Carell & Watters
[2023] FedCFamC1F 796
•14 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carell & Watters [2023] FedCFamC1F 796
File number(s): MLC 5513 of 2020 Judgment of: WILLIAMS J Date of judgment: 14 September 2023 Catchwords: FAMILY LAW – PARENTING – Ex tempore reasons – Where the applicant is deceased – Where the biological father made no appearance at the final hearing - Where the mother seeks orders for sole parental responsibility – Concerns about the mothers mental health and history of drug use – Consideration of the allocation of parental responsibility – With whom the children shall live with – Orders made for the mother to have sole parental responsibility and for the children to live with the mother Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA Cases cited: Banks and Banks [2015] FamCAFC 36. Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 14 September 2023 Place: Melbourne Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: The First Respondent appeared in person Counsel for the Second Respondent: The Second Respondent did not appear Counsel for the Third Respondent: The Third Respondent appeared in person Counsel for the Independent Children's Lawyer: Mr Culshaw Solicitor for the Independent Children's Lawyer: Culshaw Bishop Lawyers ORDERS
MLC 5513 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARELL (DECEASED)
Applicant
AND: MS WATTERS
First Respondent
MR SAGAL
Second Respondent
MR COWAN
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The first respondent, Ms Watters (“the mother”), have sole parental responsibility of the children, namely X born 2007 and Y born 2009 (“the children”).
3.The children live with the mother.
4.The mother continue to engage with her current counsellor, Ms B at C Health Services, or such other counsellor as may be recommended by Ms B.
5.The Independent Children’s Lawyer serve a copy of these orders on Child Protection.
6.The Independent Children’s Lawyer is discharged.
7.All extant applications are dismissed.
THE COURT NOTES THAT:
A.Counsel for the Independent Children’s Lawyer has assured the Court that the mother has provided clean drug screens including up to 2023. Copies of the clear drug screens will be forwarded to the Chambers of Justice Williams and placed on the court file.
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 Carell & Watters has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
The matter before the Court concerns the living arrangements of two children, X, born 2007, now aged 16, and Y, born 2009, now aged 14.
On 21 June 2022 the applicant, the maternal grandmother, Ms Carell, filed an Application for Final Orders in this Court seeking orders that the mother have sole parental responsibility for the children, and that the children live with the mother. She also sought orders that the children spend time with her, as agreed between the mother and herself, and that the children spend time with their stepfather, the third respondent, as agreed between the mother and the third respondent.
The respondents to the application filed by the maternal grandmother were the mother, Ms Watters (first respondent), the children’s biological father, Mr Sagal (second respondent), and the children’s stepfather, Mr Cowan (third respondent). The application of the maternal grandmother was served on all respondents, however, to date only the first and third respondent have participated in the proceedings.
The matter was listed before me for a Case Management Hearing on 15 February 2023, when usual procedural orders were made, anticipating a trial to commence on 2 June 2023. Orders were subsequently made on 18 April 2023 providing for the respondents to file trial material. On 11 May 2023 orders were made in chambers adjourning the Final Hearing of the matter until 14 September 2023.
On the date the matter was listed for trial, the mother appeared via Microsoft Teams, as did the third respondent, Mr Cowan. Most unfortunately the applicant, the maternal grandmother, passed away in 2023. Mr Sagal, the second respondent, has not participated in the matter, nor did he attend the trial.
On 14 September 2023, after hearing submissions from the mother and counsel for the Independent Children’s Lawyer, orders were made, as set out at the commencement of these reasons. These are my reasons for those orders.
Should the matter proceed undefended, as far as the second respondent is concerned?
The biological father, the second respondent, did not file any documents in the proceeding. He did not appear at any of the procedural hearings, nor did he appear at the Final Hearing.
On the morning of the trial, the second respondent was called at 11.05am and there was no response to the call. During the course of the trial, the mother said that Mr Sagal had not had any contact with the children except for half an hour in 2018 and on one other occasion since she was pregnant with the younger child, Y.
Mr Sagal did not attend for the Family Report which was prepared in June 2023. He has not shown any interest in the children, nor any interest in the proceedings and therefore I consider it appropriate that the matter should be finally determined in his absence. The children have been subject to tumultuous times as a result of their mother’s mental health and substance abuse problems, which are referred to later in these reasons, and the death of their maternal grandmother, and it is in the interests of the children that a final determination about their living arrangements is made without further delay.
The orders made were in terms of the recommendations of the Family Report and the orders sought by the mother in her Response to Final Orders, filed 12 September 2023, in reality, were the only available orders which could be made. In the circumstances, I am satisfied the orders should be made in the absence of the children’s biological father.
Issues in Dispute
The following issues were the subject of the proceeding:
(a)The allocation of parental responsibility for the children.
(b)Where the children should live.
BACKGROUND AND PROCEDURAL HISTORY
The mother is currently aged 42 years, and the third respondent is aged 45 years. The parties commenced a relationship in 2013 and separated in July 2018. The mother has four children with the second respondent: Ms E, born 2000, now aged 23; Ms F, born 2003, now aged 19; X born 2007 now aged 16 and Y born 2009 now aged 14. X and Y are the subject of these proceedings. In addition, the mother has two younger children from her relationship with the third respondent, Mr Cowan: G, born 2014, now aged 8; and H, born 2015, now aged 7. The younger children reside in the full-time care of Mr Cowan, in accordance with orders made by this Court in independent proceedings. There are no current spend time arrangements between the mother, G and H, and no sibling contact between the two younger children and X and Y.
X and Y currently reside in the full-time care of their mother, and have done so since September 2021, following a return to their mother’s care from the maternal grandmother. The children live in a three-bedroom home in the City D area and the children attend the local secondary college, a short distance from their home where, according to the mother, they are progressing well.
The mother was previously in employment but as of September 2023, is now currently engaged in full-time study to become a counsellor, which she anticipates will be completed by late 2024.
According to the mother, the children are well-settled at school, doing well and have an excellent relationship with the two older children who also live in the City D/Town J area.
The proceedings were commenced by the maternal grandmother in May 2020, when the children were residing in her care, following intervention from Child Protection. On 19 June 2020, orders were made which provided for the children to live with the maternal grandmother and for her to have parental responsibility for educational and medical matters. The children were returned to live with the mother as of September 2021, and prior to that the maternal grandmother had filed an application in the court, which is referred to earlier in these reasons, seeking that the children live with their mother and that she has sole parental responsibility.
Mr Cowan attended the Final Hearing; however, he did not seek any orders pertaining to the two children and there was no real alternative other than the children’s existing arrangements where they continue to live with their mother.
The relationship between the mother and Mr Cowan was tumultuous, to say the least. The mother alleges that the relationship was attended by significant domestic violence which she refers to in paragraphs 24 and 25 of her affidavit filed 12 September 2023. She asserts that the third respondent inflicted significant domestic violence on her and was controlling and coercive, both physically and in respect to the family finances.
The third respondent denies this and filed a short affidavit on 18 August 2023 denying the allegations, and a letter was forwarded, most irregularly, to my chambers the day prior to the hearing, again denying those allegations.
It is not necessary for the purpose of this proceeding for me to make any determination about the veracity of the allegations of domestic violence because it is apparent that the mother and the third respondent have no interaction and the mother does not have any relationship with the two younger children who are currently in the care of the third respondent.
In her trial affidavit the mother is candid and refers to the circumstances of the breakdown of her relationship with the third respondent. She details her circumstances from mid-2019 to early 2021 at paragraph 40, where she freely admits her life spiralled out of control in every aspect during that time and she had mental health issues and abused various substances from time to time. She was ultimately incarcerated in 2021 which she describes as a turning point in her life.
At paragraphs 41 to 49 of her affidavit, the mother details her circumstances since her release from custody in 2021, the offences she was charged with, the sentenced imposed by the Magistrates’ Court, including a Community Corrections Order, and involvement of Child Protection with the family. Ultimately, the Community Corrections Order was cancelled in 2022.
Prior to the cancellation of the Community Corrections Order, as referred to earlier, the maternal grandmother made an application to this Court seeking to return the children to the care of the mother, and indeed she did return the children to the mother’s care as from September 2021.
At paragraphs 58 to 67 of the mother’s affidavit, she refers to her current stable circumstances where she currently lives in a rental home in City D, her commencement of study, and the improvement of her mental health and substance abuse problems because she has engaged with substance abuse and family violence counselling as required by the Community Corrections Order. Annexed to the mother’s affidavit are various reports of her progress through the Community Corrections Order, which demonstrate she was compliant, well-engaged, and provided consistent and clear drug screens.
As to the circumstances of the children, at paragraphs 68 to 73 of her affidavit, the mother deposes to X completing year 9 this year, having transitioned back to full-time mainstream school after spending a period of time flexi-learning, and that she has settled quickly into her new school and is progressing well. She deposes that Y is completing year 7 at the same school which he loves attending, he is cheeky and funny but also empathetic and a peacemaker. She describes both children being engaged in extracurricular and sporting activities, and the children are thriving in her care and that they are a bonded family unit.
THE PROPOSAL OF THE PARTIES
The mother filed a Response to Final Orders on 12 September 2023 which was supported by an affidavit filed on the same date, which I have previously referred to. The orders sought by the mother are for the children to live with her and that she have sole parental responsibility for the children. The Independent Children’s Lawyers proposal was in accordance with the proposal of the mother. During the hearing, counsel for the Independent Children’s Lawyer submitted a Minute of Proposed Orders, and orders were ultimately made substantially in accordance with that proposal, save that the Court made a further order which was by consent of both the mother and counsel for the Independent Children’s Lawyer that the mother continue to engage with her drug and alcohol counsellor.
Mr Cowan, the third respondent did not file any Amended Response and confirmed during his attendance at the trial that he did not seek any orders in relation to X or Y.
The point of him filing an affidavit in August was to “set the record straight” from his perspective whereby he claimed he was a victim of domestic violence and not the mother, as claimed by her.
Both parties also relied upon a Family Report prepared by Court Child Expert, Ms K, which was dated 31 July 2023. The children, their mother and Mr Cowan all attended the Family Report. Ms K was not required for cross-examination, and I accept her report as unchallenged. Her recommendations are in accordance with the order sought by the mother and the Independent Children’s Lawyer.
THE LEGAL PRINCIPLES APPLICABLE TO PARENTING DISPUTES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence (s 60CC(2A)).
Abuse in relation to a child is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family for causes the family member to be fearful.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
As far as parental responsibility is concerned, s 61DA provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility. Where the presumption applies, s 65DAA requires the Court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practical.
An order for shared parental responsibility requires decisions about major long-term issues to be made jointly in consultation with the other person. In this case, the mother seeks an order for sole parental responsibility and the father seeks an order that the parents have equal shared parental responsibility.
In this matter I have had regard to the relevant sections of s 60CC(3) in reaching my decision, although I do not specifically refer to each consideration (Banks and Banks [2015] FamCAFC 36). The relevant sections, which are referred to in these reasons are s 60CC(3)(a),(b),(c)(f)(g)(i) and (j). The Family Report has been most helpful in terms of providing independent evidence to the Court to enable appropriate orders to be made.
The Family Report addresses the issue of risk posed to the children and, at paragraphs 27 to 32, discusses the risk of family violence. I am satisfied that the children are no longer at risk of family violence resulting from the relationship between their mother and the third respondent, as there is little engagement between the two parties at present, which has been the case since 2018 subsequent to separation. There are, of course, ongoing implications for the children of having been exposed to family violence, whether it was perpetrated against them or whether they witnessed the tumultuous and chaotic relationship between the mother and the third respondent.
At paragraphs 39 to 46, the Family Report addresses the issue of the mother’s vulnerability in terms of her previous drug use, which the mother claims was initiated by a previous partner, Mr L. The mother freely admits that she was addicted to an illegal substance and used it on a daily basis for a period of six months. She attempted to give it up but relapsed briefly before returning to sobriety. The mother claims to have lost two years based on her drug use, although the Family Report writer comments that the timelines provided by her were a bit inconsistent. In any event, the Family Report writer, at paragraph 40, opines that the mother presented as genuine when discussing her past drug use and her rehabilitation which arose from her incarceration in 2021. The mother claims she has not used drugs since that time, and the Annexures to her affidavit of her assessments during her Community Corrections Order confirm the mother’s assertions.
The mother has continued to attend regular drug and alcohol counselling and has attended a rehabilitation program. As of the mother’s compliance with court ordered drug screening, I was assured by counsel for the Independent Children’s Lawyer that the mother had complied with all drug screens which had been negative, and that those drug screens would be forwarded to my chambers.
As to the mother’s mental health, at paragraph 47 and 50 of the Family Report, the mother was again candid about her past struggles with mental health which she attributed to the circumstances she then faced. She considers her depression and PTSD resulted from her experiences of family violence with the third respondent and her subsequent partner, Mr L. She remains engaged with trauma counselling and the mother asserts, and I accept, that her mental health is currently well-managed.
The children were observed by the Family Report writer to display a close sibling relationship and they engaged in games and activities together whilst in the playroom. At paragraph 40, the Family Report writer refers to both children expressing some fatigue at the litigation process, indicating it had been going on too long, and both children expressing a desire for the matter to be resolved with a focus on moving forward.
The Family Report writer, at paragraph 62, observed that X engaged with her, was happy to separate from her brother and talk independently. She presented with maturity and emotional intelligence and given her age and state of development, her views should be considered and given weight. As to Y, he was observed to become tense and uptight when the topic of Mr Cowan was raised, and he had no desire to spend time with him. Both children did express sadness at no longer spending time with their younger siblings, G and H, but would like that to commence sometime in the future.
The overall evaluation of the Family Report writer was that there had been significant challenges faced by the children in their family situation, including disruption and upheaval caused by exposure to family violence, declining mental health, parental drug use, and separation from their siblings.
Both children have undoubtedly become vulnerable as a result of their past experience.
However, the mother’s engagement with rehabilitation and counselling programs appears to have brought some stability to the children’s lives and they both express a desire to continue to live with their mother in their current circumstances.
Overall, the Family Report writer’s recommendations are that the children should remain living with their mother, the mother have sole parental responsibility, and the mother should remain engaged with her current counsellors.
PARENTAL RESPONSIBILITY
The mother seeks an order for sole parental responsibility for the children on the basis that they live with her, and she will be the primary carer of both children.
As Mr Cowan does not seek any orders in relation to the children, there is obviously no alternative other than to make an order vesting parental responsibility in the mother, and I intend to make such an order.
These are the reasons for the orders made at the commencement of these reasons.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 19 September 2023
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