Monteiro & Monteiro
[2025] FedCFamC2F 817
•21 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Monteiro & Monteiro [2025] FedCFamC2F 817
File number(s): MLC 13089 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 21 May 2025 Catchwords: FAMILY LAW – Parenting – Matter listed as interim hearing – Decision to proceed in absence of mother – Where mother has recently disclosed problematic drug use – Where mother has told parties she does not intend to be involved in proceedings – Decision to proceed undefended on final orders – Where father and second respondent paternal grandparents seek orders for live with and spend time arrangements to be determined by agreement – Where previous orders have not been followed but parties have made arrangements by agreement – Final orders made. Division: Division 2 Family Law Number of paragraphs: 19 Date of hearing: 21 May 2025 Place: Dandenong The Applicant: In person The First Respondent: No appearance The Second Respondents: In person Counsel for the Independent Children's Lawyer: Mr O’Connell Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers ORDERS
MLC 13089 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MONTEIRO
Applicant
AND: MS MONTEIRO
First Respondent
MS B MONTEIRO AND MR C MONTEIRO
Second Respondents
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 MAY 2025
THE COURT ORDERS THAT:
1.All extant orders in relation the child, X born in 2013 (‘X’), be and are discharged.
2.The parties, MR MONTEIRO (‘the Father’), MS MONTEIRO (‘the Mother’), and MS B MONTEIRO and MR C MONTEIRO (‘the Paternal Grandparents’) (collectively referred to herein as ‘the four caregivers’), have responsibility for long term decision-making regarding the welfare of X and make such decisions as agreed between the four caregivers, and in default of agreement between the four caregivers, as agreed between the Father and the Paternal Grandparents.
3.X live with and spend time with the parties as agreed by the four caregivers, and in default of agreement, X live with and spend time with the parties as agreed between the Father and the Paternal Grandparents.
4.The Independent Children’s Lawyer be and is discharged.
5.The proceedings be and are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Orders 1 – 3 of these orders are orders of the Court, and were determined by the Court, but are in the form as ultimately sought by the Father and the Grandparents and consented to by the ICL.
B.Pursuant to ss 65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A 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).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
The matter of Monteiro comes before me, formally, on the application in a case by Mr Monteiro (‘the Father’), where proceedings had been pending since 9 November 2023. I proceeded in the absence of the first respondent mother, Ms Monteiro (‘the Mother’). Present in court were the Father and the second respondents, Ms B Monteiro (‘the Paternal Grandmother’), and Mr C Monteiro (‘the Paternal Grandfather’).
Background
The child, X, was born in 2013. His father is 41, his mother is 39, and his paternal grandparents are remarkably young in the circumstances of their lives, and it is unnecessary to recite their ages. The last, or current, bout of trouble for X commenced when his mother commenced proceedings on 9 November 2023. It is apparent that she expressed and alleged concerns about the Father’s mental health. It is apparent that, rightly or wrongly, the Court and the Senior Judicial Registrar dealing with the matter were troubled by the allegations and had an obligation to act protectively.
The end result of that initiation of proceedings and the various allegations being made was that on 11 December 2023, orders were made that the Father obtain a psychiatric report as to his circumstances and, at order 8, he was restrained from spending any time with the child. It was also ordered that neither parent consume any illicit drugs. Those orders, at that time, noted that X spent considerable time with the Paternal Grandparents. The end result of that was that X did not see his father until after a child impact report was undertaken and the matter returned to court in May of 2024.[1]
[1] Unsurprisingly, the Father felt strongly, and expressed to the Court, a sense of injustice about those events.
Child Impact Report
The child impact report made certain recommendations, and in the process of making those recommendations, had interviewed X and Paternal Grandmother and each of the parents. In that child impact report, it described a child in grade 5 who was a delightful and sensitive and caring child. The report also included the following:
19. [X] articulated that he would like to live mostly with his mother, and to spend time regularly with his grandparents and his father... [X]’s three wishes for things to be better in his family were: for both parents to have a ‘good amount of money;’ to not have to come back to Court;’ ‘everyone to be happy with how things turn out so I can just go back to being a kid.’ [X] thought it was important for the Judge to know that he wants to see his dad and for everyone to be happy.
20. [X] became guarded when asked about the incident before Christmas... He commenced pacing the room, as though he was worried about his response, stating that he may have remembered an argument from when the family were living in [Suburb D], but not recently, that everything was fine now, stating that ‘couples fight and make up.’
I infer from those paragraphs that X had a good relationship with both of his parents at that time. I do not find that what is recited there is true and correct, or that the allegations are made out, rather, that is how an independent expert back in February of 2024 found X when assessed.
May 2024: orders for equal time
Following the orders in May 2024 – which provided as orders of the Court that X’s care be shared equally between his parents, but with significant involvement from the Paternal Grandparents, who, by this stage, were parties to the proceedings – things did not go as smoothly as they might have. Nonetheless, it is clear enough that for significant periods prior to the issue of the November 2023 proceedings, X had spent substantial periods living with his father, and living, with his mother and living with his paternal grandparents.
The Father has told me this day that he is neurodivergent and suffers from post-traumatic stress disorder and ADHD. I have no reason to doubt what he tells me in regard to those matters.
No one attended for family report
Along the way, in the circumstances where the child impact report is merely a snapshot of circumstances at that time, an order was made for a full family report to be undertaken. The difference between the child impact report and the full family report is that the full family report is intended to be far more extensive, detailed, with more time for reflection by the report writer than the child impact report. In this case, the family report did not get very far because no one attended for it.
Child Protection ceased involvement in 2020
It is apparent from Child Protection reports and documents that are before the Court (as a result of court orders and the usual practice of the Court) that despite all the trouble in X’s life, certainly as at February 2020 and again later on to similar effect, notwithstanding the difficult matters that X had been exposed to or was alleged to have been exposed to, the families were at least, at some times, working collaboratively to ensure that X’s needs were met, and Child Protection ceased all involvement with the family.
In 2023 and in 2024, Child Protection had a similar view. I am not bound by the views and opinions of Child Protection, but I place some weight on Child Protection’s assessment. As at 10 December 2024, child protection observed as follows:
Child protection does not hold any concerns in relation to either [the father] or [the mother’s] capacity to provide care for [X]. Despite being a history of child protection involvement, there have been no significant concerns noted in relation to [X]’s care in either parent’s care during the current involvement.
It appears, and I am satisfied, that at that time, on 10 December 2024, Child Protection were not aware that the then existing court-ordered fortnightly rotation was not actually taking place. Rather, by agreement between, or acquiescence between, the parents and the grandparents, different arrangements were made.
The Mother discloses drug use
I am told, and accept, that in September 2024 the Mother told the Paternal Grandparents, or the ICL, or the Father, or told someone concerned with the case that she had relapsed in methamphetamine abuse. She again told someone of that in December 2024. After the disclosure I have referred of December 2024 above, the Mother again told someone that she had relapsed. I note that it is unfortunately significantly unusual that a parent in potentially contested parenting proceedings would volunteer and disclose involvement with drugs of addiction as serious as methamphetamines. That was, to my mind, remarkable and responsible by the Mother.
The Father then, though not necessarily in these words, but in substance, communicated to the Mother that he empathised with her circumstance, and that he was not prepared to judge her or ban her from having time with X. Rather, if she was well and not using methamphetamines, then he welcomed her involvement in X’s life, as well as the involvement of Y, X’s younger sister, who had been living with her father and X’s mother, in X’s life. The restraint on the Father’s part in not leaping upon the Mother from a great height in her difficult circumstances, but, rather, to attempt to show empathy is the second remarkable event.
Orders sought by the parties
When the matter came on before me this day, it was apparent that the Father’s application dealt with two things. Firstly, the issue of what should happen in the future in terms of court orders, and then, secondly, his unhappiness with events of the past. It transpires, and I accept, that on one occasion of what was a procedural hearing, where orders relating to X’s welfare were not made, but nonetheless an important hearing, the Father had attended court for the bulk of the day and was outside the courtroom, and later on learned that the hearing had occurred in his absence.[2] His distress in those circumstances can be readily understood. Nonetheless, no orders were made relating to where X would live on that occasion.
[2] It may be the matter was called when listed and prior to the Father arriving at Court.
In the week prior to the matter coming before me, the Independent Children’s Lawyer (‘the ICL’) had filed an outline of case that, in substance, said there was no further role for the Court or court orders in this matter, because the parents and the paternal grandparents did not strictly follow court orders, but, rather, worked out sensible arrangements for X’s welfare between them. The ICL urged that the proceedings be dismissed, which is lawyer’s language for we are not going to have any more court cases about this child.
Mother aware of proceedings and this Court date
During the hearing, I called the Paternal Grandmother to the witness box, and she gave evidence of having discussed personally, by text message and telephone call, with X’s mother the fact of court cases concerning X’s welfare proceeding and her knowledge of this particular court case. I accept that evidence.
I accept that X’s mother knows of the proceedings, has had the opportunity to participate (to the extent that she is able to participate given her vulnerabilities) and knows of the hearing this day. Hence, in those circumstances, I am satisfied, firstly, that it is appropriate to proceed in the absence of X’s mother, and, secondly, that it is appropriate to proceed on the basis of the evidence that I have.
Final orders
After some discussion with X’s father, who addressed me in courteous and articulate terms about his concerns, I was satisfied that there was not, at least at this time and in the foreseeable future, an underlying dispute between those concerned with X’s welfare as to what X’s arrangements should be. I was told by X’s father and then, separately, X’s paternal grandparents, that the orders that would best advance X’s welfare would be orders where responsibility for long-term decisions relating to his welfare should be as agreed between the four adults most important in his life; that is, Ms B Monteiro and Mr C Monteiro (the Paternal Grandparents), Mr Monteiro (his Father), and Ms Monteiro (his Mother). I was also told that the live-with order that would best advance X’s welfare was an order that X live with and spend time with those four adults that are important to him, as agreed between them and, in default of agreement, that those arrangements be as agreed between X’s father and the Paternal Grandparents. I am satisfied that those orders are in X’s best interests.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 17 June 2025
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