Best and Brown

[2007] FamCA 199

FAMILY COURT OF AUSTRALIA

BEST & BROWN [2007] FamCA 199

FAMILY LAW - CHILDREN - With whom a child spends time - Parenting application by grandmother for orders to spend time with two grandchildren – Long standing conflict – Ultimately relatively narrow gap in orders sought

Family Law Act 1975 (Cth)

APPLICANT: MRS BEST

RESPONDENT: MR BROWN

FILE NUMBER: SYF 4628 of 2004

DATE DELIVERED: 12 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 5 & 6 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nash

SOLICITOR FOR THE APPLICANT: Ross A Clarke & Associates

SOLICITOR FOR THE RESPONDENT: Bob Rosic & Kinchington

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1.The children who are the subject of these orders are a daughter, born in October 1998 and a son, born in April 2000. 

2.All previous parenting orders about the children’s arrangements are discharged.

3.The children are to spend time with their maternal grandmother as follows:

(i)during school terms:

(a)in the first month of the first term of the year on the third weekend from 4pm Friday until 6pm Saturday;

(b)in the second month on the third weekend from 4pm Friday until 6 pm Sunday [commencing Friday 16 March 2007];

(c)(a) and (b) are suspended during the months in which school holidays occur;

(ii)during school holidays:

(d)for 3 consecutive nights during the holidays at the end of terms 1, 2 and 3 commencing in 2007 on dates to be agreed and failing agreement for the last three nights but two of the school holidays [to commence at 9am on day 1 and conclude at 9am on day 4]; and

(e)for 5 consecutive nights during the 2007/08 Christmas school holidays and each year thereafter on dates to be agreed and failing agreement for the last five nights but two of the school holidays [to commence at 9am on day 1 and conclude at 9 am on day 6];

(iii)otherwise

(f)at other times agreed, including on a day proximate tto each of the children’s birthdays and to Christmas Day.

4.For the purposes of Order 3, their maternal grandmother is to collect the children from the father’s residence at the commencement of the visit and return them to the father’s residence at the conclusion of the visit. 

By Consent

5.The children may communicate with the maternal grandmother by telephone for up to 20 minutes each Thursday at 5.30pm, such communication to be initiated by the maternal grandmother telephoning the children on the father’s landline.

6.The maternal grandmother is to ensure the children have their own beds and do not share a bed with any adult when they are spending time with her.

7.Each party is hereby restrained from

(a)denigrating the other or any member of the other’s family to, or in the presence or hearing of, the children or either of them;

(b)discussing the circumstances of their mother’s death with the children;

(c)taking the children to their mother’s grave more than 3 times per year.

8.Each party is to use their best endeavours to ensure no third party denigrates the other or any member of the other’s family to, or in the presence or hearing of, the children or either of them.

9.If the children or either of them require medical treatment when they are spending time with their maternal grandmother, the maternal grandmother is to notify their father as soon as practicable and provide their father with the name and contact details of the treating medical practitioner.

13.The maternal grandmother is at liberty to attend events and functions at the children’s school(s) to which grandparents are ordinarily invited.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF4628 of 2004

MRS BEST

Applicant Maternal Grandmother

And

MR BROWN

Respondent Father

REASONS FOR JUDGMENT

Proceedings

1. A decision is required about arrangements for two children: a daughter (8) born in October 1998 and a son (6) born in April 2000.  Their mother died six years ago in February 2001 after a long period of illness and their father (41), and maternal grandmother (68), have been in dispute for much of that time more particularly about arrangements for the children to spend time with their grandmother and their mother’s family. 

2. The proceedings were initiated by the maternal grandmother in the Local Court Sydney in November 2004 and subsequently transferred to this Court.  The course the litigation has taken and the orders now being sought will be discussed later. 

Evidence

1. To support her case, the maternal grandmother relied on evidence from her son, his wife, and her daughter.  Her son was the only witness required for cross-examination.  The children’s father called evidence from his wife, his mother, and his mother in law. 

2. Dr W, child and family psychiatrist, was appointed as an expert to report on various factors to be evaluated and his report issue in late May 2006.  He gave some further evidence under cross-examination which did not depart from the substance of his written report.  After the parties’ ultimate proposals were put to him, his opinion supported the adoption of the grandmother’s proposed outcome. 

3. The evidence demonstrates that these children find themselves in the centre of a long standing controversy between important adults in their lives.  Whatever the outcome - adopting either proposal or devising another arrangement – those adults will be in communication for quite some time to come yet as the children make their way towards independence and attain the capacity to make their own arrangements at the behest of neither.  Ultimately, at the end of a long line, the gap between what their grandmother and their father see as best for them, reflected in orders they now propose, is not all that wide. 

4. In circumstances where the major part of the territory that has divided them can now be called common ground, it becomes apparent that no constructive purpose could be served by a fact finding process that trawls back over years of disputed history that unravelled during undoubtedly difficult times for each.  The evidence about that disputed history is limited to their separate accounts of what happened, where allegation is met by contradiction, supported in some instances by other family from that ‘side’ of the argument.  In those circumstances, the fact finding process would have to rely on a view being formed of one or the other as more reliable in reporting past events – a finding about their ‘credit’, in other words – and the exercise of trying to establish the other as unreliable or untruthful under cross-examination would very likely demolish or at least undermine whatever remains of the opportunity to work cooperatively together when this litigation is over. 

5. For my part, it is difficult to see what end such a process could serve when what they seek to achieve - their views about what will be best for the children - leaves such a finely calibrated decision to the Court.  All the more so when it is probably the case, not unusually, that whatever detached objectivity might have been brought to the telling at some point in the past, that has long been blunted by strong emotions and long held convictions about shortcomings in the other’s personality, at least so a reading of their affidavits suggests. 

6. For these reasons, I limited legal representatives to cross-examination on the issues they identified as meriting the decision going one way or the other and indicated a credit finding exercise would be unhelpful in the adjudication of the differences the father and maternal grandmother were unable to resolve. 

Background overview

1. The children’s father and mother began living together in 1992 and they married in January 1993.  The timing and duration of the period the maternal grandmother lived with them between their marriage and the children’s mother’s death 8 years later in January 2001 is disputed, but it will suffice to say the maternal grandmother was present in the home for substantial periods on either account.  The role she had in the household over time is also a topic of dispute, but it can also be said that she provided support and assistance at times not only with her daughter’s health problems as they developed, which included problems associated with treatment for the tumour diagnosed during that time, but also with household chores and with the children after their birth – the daughter in October 1998 and the son 18 months later in April 2000.  There are different accounts of a variety of events during that time but, whatever the detail, it is plain enough there were periods of discord and strained relationships all round.  No doubt the poor state of communication between the maternal grandmother and the father had its genesis in these years when they each formed views about the other’s personality and behaviour.  Nonetheless, as the pendulum moved from one direction to the other at times things improved and problems were papered over, though obviously not squarely resolved in any settled way.  In any event, it seems to be common ground that the maternal grandmother was living in the house at least from after the son’s birth and, on her evidence, she cared for her daughter as her health deteriorated, ran the household on the domestic front, and saw to the children’s day to day needs.  In his evidence about this period the father concedes she assisted with the children, though he would not elevate her involvement to the same level she would have it accepted. 

2. When the children’s mother died in February 2001 the maternal grandmother was absent in Queensland visiting her aged mother.  She returned to the home and it was agreed between her and the father that she would remain there and see to the house and the care of the children while he is at work.  Again, they differ in their account of the frequency of her absences at weekends during the months to follow.  It hardly matters in any substantive sense because she was there for the most part on either account and she took a significant role with the children on any view of it.  The daughter was less then 2½ years of age when her mother died and the son just 9 months; the father had lost his wife and the maternal grandmother her daughter.  There can be no doubt 2001 was a time of grief for all concerned.  Yet 2001 appears to have been a time of relative harmony through it all and no doubt a time for significant adjustments. 

3. Part of the adjustment necessary related to roles and responsibilities with the children, and so the agreed arrangement in the aftermath of the children’s mother passing had the potential to become fertile ground for confusion and misunderstanding, particularly if no clear boundaries about those roles and responsibilities had been articulated and no plan for the future devised – entirely understandable when grief and getting on with day to day needs are more of a preoccupation. 

4. It comes as no real surprise, therefore, to read about the first intermittent tugs in what was to broaden later into open hostilities about, essentially, whose authority would prevail in matters related to the children – more so when the relationship between father and grandmother had been (at least intermittently) poor before this change.  I note here to the  father’s concerns about his daughter being encouraged by her grandmother to ‘ring’ her ‘mummy in heaven’ and about the children being taken to their mother’s grave many times, contrary to his express wishes, as well as concern at the maternal grandmother having taken the children for medical treatment, contrary to his express wishes. 

5. These indicators of uncertain or unaccepted boundaries about roles and responsibilities had not blown up, but nor had they been resolved when the father met his present wife in early 2002.  Initially there were cordial if not friendly relations established between all adults, though a reading of the father’s account of this time indicates the question of his parental authority remained a matter of concern to him. 

6. In July 2002 the father and his present wife married.  The maternal grandmother’s support is apparent from her care of the children for several weeks while they went on their honeymoon and around that time by mutual agreement she moved to rented accommodation near to their home.  After the marriage the maternal grandmother took on the role of looking after the children while the father’s wife was working.  Earlier in the year the  father had left his employment and was establishing a business working from home.  The question of authority with respect to matters related to the children’s care remained an issue, however, at least for the father who relays instances of the maternal grandmother countermanding some of his express wishes about aspects of that as well as concerns about the children being upset from discussions of their mother and reporting to him ‘nanny is sad’. 

7. Later in the year the father’s wife fell pregnant, she was retrenched from her employment in October, and the decision made that she would remain at home with the children.  This brought about a further and significant change in roles with the children, including a significant shift in the role the maternal grandmother had taken with the children for some time to that point.  In all probability the transition was not handled by anyone concerned as well as it might have been, with hindsight.  Rumblings and dissatisfaction, no doubt on both sides, had been developing for some time but this change saw opposing positions staked out fairly soon afterwards. 

8. The father then placed limits on the maternal grandmother’s contact with the children.  As she tells it, he refused on numerous occasions to permit her to see the children and she maintained communication by writing letters and card and sending them small gifts.  As he tells it, the maternal grandmother made persistent telephone calls many times a day and arrived at the house unannounced early in the morning.  Some limited contact was arranged in early 2003, on occasions supervised by the father, but on his case he asked that she restrict her calls to his mobile phone, she was abusive towards him, and on one occasion she took the children to visit the previous home at P which had upset the daughter.  The maternal grandmother presents a different picture of how the visit came about and the daughter’s view of it. 

9. There can be no doubt that by early 2003 the situation had become quite stressful, for all concerned for their own reasons and relying on their own perspective.  The children’s half sister was born in March 2003, obviously an occasion of great joy, including for the children, but it was also an occasion that brought new responsibilities for the father’s wife and father and the need to reorganise family routine around that.  From the father’s wife’s account of it, the maternal grandmother was continuing to come to their home unannounced, despite their request to the contrary, and she found her presence as she attended to the needs of the baby difficult and the situation quite stressful.  By the same token, from the maternal grandmother’s perspective the limits placed on her contact with the children and the re-organisation of responsibilities in which she had played a part for so long were also no doubt stressful.  Perhaps an indication of that comes from her damage/alteration of the headstone on the children’s mother’s grave to remove a reference to the father.  It was to be something she would later regret, but it must have been a worrying disturbance for others at the time to say the least.  Of course the children had to negotiate their way through this difficult environment going on around them. 

10. In late 2003 the  father and the family moved to the northern beaches area.  There was some contact between the maternal grandmother and the children arranged, the daughter’s birthday party in October and the son’s in April the following year amongst other occasions as I apprehend the history, but the maternal grandmother’s description of it as ‘sporadic’ is probably accurate.  She adds that it was subject to the father’s ‘moods’ but, however described, his consent to the arrangement at that time, as the father, was obviously necessary. 

Court proceedings

1. It was against that general background that the maternal grandmother instituted proceedings in the Local Court in November 2004.  She sought final orders for contact twice per month, one Saturday from 10am to 5pm and then a fortnight later from 5pm Saturday overnight to 5pm Sunday, as well as some time during each of the school holidays.  The father sought its dismissal, an order for security for costs, the transfer of the proceedings to this Court, and he ceased all contact between the maternal grandmother and the children. 

2. The maternal grandmother later sought interim orders for contact over the upcoming 2004 Christmas period, one day a month, and telephone calls twice a week.  The father sought its dismissal and that the maternal grandmother submit to a psychiatric examination to assess her fitness to exercise supervised or other contact.  Needless to say these applications were accompanied by the filing of affidavits and so started the exchange of two versions of a shared history canvassing both trivial and serious allegations. 

3. The upshot of the interim proceedings before the Local Court on 7 December 2004 was an order for counselling.  The  father annexed a copy of the transcript of the proceedings to his affidavit relied on here, and he seems to have placed some store on ex tempore comments of the presiding Magistrate’s against the maternal grandmother’s cause.  But the views of the learned Magistrate are of no weight here.  More to the point, there was no resumption of contact between the maternal grandmother and the children after the interim proceedings. 

4. In August 2005 the maternal grandmother sought an order for a report by Dr W.  In the meantime, by an application filed in September 2005, she sought interim orders for contact once a month during the day and telephone contact three times a week for a limited duration. 

5. In October 2005 the  father and his wife had their second child, a son, and it was around this time the maternal grandmother took matters into her own hands and attended the children’s school.  They have each given their perspective about that development and the surrounding difficulties in their affidavits. 

6. The father’s response to the interim application was to seek an order restraining the maternal grandmother from going to the children’s school and otherwise for her interim application to be refused. 

7. However, on 8 December 2005 the interim proceedings were resolved by consent orders providing for contact on certain specific days and from February 2006 one day a month for 4 hours and at other times agreed, the changeover venue was to be McDonalds at W or as agreed, and the maternal grandmother gave a range undertakings about issues related to the children. 

8. The contact visits that followed raised problems, at least from the father’s perspective: the maternal grandmother had mentioned sleepovers were to come when that had not been discussed with him and on the children’s return there was talk of his wife being referred to as their ‘stepmother’ which was not a term adopted in their household. 

9. In February 2006 he filed an amended response which reflected a change in the position be taken to that point and more consistent with the interim arrangements to which he had given his consent, along with a range of other orders. 

10. In April and May Dr W conducted the interviews for his report which was produced in late May. 

Expert’s report – Dr W

1. The report is quite detailed but his conclusions and opinions are to be found in the summary and recommendations and it will be convenient to refer to that part of his report under the various headings he was asked to address:

   a. emotional/behavioural state of each child

   (a)He described both children as happy and well adjusted, there is no evidence either are emotionally troubled but there is clear evidence they feel a conflict of loyalty between ‘the [materna] and [paternal] families’.  Unsurprisingly given their ages at the time, he saw no evidence either is suffering any enduring grief as a result of their mother's death.  

   (b)He went on to note, however, that research reveals children who suffer the death of a parent before the age of 12 years are at a higher risk of depression.  While the reasons are not completely clear, the explanation is probably not suppressed grief but related to the family circumstances after the death.  In his view, this family would certainly fall into that category ‘where the nature and degree of the acrimony and disruption which has been associated with the relationship between the [maternal family] and the [paternal family] has caught the children in between and could ultimately have some adverse effect on the children's mental health’.  He adds that is not evident at the moment, but it is in the children’s interests there be some ‘harmonisation’ of the relationship between the families, or at least that the children are removed from the conflict.

   (c)He did not consider the children in need of any form of therapy relating to the death of their mother but that their mother receive ‘appropriate and balanced acknowledgement within both families’.  As he explained it, probably the maternal family see the children’s mother as somewhat under recognised in the paternal family, but even if this is right he thought it unhelpful for them to overcompensate for it and should simply maintain a realistic and not sentimentalised remembrance of her. 

   b. The nature of the relationship of the children with each parent and with significant other persons

   (d)The children have a stable, secure and happy relationship with their father and stepmother as well as with their half-siblings.  

   (e)He considered the assessment of the children’s relationships with their maternal family more difficult because the children had attributed to the family, particularly their grandmother, things they had been told in their father’s home.  Nonetheless, he assessed warm and affectionate and positive relationships in place, including with their grandmother.  He made this assessment despite the ambiguities in the children’s presentation; for example, the son happily anticipating his grandmother’s arrival and confronting her about the financial impact of the court case on the family and the daughter being more tactful in her approach to it though she was quite open with him about holding those same views. 

   c. the effect upon the children of any separation from either parent

   (f)The proposals discussed with Dr W were somewhat different to those being put now.  The maternal grandmother was seeking orders for day time contact on alternate weekends and overnight visits for two days during each of the school holidays.  The father wanted to maintain the interim orders with some telephone contact.

   (g)In Dr W’s view the orders sought by the maternal grandmother would not significantly undermine the quality of the children's lives in their father's home but he expressed concern their father would create in the children’s minds a perception that the contact ‘interrupts certain important routines and activities as well as emphasising familial differences between the two older and two younger children.’

   d. the wishes of the children and the weight to be given to the wishes

   (h)Both children wanted to maintain some contact with their grandmother and cousins in particular, but they did not want to interrupt some of their other activities.  Notwithstanding the children raising financial related issues for which their grandmother was blamed, there was a ‘residual genuine affection for members of their maternal family’.  He did not think either child old enough or sufficiently mature to appreciate the broader concerns, but it was clear to him they had been ‘inappropriately exposed to a significant amount of reasoning at least by their father.’

   e. parents attitude towards responsibilities and duties of parenthood

   (i)Dr W noted the range of serious allegations but said he tried to focus on those more germane to the general parenting environment, particularly as they relate to specific adult-child behaviour.  He reiterated the children’s attribution of critical and divisive remarks to their father and stepmother, but not to the grandmother’s family.  He commented on the father’s family’s attitude to the children receiving gifts and said the issue is ordinarily dealt with in a more constructive way by ‘well functioning blended families’.  He commented on the maternal grandmother’s attendance at the school in October 2005 and noted that the father’s suggestion of inappropriate behaviour by her towards staff had not been confirmed by the deputy principal.  He also commented on the inconsistency between the father’s account of his concerns about Munchausen's Syndrome by Proxy and Dr B’s recall of it and nor did Dr B’s recall of the children’s medical conditions and treatments bear any resemblance to the father’s account of it. 

   f. emotional state of each parent

   (j)Dr W detected no diagnosable psychiatric condition in either the father or maternal grandmother, despite their mutual allegations about the mental state of the other.  He summarised the allegations and that needs no repetition here.  He said that they are difficult matters to test, but if there were substance to the bulk of it then at worst there would be a mild form of antisocial personality disorder on one side and the threshold of borderline personality disorder on the other. 

   (k)In the course of that discussion he recorded some difficulty accepting the genuineness of the father’s presentation for reasons he related in his report.  He also noted that some of the grandmother’s actions do not place her in a particularly favourable light for reasons also related in his report.  He did say he found her presentation more consistent with somebody who is ‘emotionally intense and oriented towards being smothering and indirectly dominating in relationships rather than being primarily irascible and aggressively reactive’.

   g. the capacity of the parents to meet the emotional, physical and intellectual needs of the children

   (l)As the children appear to be happy, well adjusted, and sociable, Dr W concluded the father and his wife have been proficient parents in all areas with the probable exception of their attitude towards the maternal family because in that area they have probably made ‘significant gratuitous references’.

   (m)He also formed the view that for a variety of reasons the children’s mother may be somewhat under-acknowledged in their household.  He had reservations about whether the father’s wife had fitted into the role of step parent with the support of her husband in a balanced way, and he thought some reading and counselling in the area might assist. 

   (n)As for the grandmother’s ‘parenting’ capacity, he found that more difficult to assess.  If the father’s perspective had substance she would be seen as an overprotective but periodically volatile grandparent capable of blaming the children for her own periodic unhappiness.  Notwithstanding the difficult, he said she did make certain admissions which he thought ‘put a somewhat unusual cast on her nature and how she saw family relationships.’  He went on to add that since the children have been seeing her again it is unlikely she has sought to undermine their father’s status in their eyes though the same could not be said of the father.  Ultimately, he expressed the view that for the purpose of the contact envisaged [at the time] she has ‘an overriding affection for the children and desire not just to see them for herself, but also to maintain the children's relationships with their cousins and other relatives which in my view will overwhelm the effect of any adverse side to her personality.’

   h. the need to protect the children from……abuse or neglect

   (o)In the body of his report Dr W recorded or summarised statements made by the children directed to their grandmother.  He says these statements troubled him greatly and he found them to be consistent with the alienation process the grandmother alleged had been taking place.  Also consistent with this was the strong emphasis put by the father and his wife on the homogeneity of their family in a way that seemed to signal a strong commitment to minimising the reality of the blended nature of their family and to do otherwise would in some way be divisive, disruptive and confusing to the children.  

   (p)Dr W said he does not agree with this approach.  He thought their position lacks the balance generally recommended to optimise the stability of the family unit while nourishing relationships with extended family which will stay with children throughout their lives.  Dr W noted the father’s argument about his efforts to foster the children’s relationships with their maternal extended family being thwarted by aspects of the grandmother’s personality and her being ‘omnivorous’ about time spent with the children.  But Dr W was dubious whether there was any validity to this point of view. 

   i. desirability and effect of parents' proposals for residence and contact

   (q)Ultimately Dr W took the view that the risk of alienation of the children from their grandmother was more evident than any harm from her which his assessment did not support.  But he did not find either proposal, as then applied, would be optimal for the children. 

   (r)Dr W went on to discuss the purpose of contact; namely, to provide children with an opportunity to maintain real links with their maternal family.  He thought the contact that had been taking place at the grandmother’s son’s home was not just related to the short time available but also reflected the desire of the maternal siblings to have continuing involvement with the children which he thought an appropriate approach.  As he went on to express it, the grandmother ‘should be viewed as the portal into an array of relationships with the maternal family.’  Her counsel, Ms Nash, emphasised this assessment in putting her case. 

   (s)Dr W went on to comment that poor preparation for the children for the visits has adversely affected much of the contact since the December 2005 orders because, it takes some time for children to settle and ‘get the prejudices of their father and stepmother out of their heads to enable themselves to enjoy themselves’.  Dr W considered four hours of time not likely to be as productive as it might be because for some time into the visit the children will have ‘contrary voices echoing in their heads’.  Dr W thought extended periods more suited to the situation to enable the children to settle and feel part of the maternal family and enjoy themselves and receive the benefit of those associations.  These observations were taken up by Mr Rosic, for the father, in his submissions about the suitability into the future of the extended time now proposed by the father, more particularly in light of improved relations more recently. 

   (t)Dr W concluded the relationship could be maintained with monthly contact rather than fortnightly visits which had the disadvantage of fortnightly reminders of the ill-will which should be minimised.  To smooth the transition between households, he recommended changeovers through the school on Friday evening and the children be delivered back to their father’s or an independent venue on Sunday evening and he recommended block periods during school holidays for four or five night block periods in the Easter and October holidays and a week during the Christmas vacation, again with the changeover occurring through school where possible.

Further interim orders

1. The matter came on for hearing on 13 June 2006 when it was not reached and further interim orders were negotiated and made by consent.  These had the effect of extending the contact from 10am to 6pm one day per month with contact to commence at a church at N.  The arrangement was that the maternal grandmother would attend church at 10am but leave after the children had finished Sunday School an hour or so later and she would return them to their home at Avalon at the end of the day. 

2. After these arrangements were agreed there was an improvement in relations and it is apparent the initiative for this came from the father and his wife, perhaps as a result of what had been said in the report.  The maternal grandmother has been invited into their home when the children are returned from the visit and invited at other times to join in family gatherings, such as the daughter’s birthday in October and to attend a school concert in December.  As the monthly visits have continued, the improvement has been sustained and there have been discussions between the father and grandmother, albeit unsuccessful, to resolve the litigation. 

3. During his evidence at the hearing Dr W welcomed the shift but suggested it needed to be a long term commitment and not a position taken in the shadow of pending proceedings, a comment obviously more directed at the father and his wife. 

Orders now sought - current proposals

1. At the outset of the hearing on Monday there were tendered documents setting out the orders now sought by each [exhibits 1 & 2] and later the father made a further amendment to his proposal. 

2. It is now agreed that the children will spend time with their grandmother overnight, it is agreed that will occur during school terms once per month, and it is further agreed they will spend time with her for block periods during school holidays.  It is also agreed the orders will include a range of provisions and they will be reflected in the orders as consent arrangements.  What is not agreed is where the children will be collected if it is a school day and the duration of the visits, not only during school term but also during school holidays. 

3. The collection from school on Friday afternoons is the grandmother’s proposal and the collection from home is the father’s.  The gap between them about duration boils down to this:

   (i) during school terms once a month

   ·from Friday after school to Sunday evening [grandmother]

   ·from Friday after school to Saturday evening [father]

   (ii) during school holidays

   ·for a total of 13 days in 2007: 4 days after terms 2 and 3 and 5 days during the Christmas holidays [grandmother]

   ·for a total of 17 days in 2008 and thereafter: 5 days after terms 1 and 3 and 7 days during the Christmas holidays [grandmother]

   ·for a total of 11 days for 2007 and thereafter: 2 nights after terms 1, 2 and 3 and 5 nights during the Christmas holidays [father]

Best interests

1. The concept of best interests of the child, the paramount consideration in making a parenting order [s 60CA], is the cornerstone of the Act and there are a number of provisions related to it. 

2. The stated objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)].  These objects are supported by a number of underlying principles which, except when it would be contrary to a child’s best interests, acknowledge a child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].  These apply also to circumstances where a grandparent rather than a parent is involved. 

3. Determination of best interests requires regard to be had to two ‘primary considerations’ which reflect in part the objects just mentioned: the first is the benefit to a child of having a meaningful relationship with both parents and the second is the need to protect the child from physical and psychological harm [s60CC(2)].  It also requires regard to be had to a number of ‘additional considerations’ which are wide ranging and in some instances their meaning elaborated upon in other sub-sections [s 60CC(3)(4)].  The provisions related to the presumption about equal shared parental responsibility referred to in s61DA and the reasoning process that flows from it do not apply to this case. 

Relevant considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship…

1. In the grandmother’s case it is said that her motivation for starting the proceedings was and remains to ensure that the children maintain a bond with their maternal family and some emphasis was placed on the assessment by Dr W of the importance of her being the ‘portal’ to that family for the children.  Spending time with her and with their maternal relatives will benefit the children.  Underlying that is the contention that the father has not encouraged a meaningful relationship with their grandmother and extended maternal family. 

2. It should be said that there could be no criticism of the maternal grandmother because she instituted Court proceedings to secure arrangements to see the children because at the time she did so no such arrangements were in place.  True it is there might have been other ways of approaching it first but the history did not warrant much optimism about that. 

3. In any event, as I find establishing the circumstances for the children to have a meaningful relationship with their grandmother and maternal family is a matter of importance, it will plainly be to their benefit, and the outcome should be directed to achieving that taking into account all other considerations related to the children’s interests. 

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

4. There is risk of harm factors to be considered here in this case, though they do not arise from ‘abuse, neglect or family violence’.  If the children do not have the opportunity to form relationships with their mother’s family there may be adverse consequences for them later on, as discussed by Dr W.  Obviously as happy children who have made the adjustment to their mother’s death this is not an immediate concern; nonetheless, it is a concern, particularly if Dr W is right and it is the conditions surrounding them after the death that can be a hidden factor in their later development. 

5. Here, there has been ample conflict for that to take hold, exacerbated by comments to the children about the financial consequences for the family of the court case and the like, to the point where the children could ‘confront’ their grandmother with these views during the reporting process last year.  In fact it is very much in their interests to have a relationship with their grandmother and their extended family, including uncle, aunt and young cousins, but it is also in their interests not to feel somehow that creates a difficulty in their father’s household.  By the same token, I can see no benefit to the children in having it reinforced that the father’s wife is their step-mother and the other children their step-siblings or, for that matter, doing anything to undermine their sense of security and well-being within the family as a whole.  Overcompensation about their mother and links to their maternal family ought to be avoided, as Dr W noted. 

1. All that said, there has been a change in attitude these past months and it is to everybody’s credit that cordial relations have been established.  That can only be to the benefit of the children who, one imagines, would be relieved by the change and it would be an enormous disadvantage to them if there were to be any backward steps now.  I am not as pessimistic as others about it being an enduring commitment.  It may be that the ‘shadow’ of court proceedings and the spectre of an adjudicated outcome being imposed has some part to play in the change, but there is also plenty of room for seeing the change as part of a commitment to make things better for the children.  And in circumstances where no one involved can stake an unassailable claim to the high ground, I do not see why it should be viewed so negatively when there is a plausible positive explanation – to make things better for the children. 

   Additional considerations

   (a)child’s views

2. I accept Dr W’s assessment of the children’s views and I am satisfied they do want to spend time with their grandmother and extended family.  As for the fine balance between their father’s proposal and their grandmother’s proposal they have not been heard and nor would that be expected in the circumstances of their age and stage of development. 

   (b)       nature of the child’s relationships…

3. I also accept Dr W’s assessment that they have a good relationship with their grandmother and with members of their maternal extended family.  Very likely they enjoy the visits to their uncle’s with other family members around, including young cousins.  As noted earlier, it will be to their benefit to be able to maintain and develop those important relationships. 

4. These are also children who are in a warm and secure family setting where they have close relationships not only with their father but also with his wife who, quite understandably, they see as their ‘mother’ distinguishing her from their ‘mummy in heaven’, and with their half sister and brother. 

   (f)capacity ….to provide for the child’s needs…

5. The grandmother, I am satisfied, is quite capable of providing for the children’s needs while in her care.  Her home does not have separate bedroom for the children but that is largely irrelevant because they can be adequately catered for during overnight visits - whether for the shorter periods their father proposes or the longer period she seeks.  I do not have any concerns about her ability to see to the children’s needs in other ways while in her care but of course that includes cooperating with their father and respecting decisions he makes as their parent about aspects of their care. 

   (d)       ..likely effect of changes in the child's circumstances..

6. Both proposals represent a change from the current arrangements and the future will now include overnight visits with their grandmother.  Neither proposal is likely to have any adverse impact on the children provided it is supported by the other and the children are not brought into the arena of dispute about their arrangements. 

7. At the same time, it has to be recognised that the children do have a lot in their lives, not just immediate family but also their whole extended families, as well as their school and friends, and as they get older inevitably there will be activities that will make demands upon their time.  Over the years to come before they start making their own arrangements, it is a question of achieving a balance for them of all these associations. 

   (e)practical difficulty and expense of spending time..

8. Living a distance apart as they do, there are some practical difficulties involved in implementing either arrangement.  To her credit the grandmother has done the travelling to and from the visits that have been occurring and she has agreed to continue doing so. 

9. One practical matter for decision, whatever the outcome, is the venue for collecting the children for the visit.  As I see it, while there are obviously benefits in collecting the children directly from school, I tend to the view that it would be better for them to go home from school and proceed on their visit from there.  That will obviate the need for them to be taking to school any of the things they will need for the visit, such as clothes and personal items as well as any other bits and pieces and leave their school things at home unless needed for the time they are with their grandmother. 

Conclusion – best interests

1. The decision about how long they are to spend in the care of their grandmother, away from their home, is a finely balanced one when all of the relevant factors are weighed.  I can see merit in the perspective each brings to the decision and with so little to separate one outcome from the other, in my opinion the better result would be to adopt a course mid way between the two proposals.  This translates into alternating the school term months between a long weekend as proposed by the maternal grandmother and a short weekend as proposed by the father.  As for school holidays, the centre of the proposals sits at 14 days and when I have reviewed that over the four school holidays periods it seems to me to be entirely appropriate in achieving a proper balance of all considerations. 

2. It is appreciated this is contrary to the opinion of Dr W and against the submission of counsel for the independent children’s lawyer as well as the position put ultimately by both parties.  Nonetheless, in such a finely balanced situation where there does not emerge any clear ‘winner’ or ‘loser’, if indeed that is how the outcome might be viewed, the mid course has its attractions and in any event I am comfortably satisfied that would be consistent with the best interests principle. 

Form of order

1. The orders have been set out earlier.  So far as the consent arrangements are concerned, they have been adopted though I have made some cosmetic changes.  I have deleted from the draft proposed orders reference to any order providing for the children to live with their father and I have done so because that has never been in question and there is no need to have his parental position clouded with a court order. 

2. As for the time they are to be with their grandmother, the regime I have attempted to draft will see the children spend time with her each month.  In reality every third month [school holidays] will be for a longer visit.  During school terms there will be a short weekend followed by a long weekend, the school holidays will occur in the next month when they will have a longer period with her, and after the school term resumes the short/long weekends will follow.  Attached is a calendar highlighting how I see the arrangement working during the year, as an example.  That makes it clear that they will spend time overnight with their grandmother each month of the year in a succession of one night, two nights, and three nights [five in the summer].  Obviously there will be specifics still to be agreed and hopefully that can be done without the need for any more precision than the orders reflect at the moment. 

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  12 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BEST & BROWN