Abbott and Abbott and Anor
[2011] FMCAfam 572
•17 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABBOTT & ABBOTT & ANOR | [2011] FMCAfam 572 |
| FAMILY LAW – Parenting – application by paternal grandmother for time with seven year old child – father schizophrenic – child having no time with father – mother Greek and Maltese – father Salvadoran. |
| Family Law Act 1975, ss.60B, 60CA, 60CC |
| Applicant: | MS D ABBOTT |
| First Respondent: | MS L ABBOTT |
| Second Respondent: | MR C ABBOTT |
| File Number: | MLC 1762 of 2010 |
| Judgment of: | Riley FM |
| Hearing date: | 8 June 2011 |
| Date of Last Submission: | 8 June 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Allen |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Barbayannis |
| Solicitors for the First Respondent: | Pearsons Barristers & Solicitors Pty Ltd |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | No appearance |
ORDERS
The applicant paternal grandmother be restrained from allowing [X] born [in] 2003 (“[X]”) to have any contact with the second respondent father except by order of the court or with the consent in writing of the first respondent mother.
The applicant paternal grandmother be restrained from initiating any discussion with [X] about her father, or permitting any other person to do so.
The applicant paternal grandmother have liberty to respond to any questions or comments that [X] has about her father, and may permit other persons to also respond.
The applicant paternal grandmother undertake education with a child development expert about putting [X]’s emotional needs ahead of the paternal grandmother’s emotional needs.
The first respondent mother undertake education with Centacare, about the consequences for [X] if she is distanced from her paternal family.
The first respondent mother facilitate [X] telephoning the applicant paternal grandmother, or other members of her paternal family, other than the second respondent father, if and when [X] wishes.
The applicant paternal grandmother, and other members of the paternal family, other than the second respondent father, be permitted to send [X] gifts and cards care of the maternal grandmother’s address.
[X] spend two hours per month with the paternal grandmother at times to be agreed during the first week of each month:
(a)at the [omitted] contact centre for the next six months;
(b)in a public place to be agreed by the paternal grandmother and the mother, and, in default of agreement, at [J] Play Centre, for the following three months; and
(c)thereafter, at the paternal grandmother’s home or such other place as the paternal grandmother and the mother agree.
[X] spend such further or other times with the paternal grandmother as the paternal grandmother and mother agree in writing.
The dates and times of [X]’s time with her paternal grandmother pursuant to order 8(a) hereof is to be as directed by the contact centre.
The dates and times of [X]’s time with her paternal grandmother pursuant to orders 8(b) and 8(c) is to be on Mr K’s day off work, which is to be notified by the mother to the paternal grandmother in the first week of the previous month, or as agreed between the paternal grandmother and the mother in writing.
[X]’s time with her paternal grandmother pursuant to orders 8(b) and 8(c) hereof is to take place in the presence of Mr K, or such other adult as the paternal grandmother and the mother may agree, for at least three months, and then until further order of the court or until the mother otherwise consents in writing, such consent not to be unreasonably withheld.
During [X]’s time with her paternal grandmother pursuant to order 8(c) hereof, [X]’s paternal aunt and uncle may be present.
The mother ensure that [X] is delivered to and collected from the places where she will spend time with her paternal grandmother.
All applications otherwise be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Abbott & Abbott & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1762 of 2010
| MS D ABBOTT |
Applicant
And
| MS L ABBOTT |
First Respondent
| MR C ABBOTT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X] who was born [in] 2003 (“[X]”). [X] is seven and a half years old.
[X]’s parents were married in 2002 and separated in 2006. Since separation, [X] has lived with her mother. [X]’s mother has repartnered with Mr K. They have one child, a daughter, who was born [in] 2009.
In 2008, [X]’s father commenced proceedings in the Family Court. The proceedings culminated on 6 January 2009 with consent orders whereby:
a)[X] lives with her mother;
b)[X]’s mother has sole parental responsibility for her; and
c)there is no provision for [X] to spend time with her father.
The minute of proposed orders provided for [X] to spend time and communicate with her father at times to be agreed between the parents. However, that was crossed out and initialled.
It seems that [X] has not spent any time with her father in the last four years or so. The mother said that he was violent and had schizophrenia.
The present application was commenced by the paternal grandmother on 26 February 2010. [X]’s mother is the first respondent and [X]’s father is the second respondent. He has taken no part in the present proceeding.
The paternal grandmother gave unchallenged evidence, which I accept, that, from the time [X] was about three years old, in November 2006, [X] would spend every weekend with her paternal grandmother. However, after about January 2008, the mother did not allow [X] to spend time with her paternal grandmother, or anyone else in [X]’s paternal family.
The mother initially said that she strongly opposed the paternal grandmother’s application and sought orders that it be dismissed. The mother said she was concerned that the paternal grandmother:
a)had depression and anxiety and, as a result, she was not able to properly care for [X];
b)is a Jehovah’s Witness; and
c)might allow contact between [X] and her father.
When the matter came before the court on 13 April 2010, the mother and the paternal grandmother consented to orders whereby:
a)for six months, [X] would spend two hours every three weeks with her paternal grandmother;
b)that time was initially to be supervised by Mr K but, once a place became available, would occur at a contact centre;
c)[X]’s father and other members of [X]’s paternal family were not to attend; and
d)the paternal grandmother was to undergo psychiatric assessment.
The father did not appear in court on that occasion, or on any others. Consequently, the orders were not formally made by consent, even though the mother agreed to them.
The paternal grandmother was 55 minutes late for her first visit with [X], due to some confusion with public transport. The other scheduled visits occurred more or less in accordance with the orders.
The matter returned to the court on 7 December 2010. Orders were made with the consent of the paternal grandmother and the mother, but the father did not appear at the hearing. Consequently, the orders were not formally made by consent. They provided for [X] to spend further time with her paternal grandmother about once a month at a contact centre and at [J] Play Centre. The [J] visits were to be visually supervised by Mr K. Those visits occurred.
Psychiatric evidence
The paternal grandmother’s treating psychiatrist, Dr G, provided an affidavit. He was not cross examined. Dr G said that the paternal grandmother came to Australia as a refugee after witnessing very frightening experiences in El Salvador. He said that the paternal grandmother had prominent but manageable anxiety and depression, which had been stabilised with medication and psychotherapy. Dr G said that the paternal grandmother functioned well in her day to day activities. He said that the paternal grandmother’s mental state would improve if she were allowed to develop a relationship with her granddaughter.
A further assessment was provided by Dr D. He was not cross examined. Dr D said that:
… [the paternal grandmother] presented as an appropriately groomed and attired woman who maintained a polite, courteous and gentle manner. …
…
… [The paternal grandmother’s] mental state in this assessment was mostly very normal and stable. The only points of fragility were noted when she reflected upon the grief associated with accommodating the knowledge that her son … had schizophrenia, and the anguish associated with being separated from [X]. [The paternal grandmother] was able to readily contain these brief episodes of sadness.
…
… She openly advised that she recognised [the mother] to be a very good mother. …
…
… there is no reason on psychiatric grounds for [the paternal grandmother] to not be permitted unsupervised contact with [X].
The family report
A family report was prepared by Ms E. Ms E conducted interviews on 18 April 2011 with [X], her mother, her paternal grandmother and
Mr K.
Ms E did not observe [X] with her paternal grandmother, apparently because [X] did not want to see her. Ms E reported that [X] told her that she did not feel comfortable seeing her paternal grandmother and did not want to see her any more. [X] said that sometimes she acts as though she wants to see her paternal grandmother, because she does not want to make her feel sad.
Ms E considered that, given [X]’s age and presentation, it would be distressing for her to be forced into a situation of regular time with her paternal grandmother. In the circumstances, Ms E recommended that [X] be facilitated to spend time with her paternal grandmother if she expressed a wish to do so.
Contact centre report
Ms C provided an affidavit exhibiting a report about the contact centre visits. Ms C was not cross examined, due to difficulties in her being able to attend court. The mother did not resist the affidavit being received in evidence, but submitted that limited weight should be given to the contact centre report, because it was based on notes made by various workers at the centre rather than on Ms C’s own observations.
I have no reason to doubt the accuracy of the statements made in the contact centre report. I accept that the contact centre report accurately sets out the events that it describes and give it full weight.
During the visit on 2 October 2010, the contact centre report noted, among other things:
[X] was observed to appear relaxed and comfortable in her grandmother’s presence and maintained a close proximity to her as they played and interacted with the centre’s toys and activities. It was documented that [X] and her grandmother initiated spontaneous physical contact with each other on a number of occasions during the visit. For instance, [X] initiated a game of ‘tiggy’ with Ms D. Abbott and allowed her grandmother to hug and kiss her after catching her in her arms. [X] was observed to smile and mould her body against her grandmother’s during this interaction with Ms D. Abbott responding by swaying rhythmically as she hugged her granddaughter.
During the visit on 30 October 2010, the contact centre report noted, among other things:
[X] and her grandmother maintained a close physical proximity to each other during the visit as they sat next to each other playing board games and unwrapping [X]’s birthday gifts. Ms D. Abbott was observed to frequently initiate physical contact with [X] during the visit, often approaching and spontaneously hugging her. It was documented that [X] appeared comfortable with her grandmother’s gestures of physical affection and responded by reciprocating her grandmother’s hugs.
…
Ms D. Abbott and [X] shared a hug at the conclusion of the visit. Ms D. Abbott told [X] “I love you” and [X] replied, “I love you too”.
During the visit on 27 November 2010, the contact centre report noted, among other things:
It was documented that during the arts and craft activity [X] drew a picture for her grandmother and wrote, “I love you” on the drawing. Ms Abbott provided positive commentary to [X] during play often telling her “you’re so smart [X]” or “that’s really good”. Ms D. Abbott provided gentle instruction to [X] and encouraged fairness during their play. For instance, when [X] missed batting the ball twice during the game of cricket and insisted that it was still her turn Ms D. Abbott reminded her of their agreement to swap after two misses. [X] responded by handing her grandmother the bat and taking her turn at bowling.
…
At the visit’s conclusion Ms D. Abbott kissed [X] on the cheek and told her “I love you”. [X] replied, “I love you too” before proceeding back to her mother.
During the visit on 14 May 2011, the contact centre report noted, among other things:
During the art and craft activity [X] made her grandmother a card and requested that her grandmother “not peep so that it would be a surprise”. Ms D. Abbott complied with [X]’s request of colouring in some paper cut outs as she waited for [X] to finish her card. [X] was observed to write on the card “I (image of a love heart) Nana [first name omitted – Ms D. Abbott] (three images of love hearts)”. [X] had written “happy mothers day” on the card and drawn a picture of a girl and a love heart. [X] gave the card to Ms D. Abbott who exclaimed “That’s beautiful [X], oh thankyou [X]”. [X] replied “there are three love hearts because I love you”. Ms D. Abbott responded “I will keep this forever, when you grow up if you want to see it I’ll be waiting for you with open arms”.
…
At the visit’s conclusion, [X] demonstrated reluctance to leave as she flopped down on the floor and laid on her stomach when the worker ([name omitted]) indicated that her mother had arrived. Ms D. Abbott rubbed [X]’s back and asked her if she remembered how she used to give her back rubs when she was younger. [X] smiled and laid stll for several minutes as Ms D. Abbott rubbed her back. At Ms D. Abbott and the worker’s prompting [X] got up, from the ground and the pair shared a hug and verbally farewelled each other “goodbye”.
In conclusion, the contact centre report said the following:
Ms D. Abbott has attended the Children’s Contact Service for all scheduled supervised visits with [X]. Ms D. Abbott has demonstrated a keen interest in time spent with her grandchild and has presented as an active participant where she has engaged in multiple activities with [X], allowing her to initiate most of the play. Ms D. Abbott has presented as a willing and cooperative participant of the service and has made an effort to prepare herself for visits at the centre, often arriving with various play activities, games and toys for her granddaughter to play with.
Ms D. Abbott and her granddaughter have made progress in the visits in establishing a close relationship, with [X] appearing relaxed and comfortable in her grandmother’s presence and demonstrating no reluctance to physical contact with her.
[X] appears to have formed a warm and close bond with her grandmother, with Ms Abbott interacting cooperatively with [X] and the pair conversing freely during the visits. [X] appears at ease with her grandmother as the contact has progressed and has become increasingly responsive both in her initiation of, and acceptance of, physical affection from her grandmother.
Ms L. Abbott has presented as a cooperative participant of the service however, she has appeared somewhat ambivalent in supporting her daughter’s relationship with her paternal grandmother as demonstrated by comments and concerns she has raised about Ms D. Abbott’s mental health status, religion and her reluctance for Ms D. Abbott to provide gifts to her granddaughter. A therapeutic program such as the ‘Parenting Orders Program’ (Centacare) may be of benefit to the family to support [X] in her relationship with her grandmother and Ms L. Abbott in attending to her daughter’s needs in her relationship with Ms D. Abbott.
Family consultant’s oral evidence
Ms E did not have the benefit of the contact centre report when she wrote her family report. However, before giving oral evidence, Ms E had the opportunity to read the contact centre report. She was also advised that the paternal grandmother and the mother envisaged orders restraining the paternal grandmother from allowing [X] to have contact with her father. After hearing that, and after reading the contact centre report and being cross examined by both counsel, Ms E amended her recommendations.
Ultimately, Ms E recommended that:
a)[X] continue to have monthly visits with her paternal grandmother:
i)at a contact centre for six months;
ii)
then in a public place for three months in the presence of
Mr K or another person agreed by the mother and the paternal grandmother;
iii)then at the paternal grandmother’s home for three months in the presence of Mr K or another person agreed by the mother and the paternal grandmother; and
iv)then, if everything has gone well, at the paternal grandmother’s home without another adult required to be present;
b)[X] be able to telephone her grandmother if she wishes;
c)the paternal grandmother be permitted to send [X] gifts and cards;
d)the paternal grandmother be restrained from allowing [X] to have any contact with the second respondent father;
e)the paternal grandmother be restrained from initiating any discussion with [X] about her father, but be free to respond to any questions or comments that [X] has;
f)the paternal grandmother undertake education with a child development expert about putting [X]’s emotional needs before the paternal grandmother’s emotional needs; and
g)the mother undertake education with, for example, a family worker at her local community health centre, about the consequences for [X] if she is distanced from her paternal family.
The proposals of the paternal grandmother and the mother
Following Ms E’s oral evidence, the paternal grandmother and the mother indicated their agreement to recommendations (a)(i), (a)(ii) and (a)(iii). It seems to have been understood that [X] would spend two hours with her paternal grandmother on each of those occasions.
However, after the three visits at the paternal grandmother’s home:
a)the mother wanted the same arrangements to continue indefinitely; and
b)the paternal grandmother wanted the visits at her home:
i)to be extended to four or five hours;
ii)to be without Mr K being present;
iii)to include [X]’s paternal aunt and uncle on some occasions; and
iv)to include some time at around Christmas and [X]’s birthday, even though, as a Jehovah’s Witness, the paternal grandmother does not celebrate Christmas or birthdays.
The mother agreed to [X]’s paternal aunt and uncle being present at the visits that occurred at the paternal grandmother’s home. The paternal grandmother and the mother agreed to orders for them both to undertake courses of education as recommended by Ms E.
The mother agreed that Mr K would take [X] to and from her visits with the paternal grandmother. The mother asked that, when Mr K was in attendance, that the visits take place on his day off, with one month’s notice to be given of the day in any given month. The mother also asked that any gifts and cards sent by the paternal family for [X] be sent to the maternal grandmother’s home.
The mother and the paternal grandmother agreed that the restraints recommended by Ms E should be imposed.
The best interests of [X]
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
(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
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(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
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). (emphasis added)
Section 60CA of the Act provides that:
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.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
In the present case, there is no question that [X] has a meaningful relationship with her mother and benefits enormously from that relationship. It was not suggested in this case that [X] would benefit at this stage from having any sort of relationship at all with her father. It was common ground that, sadly, [X]’s father has some very serious mental health issues which presently preclude him from having a relationship with [X].
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother initially submitted that there was a need to protect [X] from psychological harm from being subjected to neglect by her paternal grandmother. The neglect was said to possibly arise from the paternal grandmother’s inability to deal with the stresses in her own life, such as her anxiety and depression and her anguish that [X] does not see her father. It seems to me that these concerns are better addressed under other factors, such as the ability to meet a child’s emotional needs, or any other relevant fact or circumstance.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The mother said in her affidavit that [X] would have tantrums before going to see her paternal grandmother and [X] had said that she wished the paternal grandmother was dead.
I do not accept that evidence. The mother did not mention these allegations to Ms E. The mother said that no one else, not even Mr K, had witnessed the alleged tantrums or alleged comment. More importantly, these allegations are completely at odds with [X]’s words and actions that were recorded at the contact centre over a considerable period of time.
It is true that [X] told Ms E that she did not want to see her paternal grandmother any more, apparently because she feels more comfortable with her mother. However, Ms E did not observe [X] with her paternal grandmother, apparently in accordance with [X]’s wishes.
Most significantly, [X]’s words and actions at the contact centre suggested that her real feelings were quite different to the feelings that she conveyed to Ms E. The contact centre report shows that [X] told her paternal grandmother that she loves her, [X] treated her paternal grandmother in a very loving way and [X] was reluctant to leave her paternal grandmother at the end of the last session. It seems clear that [X] does have a loving bond with her paternal grandmother, but feels conflicted for some reason.
Given that [X] is so young, given that [X]’s words and actions as recorded by objective observers at the contact centre indicate a growing loving bond between [X] and her paternal grandmother, and given that it is so important for [X]’s long term psychological stability that she has a relationship with the paternal side of her family, I consider that little weight should be given to [X]’s views as stated to Ms E. I am reinforced in this conclusion by the fact that Ms E, ultimately, also seemed to give little weight to the views [X] stated to her.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
There is no doubt that [X] has an excellent relationship with her mother and the mother’s new partner, Mr K. Unfortunately, but for good reason, [X] presently has no relationship with her father.
[X] has a developing relationship with her paternal grandmother. At this stage, [X] has no relationship with any other members of her paternal family, such as her aunt and uncle.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
There seems to be no doubt that the father is willing for there to be a close and continuing relationship between [X] and her mother. His capacity to actually facilitate and encourage such a relationship is unknown.
The mother, for reasons already explained, is completely opposed to [X] having any relationship with her father, at least while he suffers from his present difficulties.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The parties, by the end of the hearing, did not propose any change in [X]’s circumstances.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
It is not proposed in the present proceeding that [X] will spend time or communicate with her father. To the extent that this factor might apply to [X]’s time with her paternal grandmother, Mr K has very kindly agreed to facilitate the contact.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
In general terms, the mother is well able to provide for [X]’s needs, including her emotional and intellectual needs. However, [X] needs to feel that the part of herself that comes from her paternal side is worthy and valuable.
The mother initially sought to cut [X] off from the paternal side of her family. That is a very strong indication to [X] that the part of herself that comes from the paternal side is not worthy and valuable.
However, on Ms E’s recommendation, the mother, to her credit, is willing to undertake a course of education to assist her to understand [X]’s needs in this regard.
The father, it seems, is presently unable to provide for [X]’s needs.
The paternal grandmother is, to some extent, able to fulfil [X]’s need to know about and enjoy her Salvadoran heritage and to fulfil [X]’s need to have a physical and emotional connection with her paternal family.
On the other hand, the mother is concerned that the paternal grandmother is not able to fulfil [X]’s need to be spared stress and anxiety. This concern is based on the paternal grandmother having a documented history of depression and anxiety and also on her being prone to being overly emotional, particularly in relation to [X] not being able to spend time with her father.
Dr D has given unchallenged evidence, which I accept, that there is no reason on psychiatric grounds for the paternal grandmother to not spend time with [X]. However, I accept the mother’s concern that the paternal grandmother is overly emotional. For example, in the witness box, she said, with tears and with her arms waving, that “It is killing me” that her son does not have a relationship with [X].
That is obviously a circumstance that would cause a great deal of anguish to any mother and grandmother. However, it is very important for [X] that her paternal grandmother learns to contain her feelings about such matters, at least when she is with [X].
Ms E recommended that the paternal grandmother have education about putting [X]’s emotional needs ahead of the paternal grandmother’s. The paternal grandmother, to her credit, agreed to an order to that effect.
I am confident that the mother and the paternal grandmother will both undertake the education that Ms E has proposed, and will both be receptive to the expert opinions they are offered.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The mother is Australian born but is of Greek and Maltese heritage. The father was born in El Salvador and came to Australia as a child with his family. They were refugees.
The mother said that she did not know very much about El Salvador but when [X] asked questions about it, the mother used Google to find the answers. The mother also said that [X] did not ask her very much about El Salvador.
The important things to note about this evidence are:
a)[X] wants to know about her origins in El Salvador;
b)the mother is only able to give [X] fairly superficial information about El Salvador; and
c)[X] knows she will not get very much information from her mother about El Salvador so she rarely asks.
Clearly, because she has lived there, the paternal grandmother can tell [X] a wealth of information and stories about El Salvador, its people, its history, its food, its culture and what everyday life is like there. Although El Salvador has had some very serious troubles, the paternal grandmother is in a very good position to tell [X] the positive things about her Salvadoran heritage. It is very important for [X] that she is able to learn about her Salvadoran origins.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has demonstrated a very good attitude to [X] and to the responsibilities of parenthood, with the exception of acknowledging the need for [X] to be involved with her paternal family. The father’s attitude’s are not known.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The mother gave unchallenged evidence that the father had psychotic episodes and had been violent.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
It was not suggested that there were any intervention orders in this case that were made on a final basis or after a contest.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Ms E’s preference was for the matter to be reviewed by the court after 12 months. However, to avoid cost and stress for the parties and [X], it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
All relevant facts and circumstances have been addressed elsewhere in these reasons.
Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
These matters have been addressed previously.
Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The circumstances since separation have been addressed previously.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This consideration does not apply in this case. There has already been an order for the mother to have sole parental responsibility for [X]. The paternal grandmother does not seek to disturb that order.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(2)If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
As there is not to be an order for equal shared parental responsibility, and as the father is not participating in this proceeding, it is not necessary for the court to consider whether there should be an order for [X] to spend equal or substantial and significant time with each of her parents. Any such order would obviously be completely inappropriate in the present circumstances.
Whether Mr K should continue to be present
The first question is whether Mr K should continue to be present after the first three months of [X]’s visits at the paternal grandmother’s house.
On the one hand, [X]’s time with her paternal grandmother will be more comfortable and natural if Mr K is not present. However, on the other hand, the mother has a reasonable concern that the paternal grandmother will allow [X] to see her father if Mr K is not present.
It is very important that [X] does not see her father unless and until a proper assessment has been made to ensure [X]’s physical and emotional safety. If there ever is a reintroduction of [X] to her father, it will need to be handled very delicately and carefully, and probably with professional assistance. It could be damaging for [X] if the paternal grandmother were to allow [X] to see her father without the right preparation and right safeguards being put in place.
Because the paternal grandmother is so emotional about [X] seeing her father, there is a small risk that the paternal grandmother will allow [X] to see her father, notwithstanding the order restraining her from doing so.
Additionally, Ms E’s first preference was for the matter to come back to court after 12 months. Failing that, Ms E recommended that [X]’s time with her paternal grandmother take place after 12 months without another adult present if everything had gone well.
In the circumstances, it seems to me to be in [X]’s best interests that
Mr K, or another adult who the mother and the paternal grandmother agree on, continues to be present during the time [X] spends with her paternal grandmother, until the court otherwise orders or the mother otherwise agrees in writing. This outcome would mean that the parties would not necessarily have to come back to court, but there would nevertheless be a mechanism to ensure that all had gone well.
I expect that with the passage of time, and with the courses of education that they will each undertake, the mother and the paternal grandmother will gain more confidence in each other than they have at present. In time, if all goes well during the visits, and if the paternal grandmother complies with the restraints upon her, it is likely that the mother will consent in writing to [X] visiting her paternal grandmother without another adult being present. If the mother unreasonably withholds her agreement to such a course, the paternal grandmother could of course bring another application to the court.
I would emphasise that it is very much in [X]’s best interests that everyone does their utmost to ensure that [X]’s visits with her paternal grandmother do go well, and that matters progress and normalise as soon as possible.
Whether the visits should be for extended periods
I consider that it is [X]’s best interests for the visits with her paternal grandmother to be confined to two hours, unless the mother agrees in writing to a longer period. It would be too onerous for the other adult who will have to be present for the visits to last more than two hours. However, when the mother agrees to the visits taking place without another adult being present, she may also agree to longer visits.
Whether the paternal aunt and uncle should be present
The mother was agreeable to the paternal aunt and uncle being present at [X]’s visits to the paternal grandmother’s home. I also consider this to be in [X]’s best interests, to give her a more clear understanding of her paternal family, and to enable her to develop a physical and emotional connection with them.
Christmas and [X]’s birthday
The paternal grandmother, as a Jehovah’s Witness, does not celebrate Christmas or birthdays. However, she knows that [X] does celebrate those days, and wants to be able to spend some time with [X] around those days so that she can receive gifts from her father’s family.
Ms E considered that it would probably not be a problem for [X] to spend time with her paternal grandmother at around Christmas time and [X]’s birthday, possibly in substitution for other time that [X] would otherwise have spent with her paternal grandmother.
Given that the paternal grandmother does not herself celebrate Christmas or birthdays, given that it would not result in any additional time and given that the paternal family will be able to send presents to [X] anyway, I do not consider that it is in [X]’s best interests to make special arrangements for her to spend time with her paternal grandmother at Christmas and on her birthday. Those times are busy enough without any added complications. I consider that the benefits are outweighed by the detriments in relation to special occasions in the circumstances of this case.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 17 June 2011
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