BH and HN and Anor
[2004] FMCAfam 86
•17 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BH & HN & ANOR | [2004] FMCAfam 86 |
| FAMILY LAW – Children – contact – interim hearing – application by grandmother. Family Law Act 1975 (Cth), ss.60B; 65E Cilento (1980) FLC 90-847 |
| Applicant: | H B |
| First Respondent: | N H |
| Second Respondent: | S G B |
| File No: | PAM 4999 of 2003 |
| Delivered on: | 17 February 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 4 February 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Marhinin |
| Solicitors for the Applicant: | Watts McCray |
| Solicitor for the First Respondent: | Ms Bulyk |
| Solicitors for the First Respondent: | Lili Bulyk |
The Second Respondent appeared on his own behalf.
ORDERS
UNTIL FURTHER ORDER:
The Applicant Grandmother is to have contact with the child S B-H born 5 April 1999 as follows:
(a)From 9.00am to 4.00pm on the first Saturday of each month during school term time, commencing on 6 March 2004;
(b)From 9.00am to 6.00pm on the first Monday of each school holiday period;
(c)By telephone each Sunday between the hours of 5.00pm and 7.00pm, such that the Applicant Grandmother is to telephone the child S on the First Respondent’s mother’s mobile telephone number, and the mother must do all things necessary to make the child available to receive those telephone calls; and
(d)Otherwise as agreed between the grandmother and the mother.
For the purpose of facilitating the contact set out in Orders (1)(a), (b) and (d), the grandmother is to collect the child S from the mother’s residence at the commencement of each contact period and return her to the mother’s residence at the conclusion of each contact period.
The mother is restrained from changing the child’s place of residence from the State of New South Wales without the consent of the Second respondent father and the Applicant or Order of the Court.
The application is listed for final hearing on Friday 18 June 2004 at 10 am.
The applicant is to pay the setting down fee prescribed by the Federal Magistrates Regulations 2000 or apply for a waiver of that fee within three months of the date of this order.
Parties are to file and serve all further affidavits stating the facts upon which they seek to rely upon no later than 14 days prior to the hearing date.
Pursuant to section 62G of the Family Law Act the parties are to attended upon a family and child counsellor or welfare officer at the time, date and place set by the director of mediation for the purpose of preparation of a family report relating to the care, welfare and development of the child S.
I will grant liberty to apply on three (3) days notice.
Costs are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4999 of 2003
| H B |
Applicant
And
| N H |
First Respondent
And
| S G B |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court today is an interim application by the grandmother of a little girl called S. S was born on 5 April 1999. She currently lives with her mother. The applicant grandmother is the paternal grandmother. The father of S, Mr S B, is the second respondent and he is not legally represented in these proceedings. He is an interstate truck driver and I did excuse him from attending Court on this occasion because his commitments take him away for long periods of time.
This matter was before the Local Court of New South Wales at W previously where Order were made, which are still in existence. Those orders provide that S should reside with the mother and that the father should have contact on various occasions.
The difficulties have arisen in recent times because S has not been having contact with either the father or the paternal grandmother. The mother says that the paternal grandmother does not need separate contact orders because the father in fact lives on the same premises, although not in the same house, as his mother. The mother is of the view that contact with the grandmother can simply occur whilst the child is on a contact weekend with the father. The grandmother says that that is not of assistance because on many occasions the father is away. There is also an issue that the grandmother is concerned that the mother and her partner propose, and have been proposing for a considerable period of time, to move away from their current location and their preferred destination is H B in N Q. The grandmother is concerned that if that happens that she will have very little contact with her granddaughter and that this will not be in the child's best interests.
S has a medical difficulty relating to one lung. She was born with a cyst condition on one lung which involved removal of the lung. Whilst she is not currently an asthmatic she has certainly required treatment in the past and the grandmother is concerned to see that she has the treatment.
For her part, the mother is equally concerned for S's health and well being. In fact she complained in her affidavit that the grandmother's house was not of the acceptable standard of hygiene that she required to safeguard her daughter's health due to the presence in the house of two dogs. The evidence now is that the dogs are deceased and the house has been certainly painted et cetera and that the concerns about the standard of cleanliness with animals in the house have now abated. It is regrettable that the relationship between the mother and grandmother has deteriorated.
The relationship between the mother and the father appears to have improved. The mother had complained that the father, being an interstate truck driver, was not sufficiently aware of his responsibilities as a father and was concerned about his use or perhaps abuse of drugs. This is of course not an uncommon complaint relating to interstate truck drivers who, apparently as a occupational hazard of their industry, are involved in very long hours of travel and tend to become involved in drug use of one sort or another. The mother is concerned about that and had taken the unilateral step of stopping contact. The father, however, in his submissions to the Court on the 4th February indicated that he had reached an arrangement with the mother, not necessarily in accordance with the current orders of the W Local Court but an arrangement nevertheless, and that would involve his having contact with S as his work roster allowed and that he had no real objection to the proposed move to the state of Queensland at some stage as he has to travel there quite frequently in the course of his employment. It was his understanding that he would be able to exercise contact in Queensland when he was up there.
This arrangement, needless to say, does not necessarily assist the grandmother in her concerns. Her solicitor, Mr Marhinin, has submitted minutes of proposed interim orders sought by his client. They are orders seeking contact on alternate Saturdays, alternate Tuesdays after school, one overnight contact during the Easter school holiday period and two overnight contacts during the June/July school holiday period, telephone contact, special functions and other arrangements and set out proposals for collecting and returning the child from contact, proposals relating to the grandmother's involvement in the child's schooling and health management and particularly, an injunctive order restraining the mother from changing the child's usual place of residence from the H Shire region in New South Wales without the consent of the father and the applicant paternal grandmother or order of the Court.
The mother is not saying that there should be no contact but she does make the point, as I stated earlier in my reasons, that the grandmother could have contact when the father has contact if that contact takes place in New South Wales. She indeed agrees to the specific order for telephone contact each Sunday and also agrees for contact with the wording:
“… and otherwise as agreed between the parties.”
She also agrees that the proposed arrangements for collecting the child S and returning S to the mother are ones that she would deal with. She say that the grandmother has not approached her for contact and so the reason why there has not been contact since August 2003 has as much to do with the grandmother as to any other reason. Mr Marhinin for the grandmother submits that because of the strained relations between the parties, an order for contact as agreed between the parties would not work because at this stage it appears the parties are not able to reach a sufficient degree of agreement for that to take place. That may well be an overly cynical view.
I am mindful of the fact that this is an interim hearing and the Full Court of the Family Court has had occasion recently to speak about interim hearings and the principles the Court makes clear are that an interim hearing is one that is usually dealt with on the papers; it seldom happens that oral evidence is taken, although that does happen from time to time in the Federal Magistrates Court. But usually matters are dealt with on the papers and the Court does not have the time or the facilities to conduct the same in depth analysis of serious issues as would be available on a final hearing.
I am of course mindful of the decision on interim parenting matters of the Full Court in the old decision of Cilento (1980) FLC 90-847 and the more recent decision of Cowling(1998) FLC 92-801. This case is somewhat different in that this is a case where a grandparent seeks an order.
There are numerous cases of the Court exercising jurisdiction under the Family Law Act 1975 where grandparents seek parenting orders. In Rice v Miller (1993) FLC 92-415, the father of a four year old child appealed against the Family Court order which granted the child's maternal grandmother custody. In the determination of that case the Full Court of the Family Court adopted the conclusion and reasoning of Lindenmayer J in Re: Hodak; Newman; Hodak (1993) FLC 92-421 where His Honour said (using the old terminology):
“It is incorrect in a custody dispute between a parent and a non-parent to state the role of the natural parent is to be preferred or to have recourse to a presumption that the welfare of a child will best be served by an order in favour of the natural parent and the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not however establish a presumption in favour of the natural parent nor generate a preferential position in favour of the natural parent from which the Court commences its decision making process.”
More to the point perhaps are a number of cases where grandparents seek orders for contact with their grandchildren without necessarily seeking residence of children on a full time basis. In Stevens and Lee (1991) FLC 92-201 Kay J considered the question of contact between a grandmother and a grandchild where the relationship between the mother of the child and the grandmother was somewhat hostile and acrimonious. In that case his Honour had to weigh and consider the benefits the child would gain from the contact with the grandmother against the strain and distress that may otherwise be caused should the child have that contact due to the mother's complete loathing sentiments towards the grandmother. I hasten to add that that is not the evidence of the parties in this case. His Honour in Stevens and Lee, bearing in mind that the best interests of the child are the paramount consideration for the Court to determine, concluded that:
“The benefits that the child would get from direct contact with his grandmother would not outweigh the trauma and difficulties which would be brought about by the mother's attitude”.
The same issue was considered by Treyvaud J in Bright and Bright v Bright and Mackley (1995) FLC 92-570. This was a case where paternal grandparents sought contact to their grandchild. The child's parents opposed this application on two grounds. First, that the child might fret for her mother and second, that the child should not be caught up in a dispute between her parents and grandparents. His Honour referred to the decision in Stevens and Lee (supra) saying, at page 81,658 of the text:
“It is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family”.
In that case His Honour noted that there had been contact between the child and the grandparents to the extent that there was a close bond between them. He was critical of any attempts to involve the child in a dispute between adults.
Having considered those authorities and the facts in this case, I am of the view that the particular circumstances warrant a contact order in favour of the grandmother. One of the circumstances that I find particularly persuasive is the fact that the second respondent, the father, whilst based on the same premises as the grandmother, is by the nature of his occupation, away from home a lot of the time and is not able, due to the demands of his work hours, to exercise the contact the grandmother would like.
At the same time, however, I am concerned that the contact orders sought by the grandmother to this little girl are in fact extensive and quite time consuming. I am persuaded that there is a benefit to a child in having contact with a grandmother and I am not of the view that the mother demonstrates the degree of hostility towards the grandmother as was clearly the case in Stevens v Lee (supra). It is not difficult to understand the mother's point of view that she does not wish to be tied down specifically as far as contact is concerned and I am certainly of the view that the contact arrangements proposed by the grandmother could have a disruptive effect on the mother's life and cause her a degree of inconvenience. She has of course on the last occasion agreed to the order for telephone contact and certainly does not disagree with the question of contact in principle.
I am not persuaded that the contact sought on alternate Tuesdays after school in the child's first year of school is necessarily in the best interests of the child. Contact on alternate Saturdays may be a little bit too much at this stage, that may be a matter that could be considered down the track. I am of the view however that the benefit to the child in maintaining contact with a loving grandmother who wants to be a grandmother is such that contact on a particular day each month for a full day is an order that would promote the child's best interests.
I am not at this stage persuaded that on an interim basis I should make an order for overnight contact but I believe that there should be full day contact during the school holiday period.
There is no issue as to the fact that there should be regular telephone contact.
As far as the restraining order is sought regarding relocation to H B, I note that there is no evidence of an immediate plan but this is still something that the mother and her partner would wish to do. At the same time, the order sought restricting a party to reside in a particular local government area of New South Wales appears to me to be unusually restrictive and is one which could well prompt a further interim application to the Court. It may well be desired by the grandmother to prevent the mother removing the child from H Primary School but I am not persuaded at this stage that the grandmother's decision as to the appropriate schooling for the child should necessarily decide the case, at least on an interim basis. To my mind, it would be precipitous if the mother were to take such a drastic step as to remove the location of the child to N Q until the matter can be fully litigated.
I am of the view, however that the H Shire Council boundary imposes far too much of a restriction on the liberty of the mother and the child to live within the State of New South Wales and I am of the belief that at this stage that an injunctive order should be made restraining, until further order, the mother from changing the child's place of residence out of the state of New South Wales. Crossing the boundaries of one local council to another does not seem to me to be an action which would not be in the child's best interests if the need arose.
It is for these reasons that I make the Orders set out at the commencement of this decision.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 24th February 2004
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