Carlier & Botrel
[2025] FedCFamC2F 398
•28 March 2025
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
Family Law Amendment (Information Sharing) Act 2023
Family Law Amendment Act 2023
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 (‘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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
Ms E (‘Ms E’), then aged 41, died in 2022 from an illness. Ms E’s children X, (‘X’) and Y, (‘Y’) were then aged 9 and 4. X and Y (‘the children’) are now 11 and 7 years old. From shortly before Ms E died, back in 2021, they have lived with their maternal grandparents, Ms Botrel and Mr Botrel (‘the Grandparents’) in an outer suburb of a capital city.
Ms E and the children’s father, Mr Carlier (‘Mr Carlier’), had lived together in a country town from about 2012 until 2020 when Ms E and the children moved to live, firstly with, and then nearby to, the Grandparents. Ms E was diagnosed with an illness in 2019 while she and Mr Carlier (‘the parents’) still lived together. After treatment, there was a short time of remission before the illness returned in late 2020.
When Mr Carlier was 8 years old, he suffered serious abuse. As a result of that abuse, Mr Carlier has suffered, and suffers from, Post Traumatic Stress Disorder (‘PTSD’). Mr Carlier was only diagnosed with PTSD in about 2010 or 2011, when he was about 31 years of age. Consequently, until recently, throughout much of his adult life, Mr Carlier has struggled with his mental health and addiction to drugs and alcohol. Over recent years, Mr Carlier has attended upon many therapists for therapy for PTSD and addiction.
Mr Carlier now lives in the home he had previously shared with Ms E and the children. Mr Carlier has re-partnered and lives with Ms F. Ms F has older children who live with their father but are close to Ms F. Ms F works full-time. Mr Carlier has not worked in regular paid employment for some years. He has received a disability pension for many years because of PTSD. He is a skilled and experienced outdoorsman. Mr Carlier lives in Town G, a country town about 4 hours by car from the Grandparents’ home in a capital city. Until the last day of final hearing before me, 23 August 2024, Mr Carlier had only been permitted to spend limited time with the children and that time with either his partner, Ms F, or his mother, Ms H, in substantial attendance.
On this final hearing, Mr Carlier asks this Court to order that the children move to live with him (in the home that they once shared with Ms E) and to spend time with the Grandparents during school holidays and one weekend each month, during school term, with necessary travel to be shared between himself and the Grandparents. He seeks an order authorising him to make all decisions about long term issues for the children after consulting the Grandparents. The Grandparents continue to ask the Court to order that the children live with them, and they now seek that the children spend unsupervised block time with Mr Carlier during school holidays and one weekend in four during school term and with shared travel. They seek an order authorising them to make all decisions about long term issues for the children and to inform Mr Carlier afterwards.
Until Mr Carlier brought court proceedings and eventually obtained court orders on 13 December 2022 for supervised time, the Grandparents did not permit Mr Carlier to see the children at all. From their perspective they had substantial reasons not to accept Mr Carlier’s assertion that he was mentally well and able to care appropriately for the children. Until filing an amended response on 18 March 2024, the Grandparents insisted Mr Carlier’s time with the children be very limited and supervised. Then, when filing their amended response, they sought that until the end of 2024 the children’s time with Mr Carlier be in the substantial attendance of Mr Carlier’s mother or partner.
The distance between households imposed some limitations on the time the children could spend with Mr Carlier. But, notwithstanding the filing of the amended response, the previously restricted regime of time between Mr Carlier and the children more or less continued until the last day of final hearing when I made interim orders dispensing with the requirement of substantial attendance.
The children are represented by a court ordered Independent Children's Lawyer (‘the ICL’) funded by Victoria Legal Aid. The ICL has supported the Grandparents in restricting the children’s time with their father in these proceedings and now seeks similar orders to those sought by the Grandparents.
Ms Botrel was born in 1959 and is aged 66 years and works in casual employment in retail. Mr Botrel was born in 1956, is aged 68 years and is a retired finance professional.
Brief history
Mr Carlier and Ms E had an on and off relationship when teenagers, when for a short time they lived next door to one another. Years later, in 2011, they met again via social media and commenced to live together shortly thereafter, in 2012. They separated on a final basis in 2020. The parents never married. Ms E was diagnosed with an illness in early 2019 and at this time the parties were cohabitating together. The illness was treated, and Ms E went into remission. The illness returned in late 2020 and, at this point in time, the parents had separated.
From the time the parents separated, Ms E was living with the Grandparents and the children in Melbourne, while Mr Carlier remained in his residence (the former relationship home) in the country town.
Both children attend J School, X is in Year 6 and Y is in Year 1. One factor of the breakdown of the relationship between Ms E and Mr Carlier was the diagnosis of Attention-Deficit/Hyperactivity Disorder (‘ADHD’) of X. The parents disagreed over the diagnosis and the prescribed medication given to X. These disagreements occurred for some time.
The parents attended upon counselling sessions in early 2020 to try and reconcile their relationship but were unable to. Ms E remained in Melbourne with the Grandparents following this session, and the COVID lockdowns then came into place. Mr Carlier believes Ms E used the Melbourne lockdowns as a way for him to not see the children. It is unnecessary to make a finding about this. Mr Carlier next saw the children in October 2020, the first time since March of that year.
After the illness returned, it is Mr Carlier’s case that Ms E sought support from him in November 2020 to February 2021, in which Mr Carlier lived in Melbourne for that time with Ms E and the children. Mr Carlier returned to his home in February 2021, where he alleges Ms E told him to not return to her home. It is alleged, and I accept, that Ms E blocked all contact from Mr Carlier between February 2021 and April 2021. Mr Carlier believes that this occurred after Ms E became aware of him re-partnering with Ms F, and being unhappy about that.
Mr Carlier alleges, and I accept, that he tried initiating mediation with K Centre and was unable to organise this. He also says he had trouble retaining legal representation throughout that year to initiate proceedings about the spend time arrangements. Before Mr Carlier could commence proceedings, Ms E passed away in 2022. It is Mr Carlier’s evidence that he found this out through a friend.
Mr Carlier was not permitted to see the children after Ms E died until limited court-ordered supervised time in January of 2023, almost two years after the children had last seen him. Time only commenced pursuant to Court orders (made in December 2022) with supervised contact service for 3 hours at a time. Limited overnight time commenced in April 2023 under the supervision of Ms F. Mr Carlier continued to request more time with the children, but the children were not permitted to see him more often.
Current spend time arrangements
Mr Carlier commenced proceedings in this Court on 15 July 2022. Orders for limited supervised time were made on 13 December 2022. Further interim orders made by consent on 8 June 2023. The spend time arrangements prior to the Final Hearing before me were that the children spend time with Mr Carlier in the Melbourne metropolitan area on each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday. For that spend time, Mr Carlier was responsible for arranging child appropriate accommodation in Melbourne and either Ms F or Ms H was to be in substantial attendance. Extant orders at the time of the Final Hearing also provided for communication between the children and Mr Carlier via FaceTime each Wednesday and Friday between 5.00 – 6.00 pm.
The Final Hearing
The Final Hearing commenced on 19 August 2024 and ran for 5 days. I reserved reasons on 23 August 2024.
The following were cross examined:
·Mr Carlier;
·Ms Botrel and Mr Botrel;
·The Family Report writer;
·Mr Carlier’s partner, Ms F;
·Mr Carlier’s mother;
·Mr Carlier’s General Practitioner;
·Mr Carlier’s Mental Health Social worker;
·Mr Carlier’s previous psychologist; and
·Ms E’s former Support Worker;
This 5-day trial was 5 days of cross-examination and submissions. Evidence in chief was by affidavit. Absent evidence in chief by affidavit, the giving of evidence in chief orally in the witness box would have taken many more days.
On 17 September 2024, while the trial decision was reserved, the Court was advised by email of the Hair Follicle Test (‘the HFT’) undertaken by Mr Carlier, pursuant to orders made, came back as negative. The parties were at liberty to make further written submissions. They didn’t. I infer because the results of the HFT spoke for themselves.
Documents relied upon and exhibits tendered
The documents relied upon by each of the parties are described in Appendix 1. Exhibits tendered are listed in Appendix 2.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Credit of the parties
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy (2003) 214 CLR 118 (‘Fox v Percy’) observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
The context for those observations in Fox v Percy was that, at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the wrong side of the road for the Kombi Van. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision with the horses. The High Court found that the Court of Appeal was justified in upholding the appeal and upheld that court’s findings.
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
In this case, counsel for the Grandparents asserted that much turned on what was asserted to be Mr Carlier’s lack of credit in his evidence.
Ultimately, I found all witnesses to be credit-worthy and mostly genuinely attempting to engage with the evidence and questions and propositions put to them. However, there are aspects of Mr Carlier’s evidence that I did not accept. I do not accept his assertion that the reference to “…” in communications between himself and Ms E was merely a “fishing nickname”. I do not regard some imprecision, when being cross-examined in 2024 about prior statements of when he last used cannabis or abused alcohol, as demonstrating a lack of credit in his evidence.
Mr Carlier admitted in a frank manner, and a refreshingly frank manner, significant problems in the past with illicit drugs and alcohol abuse and family violence between himself and Ms E.
The controversy in this case was whether the family violence between himself and Ms E was verbal violence or whether it was verbal violence and physical violence. I am not assisted in this case by an attempt to place a dichotomy between verbal violence and physical violence. Any family violence is deplorable and, although there may be cases that would demonstrate physical violence as an extension of verbal violence, I do not find that is so in this case. The extent of Mr Carlier’s frank admissions about verbal violence had a verisimilitude about it and that verisimilitude was consistent with his frank demeanour that I observed in the witness box. Ultimately, as explained later in these reasons, I do not accept Mr Carlier’s assertion that there was no physical violence, nor do I accept the Grandparents’ case that the physical violence described in Ms E’s written statement to the social worker (described later) actually occurred.
Each of the Grandparents were transparent and honest in their evidence that demonstrated their antipathy to Mr Carlier and their visceral rejection of the concept of him being an appropriate parent. They were truthful about their feelings. They really do reject the concept of Mr Carlier being a suitable or caring parent of the children without risk of exposure to family violence.
Circumspection in credit findings
For some time, the authorities asserted that a Judge or Justice should be circumspect about findings highly critical of the parties where they would likely have a continuing relationship of parents of their child/ren. The well know and orthodox position was as restated in the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622 (‘Adamson’):
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
…
[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
I am also assisted by the observations of the Full Court in Blass & Blass (2022) FLC ¶94-085; [2022] FedCFamC1A 63 where the court observed:
[40] While the failure to accept a witness’s evidence is a necessary component of a finding of untruthfulness or fabrication, such mere failure is less than a finding of untruthfulness; untruthfulness is a further fact that is required to be found.
The purpose of looking at the events and attitudes of the past is to grasp the nettle of risk of future events, including risk to safety, as well as the current and future impact of past events. Although a serious allegation/s may not be proven on the balance of probabilities, the possibility of those events may indicate risk to safety.
Family Law Act provisions
In deciding what particular parenting orders to make I must regard the best interests of the children as the paramount consideration as commanded by section 60CA of the Family Law Act 1975 (Cth) (‘the Act’). I must consider the matters described in section 60CC of the Act in making a determination as to what orders are in the children’s best interests. I apply the whole of Part VII of the Act. Relevant provisions include:
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.
…
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
...
…
43 Principles to be applied by courts
(1)A court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to:
…
(ca) the need to ensure protection from family violence; and
…
…
60B Objects of part[1]
[1] Section 60B in its current form came into operation on 6 May 2024. But the object “to give effect to the Convention on the Rights of the Child done at New York on 20 September 1989” was inserted into the Act by Act No 189 of 2011 and came into effect back on 7 June 2012. But by the amending legislation that came into effect on 6 May 2024 the previously applicable section 60B was repealed, including section 60B(1)(a), that had provided: 60B(1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and…
The objects of this Part are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
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60CAChild’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.
…
60CC How a court determines what is in a child's best interests[2]
[2] This “new” section 60CC came into operation on 6 May 2024.
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
…
…
60CF Informing court of relevant family violence orders
(1)If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.
(2)If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.
(3)Failure to inform the court of the family violence order does not affect the validity of any order made by the court.
60CG Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
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61DAAEffect of parenting order that provides for joint decision-making about major long-term issues
(1)If a parenting order provides for joint decision - making by persons in relation to all or specified major long - term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2)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.
Safety fundamental
I repeat the objects of Part VII of the Act, operating since 6 May 2024, are as follows:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
(emphasis added)
Convention on the Rights of the Child …20 Nov 1989 (‘CRC 1989’)
In the context of considering the rights of children, at least the following provisions of the CRC 1989 are relevant:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
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Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
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Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
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3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
Section 60CC, as recited above, came into operation on 6 May 2024 by operation of the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023 that amended the Family Law Act 1975.
In this case, the family report undertaken in late 2023 is important evidence. At the time that report was undertaken, significant parts of the Act were different. The report writer referred to the “rights” of the child to have a relationship with a parent and that “right” was significant in the family report writer’s ultimate recommendation that the children transition to living with Mr Carlier. The report writer saw that “right”, as, at least in part, arising from the psychological and developmental needs of the children.
The now deleted “objects” and “principals”, that applied when the report was undertaken, included the following:
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
…
(emphasis added)
Those provisions were in effect, and had been since 2006, when the family report was undertaken but were omitted from the amending act.
Some caution must be used when looking at the plain words of the amendments. The purpose trumps the literal meaning, see Radecki & Radecki [2024] FedCFamC1A 246.
In determining the purpose of the amending act, I am assisted by paragraphs [16] & [17] and [44-47][3] of the Explanatory Memorandum[4] to which I was referred.
[3] Where 2nd appearing at pages 18 & 22 of the Explanatory Memorandum.
[4] The necessity to have regard to the Explanatory Memorandum, lest the purpose of the amending act not be sufficiently explained is emphasised in Radecki & Radecki [2024] FedCFamC1A 246.
16.New section 60B provides that the objects of Part VII are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the CRC[5].
17.New paragraph 60B(a) outlines that the purpose of the provisions in Part VII is to ensure that the best interests of children are met, including by ensuring their safety. This reflects that, when making a parenting order under Part VII, a court must regard the best interests of the child as the paramount consideration (section 60CA). Paragraph 60B(a) emphasises that ensuring the best interests of the child are met includes ensuring their safety. This is intended to make it clear to all users of the Family Law Act that safety is a fundamental consideration when considering the best interests of the child. To avoid doubt, ensuring children's safety includes protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
44.New paragraph 60CC(2)(e) provides that the court must consider the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
45. This consideration recognises the importance of parental relationships, and relationships with other people who are significant to the child (such as grandparents or members of a broader kinship group) to a child’s wellbeing. Where appropriate and safe, parenting orders that ensure children benefit from a close and nurturing relationship with their parents should be made.
46.No one particular arrangement will work for all children or all families, whose needs are diverse and will change over time. However, where safe and appropriate, most children benefit from spending time with their parents not only at the weekends and in school holidays, but also during the school week, and will also benefit from allowing each parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child.
(emphasis added)
[5] Convention for the Rights of the Child.
The continuing reliance upon the CRC and the rights referred to therein (as highlighted earlier in these reasons) as objects of the Act maintains the concept that children have “a right” to be cared for by their parent or parents. However, that the “objects” are helpful but subsidiary to the operative provisions of an act, and the Act, is settled law and I am satisfied remains the law after the “new” objects came into operation on 6 May 2024. For convenience, I will repeat my observations in Avonlea & Daxton [2023] FedCFamC2F 1377:
Role and application of section 60B
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36The weight and significance of section 60B of the Act was considered by the Full Court of the Family Court of Australia in Maldera & Orbel (2014) FLC 93-602 (‘Maldera’) at [60]-[81]. It is unnecessary to recite here the whole of that discussion. For present purposes I refer to the following passages:
71. Courts have generally treated objects clauses and preambles in legislation in the same way. In effect, the former (and more recently “simplified outlines”) are contemporary versions of the latter. The proper approach to the role of preambles was considered in Wacando v The Commonwealth (1981) 148 CLR 1. At page 23, Mason J (as he then was) said:
…
It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. There is, however, one difficulty in seeking to restrict the generality of the operative provision by reference to a suggested restriction expressed in the preamble: it is that Parliament may intend to enact a provision which extends beyond the actual problem sought to be remedied. Recognition of this difficulty led Viscount Simonds in Attorney-General v. Prince Ernest Augustus of Hanover to say “that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it”. See also pp. 460–461, 462–463.
… (footnote omitted)
72. The Wacando principles have been widely applied to the use and scope of objects clauses. It follows that objects clauses can be used as an aid to the construction of words of legislation (Russo v Aiello (2003) 215 CLR 643). However, intention is to be gleaned from the whole Act and, in addition to objects clauses, regard must be had to other sections (Municipal Officers Assoc of Australia v Lancaster (1981) 37 ALR 559).
73. Applying Wacando, in S v Australian Crime Commission (2005) 144 FCR 431 at [22] Mansfield J said “[s]uch a [objects] clause cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear”. And, in Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at page 78, Cole JA said that “… whilst regard may be had to an objects clause to resolve uncertainty or unambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power”.
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75. Section 60B has been significantly amended including by the Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth) which inserted at the commencement of s 60B the words “The objects of this Part are to ensure that the best interests of children are met by…” These words do no more than reinforce the relationship between s 60B and s 60CC and put beyond doubt that in relation to how a court determines what is in a particular child’s best interests, the facultative provisions are ss 60CA and 60CC and (where it applies) s 65AA. These words do not operate so as to elevate the role of s 60B beyond that envisaged by Wacando. The same must be said about the court’s ability to take into account “any other fact or circumstance” that the court thinks is relevant (s 60CC(3)(m)). Thus, in its current form[6], s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.
[6] That is the form of section 60B as it was prior to 6 May 2024.
…
80. It follows that we are in full agreement with their Honours in Aldridge v Keaton at [49]:
... that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
81. Nor do we cavil with the well settled jurisprudence which establishes that in a parenting case undertaken between a parent and another person interested in the welfare of a child, the fact of parenthood requires careful consideration (Aldridge v Keaton). However, s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex. In our view, it is abundantly clear that the comparative significance for a particular child of the fact of parenthood (which may in an individual case be decisive) is to be considered and weighed along with the other matters identified in s 60CC (and if relevant s 65DAA). But not on the basis that the factors referred to in s 60B can be used in favour of a parent to deliver an outcome inconsistent with the proper application of s 60CC.
(emphasis added)
37More recently, sitting as the Full Court in Bonner & Chandler (2021) FLC 94-063 (‘Bonner’), Austin J dealt with a dispute between the children’s parents, in an intact or united relationship, on the one hand, and the children’s grandmother, that is a non-parent, on the other. Austin J allowed an appeal where the grandmother was refused orders for time with her grandchildren. His Honour observed:
23. The Full Court has repeatedly affirmed that, in child-related proceedings, the parents of the subject children do not enjoy superiority over any other person who is keenly interested in the children’s welfare, though the status of parenthood does require careful consideration in the application of s 60CC of the Act because some factors pertain only to parents (Maldera v Orbel (2014) FLC ¶93-602 at [79]–[81]; Valentine & Lacerra at [42]–[43]; Aldridge & Keaton (2009) FLC ¶93-421 at [42]–[61], [75]–[81] and [83]).
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38In Bielen & Kozma (2022) FLC 94-123 (‘Bielen’) the Full Court applied the observation in Maldera and observed:
31. In undertaking that important task, s 60CC of the Act sets out the list of matters that the Court “must consider” in determining what is in the children’s best interests. We note that in Maldera & Orbel (2014) FLC ¶93-602 (“Maldera”) at [74]–[75], an earlier Full Court, after discussing B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755, confirmed the facultative provisions are s 60CA, s 60CC and (where it applies) s 65AA, and explained s 60B (after amendments in 2006) provides “context, indicate[s] the legislative intention or purpose of the part and otherwise operate as an aid to construction of the part and the Act”. So while the s 60B objects cannot be used “to change the ordinary and clear meaning of s 60CC” (Maldera at [75]), the High Court has made clear the matters set out in subsections 60CC(2) and (3) are to be considered in a manner that is “consistent with the objects of Pt VII” to which we have earlier referred (Bondelmonte v Bondelmonte (2017) 259 CLR 662 (“Bondelmonte”) at [32]). Consequently, the s 60B objects must inform the Court’s process of consideration required by s 60CC.
(Citation omitted)
39Hence it is clear that that the ruling, or ratio decendi, as to section 60B of the Act in Maldera, remains good law and is binding on me. Section 60B of the Act cannot be used to change the meaning of section 60CC, but the “objects” and “principles” described in section 60B must inform my consideration of the relevant matters in section 60CC of the Act.
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42The law requires that I make orders that promote the best interests of the children taking into account the whole of Part VII of the Act, including sections 60CA and 60CC.
As stated in Australian Family Law[7] at the part dealing with section 60B:
…
The Full Court in Maldera applied to s 60B the principles that normally apply to preambles and objects clauses. Their Honours cited Wacando v Commonwealth (1981) 148 CLR 1; 37 ALR 317; 56 ALJR 16; BC8100117. At CLR 23; ALR 333 and later authorities to the effect that:
… while regard may be had to an objects clause to resolve uncertainty or unambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power (Cole JA in S v Australian Crime Commission (2005) 144 FCR 431; 89 ALD 12; 225 ALR 123; [2005] FCA 1310 at [22]….The court concluded (at [75]):
Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the part and otherwise operate as an aid to construction of the part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.
…
[7] Lexis Nexis, Australian Family Law, vol 1 (at May 2024) [60B.15].
Those statements are in the context of section 60B as it was prior to the recent amendments but I am satisfied those statements and observations of the Full Court and the High Court continue to apply.
SOME SIGNIFICANT EVENTS
It is undisputed that Mr Carlier suffered significant child abuse over a long period at the age of 8 years and that abuse had a profound effect on him. It is undisputed that has, at least, contributed to mental health difficulties, interrupted education, aggression, intimate partner relationship difficulties and, at times, alcohol and illicit substance abuse. It is undisputed that over many years, but particularly since commencing these proceedings, Mr Carlier has undertaken therapy.
Grief of the children from their mother’s death and absence
Ms L, family consultant and author of the second family report, opined that the children continued to bear the grief and loss of their mother who died in 2022. While this was a commonsense observation of obvious fact, it was a significant aspect of Ms L’s opinion and part of her rationale in forming her ultimate recommendations. The children’s continuing grief and loss from the death of their mother was not in dispute in the proceedings, and I observe, weighed heavily on all of the parties. Ms L observed:
5.[X] is the oldest of the 2 children, and presented as bubbly and keen to engage with the Family Consultant. [X]’s concern for and parentification of [Y] was visible at all times, even during the interview. Notably, [X] did not mention her mother during the interview, and the grief and loss clearly remains an issue, which the maternal grandparents have sought help for.
…
90. [X] and [Y] are two young children who have suffered significant trauma within the early stages of their lives. They have been exposed to bush fires, COVID, parental separation, their mother’s death, and an absence from their father. [X] has been diagnosed with ADHD, and [Y] is currently being tested for this. In addition, [Y] has issues with speech and toileting, and [X] has recently been diagnosed with [a medical condition]. However, given the children mention their mother rarely, it is clear that they retain significant grief and loss from her death, and nurture, stability, and safety are paramount to allow healing and properly understand the situation, rather than a currently unknown internal narrative. Of significant concern, relayed by all parties, is [X]’s palpable over-protectiveness of [Y], and the likelihood of her fear of losing him too.
91.The children have some challenging behaviours, which is to be expected when considering the number of traumas in their short lives. The children were unable to allow their grandparents time to be interviewed without running into the room, and [Y] only allowed [X] a short period before he, too, ran in and [X]’s interview had to be finished with [Y] in the room.
92.This matter is one where all parties have a significant and evident love for the children, and all have their best interests at heart. It is a tragic situation, where all are impacted by grief for [Ms E]’s passing, and whichever way the Court decides, the other party will face significant loss. Whilst the children are too young to have their wishes considered to a substantial extent by the Court, [X]’s wish for things to remain the same is compelling in terms of her own need for control and stability in the context of a significant backdrop of trauma. It is likely that the children will find changing homes difficult initially, should they live with [Mr Carlier], as they have spent a substantial part of their lives in Mr and [Ms Botrel]’s care. However, should the children live with Mr and [Ms Botrel], as the children grow and spend more time with [Mr Carlier], it is likely that they will seek to spend more time with him, and connect with a parent, given the loss of their mother. It is also evident, however, that the children retain a connection to their mother through their grandparents, and maternal family, and whilst therapeutic support is required either way, [Mr Carlier] will require additional support to ensure he provides the children with that connection, should they live with him.
93.Despite their issues, the children are lively, pleasant, and engaging, and demonstrated a delight in being interviewed. The engagement, however, was also noted by the Family Consultant to demonstrate the level of grief, when considering their physical closeness to the Family Consultant, including wanting to sit on her lap, and their requirement for stability to reduce anxiety regarding abandonment appears encompassing. …
…
Ms M[8] had also similarly observed in the first family report that:
70.… [Y] was three years old […] when he lost all contact and communication with his father, [Mr Carlier], then he was four years […] when he lost his mother [Ms E] as a result of her death. These are very formative years in regard to a child developing significant relationships, but they are also difficult years for a child to experience such immense losses as young children firstly do not comprehend that death is final, nor do they understand suddenly being cut off from a parent, so they are unable to express or understand their grief let alone express their feelings of grief. It is not unexpected that a young child may regress after experiencing such a loss.
…
72.[X] was eight years old […] when she last had contact and communication with her father, [Mr Carlier], while she was nine years old […] when her mother, [Ms E] died. At nine years of age, [X] would have had a limited understanding of death but she more than likely would have conceived it was permanent, she may have been able to express her feelings of grief in a basic way, but that does not mean [X] has done so. It would have been an extremely emotional time after the passing of [Ms E] with both [Ms Botrel] and [Mr Botrel] feeling the full impact of their daughter dying, while at the same time they took on the role of full-time carers for [X] and [Y]. The death of a child no matter what age is the worst experience for most parents. While at some stage, the grief may settle, it does not go away but stays within. Since […] 2022, [Ms Botrel] and [Mr Botrel] have not only suffered the grief of losing their daughter, but they have also had to suddenly take on a new role of caring for [X] and [Y], so they have had to ensure they were emotionally available for them.
[8] Ms M was not required for cross-examination.
Ms M’s observations are in evidence, are unchallenged, and I accept them.
Limitation of Mr Carlier’s time with the children
It is common ground that, from February 2021 until Mr Carlier obtained court orders for limited supervised time, the children did not spend any time with their father – save for an observation session in late 2022 with the family report writer, Ms M. After Ms E’s passing in 2022, Mr Carlier’s mother (‘the Paternal Grandmother’) contacted the Maternal Grandparents to pass on her condolences and to speak to the children. Mr Carlier asserts, and I accept, that the Maternal Grandparents told the Paternal Grandmother that Ms E did not want the children to have contact with Mr Carlier or with his family. The Maternal Grandmother was highly distressed at that time and unable to have any meaningful discussion with the Paternal Grandmother.
Mediation then occurred between Mr Carlier and the Grandparents on 9 May 2022. However, an agreement was unable to be reached, and Mr Carlier initiated proceedings on 15 July of that year. The first orders providing for any communication between Mr Carlier and the children were made on 22 November 2022, whereby it was ordered:
That the Father have FaceTime calls with the children on each Tuesday and Friday between 5.00 pm to 6.00 pm with the Father to initiate the call to the Maternal Grandmother’s mobile […].
On 13 December 2022, it was ordered by consent that the children’s FaceTime calls with Mr Carlier continue, and that they spend time with him:
Each alternate Sunday for a period of three hours, supervised by the [CC] Contact Service, at a location agreed between the parties and failing agreement in [Suburb N], with the Paternal Grandmother and the Father’s partner being permitted to attend such time the children spend with the Father, save & except, for the first two supervised occasions where it will just be the Father.
From January until April 2023, Mr Carlier had six professionally supervised sessions with the children,[9] and observations of that time are included later in these reasons, but suffice to say the time went well.
[9] Mr Carlier’s affidavit of 22 July 2024 at [45].
Arrangements progressed further on 5 April 2023 with consent orders which made a slight variation to the day of one of the biweekly FaceTime calls, and with spend-time increasing (starting 16 April 2023) to each alternate Sunday from 10.00 am until 2.00 pm but in the metropolitan Melbourne area and supervised by either the Paternal Grandmother or Ms F. These arrangements continued until further consent orders were made on 8 June 2023 which increased spend time between Mr Carlier and the children in a graduated regime commencing with each alternate Saturday from 10.00 am to 4.00 pm, and increasing after a period of 3 months to each alternate weekend from 10.00 am on Saturday until 4.00 pm on Sunday. This arrangement continued until the Final Hearing.
It is also common ground that Mr Carlier spent further overnight time with the children at his home during their school holidays on 29 March 2024, 3 May 2024, and from 29 June to 3 July 2024. Since overnight time commenced, Mr Carlier says he has only missed 5 overnight visits due to other commitments or illness.
Interim orders at end of trial
I made interim orders at the conclusion of the final hearing on 23 August 2024 further increasing Mr Carlier’s time with the children:
(a) In a four-weekly cycle as follows:
(i) Commencing Friday 30 August from 6.00pm on Friday until 4.00pm on Sunday in week one of the four week cycle;
(ii) Commencing 13 September 2024, from the conclusion of school on Friday until 4.00pm on Sunday in week three of the four week cycle;
(b) For six (6) consecutive nights during the Term 3 Victorian gazetted school holidays, from 21 September on the first Saturday of the holidays until 27 September 2024 six (6) nights later with changeover on both occasions to occur at 12.00pm at [the public mid point];
(c) On a week about basis during the 2024/2025 Victorian gazetted long summer school holidays commencing 21 December 2024 on the first Saturday of the long summer holidays and concluding 28 December 2024 seven (7) nights later (this period encompassing Christmas in 2024) with changeover to occur at 12.00pm [the public mid point];
(d) At such further and other times as agreed between the Father and the Maternal Grandparents in writing.
Those interim orders have been in place pending delivery of final orders and these reasons. Hence, fortnightly and half school holiday time, unsupervised, has been in place since the end of the trial.
Mr Carlier’s 2012 burglary offence
In evidence before me was ‘ICL 2’, the subpoenaed Victoria Police records regarding Mr Carlier. These records included a court date in late 2012 in Town O Magistrates’ Court for burglary and other offences. The result is recorded as:
Without conviction, fined an aggregate of […].
Without conviction, Adjourned to [late] 2013.
TO CONTINUE TO SEEK COUNSELLING AS DIRECTED BY [DR P] AND TO CONTINUE TO ACCEPT TREATMENT AS RECOMMENDED BY HIS GENERAL PRACTITIONER.
In his affidavit, Mr Carlier deposed as follows:
I also have a daughter [Q] by a relationship I had for about 8 years with a woman named [Ms R]. [Q] was born [in] 2010. She was unfaithful but we reconciled…. After we separated in 2010 I still had a key to the house we shared and knowing she was away I went around to her house to collect my fishing gear. While in the house I took a diary of hers but nothing else. The fishing gear was no longer in the house. [Ms R] told the police I broke into the house and stole [personal items]. She made an insurance claim for these items. I was charged but was dealt with by the court by way of caution.
During cross-examination, it was confirmed that the burglary charge referred to above and in ICL 2 related to that same incident where Mr Carlier says he attended Ms R’s property, while very drunk, to collect his fishing gear but, being unable to find that, had searched the house for her engagement ring and stolen her diary, and although he said he had no recollection of it, stolen and disposed of those items. In addition, in the home, he had found and drew attention to items of a sexual nature. Mr Carlier gave the following oral evidence:[10]
MR GATES: You committed a burglary?
[MR CARLIER]: Yes.
MR GATES: And you had an intent to steal some(thing) when you entered?
[MR CARLIER]: I – once I – no. I went to go get my – well, steal my own stuff back. But it turned into worse than that.
…
[10] Transcript p 117.
The frank statement that, “it turned into worse than that” was entirely correct and the invasive, intrusive and sexualised nature of the offending is troubling, and I infer, from the nature of what occurred, would have profoundly troubled Mr Carlier’s former partner when she learned of the events in her home. I take into account Mr Carlier’s account of the events to Dr S. I am satisfied that Mr Carlier understands the seriousness of the offending, but I am not satisfied that Mr Carlier fully understands the impact of the offending upon his former partner that, I infer, occurred.
That Mr Carlier felt that he had been betrayed by his former partner (I make no finding that he had or had not been) is part of the context of the offending but it remains a significant event as to how Mr Carlier, when disinhibited by alcohol and upset by feelings of betrayal, had treated a former intimate partner. The issue is: does this event portend for the future?
Mr Carlier’s other two children and their mothers’ complaints of violence
The undisputed evidence is that Mr Carlier has had two earlier significant intimate partner relationships and a child from each relationship. He does not see or have a relationship with either child. Each of those women have complained of family violence from Mr Carlier. And I infer, from those not disputed events, that each of those other parents of those two children do not want him to have a relationship with those children.
Neither of those other two women was a witness in the case. Court documents, sworn by one of those women, were in evidence, with a document that includes allegations of family violence against Mr Carlier.
Mr Carlier loses his temper with Child Protection
In evidence before me was a document known as ‘ICL 1’, the Department of Families, Fairness and Housing (‘DFFH’) section 69ZW response dated 21 November 2022. That document includes the following:
Current situation
23 August 2022 - Present
Child Protection received a report in relation to children [Y] and [X] being exposed to historical family violence perpetrated by their Father, [Mr Carlier] against their Mother, [Ms E] (now deceased). …
On the 28th of October 2022, Child Protection attempted to interview with [Mr Carlier] via phone regarding the alleged concerns. [Mr Carlier] expressed frustration toward child protection’s involvement stating that the allegations have already been investigated by a psychologist and found no risk to his children. He denied ever hurting the children or shaking [X], which was alleged, stating there was no evidence. [Mr Carlier] provided a brief overview of his relationship with [Ms E], focussing on her [medical] treatment and his support toward her. [Mr Carlier] described feeling “almost suicidal” having to go through the allegations again as asked by Child Protection. Child Protection practitioners attempted to deescalate [Mr Carlier] to make a thorough assessment however, he directed practitioners to speak to his lawyers and the children’s court appointed counsellor. Child protection noted a heightened state from the father as he raised his voice, swore at practitioners on two occasions, spoke at length without ability to be interjected, and spoke in circles at times.
When cross-examined about this incident, Mr Carlier gave the following evidence:
MR GATES:Now, the report says that when they spoke to you, you were speaking in circles?
[MR CARLIER]: Yes.
MR GATES: Do you know what that - - -?
[MR CARLIER]: Yes, I do. I asked them what the circumstances of the report were. … They told me that I wasn’t allowed to know. … And I was like, “Well” – and then I kept asking them if it had to – because we had just been to mediation – not mediation, [Ms M], I’m pretty sure, could be wrong, where – we just went to either [Ms M] or mediation, and I’m asking if it was about my children and the allegations that have been made of family violence. They said they weren’t at liberty to say, and I said, “Well, how can you speak to me if you’re not, like” – and so we just kept arguing around in circles with that. I got very frustrated and I swore. I did swear – I – I did swear at them.
MR GATES:What did you say to them?
[MR CARLIER]: Something of the lines of, “Do your f***ing job.”
MR GATES:From the conversation they were having with you, did it appear they were trying to do that? … Do their job?
[MR CARLIER]: Yes. It was – that was all on me. That was my – that was my – that was all on me. I was just frustrated with what was going on with courts and, you know, I – yes. I was just very, like – yes, just frustrated, and I should [not] have been taking it out on the DHS workers and – yes. It was really bad.
The Child Protection practitioners were merely doing their difficult job. That difficult job includes dealing with various constraints about what they can and cannot tell a parent. The substance of Mr Carlier’s understanding of the conversation was not challenged. It is consistent with the well-known modern restrictions on information sharing generally known as “privacy”. I accept Mr Carlier’s account. The frustration of any parent, who is not currently permitted to see his children, being questioned by an authority, but only permitted limited information is self-evident. The context to Mr Carlier’s discourtesy and disinhibition must be taken into account. When looked at with the very substantial therapy undertaken (discussed later), this incident, although relevant to the assessment of the risk of harm, does not significantly inform that assessment.
Mr Carlier long abused drugs and alcohol
Until some point after he commenced therapy and treatment in relatively recent times, Mr Carlier abused illicit drugs and alcohol. He says, in substance, that as a result of his motivation to be reunited with his children, his new relationship and the substantial therapy he has undertaken since early 2023 that he now abstains from alcohol and illicit drugs including cannabis and prescribed cannabis. The Grandparents remain sceptical about what Mr Carlier says about his substance use.
THE DISPUTE
MR CARLIER’S PARENTING CASE
Mr Carlier seeks, more or less, that the recommendations of the second family report writer be put into effect and that the children move to live with him and Ms F in Town G and that they spend time with the Grandparents on one weekend each month and for half of the school holidays.
The main points of Mr Carlier’s case include:
·That despite the children not seeing him for a very long time, in circumstances where he was pressing to see the children, the children had a strong parental relationship and attachment with him; and
·That the therapy he had undertaken since early 2023 was extensive and effective and would strongly militate against a risk of the children being exposed to the risk of intimate partner violence; and
·In any event, family violence between himself and Ms E had been, to some degree, mutual and never physical; and
·The allegations that he had been violent to X were not correct, notwithstanding his acceptance of the inappropriateness of the “holding her up” allegation or event; and
·The family report writer’s expert observations about the children’s need to live with a parent were correct and should be followed; and
·He had considerable family support, including his mother, the children’s grandmother, in Town G; and
·The fact of the children being safe in his care was, to a degree, demonstrated by the approval that child protection gave to his occasional care of his nieces and nephews; and
·His rejection of the use of illicit drugs and alcohol was genuine and could be relied upon; and
·Ms E’s statement to the social worker shortly before she died was, at least in part, motivated by her upset and antipathy to the fact that he had, after separation, established another relationship with Ms F, and Ms E’s apparent rejection of his statements to her that he and Ms F had put their relationship on hold while he returned to live with Ms E and the children for a short time after the return of her illness and before her death; and
·Ms E’s statement to Ms T was unsigned and was not sufficiently reliable to be regarded as an accurate account of what Ms E had actually experienced.
Details about Mr Carlier’s case and evidence included a denial of the allegation that, as between Ms E and himself, his angry or abusive or dysregulated behaviour was referred to as “…”. His evidence was that the references to … was a reference to a fishing mate’s nickname for him. I do not accept his evidence about the reference between he and Ms E to “…”. Such an account is implausible and contradicted by the text messages exchanged between Mr Carlier and Ms E and in evidence exhibited to the Maternal Grandmother’s affidavit as the exhibit described as ‘Annexure C’.[11]
[11] In particular, the message sent by Ms E to Mr Carlier at page 49 which includes “… You need to understand how much […] hurts us, how horrible he is, how dangerous he is. …”
Mr Carlier’s mother, Ms H, and his partner, Ms F, gave evidence. Ms H’s evidence corroborated Mr Carlier’s account of verbal abuse back and forth between the parents. She also asserted that Mr Carlier, to her observations, now abstained from alcohol and illicit drugs and had a settled and supportive relationship with Ms F. Ms F’s evidence was to the same effect. I accept the evidence of Ms H and Ms F on those matters. I also accept Ms F’s evidence of Ms E’s unhappiness, in the last days of her life, of Ms F’s relationship with Mr Carlier.
THE GRANDPARENT’S PARENTING CASE
The Grandparents sought that the children remain living with them, that they have sole parental responsibility for long-term decisions, and that from the end of 2024 Mr Carlier spend unsupervised weekend time each month, as well as school holiday time with the children. Matters the Grandparents pressed included the following:
·Ms E’s statement to the social worker, Ms T, should be accepted as an accurate description of what Ms E endured; and
·Ms Botrel had observed bruising to Ms E’s back on one occasion; and
·Mr and Ms Botrel had observed holes in the wall at Mr Carlier’s residence consistent with a violent outburst and damage to the house; and
·The extent of Mr Carlier’s past drug and alcohol abuse and imprecision, or contradictions, in his evidence about when he last consumed cannabis and/or abused alcohol meant that I should not accept his assertions of abstinence from illicit drugs, including cannabis, and alcohol; and
·There remained a real and significant risk of Mr Carlier relapsing in illicit drug and alcohol use; and
·Dr P’s opinion and evidence should be accepted; and
·Mr Carlier’s aggressive rejection of enquiries from Child Protection (at a time when he was seeking to see the children but not permitted to do so) and relatively recent aggressive reaction to what Dr P told him in their last consultation (also at a time when he was seeking to see the children but not permitted to do so) demonstrate the failure of the therapies that Mr Carlier had undertaken; and
·Ms F’s denial of any family violence between herself and Mr Carlier over a number of years should not be accepted, or at least should be regarded with circumspection because of Ms F’s less than frank description of what Mr Carlier called Dr P at the end of their last consultation; and
·Ms F’s account of peace, tranquillity and sensitivity in her relationship with Mr Carlier was implausible and she was so approving of him, that her account should be disregarded, or not accepted; and
·There was an unacceptable risk that Mr Carlier would relapse into drug or alcohol abuse and intimate partner violence, whether with Ms F or another partner; and
·To the extent that the current circumstances indicated successful treatment of PTSD and another mental health condition, those indications rested upon the continuation of his relationship with Ms F and that there was a significant risk that his relationship with Ms F would not survive into the future and hence, the inevitable loss of that relationship (likely due to intimate partner violence) would likely plunge Mr Carlier into a relapse of drug and alcohol abuse and dysregulated behaviour that would put the children’s welfare at risk in his care; and
·The children’s complex medical and therapeutic supports were unlikely to be able to be maintained were the children to move to live with Mr Carlier in regional Victoria.
Ms T
As recited earlier, I was troubled at the capacity of the Grandparents to genuinely understand in their hearts the children’s need for a relationship with their father. However, I am satisfied they will comply with court orders, and I am satisfied that they have been able to, and intend to, protect the children from their own personal feelings about Mr Carlier.
I am satisfied that Mr Carlier will be profoundly disappointed if the children are not to live with him and may see that as a continuance of the injustice of the past, where he was prevented from seeing the children at all. However, taking into account the extensive therapy he has undertaken and his love for the children, I am not satisfied that there is a serious risk that Mr Carlier’s disappointment, if the children do not live with him, will not flow over into his sharing that disappointment and emotional upset with the children, and hence doing emotional harm to them.
Benefit…to have a relationship with the child’s parents & other people & where it is safe.
The current section 60CC(2)(e) is unequivocally non-hierarchical in terms of relationships. That is, there is no presumption that it is in the child’s best interests to live with a parent in preference to other significant people in their life.
The evidence is overwhelming, and it is now common ground, that there is real benefit to the children having a relationship with Mr Carlier. But the children do not need to live with Mr Carlier to enjoy and benefit from a relationship with him.
Mr Carlier never challenged that there was a benefit to the children having a relationship with the Grandparents. I am satisfied that there is a benefit to the children of a relationship with the Grandparents. The children’s relationship with the Grandparents can and does include an aspect that cannot be included in their relationship with their father, Mr Carlier. That is, that at a time of living with the grief and difficulty of the death of their mother, they maintain a connection with their mother by their shared (but different) grief with their grandparents, their mother’s parents. That connection, at this time in their lives, is a real benefit to their relationship with the Grandparents.
Anything else that is relevant to the particular circumstances of the child
I refer to and repeat the observations of the two family report writers, recited above, that deal with the children’s grief at the time of the reports.[34]
[34] See [70], [72] of Ms M’s report and [5], [90] – [93] of Ms L’s report.
In this case, the grief that all parties and the children deal with from Ms E’s death is a significant matter. These children suffered significant trauma and loss. They were exposed to, at least, very significant verbal family violence between their parents. They had to endure or negotiate their mother’s medical diagnosis, therapy, remission and then return of the illness, then their mother’s suffering and death. Then, without the support of their father, to whom they were attached, they endured the absence of their mother from their lives. The children then endured the absence of their father from their lives over a long period. They have endured the limited, more ordinary, time with their father until trial.
But the children had the support of their maternal grandparents, to whom they are strongly attached. They share with those grandparents the strong affection of their bond with Ms E and the shared grief of dealing with her death and absence. The expert observations about the depth of the children’s continuing grief were undisputed. For the children to now move to live with their father, and not their maternal grandparents with whom they have lived from before their mother’s death, would be a further loss in their lives.
I am also satisfied that Mr Carlier also suffered grief from the illness and death of Ms E and, in part, that grief involves or includes his attempt to understand the grief of his children. His grief may well be more complicated than the enduring grief of the Grandparents, but it is unnecessary to make any further findings in that regard.
Children’s special needs
The children have a multitude of special needs and receive significant and carefully organised therapies whilst living with the Grandparents. I am satisfied that eventually, and one way or another, any necessary therapy would be organised for the children if they were to live with their father. But the extensive and significant therapies are already in place and moving to live with their father would interrupt the steady progress of those therapies.
Further loss to the children?
The children are settled and doing well enough at their school, organised and facilitated by the Grandparents. Notwithstanding that many children that change schools for various benign reasons, like families moving because of parental work or housing opportunities, to change schools, as well as change therapists, as well as move from their known environment of living with their grandparents to live with their father would be another loss for them. That loss of their school, friends, and environment, would be minor in the scheme of things compared to the loss of living in the environment with their grandparents with the shared connection to their mother, but in the circumstances, is not insignificant.
In all of those circumstances, to move from living with their grandparents to live with their father, would be both a gain for them, that is to live primarily with a parent, and a loss, that is the loss of living with the Grandparents in the settled circumstances of their lives and the shared link and affection for their mother. Those losses and gains must be balanced in the determination of where the children should live.
Geography does not determine best interests
To the extent that there was some faint suggestion that living in the suburbs of a major capital city was necessarily more advantageous, or superior, to living in a country or regional town, I reject such assertion as it is without evidence and, to my mind, appears to be founded merely on a stereotype found in capital city populations.
The competing parties by and large conducted the case within the parameters that the children should live within their household and spend half school holidays and one weekend in four during school term with the other household. I am satisfied that was because of a practical recognition of the burden upon the children and the parties of the significant travel involved.
However, I was not taken to any reason why the school holidays must be, or could only be, in provisions of half and half. I am satisfied that for one household to have a larger part of the school holidays than half, although not agitated by the parties or expressly raised with them, is broadly within the parameters of the dispute between the parties. Each seeks that the children live in their household for the block period during school term, interrupted by one weekend in four with the other household. I am not satisfied that in this case the time-honoured and usually practical and effective regime of equally shared school holidays is appropriate.
Family violence
I refer to and repeat my observations made earlier in these reasons. There is no risk of the children being exposed to family violence in the Grandparents’ home. There is only a minimal risk of the children ever being exposed to family violence at changeover between Mr Carlier and the Grandparents. There is a small risk of Mr Carlier’s mental health relapsing and the symptoms of his mental health condition reappearing. Were that to occur, there is a small risk of the children being exposed to intimate partner family violence within Mr Carlier’s home. Were his relationship with Ms F to end, that risk would be increased. I am not satisfied there is any risk of Mr Carlier being directly violent to the children.
But because of the extensive and remarkable therapy Mr Carlier has undertaken, doing the best I can, I am satisfied that that is only a small risk. I am satisfied that in the event of significant adverse events, Mr Carlier would again seek and continue with professional assistance. I am satisfied that Mr Carlier would do so because he is an intelligent man and has insight into his own mental health and personality as week as his love and care for the children.
Parental responsibility
In this case, the restrained antipathy between the Grandparents and Mr Carlier and the practicalities of how day to day decisions merge with long term decisions in the household where the children live means sole decision making with an obligation to consult should rest on the household where the children will live.
CONCLUSION
The family report writer, Ms L, crisply summarises the major advantages of Mr Carlier’s position and of the Grandparents at [97]-[102] and those observations bear repeating:
97. If the children were to remain in the care of Mr and [Ms Botrel], one of the main benefits would be stability for the children, who have seen so much change in their short lives. The children would, furthermore, benefit from a sustained connection to their primary caregivers for the last 2 years, and to their maternal family, where the connection to their mother is strong. The children would be able to remain having a close relationship with their father but within a safe manner, where there is oversight.
98. If the Court accepts [Mr Carlier]’s narrative, it is evident that [Mr Carlier] exhibited a pattern of unstable mental health, relationship difficulties, drug and alcohol use, and interpersonal issues, causing fracture within relationships and maladaptive coping mechanisms. The Court must also, then, accept that [Mr Carlier]’s behaviour lies within the context of an extreme trauma at a developmentally crucial age, which is likely to have significantly changed his internal narrative and ability to view the world as safe. [Mr Carlier]’s acknowledgement of significant verbal arguments, although blaming [Ms E] in part, provides some acceptance of behaviour that was not appropriate to expose the children to. [Mr Carlier]’s view that he was a good father who did bad things does not necessarily translate, however, his understanding of the impact of family violence on children may not have been centred on within the Men’s Behaviour Change Program. [Mr Carlier]’s narrative that [X]’s ADHD diagnosis and behaviours are likely due to trauma do not explain how her behaviours began whilst living under his care and may be due to exposure to verbal violence, and it is imperative that [Mr Carlier] seek to understand the impacts of such parenting and ensure repair.
99. If the Court allows [Mr Carlier] to centre his prior behaviour in the context of PTSD, then the last year of mental health treatment, and [Mr Carlier]’s 3 years of a significant and violence free relationship, should be an indicator of his future behaviour. If prior behaviour is a predictor of future risk, then the treatment [Mr Carlier] has received, the cessation of drug and alcohol use, and a mature relationship all support a significant mitigation of future violent behaviour. Controlling and violent attitudes can clearly cooccur with PTSD, however, they tend to have a basis in abandonment and rejection due to shame, and an alleviation of these internal views through treatment have a significant impact, therefore, on this behaviour in the future.
100. If the children were to live with [Mr Carlier], they would benefit from a connection with their father and a close relationship with their paternal family. [Mr Carlier] regularly cares for his nephews and nieces, and this connection would support [Y]’s social issues, and may allow [X] to become a child again. [X] and [Y] would also benefit from the relationship with [Ms F]. However, whilst this is a benefit, this relationship is not a deciding factor. The children would also benefit from returning to their home town and old friends who can support them with their identity and support the transition. This transition would change the dynamics in their relationship with their grandparents, which may enable them all to fit into these traditional roles and allow the grandparents to behave as such without the need for daily challenges and discipline.
101. When considering [X] and [Y]’s best interests, there is a fine balance between the two households. Mr and [Ms Botrel] have a demonstrated ability to provide, nurture, affection, stability, emotional support, and capacity to ensure they receive appropriate supports. Mr and [Ms Botrel] have cared for the children, for a large amount of the last 3 years, and they remain the strongest connection to their mother. It is Mr and [Ms Botrel] who supported them during their mother’s illness and, then, after their mother’s death, and have been there to help them navigate the world without her.
102. However, whilst they have undoubtedly provided a stable, supportive and nurturing home for [X] and [Y], the length of time the children have been separated from [Mr Carlier] is due to legal and practical limitations for [Mr Carlier] in gaining access to his children, and should not be the defining factor in this matter. If [Mr Carlier] were still using drugs and alcohol, had not sought, and sustained, mental health treatment, and had not attended programs addressing family violence and parenting, recommendations would be more likely to be for the children to remain with their maternal grandparents. The Family Consultant is aware that this recommendation will be of significant distress to Mr and [Ms Botrel], however, the children have a right to have a strong relationship with their father, if there is safety present and a demonstrated change in prior behaviours. The children also, however, have a significant connection to their grandparents and maternal family, and there should be alternate weekends, school holidays, and special occasions shared between families in order for the children to thrive. This will, in time, allow Mr and [Ms Botrel] to become grandparents, and continue to build the special relationship they have with the children.
(emphasis added)
The opinion within that, “the children have a right to have a strong relationship with their father, if there is safety present…”, is entirely consistent with the objects and principles recited in section 60B of the Act as it was at the time of the report and with the provisions of the CRC 1989 recited earlier.
Balancing all of the considerations in this case, and all of the section 60CC factors, I am satisfied that it is in the best interests of the children to continue to live with the Grandparents, but provided they are able to have a strong and continuing relationship with their father, Mr Carlier. Although the potential risks of harm to the children in Mr Carlier’s household are, to a small degree, greater than in the Grandparents’ home, that circumstance does not significantly inform my decision.
The circumstance that the children have suffered a number of significant losses in their life, and most significantly, the loss of their mother, compels me to place very significant weight on the avoidance of further significant loss for them. I also place significant weight on their being settled living with the Grandparents, and being able to live in a household that in a real sense shares the grief and loss of their mother.
In all of those circumstances I am satisfied that the children should continue to live with the Grandparents, and that the Grandparents should have sole parental responsibility for long term decisions, provided that Mr Carlier is consulted, and his input is considered. Those decisions will likely relate to choice of secondary school and, potentially, medical treatment of the children.
Different orders within the parameters of the dispute
Ms L’s observations about the children’s likely need to have the normalcy of living with a parent is a matter that significantly weighs upon me. It is a matter that of itself contends for the school holidays not being shared equally between the households, but for the children to spend a greater part of the school holidays in their father’s household than in the household where they would normally live, with the Grandparents.
Hence, I have adapted the orders pressed by the Grandparents to provide for significantly more than half of the school holidays to be spent in the household of Mr Carlier. At the conclusion of the trial, I ordered that until further order, the children would spend one half of the school holidays with each household. The September/October 2024 school term holidays and the last long summer school holidays would have been the first occasion for that to occur. I infer that adjustment for the children and the respective households went well enough. I am satisfied it is time for the children to spend more than half of the school holidays in the household, of the two important households, that they do not live in.
In cross-examination, Mr Botrel was open to the concept of time during school term being fortnightly rather than four-weekly. I am satisfied that was a genuine openness. I am satisfied that Mr Carlier copes more easily with the significant travel that has been involved to spend time than the Grandparents have or will. Nonetheless, the agreed roughly midway changeover point, is of considerable travel and inconvenience for everyone. I am satisfied that Mr Carlier should have the option of having the additional time of a weekend during school term, not more frequently than fortnightly, if he chooses. Hence, I have drafted the order along the lines of the interim orders as made at the end of the trial for fortnightly school term weekends with Mr Carlier, but being realistic as to the long term demands upon his household and the children, that further weekend is to be at Mr Carlier’s election, because he may not be able to financially, or otherwise, manage that time and the practicality of the frequency of it on alternate weekends. Further, Mr Carlier will have the option on the third weekend of the four week school term cycle to collect the children from school rather than the agreed mid-way changeover point.
Further drug testing
There is a small risk of Mr Carlier relapsing to drug and alcohol abuse. But it is not nil or no risk. I am satisfied that the risk is considerably less than that pressed by the Grandparents and the ICL, but it is still not a nil risk. The circumstance that Mr Carlier, in circumstances where he cannot have expected a further HFT to be ordered to be undertaken (it was my idea, and not pressed by any party), undertook a further test that was clean of all illicit substances and heavy alcohol consumption demonstrates his circumstances at that time.
The Grandparents had also sought orders that Mr Carlier not consume alcohol in excess of .05 BAC when the children were in his care. In the circumstances where I was not then satisfied that a person with a past alcohol problem can appropriately judge whether they are or are not over .05 BAC on the go so to speak, I raised during the hearing whether it should be a simple “no alcohol” consumption by Mr Carlier, and Mr Carlier readily agreed. His ready acceptance of that proposal was something I also took into account, as to risk of relapse.
In the circumstances where it is the Grandparents that assert there is a continuing problem, or risk, of drug and alcohol abuse, and there being not much evidence of the financial circumstances of either household, I am satisfied that the expense of the further HFT, that is necessary to mitigate the small risk, should be the expense of the proposing party, that is, the Grandparents. I am satisfied that is in the interests of justice, notwithstanding that the evidence is that they financially support the children and are unlikely to receive child support. That they would be responsible for such further testing as they nominate in writing on no more than one occasion in each twelve months, in the context of their antipathy to Mr Carlier, is a matter that mitigates the risk of the HFT being used merely as a means to inconvenience or trouble Mr Carlier.
Those are my reasons for the orders I have made.
I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 28 March 2025
‘APPENDIX 1’
Mr Carlier relied upon:
·Outline of case filed 13 August 2024;
·Amended Initiating application filed 16 July 2024;
·Affidavit of Mr Carlier filed 22 July 2024;
·Affidavit of Mr Carlier’s mother filed 22 July 2024;
·Affidavit of Mr Carlier’s partner filed 22 July 2024;
·Affidavit of Mr Carlier’s Mental Health Social worker filed 22 July 2024;
·Affidavit of CC Contact Centre filed 23 July 2024; and
·Affidavit of Mr Carlier’s General Practitioner filed 15 August 2024.
The Grandparents relied upon:
·Outline of case filed 12 August 2024;
·Amended response to initiating application filed 18 March 2024;
·Affidavit of the Grandmother filed 5 August 2024;
·Affidavit of the Child and Family Practitioner at U Services filed 5 August 2024;
·Affidavit of Mr Carlier’s s previous Psychologist filed 6 October 2022;
·Family report of Ms M filed 7 November 2022;
·Affidavit of Mr Carlier’s Psychiatrist filed 5 December 2022;
·Affidavit of Mr Carlier’s Mental Health Social Worker filed 22 July 2024; and
·Family report of Ms L filed 3 December 2023.
The ICL relied upon the following documents:
·Victoria Police section 69ZW response filed 28 September 2022;
·DFFH Child Protection section 69ZW response filed 21 November 2022;
·Affidavit of Mr Carlier’s Psychiatrist filed 5 December 2022;
·Affidavit of CC Contact Centre filed 23 July 2024;
·Family report of Ms L filed 3 December 2023; and
·Affidavit of Mr Carlier’s Mental Health Social Worker filed 22 July 2024.
‘APPENDIX 2’
Exhibit No:
Description:
Party
19 August 2024
ICL1
s 69ZW report of November 2022
ICL
ICL2
Police subpoena report
ICL
C1
Joint chronology of the parties
Court
F1
Father’s July 2024 drug screen
Mr Carlier
20 August 2024
F2
Orders in Carlier & … proceedings made on 23 March 2015
Grandparents
F3
Father’s 7 November 2014 Facebook post
Grandparents
F4
May – June 2020 text messages
Grandparents
21 August 2024
R1
Post-separation text message with Ms E 2020
Grandparents
R2
Late 2014 Facebook posts ‘digging holes’
Grandparents
ICL3
Page 104 of ICL tender bundle – Mr EE letter
ICL
ICL4
Patient record 15 April 2015
ICL
ICL5
Patient history at AA Centre with Dr GG
ICL
ICL6
Dr HH patient report re: … admission
ICL
23 August 2024
C2
Almost agreed general orders and conditions
Mr Carlier
0
10
4