Barnes and Barnes and Anor; and Barnes and Barnes and Anor

[2016] FCCA 1759

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARNES & BARNES & ANOR
and BARNES & BARNES & ANOR [2016] FCCA 1759

Catchwords:
FAMILY LAW – Paternal grandmother seeking to spend time with grandchildren aged four and two – high conflict – mother and father oppose grandmother’s application – no meaningful relationship – not in children’s best interests.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA(1), 61DAA, 64, 65C(ba), 65D

Cases cited:

Waterford and Waterford [2013] FamCA 33
Mazorski and Albright [2007] 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR and GR [2010] HCA 4

Applicant: MS BARNES

First Respondent: MR BARNES

Second Respondent: MS NIXON

File Number: DGC 737 of 2015

Applicant: MS BARNES

First Respondent: MR BARNES

Second Respondent: MS O'BRIEN

File Number: DGC 738 of 2015

Judgment of: Judge Harland

Hearing date: 4 July 2016

Date of Last Submission: 4 July 2016

Delivered at: Dandenong

Delivered on: 13 July 2016

REPRESENTATION

The Applicant: In person

The First Respondents: In person

The Second Respondent (DGC 737 of 2015): In person

Counsel for the Second Respondent (DGC 738 of 2015): Mr Weerappah

Solicitors for the Second Respondent (DGC 738 of 2015): Bayside Solicitors

ORDERS

In proceedings DGC 737 of 2015

1. The mother and the father are to have equal shared parental responsibility for the child X born (omitted) 2012.

2. That the child live with the mother.

3. That the child is to spend time with the father as agreed.

4. That the party who has care of the child shall ensure the other is kept informed of:

   (a)any medical problems or illnesses suffered by the child while in their care;

   (b)any medication that has been prescribed for the child; and

   (c)any other matter relevant to the child’s welfare

5. That the initiating application filed 16 March 2015 is dismissed.

In proceedings DGC 738 of 2015

1. The mother and the father are to have equal shared parental responsibility for the child Y born (omitted) 2014.

2. That the child live with the mother.

3. That the child is to spend time with the father as agreed.

4. That the party who has care of the child shall ensure the other is kept informed of:

   (a)any medical problems or illnesses suffered by the child while in their  care;

   (b)any medication that has been prescribed for the child; and

   (c)any other matter relevant to the child’s welfare

5. That the initiating application filed 16 March 2015 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 737 of 2015

MS BARNES

Applicant

And

MR BARNES

First Respondent

MS NIXON

Second Respondent

DGC 738 of 2015

MS BARNES

Applicant

And

MR BARNES

First Respondent

MS O'BRIEN

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in both proceedings is the paternal grandmother of X and Y. The first respondent in both proceedings is the father of X born (omitted) 2012 (“X”) and X born on (omitted) 2014 (“Y”).  He is the applicant’s son. X’s mother is the second respondent in proceedings DGC 738/2015.  X is four years old. Y’s mother is the second respondent in proceedings DGC 737/2015. Y is about to turn two years old.

2. The applicant grandmother is 51 years old and in receipt of a disability support pension. One of the issues in dispute is the nature of her medical issues which include prolapsed disc, arthritis and a heart murmur and the extent to which they would impact on her ability to care for her grandchildren.

3. The applicant grandmother’s initiating applications with respect to Y and X are expressed in the same terms and seek interim and final orders providing for her to spend time with Y for four hours once a month and two hours on the Sundays closest to Christmas Day, Easter Saturday, the grandmother’s birthday and Y’s birthday. She also sought an order that the respondent father or respondent mother organise the transport for those visits. She seeks that the children spend time with her together.

4. Y’s mother sought parenting orders for she and the father to have equal shared parental responsibility for Y and the father spend time with and by agreement and keep each other informed about major health issues. She did not seek any orders with respect to the grandmother.

5. In her first affidavit Y’s mother says that she was in a relationship with the father from October 2013 until February 2015. She says she and the father communicate well. She refers to the comments the grandmother made to her when she was about to give birth and says she is concerned that the grandmother has negative attitude towards her and Y’s existence that she is also concerned about the grandmother’s medical issues and medications she takes.

6. She says the grandmother was given plenty of opportunities to see Y but did not take them up. She says Y has separation anxiety. Y was 11 months old at the time she affirmed her affidavit. She said she is reliant on public transport. She says the grandmother has not been open about her medical issues.  She fears that medical her issues would impact on her ability to care for Y. She says that the grandmother walked out of the mediation when she suggested that the grandmother meet them half way at (omitted).

7. X’s mother was initially represented she sought orders that she have sole parental responsibility for X, that X live with her, that the time between X and her father be as agreed on interim basis sought that the paternal grandmother’s time be reserved and that the grandmother provided a letter from her treating medical practitioner her final orders sought she thought that time the paternal grandmother and the father be as agreed.

8. With respect to X’s mother, the grandmother says that she initially had a good relationship with her and that X’s mother lived with her for almost a year but now she did not communicate with her and had an intervention order in place against X’s mother which expired on 1 February 2015.

9. She says she spent one occasion with X on 9 March 2013 at McDonald’s where they sat together and read a book and played together. This occurred the day after the parties attended mediation. She says X’s parents have not told her why she cannot see X and why they broke the agreement that was reached. She says there was an incident of violence between her and X’s mother when X’s mother pushed her a few times after she called her an unfit mother. As a result of this the grandmother took out an intervention order against her. The grandmother says she regrets what she said.

10. The Department of Health and Human Services (“the Department”) provided a response to the notice of risk filed by X’s mother the Department who said it did not have any concerns about either of the parents. The Department also did not have concerns about either of Y’s parents.

11. Y’s mother filed a trial affidavit. She says that Y is developing well and that she communicates well with Y’s father. They have a flexible parenting arrangement in place. She says due to this she is not seeking specific spend time arrangements between the father and Y’s time as they are not necessary.

12. In her first affidavit with respect to her application to see Y the grandmother says that she does not have a relationship with the mother and does not communicate with her because of an argument that occurred whilst she was in labour. She does not give any details. She also says that she does not have a relationship with the father but does not know why and hopes to improve on that. The Grandmother says Y’s parents will not give her clear reasons as to why they won’t let her see Y. She says that she wants to spend time with Y at her house because she cannot drive due to her disability and finds it difficult to use public transport.

13. In her second affidavit filed on 31 August 2015 the grandmother disputes making those comments to Y’s mother because she was stressed at the time. She says she does have a poor attitude towards Y’s mother because she says Y’s mother has told lies about her. The grandmother says she was given two opportunities to see Y. The first was to see Y at (omitted) shopping centre. She says she declined because her son would have been driving illegally at the time. She says she offered for them to come to her house and have Y’s maternal grandmother drive them. She says she even offered Y to stay overnight for a couple of nights which was not accepted. It appears from that statement that the grandmother doesn’t see that her proposition was unrealistic. It was particularly with respect to the offer of overnight visits when she had not seen Y at all.

14. The grandmother says the second invitation was to attend Y’s ‘life’ party but declined because she does not get on well with members of Y’s family.

15. The grandmother also disputes that Y has separation anxiety. The difficulty with this is that she is never met Y and there is a big difference between Y spending time with people who were well known to her such as her maternal grandmother and the child as opposed to someone who was a complete stranger to her and also who is someone who the mother would be stressed and anxious about Y seeing.

16. The grandmother annexed a report from her treating General Practitioner (“GP”) Dr J dated 9 July 2015 where he said that he has been treating the grandmother since September 1999 and “is under my care for the management of complex chronic medical problems.” He says that the grandmother does not overdose on medication and has history of osteoarthritis in her knees, spine and wrist. He says he believed that the grandmother has capacity to assist childminding several days a month.

17. During course of being cross-examined the grandmother was annoyed that Dr J referred to her as having “complex chronic medical problems”. She says he should not have written that. There is a further letter from him and to have same affidavit where he again refers to the treatment of various chronic medical conditions. It is the grandmother who has put these documents in evidence. He has been her treating GP for many years. I do place weight on this opinion with respect to her medical condition.

18. Y’s mother filed an amended response on 27 April 2016 seeking that the hearing proceed undefended as because of the grandmother’s failure to comply with paragraph 1 of orders made on 14 September 2015 require her to obtain a psychiatric assessment and the father not having filed any material. As I indicated to her solicitor in my view is not appropriate to proceed on an undefended basis as against the grandmother when she explained why she did not comply with that order, filed a psychologist report, filed further affidavits for the hearing and a case outline. She did this without the assistance of a lawyer.

19. X’s mother had not filed any material since she was legally represented in 2015 and the father had not filed any material at all with both attending court for the hearing. In my view in order to properly determine the children’s best interests it was important that all four parties participate in the proceedings.

20. In the affidavit she filed in 2015 she says that the father sees X inconsistently. She refers to the relationship they are in is somewhat amicable. She says she is supportive of the father having a relationship with X. X last saw the paternal grandmother when she was nine months old. It was clear at the hearing that X’s mother’s relationship with the father has improved. He sees X regularly. In her application she wanted to have sole parental responsibility. At the hearing she agreed that she and the father should have equal shared parental responsibility.

21. X’s mother says that she and the father did reach an agreement at mediation with the grandmother to spend time with X but that they also agreed that if they could not make it that alternate arrangements would be made. The grandmother saw X on one occasion at McDonalds. On the second occasion she was due to spend time with X but the parents with running an hour late. The grandmother told them not to bother coming. On the third occasion parents told the grandmother that they did not have the petrol money to drive to (omitted) and invited her to attend their home to see X. The grandmother refused.

22. X’s mother says that the grandmother has acted aggressively towards them in the past and that she is intolerant and impatient. She says that X has tantrums and can be a handful and does not consider that the grandmother would be able to cope with X even for short periods. She also says that she observed the grandmother behaving aggressively when she was in a relationship with father and was living with living at her house. She says the grandmother was verbally abusive and would throw things at her. She says she agreed to the intervention order on a without admissions basis as she wanted the grandmother to stay away from her and her family.

23. Both mothers and the father say that the girls spend time together regularly and that the three parents communicate well with one another and are able to make arrangements flexibly.

24. The grandmother filed four affidavits on the 23 May 2016. To avoid confusion the Court identified by numbered copies and had the parties number their copy so that it was clear to everyone which affidavit as being referred to during course of cross-examination. They are addressed in the following paragraphs.

25. The first affidavit annexes a psychological assessment date 25 January 2016. The grandmother says that she could not afford to obtain a psychiatric assessment ordered as it would cost $2,000.  It was clear during the course of hearing that the grandmother resented having spent $700 on the psychological report.  The grandmother reported that she suffered significant family violence perpetrated by the father’s father which she says also impacted on her son. She says she has tried numerous times recently to become closer to her son without success. The psychologist said that she presented with “an extroverted personality style and told me that she tries to adduce interpersonal conflicts”. In her presentation before me and her evidence I did not see any indication of her being able to address the interpersonal conflicts she has with both mothers and her son. She lacked insight into her role in the dispute and her rigid style and inflexibility as to the arrangements.

26. The psychologist lists the material he read. He did not have access to the affidavits filed in these proceedings. There are some limitations to the psychologist’s report as he makes generalised comments about the role of grandparents which the grandmother understandably latches onto but which are of no assistance in this case. There is no doubt that generally most people would say that children benefit from having relationships with extended family and the grandparents can have an important role to play. However the task of the Court is to look at the individual circumstances of this case and to consider whether or not it is in X’s and Y’s best interests to have the opportunity forming a relationship with their paternal grandmother.

27. Her second affidavit addresses issues with respect to both grandchildren. She says she saw Y on one occasion for an hour at her father’s 80^th birthday in (omitted) 2016. The grandmother says that she refused the invitation to meet a meet her son at a shopping centre to see Y a couple of weeks after she was born as she did not think that was an appropriate forum to have a first meeting with Y. This is an example of grandmother’s inflexibility and rigidity. Given the level of conflict between the grandmother and the mother it was not unreasonable to propose a meeting place in a public place. Meeting at a shopping centre means that could have gone to a cafe. The complaint by both mothers and the father is that they have made numerous attempts to offer the grandmother time to see the girls but that the grandmother has rebuffed their offers and refused to meet them halfway and make the effort. Due to this they have given up. I accept that that is the case.

28. The grandmother has a sense of entitlement. She feels that the parents should do the travelling because they have access to motor vehicles and she doesn’t. She ignores the fact that they have commitments not just her grandchildren but in the case of X’s mother that she now has a two-year-old and 11-month-old as well as X.

29. The third and fourth affidavit filed by the paternal grandmother on 23 May 2016 responds to the Mother’s earlier affidavits.

30. I think there have been unpleasant things said by all the parties at various times. The grandmother referred to both mothers posting nasty things on Facebook about her and her son.  It is not either necessary or appropriate for me to make findings about the various issues raised by the parties. The evidence is limited.  Most importantly making findings about those issues are not going to advance what is in X’s and Y’s best interests.

31. The three parents present a united position. They say they don’t trust the grandmother to look after their children. This is not limited to concerns about her physical heath but also about her aggression. Mr Weerappah, acting for Y’s mother, pointed to the grandmother’s behaviour in the court room as exemplifying this. It is true that at times the grandmother became upset and on one occasion it was necessary to adjourn to give her a chance to compose herself and continue the hearing. This needs to be seen in the context of the grandmother not having the benefit of a lawyer and faced with a united position of the three parents against her. Court proceedings are stressful particularly so when they concern children.

32. What was apparent from the grandmother’s presentation in Court and from her evidence is that the grandmother has fixed views and limited insight. Clearly she feels that she has something positive to offer the girls and wants them to know her extended family but she also spoke about her rights as a grandmother. For example she felt aggrieved at being excluded from Y’s birth. It was not her right to be there. It was for the mother to decide who she would feel comfortable having there to support her. Clearly the grandmother was not in the category. The grandmother admitted she had said something before she was excluded. Y’s mother says that the grandmother told her that “Y should not have happened” [meaning that Y should not have been born] and the mother “was a mistake”. The grandmother denies saying those words but does not deny there was an argument.

33. During course of the hearing the grandmother expressed the view on a few occasions that the mother is bribing the father and that this is why the father was giving evidence against her. She was also saying that she wanted proper parenting arrangements in place for the father and offered her house where the father could have the girls every second weekend. I do not accept that the mothers are the bribing the father. The father impressed me as being aware of his own limitations particularly with respect to appropriate accommodation. He indicated that when he is able to get appropriate accommodation he would be seeking to have the girls overnight and the mothers were agreeable to this. The father also impressed me as having genuine views about his mother and his upbringing is also clear that the grandmother was deeply hurt by this and she feels she did the best she could to raise him without his father’s assistance. The grandmother tendered a letter dated 17 November 1998 from the then named Department of Human Services which indicates the father was receiving some specialist early learning assistance. The grandmother says that hadn’t had learning difficulties and Attention Deficit Hyperactivity Disorder.

34. Whatever the reasons for it and they may well be complex, the father and the grandmother do not have a good relationship at present. The grandmother has no relationship with either mother and it is clear that she dislikes the mothers as they do her. There is no trust or goodwill.

1. Whilst the parents expressed concerns about the extent of the grandmother’s medical conditions and expressed concern that she downplays them if the determinative issue in this case is the toxic nature of the relationship between the grandmother and both mothers are poor relationship she has with her son. The Court proceedings and hearing have done nothing to improve that.

2. The parents seek consent orders with the parenting issues. I accept the evidence from the three of them that they have good working relationships and that they ensure that the two girls spent regular time together. If it were not the grandmother commencing proceedings they would not have sought parenting orders at all. I am satisfied that the parents understand their obligations with respect to the responsibility and that it is in both children’s best interests to make the orders that they seek. The last time the parties and the girls all got together was for X’s birthday.

Legal Principles and their application to this case

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.

2. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting order which is defined by s.64.

3. In deciding whether to make a particular parenting order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations and s.60CC(3) being the additional considerations.

4. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII, as stated in s.60B, that the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. The concept of a meaningful relationship has been considered in a number of decisions including Waterford and Waterford [2013] FamCA 33, Mazorski and Albright [2007] 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.

7. There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child’s best interest being treated as paramount.  There are no issues of family violence in this case.

9. Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s.61DA)(4)).

10. If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time then substantial and significant time with each parent.

11. For a parenting order to involve the child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.

12. In MRR and GR [2010] HCA 4, the High Court of Australia (“High Court”) found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time. At paragraph [13] of the judgment the High Court said:

    Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

13. I am satisfied the orders the parents seek in both matters are in X’s and Y’s best interests. I accept the evidence of the parents that have a cooperative relationship. It is not practicable nor necessary for there to be specific orders for the father to spend time with X and Y as he does not have accommodation suitable to have the girls overnight. None of the parents would have sought parenting orders at all if they did not have to respond to the paternal grandmother’s application.

14. The paternal grandmother has standing to bring her applications as she is a person concerned with the care, welfare and development of the girls: see s.65C(ba).

15. Section s60CC(2)(a) only applies to parents but it is relevant in this case to consider whether or not it is in the girls best interests to give them the opportunity to develop a relationship with their parental grandmother. The paternal grandmother does not have a meaningful relationship with either grandchild.

16. The issues the grandmother has with the girls’ mothers are the same. The level of conflict and distrust is high. Therefore these issues can be considered together.

17. The grandmother is very negative towards both mothers. She says she wants to move forward but she does not offer any practical suggestions. I accept the evidence of the parents that they offered the grandmother opportunities to spend time with both girls but apart from a couple of occasions referred to above she did not accept those offers. My impression of the grandmother is that she is rigid in her views and lacks insight into impact of her own behaviour which has contributed to the complete breakdown of the relationship between the grandmother and the three parents. The parents are very young. The grandmother is older and should be more mature.

18. The grandmother wants time to take place on her own terms. She sees her mobility issues and the fact that the parents have access to motor vehicles that they should do all the travelling. She shows no appreciation for the fact that the mothers have the care of young children and have other commitments. It is unrealistic to expect the parents to do all the travelling at the grandmother’s convenience.

19. The grandmother’s response to the parents’ past attempts to arrange for the grandmother to spend time with her grandchildren. For example the grandmother said that it was not appropriate to meet Y in a shopping centre. She showed no flexibility when the parents were running late and when they did not have petrol. She says she would not go to Y’s birthday party if invited because she does not get on with Y’s maternal extended family.

20. I accept that the grandmother is sincere in her desire to spend time with X and Y. I find that the grandmother’s applications to spend time with her grandchildren are not in their best interests. Y and X’s mothers would be very anxious if the grandmother was to spend time with them unsupervised. It is not realistic to expect the father to supervise his mother’s time when their own relationship is strained. It is difficult to see how the children could be protected from conflict between the adults.

21. The grandmother clearly felt she had no choice but to bring proceedings. She resents having had to spend money on a psychological report. That is unreasonable in circumstances where the grandmother’s mental health, as well as physical health was a genuine issue in dispute.

22. In the end the factor which weighs most heavily against granting the grandmother’s application is not her health but the level of conflict, distrust and her negative attitude towards both mothers and her strained relationship with her son. It is not a question of who is right and who is wrong but rather whether introducing the grandmother into the grandchildren’s lives is in their best interests. There are practical barriers to making any arrangement work, being the distance between the parties’ homes and the paternal grandmother’s difficulties using public transport and unwillingness to use taxis (for which she receives discount vouchers).

23. I find that all four adults were genuine when giving evidence. Each feels they have genuine grievances.

24. Making orders the grandmother seeks in the face of opposition from the parents, with the practical difficulties referred to above and the level of conflict and distrust would have the effect of exposing the girls to that conflict. It is difficult to see how any arrangement would work. Rather it is likely that any arrangements would break down which would likely have parties back in Court. This would not be in the girls best interests. If the grandmother is to develop a relationship with the girls in the future it will require the goodwill and cooperation of all the parties.

25. For these reasons I will dismiss the grandmother’s application in both proceedings.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 13 July 2016