Atley and Dumont and Anor

[2015] FCCA 1933

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATLEY & DUMONT & ANOR [2015] FCCA 1933

Catchwords:
FAMILY LAW – Children – application by grandparent to spend time with children.

Applicant: MS ATLEY

First Respondent: MS DUMONT

Second Respondent: MR DUMONT

File Number: BRC 1385 of 2014

Judgment of: Judge Lapthorn

Hearing date: 10 April 2015

Date of Last Submission: 10 April 2015

Delivered at: Brisbane

Delivered on: 10 April 2015

REPRESENTATION

Solicitors for the Applicant: Appearing in person

Solicitors for the First Respondent: Appearing in person

Solicitors for the Second Respondent: Appearing in person

ORDERS

1. That the children, [X] born [omitted] 2006 and [Y] born [omitted] 2009 (“the children”) spend time and communicate with the Applicant, Maternal Grandmother as follows:

   (a)Until the child, [Y] turns eight (8) years of age:

   (i)Supervised at the [T] Children’s Contact Centre for two (2) hours once a month, on a Saturday or a Sunday as can be accommodated by the contact centre.

   (b)Thereafter for a period of four (4) hours once per month unsupervised in Toowoomba.

   (c)By telephone once per fortnight when the children are in the care of their father as can be arranged between the Maternal Grandmother and the Father.

2. That the Maternal Grandmother pay all costs associated with the [T] Contact Centre in relation to Order 1(a)(i).

3. That within 14 days of today’s date each party do all acts and things necessary to complete the intake process required by the [T] Children’s Contact Centre and in the event there is a fee associated with the intake process then each party is to bear their own cost of that intake process. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRC 1385 of 2014

MS ATLEY

Applicant

And

MS DUMONT

First Respondent

MR DUMONT

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am asked today to make parenting orders in relation to two children, eight year old [X] who was born on [omitted]  2006 and [Y] born [omitted]  2009 and therefore six years of age.  The application has been brought by the children’s maternal grandmother.  She is seeking orders that would enable the children to spend time with her on a regular basis.

2. Her proposal was that she spend time with them from after school Friday until 5 pm Sunday every third weekend as well as provisions during some of the school holidays and telephone communications.  The grandmother indicated during the course of the proceedings that she would be content with receiving any order that would enable her to spend some time with the children.  The reason for that is that the children’s parents do not support the children spending time with the grandmother.

3. The children’s mother, who is the first respondent in these proceedings, seeks that the grandmother’s application be dismissed.  She does not want the children to spend time with the grandmother.  The second respondent, who is the children’s father, is supportive of the mother’s position although it appeared, in the way he presented his case, he was less strident than that of the mother.

4. During course of submissions the court asked for alternatives for each party’s position in case they were not successful in persuading the court to make the orders that they seek.  The mother submitted that if the court was to make any order for physical time between the children and the grandmother that time should be supervised at the [T] Children’s Contact Centre.  The father was of the view that that time should be supervised at least for two years until [Y] was eight years of age.

5. The issues in this case are significant in that until March of 2013 these children had a relationship with their grandmother.  An incident occurred at the home of the grandmother where the mother, these two children and her two older children were living at the time.  The maternal uncle was also present.  The parties clearly engaged in family violence although they dispute the factual circumstances and who was to blame.  I do not intend to make any finding as to who was responsible, only to note that these children were in the home at the time of the incident.

6. In determining this matter I have had regard to the initiating application filed by the applicant on 17 February 2014 and her affidavit filed on 5 March this year.  I’ve also had regard to the response filed by the first respondent mother on 29 April 2014 and her affidavit filed on 12 March this year, the second respondent father’s response filed on 13 March this year and his affidavit that was filed on 10 March.  The court has also had the benefit of a family report prepared by family consultant [R] and dated 3 September 2014.

7. Before I address my reasoning for the orders I intend to make I should indicate in these reasons that during the conduct of the proceedings I became concerned that the conflict between the mother and the maternal grandmother was being played out in the courtroom to such an extent that I would not be assisted by a continuance of the usual course of questions and answers.  I called an end to that process.  The court always understands that in high volatile conflictual families it is very difficult for parties in the court to step back and be objective however it was disappointing to have to conduct the case in this way.

8. Let me address, firstly, the legal principles that I am required to have regard to. All parenting proceedings are governed by Part VII of the Family Law Act. In determining their outcome I must have regard to the objects and principles that underlie that part and must consider the best interests of these two children as the paramount consideration. Where the interests of parties before me conflict with those of the children it is the children’s best interests which must be given priority.

9. The principles that underlie the Part VII are these.  Unless it would be contrary to a child’s best interests: (1), children have a right to know and be cared for by both their parents; (2), children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development, such as grandparents; (3), parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children; and children have a right to enjoy their culture.

10. As can be seen from those principles children have the rights and parents have the responsibilities.  In this particular case these children are able to exercise their right to know and be cared for by both their parents as the parents have been able to amicably enter into a flexible shared care arrangement for them.  The parents appear to jointly share their duties and responsibilities for these children and make appropriate arrangements accordingly.

11. These parents also appear to be able to reach agreement about the future parenting of their children and I am satisfied that, at least as between themselves, they are able to exercise their parental responsibilities appropriately.  Somewhat disappointingly, given the events of March 2013 and no doubt the history of conflict between the mother and the grandmother, these children have not had an opportunity to exercise their right to spend time with their grandmother since the incident in March 2013.  When I speak of their right to do so I emphasise that their right is always subject to their best interests.

12. Let me turn, then, to the way in which the court has to determine what is in their best interests.  I am required under the Act to have regard to and to consider a number of factors set out in section 60CC of the Act.  Some of these relate only as between parents but I am satisfied that they are still relevant in the context of determining this particular case and in order to limit duplication I propose to group a number of these factors together.

13. I turn, firstly, to the children’s relationships.  There can be no doubt that these children have a close and loving relationship with both their parents.  That was obvious to the family report writer when she observed the children with them.  Indeed no‑one presents any evidence to the contrary.  Notwithstanding the fact that the children have not seen the maternal grandmother since March of 2013 when they saw her for the family report interviews in July of 2014 they expressed affection for her and after a while became relaxed and were comfortable in her presence.

14. The family report writer recorded, at paragraph 77 of her report:

    After a short time, both [X] and [Y] were observed to become more relaxed and comfortable in Ms Atley’s company and went to give her a hug, with both of them smiling and seeming to enjoy seeing Ms Atley and being affectionate with her.  [X] was observed to stand leaning into Ms Atley while they were talking together and chatted with her animately.  [X] showed Ms Atley that she had a loose tooth and [Y] told Ms Atley about his mother’s house having rats in the roof. 

    Ms Atley continued to engage the children in positive and appropriate communication and play throughout the observation, asking them about school and giving them praise for their drawings and commenting on [X]’s speech had improved a lot.  They spoke about their dog, with [X] commenting to Ms Atley “he still loves you when you get home”, describing that he still greets everyone affectionately.  Both [X] and [Y] interacted very positively with Ms Atley and presented as enjoying spending time with her and talking to her about various things.  They both sought to sit close to Ms Atley and to initiate physical contact, smiling and laughing a lot with her and making eye contact with her.

    When it came time for the observation to end and I prompted [X] and [Y] to say good-bye to Ms Atley, they both appeared disappointed, with [X] stating, “Ohhhh” indicating that they did not want to stop spending time with Ms Atley.  Ms Atley gave them both a high and a kiss and they said good‑bye to each other.

15. I presume that was a “high five”.  I am satisfied that notwithstanding the significant gap in their time with the grandmother they still have a connection with her, it is a close relationship and that it is in their best interests that they maintain that relationship. 

16. I must, though, also look at risk of harm issues and these were significant from the mother’s perspective.  I have referred to the March 2013 incident.  I am satisfied that all parties were involved in this very unfortunate and violent incident.  The children were in the house at the time.

17. The family report considered what each party had to say about that incident and concluded that:

    the nature of the violence between them could be described as conflict instigated violence that has arisen out of a culmination of disagreements between them that has resulted in physical altercations and verbal arguments that [X] and [Y] have been exposed to whilst the family was living with Ms Atley. 

    Exposure to this conflict has had a negative impact on the children, with both [Y] and [X] describing incidents of violence and [X] reporting that she doesn’t want any more fighting and indicating an emotional impact on the children due to witnessing such conflict.  This exposure to conflict and family violence has now ceased as a result of there being no contact between Ms Dumont and Ms Atley and the risk remains low of future violence occurring should this remain the case. 

18. Clearly the mother is concerned that if she is to come into contact with the grandmother there will be significant conflict between them.  Having observed them in the courtroom today I have no doubt about that.

19. The mother is also concerned that even when she is not present the grandmother will not be able to control herself in front of these children and she cites difficulties with her older children and her mother.  She is concerned that these children will be affected by the grandmother’s conduct. Whilst the mother makes those assertions there is insufficient evidence before the court that would enable me to find that these children are at risk of harm, whilst in the care of the grandmother, from exposure to violence.  However there would be a risk of harm to these children if the mother and the grandmother were to come into contact in the presence of the children and that must be avoided.

20. The mother and the father are both concerned as to a risk of harm to these children if the children were in the unsupervised care of the grandmother given [Y]’s young age.  They describe him as a very active six year old.  I have no doubt about that.  He sounds like a normal six year old.  The grandmother says that she has not only had a number of children and grandchildren and now great grandchildren and that she has confidence that she can hold up to a six year old.  She does however report that she has had some back difficulties affecting her mobility and I can understand why both parents are cautious.  That caution, of course, may be well clouded by the dispute between the parents and the grandmother but it is a very valid concern of theirs and which I take on board.

21. I am required to have regard to the views of the children.  I should note, however, [Y] in particular but also [X] are very young and do not yet have the maturity necessary to understand the full implications of the expressions of their views.  The mother told the court that [X] does not want to see her grandmother.  The mother herself asked the children just recently, when their father was present, whether they would like to see the grandmother.  The mother informs the court that [X] asked her if she was joking and said that she did not; that [Y] said that he would be interested if she had a car.

22. I am satisfied, given the history of this matter, that the children are aware of the conflict between the mother and the grandmother and their comments must be understood in the context of that knowledge.  In those circumstances it is not surprising that [X] would tell her mother that she doesn’t want to see the grandmother.  I am not satisfied I can give weight to the children’s wishes in those circumstances.  When that is considered, along with the contents of the family report, albeit noting that those interviews were done in July of last year and after a long absence of seeing the grandmother, I am satisfied that these children do not, in and of itself, have an objection to spending time with their grandmother.

23. I am required to have regard to any practical difficulties.  The mother and father live in Toowoomba.  The grandmother is now living on the Gold Coast.  That will involve some travelling.  If I was to make the order sought by the grandmother there will be significant travel for these children.  For reasons that I will later explain I am not persuaded to make orders for the children to spend overnight time with the grandmother and therefore that practical issue is not one that need concern us.

24. If I am to order that the time between the grandmother and the children be supervised then practical difficulties do arise.  There are cost implications at the children’s contact centre and there would also be practical difficulties if the father was not able to take the children to see the grandmother if there was to be no supervision.  By that you can interpret that I am satisfied that the mother should not be taking the children directly to the grandmother, although if the contact centre is utilised there would be no difficulty with the mother taking the children to the grandmother because the mother and grandmother would not come into contact with each other under those arrangements.

25. The other relevant consideration is limiting further proceedings.  If I was to adopt the grandmother’s proposal of overnight time I, whilst not having a crystal ball, can pretty well predict these parties will find themselves back at court because when the children return home to the mother she may interpret any of their comments in a negative light given her lack of trust in the grandmother.  Such that she would either unilaterally stop contact in breach of the orders or bring her own proceedings to have them suspended.  This should be avoided.  By limiting the amount of time and imposing a condition of supervision this risk may be minimised.

26. I now to turn to consider whether it is appropriate to make any orders for the children to spend time with the grandmother.  In November of this year the grandmother considered discontinuing these proceedings and wrote to the parties through the father offering to do so on the basis that each party bear their own costs to the proceedings.  The father was prepared to do that and asked for the relevant forms to sign.  The mother, no doubt suspicious of the ultimate intentions of the grandmother, considered that she was in fact attempting to blackmail her in not proceeding.

27. It’s disappointing that the mother did not take that opportunity but in the history of this matter one can well understand why there’s a lack of trust.  In light of the mother not agreeing to the course of action proposed by the grandmother the grandmother has pressed her application today.  On the one hand there was much merit in the discontinuance of the proceedings because these children would be relieved of the potential for further conflict between the mother and the grandmother.  Such conflict is not in their best interests and will not help to advance them into adulthood without difficulties.

28. On the other hand it is important for children to have a sense of their antecedence or identity, to know not just their parents but other extended family subject, of course, to their safety and wellbeing.  It is important for the court to weigh up those two issues.  Both the mother and the grandmother are, with respect, strong and dominant women.  I hope they don’t mind me saying so, they are very much alike.  No wonder there has been conflict.

29. I am of the view that if the children don’t get a chance to see their grandmother they will not get the full picture of their history but it is not necessary that they see their grandmother every three weeks or to spend lengthy periods of time with her.  I am satisfied it’s in their best interests that they do have an ongoing relationship with their grandmother and that that can be achieved by some form of physical time as well as telephone time.  It, however, must be structured in a way that does not raise the potential for conflict to resume.

30. It is for that reason I will be ordering that time take place supervised at the contact centre for the next – well, until [Y] turns eight years of age, which is almost two years away.  By then he will be much older and his sister will be older.  This might to some extent, and I understand only some extent, relieve some of the anxiety on the part of the mother in particular but both parents.

31. Clearly they are concerned that this six year old boy is a bit of handful and at least in the supervised setting of the contact centre, which has appropriate play centres and other activities, their concerns would be alieved in that regard.  They would also be relieved that no inappropriate action by the grandmother could take place there without intervention by the supervisors.

32. Because I have not, before me, sufficient evidence as to any other risk of harm I am not satisfied that that supervision needs to go beyond that two year period.  Clearly if there are any indications of concern during that two year period the contact centre will bring that to the attention of the parties.  Unfortunately the contact centre can usually only accommodate two hour timeslots.  From the grandmother’s point of view that would be way too short but she is prepared to accept any time and I am of the view that at least until things get up and running and there is stability again established that two hours would be appropriate once a month.

1. After the supervision is uplifted that time could be increased to four hours as that would then enable the grandmother to take the children to a movie and have some lunch or to go shopping or go to a park.  I am not satisfied, in light of the history, that within two years the risk of conflict will have abated.  If by good chance it does the parties would then be able to make their own arrangements different to any orders I am satisfied that four hours once a month would be appropriate for these children to maintain their relationship with their grandmother.

2. It’s important that they be able to have some telephone time with her but that should only occur whilst the children are with their father because I am not satisfied the mother, with all the best intentions in the world, would be able to hide her stress levels from the children if she knew the grandmother was to be phoning.  It’s for that reason that I propose to make an order that the children have telephone time with the grandmother once a fortnight whilst they’re spending time with their father.  That will need to be arranged between them given the father has some practical difficulties with his employment – and I will make that order broad.

3. In relation to the cost of the contact centre, the grandmother gives evidence of being on a disability support pension.  She will also have to travel to Toowoomba to undertake that period of time with the children but given the conflict between the parents I am satisfied that the grandmother should bear the cost of the attendance at the contact centre otherwise I anticipate there will be ongoing conflict between the parties.  I appreciate that will be a financial burden to the grandmother but the grandmother, knowing that there will be times in place, will now be able to put some money aside in order to spend time with the children.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Associate: 

Date:  16 July 2015