) (“Y”).
4.The Applicant Maternal Grandmother shall have sole parental responsibility for the child, Z (born: 2012) (“Z”).
5.The Applicant Maternal Grandmother shall keep the First Respondent Mother informed of any major long-term decisions in relation to Y and Z.
6.The Applicant Maternal Grandmother shall keep the Second Respondent Father informed of any major long-term decisions in relation to Y.
7.The Applicant Maternal Grandmother shall keep the Fourth Respondent Paternal Grandparents of Z informed of any major long-term decisions in relation to Z.
8.The Second Respondent Father shall keep the First Respondent Mother informed of any major long-term decisions he makes in relation to X.
9.The Second Respondent Father will provide the First Respondent Mother by post with:
(a)any correspondence or documents he receives from or provides to the New South Wales Department of Education in respect of X’s educational progress; and
(b)information about any significant medical issues for X, including any hospitalisation.
Live with Arrangements
10.Y and Z shall live with the Applicant Maternal Grandmother.
11.X shall live with the Second Respondent Father.
Spend time Arrangements
Respondent Mother
12.Unless otherwise agreed between the Applicant Maternal Grandmother, the First Respondent Mother and the Second Respondent Father (in relation to Y), Y and Z will spend time with the First Respondent Mother supervised by the Applicant Maternal Grandmother once each week at such times and at such places as agreed between the Applicant Maternal Grandmother and First Respondent Mother.
13.That the Applicant Maternal Grandmother shall facilitate 2 (two) telephone calls between the First Respondent Mother and Y and Z each week.
14.The Applicant Maternal Grandmother will not allow the children to spend time with the First Respondent Mother if she reasonably suspects that the First Respondent Mother is affected by drugs or alcohol and shall immediately cease any time with the Mother if during the supervised time the mother acts in anyway which is not in the best interests of Y and Z.
Mr Sanderson (Third Respondent Father)
15.No party will allow the children to spend any time with Mr Sanderson unless it is supervised by a person agreed between the parties.
X and Applicant Grandmother
16.In the event X expresses a wish to spend time with or communicate with the Applicant Grandmother, the Second Respondent Father shall facilitate time, a telephone call or an audio visual call using face time or any alternate audio visual means.
X and her Mother
17.X shall spend time with the First Respondent Mother as follows:
(a)for not less than 1 hour per week at a time agreed, but failing agreement, each Saturday from 2:00 pm to 3:00 pm; and
(b)with that time to be supervised by the Second Respondent Father unless otherwise agreed between the First Respondent Mother and Second Respondent Father.
18.X shall communicate with the First Respondent Mother as follows:
(a)via telephone or FaceTime each Tuesday between 5:30 pm and 6:30 pm or such other times as may be agreed; and
(b)with the call to be supervised by the Second Respondent Father.
Y and Second Respondent Father
19.That in accordance with her wishes, Y is to spend time with the Second Respondent Father as agreed between the Applicant Grandmother and the Second Respondent Father, and the Applicant Grandmother will use her best endeavours to encourage Y to spend time with her father as follow:
(a)During school terms for a block of 4 (four) nights each fortnight, each alternate weekend (being the same weekend that Z is with her paternal grandmother) from after school or 3:00 pm on the Thursday to before school or 9:00 am the following Monday (or 4:00 pm if a public holiday); and
(b)During Term 1, 2, 3 and 4 school holidays, during the same week that Z is with her paternal grandmother, Y shall spend time of no more than 1 (one) week of 7 (seven) days with the Second Respondent Father (extending her Thursday to Monday with him to Monday to Monday).
Z and Fourth Respondent - Paternal Grandmother
20.Z is to spend time with the Fourth Respondent Paternal Grandmother as agreed between the Applicant Grandmother and the Fourth Respondent Paternal Grandmother but failing agreement as follows:
(a)for a block of 4 (four) nights each fortnight, each alternate weekend (being the same weekend that Y may spend time with the Second Respondent Father) from after school or 3:00 pm on the Thursday to before school or 9:00 am the following Monday (or 4:00 pm if a public holiday).
(b)During Term 1, 2, 3 and 4 school holidays Z shall spend a week with the Paternal Grandmother (extending her Thursday to Monday with her to Monday to Monday).
21.Unless otherwise agreed between the relevant parties, changeover for the purpose of these Orders will occur at the home of the Applicant Maternal Grandmother.
22.If any of the children express a wish to spend time or communicate with any of their siblings, the party to whom this is communicated will notify the relevant other parties and each party will use their best endeavours to facilitate the children spending time together in accordance with their wishes.
23.That the Second Respondent Father will strongly encourage X to spend time with her sisters and the Mother at the Fourth Respondent’s house from 1:00 pm to 3:00 pm each alternative Sunday when the children Z and Y are in the Fourth Respondent’s care.
24.Notwithstanding any other Order, any of the children wish to have telephone communication with any party at their request, the party with whom the children are spending time will facilitate that communication as requested.
Other
25.The First Respondent Mother is restrained from using alcohol or illegal drugs up to 24 hours prior to spending time with the children, and from being affected by alcohol or illegal drugs during her time with the children.
26.All parties are restrained from drinking alcohol to excess or being affected by alcohol or illegal drugs during their time with the children.
27.The Applicant Grandmother, First Respondent Mother, Second Respondent Father and Fourth Respondent Paternal Grandmother shall keep each other updated with current telephone contact details and residential addresses within 24 hours of any change.
28.The Applicant Grandmother, First Respondent Mother, Second Respondent Father and Fourth Respondent Paternal Grandmother will notify the others of any emergency arising while the child/ren are in his or her care.
29.The Applicant Grandmother, First Respondent Mother, Second Respondent Father and Fourth Respondent Paternal Grandmother shall at all times act in a civil manner towards each other.
30.The Applicant Grandmother, First Respondent Mother, Second Respondent Father and Fourth Respondent Paternal Grandmother their servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and,
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
31.The Applicant Grandmother will inform the Second Respondent Father if Y is spending extended overnight time with family or friends.
32.The Applicant Grandmother, First Respondent Mother, Second Respondent Father and Fourth Respondent Paternal Grandmother shall keep the other informed of:
(a)The name and contact details for each of the children’s doctors, health care and other treatment providers; and,
(b)Any medical condition, significant illness, medical emergency or other significant health condition suffered by the children.
33.Upon provision of these Orders to the Principal or Co-ordinator of any educational facilities or third party providing extracurricular activities in which the child Y is enrolled, the relevant individual or body are hereby authorised and empowered by this Order to provide the Second Respondent Father with any information about Y’s progress and related activities.
34.Upon provision of these Orders to all treating medical practitioners and allied health providers of the child Y, the practitioners or providers are hereby authorised and empowered by this Order to provide to the Second Respondent Father all medical history, information, reports, diagnosis and any other relevant information about the child's welfare, development and progress.
Counselling
35.The Applicant Grandmother and Second Respondent Father will provide all necessary consents for Y to attend upon Dr B or such other agreed psychologist (“the psychologist”) for the purposes of counselling to assist the Second Respondent Father and Y in improving their relationship. The Applicant Grandmother and Second Respondent Father will consider any recommendations made by Dr B as to the form, duration and regularity of such therapy.
36.For the purposes of Order 35, the following shall apply:
(a)The Applicant Grandmother will arrange for Y to attend upon her General Practitioner to obtain a mental health care plan;
(b)The Applicant Grandmother will pay for any out of pocket expenses which are related to her own attendance with the psychologist;
(c)The Second Respondent Father will pay for any out of pocket expenses which are related to his own attendance with the psychologist;
(d)The Applicant Grandmother and Second Respondent Father will share equally in any out of pocket expenses which are related to Y’s attendance on the psychologist.
(e)In the event that X expresses a wish to engage in a therapeutic process, with Dr B or any other provider, the Second Respondent Father will use his best endeavours to facilitate X engaging in such therapy.
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 the pseudonym Bohr & Roper has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J:
These proceedings concern the parenting arrangements for X, who is 15 (who is the child of Mr Marcel and Ms Roper), for Y, who is aged 13 (who is also the child of Mr Marcel and Ms Roper), and for Z, who is aged 10 (who is the child of Mr Sanderson and Ms Roper). X lives with Mr Marcel. Y and Z live with Ms Bohr, who is the maternal grandmother and the mother of Ms Roper. Although Mr Sanderson has absented himself in the proceedings and the proceedings are being conducted on an undefended basis in respect of him, his mother, the paternal grandmother of Z, Ms Sanderson, is a party who seeks orders that Z spend time with her.
The issues in this case in determining the best interests of each child centre on the primary considerations and issues of protection of the children from harm, and the benefits of a meaningful relationship with their parents. It also centres on the nature of their relationships with other important persons, and each of the litigant’s capacity to care for the children. Of central importance to the proceedings is the evidence that shows that each of the three parents have struggled with drug use and addiction. It has included issues with the consumption of prohibited substances, though not necessarily each of those drugs or each of the litigants at the same time.
Addictions to those drugs can cause serious impacts on the capacity of the parents to care for their children, and have done so in this case. Such addictions carry with them the potential to make a person inconsistent in the way that they parent, creating uncertainty in the children as to how they might rely on the parent, can exacerbate poor judgment and cause the exposure of children to poor circumstances. At present, those histories of addiction carry with them a latent risk of harm to the children in each parent’s care. However, here the two parents who are currently involved in the litigation, each appear to be in recovery.
For the father who has, in great detail, set down the struggles that he has had with addiction and has set them out in greater detail, including his relapse history, than the mother has, his recovery seems to be, presently, a longer duration than that of the mother and not as precarious. The mother too is working hard at her recovery. She, however, appears at present to be in a relationship with Mr Sanderson who, on her concession, appears to be abusing prohibited substances. Very much to the mother’s credit is that she has resisted a lapse into prohibited substances, which are so destructive for a person. Her resistance speaks to some fortitude on her part in pursuing her recovery. But, it also places her in a position of great vulnerability for relapse, a matter which I imagine, given her previous experience in dealing with relapse and recovery, is something that if she reflects upon, she will probably realise for herself.
Both of the parents seem to be in recovery, but as I said, for the father that has progressed further than it has as yet for the mother. I hope for the father and the mother and all the litigants, and each of the children in this case, that each of them is able to continue to pursue their recovery, because it is by that recovery, that they will be able to act in the best interests of their children and provide the children with the greatest love and care. The father does not, at present, pose an unacceptable risk.
The instability in the mother’s circumstances, not only in respect of prospects for relapse but also the concerns raised from previous violence that has been inflicted upon her and to which the children have been exposed by her current partner, Mr Sanderson, does pose some risks, such as not to yet allow immediately unsupervised time. The proposal set forward in the, I will call them “consent terms”, provide that X would live with the father where she currently lives, and that her relationship with her mother would be mediated in the first instance by the father.
Very much to their credit the mother and the father, despite the difficulties that they have had in their relationship, can see a way forward to X having an ongoing relationship with the mother, initially supervised by the father, but, clearly on the terms that have been set out before me, with the prospect that that supervision will be set aside when the parents can agree that there is no longer such a risk as to mean that the supervision should continue. Sadly, although X has previously lived with Ms Bohr, there is currently a rift in that relationship for reasons that are certainly not apparent to me on the evidence that is before me.
The mother’s relationships with Y and Z will be mediated via supervision from her mother, Ms Bohr, and, again, despite the difficulties that have been in the history of Ms Bohr and Ms Roper, it was very much to their credit and to the benefit of the children that they are prepared to cooperate in doing that and that each of the parties envisages, potentially, there being a time when the supervision will no longer be required and the parties would be able to see that for themselves and agree on that, such that there might be a more open relationship between the mother and each of the three children.
There is currently a rift in the relationship between Y and Mr Marcel. As I remarked yesterday, it is important for the three children to maximise the involvement of caring adults in each of their lives. Where in particular the parents have struggled in their availability to the children over time and have their own vulnerabilities, the availability of other parents is one of the factors which will assist these children to be able to navigate any hiccups that the other parent might have in their lives. And so, it is a matter of some importance that the relationship between Y and Mr Marcel is repaired.
Noting, however, the uncertainties that accompany that and Y’s age, the parties have agreed on an unusual but appropriate mechanism, which is a mechanism which calls for the encouragement, on the part of Ms Bohr, for Y to spend time with her father. A similar arrangement has been proposed by all of the parties, except for the mother in respect of X, in spending time with the mother and her siblings. There are difficulties in the relationship between X and Y, at least it seems, although it is not clear how consistent those difficulties might be.
It is well understood that often the longest relationships that a person has in their lives are with their siblings. Siblings, hopefully, in the normal course of events, outline parents to provide company and support to another sibling throughout that sibling’s life, and so it is a matter of some importance that X and Z and Y are able to repair any damage in their relationship and enjoy a relationship together.
The mother sought that the orders, which provide for an obligation cast upon the father to encourage X to spend time with the mother and Y and Z, be firmed up to a positive obligation that X attend. That position was ameliorated somewhat by counsel who acknowledged that if X chose not to attend, that would be an end of the matter. Again, while it is an unusual approach to the matter, it is also unusual that a child of X’s age should be the subject matter of litigation.
Respecting X’s age, and the maturity that seems to be developing in X, and seen in the material provided to the Court, for example, in the home-schooling records that have been provided for X, it is the case, where X has previously expressed extreme resistance and police have had to be involved to ensure that she is kept safe in the care of her father, that to impose orders, which cast an obligation on the father to make her go, despite amelioration described by counsel for the mother, is a step too far. In respecting X’s age and level of maturity, the best that can be done to foster those sibling relationships is to cast what remains a heavy burden on the father which is an obligation upon him to encourage X to attend on her sisters and her mother.
If the father is successful in making that encouragement, then it is a matter that is likely to do X and Y and Z good into the long-term future. It seems to me that casting the obligation upon him to encourage is the highest obligation that I can reach that be cast upon him, given X’s age. The orders provide for Z, in particular, to have regular time with her paternal grandparents, and it is one of the strong features of this case as being the cooperation between Ms Bohr and the paternal grandmother. That cooperation, again, is very much in Z’s best interests.
On the whole, examining what has been very carefully thought out and crafted orders that reflect the various levels of maturity of the children, the various difficulties of each of the parents, the various and personal difficulties faced by the parties in the case, the estranged relationships between the siblings, the difficulties in the relationships between each of the children and some of the parents, the orders that have been proposed by the parties reflect the best interests of each of the children accordingly.
I make orders in accordance with exhibit C3.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 18 October 2022
SCHEDULE OF PARTIES
CAC 2466 of 2019 Respondents
Fourth Respondent:
MS SANDERSON
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