BISHOP and OWEN

[2019] FCWA 192

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: BISHOP and OWEN [2019] FCWA 192

CORAM: O'BRIEN J

HEARD: 28 AUGUST 2019

DELIVERED : 30 AUGUST 2019

FILE NO/S: PTW 4776 of 2017

BETWEEN: MS BISHOP

First Applicant

AND

MR BISHOP

Second Applicant

AND

MS OWEN

Respondent

Catchwords:

Parenting – Application by maternal grandparents to spend time with 10-year-old child – Where grandparents heavily involved in the child's life until a falling out with the mother arising in part from allegations that mother’s new partner had harmed the child – Where mother now completely estranged from her family – Where grandparents initially applied for child to live with them – Where mother read the Court documents to the child, who now fears that the grandparents are seeking to remove him from the mother's care – Where it is in the child's best interests to renew his relationships with the grandparents and family – Orders for child to meet with Family Consultant so orders may be explained to him and his fears allayed - Turns on own facts.

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

First Applicant	:	Self Represented Litigant
Second Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Solicitors:

First Applicant	:	Self Represented Litigant
Second Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

A & A (1998) FLC 92-800

Banks & Banks (2015) FLC 93-637

McCall & Clark (2009) FLC 93-405

Re C & D (1998) FLC 92-815

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bishop and Owen has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court’s reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The matter for determination is the application of [Ms Bishop] and [Mr Bishop] (“the grandparents”) seeking orders to spend time with their grandson, [Child A] born [redacted] in 2008 (“Child A”). The application is opposed by their daughter, Child A mother, [Ms Owen] (“the mother”).

2A central matter affecting the determination of what parenting orders are in Child A’s best interests is the now toxic relationship between the grandparents and the mother.

Background

3The grandparents were married in December 1983. They are happily married, and have three adult children – [Mr A], born in December 1984, [Ms B], born in January 1986, and the mother who was born in September 1987.

4The mother fell pregnant with Child A when she was 20 years old. Child A’s father is [Mr C]; he has never known Child A, and his current whereabouts are not known to any of the parties.

5The mother was living with the grandparents when Child A was born. She and Child A continued living with the grandparents until late 2014, when she moved out into rental accommodation. Until then, the mother had been Child A’s primary carer, but the grandparents were actively involved in his care on a daily basis.

6The grandparents’ detailed evidence as to their involvement in Child A’s daily care, and the significant role they played particularly when he was a baby, was not challenged by the mother. The mother returned to work when Child A was approximately two years old, and the grandparents cared for him during the day, albeit he attended some day-care. When Child A started school, the grandparents were again heavily involved in the necessary arrangements including transport, and before and after school care.

7In the period after the mother moved out, Child A continued to spend most weekends with the grandparents. The grandfather would often collect him from school and care for him at the mother’s home until she got home from work.

8The mother began a relationship with her now husband, [Mr Owen], in early November 2014. They began living together in March 2015, and were married in October 2016. Mr Owen has a daughter, [Child B] (aged 11), who lives primarily in his care.

9In May 2015, the grandparents raised concerns that Child A was being physically harmed by Mr Owen. The Department of Communities (“the Department”) was notified, and conducted a safety and well-being assessment. The Department substantiated physical harm, finding that Mr Owen had used excessive physical discipline causing harm to Child A. The Department continued safety planning with the mother and Mr Owen, Child A remained in the mother’s care, and the Department closed its file deeming no further action warranted. The mother was angered by the grandparents’ actions.

10In September 2015, further concerns were reported to the Department, on the basis that Child A was displaying behavioural problems and showing signs of anxiety about going home after school. The Department found there to be “many safety factors in the child’s life, such as his maternal grandparents” and the matter did not progress.

11The mother began reducing the grandparents’ time with Child A. In or about July 2017, she ceased Child A’s time with the grandparents altogether, although they continued to see him at his regular scheduled swimming lessons. A short time later, the mother changed the timing of Child A’s swimming lessons.

12On the grandparents’ case, the mother subsequently told them that they would never see Child A again.

13At trial, the mother readily agreed that Child A had an “excellent relationship” with the grandparents before she fell out with them.

14The grandparents commenced proceedings by filing an application on 1 August 2017. Primarily, that application sought orders for Child A to live with them and spend time with the mother on alternate weekends, and overnight on Thursday in the intervening week, plus half of all school holidays. In the alternative, they proposed that Child A live equally with the parties on a week about basis.

15In her response filed on 30 October 2017, the mother sought orders for sole parental responsibility, for Child A to live with her, and for him to spend time with the grandparents on alternate weekends from 10.00 am Saturday until 5.00 pm Sunday, and during the summer School holidays for a period of no more than seven days. She also sought various specific issues orders.

16The parties attended a case assessment conference on 23 November 2017. The grandparents expressed the belief that the mother began reducing Child A’s time with them due to the concerns they had raised in relation to Mr Owen, and her care. They detailed allegations of physical harm of Child A. Mr Owen, who attended the conference with the mother, said that he and she were being continually “downgraded” and verbally attacked by the grandparents, and did not want Child A to be exposed to that. Mr Owen and the mother denied that Child A had ever been physically chastised.

17The Family Consultant expressed the view that, given Child A’s strong attachment to the grandparents, their relationship with him should be supported for his benefit. He noted also that it was “evident during the conference that the emotions between the parties are raw and they are upset with one another, for various reasons”. He tried to encourage the parties to set aside their differences for Child A’s benefit, explaining the potential effect on him of such conflict between the important adults in his life.

18Encouragingly, the parties were able to reach an interim agreement. Orders were made by consent on 14 December 2017, providing (until further order) that the mother have sole parental responsibility, that Child A live with her, and that he spend time with the grandparents each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, for the second week in January in every summer School holidays, and for the first week of each term school holiday. Orders were also made in relation to handover, for the grandparents to be at liberty to contact Child A by telephone on no more than two occasions each week, for the exchange of information, and for the grandparents to be at liberty to attend functions and activities organised by Child A’s school, and sporting and extracurricular events.

19Mutual non-denigration injunctions were also granted by consent. As appears below, they had little effect.

20The grandparents resumed spending time with Child A in accordance with the interim consent orders. That continued for several months against the background of increasingly confrontational communications between the parties. The mother then unilaterally ceased complying with the orders to which she had consented, and Child A last spent time with the grandparents in June 2018.

21There followed increasingly hostile communications between the parties, with the hostility being most evident in the mother’s responses to attempts at communication by the grandparents. Many of those responses were vile and abusive. The grandparents, whether out of genuine concern, frustration, or for other reasons, themselves took steps which were not helpful in restoring a workable relationship. They requested police welfare checks on Child A at the mother’s home on two occasions, and on another occasion the grandmother drew the attention of the mother (who was born overseas) to news items reporting on the possibility of deportation for people who breach court orders.

22The mother’s relationship with the rest of her side of the family also completely broke down. As a result, Child A does not presently spend time with any member of his maternal extended family, including young cousins with whom he previously had a very happy relationship.

23The matter then proceeded to trial as quickly as that could be accommodated by the Court.

The legal principles

24Child A’s parents were not married. The proceedings therefore fall to be determined pursuant to the Family Court Act 1977 (WA). The Court must be guided by the objects of Part V of the Act and the principles underlying them.

25Section 70A requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility. Self-evidently, that statutory presumption does not apply where the parenting orders in question are being made as between a parent and a grandparent. Such parenting orders are made by reference only to a determination as to what is in the relevant child’s best interests, unconstrained by the statutory presumption.

26In determining what is in a child’s best interests, the Court must consider the matters set out in s 66C. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.

27Relevantly, the first of the primary considerations and a number of the additional considerations by their terms apply only to the consideration of what orders should be made as between parents; they have no relevance to the present dispute.

28Otherwise, the issues that are joined between the parties will dictate which s 66C factors are relevant.

29The requirement to consider each matter set out in s 66C does not mean that each factor must be expressly discussed in a judgment where the factor in question has no sufficient relevance in the particular circumstances of the individual case to displace the determinative significance of factors specifically discussed.[1]

[1] Banks & Banks (2015) FLC 93-637.

30In determining what orders are in the child’s best interests, the biological parent does not, merely by virtue of biological parentage, “stand in any preferred position”.[2]

[2] Re C & D (1998) FLC 92-815, [10.10].

31That said, it is well-established that the Court may properly consider the potential impact of proposed orders on the parent who has primary care for a child. That is so, as the Court must recognise the potential effect on the child of the consequences of that impact.[3]

[3] A & A (1998) FLC 92-800, 84,996 [3.29].

32It must also be remembered that while the Court is required to consider the nature of the child’s relationship with each of their parents and any other persons including any grandparent or other relative, there is no presumption that a particular relationship will be “meaningful”, nor that it will be to the benefit of the child.[4]

The relief sought by the parties

[4] McCall & Clark (2009) FLC 93-405.

33At the commencement of the trial, the grandparents confirmed that they continued to seek orders in the terms of a Minute filed on 8 August 2018, whereby Child A would spend time with them each alternate weekend from after school Friday until the start of school on Monday, and overnight on Thursday each week. The minute also proposed that he would spend half of all school holidays with them, and sought various specific issues orders.

34The mother had not filed any documents prior to trial to update the relief sought by her, in circumstances where it was obvious that she no longer proposed that orders be made in the terms set out in her earlier response. At the commencement of the trial, she confirmed that she simply sought that the grandparents’ application be dismissed, and that all existing parenting orders be discharged. She sought that there be no order for Child A to spend time with the grandparents or communicate with them.

35In closing submissions, the grandparents modified the relief which they sought. They confirmed that they no longer sought the orders set out in the Minute filed on 8 August 2018. Rather, they sought final orders in terms of the interim orders which had been made by consent on 14 December 2017, modified slightly to provide for handovers at school where possible, to avoid confrontation between the parties.

36As that amended position was only articulated by the grandparents after the mother had made her closing submissions, I gave her the opportunity to respond. She made it clear that she maintained that the grandparents’ application should simply be dismissed, with no orders for Child A to spend time or communicate with them.

37I explained to the mother that it would be of assistance to me to hear any submissions she wanted to make as to what form of orders should be made in the event that, notwithstanding her opposition, I determine that it is in Child A’s best interests for orders to be made for him to spend time with the grandparents. I made it clear to her that I would not misinterpret any submissions of that nature as being any concession on her part, or any departure from her primary position, let alone a proposal actively pursued by her.

38The mother responded by saying that if I determined that orders should be made for Child A to spend time with the grandparents, she would submit that time should be structured so that on one weekend a month Child A spent from 9.00 am to 5.00 pm with the grandparents on each of the Saturday and Sunday. She said that in those circumstances she would transport Child A to and from his grandparents’ home. She said that he should not stay overnight with the grandparents, as it was preferable for him to sleep in his own bed. When I asked for her views on the issue of potential conflict between the parties, and exposure of Child A to that conflict, if an arrangement was made where she and the grandparents would be brought into contact with each other on four separate occasions over the course of two days she suggested that handover could occur at a public place.

The evidence

39The grandparents relied on the following affidavits:

(a)their joint case information affidavit filed on 1 August 2017;

(b)the trial affidavit of the grandmother filed on 27 August 2018; and

(c)the trial affidavit of the grandfather filed on 8 October 2018.

40The mother relied on the following affidavits:

(a)her trial affidavit filed on 15 August 2019; and

(b)the affidavit of Mr Owen filed the same day.

41The conference memoranda prepared by the Family Consultant and dated 23 November 2017 and 15 August 2019, and the letter from the Department to the Family Court Counselling Service dated 8 February 2018, were also admitted into evidence at the commencement of the trial.

The parties as self-represented litigants

42The parties were self-represented at trial. At the commencement of the trial I explained various matters so as to ensure that they properly understood the process. As already noted, I also clarified the relief sought by them. In exchanges during the course of the trial, I sought to clarify the basis upon which various submissions were put.

43I explained the legal principles involved, and in particular that Child A’s best interests are the paramount consideration in determining what parenting orders, if any, should be made.

44I explained the steps that I was required to take to ensure procedural fairness. I informed the parties of the manner in which the trial was to proceed, the order in which evidence would be given and submissions made, and their right to cross-examine.

45In particular, I explained the importance of cross-examination and the likelihood that relevant evidence that was not challenged in cross‑examination would be accepted. I explained also that arrangements were in hand for the Family Consultant to be available for cross-examination if desired. I did not require the parties to indicate whether or not they wish to cross-examine until after those explanations had been given.

46The grandparents chose not to cross-examine the mother. They required Mr Owen to present for cross-examination, in which he was asked one question only. He was asked whether he had ever “touched or harmed” Child A and responded that he had not. The grandparents did not require the Family Consultant to present for cross-examination.

47The mother cross-examined the grandmother, but did not seek to cross‑examine the grandfather. She did not require the Family Consultant to present for cross-examination.

48I am satisfied that the parties understood the matters which I raised with them and that the trial proceeded in a manner which afforded procedural fairness.

Factual matters not in issue

49As already noted, it was common ground that the grandparents had an excellent relationship with Child A prior to their falling out with the mother and her unilateral decision to no longer permit him to spend time with them. The grandparents gave very detailed evidence as to the level of their involvement in Child A’s life, both before and after the mother moved out of their home; that evidence was unchallenged and I accept it. It is clear that even after the mother moved out of the grandparents’ home, they continued to play a very active role in Child A’s care on a day-to-day basis.

50It was also common ground that Child A enjoyed his relationships with extended family. Those relationships include his Uncle Mr A and his partner, [Ms D], and Mr A's son from a previous relationship, [Child C], with whom Child A was particularly close. They also include Child A’s Aunt Ms Be and her husband [Mr E]. Child A has met [Child D] the son of Mr A and Ms D who was born in June 2018, on one occasion only.

51The mother is estranged from Mr A and Ms B. The grandparents are not. The reasons for the mother’s estrangement from Mr A and Ms Bwere not explored in evidence or submissions.

52The mother did not contend that her decision to cease contact between Child A and the grandparents had anything to do with the quality of the relationship between them. Rather, the decision was taken entirely because of the breakdown of her own relationship with the grandparents. She took exception to the views which they expressed about Mr Owen, and to the actions which they took in response to concerns that Mr Owen had physically harmed Child A. She perceived the grandparents to be unduly interfering in her life, and to be critical not only of Mr Owen but of her own parenting. Her response was to shut the grandparents out of her own life entirely, which in turn meant shutting Child A off from them.

53Against that background, the mother’s initial reaction when the grandparents commenced proceedings in which they sought orders for Child A to live with them, spending alternate weekends and one night in the intervening week with her, was predictably unfortunate.

54What emerges from the uncontested facts is the central issue in the case. Were it not for the antipathy between the parties, the benefit to Child A of an ongoing relationship with his grandparents would be beyond question. The determination of what orders are in his best interests is made difficult only by that antipathy, and by questions of whether exposure to it, and to the mother’s likely behaviours if required to engage with the grandparents, would themselves outweigh what would otherwise be that unquestioned benefit.

55In that regard, the uncontested evidence of the Family Consultant is informative.

The evidence of the Family Consultant

56[Family Consultant A] met separately with the grandparents, with the mother, and with Child A on 15 August 2019. The grandparents confirmed that they had not spent any time with Child A since June 2018. They said they had tried to be amicable in their dealings with the mother, but believed that her attitude towards them was ‘comprehensively unresolvable’.

57The mother was described by the Family Consultant as being “irate with the scheduling of [the] conference so soon after the recent court hearing, and had directed her anger towards the grandparents for the continual court application.” She refused to engage in dialogue with the grandparents, and said that she was not prepared to be in the same room as them.

58The mother told the Family Consultant that her parents were never approving of Mr Owen, and that she had to “choose between them” and chose her husband. She reported that she had now cut off all members of her maternal and paternal families, believing the latter to be necessary as the paternal family were taking photos of Child A from her social media account and sending them to the grandparents.

59The Family Consultant asked the mother why she had not complied with the interim orders to which she had consented. She said that she would never force Child A to spend time with the grandparents if that was not what he wished to do. She said that she had told Child A that he could spend time with the grandparents, but only if he wanted to. When asked why she had not supported Child A spending time with the grandparents, the mother spoke in a derogatory manner about the grandmother, calling her an “evil bitch” who continually tried to intervene in her life.

60When asked for a specific reason why Child A should not spend time with the grandparents, she would not give a definitive answer. She did, however, express the view that the grandparents were trying to remove Child A from her care. She did not see any negative impact on Child A from being isolated from the whole of his extended family, as earlier described.

61The Family Consultant described Child A as presenting as a well-groomed child who appropriately engaged with him. He spoke positively about school and his friends, and was excited about his upcoming birthday.

62When told that the meeting was an opportunity to talk about important aspects of his life, and asked what he would like to talk about, Child A broke eye contact and “related a narrative in robotic like monotone”, saying “I don’t want to go to my grandparents. They’re trying to take me away. They have been rude to my mum. I’ve made my decision”.

63When asked for reasons why he may not wish to see the grandparents, Child A repeated that they were “mean” to the mother and expressed his fear that they were trying to remove him from her care. When asked why he would think that, he said the mother had told him that was their plan. He said that he was afraid to spend time with the grandparents due to that alleged threat. He did, however, speak about wishing to spend time with Child C.

64Child A spoke positively about his home life. Relevantly, he said that he had been physically chastised in the past, but that did not occur as often as when he was younger. He said that the mother would smack him on the buttocks, and that he had also been hit with a belt by Mr Owen, but the latter had not occurred since he was about eight years old. The Consultant noted that when he asked Child A further questions on the topic, Child A appeared worried about having made that disclosure, and did not want to talk further.

65The Family Consultant expressed himself to be “greatly concerned about the well-being of [Child A] due to the actions of the mother” noting Child A’s “intense fear of his grandparents removing him from the mother’s care”, and the mother’s influence in cultivating that fear. He concluded that Child A had been “significantly influenced by his mother to achieve full isolation” from the grandparents, saying that it appeared that the toxicity of the mother’s relationship with the grandparents had “seeped into [Child A’s] mindset”. He expressed the view that the mother lacked significant insight into her actions and the likelihood of harm those actions might cause to Child A both in the short and longer term. Her toxicity directed towards the grandparents was “limiting her capacity to put the needs of [Child A] as the priority, albeit she believes her actions are addressing his best interests.”

66The Family Consultant was also concerned about Child A’s disclosure about being struck by Mr Owen with a belt, and his immediate avoidance of further discussions, possibly indicating a fear of repercussions for having made the disclosure.

67In considering the steps to be taken moving forward, the Family Consultant expressed the view that the mother does not have the capacity at this juncture to healthily engage in any family therapy. That said, he expressed his “full support” for consideration to be given to final orders for Child A to spend time with the grandparents and wider family members. He perceived no risk presented from the grandparents, and noted that the mother could not voice “an acceptable narrative or reason” as to why Child A should not spend time with them.

68He regarded it as fundamentally important for Child A to reengage with his family members to help improve his positive childhood outcomes, while noting the potential difficulty that might arise from the actions and conduct of the mother if he does.

69He suggested further that the Court consider arrangements whereby Mr Owen would not be present at handovers. The grandparents had given evidence to the effect that Mr Owen was aggressive and abusive towards the grandfather in particular; while both the mother and Mr Owen denied that, and the matter was not explored in cross‑examination, Child A did mention to the Family Consultant that Mr Owen had shouted at, and sworn towards, the grandfather.

70I accept the unchallenged evidence of the Family Consultant.

The legislative considerations

71By the end of the trial it was common ground that Child A should continue to live primarily with the mother.

72Accordingly, and notwithstanding the issues raised by the grandparents, and the disclosure made by Child A, the evidence does not support a conclusion that relevant orders as to Child A spending time with the grandparents need to be crafted with an eye to the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

73That said, any orders for Child A to spend time with or communicate with the grandparents do need to be crafted with an eye to protecting him from psychological harm from exposure to the antipathy between his mother and his grandparents, and from exposure to aggressive or abusive behaviour towards the grandparents by Mr Owen.

74As already noted, in his meeting with the Family Consultant, Child A expressed views to the effect that he did not wish to see or spend time with the grandparents. The evidence clearly supports a conclusion that the expression of those views is as a result of the influence of the mother (and likely Mr Owen) rather than representing any accurate reflection of the nature of Child A’s relationship with the grandparents prior to the mother’s unilateral actions. The observations of the Family Consultant as to the manner in which Child A expressed his views, and his presentation generally, support that conclusion and do not require repetition. The conclusion is reinforced by the mother’s statement at trial that Child A “knows what’s going on” between her and the grandparents.

75It is still further reinforced by the mother’s almost casual mention at trial of the fact that she had made Child A aware of the content of documents filed in the proceedings. Initially, the mother said that Child A had read the court documents, and that they had been given to him for that purpose. When questioned further by me she said that had taken place at the commencement of the court proceedings (when Child A was not yet nine years old) and that she had read the documents to him. Child A’s continuing fear that his grandparents are trying to “take him away from” his mother likely has its origins in the mother’s actions in reading to him the grandparents’ initial court documents, in which they sought orders that Child A live with them. The conclusion that Child A’s fear has been reinforced by the mother’s subsequent words and actions is easily reached.

76Until challenged by me, the mother clearly saw nothing wrong with her actions in reading the Court documents to Child A. Her later expressed acknowledgement of an understanding that her behaviour in that regard was inappropriate did not ring true.

77Against that background, no weight can be given to the views expressed by Child A in his meeting with the Family Consultant, to the extent that those views conveyed a reluctance to spend time with the grandparents.

78The making of orders for Child A to spend time with the grandparents would effect a change in his present circumstances. In my view, that change would be positive. It would clearly be to Child A’s benefit to have the opportunity to renew his relationships with the grandparents, and with his extended family. The only cause for concern in that regard is the possible impact on Child A of the mother’s reaction to such orders being made.

79There are no relevant practical difficulties or expenses requiring consideration. Through their long involvement with Child A from birth until relatively recently, the grandparents have a demonstrated capacity to provide for his needs including his emotional and intellectual needs. The mother also has a capacity to provide for Child A’s needs, with one notable exception about which doubt must remain; in my view, the opportunity for an ongoing and healthy relationship with members of extended family is a legitimate and important need for Child A. It is to be hoped that the mother will demonstrate a capacity to put aside her own anger and views, or at least to consciously shield Child A from them. It is in that regard only that the maturity of the parties is a relevant consideration.

80It would, in my view, be preferable to make the order least likely to lead to the institution of further proceedings in relation to Child A. That would be so even were it not for the mother’s palpable anger at the grandparents for continuing with the proceedings, and her annoyance at having (for example) to attend the conference with the Family Consultant.

Conclusion and proposed orders

81I conclude that it is in Child A’s best interests to spend time with, and communicate with, the grandparents.

82That said, I also regard it as being in Child A’s best interests for the frequency and duration of his time with the grandparents to be significantly less than what is proposed by them. It is perhaps understandable, given the level of their involvement in Child A’s care in his early years in particular and continuing after the mother moved out of their home, that the grandparents would seek orders more typically made between parents. Nevertheless, it is appropriate for them to recognise that the mother is Child A’s primary carer, and that Mr Owen is now a central figure in his life. It is in Child A’s best interests for them to revert to a role more traditionally occupied by grandparents. That would be so even were it not for the difficulties in their relationship with the mother; the fact of those difficulties simply reinforces the conclusion that a degree of involvement along the lines sought by them at trial would be a recipe for the perpetuation of conflict, to Child A’s detriment.

83In my view, an arrangement whereby Child A spends time regularly with the grandparents every fourth weekend is appropriate. I reject the submission of the mother that Child A’s time with the grandparents should not include overnight time. I regarded it as preferable to make orders which will minimise the need for communication between the parties, and the need for handovers. I also consider it to be in Child A’s best interests to ensure that Mr Owen does not participate in handovers, so as to reduce the risk of further conflict.

84Accordingly, I propose to make orders whereby on every fourth weekend Child A will spend time with the grandparents from after school on the Friday (or 3.00 pm if the Friday is not a school day) until 5.00 pm on the Saturday. There will be no need for the parties to come into contact with each other if Friday is a school day, as the grandparents will be able to collect Child A from school. The mother indicated that if orders were made for Child A to spend time with the grandparents she would facilitate handover by picking him up; I propose to order her to do so.

85I do not propose to make orders for Child A to spend extended time with the grandparents during school holidays. In the circumstances already described, which do not require repetition, I regard regular short periods of time only with the grandparents as being in his best interests at this stage. It is, of course, to be hoped that once the parties are out of the litigation process, and have the opportunity to reflect on what has transpired, progress might be made in due course whereby Child A should spend more extended time with the grandparents.

86I do not propose to make orders for regular telephone communication between the grandparents and Child A to commence immediately. I consider it more appropriate for that communication to recommence once Child A has had the opportunity to spend some time with his grandparents again. Similarly, I consider it appropriate to delay the commencement of what is otherwise an appropriate liberty for the grandparents to attend school assemblies and events of that nature without invitation from the mother. I would not want either telephone communication or attendance at school events prematurely to create anxiety or stress for Child A.

87Given the fears expressed by Child A in his meeting with the Family Consultant, and the circumstances which gave rise to those fears, I also consider it appropriate to make arrangements whereby the orders I propose to make, and the reasons for them, will be explained to Child A by the Family Consultant with whom he has already met. In that way, I am hopeful that Child A’s fears that his grandparents are trying to take him away from his mother might be allayed, enhancing the prospects of him looking forward to, and then enjoying, his time with them.

88There will be the following orders, noting that the purpose of the ordered meeting between Child A and the Family Consultant is for the Family Consultant to explain these orders and the reasons for them to Child A, and to reassure him that the orders provide for him to remain living with the mother, and to spend time only with the grandparents:

1.All previous parenting orders made in the proceedings be and are hereby discharged.

2.The mother have sole parental responsibility for Child A, and Child A live with her.

3.Commencing on Friday, 27 September 2019, Child A spend time with the grandparents every fourth weekend from after school on the Friday (or 3.00 pm if a non-school day) until 5.00 pm on the Saturday.

4.For the purposes of paragraph 3 of these orders:

(a)if the relevant Friday is a school day, the grandparents are to collect Child A from school;

(b)if the relevant Friday is not a school day, the mother is to deliver Child A to the grandparents’ home at 3.00 pm; and

(c)in either case, the mother is to collect Child A from the grandparents’ home at 5.00 pm on the Saturday.

5.The mother is restrained by injunction from being accompanied by Mr Owen at any handover.

6.By no later than the close of registry on 6 September 2019, the mother must telephone the Family Court Counselling and Consultancy Service to make an appointment for Child A to meet with Family Consultant A, such meeting to take place no later than Wednesday, 25 September 2019.

7.The mother must bring Child A to the scheduled meeting with Family Consultant Aat the offices of the Family Court Counselling and Consultancy Service.

8.Commencing at the start of the 2020 school year, the grandparents are at liberty to attend at and participate in functions and/or activities at Child A’s school, including any assemblies and the like, but not including parent teacher meetings or events of that nature unless invited by the mother.

9.Commencing at the start of the 2020 school year, the grandparents are at liberty to contact Child A via the mother’s telephone at 7.00 pm on no more than two occasions each week.

10.The mother must do all things reasonably necessary to facilitate the telephone communication referred to in the immediately preceding paragraph of these orders.

11.The mother must promptly inform the grandparents of any significant health issue or injury suffered by Child A.

12.In the event that Child A suffers any significant health issue or injury when spending time with the grandparents, they must immediately notify the mother.

13.In the event that Child A’s time with the grandparents pursuant to paragraph 3 of these orders would have the effect of Child A being in their care on any of the special occasions listed hereunder, the relevant scheduled visit with the grandparents is to be delayed by one week:

(a)Christmas Day;

(b)Boxing Day;

(c)Child A’s birthday;

(d)the mother’s birthday;

(e)Mr Owen’s birthday; and

(f)the birthday of Mr Owen’s daughter Child B.

14.The parties are each restrained by injunction from:

(a)denigrating or describing in negative terms the other party or parties or their respective partners, friends or family in Child A’s presence or within his hearing;

(b)permitting Child A to be present when any other person does so;

(c)harassing the other party or parties or unreasonably interfering with their manner of living;

(d)attending the home of the other party or parties other than as provided in these orders, or if invited to do so;

(e)discussing the proceedings, any evidence given in the proceedings, or any submissions made by any party with Child A;

(f)allowing Child A to read any documents produced in these proceedings, or reading such documents or any part of them to him; and

(g)physically disciplining Child A or permitting any other person to do so.

15.All outstanding applications and responses otherwise be and are hereby dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

30 AUGUST 2019