Bates & Bates and Ors (No. 3)

[2009] FamCA 725

FAMILY COURT OF AUSTRALIA

BATES & BATES AND ORS (NO. 3) [2009] FamCA 725

FAMILY LAW – CHILDREN – with whom a child lives – where the matter has continued between the mother, the maternal grandparents and the child’s adult sister after the father discontinued his proceedings – where there are issues concerning the health of both the mother and the maternal grandparents – where the mother has accepted she is unable to provide proper parenting for the child due to her health – in the best interests of the child to continue to live with his sister

FAMILY LAW – CHILDREN – with whom a child spends time and communicates – whether a specific order should be made for the child to spend time with his mother and maternal grandparents or an order in general terms which is subject to the child’s wishes – consideration of child’s views – where there may be difficulty and expense involved with any time ordered – consideration of the capacity of the mother and grandparents to provide for the child’s needs – child to spend time and communicate with the mother and grandparents as he wishes

FAMILY LAW – CHILDREN – parental responsibility – sole parental responsibility for the child granted to the child’s sister

FAMILY LAW – CHILDREN – where the mother sought an order restraining the other party from moving the residence of the child from South Australia – where the other party may be required to move interstate for her husband’s work – where it is not in the child’s best interests to grant such an injunction – order for the other party to provide the mother with written notice of any intention to move the residence of the child

Family Law Act 1975 (Cth) ss 60B, 60CA & 60CC

APPLICANT FATHER: Mr Bates
[DISCONTINUED APPLICATION]

RESPONDENT MOTHER: Ms Bates

RESPONDENT MATERNAL GRANDPARENTS: Mr and Mrs Ramsey

RESPONDENT OTHER PARTY: Ms Lowe

INDEPENDENT CHILDREN’S LAWYER: Nelson & Co

FILE NUMBER: ADF 5163 of 1998

DATE DELIVERED: 27 July 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT MOTHER: Ms Ryder

SOLICITOR FOR THE RESPONDENT: Duty Solicitor – LSC

COUNSEL FOR THE RESPONDENT MATERNAL GRANDPARENTS: N/A

SOLICITOR FOR THE RESPONDENT MATERNAL GRANDPARENTS: Self-Represented

COUNSEL FOR THE RESPONDENT OTHER PARTY: N/A

SOLICITOR FOR THE RESPONDENT OTHER PARTY: Self-Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Nelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nelson & Co

Orders

1. The child … do live with the other party, Ms Lowe, who will have the sole parental responsibility for the welfare of the child.

2. The child spend such time and have such telephone calls with his mother and the maternal grandparents as he wishes and the respondent other party, Ms Lowe, do facilitate this.

3. The other party, Ms Lowe and the mother keep each other informed at all times of their residential address and contact telephone numbers.

4. The other party, Ms Lowe, give the mother not less than three [3] weeks written notice of any intention to move the permanent residence of the child outside of the State of South Australia.

5. The other party, Ms Lowe, keep the mother informed of the child’s school.

6. The mother be at liberty to obtain copies of school reports, school newsletters and like material from the child’s school and if necessary the other party will authorise the school to produce the same to the mother.

7. The mother and maternal grandparents be at liberty to forward letters, cards and gifts to the child.

8. The other party notify the mother as soon as practical of any serious accident or illness of the child.

9. The appointment of the Independent Children’s Lawyer be discharged one [1] month from today.

10. Remove all matters from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 5163 of 1998

MS BATES

Respondent Mother

And

MR AND MRS RAMSEY

Respondent Maternal Grandparents

And

MS LOWE

Respondent Other Party

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter listed before me today is the trial concerning the final orders to be made in relation to the child, a son, who was born in June 1998.  The proceedings concerning the child started on the first occasion many years ago.  At one time the mother, father, paternal grandparents and the other party, Ms Lowe, were all parties to the proceedings.  However, following one report from a Family Consultant, the father discontinued his proceedings.

2. The parties were then instructed to prepare the matter for a less adversarial trial.  Certain parenting questionnaires were filed by the parties.  The matter has had a difficult and complex history throughout the whole time that it has been before the Court.  The focus, however, must be and continues to be a determination of what is in the best interests of the child. 

3. The matter was originally fixed a trial commencing on 27 July for seven days.  However, it transpired that the matter was not ready to proceed and those trial dates were vacated most recently on 12 May 2009 in the presence of Ms Lowe, the respondent other party, and the Independent Children’s Lawyer for the child.  There was no appearance by or on behalf of the mother or the grandparents.  I vacated the trial dates commencing on 27 July 2009 and made certain orders providing that the child continued to live with his sister, Ms Lowe, and that he was to spend time with his mother and grandfather until further order.

4. Specifically amongst other orders I made on that occasion, I said:

   If the mother and grandfather wished to continue these proceedings and seek orders from this Court concerning [the child], then they are ordered to provide to the Court by filing and serving on the Independent Children’s Lawyer and the other party, Ms [Lowe], by 4 pm on 20 July 2009, a detailed report from their medical practitioner and any specialists such as psychologist or treating psychiatrist, giving full particulars of their health and their capacity to participate in a trial in these proceedings and provide, care for or spend time with the child […]. 

5. Paragraph 8 was:

   “The mother and grandfather are on notice that if they fail to comply with this order or fail to attend the proceedings on 27 July, the Court may make final orders in their absence by default.”

6. Leave was granted for subpoenas to issue and the other party, Ms Lowe, was given leave to file and serve an affidavit setting out the present circumstances, provided it was filed and served by a particular date.  It then stated:

   “And upon noting that both the Independent Children’s Lawyer and other party, Ms [Lowe], has to provide the Court on the adjourned date with the orders which they wish the Court to make by way of final orders.”

7. I gave ex tempore reasons for the orders which I made on that occasion.  Since 12 May 2009, the only documents which have been filed are an affidavit of the Independent Children’s Lawyer to which is annexed a copy of a letter dated 14 July 2009 to the Independent Children’s Lawyer from a general practitioner, Dr N. The other document is the affidavit of the other party, Ms Lowe, annexing to it a two-page document setting out the current circumstances in relation to the child, and annexing to it a student progress report for 2009 from the M Primary School concerning the child.

8. Neither the mother nor the grandparents have filed any further documents whatsoever.  I understand that it appears to be the grandfather’s position that the letter written by the doctor to – and sent to the Independent Children’s Lawyer in some manner – purports to comply with the orders that I made on 12 May.  I refer to it as a report.  However, it substantially contains the doctor’s version of that doctor’s understanding of the history of the litigation and the doctor’s understanding of the child’s attitude, which I assume has been obtained by the doctor from either the mother or the grandparents.

9. On the health of the mother and the grandparents the general practitioner says at page 2:

   “From a medical point of view, Mrs [Ramsey] has dementia”

   This is Mrs Ramsey, the maternal grandmother.  The letter continues:

   “Mr [Ramsey] was recently an inpatient in […] Hospital with a urinary infection.  He was assessed by a geriatrician whilst in hospital.  His mini-mental state exam, MUSE, was 28/30.  Mr [Ramsey] is the carer for his wife.”

10. That appears to be the only reference to the health of the grandparents in these proceedings.  It clearly fails to refer to their capacity to participate in a trial or their capacity to provide for or spend time with the child.

11. The report itself goes into some detail concerning the mother’s health and states that:

    “[The mother] has a medical history of asthma, airways disease, dependent personality disorder, phobia and anxiety/depression.  Given her phobic disorder, a Court appearance would be extremely difficult for [the mother] to cope with.”

12. It then says that:

    “[The mother] was under regular psychiatric review and assessment, but her doctor is now very ill.  [The mother] was seeing her psychiatrist on a weekly basis.  At this stage, a replacement psychiatrist has not been found.  [The mother] is to begin to see a psychologist in my rooms shortly for regular counselling. 

    [The mother] is not living with her parents.  She is living at [L House], where she has a room.  Obviously, she cannot have [the child] with her in such an environment, and she understands that.  She remains hopeful that at some time in the future, she may be able to find accommodation which would be suitable for her family, and if [the child] wished to, he could again live with his mother and probably his grandparents.”

13. Notwithstanding the failure of the mother and grandfather to fully comply with the orders of 12 May 2009, I have proceeded to hear some evidence and final submissions. 

14. Before me this morning, the other party, Ms Lowe, appears in person.  The grandfather appears in person.  There is no appearance for or on behalf of the grandmother.  The mother is not present but appears represented by the duty solicitor, Ms Ryder, who, in the difficult circumstances of this complex case, has proceeded to provide the Court with some considerable assistance on behalf of the mother.  The Independent Children’s Lawyer, Ms Nelson also appears.

15. I take into account the parenting questionnaires which have been filed by the parties and the most significant two recent reports received by the Court from the Family Consultant, Mr D (reports prepared in July 2008 and on 7 May 2009) being detailed reports carried out by an experienced Family Consultant after significant interviews and visits.

16. I have also heard the oral evidence of the grandfather today.  I received the documents from the Families SA, which are annexed to the affidavit of the Independent Children’s Lawyer, filed on 10 June 2008, being correspondence in relation to the Department declining to intervene in these proceedings, and setting out the background to the history of the child’s care in the past.

17. I have taken into account the grandfather’s oral evidence and the concerns that he has raised about the proposed orders which were put before the Court by the Independent Children’s Lawyer and the other party, Ms Lowe.  Those orders are, in essence, agreed by the grandfather and the mother, save and except paragraph 2, which is the proposed order setting out the time that the child spends with, and how he communicates with, his mother and the maternal grandparents. 

18. The other orders proposed by the Independent Children’s Lawyer and supported by Ms Lowe are as follows:

    (1)That [the child] live with the other party, Ms [Lowe], who will have sole parental responsibility for [the child’s] welfare.

    Paragraph 2, which is the order that is not agreed, is that:

    (2)[The child] spends such time and has such phone calls with his mother, the maternal grandparents as he wishes, and the other party, Ms [Lowe], facilitate this.

    (3)That the other party, Ms [Lowe], and the mother keep each other informed at all times of their residential address and contact phone numbers.

    (4)That the other party, Ms [Lowe], keep the mother informed of [the child’s] school.

    (5)That the mother be at liberty to obtain copies of such reports, school newsletters and like material from [the child’s] school, and if necessary, the other party will authorise the school to provide the same to the mother.

    (6)That the mother and paternal grandparents be at liberty to forward letters, cards and gifts to the child.

    (7)That the other party notify the mother as soon as possible of any serious accident or illness of the said child.

19. As previously indicated, the orders (1), (3), (4), (5), (6) and (7) can be made by consent or are not opposed by the mother or grandparents.  I will therefore make those orders as final orders at the conclusion of my reasons.

20. The other order which is not agreed is one which was raised by the mother’s solicitors seeking an order restraining the other party from moving the permanent residence of the child from the State of South Australia.  That order is opposed by the other party, Ms Lowe, on the basis that her husband’s employment does not currently require him to live elsewhere, but there is a risk that in the future it may do so.

21. The Court is required to apply the law given to it by the Parliament of Australia, which is currently set out in Part VII of the Family Law Act 1975 (Cth). The significant sections, so far as this matter is concerned, are section 60B of the Family Law Act (which sets out the objects of the part and the principles underlying it) and in this particular matter an object to ensure that the best interests of the children are met by ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child;  (b), protecting children from physical or psychological harm;  from being subjected to or exposed to abuse, neglect or family violence;  and (c), ensuring the children receive adequate and proper parenting to help them achieve their full potential;  and (d), ensuring the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

22. Many of those subsections, of course, refer to parents’ responsibilities.  In this case, it is not proposed that either the father or mother of the child act upon any – carry out any of the responsibilities and duties normally carried out by parents.  The father has discontinued his role in these proceedings and the mother has accepted that she is unable to provide the proper parenting care for the child due to her health.

23. One of the other significant sections in this matter is, of course, section 60CC which sets out how a Court is to determine what is in the best interests of the child. Obviously section 60CA directly provides that, when making a parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.  Section 60CC sets out primary considerations and additional considerations. 

24. The significant primary considerations is the benefit to the child of having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

25. In this case, I have to give considerable weight to the primary consideration which provides for the benefit of the child of having a meaningful relationship, in particular with the child’s mother. 

26. The other significant subsection in section 60CC is that which relates to the nature of the relationship of the child with other persons, including any grandparent or other relative of the child.  I specifically take into account the factors which are set out in section 60CC and will draw conclusions about the facts I have heard to apply the provisions of section 60CC in determining what is in the best interests of the child when I am trying to determine whether a specific order should be made for the child to spend time with his mother and maternal grandparents, or whether the order should be in the general terms proposed by the Independent Children’s Lawyer, and as such subject to the child’s wishes.

27. As is appropriate, I take into account, as required by section 60CC(3)(a), any views expressed by the child and of any factors such as the child’s maturity and level of understanding that the Court thinks are relevant to the weight it should give to the child’s views.  The child turned 11 in June this year.  He is therefore not a child of considerable maturity.  However, I have before me the family reports of Mr D,  in particular, the most recent ones, which are highly relevant in which the child has expressed his views. 

28. The most recent report I take into account was a report that was prepared when the child had been residing with Ms Lowe for a period of time.  In that report, the child expresses a strong view in relation to not being required to spend time with or telephone – have telephone time with – his mother and grandfather, and expresses a strong view that he wishes to spend time with the maternal grandmother.

29. The Court is required, of course, to take into account the fact that at that time, the child was residing with his sister.  I take into account the concerns raised by the grandfather that the child may have been unfairly or improperly influenced by his carer, Ms Lowe.  However, I also take into account the history of this matter and the background to the matter which provided for – which was such that the child was given an opportunity to spend time with his mother and grandfather at the contact centre, and also take into account the background in which the child had primarily been residing with his mother and, from time to time, his grandparents, prior to coming to live with Ms Lowe, which is only a recent development.

30. When assessing the weight to be given to the child’s wishes, I take into account the statements he made to Mr D, and, in particular, that consideration was given in the interview to the possibility that the child was being unreasonably influenced by Ms Lowe.  The child quite clearly indicated to Mr D that that was not the case.  I also take into account the complex disruptive history of the child’s life and, in particular, the more recent years, and compare that now to what is described as the settled care that he now has with Ms Lowe in M and the difficulties that would be experienced by both Ms Lowe and possibly the child if they were to be subjected to the further stress of ongoing negotiations and frequent arrangements concerning travel, time off from school, sporting activities, and other arrangements necessary to bring about the sort of time that the grandfather is seeking.

31. I also take into account the difficulties which the child’s mother is currently experiencing so far as her health is concerned, and how her mental health may well undermine, and how any arrangements made for the child to spend time with her may well undermine the resumption of a relationship if it is not handled with considerable care.

32. The Court is required to consider the nature of the relationship of the child with each of the child’s parents and with the grandparents.  The reports of Mr D indicate that the child has a good relationship with Ms Lowe and her family, that he has, in the past, had a good relationship with the grandparents and, from to time, his mother, but that his current attitude, albeit at age 10, nearly 11, was that he did not wish to be required to spend time with or telephone communications with his mother or grandfather.

1. In relation to paragraph (c), the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;  this is not strictly relevant to the decision about the time that the child should spend with his mother and grandparents, but I considered the willingness of Ms Lowe and her ability to facilitate and encourage a close relationship between the child, his mother and grandparents.

2. I am satisfied from the submissions I have heard from Ms Lowe and the Independent Children’s Lawyer that Ms Lowe has an appropriate attitude towards encouraging the child to spend time with the mother and grandparents provided she is convinced, that this would not be either emotionally of psychologically detrimental to the child. 

3. In relation to the other factors which are of concern, one of them is paragraph (e), the practical difficulty and expense of a child spending time with and communicating with a parent;  Ms Lowe, lives some distance from Adelaide, at M.  Arrangements to be made for the child to spend time with the mother and grandparents may involve difficulty and expense.  However, I am satisfied that there is no practical difficulty as such in telephone communication between the mother and grandparents and the child. 

4. As to the capacity of the mother and grandparents to provide for the needs of the child, including the emotional and intellectual needs, I take into account the clear report from the medical practitioner that the mother is not presently capable of exercising her full responsibilities and does not seek to exercise those full responsibilities.  I also take into account Mr D’s report concerning the capacity of the grandparents and his concerns about the benefit to the child of forcing any relationship between the child and the grandparents upon the child at this stage.

5. I am persuaded by paragraph 60CC(3)(l) that it is usually preferable to make an order that would be least likely to lead to the institution of further proceedings.  I am concerned that making a specific order with which the child would not be able to comply without causing him emotional distress would be likely to lead to more proceedings in this Court.  Therefore, whilst there is usually a benefit for a Court order to be specific and set out in clear terms, the type of time spent or communication, this is one of those exceptional cases where it is not appropriate to be specific, because it is not in the child’s best interest to place upon the child and the child’s carer an obligation which may involve, or has clearly the risk of involving, some emotional and psychological harm to the child, which, on the face of it, particularly in accordance with Mr D’s reports, may in fact harm the development of an ongoing relationship between the child, his mother and the grandparents.

6. I have not specifically referred to those sections of the Act which deal with the question of shared parental responsibility.  They are not particularly relevant to this matter, as it is clear that the parties are agreeing that the other party, Ms Lowe, shall have sole parental responsibility for the child’s welfare and that the child shall reside with her.

7. I take into account, however, the philosophy and those sections of the Act which emphasise the benefit to a child of having substantial significant time with those adults who have significant relationships with the child.  Nonetheless, I have carefully weighed up all of these sections in Part VII and am of the view that it is in the child’s best interests (that being the paramount consideration) that his wishes are a determining factor when ascertaining how much time he should spend with his mother and maternal grandparents, and whether telephone calls should take place between his mother and the maternal grandparents.

8. In considering these matters, I have made my determination based upon the best interests of the child with a view to concluding the litigation in this Court, emphasising that the orders that are made would not prevent the parties all agreeing to specific arrangements by consent without the need to return to Court.  I encourage them to do so when the child has had an opportunity to settle and live his life for a period without those adults close to him being involved in the stress of ongoing litigation in this Court.

9. In summary, therefore, I consider that it is in the child’s best interests that he reside with Ms Lowe, that she have sole parental responsibility for his welfare, that the mother and maternal grandparents have the ability of keeping up to date with the child’s progress in accordance with the other orders proposed by the Independent Children’s Lawyer, and that the child spend such time with his mother and maternal grandparents and have such telephone calls with his mother and maternal grandparents as he wishes on the basis that Ms Lowe takes steps to facilitate those arrangements. 

10. I therefore make orders in terms of the minutes this day signed by me.  So, the orders will be in terms of paragraphs 1 to 7 inclusive of the draft orders this day signed by me, with a further order that the appointment of the Independent Children’s Lawyer be discharged one month from today.

11. I am reminded that I have not dealt with the question of the relocation of Ms Lowe interstate.  There is a limited amount of evidence before me in relation to this.  There is currently no specific evidence dealing with this, other than comments from the bar table by Ms Lowe and the material before me, which indicates that her husband is involved in the real estate business and she is concerned that there may be a risk that he be posted elsewhere.  I can understand the difficulties that the mother might consider could arise if they were to move interstate.

12. The order which I have already made provides that the other party and the mother keep each other informed at all times of their residential address and contact telephone numbers.  In this instance, I do not consider a blanket injunction restraining the other party from moving interstate would be in the child’s best interests, as that may run the risk of limiting their financial and other day-to-day arrangements.  However, I will hear Ms Lowe and the Independent Children’s Lawyer briefly on why I should not include an order which provides that the other party, Ms Lowe, give the mother at least three weeks notice of any intention to move outside of the State of South Australia on a permanent basis.

13. I further order that the other party, Ms Lowe, give the mother not less than three weeks written notice of any intention to move the permanent residence of the child outside of the State of South Australia.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date: 11 August 2009