FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carlier & Botrel [2025] FedCFamC2F 398
File number(s):
DGC 2238 of 2022
Judgment of:
JUDGE O'SHANNESSY
Date of judgment:
28 March 2025
Catchwords:
FAMILY LAW – Parenting – Live with and spend time arrangements for children – Where children’s mother passed away several years ago – Where children lived with the maternal grandparents following the death of their mother – Where father was denied spend time with the children following their mother’s death – Father and maternal grandparents each seeking orders that children live in their household and spend once monthly weekend time in the other household – Father and maternal grandparents separated by significant distance – Maternal grandparents demonstrate restrained antipathy towards father – Maternal grandparents and ICL concerned with father’s mental health and substance use – Maternal grandparents and ICL concerned with father’s intimate partner family violence against mother and against previous partners – Father not found to be a significant risk to safety of children – Significant grief and loss felt by children following death of their mother – Importance of children’s connection to their mother through their grandparents – Where children should not have to suffer further loss of leaving grandparents’ care – Geography not determinative of best interests – Orders for children to live with grandparents and spend time with father.
Legislation:
Evidence Act 1995 (Cth) ss 140
Family Law Act 1975 (Cth) ss 4AB, ss 43, ss 60B, ss 60CA, ss 60CC, ss 60CF, ss 60CG & ss 61DAA
Cases cited:
Adamson & Adamson (2014) FLC 93-622
Avonlea & Daxton [2023] FedCFamC2F 1377
Blass & Blass (2022) FLC ¶94-085; [2022] FedCFamC1A 63
Fox & Percy (2003) 214 CLR 118
Radecki & Radecki [2024] FedCFamC1A 246.
Division:
Division 2 Family Law
Number of paragraphs:
178
Date of hearing:
19 – 23 August 2024
Place:
Melbourne
Counsel for the Applicant:
Ms Byrnes
Solicitor for the Applicant:
Wards Barristers and Solicitors
Counsel for the Respondents:
Mr Gates
Solicitor for the Respondents:
Gordon Legal
Counsel for the Independent Children's Lawyer:
Ms Hutchings
Solicitor for the Independent Children's Lawyer:
Victoria Legal Aid
ORDERS
DGC 2238 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARLIER
Applicant
AND: MS BOTREL
First Respondent
MR BOTREL
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.That upon the start of school term in 2025, all previous Parenting Orders be and are hereby discharged.
2.The Respondent Grandparents, MS BOTREL and MR BOTREL (‘the Grandparents’) have parental responsibility for the children X born in 2012 and Y born in 2017 (‘the Children’) and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) affecting the children.
3.In respect of the making of long-term decisions the Grandparents shall:
(a)Advise the Applicant Father, MR CARLIER…
Continue reading Carlier & Botrel
Sign in free to access the full text
- AGLC
- Carlier & Botrel [2025] FedCFamC2F 398
- Case
- [2025] FedCFamC2F 398
- Decision Date
CaseChat Overview and Summary
The court held that the children should not suffer further loss by leaving their current care with their grandparents. The court also held that the best interests of the children were not determined by geography alone, and that the children's connection to their mother through their grandparents was important. The court found that Mr Carlier was not a significant risk to the safety of the children. The court therefore ordered that the children live with their grandparents and spend time with Mr Carlier according to a detailed schedule set out in the orders.
The court also made orders regarding decision-making authority, communication between the parties, health information, education, and other matters. The court restrained the parties from engaging in certain behaviours, such as denigrating each other or exposing the children to family violence. The court also ordered that Mr Carlier undergo drug testing once a year at the grandparents' expense. The court dismissed all other applications and removed the matter from the list of cases awaiting judicial determination.
Orders
Orders of the court
DGC 2238 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR CARLIER
Applicant
AND:
MS BOTREL
First Respondent
MR BOTREL
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1. That upon the start of school term in 2025, all previous Parenting Orders be and are hereby discharged.
2. The Respondent Grandparents, MS BOTREL and MR BOTREL (‘the Grandparents’) have parental responsibility for the children X born in 2012 and Y born in 2017 (‘the Children’) and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) affecting the children.
3. In respect of the making of long-term decisions the Grandparents shall:
(a) Advise the Applicant Father, MR CARLIER (‘the Father’), of their proposal, allowing at least 28 days before a decision has to be made (except in the case of a health emergency); and
(b) When the Father offers a timely response, consider it; and
(c) Notify the Father of their decision.
4. The children live with the Grandparents.
School Term arrangements
5. The children spend time and communicate with the Father during all school terms as follows:
(a) By way of phone calls or FaceTime as agreed between the parties, and failing agreement, each Wednesday between 5.00pm and 5.30pm with the Father to initiate the phone call and the Grandparents to do all things reasonably necessary to facilitate the call;
(b) In a four-weekly cycle, and in the same rotation as in place since 23 August 2024 as follows:
(i) From 6.00pm on Friday until 4.00pm on Sunday in week one of the four-week cycle; and
(ii) Unless the Father has advised the Grandparents by no later than the preceding Thursday at 5.30 pm that he will not have the children on the weekend following that Thursday, then in week three of the four-week cycle from the conclusion of school on Friday or, at Mr Carlier’s election, from 6.00 pm on Friday, until 4.00 pm on Sunday.
School holiday arrangements
6. Notwithstanding any other provision in these orders, the children will spend time with the Grandparents and the Father during school term holiday periods as agreed between them in writing, and in default of agreement, as follows:
(a) If the children are in the Father’s care on the last week of the long summer school holiday period, he return the children to the Grandparents at 1.00pm on the last day of the school holidays immediately before the children return to school for Term 1 of the new school year;
(b) During all school holidays the children’s time with the Father shall be suspended but resume in the same pattern and rotation during the following school term as if the school holidays had not intervened.
School term holidays
(c) During all school term holidays, at times to be agreed between the parties in writing, and failing agreement as follows:
(i) With the Grandparents from the conclusion of school on the last day of school term until 4.00pm on the first middle Saturday;
(ii) With the Father from 4.00pm on the first Wednesday until 4.00pm on the final Sunday of the holidays before the children return to school the next school term.
Long Summer Holidays
(d) During all long summer holidays:
(i) With the Father from the conclusion of school until 1.00pm on 26 December in odd numbered years and on 24 December in even numbered years (such time to incorporate Christmas Eve and Christmas Day with the children remaining in the Father’s care);
(ii) With the Grandparents from 1.00pm on 26 December in odd numbered years and 24 December in even numbered years until 4.00pm on 2 January;
(iii) With the Father from 4.00pm on 2 January until 4.00pm on 23 January;
(iv) With the Grandparents from 4.00pm on 23 January until the children return to school for the start of Term 1.
7. For the sake of clarity:
(a) If there are any curriculum day(s) on either side of a school holiday period, the curriculum day(s) will form part of the school holiday period.
(b) The living arrangements pursuant to Order 4(b) hereof will resume after each school holiday periods as if the holiday period had not intervened.
Special Occasions
8. Notwithstanding the arrangements for the children set out above, the children shall spend time and/or communicate with the Father on the following special occasions provided the children are not already in his care pursuant to these Orders:
(a) On the Father’s Day weekend from the conclusion of school Friday to 4.00pm Sunday;
(b) On the Easter weekend in all even numbered years at times to be agreed between the parties, and in default of agreement, from 4.00pm Good Friday to 2.00pm Easter Sunday;
(c) On each of the children’s birthdays by telephone or FaceTime at times agreed between the parties, and in default of agreement, from 5.00pm to 5.30pm.
(d) On the Father’s birthday by telephone or FaceTime at times agreed between the parties, and in default of agreement, from 5.00pm to 5.30pm.
Drug Testing
9. The Grandparents be at liberty to request the Father by email to undertake a hair follicle test for drug testing purposes (‘the testing’) on one occasion in each calendar year at the Grandparents expense.
10. Within 14 days of receiving the request the Father make an appointment and attend for a hair follicle test at JJ Clinic or nominee; or an alternative provider who is able to conduct equivalent testing (‘the Clinic’) for hair drug testing purposes; and
(a) Inform the Grandparents of the identity of the Clinic to facilitate their payment of necessary fees; and
(b) Authorise the clinic to provide the results of testing directly to the Grandparents by email contemporaneously with the provision of the results to him; and
(c) The Grandparents do all acts and things to cause and ensure that they pay the costs and fees of the testing.
11. In these orders, “hair follicle test” means hair analysis conducted in accordance with the guidelines and requirements of JJ Clinic or nominee. Either head or body hair may be collected for testing.
12. Notwithstanding any other provision in these orders, copies of the result of the hair follicle test must be provided by the Father to the Grandparents within 48 hours of the date on which the hair sample test results are available to the Father.
AND THE COURT ORDERS BY CONSENT THAT:
Changeover
13. Save as otherwise agreed between the Applicant and the Respondents in writing, changeovers that do not take place at the children’s school(s) take place at McDonalds Restaurant, B Shopping Centre, C Street, City D, Victoria.
Communication between caregivers and access to information
14. Save as otherwise agreed between the Father and the Grandparents in writing, the Father and the Grandparents communicate about all urgent or emergency matters relating to the children by telephone.
15. Save as otherwise agreed between the Father and the Grandparents in writing, the Father and the Grandparents communicate about all non-urgent matters relating to the children's care, welfare, and development in writing via the AppClose Parenting Application (‘the parenting app’).
16. The Father and the Grandparents keep each other informed in writing of:
(a) Their current residential addresses, and notify each other of any change to their residential addresses at least twenty-one (21) days prior to the change where practicable and otherwise, as soon as possible after the change;
(b) Their respective email addresses and contact telephone numbers, including mobile phone numbers, at least seven (7) days prior to the change where practicable and otherwise, as soon as possible after the change;
(c) All changes to person or persons living in either of the parties’ homes;
(d) All serious illnesses and/or injuries sustained by the children or either of them whilst in the parties’ respective care requiring hospitalisation or specialist medical attention and notify the other party of the name and contact details of the medical practitioner(s) and allied health professional(s) treating the relevant child(ren) as soon as practicable;
(e) All non-prescribed medication administered to the children or either of them in the twenty-four (24) hours prior to all changeovers;
(f) All prescribed medication to be administered to the children or either of them during time spent with the other party, including instructions as to timing and dosage, with the medication to be provided/exchanged at changeovers.
Health - Communication and Information
17. The Father and the Grandparents keep each other informed in writing of the names and contact details for all the children’s current treating medical, dental, and other allied health practitioners and notify each other forthwith in the event the children or either of them attends on any new treating medical, dental and/or allied health professional(s).
18. All parties be at liberty to seek and obtain all medical and health information relating to the children at the expense of the requesting party.
19. All parties be at liberty to communicate with the children’s treating medical, dental, and allied health practitioners (“the children’s treating practitioners”) in relation to the children’s health and wellbeing in such manner and by such means as the children’s treating practitioners require and/or direct.
20. All parties ensure the children’s treating practitioners are aware they have authority to communicate with all parties in relation the children.
21. The Father and the Grandparents notify each other of all medical, dental, and allied health appointments scheduled for the children or either of them in writing via the parenting app at least seven (7) days prior to the appointment where practicable and otherwise, as soon as possible after the appointment is scheduled.
22. Within twenty-four (24) hours of attending upon the children’s treating medical, dental, or allied health professionals, the party who attended with the child(ren) provide the other party with a summary of all information they received from the treater during the appointment in writing via the parenting app.
23. All parties continue to facilitate the children’s attendance upon their treating medical, dental, and allied health practitioners with such frequency and for such duration as recommended by those practitioners.
24. All parties be at liberty to communicate with any NDIS co-ordinator engaged for or on behalf of the children or either of them.
25. In the event the children or either of them:
(a) Are prescribed new medication; and/or
(b) The dosage of a prescribed medication changes
the party who obtained the new medication or instructions as to the changed dosage use their best endeavours to obtain a letter from the relevant child’s treating medical, dental, or allied health professional stating:
(i) What the medication is;
(ii) Who prescribed the medication; and
(iii) How the medication is to be administered
AND IT IS REQUESTED the treater prescribing the medication provide such a letter.
Education and Extra-Curricular Activities - Communication, Information, and Attendance
26. All parties be at liberty to communicate with staff at all schools at which the children attend in such manner and by such means as the school(s) permit(s) and/or expect(s).
27. All parties do all acts and things to cause and ensure that the parties are authorised to seek and obtain from the children’s school(s) copies of reports, notices, correspondence, photographs and other like documents parents ordinarily receive, in relation the children, at the expense of the requesting party.
28. All parties be at liberty to separately arrange, and thereafter to attend, parent/teacher interviews at the children’s school(s).
29. All parties do all necessary acts and things to ensure:
(a) They are named as emergency contacts on the children’s school enrolment forms; and
(b) They each have access to any school portal / information application utilised by the children’s school(s) to communicate in relation to the children.
30. All parties do all acts and things to cause and ensure that the parties are authorised to attend all events to which parents are usually invited, including but not limited to school concerts, sports days, and extra-curricular activities, but subject to any direction of the school(s).
Liberty to Provide Court Orders
31. The parties each be at liberty to provide a copy of these Orders to each of:
(a) The children’s school(s);
(b) The children’s treating medical, dental, and other allied health professionals;
(c) Any NDIS Support Provider and/or worker assisting or supporting the children or either of them;
(d) The Child Support Agency;
(e) Centrelink;
(f) Medicare; and
(g) Any other government department responsible for providing services relating to the children or either of them.
Restraints
32. The parties, their servants and their agents hereby be restrained by injunction from:
(a) Denigrating, belittling, abusing, intimidating, harassing and/or rebuking any other party or any member of their respective families to or within the hearing of the children or either of them;
(b) Discussing these proceedings or any documents prepared in relation to these proceedings, save for explaining the spend time provisions of these orders, to and/or within the hearing of the children or either of them;
(c) Knowingly permitting the children or either of them having access to any document prepared in relation to these proceedings or any associated proceedings; and
(d) Exposing the children or either of them to family violence.
33. For twenty-four (24) hours before and during any period the children are in the care of the Father, the Father be and is hereby restrained by injunction from ingesting, consuming, using or otherwise being under the influence of any illegal drug or substance.
Other Orders
34. Within seven (7) days of the date of these Orders, the Independent Children’s Lawyer speak with the children in relation to the Final Orders, and thereafter the Independent Children’s Lawyer be discharged.
35. All extant applications and responses otherwise be dismissed and this matter be removed from the list of cases awaiting judicial determination.
AND THE COURT NOTES THAT:
A. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.