Armstrong and Hopper and Anor - [2011] FMCAfam 1474

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ARMSTRONG & HOPPER and ANOR

[2011] FMCAfam 1474

FAMILY LAW – Parenting – dispute about father’s time with a child aged 9 – father has diagnosed mental health problems – whether the father’s time with the child should be supervised – dispute about allocation of parental responsibility – mother seeking sole parental responsibility and father seeking equal shared parental responsibility – dispute about paternal grandmother’s time with the child – where the paternal grandmother spent a good deal of time with the child historically but has spent less time with him since interim orders were made on 8 October 2010 – whether the paternal grandmother’s time with the child should be increased.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65C

Applicant:

MR ARMSTRONG

First Respondent:

MS HOPPER

Second Respondent:

MS SUTTON

File Number:

BRC 6936 of 2009

Judgment of:

Terry FM

Hearing dates:

28 & 29 November 2011

Date of Last Submission:

29 November 2011

Delivered at:

Newcastle

Delivered on:

30 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Kent

Solicitors for the Applicant:

C W Hooper & Hooper

Counsel for the First Respondent:

Ms Sloan

Solicitors for the First Respondent:

Nash Allen Williams & Wotton

Counsel for the Second Respondent:

Mr Boyd

Solicitors for the Second Respondent:

Worland Solicitors

ORDERS

All previous Orders be discharged.
The child X born (omitted) 2002 (the “child”) live with the respondent mother.
Subject to Order 4 the father and mother have equal shared parental responsibility for the long term care, welfare and development of the child.
The mother have sole parental responsibility for decisions concerning a choice of school for the child or decisions connected with religion.
The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made.
(b)They shall consult with each other on terms that they agree.
(c)They shall make a genuine effort to come to a joint decision.
Notwithstanding Order 5:
(a)The respondent mother shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with her.
(b)The father shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with him.
That the mother and father shall:
(a)Keep the other parent informed at all times of their residential address and contact telephone number.
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child.
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
(d)The respondent mother provide the father with a Medicare card for the child and a copy of her current health care card or pension card for the child’s use in cases of medical emergencies.
(e)The respondent mother shall keep the father advised of all extra curricular activities in which the child is involved and shall provide him with information necessary to enable him to access any websites and to contact any relevant persons to obtain details about sporting fixtures, presentations and other relevant information about the extra curricular activity.
The parents authorise, by this Order, the school attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
The paternal grandmother is permitted to attend any school events normally attended by parents (save for parent-teacher nights) and any extra curricular activities in which the child participates.
During the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent.
(b)Speak of the other parent respectfully.
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
The child is to spend time with the father as agreed between the parents and if they fail to agree then as follows:
(a)The first week of every Autumn school holidays from 2.00 pm on the first Saturday until 2.00 pm on the next Sunday of the holiday period.
(b)The first week of every Winter school holidays from 2.00 pm on the first Saturday until 2.00 pm on the next Sunday of the holiday period.
(c)The first week of every Spring school holidays from 2.00 pm on the first Saturday until the next Sunday of the holiday period.
(d)For 2011/2012 on Saturday 7 January 2012 until Saturday 21 January 2012.
(e)For 2012/2013 onwards for the first half of the NSW public school holiday period in even numbered years and for the second half of the holiday period in odd numbered years to alternate each year thereafter, provide that the child is returned to the mother on the Friday before the commencement of the school term.
The child shall spend time with the father during any periods that the father is in NSW and the child is also spending time with the paternal grandmother by agreement between the father and the paternal grandmother.
The child shall also spend time with the father by the father’s request on special occasions as follows:
(a)on the child’s birthday:
(b)if a school day, from after school until 7.30 pm.
(c)if a non-school day from 10.00 am until 6.00 pm.
(d)on Father’s Day (in a non-contact period) from 9.00 am until 5.00 pm.
The father shall make any request for the child to spend special occasions with him at least fourteen (14) days prior to spending time with the child on these special occasions.
The child shall spend time with the father at such additional or alternate times as may be agreed between the parties.
For the purpose of the father spending time with the child as referred to in Order 11 the father give the respondent mother 14 days notice in writing of the travel arrangements that he has made, including travel and telephone details and a notice in writing from the airline that the child has been booked to fly on as an unaccompanied minor” to travel from the airport nearest the residence of the mother to Brisbane or the (omitted) airport and return.
For the purposes of facilitating Order 11 the respondent mother deliver the child to (omitted) or Sydney airport for the flights booked by the father and notified to her and the father return the child to Brisbane or the (omitted) airport for his pre-arranged flight at the conclusion of their time together and the mother shall collect the child from (omitted) or Sydney airport.
The father will bear the cost of air fares required to facilitate the time the child spends with the father and that the parties will otherwise each bear their own travelling expenses.
The child shall spend time with the paternal grandmother:
(a)each fourth weekend during school terms from after school Friday until 7.00 pm Sunday with the first such weekend to be on Friday 9 December 2011 and the weekends thereafter to commence on the fourth weekend of each new school term.
(b)from after school until 7.30 pm on the second, sixth and tenth Thursday of each school term.
(c)at such additional or alternate times as may be agreed between the parties.
If the Mother’s Day weekend falls on a weekend when the child would otherwise be spending time with the paternal grandmother pursuant to these Orders, the child shall spend the Mother’s Day weekend with the mother and the following weekend with the paternal grandmother.
The parent who is not spending time with the child (the “other parent”) and the child shall communicate with each other on the telephone when the child is under the care of the supervising parent at such times as the other parent or the child reasonably requests but otherwise between 7.00 pm and 8.00 pm on Tuesday and Saturday nights and in relation to such communication the supervising parent shall:
(a)ensure that the child is available to receive the telephone call in private so that such call shall not be subject to the supervising parent listening to the telephone call.
(b)to the best of the ability of the supervising parent ensure that no other person listens to the telephone call between the child and the other parent.
(c)arrange for the child to telephone the other parent on the following night if for any unforeseen circumstance the child misses the telephone call from the other parent.
The paternal grandmother shall also have telephone communication with the child between 7.00 pm and 8.00 pm on Tuesday and Saturday nights and in relation to such communication the supervising parent shall:
(a)ensure that the child is available to receive the telephone call in private so that such call shall not be subject to the supervising parent listening to the telephone call.
(b)to the best of the ability of the supervising parent ensure that no other person listens to the telephone call between the child and the other parent.
(c)arrange for the child to telephone the other parent on the following night if for any unforeseen circumstance the child misses the telephone call from the other parent.
No earlier than 1 February 2013 the parents shall do all acts and execute all documents to obtain the issue of a passport for the child, and each party shall be restrained from using such passport until the following conditions have been complied with:
(a)The party intending to utilise the passport (the “travelling party”) shall give the other parties at least 42 days notice of the child’s intended departure date and return date to Australia, and country of destination.
(b)The travelling party shall give the other parties at least 28 days notice of the flight details, and telephone contact number at the place of destination of the child, and shall ensure that the child is available to receive telephone calls from the other parties, and advise numbers at least every 4 days during the overseas travel.
(c)That unless otherwise agreed by the parties no party shall travel with the child at a time which impinges on any other party’s time with the child unless that other party agrees in writing with the proposal
Upon the passport being issued it shall be held by the mother provided that she provides copies of the passport to the other parties, and provided that she promptly makes the original passport available to either of the other parties who gives notice pursuant to Order 24(a) above.

IT IS NOTED that publication of this judgment under the pseudonym Armstrong & Hopper and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

BRC 6936 of 2009

MR ARMSTRONG

Applicant

And

MS HOPPER

First Respondent

MS SUTTON
Second Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These proceedings concern parenting arrangements for X, aged 9. The parties to the proceedings are the father, the mother and the paternal grandmother.
The proceedings have been on foot for more than two and a half years, and when they commenced almost everything except the issue of X continuing to live with his mother was in dispute.
It was apparent to me when we had got a little way into the hearing however that the parties now agreed about many more things, and the dispute narrowed even further as the hearing progressed.
I propose to start by highlighting the things the parties agree about, rather than the things that are in dispute, because I think that is important.
The parties agree that:
·X should continue to live with his mother just as he has always done.
·He should continue to spend time with his paternal grandmother on the (omitted), as he has always done;
·He should be able to spend time with his father, who lives in Queensland, during each of the four school holiday periods each year.
·His time with his father in Queensland during each of the three shorter school holidays should be for one week.
·The father should be responsible for the cost of X’s travel between Queensland and return.
·The father should be able to spend some additional time with X if he visits to the (omitted) during school terms.
·This additional time should coincide with time X is spending with the paternal grandmother.
·At some point in the future X should be able to travel overseas.
The disagreements between the parties were about the following matters:
i)Parental responsibility. The father proposed an order be made for equal shared parental responsibility; the mother sought sole parental responsibility.
The court is not of course bound by the parties’ proposals, and it can consider other options, and another option is a hybrid order giving the mother sole parental responsibility for some matters, such as choice of school or religion, and otherwise making an order for equal shared parental responsibility.
ii)The amount of time X should spend with the father during the Christmas school holidays.
The father proposed that commencing immediately X spend half of these school holidays with him, which would either be 2 ½ or 3 weeks. The mother’s position changed during the course of the hearing, and at the conclusion of the hearing she proposed that X spend two separate one week blocks of time with the father during the 2011/12 Christmas school holidays and thereafter spend half of the Christmas school holidays with him.
iii)Whether of the father’s time with X should be supervised.
Originally all of the parties, including the father, proposed that the time be supervised, but after evidence was given by the father’s treating psychiatrist Dr P the father and the paternal grandmother changed their position and said that supervision should not be required. The mother continued to press for supervision, although the supervision envisaged was supervision in the broad general sense of someone being within earshot or visual range. In the alternative the mother proposed an order limiting the amount of time that X could be left with the father unsupervised.
iv)Whether, if supervision was required, the father’s partner, Ms S, was a suitable person to act as supervisor, or whether it should be someone else such as Ms S’s mother or the paternal grandmother or her partner Mr S.
The mother was opposed to Ms S being the supervisor.
v)The amount of time X should spend with the paternal grandmother.
The paternal grandmother proposed that it be for three full weekends each school term from Friday to Monday, for about four hours after school each Thursday, and for one weekend during each of the school holidays. The father supported that proposal. The mother proposed that it be for one weekend each month from Saturday to Sunday.
Again, the court is not bound by the proposals of the parties and a different order could be made, giving the paternal grandmother less time than she wants, but more than the mother proposes.
vi)Whether X should be able to fly unaccompanied to Queensland, or whether the paternal grandmother or some other person such as Ms S should be required to accompany him.
The father proposed the unaccompanied option. The mother would be happier with X being accompanied.
vii)Whether a passport should issue for X immediately, which is what the mother and the paternal grandmother proposed or whether a decision about this should be deferred until one of the parties had a definite travel plan.
viii)Whether travel should be permitted only to Hague Convention countries as the father proposed, or should be without restriction as proposed in the mother’s minute of order. This latter outcome was also the effect of the paternal grandmother’s orders.
Those are the issues in dispute, but I do not want the parties to lose sight of the fact that there are many, many things which they actually agree about.

The Evidence

The father relied on his amended initiating application filed on 9 August 2010, his amended affidavit filed on 4 November 2011, the affidavit of his partner Ms S filed on 4 November 2011 and the Affidavits of Dr P filed on 3 December 2009, 24 August 2010 and 9 November 2011.
The mother relied on her amended response filed on 6 June 2011, her affidavits filed on 28 June 2010 and 7 November 2011, the affidavits of her friend Ms R filed on 2 July 2010 and 7 November 2011 and the affidavit of the maternal grandmother filed on 18 November 2011.
The paternal grandmother relied on her Response filed on 11 May 2011, her affidavits filed on 11 May 2011 and 15 November 2011 and the affidavit of her partner Mr S filed on 15 November 2011.
A Family Report was prepared by a Regulation 7 Family Consultant Mr N and was released to the parties on 31 March 2010.

An assessment of the witnesses

The father impressed me in the witness box. He came across as quietly spoken and thoughtful. He was willing to reflect on whether some of the things that he had hitherto believed, such as that the mother had at a certain point wanted to reconcile with him or that the mother might not bring X back if she was allowed to take him overseas, were in fact soundly based beliefs. He showed a capacity to put X’s needs ahead of his own and even demonstrated a wry sense of humour, remarking that he had briefly considered getting X to help him muck out the chook pen but then decided to pass on that.
Ms S impressed me as straightforward and genuine, especially when she was describing how she would approach the task of supervising the father’s time with X if she was required to do it.
The mother gave some answers during cross-examination which to me were a little bit confusing, and she had a tendency to jump in and start answering questions before the questions were finished.
I am sure the mother loves her son and is a very good mother to him, and I am sure she had some unpleasant experiences with the father in the past when he was suffering from an untreated mental illness, but it is regrettable that she is not now willing to consider the possibility that things have changed, and is not willing to make her own decisions about what might be best for X in the future in terms of supervision or spending lengthier periods of time with the father.
Ms R’s evidence was not helpful. She came across as just as barracker for the mother.
The paternal grandmother was somewhat dogmatic, and she was unwilling to admit that she had played a role in how her relationship with the mother currently stood.
The paternal grandmother’s partner Mr S was cross‑examined only briefly and he was not successfully challenged about any of his evidence.
Dr P provided some helpful reports and some helpful oral evidence.
I will refer to Mr N’s report and his oral evidence where relevant later on.

Before I go on I want to stress that although I have made some critical comments about some of the witnesses, I am absolutely convinced that everybody involved in this case loves X very much.

Background

The mother is 34 and the father 37. They formed a relationship in 2001 and X, their only child, was born in (omitted) 2002.
The parties’ relationship was on and off. The father said that it ended in February 2002 before X as born. The mother said that it persisted for much longer, until 2005, with the father sometimes staying at her house and then disappearing for weeks or months at a time.
I do not think either party was trying to mislead me when they gave evidence about when they considered that the relationship finally ended. The issue seemed to be more one of perceptions and how each party defined a relationship. I cannot resolve the dispute about when the relationship ended and nothing turns on it.
On any view, the father had a fairly limited involvement with X during the early years of his life. Mr N summarised the situation as follows:
The subject child has lived in the primary care of the mother ever since the child’s birth. It appears that up until the time of the father’s relocation to Queensland in (omitted) 2006 the parents had negotiated for Mr Armstrong to spend time with the subject child at the mother’s home. The father acknowledged that during 2005 he did not spend much time with X.[1]
[1] Family Report paragraph 4
During the early years of his life X had significant involvement with the paternal grandmother and the extended paternal family as well as with his mother and the maternal family.
In (omitted) 2006 the father commenced a relationship with Ms S, and later in 2006 he and Ms S moved to Queensland where Ms S’s family live.
In October 2006, the father saw Dr P, his treating psychiatrist, for the first time.
Between 2006 and 2009 the father spent limited time with X, and when he did see him it was because he travelled to the (omitted) and saw him when he was with the paternal grandmother. The father sought the mother’s consent to X travelling to Queensland but the mother would not agree to that.
In August 2009 the father filed an application in this court. He sought orders that X live with the mother and spend time with him in Queensland during the school holidays.
In her response the mother proposed that X spend gradually increasing periods of time with the father on the (omitted) for about 15 months, and that he then commence spending time with the father in Queensland.
No interim orders were initially made and after the proceedings were commenced the father continued to spend sporadic time with X on the (omitted) based in the paternal grandmother’s home.
A Family Report was ordered quite early and interviews for it were conducted in March 2010. On 8 October 2010 interim orders were made which provided for X to spend time with the father in Queensland for two separate periods of four consecutive nights during the 2010/2011 Christmas school holidays and for four consecutive nights during the Easter 2011 school holidays.
In May 2011 a further interim order was made which provided for X to spend time with the father for seven nights during the mid‑year and term 3 school holidays.
The 8 October 2010 orders saw the paternal grandmother joined as a party, and some orders were then made concerning the paternal grandmother’s time with X.
These orders were for the paternal grandmother to spend time with X every fourth weekend from after school on Friday until 7 pm on Sunday, and at other times as agreed between the paternal grandmother and the mother.
The time on the fourth weekend of each month thereafter occurred as ordered but to the disappointment of the paternal grandmother there was no other time by agreement between her and the mother.

The parties current circumstances

The father lives in (omitted), Queensland with his partner Ms S and their son, A, born in (omitted) 2007 and aged 4. They live with Ms S’s mother and step-father. At present Ms S’s brother and his girlfriend also live in the home.
The father said that he and Ms S were doing work on the property and therefore he did not expect that they would be asked to leave any time soon. Ms S was not asked about this.
The father is on a disability pension. Ms S is his carer and she is also the carer for A. Her role as the father’s carer involves taking him to medical and Centrelink appointments and making sure that he takes his medication among other things.
A has been diagnosed with ADHD and is prescribed Dexamphetamines and Catapres to calm him down. He goes to day-care in the nearby town on some days and is about to commence school.
Ms S and the father both said that the father now had fewer seizures and had not had a major seizure for several years. The father is hopeful that in the near future Dr P will clear him to obtain a driver’s licence.
Ms S and the father both gave evidence that the father sometimes cares for A on his own for short periods, somewhere between half an hour and an hour and a half. Ms S said that she was not concerned about this because there were other occupants of the house or neighbours were nearby who could help out if a medical emergency occurred. It does not appear that one ever has.
The mother and X live at the (omitted) on the (omitted). The mother has not re-partnered and she lives next door to her parents who have the mother’s brother and her grandmother living with them.
The mother is in receipt of Centrelink benefits and is not in a strong financial position. She hopes to study in the future rather than go back immediately into the workforce and it is therefore likely that her income will remain quite modest for some time.
X has a large extended family on the maternal side, including a great-grandmother, two uncles, cousins, and various maternal aunts and uncles.
I will now deal with X before turning to the paternal grandmother.
X is in year 3 and he attends a (religion omitted) primary school. The mother said that she alone was paying the school fees. There was no evidence to suggest that that was incorrect. It is very important to the mother that X is brought up in the (religion omitted) faith.
It is abundantly clear on all the evidence that X is a much loved and valued child. He does not have any special needs and he was universally described as easy to manage.
The maternal grandmother and the mother maintained that X became anxious or nervous on occasions, but they gave no concrete examples to illustrate that this was the case. There was no evidence that X suffered from anxiety which was having a discernable impact on his life generally.
The paternal grandmother lives with her partner Mr S in (omitted) on the (omitted), about a 15 minute drive from the mother’s home. The paternal grandmother works as a part-time (omitted) and also does some (omitted) work two evenings a week. She has historically spent regular time with X and has been a very important part of his life.
The paternal grandmother told Mr N that up until the father lodged his application in court she had spent regular time with X, usually on a fortnightly basis, and that X had on occasions spent four consecutive days with her during school holidays.
The mother’s evidence was that prior to 8 October 2010, when the interim orders were made, the paternal grandmother was spending time with X about once a month.
I cannot make findings about the precise time X has spent with the paternal grandmother historically. It may have been once a fortnight during some earlier period, but certainly since the orders were made on 8 October it has been once every four weeks.

The father’s mental health

The father commenced seeing Dr P, a psychiatrist in Queensland, on 2 October 2006. Dr P has prepared several reports about the father during the course of these proceedings.
Dr P initially diagnosed the father as suffering from chronic paranoid schizophrenia and generalised anxiety disorder. He noted that the father had been a cannabis user but had stopped using the drug in early 2006 after he met Ms S. He identified the father as suffering from occasional attacks of the shakes out of his control which Dr P described as pseudo-seizures.
In his November 2009 report Dr P said that the father’s chronic paranoid schizophrenia, for which he was medicated, was well controlled, and that he was learning to control his anxiety. Dr P also commented that there was no reason to doubt that the father had ceased using cannabis.
Dr P said that the father was likely to require psychiatric care indefinitely, but he was of the view that the father was capable of carrying out caring tasks for a young child, although he said that “To be sure, care should be under the supervision of his de facto wife.”
In his 20 August 2010 report Dr P said that the father’s chronic paranoid schizophrenia was under good control, his anxiety disorder had improved and he was taking his prescribed medication regularly.
He expressed the opinion that:
He is capable of caring for the child in all areas. During episodes of the shakes, he may be temporarily incapable. He and his partner can explain to his son that his father suffers from turns, but they are not serious, and are short-lived. Similarly, they can explain to his son that his father has occasional nightmares.
In his 5 November 2011 report, Dr P detailed his consultations with the father since the previous report. He said that he had not been concerned during that period about the father’s paranoid schizophrenia, anxiety disorder or illicit drug use, and said that the father was functioning well and had excellent support. Dr P said that from this point on he expected to see the father only about once every three months.
During oral evidence Dr P said that it was his opinion that the father did not need to be supervised when carrying out day-to-day caring tasks for children. He said that his earlier suggestion for supervision had been more to do with providing the father with support in relation to decision-making.
Dr P’s opinions carry considerable weight because he is not someone who had just been asked to prepare a report for these proceedings. He has been the father’s treating psychiatrist for some years. He knows the father, and for that reason his opinion about the father’s capacity must be accorded considerable weight.

The Applicable Law

The objects and principles underpinning the parenting provisions of the Family Law Act are found in S.60B. They overwhelmingly emphasis the importance of children being parented by, and having a meaningful relationship with, each of their parents.
Only two of the principles refer to people other than parents, and that is in the context of a child’s right to spend time with, and enjoy their culture with, other people including grandparents of the child. However the Act does allow a much wider class of people than just parents to make applications for parenting orders.
Pursuant to s.65C of the Act the paternal grandmother has the standing to make an application for a parenting order. The fact that she is not a parent does not place her in some sort of an inferior position in terms of having orders made in her favour. The touchstone is always whether particular orders are in X’s best interests.

X’s best interests

To determine X’s best interests I must have regard to the matters in S.60CC(2) and (3) of the Family Law Act, with s.60CC(2) containing the primary considerations and s.60CC(3) the additional considerations.
The first primary consideration is the benefit to the child of having a meaningful relationship with both of his parents. This does not help me to determine any disputes in this case, because the parents agree that X should have a meaningful relationship with both of them, and whether he spends two weeks or one week or two and a half weeks with the father at Christmas will not affect his ability to have a meaningful relationship with the father.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are allegations in some of the affidavits about violent behaviour by the parties. I do not consider I can make any findings about any of those allegations.
The allegations were made, they were denied, they were hardly touched on if they were touched on at all in cross-examination and nobody pressed me in final submissions to make a finding that anybody had been violent to anybody else.
I do not consider that X is at risk of being exposed to abuse (which is defined in the Family Law Act and means physical abuse or sexual abuse), neglect or family violence in the care of any of the parties to these proceedings. So the second primary consideration does not help me greatly either.
I then turn to the additional considerations and the first of these is any views expressed by the child and the weight to be given to those views.
There is very limited evidence about X’s views. In the Family Report, which was prepared in March 2010, up to which point X had only been seeing the father fairly irregularly on the (omitted), Mr N said that:
X clearly expressed that it would be pleasurable for him to spend more time with his father and he was hoping that this would be possible in the future. [2]
[2] Family Report paragraph 62
That is really the only evidence about X’s views on which I can place significant weight.
There is evidence scattered through the mother’s affidavits of X sometimes saying, in relation to upcoming visits to either the father or the paternal grandmother, “Do I have to go”, but I cannot place any weight on that evidence. X might be trying to please his mother. That happens. He might genuinely not want to leave his mother at a particular time and then be quite happy five minutes later when he is in a different situation and that is another thing that happens.
I must consider the nature of the relationship of the child with each of his parents and any other significant people such as grandparents of the child.
X told Mr N that the father was fun and in March 2010 Mr N made some very positive observations of X’s interaction with the father. He said as follows:
Mr Armstrong sat on the floor and engaged X in play. X appeared comfortable in the father’s presence, with Mr Armstrong demonstrating good play skills. Mr Armstrong remained focused on X, even when the paternal grandmother and her partner entered the observation room.[3]
[3] Family Report paragraph 66
The father’s evidence was that X had interacted well with him during his visits to Queensland and had had a good time, and there was evidence of an occasion when X asked his mother if he could stay longer with the father.
I must treat the father’s evidence about what has occurred in Queensland with a little bit of caution but X has been coming and going and spending time with the father in Queensland since Christmas 2010 and the mother certainly did not report that X had had any particularly negative experiences while he was there. The mother is very protective of X, and I am sure that she would have told me if there had been anything of serious concern.
I am satisfied that X has a good relationship with the father.
It was not in dispute that X had a good relationship with his mother and maternal grandmother and members of the maternal extended family.
The paternal grandmother spoke positively about her relationship with X and the father agreed that she had a good relationship with X.
In his March 2010 report Mr N said that X told him that he had fun with the paternal grandmother and said that he regularly slept at her home.[4]
[4] Family Report paragraph 60
The mother, who is very protective of X, said that he sometimes said that he did not want to go to the paternal grandmother’s, but the mother did not flag any serious concerns about anything that happened while X was with the paternal grandmother, and I am satisfied that the paternal grandmother does have a good relationship with X.
I must also consider the issue of X’s relationship with his brother A.
Prior to the family report interviews in March 2010 X and A would have only spent some fairly brief time together when the father visited New South Wales, and Mr N commented that there was no interaction between A and X during his observation.
Since the Christmas 2010 school holidays however X has spent time in the father’s home in Queensland on four occasions, and the father’s evidence was that the boys loved playing together.
I found the father generally a reliable and thoughtful witness. He was not someone prone to overstate things, and he was willing to make concessions. I accept his evidence that X and A have formed a bond, indeed it is quite likely that a bond has developed. A is now four and X is nine. A is older than he was in March 2010 and perhaps a little easier for X to relate to.
Ms S said in her affidavit that X and A got on well, and she was not challenged about that evidence.
A is X’s only sibling, and it is important that that bond be fostered.
Finally I am satisfied, because nobody suggested otherwise, that Ms S has a good relationship with X.
I must consider the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
In his 4 November 2011 affidavit the father expressed the view that the mother was jealous of Ms S and wanted to prevent the father having a relationship with X. I am pleased to say this was not pressed at the hearing.
The mother does have some underlying resentments against the father. That came out in cross-examination when in answer to a question she said she had refused to agree to something the father proposed because on an earlier occasion ‘the other side’ had not been willing to budge on something that she wanted.
I consider it likely that the mother has struggled with the fact that she has had to let go of some control in relation to X since the father came back into X’s life. However I am satisfied that the mother’s resistance to the father spending time with X over the last few years has largely been because of her concerns about the father’s mental health, and not because of some deep seated unwillingness to let him have any role in X’s life at all.
The fact that the mother would prefer that X to spend time with the father on her terms does not necessarily mean that she does not have the willingness and ability to facilitate and encourage the relationship, and I am satisfied that she does have that willingness and ability.
I am satisfied that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between X and the mother. He has never sought to denigrate the mother to X or to undermine X’s placement with the mother.
I must consider the likely effect of any change in X’s circumstances.
The father’s proposal if acceded to will not result in a great deal of change for X.
X will continue to spend a week with the father in the short school holidays, which he has done twice already, and he will spend a longer period of time with the father during the Christmas school holidays.
X has a good relationship with the father, he is nine years old and he is now used to making the trip to Queensland. It is more likely than not, in my view, that he will cope well with spending longer periods of time with the father in Queensland.
If X spends longer time with the father the father will be able to do more things with him. Perhaps there could be a family camping trip or a trip away from home for a few days. It would give a little bit of extra scope for things to be done which might make X’s time that much more enjoyable.
There is every reason to suppose that the change the father proposes is likely to be beneficial for X.
The orders sought by the paternal grandmother involve a change for X, because the paternal grandmother wants to spend more time with him than is occurring at present.

It is difficult to say that the change proposed by the paternal grandmother would necessarily be detrimental to X, although it might be if it led to ongoing friction with the mother because she resented it, and it might be if it interfered with some of the things that X wanted to do, such as extra-curricular activities or going out with friends.
One of my concerns about making orders for the paternal grandmother to spend more rather than less time with X during the school terms, and in particular, giving her an afternoon with him every single week of the school term, is that the mother and the paternal grandmother do not get on particularly well. They do not have a capacity to discuss things and agree to changes, and an order that fixes time for an afternoon every single week or on a lot of weekends could ultimately cause some difficulties for X if adaptations needed to be made if he changed sports or changes extra-curricular activities or was invited to various events.
For a child of X’s age the people of principal importance in his life are his mother and his father, and there is no evidence that spending more rather than less time with the paternal grandmother would create any special benefit for X.
I must consider the practical difficulty and expense of the child spending time with a parent and whether that difficulty or expense will affect the child’s right to spend time with the other parent regularly.
The father lives in Queensland and the mother lives on the (omitted). There is a considerable distance between those locations and some cost involved in travel. Flying is the only practical way to get X to and from Queensland. As the father pointed out, it is a 13 hour drive by car, difficult for an adult and not too pleasant for a child.
However there is a cost involved in air travel. If an adult has to accompany X every single time it adds hugely to the cost and I am dealing with two parents neither of whom is in a strong financial position. They are both in receipt of Centrelink benefits.
That consideration favours the cost being kept down, and the way that can happen is for X to fly unaccompanied.
I am not convinced that there is any evidence that flying unaccompanied is likely to cause X any emotional harm. He is nine. He has flown many times before. It is a short trip, and if he was told for example, “You’re grown up now. We’re going to trust you to make this trip on your own,” if it is made a positive experience for him, I cannot see any reason why flying unaccompanied is likely to be detrimental to X.
I must consider X’s maturity, sex, age, and background.
X is nine. He has formed many relationships, and he is not going to forget someone whom he does not see every day or every week. He can talk to people on the telephone.
As to X’s background, the mother’s family comes from overseas. That aspect of the matter was not given a great deal of importance in the affidavits, and X is able to keep in touch with his mother’s extended family while he lives with his mother.
I must consider the capacity of each parent and any other relevant party – and this includes the paternal grandmother - to provide for the needs of the child.
Mr N was concerned, when he wrote his report in March 2010, that the capacity of the father and his partner to care for X might be diminished because of the demands placed on them of caring for A. The father and Ms S both told Mr N that A was a handful, had been diagnosed with ADHD, and was likely to have autism.
A has not as it turns out been diagnosed with autism. He is on medication for ADHD. He attends day care. If my recollection is correct he will have an aid when he commences school, but there was nothing in the evidence that emerged at the hearing to suggest that his care overwhelms the father and Ms S.
The other issue in relation to the father is his mental health, but I place weight, for the reasons I gave earlier, on Dr P’s oral evidence about the father’s capacity to provide for X’s day-to-day needs.
Ms S, who is a member of the father’s household, has the capacity to provide for X’s day to day needs. There was nothing in the mother’s affidavit or her oral evidence to suggest that she was concerned about the care X received during his visits to the father. Given X’s age it is highly likely that if any difficulties had occurred he would have told his mother and the mother would have told me.
The mother’s parenting capacity was not under any real challenge. There was some allegations in the affidavits but to the credit of the parties they were not touched on in cross-examination or during submissions and nobody asked me to make any adverse findings about the mother’s parenting capacity.
The capacity of the paternal grandmother to provide for X’s needs was also not under any real challenge and I am satisfied she also has the capacity to provide for X’s day-to-day needs.
I must consider the attitude of each parent to the child and the responsibilities of parenthood.
There was a period when the father did not take every opportunity to spend time with X, and he pays minimal child support. However these things are the result of his mental health difficulties and are not indicative of his attitude to X or to the responsibilities of parenthood.
The father has been striving for a place in X’s life since 2009 and he has taken every opportunity to spend time with him since then.
The mother has brought X up largely as a single parent and she is to be commended for her dedication to parenting him.
I mentioned earlier that there were allegations of family violence in affidavits. The mother made an allegation against the father. The father made allegation against the mother. The paternal grandmother made an allegation against the mother. Everybody denied the allegations made against them or put an explanation forward for what had occurred.
The allegations were not the subject of cross-examination and I cannot be satisfied on the balance of probabilities that any of these events occurred. Nobody during final submissions asked me to make any finding that family violence had occurred and I do not intend to do so.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
I have strong hopes that once orders are made about time and travel that will be the end of this matter, and this particular consideration is only relevant to the passport issue because if I do not make an order now for a passport to issue, the parties might have to come back to court later on if they get into a dispute about travel.
For this reason it would be preferable to make the passport order today, but other matters besides the desirability of making the order least likely to lead to further proceedings have to be taken into account in respect of this issue.
I must consider any other relevant matters.
I take into account here that the paternal grandmother, and this was not challenged, described herself as the conduit between X and the paternal family on the (omitted), Sydney and elsewhere. She said that the weekend time she proposed was barely enough to allow her to keep up those connections.
Another relevant matter is that the mother and paternal grandmother unfortunately have a poor relationship at present. The relationship seems to have deteriorated after the current litigation commenced two and a half years ago.
Whether it is likely to improve in the future I cannot be sure about, because the paternal grandmother said that the current situation was entirely the mother’s fault and I suspect the mother, if asked, might have said the same thing going the other way. That does not suggest a lot of room for improvement, but perhaps once the pressure of the proceedings is lifted things might change.
Another relevant matter is that it was originally part of the father’s case that he was afraid that if the mother was permitted to travel overseas with X she might not bring him back. To his credit during cross-examination the father accepted that there was no evidence to suggest that this fear had substance.
The mother has strong ties in Australia. The maternal grandmother has lived here since 1964. The mother was born in Australia and has a large extended family here. There was no evidence that the mother was a flight risk and I was not asked to make a finding to this effect during final submissions.
Finally I am concerned that there might be a bit of a power struggle between grandmothers going on in the background. I note the following from the mother’s affidavit, in which she said:
At Ms Sutton’s request, I allowed her to take X to soccer during 2010.
During 2011, however, my mother takes X to soccer, including his training and games and my father also takes him from time-to-time.
This causes me to have a slight concern that the grandmothers might be competing a bit over X. I hope that this is not the case.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that the parents should have equal shared parental responsibility for X, absent a finding that there are reasonable grounds to believe that one of them has engaged in family violence or abuse of the child.
I do not have reasonable grounds to believe either of those things and the presumption applies, unless rebutted by evidence that it would not be in X’s best interests for it to apply.
The mother sought an order for sole parental responsibility and she relied on the following in Mr N’s report:
It remains difficult to see how both parents could have equal shared parental responsibility for long-term decisions regarding X. The reality is that the father has only to date had a peripheral role with the subject child, and whilst he continues to live in the Brisbane area, joint decision making appears to be an unrealistic possibility. [5]
[5] Family Report paragraph 11
Much has changed since the Family Report was written however. The father has spent time with X regularly since the 2010/11 Christmas school holidays. He speaks to him regularly on the telephone. He has a good relationship with him. He is getting to know his son, and he now has a basis to make good informed decisions about him.
I am not persuaded that the mere fact that parents live in different states, especially given the technological age in which we live, means that parents cannot share decision making about major long-term matters for a child.
These parents do not communicate at present but I am optimistic that they will start doing so once these proceedings are finished. The father is keen to be able to talk to the mother about X and the mother said she was willing to start talking to the father.
Through no fault of the mother’s the father was largely out of X’s life for a long period of time prior to 2009 and the mother became used to making decisions about X on her own. I can understand that she would probably prefer to keep doing so. However this is not a good reason to take away from the father the right to have a say about major long-term matters concerning his son, now that he is back in X’s life.
Decisions about major long term matters are not likely to be required very often for X. He is not a child with special needs and he is not a child who might need to be referred to a psychiatrist or psychologist or require a series of medical treatments.
I consider that the appropriate order is one for equal shared parental responsibility subject to this. There is merit in the suggestion that the mother should have sole responsibility for decisions about choice of school and matters to do with religion.
Religion is important to the mother but not to the father, and in relation to school, choice of school often largely turns on parents making a choice of a school in the area where they live. The day may come when the mother needs to consider moving X from the (religion omitted) school to a state school or to a different (religion omitted) school. Where the mother lives is likely to determine the choice she makes. This is not a case where the parents live close together, so it would be appropriate to make an order that the mother have sole parental responsibility about choice of school.
I therefore intend to make a hybrid order about parental responsibility.

Conclusion

Before considering the outcomes in relation to the disputed issues identified at the beginning of this judgment I want to mention a general concern I have.
In some respects this case has the appearance of involving a tussle between the mother and the maternal family and the father and the paternal family over one little boy, X. There is a real risk that if X gets some inkling of how important he is to all these people he might start playing them off against each other or trying to gain something out the fact that everyone wants a piece of him.
The paternal grandmother made reference to an occasion when this actually occurred, and I urge all the parties to try and guard against this happening, or the little boy they love so much may turn into a spoilt little boy that nobody likes very much.
No orders that I make can particularly deal with this issue.
I am also concerned about the grandmothers trying to beat each other to provide a trip to Disneyland. I hope that does not happen.
Turning to the issues that I must decide about, the first is the amount of time X should spend with the father during the 2010/2011 Christmas school holidays.
The dispute in the end was over whether X should spend half of the 2011/12 Christmas school holidays with the father as he proposed or two separate weeks this year and half in one block commencing next year as the mother proposed.
The idea of the two separate weeks has some attraction but it would involve extra travelling costs and X has already spent two seven day periods with his father. He is nine, he is not a baby, and he should be able to manage more than seven days away from the mother.
The father has a good relationship with X, he has plans for fun activities and he is capable of keeping the holiday enjoyable for more than seven days.
The order I am going to make is that X spend two consecutive weeks with the father this Christmas school holidays and half-half from next year.
The next issue is whether supervision of the father’s time should be required.
Dr P’s evidence was that the father’s time did not need to be supervised and as I have explained I need to give considerable weight to this evidence given the length of time during which Dr P has known and treated the father. He is not just a fly-in consultant psychiatrist who has seen the father for an hour and written a report.
Ms S’s evidence was that she already trusts the father to care for A unsupervised for short periods of time. She was a good witness.
The evidence was that the father was compliant with his medication and recognised his own impending problems. The evidence suggests the father and Ms S have a good appreciation of the father’s problems and will not abuse the situation if no order is made for supervision. I do not consider that a situation is going to occur where the father takes off to the (omitted) with X for a week.
Removing the need for supervision will give the father’s family unit a bit more flexibility, and I consider that they can be trusted to be sensible about X’s care.
I do not intend to make an order requiring that the father’s time with X be supervised, and I also add that if I had been minded to make such an order I can see absolutely no reason why Ms S could not have been the supervisor.
I now turn to the paternal grandmother’s time.
The mother sought a continuation of the existing order namely that the paternal grandmother spend time with X once every four weeks from Friday to Sunday.
I am very sympathetic to the paternal grandmother’s position. She has spent a lot of time with X in the past. She was the representative, if you like, of the paternal family when the father was off the scene, and we are not talking about off the scene for weeks, we are talking about off the scene for years.
As a result the paternal grandmother has had a greater role in X’s life than a lot of grandmothers have with their grandchildren. She stood in the place of the father for a period of time. I also accept that she has a good relationship with X and that the time she has spent with him pursuant to the 8 October 2010 orders has been uneventful.
I expect that the paternal grandmother misses X and I expect that she probably grieves for the loss of a role she previously had with him.
In an ideal world it would be better if there was no order about X spending time with the paternal grandmother and time could happen flexibly and ad hoc. This would be better for X. He could spend shorter periods or longer periods with the paternal grandmother in accordance with his own wishes and to fit with the other things happening in his life.
This is not an outcome which can occur in this particular case however given the poor relationship which exists between the mother and the paternal grandmother. If I make no orders then time may not occur at all and that would not be in X’s best interests.
The paternal grandmother needs to bear in mind that no matter what order I do make for fixed time that does not have to be the only time she spends with X. She can be kept advised of school events and extra-curricular activities and she can attend those. She will not be dependent on the mother for information about when those things are on because I am going to make an order that the father be able to get information from the school and that the mother keep him advised about extracurricular activities, and he can tell the paternal grandmother about them.
I am sympathetic to the paternal grandmother because of all the effort she has put in for X in the past and all the effort she has put in as a supervisor of the father’s time with X. However now that the father is back in X’s life a time has arrived when the paternal grandmother does need to step back a little bit.
The one weekend every four weeks has been occurring for a year. It has been occurring uneventfully. It is quite a lot of time for a grandparent, although the paternal grandmother will not think so, and Mr N considered that it was sufficient time.
There is no strong evidence that X would particularly benefit from spending more time than that with the paternal grandmother, although I know the paternal grandmother misses him and misses her previous role with him.
Given that a continuation of the existing arrangement is an outcome the mother accepts, that the relationship between the mother and the paternal grandmother is not a good one, and that the father is now back into X’s life and that the paternal grandmother will be able to spend other time with X at outside events, in my view, the order that would work best for X is a continuation of the existing.
I intend to order that the time end on Sunday evening, because I consider that Friday to Monday is probably just a bridge too far for X.
The next issue is whether I should also make an order for some time on one afternoon each week after school.
If this happened without an order it would be wonderful, but I am concerned about making an order that X go to the paternal grandmother every single Thursday afternoon or Monday afternoon. It could turn out in six or 12 months that this interferes with him being able to do cricket or soccer or learn the guitar and unfortunately, the paternal grandmother and the mother do not have the capacity to get together and agree to change the days if they need to be changed.
I intend to order that time after school take place on one afternoon each month.
The remaining issue is whether X should have some time with the paternal grandmother in the middle weekend of the three short school holidays and in the middle of the Christmas school holidays as she proposed.
The effect of this proposal would be that after X had spent a week or two weeks or two and a half weeks with the father, he would come back to New South Wales not to the mother but to the paternal grandmother, and I am not convinced that this is something X would want to happen. It would be natural for X, after he came back from spending time with his father in Queensland, to want to go home and tell his mother about his holiday.

Unfortunately the only time available during the school holidays for X to spend with the paternal grandmother is that weekend in the middle after he comes back from the father, and because I do not see how it can work for X, I am not going to make that order.
It need not have to mean that the paternal grandmother does not see X during the school holidays, because she can go up to Queensland and she can spend time with him when he is with Ms S and the father and she can see A as well.
I am sympathetic to the paternal grandmother who has put in so much time and effort with X during his life, but I have to prioritise things. It is important at this stage of X’s life that his relationship with his parents be prioritised, and it is not my role to try and ensure that the wider paternal and the maternal families have the same amount of time with X.
As to the issue of X flying unaccompanied, I can see absolutely no reason why that should not occur. X is nine. It is a short flight. He is used to flying this particular route. There was no evidence that he was a particularly nervous or anxious child, and it can be promoted to him as an adventure and a recognition that he is growing up.
The passport is the final matter I need to consider.
The benefit of making an order now for a passport to issue is that the parties will not have to come back to court again at least not for five years.
No party objected in a general sense to X travelling overseas and I do not consider that there is any risk of him being retained overseas.
It would however be preferable for the new arrangements to be bedded down before anybody took X overseas. I would not want to see a situation where I make the order for a passport to issue and then find that there is an argument about destinations very soon after these proceedings finish.
I therefore propose to make an order that X be able to obtain a passport but no earlier than 1 February 2013. No travel will then occur for a year, while everyone gets used to the new arrangements.
I have some hopes that the parties will be getting on better by the end of that time and complaints will be less likely to arise if one of them has a perfectly reasonable travel proposal.
I am not convinced that I need to make an order limiting travel to Hague Convention countries in circumstances where there is no flight risk.
I now just turn to the actual orders.
I will make an order that the father and mother have equal shared parental responsibility save that the mother will have sole parental responsibility for decisions concerning the choice of school or decisions connected with religion.
I intend to order that the mother keep the father advised of all extracurricular activities in which the child is involved and provide him with information necessary to enable him to access any websites and to contact any relevant persons to obtain details about sporting fixtures, presentations and other relevant information about the extracurricular activities.
I do not intend to give the father any extra time in New South Wales in his own right but if he comes down here and X happens to be with the paternal grandmother on that weekend, then by agreement between the father and the paternal grandmother the father can share that time.
I will specifically order that the paternal grandmother is permitted to attend school events normally attended by parents save for parent teacher nights, and attend any extracurricular activities X is involved in.
I will order that the paternal grandmother spend time with X each fourth weekend in accordance with the existing orders, being the second weekend in each four week cycle during school terms, on one afternoon each four weeks after school and at such additional or alternate times as may be agreed between the parties. I know in the past, before this litigation started, the paternal grandmother was invited to some other events by the mother and it would be wonderful if that could happen again.

I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of Terry FM

Date: 12 January 2011