Couper & Howlett
[2022] FedCFamC1F 586
Federal Circuit and Family Court of Australia
(DIVISION 1)
Couper & Howlett [2022] FedCFamC1F 586
File number(s): MLC 5522 of 2020 Judgment of: JOHNS J Date of judgment: 20 July 2022 Catchwords: FAMILY LAW – CHILDREN – interim orders – spend time – application brought by paternal grandparents to spend time with the children – family violence – where the mother and children were subjected to family violence at the hands of the father – where the father was convicted of offences against the mother and incarcerated – where there is a need to protect the children from exposure to family violence at the hands of the father – where the paternal grandparents have not seen the children since the parents’ separation – where the grandparents’ time should initially be supervised – where restraints are necessary to protect the children from the risk posed by the father Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 20 July 2022 Place: Melbourne Solicitor for the Applicants: Anchorage Legal Counsel for the Applicants: Mr Gates Solicitor for the First Respondent: Autumn Legal Counsel for the First Respondent: Mr Foo Solicitor for the Second Respondent: Just Family Law Counsel for the Second Respondent: Mr Moisidis Solicitor for the Independent Children's Lawyer: Lampe Family Lawyers Counsel for the Independent Children's Lawyer: Mr Ham ORDERS
MLC 5522 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS COUPER
First Applicant
MR NORRIS
Second Applicant
AND: MS HOWLETT
First Respondent
MR FIDOS
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JOHNS J
DATE OF ORDER:
20 JULY 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That until further order the children spend time with and communicate with the applicant paternal grandmother and step-grandfather as follows:-
(a)For three occasions of up to three hours supervised by either F Services, H Service or such other service as nominated by the Independent Children’s Lawyer at the expense of the paternal grandmother and step-grandfather, such contact to occur monthly on dates nominated by the supervisor and at a location nominated by the supervisor;
(b)Thereafter on the last Saturday of each month from 10.00am until 4.00pm;
(c)By video conference each second Sunday between 5.00pm and 5.30pm or such other time as agreed when the children are otherwise not seeing the grandparents on that weekend.
2.To give effect to order 1(a), changeover take place at the outbound J Town McDonald's on K Street;
3.That the applicant paternal grandmother and step-grandfather be restrained from:-
(a)Discussing these proceedings and evidence relied upon with or within the hearing of the children or either of them;
(b)Permitting the father from:
(i)being present or attending time-spent between the applicants and the children or either of them;
(ii)communicating with the children or either of them (including but not limited to communicating by telephone, email or communication applications);
(c)Providing any information of whatsoever nature to the father relating to:-
(i)any venue at which the time spend with the children is to occur or the travel arrangements for the children to attend such time;
(ii)the children’s residential location or school attended by them;
(d)Providing to the father any contact information they may obtain relating to video conferencing details with the children or any contact details of the mother.
4.The father be and is hereby restrained from attending any spend-time occasions between the paternal grandmother and step-grandfather and from travelling outside the Melbourne Metropolitan area during such spend-time periods.
5.That 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 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Couper & Howlett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
The matter comes before the Court today in respect of competing parenting applications regarding the two children, X, aged 10, and Y, aged six.
The parties to the proceedings are, the Applicants, Ms Couper, who is the paternal grandmother and is aged 65 years, and Mr Norris, the paternal step-grandfather, aged 66 years. The First Respondent is the mother, Ms Howlett, aged 48 years. The Second Respondent is the father, Mr Fidos, aged 41 years.
The mother and the father were in a relationship of some 10 years, that relationship commencing in about 2009. Final separation occurred on 8 February 2019. As I have noted, there are two children of the relationship who are the subject of the proceedings. The mother has two children from a previous relationship, V who is aged 18 and W who is aged 17. Since the parties' separation, the children have lived with the mother and spent no time with the father or with the paternal grandparents.
The matter was listed for a five-day hearing to commence before me on 18 July 2022. It became apparent upon the commencement of the proceedings that the matter was not able to proceed due to the absence of evidence produced to the Court by both the father and the mother; Counsel representing all parties agreed that the matter ought not proceed. Reluctantly, I formed the view that the best course was to adjourn the trial and re-list it to the earliest available date, being March 2023, some eight months hence.
As a result of the delay in the proceedings, the applicants sought to press an interim application to spend time with the children. They seek to spend time with the children, initially that time to be supervised and after a number of occasions for that time to move to unsupervised daytime periods on a monthly basis. In addition, they seek the opportunity to communicate with the children on a weekly basis via video call.
The application of the paternal grandparents is supported by the father and the ICL. The mother opposes the application.
The Full Court decision of Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 sets out the pathway in which an interim parenting application should be determined, in particular [81] and [82] which provide as follows:-
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Applying those principles, I am required to identify the issues in dispute in the interim hearing. I will identify any agreed or uncontested relevant facts and I will consider the relevant matters pursuant to section 60CC of the Family Law Act 1975 (Cth) (“the Act”) and, where practicable and possible, I will make findings in relation to those matters.
There are a number of matters about which the parties agree in terms of the background to the dispute.
First, it is common ground that both the mother and the father used illicit substances during the relationship. They used marijuana and methamphetamines (“ice”) and the mother concedes that at times during the relationship she used heroin.
Second, it is common ground between the parties that during periods of the relationship, the mother and the father consumed alcohol to excess.
The mother alleges that she was a victim of family violence at the hands of the father. The circumstances of the separation occurred against a backdrop of alleged significant family violence perpetrated by the father against the mother.
It is common ground between the mother and the applicants that during the altercation between the parents at the time of separation, the mother telephoned the paternal grandmother to seek assistance. It is also common ground that in response to that call for assistance, the paternal grandmother notified the police. Following the Police intervention on that occasion, the father was charged with and convicted of offences; he was incarcerated for a significant period of time following that incident.
On 31 July 2020 a final Family Violence Intervention Order was made against the father for the protection of the mother and the children. In mid-2022 that final Family Violence Intervention Order was extended and will expire in 2027.
The issue that I am asked to determine is what time, if any, the paternal grandparents should spend with the children pending the final hearing. As I have noted, the applicants' case is that they seek orders for supervised time initially. It is their position that that time should occur for three occasions of three hours each alternate weekend with the time to be professionally supervised and thereafter for such time to occur on the last Saturday of each month from 10.00am to 4.00pm. Further, they seek to communicate with the children by video conference each Sunday when the children are not otherwise in their care.
The paternal grandparents have conceded that there ought be orders restraining them by injunction from discussing the proceedings and the evidence relied upon with or within the hearing of the children, forbidding the father to be present or to have any communication with the children during their spend-time and further, a restraint against them providing any information of whatsoever nature to the father regarding the venue of the spend-time or the travel arrangements for such time. Further, they seek an order that the father be restrained from attending any spend-time occasion between the children and the paternal grandparents.
The father has agreed to orders restraining him from attending at or communicating with the children during such time.
The submission made on behalf of the applicants is that their position with respect to the children is separate to and distinct from the father's. It is put that there is no evidence that they have ever engaged in family violence towards the children and, further, that they were not supportive and did not condone such behaviour. It is their case that they were unaware of the nature and extent of the family violence it is said has been perpetrated against the mother by the father. They further say that during the relationship between the mother and the father, neither parent confided in the applicants as to the difficulties in their relationship or the nature or extent of any violence between them.
As I have already noted, what is said by the paternal grandmother is that, indeed, when called upon to assist the mother, she was proactive and it was, in fact, she who notified the Police of the family violence events that gave rise to the parties' final separation in February of 2019, and ultimately the father’s incarceration.
The applicants contend that theirs is a positive and loving relationship with the children and in support of that contention they rely upon the mother's trial affidavit filed 29 June 2022. In particular, they rely upon the concessions made by the mother at [38] that the paternal grandparents had a good relationship with the children; at [40] where the mother deposes that the paternal grandparents spoilt the children, often getting them treats, buying them things and taking them on outings; [41] where she concedes that the children enjoyed their grandparents' attention because it often meant leaving an unhappy and unsafe house for a little while and receiving new things.
Further, at [44] to [46] of the mother’s trial affidavit, she confirms the financial support provided by the paternal grandparents to her household, noting that the grandmother at times attended the home with household items for the children, that the paternal grandmother provided a new motor vehicle following the parties' car being damaged, that the paternal grandmother purchased mobile telephones for the parties.
What is said on behalf of the paternal grandparents is that they provide a stable and secure environment for the children. They reside at a property in L Town and have a holiday home in M Town, both properties known to the children. It is also submitted that the applicants have no issues with drugs or alcohol, which is a factor and a feature of the relationship of the mother and the father. It is also submitted that the children have a long-established relationship with the paternal grandparents and it is noted that the mother concedes in her trial affidavit that the paternal grandmother was a regular visitor to the children's home from the time of their birth up until the time of separation.
The position of the mother is that she opposes the application made by the paternal grandparents. It is her contention that the paternal grandparents pose a risk to the children's safety. She contends that they were both aware of the family violence perpetrated by the father, and that they did not intervene. In particular, the mother relies upon [13] and [39] of her trial affidavit. Those paragraphs assert that the paternal grandparents witnessed the father belittling the mother in the children's presence and further, that the paternal grandparents rarely intervened in the father's behaviour towards the mother, even though there were numerous times when it is alleged the father abused her.
The difficulty with reliance upon that evidence is that it is lacking particularity. There are no particulars provided on behalf of the mother in support of her contention that the paternal grandparents were aware of family violence or that they did not intervene and, as I have already observed, it is common ground between the parties that when called upon, the paternal grandmother did, in fact, take active steps to seek police assistance at a time when the mother called upon her for support.
It is also submitted on behalf of the mother that were time to be ordered between the children and the paternal grandparents, such time may disrupt the children's progress. It is the position of the mother that the children have endured a long period of instability as a result of the instances of family violence experienced in the parents' home. The mother's case is that the children are now overcoming the trauma they experienced in the parental relationship and following the separation.
I do not accept that submission. The material before the court indicates that the children have continued to experience significant disruption and upheaval since the parties' separation. The evidence produced to the Court this day by counsel for the mother indicates that the children have resided in no less than 11 homes since the parties' separation.
The child X has attended two schools since separation and has been absent from school for extended periods of times during that period. It would appear that she did not attend school between February and August of 2019 and further, that she was absent from school between July 2021 and Term 2 2022. On my calculations, she has missed three terms of school in the last 12 months.
Y has attended two kindergartens and one school since separation. She did not commence her Prep year at school until Term 2 2022.
In addition to the disruption to the children's living arrangements and schooling, the evidence before the court is that there have been no less than 10 police attendances at the mother's home between 14 May 2020 and 10 February 2022. Those attendances have arisen as a result of conflict between the mother and her partner, Mr D, as well as conflict between the mother and her eldest son, W. At various times police records indicate that the mother has been significantly affected by alcohol. I rely upon exhibits A1 to A10 inclusive in relation to those matters. All of that material indicates that the children have experienced great instability and disruption even after the parties' separation.
As I have noted, the position of the father is that he supports the application of the paternal grandparents. He agrees to the injunctions sought which will restrain his attendance at that time and his communication with the children.
It is submitted that in addition to any orders that I might make for the protection of the children, there is in existence a Family Violence Intervention Order that will provide protection to both the mother and the children. Given the father's history, were he to breach those orders, it is likely that he would suffer a further period of incarceration.
The position of the ICL is to support the application for time. He notes the concession made by the mother that the paternal grandparents have a good relationship with the children. That is set out at [38] of the mother's trial affidavit. He further notes that the paternal grandparents are the only grandparents known to the children, it being the position that the mother is estranged from her own parents, and that is set out at the mother's trial affidavit at [43].
Against that backdrop, it is submitted that the paternal grandparents offer stability and support for the children. The evidence of the mother is that they had provided such stability and support for them in the period leading up to the separation and it is submitted that it is likely, having regard to their conduct in these proceedings, that they will continue to offer such support to the children in the future.
It is noted by the ICL that there are a number of safeguards for the children's protection. Firstly, it is proposed that there be supervision of the time for the first three periods of time; that will ensure that the children have a sense of safety and security during time. Further, that there be injunctions, as I have already noted, to ensure that the children are safeguarded from any contact or communication with the father. Further, there is a safeguard insofar as this matter will have a trial in March 2023. The fact that the Court will be continuing to oversee these arrangements will be a measure which will support and encourage the parties to ensure absolute compliance with any orders that I might make.
Heavy reliance is placed upon the observations and recommendations of the Court Child Expert as contained in the Family Report dated 29 June 2022. It should be noted that at the time that report was prepared, the Court Child Expert, Ms E, did not have the benefit of the mother's trial affidavit material. Hence, at the time of writing her report she was not aware of the mother's evidence as to the nature of the children's relationships with the paternal grandparents and the history of that relationship and support provided by the paternal grandparents. She was also not provided with a clear picture as to the circumstances of the mother's living arrangements since the time of separation; nor was she provided with detailed information as to the children's schooling arrangements.
Further, the Court Child Expert was not provided with any information in relation to the mother's continuing use of marijuana or her seemingly ongoing issues with alcohol, as is observed by Police who have attended her home on the occasions I have noted between May 2020 and February 2022.
The Court Child Expert had the opportunity to meet with the children and discuss with them the family relationships. At [57] of the Family Report, she notes X's report as to her positive memories of the paternal grandparents including going to the beach. She noted that X advised that she does not remember much about the paternal grandparents and further, that the mother does not speak of them. That X would have a limited memory of her paternal grandparents is unsurprising given she has not seen them since 2019, when she was aged only six or seven years.
The Court Child Expert identified a number of risks to the children if they do not reconnect with members of the paternal family. Those risks are identified and set out at [63] of the Family Report as follows:-
If attempts are not taken to re-establish [X] and [Y's] relationship with their father and paternal grandparents at their current ages, the dynamic will likely become more complicated as they grow older. The children may form a disproportionate fear of her father and paternal family, which may impact on their sense of safety and emotional wellbeing. [X] and [Y’s] experiences may also impact on their social and emotional development. For example, their ability to form respectful relationships as they move through their developmental trajectory. Their opportunity to have links with paternal family and understand their family background is important to their emotional wellbeing and identity. If this is not the case, they may experience a sense of rejection and abandonment which is likely to have longstanding impacts on their own interpersonal relationships and self-esteem. Future arrangements should prioritise [X] and [Y's] physical and emotional safety, support them to thrive in their development via stability and predictability, protect [Ms Howlett]’s safety and role as primary carer, yet act to make all attempts to provide them with an opportunity for a meaningful relationship with their paternal family, if it is safe to do so.
As I have noted, the final hearing of this matter has, unfortunately, had to be delayed for a period of some eight months. I have careful regard to the evidence of the Court Child Expert as to the potential impacts on the children if there is no reconnection or no opportunity for them to reconnect with their paternal family for that prolonged period of time.
The Court Child Expert also assessed the contributions the paternal grandparents can make to the children's ongoing welfare. At [68] of the Family Report, she noted as follows:-
[Mrs Couper] and [Mr Norris]'s capacity to provide basic care to the children and the benefits of them spending time with the children are not disputed. These narratives suggest that they were a stable and positive support to the children throughout many years of the parent’s conflict and substance use. There are likely to be many benefits to [Mrs Couper] and [Mr Norris] playing a role in the children's lives again. Their proposal reflects a reasonable arrangements to maintain a meaningful grandparent relationship with the children. Given their current adversity, the children would likely benefit from the opportunity for increased family connection and emotional support. They would benefit from common activities that grandparents often provide, such as to trips to the beach and holidays, to receive gifts and potential for financial support in the form of uniforms and clothes as [Mrs Couper] and [Mr Norris] report they once provided…
In addition to the benefits to the children of time with the paternal grandparents, the mother too will likely benefit in having some respite given her her difficult circumstances.
Having regard to the evidence of the Court Child Expert and the concessions made by the mother as to the contributions made by the paternal grandparents I am satisfied that they are likely to provide the children with a source of stability and predictability in their current circumstances which appears to continue to be characterised by unpredictability and difficulty, particularly given the material before the court as to the children's living and educational circumstances since separation, and also having regard to the conflict to which they have been exposed in the post-separation period.
The mother's evidence confirms the role played by the paternal grandparents prior to the parties' separation in providing material support to the family and also emotional support to the children.
It was further observed by the Court Child Expert at [71] that the paternal grandparents present as not only caring and loving parents to the father, but with the potential to be doting grandparents to the children. Having regard to the difficult circumstances the children have endured for a prolonged period of time, I am well satisfied that the children are likely to benefit from the attention and support that can be provided by the paternal grandparents.
I am satisfied that the paternal grandparents have demonstrated a strong commitment to the children. This is evidenced by their continuing involvement in these proceedings at, no doubt, a significant personal cost to them, and also as indicated by their preparedness to travel in order to spend time with the children and to meet any costs associated with supervision of that time. Those actions, in my view, demonstrate a strong and continued commitment to the two children and demonstrate a very positive attitude towards their responsibilities as grandparents to those children.
I note the recommendations made by the Court Child Expert at [77(d)] of the Family Report. The proposals of both the ICL and the applicant largely accord with those recommendations.
At [73] of the Family Report, the Court Child Expert noted that there will be challenges for the children in the reintroduction of time with the paternal grandparents given that it has been a significant period of time of disruption of that relationship. The Court Child Expert emphasised the importance of the children having consistent and child-focussed parenting arrangements to provide them with stability and predictability. It strikes me, and I am satisfied, that the paternal grandparents through much disruption and turmoil have provided a bedrock of stability to the children. They have maintained a consistency in terms of their living arrangements and of their preparedness to provide ongoing support to the family. Accordingly, I am satisfied that it is in the children’s best interests that they have the opportunity to resume spending time with the paternal grandparents.
Whilst the paternal grandparents would seek time on a fortnightly basis, initially it is my view, particularly having regard to the reservations and reluctance of the mother, that that time be limited to monthly visits. The success of the time will very much be influenced by the mother's attitude towards the time. It is in the children's best interests that the mother accept the decision made and support the time.
As has been noted in the mother's own affidavit material, the paternal grandparents have provided love, care and support to the children. There is no reason to doubt that that will continue.
Accordingly, I will make interim orders for the paternal grandparents to commence spending time with the children on a monthly basis, such time to be supervised for the first three occasions of time.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 12 August 2022
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