Lauwens & Wynne

Case [2024] FedCFamC1F 152

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lauwens & Wynne [2024] FedCFamC1F 152

File number: NCC 3025 of 2021
Judgment of: AUSTIN J
Date of judgment: 14 March 2024
Catchwords:  FAMILY LAW – CHILDREN – Final parenting orders – Where the mother and father’s use of illicit drugs and unstable mental health has impaired their parenting capacity – Where interim orders were previously made for the child to live with the paternal grandparents and spend one day each week with each parent – Where the interim orders were implemented until trial with respect to the mother, but not the father – Where it was mutually agreed the child should live with the paternal grandparents and they be vested with parental responsibility – Where the dispute was confined to orders that will regulate the frequency and conditions under which the child spends time with the mother and father to ensure her protection against the risk of harm – Where the mother has taken positive steps to address her illicit drug use, mental health and living standards – Where the paternal grandparents do not doubt the competence or quality of the mother’s temporary care of the child – Where the father claimed he was abstinent from all illicit drug use but failed to adduce scientific evidence to prove his assertion – Where the father’s unstable mental health overlays the problems created by his illicit drug use – Where the father is not equipped to provide reliable and safe care for the child – Ordered child spend time with the mother one day per week with such time to change when the child commences school – Ordered the child spend not less than four hours per calendar month with the father under the supervision of either paternal grandparent.  
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 91B
Cases cited:

Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Division: Division 1 First Instance
Number of paragraphs: 78
Date of hearing: 7 & 8 March 2024
Place: Newcastle
Counsel for the Applicants: Mr Moon
Solicitor for the Applicants: Peninsula Law
Counsel for the First Respondent: Mr Graham
Solicitor for the First Respondent: Legal Aid NSW
Counsel for the Second Respondent: Ms Willoughby
Solicitor for the Second Respondent: Harpers Legal
Counsel for the Independent Children's Lawyer: Ms Kaiti
Solicitor for the Independent Children's Lawyer: Strive Family Law & Mediations

ORDERS

NCC 3025 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS LAUWENS

First Applicant

MR B LAUWENS

Second Applicant
AND:

MS WYNNE

First Respondent

MR C LAUWENS

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

14 MARCH 2024

THE COURT ORDERS THAT:

1.All former orders in respect of the child X (“the child”), born 2019,…

Continue reading Lauwens & Wynne

Sign in free to access the full text

Details
AGLC
Lauwens & Wynne [2024] FedCFamC1F 152
Case
[2024] FedCFamC1F 152
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered a case involving the parents of a young child, born in 2019, and their respective parents, the paternal grandparents. The primary dispute was about the conditions under which the child would spend time with her parents, given their histories of illicit drug use and unstable mental health. The paternal grandparents, who had been caring for the child, sought orders to regulate the child's interaction with her parents. The court was tasked with determining the appropriate parenting orders that would ensure the child's safety and well-being, while also considering the statutory presumption of equal shared parental responsibility and the need to protect the child from harm.

The legal issues before the court included whether the child should have any contact with her parents and, if so, what conditions should be imposed to ensure her protection. The court had to balance the child's need to maintain relationships with both parents against the risk of harm posed by the parents' substance abuse and mental health issues. The court considered the evidence and recommendations of the court child expert, the submissions of the parties, and the overarching requirement to act in the child's best interests.

The court decided that the paternal grandparents should have exclusive parental responsibility for the child and that she should live with them. The court ordered that the child should spend one day per week with the mother, without supervision, but only a minimum of four hours per month with the father, under the supervision of a paternal grandparent. The court rejected the child expert's recommendation for complete severance of contact with the parents, considering it would be detrimental to the child's well-being. However, the court imposed strict conditions on the father's visitation to ensure the child's safety. The court also mandated that all parties refrain from denigrating each other in the presence of the child and required them to share medical information and school reports.

The final orders of the court included discharging all previous orders, conferring parental responsibility upon the paternal grandparents, and setting specific schedules for the child's contact with each parent under strict conditions. The court also restrained the parties from denigrating each other in the presence of the child and required them to share medical information and school reports. Costs were reserved for 28 days, and any other outstanding applications were dismissed.

Orders

Orders of the court

NCC 3025 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LAUWENS

First Applicant

MR B LAUWENS

Second Applicant

AND:

MS WYNNE

First Respondent

MR C LAUWENS

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

14 MARCH 2024

THE COURT ORDERS THAT:

1. All former orders in respect of the child X (“the child”), born 2019, are discharged.

2. Parental responsibility for the child is removed from both the first respondent (“the mother”) and the second respondent (“the father”) and instead conferred upon the applicants (“the paternal grandparents”).

3. The child shall live with the paternal grandparents.

4. The paternal grandparents and the mother shall take all reasonable steps to ensure the child spends time with the mother:

(a) Until the child begins school:

(i) each Monday from 9.00 am until 5.00 pm;

(ii) on Mother’s Day from 9.00 am until 5.00 pm; and

(iii) on Christmas Eve from 9.00 am until 5.00 pm.

(b) After the child begins attending school:

(i) each alternate Sunday from 9.00 am until 5.00 pm (regardless of whether that Sunday falls in school term or school holidays);

(ii) each Wednesday in school terms from the conclusion of school until 7.00 pm;

(iii) on Mother’s Day from 9.00 am until 5.00 pm; and

(iv) on Christmas Eve from 9.00 am until 5.00 pm

5. For the purpose of implementing Order 4, the mother shall collect the child from either the paternal grandparents’ home or the child’s school (as the case may be) and shall return the child to the paternal grandparents’ home.

6. The mother is restrained from causing or permitting the child to spend any time with the maternal grandmother, Mr D, or Mr E.

7. The paternal grandparents and the father shall take all reasonable steps to ensure the child spends time with the father for a period of not less than four hours once each calendar month, on these conditions:

(a) such time is supervised by either paternal grandparent; and

(b) such time does not clash with the time spent by the child with the mother pursuant to Order 4 hereof.

8. Each party is restrained from denigrating any other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating any other party.

9. Each party shall forthwith notify the others of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a medical provider and shall authorise any treating medical provider to communicate with the other parties about the condition and treatment of the child.

10. The paternal grandparents shall authorise and request the principal of any school attended by the child to provide to the mother and father, at their respective expense, copies of all school reports and school photograph order forms relating to the child.

11. The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.

12. Costs are reserved for 28 days.

13. Any and all other outstanding applications are dismissed.

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.

Background

Background to the litigation

For the following reasons, orders are made for the child to regularly spend time with each parent, though the form of orders differs in respect of each parent. The child will spend unsupervised time with the mother, but only supervised time with the father. If and when the father wants to dispense with the requirement for supervision, the onus falls upon him to bring fresh proceedings to prove the durability of his abstinence from illicit drug use and the stability of his mental health. He did not do so on this occasion.BACKGROUND The child’s parents commenced a relationship in 2017 and the child was born in 2019. The parents’ relationship was unstable and they finally separated in early 2021, after which time the child’s residence was fluid. At times, at the mother’s request, the child lived with the paternal grandparents. That remained the case from about August 2021, following which the child welfare agency ceased its intervention in the family’s affairs. The paternal grandparents commenced these proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in September 2021, seeking orders that the child live with them and that they have parental responsibility for her. In April 2022, a registrar made an order under s 91B of the Act inviting the child welfare agency to intervene in the proceedings but, by a letter sent to the Court in May 2022, the agency declined to do so. Ultimately, in June 2022, interim orders were made for the child to live with the paternal grandparents and to spend one day each week with each parent, which orders were implemented until the trial in March 2024 with respect to the mother, but not the father. In 2023, the father attended a birthday party for the child held by the paternal grandparents at their home, at which event he took an illicit drug and was then asked to leave when an argument developed, following which the paternal grandparents suspended arrangements for the child to spend time with him. In the few months which have since elapsed, they have allowed the father to see the child on only three occasions at their home under their supervision.PROPOSALSPaternal grandparents By their Amended Initiating Application filed in October 2021, the paternal grandparents sought orders for the child to live with them and for them to have parental responsibility for her. They did not seek any prescriptive orders regulating the child’s interaction with either the mother or father, proposing instead that such decisions be left to them as an incident of their parental responsibility. At the commencement of trial, they tendered a different Minute of the Orders they instead proposed,[1] containing prescriptive orders regulating the time the child would spend with each parent, subject to them fulfilling certain conditions. Before final submissions commenced, the paternal grandparents tendered a substitute Minute of Orders embodying their final proposal, which differentiated the circumstances under which the child would spend time with each parent.[2][1] Exhibit A1[2] Exhibit A2

Evidence

Evidence Before The Court

So far as the father was concerned, the ICL agreed with the paternal grandparents that the child should only spend time with him under the supervision of at least one of the paternal grandparents.EVIDENCE The paternal grandparents relied upon their affidavits filed on 9 February 2024. The mother relied upon her affidavit filed on 31 January 2024. The father relied upon his affidavit filed on 9 February 2024. He was also granted leave to rely upon the evidence of his partner,[6] even though she did not affirm and file an affidavit in compliance with an earlier procedural order.[7][6] Exhibit F1[7] Order 7(b) made on 20/12/23 The parties and the ICL relied upon:(a)the Child Impact Report dated 1 April 2022; and(b)the Family Report dated 6 January 2023. Numerous other exhibits were tendered.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), but the presumption does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). Here, the parties agree it would not be in the child’s interests for parental responsibility to be conferred equally upon the parents. If parental responsibility for the child is allocated in some way other than equally to the parents, as will be the case in this instance, then the exercise of the Court’s discretion about the child’s care arrangements is at large and the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) It was uncontentious that the child has, and will accrue benefit from retaining, meaningful relationships with both parents (s 60CC(2)(a)), subject to her being kept safe (s 60CC(2A)).Section 60CC(2)(b) Section 60CC(2)(b) directs attention to the need for the child’s protection from physical or psychological harm which might result from her subjection or exposure to “abuse”, “family violence” or “neglect”. No submission was made that the child currently needs protection against exposure to “family violence”, which dissipated as an issue during the litigation.[8][8] Family Report at [108]

Decision

Reasons for decision

Despite that frank incident of violence and the general history of turbulence within the parents’ relationship, neither the parties nor the ICL contended the child or anyone else requires protection against the risk of their exposure or subjection to family violence. The issue fell away.[49][49] Family Report at [108]CONCLUSIONS It was common ground the paternal grandparents should have exclusive parental responsibility for the child and she should live with them. The essential issues are whether any orders should be made to regulate the child’s interaction with the parents and, if so, the nature of the conditions which must be imposed to ensure the child’s protection against the risk of harm. The court child expert made cascading recommendations concerning the child’s interaction with the parents. She principally opined it would not be in the child’s best interests for her to spend any time at all with the parents if they had not engaged in effective drug and alcohol treatment, had not ceased illicit drug use, and had not achieved permanent sobriety.[50] On the available evidence, neither parent has fulfilled those pre-conditions. Any rehabilitation programs in which they have participated have either been abandoned or were completed unsuccessfully.[50] Family Report at [184] If, despite her principal recommendation, orders are nonetheless made to ensure the child spends some time with either parent, the court child expert alternatively recommended that such visits be confined to four hours each month and be professionally supervised.[51] The court child expert opined the child should not spend any unsupervised time with the parents until they had successfully undertaken some form of drug rehabilitation course and produced a negative drug test with longitudinal reliability.[52] [51] Family Report at [194][52] Family Report at [191]–[192] The court child expert’s recommendations were made in the family report despite her knowing the parties were then implementing the interim orders made in June 2022, enabling the child to spend one day per week with each parent without any supervision. Her recommendations remained unchanged during her cross-examination at trial, though she was inclined to express some optimistic hope about the mother’s rehabilitation when asked to make assumptions about the proof of her progress over the past 18 months. Despite the court child expert’s recommendations, the parties and the ICL all agreed orders should be made to ensure the child does spend regular time with both parents, though there was disagreement about the form of such orders. I reject the court child expert’s primary recommendation of immediate eradication of the parents from the child’s life, principally for two reasons. First, the court expert’s report was compiled about 15 months ago and she was ignorant of the rehabilitative steps since taken by the mother. Secondly, I consider it would be deleterious to the child to so dramatically rupture the arrangements under which she has been spending time with each parent since June 2022. However, I do accept the court child expert’s admonition to proceed cautiously.

Ratio Decidendi

Legal Principle Established

Although the child could feasibly be at risk of harm by reason of her “neglect” by either the mother or father if she happens to be in the care of either while intoxicated by illicit drugs, that concern tended to be addressed by the parties as a consideration in respect of the parents’ deficient parenting capacity (s 60CC(3)(f) and s 60CC(3)(i)) rather than them posing frank risks of physical or psychological harm to the child (s 60CC(2)(b)).BEST INTERESTS – ADDITIONAL CONSIDERATIONS Not all of the factors prescribed by s 60CC(3) of the Act were engaged, either by the evidence or the parties’ submissions. It is only necessary to address the factors which are relevant.Section 60CC(3)(b) There was no dispute the child enjoys warm and loving relationships with both paternal grandparents, the mother, the father, and her younger half-sibling, who lives with the father.[14][14] Family Report at [156], [157], [158] and [183] The child’s complete estrangement from her parents and half-sibling could have long-term adverse repercussions for her.[15] Eventually, the parties and the ICL adopted the uniform position that the child should regularly spend time with each parent (albeit under different conditions) and so the child’s relationships with the parties and her half-sibling will not be compromised.[15] Family Report at [185]Sections 60CC(3)(f)(i) and 60CC(3)(i) Some concerns were tangentially raised about the paternal grandparents’ capacity to meet all of the child’s physical, emotional and intellectual needs,[16] but such concerns were not raised in their cross-examination. Given agreement the child should live with them and they should have exclusive parental responsibility for her, those concerns fell away.[16] Family Report at [89], [93], [104] and [108] The emphasis was firmly upon the impaired parenting capacity of both parents by reason of their illicit drug use and unstable mental health, though the evidence in relation to each is different and is considered separately. The mother has been forced to endure psychological distress caused by trauma experienced in both childhood and adulthood, the details of which need not be explicated.[17] Her illicit drug use can be traced back to age 14 years, when she began using cannabis, but then moved on to the use of harder pharmacological drugs at age 16 years. The mother was still using cannabis when she conferred with the court child experts in March 2022[18] and December 2022, at which later time she admitted her need to enter into a residential drug rehabilitation program.[19] Her drug tests between November 2021 and July 2022 show positive results.[20] The mother has tried but abandoned past drug rehabilitation counselling and has not admitted herself to a residential rehabilitation facility,[21] which she told the court child expert she would not do so if it meant surrendering her public housing accommodation.[22][17] Child Impact Report at [10], [38]; Family Report at [20], [24][18] Child Impact Report at [31][19] Family Report at [151][20] Mother’s affidavit at [97]–[99][21] Mother’s affidavit at [101]–[104][22] Family Report at [151]