Couper & Howlett (No 2)
[2023] FedCFamC1F 902
•4 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Couper & Howlett (No 2) [2023] FedCFamC1F 902
File number(s): MLC 5522 of 2020 Judgment of: JOHNS J Date of judgment: 4 September 2023 Catchwords: FAMILY LAW – PARENTING –where the paternal grandparents brought an application to spend time with the children – where there has been significant family violence perpetrated by the father – where the mother and children are fearful of the father – where the father has disengaged from proceedings – notice of discontinuance filed by father – where final hearing proceeded on an undefended basis – sole parental responsibility granted to mother – orders made for grandparents to have limited time with the children Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 64B Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 4 September 2023 Place: Melbourne Solicitor for the Applicants: Ms Sedrak of Anchorage Legal Counsel for the First Respondent Mr Korke Solicitor for the First Respondent Autumn Legal The Second Respondent No appearance Counsel for the Independent Children's Lawyer: Mr A Combes Solicitor for the Independent Children’s Lawyer Lampe Family Lawyers 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:
4 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.All extant applications shall be dismissed.
2.All previous parenting orders shall be discharged.
3.The Mother shall have sole parental responsibility for the children, X, born 2021, and Y born 2016 (“the children”).
4.The children shall live with the Mother.
5.The children shall not spend time or communicate with the Father.
6.Commencing the date of these orders, the Paternal Grandmother and Paternal Step‑grandfather shall spend time with the children as follows:
(a)in January and June each year, on a Saturday or Sunday, for one hour as agreed between the Mother and Paternal Grandmother and in default of agreement, from 11am to 12pm on the last Sunday of January and June;
(b)spend time shall occur at McDonald’s, N Street, City P or such other place as agreed between the Mother and Paternal Grandmother;
(c)the Mother or her agent shall be at liberty to attend the spend time and be within the hearing distance of the children;
(d)the Mother must positively facilitate and encourage the children’s relationship with their grandparents at all times;
(e)the Paternal Grandparents shall be at liberty to provide the children with letters, gifts and cards from themselves only.
7.The Paternal Grandmother and Paternal Step-grandfather shall be restrained from permitting the father from:
(a)being present or attending time-spent between the Paternal Grandmother and Paternal Step-grandfather and the children or either of them;
(b)communicating with the children or either of them (including but not limited to communicating by telephone, email or other communication application);
(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;
(iii)providing to the Father any contact information they may obtain relating to video conferencing details with the children or any contact details of the children and/or the Mother.
8.The Father be and is hereby restrained from attending any spend-time occasions between the Paternal Grandmother and Step-grandfather.
9.Within 7 days of receipt of the children’s school reports, the Mother shall provide the Paternal Grandmother with a copy of the children’s school reports which redacts any identifying information about their school and a photograph of each child.
10.The Mother and Paternal Grandmother shall provide each other with their email addresses and mobile telephone numbers and details of any change within 7 days of any change.
11.The parties, their servants and/or agents be and hereby are restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party or the other party’s family in the presence or hearing of the children or permitting any other person to do so;
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence of the children or on social media or permitting any other person to do so;
(c)passing messages through the children, unreasonably questioning the children about what happens in the other parties’ household and involving the children in any form of disputes between the parties.
12.All extant applications be otherwise dismissed.
13.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.
14.The appointment of the Independent Children’s lawyer be discharged.
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).
EX-TEMPORE REASONS FOR JUDGMENT
These proceedings relate to the future parenting arrangements for the children X, who is aged 11 years, and Y, who is aged seven years.
They are the children of the first respondent mother, Ms Howlett, who was born in 1974 and is aged 49 years and the second respondent, Mr Fidos, who is the children’s father, and who was born in 1980 and is aged 43 years.
The applicants, Ms Couper, who was born in 1957, and Mr Norris, who was born in 1955, are the children’s paternal grandmother and step-grandfather respectively.
The mother and the father commenced cohabitation in or around 2009. They separated in early 2019.
The mother alleges that she was a victim of ongoing family violence at the hands of the father. Indeed, there was a significant episode of violence at the time of the parties’ separation as a result of which, the mother called upon the paternal grandparents to intervene and assist.
As a result of that incident, the father was charged with a range of criminal offences for which he was convicted, including unlawful assault and contravention of family violence orders. Upon conviction, the father was incarcerated and served a significant period of imprisonment.
Since the parties’ separation, the children have lived with the mother and she has been solely responsible for attending to their physical, emotional and intellectual needs.
The mother has obtained a series of intervention orders against the father. A final intervention order was made in mid-2020. That original order was for a period of two years. In mid-2022, the mother obtained a further final intervention order against the father naming herself and the children as protected persons. That order will expire in mid-2027.
These proceedings were commenced by the applicant paternal grandparents in May 2020. Their desire was to restore their relationship with the children, and to continue to have an active involvement in their lives. It was their case that prior to the parties’ separation, they had been actively and meaningfully involved in the care of the children, and they sought a continuation of those arrangements.
Whether the resumption of those relationships was in the children’s best interests and if so, in what form was the principal issue in this matter. There was, and possibly still is, distrust between the mother and the paternal grandparents, particularly as to whether the paternal grandparents accept and understand the abhorrent behaviour of their son, the children’s father, in terms of his violence towards the mother, to which the children have been exposed, and the impact of that behaviour on the mother and the children.
These proceedings have had a long history. The original trial commenced before me in 2022. There was a further listing of the trial in March 2023 and the matter was adjourned until this day.
Through the course of the proceedings, I have made interim orders in relation to the paternal grandparents spending supervised time with the children. That time has had limited success. There have been endeavours through a supervised contact service for the children to engage with their paternal grandparents. There is a detailed report filed by the Independent Children’s Lawyer (“ICL”) in relation to those efforts; that report is annexed to the affidavit of Ms Q filed 15 February 2023.
Today, the applicant paternal grandparents and the mother, supported by the ICL, ask the Court to make final parenting orders in the terms of a Minute of Order to which those parties’ consent. They do so in circumstances where the father’s lawyer has filed a Notice of Discontinuance in the proceedings on 25 August 2023. The father has failed to appear at Court this day. He was called by my Legal Associate in the Court precincts at the commencement of this hearing. He did not answer that call.
The Notice of Ceasing to Act filed 25 August 2023 indicates that the father was informed by his former lawyers that the next Court event was listed on 4 September 2023 at 10 am. Paragraph 4 of the Notice of Ceasing to Act further notes that the father was informed that the listing this day was for a final hearing. As such, the parties urge the Court to proceed on an undefended basis in circumstances where the father has failed to appear, and has disengaged from his lawyers, who have filed the Notice to which I have referred. Having regard to the Notice filed by his former lawyers, I am satisfied that the father has had notice of this hearing.
I am satisfied, having regard to this matter’s long history, that it is appropriate that the matter proceed on an undefended basis insofar as the father is concerned. That view is bolstered in circumstances where I am told by Counsel representing the Independent Children’s Lawyer that the father has not communicated with him nor with any of the other practitioners in relation to this hearing.
I am also satisfied, having regard to the correspondence forwarded to the father providing the mother’s Minute of Proposed Orders, that the father has had notice of the orders sought by the other parties. That communication was forwarded to the Court on 30 August 2023. That communication (Exhibit ICL1) was also forwarded to the father at his last known email address.
Having regard to that correspondence, I am satisfied that the father has had notice of the orders which I am asked to make this day. Accordingly, I am satisfied that it is appropriate that the matter proceed in the father’s absence.
Section 60B(1) sets out the objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) to ensure that the best interests of the children are met. Section 60B(2) of the Act sets out the principles underlying those objects. Section 64B of the Act defines what parenting orders are and can include arrangements for with whom a child is to live, arrangements for the time a child is to spend with another person or persons and the allocation of parental responsibility for a child. The orders sought by the parties are parenting orders within the definition of section 64B.
In determining what parenting orders should be made, the Court must have regard to the best interests of the children as the paramount consideration. That is set out at section 60CA of the Act. Sections 60CC(2) and (3) of the Act provide the primary and additional considerations to which the Court must have regard to in determining what is in the children’s best interests. This is qualified by section 60CC(2)(b), which provides that the Court must give greater weight to the need to protect the children from physical or psychological harm, from being exposed to abuse, neglect or family violence.
With the exception of this qualification, the weight to be afforded to each of the primary and additional considerations is a matter dependent upon the unique circumstances of the matter. There is no requirement that the primary and additional considerations be considered in a particular order or for any such to be afforded greater weight.
The protection of the children from physical or psychological harm, from being exposed to abuse, neglect or family violence is a significant issue in this matter, given the history of the children’s exposure to family violence perpetrated by the father to which I have earlier referred.
The Act imposes a presumption that it is in the children’s best interests for parents to have equal shared parental responsibility. That presumption relates to the allocation of parental responsibility, not the time that the children spend with each parent. Having regard to the history of family violence, as I have noted already, I am satisfied that it would not be in the children’s best interests for the parents in this matter to have equal shared parental responsibility. The violence that the mother and the children were exposed to at the hands of the father was so extreme that it resulted in him being incarcerated.
The evidence of the Family Report Writer, Ms E, who prepared a Family Report dated 29 June 2022, indicates that the mother and the children have been deeply affected by their experiences of family violence at the hands of the father. They are fearful of him. To have him in any way involved with making decisions regarding the long-term care and welfare of the children would be both impracticable, having regard to the mother’s concerns, and clearly contrary to the children’s best interests.
The proposed orders include an order that the mother have sole parental responsibility for the children, that the children continue to live with her, and that there be opportunity for the children to spend time with and communicate with the paternal grandparents on at least two occasions each year. There are also restraints on the paternal grandparents communicating to the father arrangements for their spend time or communication with the children. Having regard to the history of this matter, I am satisfied that those proposals are appropriate and in the children’s best interests.
In circumstances where it is agreed, as between the applicant paternal grandparents and the mother, that the mother ought have sole parental responsibility and, where it is clear that the ICL supports that position, I will make orders as sought by the parties.
It is also common ground that, as between the paternal grandparents and the mother, the children should continue to live with the mother. This reflects the day-to-day realities of the children’s care since the time of the parties’ separation. The mother recently filed an affidavit on 22 August 2023 which sets out the children’s progress and ongoing care arrangements. The mother there deposes to her housing arrangements which are now settled. The mother has purchased a residence for herself and the children to live in. The children are settled at school and making good progress. The children have the benefit of involvement in a range of extracurricular activities which they enjoy and which they have selected themselves, including music and sports.
Having regard to all of that evidence, it is clear that the children are being well cared for by the mother, and that their individual and joint needs are being met. I am therefore satisfied that the proposed orders in respect of their living arrangements are appropriate and in their best interests.
As I have noted, there have been endeavours to rebuild the children’s relationship with their paternal grandparents. Those attempts have been met with limited success, largely due to the children’s reluctance to attend those appointments. The proposed orders recognise those difficulties but ensure that, from the children’s perspective, there will be an opportunity for regular contact with the paternal family through their paternal grandparents.
It is proposed that contact occur on two occasions per year in January and June. This will afford the children the opportunity to meet and connect with their paternal grandparents, to share information and to keep the lines of communication open. I am satisfied that what is proposed in terms of the future spend time arrangements between the paternal grandparents and the children, again, are appropriate and in their best interests.
The children will have the opportunity to maintain a connection with the paternal family as a result of those arrangements and, in my view, that can only benefit the children.
There are some boundaries that are proposed in terms of the paternal grandparents passing on information regarding spend time arrangements to the father. They are to be restrained from permitting him to attend the spend time, permitting him to communicate with the children during that time, or providing any information to him regarding the spend time arrangements.
Having regard to the history of family violence to which I have already referred, I am satisfied that those orders are appropriate in the circumstances in this case.
I make further orders that the children’s school reports be provided to the paternal grandmother. Again, I see this as an important means of providing connection between the children and their paternal family. It affords the paternal grandmother information and understanding of the children’s progress.
The orders provide for a passing on of a photograph of the children so that the paternal grandmother will have an opportunity to see how the children are growing and developing, and in circumstances where the children will be spending some limited time with the paternal grandparents twice a year, it also provides a springboard in terms of issues and information that the children and their grandparents can communicate about, which is also important. I am well satisfied that that order is in the children’s best interests.
Further orders are asked to be made to ensure that mother and the paternal grandparents provide each other with their contact details in a timely fashion. Again, this is important for the children to ensure that a link is maintained between them and the paternal family, and I am satisfied that this order is in their best interests.
Finally, I am asked to make orders restraining the parties from insulting, abusing or denigrating the other parties, from discussing these proceedings with the children, from passing messages through the children or attempting to do so. I am satisfied that orders that regulate the behaviour of the adults in the children’s lives in that manner is appropriate. It is a protective mechanism for the children that can only benefit them, and, in those circumstances, I will make that order.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 4 September 2023
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