Blount & Spears and Anor

FAMILY COURT OF AUSTRALIA

BLOUNT & SPEARS AND ANOR

[2007] FamCA 644

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT:

Ms Blount

RESPONDENT:

Mr Spears

INTERVENOR:

Mrs Spears

INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore

FILE NUMBER:

NCF

2152

1999

DATE DELIVERED:

3 July 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Steele J

HEARING DATE:

18,19,20 & 21 June 2007

REPRESENTATION

APPLICANT:

in person

COUNSEL FOR THE RESPONDENT:

Mr Hartley

SOLICITOR FOR THE RESPONDENT:

Lucas & Associates

COUNSEL FOR THE INTERVENOR:

Mr Mooney

SOLICITOR FOR THE INTERVENOR:

Whitelaw McDonald & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Boyd

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Sharon Moore Solicitor

Orders

That all existing orders regarding the children T born … January 1999, A born … April 2001 and S born … August 2002 be discharged.
That each of the parents have equal shared parental responsibility for the children.
That the children live with the father except as specified below.
That the children live with the mother:-
(a)During school terms from noon Saturday until before school on Monday (extending to Tuesday on a long weekend) on the first, second, third, fifth, sixth, seventh and ninth weekends of each school term;
(b)From noon on the first Saturday until 4:00 pm on the following Friday of the first week of the term one, two and three school holidays;
(c)For the first half of the Christmas school holidays in odd numbered years and the second half of the holidays in even numbered years, provided that the parent not having the care of the children in the first half of the said holidays shall have their care between noon on Christmas Eve and 3:00 pm on Christmas day.
The children shall spend time with the paternal grandmother from after school (or from 4:00 pm on non-school days) each Friday until noon each Saturday, the only exception being where Christmas Eve or Christmas Day fall on Friday or Saturday.
The children shall be in the care of the mother from noon on Saturday of the Mother’s Day weekend, and in the care of the father from noon on Saturday of the Father’s Day weekend, regardless of the operation of the above orders.
The parent not otherwise having the care of the children on each of their birthdays shall have the care of the children from 4:00 pm until 8:00 pm on those days unless the parents otherwise agree.
All parties shall ensure the changeovers for the care of the children occur at the home of the paternal grandmother.
Each party shall notify the other of any medical appointment, prescribed medication or any emergency medical treatment involving any of the children as soon as practicable.
The father shall ensure that the mother and the paternal grandmother are notified of all school events and shall provide to them reports or progress notes involving any of the children and shall inform them of all events involving any of the children to which the parents and/or grandparents are invited.
That each party maintain address and telephone contact number notified to the others, and each party shall forthwith notify the others of any change in such notifications.
That the parties must do all reasonable acts and things and execute all documents for the purpose of assisting in the children’s names being added to the Medicare card and Centrelink Healthcare card of the paternal grandmother.
That the paternal grandmother is authorised to take the children to a General Practitioner for treatment if she is of the view that it is required and to administer medication to the children as prescribed.
That the parties must do all acts and things and execute all documents to allow the paternal grandmother to contact or attend any school or preschool that the children may attend from time to time.
The parties must do all acts and things and execute all documents to allow the paternal grandmother’s phone number to be recorded as an emergency contact number for any school, preschool or any place or activity that the children may attend from time to time.
That within 21 days of the date of these orders the parents each make contact with the Director, F Service, N with a view to engaging themselves and their child, A born … April 2001 in therapeutic counselling within the “keeping contact program” as conducted by the said service and thereafter each parent do all acts and execute all documents reasonably directed by the Director to ensure their participation and the participation of A in the said program.
That the Independent Children’s Lawyer’s application for costs is dismissed.
Liberty to apply.
Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-
(a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-
(i)an obligation to do all reasonable things to give effect to the orders; and
(ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.
(b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties. This sets out:-
(i)the penalties which may apply, or other things which may occur, if you breach the orders made; and
(ii)details of who can assist parties to adjust to and comply with the orders made.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF 2152 of 1999

Ms Blount

Applicant

And

Mr Spears

Respondent

And

Mrs Spears

Intervenor

REASONS FOR JUDGMENT

These are proceedings for parenting orders relating to three young girls “[T]” who is nearly eight and a half years of age, “[A]” who is six years of age and “[S]” who is four years and ten months of age.
The parties separated in about April 2002 after some four years of cohabitation. The mother was pregnant with S when separation occurred and S was born some four months later.
The mother married on 30 September 2006 to Mr H and has a child “[C]” aged 11 from a prior relationship (with a Mr E) who has been living with her since December 2005. The mother’s new husband, Mr H, also has a child “[R]” aged six from a prior relationship who spends alternate weekends with him and the mother. Mr H was not available for interviews for the family report and has not given evidence.
The father resided with Ms C from about April 2004 until August 2005 when the relationship ended. Ms C had her four children living with her during that time. The father has a child “[K]” aged 11 years from a prior relationship but he has not had any contact with her for about six months. She was not available for interviews for the family report. The father has been in a relationship with Ms L for about 12 months. Ms L has two children aged three years and two years. They do not live together but Ms L stays at the father’s house with the children about two nights per week.
The paternal grandmother has played a significant part in the children’s lives and she has intervened in the proceedings.
The mother by her Amended Application filed on 25 October 2006 seeks orders for the children to live with her and spend time with the father every second weekend from 12 noon Saturday until 5:00 pm Sunday and half the school holidays plus special days. She proposed that the children spend time with their paternal grandmother from 5:00 pm each Friday until 12 noon each Saturday plus two days in each period of school holidays plus other special days.
On the first morning of the trial however, the mother indicated that she proposed orders which would reduce the time the children spend with the paternal grandmother and provide for the paternal grandmother to have contact for two out of every four weekends from after school Friday until 7 pm that evening and on the other two weekends in the four week cycle from after school Friday until 10:00 am Saturday.
On the first morning of trial the Independent Children’s Lawyer’s counsel tendered a document (Exhibit C2) setting out the orders he proposed. The substance of those orders provided for the children to live principally with the father, spend time each Friday after school until 12 noon Saturday with the paternal grandmother and seven out of nine weekends from 12 noon Saturday until the commencement of school Monday morning with the mother. In addition, it is proposed the parents would share school holidays.
Following the tender of Exhibit C2 there have been changes of position by each of the parties. Ultimately on 19 June 2007 the paternal grandmother filed a Further Amended Response which sets out the detail of the orders she now seeks. They are in substance the same orders as those contained in Exhibit C2 with some additions. The Independent Children’s Lawyer has also changed position and now supports all of those orders sought by the paternal grandmother and the father also supports all those orders except orders 4, 9, 11, 12, and 13. He suggests the effect of order 4 (providing for the paternal grandmother’s overnight contact) should be limited to school terms and opposes orders 9, 11, 12 and 13 in their entirety.
The mother was given the opportunity to address last. When she did so she said that she wished to propose that in the alternative to the orders earlier referred to, that orders be made for an equal sharing of time between her and the father after providing for contact with the paternal grandmother as earlier referred to.
The parties are agreed that an order should be made for equal shared parental responsibility.
The two older children have had significant health problems. T has undergone tonsillectomy about three years ago and A is due to undergo surgery the day after the trial completes in respect of tonsils, adenoids and ear problems. T also has eye problems which require ongoing treatment. The case is one which appears to require the Court to make orders which will best achieve rudimentary standards of care and security for the children.
The father and the paternal grandmother have been represented and there is an Independent Children’s Lawyer. The mother has appeared in person.

Short History

The mother was born on … December 1978 and is now 28 years of age. She lives at T with her new husband Mr H to whom she married on 30 September 2006. She has a child C from a prior relationship (with Mr E) who was born on … February 1996 and is 11 years of age. C has resided with the mother since December 2005. The mother’s husband, Mr H has a child R aged six from a prior relationship who spends alternate weekends with the mother and Mr H. The mother is not in paid employment. She is pregnant and is expecting Mr H’s child in early August. Mr H was not available for interviews for the Family Report and has not given evidence.
The father was born on … July 1976 and is now 30 years of age. He resides at E. The father has a child K from a prior relationship who was born on … December 1995 and is 11 years of age. Until about six months ago, the father had regular weekend contact with her but in recent times has not done so. The father resided with Ms C and her four children from 4 April 2004 until August 2005. He has retrained to work as a hospital assistant and works on an “on call casual” basis at either U Hospital or O Hospital between two and four days each week. He is in a relationship with Ms L who has two children aged three years and two years but they do not live together. She and her children often spend nights at the father’s home but he says the relationship is still developing. Ms L was not available for interviews for the Family Report and has not given evidence.
The paternal grandmother was born on … September 1950 and is 56 years of age. She is the intervenor in the proceedings and resides at F. She is a pensioner.
The parties commenced cohabitation in February of 1998 and separated in April of 2002.
There are three children of the relationship, T born … January 1999 who is eight and a half years of age, A born … April 2001 who is six years of age and S born … August 2002 who is four years and ten months of age. T is in Year 3 at W School and A is in Kindergarten at the same school. S attends Y Kindergarten. Following separation the two older children resided with the father but S who was born in August 2002 after separation lived principally with the mother and later orders were made:-
·On 2 December 2002 consent orders for the two older girls to live with the parents on a week about basis and for S to live primarily with the mother but have contact with the father.
·26 May 2004 orders were made by a Federal Magistrate for the three children to live with the father but have regular contact with the mother.
·30 July 2004 orders were made by a Federal Magistrate for the two older children to live with the father but for S to live with the mother and the children to have contact regularly with the non-resident parent.
The two older children have lived principally with the father since December 2003 and see the mother every second weekend from midday Saturday until 5:00 pm Sunday. S has lived principally with the mother but has had regular contact with the father for one day every second weekend.

The Law to be Applied

The objects of Part VII of the Act are set out in Section 60B, which relevantly provides as follows:-
“60B(1)     The objects of this Part are to ensure that the best interests of the children are met by:
(a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)   protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)   ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2)           The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration. Section 60CC provides that in determining what is in the child’s best interests, the court must consider the matters set out in Section 60CC (2) and (3). Those subsections set out some fifteen matters which the Court must consider, some as Primary Considerations and others as Additional considerations. So far as relevant, I have considered those matters.
Further, Section 61DA provides that in determining which orders are in the child’s best interests the court must (unless there are reasonable grounds to believe a parent has engaged in abuse of the child or another child in the family group or has engaged in family violence) apply a presumption that it is in the child’s best interests for the parents to equally share parental responsibility. The presumption may however be rebutted if the court is satisfied that it would not be appropriate for the parents to have equal shared parental responsibility.
Additionally, Section 65DAA provides that if the Court proposes to make an order providing for equally shared parental responsibility (see Section 65DAC), the Court must consider whether it is reasonably practicable for the child to spend equal time with each parent and if so, whether it is in the child’s best interests to do so.
If the Court makes an order for equally shared parental responsibility but does not make an order for equal time with each parent, the Court must, in determining what is in the child’s best interests, consider whether it is reasonably practicable and in the child’s best interests for the child to spend “substantial and significant time” with each parent (Section 65DAA(2) and (3)).
In considering the issue of what is “reasonably practicable” the Court is required to consider the matters in Section 65DAA(5).

The Facts

The parties commenced living together in February 1998 and ultimately separated in April 2002. It seems that in the interim there were a number of temporary separations. In the period that followed the final separation in April of 2002, the parties had an arrangement whereby the care of the children was shared on a week about basis and in December 2002 after S had been born, consent orders were made for the two older girls to live with the parents on a week about basis and for S to live principally with the mother.
The father says that in the time that followed final separation the mother could not cope with the girls and would spend large periods of each week coming around and staying at the house with him and the girls. Initially this started, he says, because he was close to the hospital where the mother expected her confinement to take place. The father says that the mother’s living arrangements were similar to those of a drifter in that she would come and go as she chose, stay three or four nights leaving the girls with him or his mother and go for some time before returning sometimes days later. It seems that in about December 2003 the father found the mother in bed in his home with his friend and her now husband Mr H. It should be said that the mother denies that the phrase “in bed together” was an apt description of what had occurred but the father so interpreted it and immediately after that asked her to leave the home and not return.
The father asserts that the mother, in effect, accepted no responsibility for the children and she would ask him repeatedly to help her with the children and would drop them off to him or to his mother’s place and collect them later when it suited her. The mother has in cross examination denied that and said that in fact she only went to his place because she wanted to see the children in the other week of the two week arrangement when he had the children. The father’s evidence is that for much of the time when she had the children for her own week, she would give them back to him or his mother to look after in any event. The father’s explanation for the mother’s conduct is that she was unable to cope with all the children when they were with her.
The mother conceded that her 11 year old daughter C had been disruptive in her household and that she is the cause of disruptions with the other children from time to time. She claims however that C’s conduct has improved as a result of counselling.
The mother said that about 12 months after the father found her and Mr H in bed together, she and Mr H became a couple and commenced living together.

She said that in the period since, she has been a devoted mother and has looked after the children for most of the time. She says she has been their principal carer. It is not in dispute however that the two older girls have lived principally with the father since December 2003.
During cross examination however, it was apparent that T had serious health problems with tonsillitis which resulted in a significant operation but the mother didn’t even know the operation had occurred until some time after when T mentioned to her that she was required to go to the doctor. It is apparent that arrangements have been made for A, who has also had a series of serious ear infections to have an operation on the day after this hearing is concluded and the mother has had no part in the arrangements in that, although she was informed of it and it is apparent that the operation is a real necessity. When asked about these things, the mother said that it was really the paternal grandmother who had taken care of most of the medical visits and the like. I would accept that the maternal grandmother had some part to play in their medical care but the level of the mother’s involvement in the children’s lives seems to be less than she asserts in circumstances where she hasn’t even come to know of some of these things.
T has had glasses prescribed and has a significant eye defect which requires her to wear an eye patch for some few hours each day. The evidence suggests that there has not been the improvement that might have been expected because of the failure to adhere to the regime of applying the patch. The mother has said she had no idea T had an eye problem until after she saw her wearing glasses but says she does encourage T to wear the eye patch.
Counsel for the father suggested to the mother that she had used her maiden name or the name “[of Mr H]” for the children on occasions in an attempt to distance them from their relationship with their father. The mother was shown a letter of 1 December 2006 enclosing a Medicare card which indicated that T and A were shown on the Medicare card under their mother’s maiden name of Blount. The mother claims she did this because the father would not sign the application for the Medicare card and she couldn’t get a Medicare card in their real name without a birth certificate. She said in turn that the father would not assist her in getting a birth certificate by signing an application for the birth certificate for the two girls. She denied that she could have obtained a birth certificate by signing an application herself without the assistance of the father.
The mother said that she regarded the father’s competence as a carer as being in question and instanced a case where she said he declined to give the children antibiotics which had been prescribed. The father’s evidence is that he always gave the children antibiotics if they were required.
The mother was asked about Mother’s Day in 2006 when the father asserts she said she “had better things to do than spend the time with the children”. She said that was not true and that what had happened was that she was spending the day with C and the father would not allow her to see the other children separately without him being present. The mother said initially she was unable to agree to the father being present because there was a Family Court Order requiring her to ensure that C did not come into contact with the father. She said this was an Order made by consent at the insistence of Mr and Mrs E, the paternal grandparents of C. The father was not involved. Later when it became apparent that there was no such Order, she said that the Order had expired and that it was really just an agreement that she made with C’s paternal grandparents following Family Court proceedings. After explaining this apparent conflict in her evidence she said that her evidence was that there had earlier been an Order which was not an Order in force at the time these issues arose. The mother’s evidence about this issue was unsatisfactory in my view.
The mother said that C, her child aged 11 from her relationship with Mr E, had caused trouble with the three girls but that things were better now because she was undergoing counselling and had been doing so for some time. Hospital records, Exhibit G1, tend to indicate that C’s behaviour had been a significant concern for the mother and she had fears of the E family.
The mother said that she and the father had discussed the matter and they agreed between them that whilst they each wanted residence of the children, nonetheless that the children should be together. They do not want orders made which will result in the children being split.
The mother was referred to the recommendation in the Family Report which issued in October 2006 that she should undergo a parenting after separation course. She said she had done that and commenced the course about six weeks ago but had not completed it because of problems with the floods around N. She said the people at the course had indicated to her that they would give her a letter to that effect if it was required. No such letter was produced.
The mother’s evidence, in particular her evidence relating to the girls’ health problems and operations and T’s need to wear glasses, seems to indicate a level of involvement with the girls which is far less than she asserts.
My concerns about the level of the mother’s veracity relating to the level of her involvement with the children came to a head when she was asked about A’s ear operation, which was scheduled to take place on Friday 22 June, that is the day after the completion of the trial. Counsel for the Independent Children’s Lawyer, without adverting to the proposed operation, asked the mother whether she had anything planned for the following Friday (which is the day planned for A’s operation). The mother gave an answer which made it clear that she had nothing in mind. She was questioned then about A’s proposed operation, of which she had been made aware some months previously. She then changed her evidence and said, “I am going to [U] Hospital. I have arranged with a specialist at [U] Hospital to be present for the operation.” When it was pointed out to her that the operation was taking place not at U Hospital but at X Hospital, she insisted that she had been told by specialists at U Hospital that it was taking place there. Her evidence on this issue is just not believable. It points clearly to a lack of involvement and possibly even a lack of interest on her part because all the evidence, including her own evidence, established that she had been informed about the proposed operation some time ago and the paternal grandmother is always prepared to talk to her and would have given her any information she wanted about the operation. The mother’s evidence about this matter appears to have been untruthful and I have concerns that much of her other evidence has been put forward in a way which is designed to show her in a good light rather than to demonstrate the true position.
The mother said that it was obvious to her that T still has a problem with her eyes as she continues to wear glasses. She says she does adhere to the arrangement of having her wear a patch on her eye for some few hours each day when she is with her but said she is not doing anything about the eye problem because T is never with her during the week when she has appointments with doctors.
The mother says she is pregnant with a new baby, due on 12 August. She said it was not a planned pregnancy but she expects that she will be able to cope with the new baby and four other children.
There is some independent support for the father’s version of events as they were occurring in late 2003. That is the time when the mother claims she was involved with the children, had them at her place for every second week and on the week when they were with the father, she says that she spent time in his house so she could see the children. The support for the father’s version of events comes from a series of documents comprising Exhibit G1 which are the local Area Health Service documents relating to her attendances at the mental health section of the hospital. An entry of 28 October 2003 focuses on the mother’s problems arising out of concerns relating to her eldest daughter aged seven (who I assume to be C) and problems with C’s father’s family (who I assume to be the Es) who are said to have been threatening her. It records also an assertion that the hostile situation is causing C to be angry and disturbed. Importantly though, the notes recorded that her other children aged four, two and one (presumably the children the subject of this application), reside with their father at E property and she sees them regularly “but they cannot live together due to the threatened aggression from her previous partner’s parents”. This entry seems to support the father’s version of events which is that the children were spending most of the time with him and/or his mother and the mother was herself coming and going as it suited her. Another entry for 27 October 2003 suggests that she presented to U Hospital with symptoms of low mood and suicidal thoughts. It recorded a history of a poor family relationship with her mother and previous depressive episode for which she took anti depressants but ceased after three months. The record indicates that the previous depressive episode was treated by Dr R at M and occurred after the second child was born.
The mother conceded in cross examination that the two older children had been living with the father at E since about July of 2003 and that T and A had been going to the same school, namely W School, the whole of their life. She said she intended that those two girls and S also should continue to go to W School, although C will go to P High School. She claimed that W School is convenient to her home and it takes her only five to ten minutes to drive there. The father’s later evidence was in conflict with this and he said it would take a minimum of 20 minutes to drive to W School from the mother’s premises. The mother said however, that she would have no difficulty delivering all three girls to W School from her home on a Monday morning from the beginning of 2008 if that was required.
The mother was asked about the absence of Mr H and his failure to take part in any of the interviews for the Family Report or to take any part in the proceedings. She ultimately conceded that he had said “I don’t want to be involved in these proceedings” - “Basically that is what he said”.
The mother said that she had given her consent to the paternal grandmother for the children to be listed on her health care card to assist in obtaining medical care for them. She said she agrees that the paternal grandmother will always be involved in their care.
The mother conceded that although she was seven months pregnant with a baby due in less than two months time, she nonetheless was smoking regularly and conceded that each day during adjournment of these proceedings she would go outside to have a cigarette. In defence of that conduct she said that she had done the same with the other children when they were born.
The father was cross examined, initially about employment and his relationship with Ms L. He said he had been in “on-call casual” employment for a period of about 12 months and in a developing relationship with Ms L for about the same time but in that period had filed two affidavits in which he had made no mention of either his employment or his relationship.
The father said that he was employed as a hospital assistant by the U Health Department on an on-call casual basis. He said that he worked either at U or O Hospital and his hours vary but he works between two and four days per week and generally from 6:30 am to 3:30 pm. When he is called in to work, he calls either his mother or his girlfriend, Ms L, who look after the children and arrange to get them to school.
The father said that Ms L is a lady he met. He said, “I found her in the paper”. He says she has a boy and a girl aged two years and three years and she lives at X but stays at his place from time to time. Often if he knows he is going to work the next day she will stay overnight so she can take the children to school.
The father was asked about the orders sought in the paternal grandmother’s Further Amended Response filed on 19 June and in particular about the orders sought numbered 11, 12, 13 and 14, which involve principally the provision of authority to the paternal grandmother for the carrying out of medical treatment or having the children placed on her Medicare card. The father’s position seemed to be that he would not agree to these orders on the basis that he thought they were unnecessary notwithstanding that if the orders were made it would probably make his mother’s task easier in helping with the children. He conceded that he had some concerns that his mother may be involved with the children to the point where she may interfere with his freedom but he conceded somewhat reluctantly that her concerns may have derived from the number of relationships which he had and the impact which those relationships when ended may have had on the children.
That father said that he had not seen his daughter K who is aged 11 years for about six months. He said that her mother would not give him her address or phone number and that the procedure for arranging contact had become too difficult.
The father said that he had arranged for A to have an operation on Friday 22 June 2007, that is the day after the conclusion of this case at X Hospital. He said that the date had been arranged since last April. He said he would let the mother know when he learns the time of the operation.
The father said that he conceded that under the orders he proposed for all three children to live principally with him that it would be a big change for S since she had been living principally with the mother for some time. He conceded that to alleviate the change it would be appropriate, as the Independent Children’s Lawyer was proposing, for the children to spend seven out of nine weekends with the mother. He said that he received absolutely no financial support for the girls from the mother and that he intends to continue working to help support his daughters.
The father impressed as an irascible, somewhat definite person who does not allow for shades of grey. He appeared to show a lack of understanding of the effects upon the children of his various liaisons and demonstrated a lack of appreciation for the assistance which his mother has given with the children. He appeared to evidence a desire to ensure that his mother is not in a position to interfere with the course of life he sets out for himself and the children and may even undervalue the importance to them of their relationship with his mother. Nonetheless he is devoted to the children and fully accepts that they are his responsibility. He seems to expect that his mother will assist him with the children if and when required, almost on the basis that it is her obligation to do so simply because she is his mother. His somewhat testy relationship with his mother may be partially explained by the fact that they did not spend a lot of time together when he was growing up as he spent some time in a boys’ home when she was ill and some time in a refuge.
The paternal grandmother gave evidence. She said that she resides at F and is a pensioner.
She said that she did not accept the mother’s evidence that she, the paternal grandmother, had bought things for T and A but not S. She said there were a number of times she had bought things for S and even bought the mother a lounge for her home and paid for petrol so that she could pick it up.
In answer to the mother’s assertion that the paternal grandmother had not looked after S overnight, she said that she had, in fact, often looked after S overnight and on one occasion when the mother went to Queensland to give evidence in a court case, she had S living with her for three weeks.
The paternal grandmother said she understands the father has some reservations about her level of involvement with the children. She said she had raised with him from time to time her concerns about the effect that his relationships, and what they involved, may have on the children.
She conceded that the father’s daughter K is her granddaughter but she has had no contact with her or the child’s mother for some time. She said the children have no contact with the father’s father and very little contact with the mother’s mother.
The paternal grandmother said that the father gave her a car four weeks ago which would enable her to collect and transport the children.
She said she had a relatively good relationship with the mother and that she could ring her at any time if she needed to contact her or the mother could ring her. She said there was no animosity between them.
In relation to the order which it is proposed should be made providing for her to have contact with the children every Friday night, she said that if either of the parents wanted to take the children on holidays and that her Friday night contact would mean their holiday had to be broken, then she would be quite prepared to change those arrangements. She said in the past she has changed them and both parents have provided “make up time”.
She said that she had met the father’s new girlfriend, Ms L although, she has never been to her house in X. She said the children go with the father and Ms L to Ms L’s parents’ farm where they see lots of animals and enjoy it. She said Ms L has been to her home. The children have told her that the mother has said she doesn’t like Ms L.
The paternal grandmother said that she had accompanied the mother to hospital on a number of occasions over the years when she was seeking treatment for emotional problems. She says if asked to assist the mother in relation to those matters, even after the birth of the new child, she would be happy to do so.
The paternal grandmother said that the mother had told her about problems which C caused with the other girls. She said there had been occasions when the mother asked her to take the children with her to protect them from C who was out of hand. Nonetheless, she said there are some times when she understands the girls get on well with C.
Notwithstanding the children’s assertion that the mother had said she didn’t like Ms L, she agreed she had been present when the mother and Ms L had met as recently as the previous Friday and there was no conflict.
The Family Reporter, Ms H, gave evidence by telephone. Her three Family Reports dated 4 November 2002, 16 May 2005 and 31 October 2006 were consecutively Exhibits 1, 2 and 3 in the proceedings.
In her final Report (Exhibit 3), she recommended that the final orders specify contact between the paternal grandmother and the children so that contact is not reliant upon the parents’ goodwill. She thought that the orders should address the present anomaly whereby the paternal grandmother has more contact than the non-resident parent.
Ms H expressed concerns about A’s insecure attachment and she expressed her concern that neither parent has seen to address that issue since her earlier Report issued. The evidence at trial was that the parents had actually got together to try and achieve this and thus they had reduced the time for the contact with the paternal grandmother in the orders they proposed so that whoever was the non-resident parent would have more time. Ms H said that the difficulty about this was that whilst it may have been their best effort, the change of orders actually related to all the children and not specifically to A. She said it was important that the parents each try to have additional one on one time with A. Ms H recommended (in paragraph 92) that if the Court finds that there is evidence to support that the mother is not coping with the children under the current arrangements, then it is recommended that S reside with the father and her siblings. Conversely, if the evidence is that the mother is coping then it was recommended that T and A reside with the mother with S. Ms H said that as far as A was concerned, the parents seemed to think that A had an attitude problem whereas she thought she was a good child who needed more individual attention from the parents. She said that the proposal from the Independent Children’s Lawyer that the parents arrange a counselling course through F Service was a good idea.

The Section 60CC(2) and (3) Matters

The Primary Considerations

(a)The benefit to the child of having a meaningful relationship with both of the child’s parents.
The orders initially proposed by the Independent Children’s Lawyer and now proposed by both the paternal grandmother and the father seem to provide the best opportunity for the children to be kept safe and secure but still have a meaningful relationship with the non-resident parent. The children will spend time with the mother (including two overnight stays) for seven out of every nine weekends plus one half of school holidays. Having regard to the need to ensure that the children are safe and secure, this seems to be the best option.
(b)The need to protect the child from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is, with one exception, no suggestion that the children may be exposed to any abuse or violence. Their health needs are being managed by the combined efforts of the father and the paternal grandmother. There is a need to have some counselling for A and the parties are agreed that an order can be made to provide for that. The mother’s oldest child C (aged 11) has caused physical difficulties for the girls at times, though the mother suggests her behaviour has improved. Care needs to be taken to ensure that the younger children are kept safe from C.
Additional Considerations
(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children are too young to express relevant views.
(b)The nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)

The children seem to have a good relationship with each of their parents and with each other, although it seems there may be some difficulties in their relationship with C.
The children have a close, dependant loving relationship with the paternal grandmother.
A’s attachment to her parents, for reasons which have earlier been spelt out, may not be as secure as the other children.
(c)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (having regard to the matters spelt out in s.60CC(4)).
It is my view that the father has demonstrated his willingness to encourage a relationship between the children and the mother and between the children and his mother, the paternal grandmother. In the same way, the paternal grandmother has encouraged the children’s relationship with each of the parents and appears to be a significant source of security in the children’s lives, though that is not to understate the extent to which the father applies himself to the task.
Conversely, it is my view that the mother is less likely to be willing to support the children’s relationship with the father.
(d)The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

In the orders that are proposed, there will be a significant change for S who has so far spent the majority of her time with the mother. The evidence however, from Ms H suggests that S should be able to cope with that and the fact that she will be with T and A at all times will assist her.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is nothing relevant.
(f)The capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child

to provide for the needs of the child, including emotional and intellectual needs.
Ms H has recorded, and I accept, that both parents have the capacity to meet the children’s basic needs. The children are progressing relatively well at school and that is some testament at least to the father’s capacity, although he unquestionably has some assistance from the paternal grandmother.
It may well be that the parents have not fully understood A’s emotional needs but orders will be made for counselling which hopefully might assist in that regard.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
There is nothing relevant.
(h)If the child is an Aboriginal Child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right.

There is nothing relevant.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (having regard to the matters spelt out in s.60CC(4)).
It would appear that there have been times when each of the parents has been less than ideal in terms of their responsibilities to parenthood. It seems that the mother may have at times, left the children to the care of the father and/or paternal grandmother and there may have been times when the father has failed to fully appreciate the impact which his changing relationships may have had upon the children.
It must be said however, that the father appears to demonstrate a relatively intense acceptance of the obligations of parenthood.

(j)Any family violence involving the child or a member of the child’s family.
As has earlier been recorded, there have been some difficulties from time to time with the mother’s oldest child C and the girls but it is to be hoped that it is receding.
(k)Any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person.
There is nothing relevant.

(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
There is nothing relevant.
(m)Any other fact or circumstance that the court thinks is relevant.
There is nothing relevant.

The Resolution of the Issues

In the end result, it is my view that the orders ultimately made should endeavour to ensure that there are rudimentary levels of care and security for the children. The parties are agreed the children should not be split up. I agree with that.
I am not satisfied that the level of the mother’s involvement with the children has been as significant as she has asserted. I accept the evidence of the father and the paternal grandmother that the mother has at times struggled when she is required to look after a number of the children together. Her situation may become more difficult in the near future when she gives birth to the child with whom she is now pregnant.
The determination of some of the factual issues has been made more difficult by the fact that neither Ms L, the father’s girlfriend, nor Mr H, the mother’s husband, have been made available for interviews for the Family Reports and have not given evidence. No valid reason for their failure to give evidence has been put forward.
Whilst the father and the paternal grandmother are not entirely as one in terms of their ideas and plans for the children, they do by and large work together. It is my view that the paternal grandmother is an important limiting influence on the father who nonetheless is very devoted to the children. It is my strong view that the father will support a relationship of the children with their mother whereas the converse may not apply.
The orders proposed initially by the Independent Children’s Lawyer and ultimately by the paternal grandmother, the Independent Children’s Lawyer and to a large extent, the father do seem to me to provide the best solution to the problem and are most likely to provide the children with security and stability.
The proposed orders will provide the mother with time with the children to the extent of two nights per week for seven out of every nine weeks of the school term, for one week in each of the mid year school holidays and half of the Christmas school holidays. This will impose a considerable load on the mother’s resources at the time when she has these three children and her other children with her, however, for two nights at a time, that should be feasible.
The paternal grandmother’s involvement will be regular but for one night each week of the school term and should enable her to keep an eye on the children’s development and health problems even though I am satisfied that the father is applying himself diligently to such medical problems as have emerged.
The Family Reporter, Ms H, has identified some problems with A and it will, I think, be necessary to arrange some counselling for A to assist her. The essential effect of Ms H’s evidence is that A is in need of some extra time and individual attention from each parent.
I have earlier recorded that the parents are agreed that there should be equally shared parental responsibility and I propose to make such an order. Having so determined it is appropriate for me to consider whether it is reasonably practicable and in the children’s best interests for them to spend equal time with each parent or if not, substantial and significant time.
Until the very end of addresses the parties had agreed that the children should live together and predominantly with one parent. At the very end of addresses the mother proposed that in the alternative the children should live with the parents on a week about basis.
I am satisfied that the mother has had difficulty in coping in the past when she has had more than one or two children. I believe she will have difficulty coping if the children were to live with the parties on a week about basis. Having regard to both parties’ wish that all three children live together and attend W School, where they have attended for some years, it would create extra difficulties for the mother is she was required to get the three girls the subject of this application to W every morning.
The end result is that having regard to schooling issues and the mother’s limited capacity to cope, the arrangement whereby the mother sees the children from midday Saturday until the commencement of school on Monday morning for seven out of nine weekends during school term plus half school holidays seems to be the best available.
This routine does not fit the description of “substantial and significant time” in section 65DAA(2) but is the best that can be achieved. A change of schools for T and A, who are doing well at school, is likely to adversely affect them.
The father opposed orders 9, 11, 12 and 13 as proposed by the paternal grandmother. His opposition was based on the following:-
Proposed order 9 – He said the parties could authorise the school to notify the grandmother, however it was apparent that this may not work and the school may not accept the obligation to do so. Accordingly I propose to make order 9 in substantially the same form as suggested by the paternal grandmother.
Proposed order 11 – The father was able to enunciate no good reason why this order should not be made save only that it may be impossible. Accordingly, I propose to make a slightly altered order in the following terms: “That the parties must do all reasonable acts and things and execute all documents for the purpose of allowing the children’s names to be added to the Medicare card and Centrelink Healthcare card of the paternal grandmother”.
Proposed order 12 – The order in the form proposed by the paternal grandmother may ultimately have the effect of depriving the parents of their responsibilities and rights as parents. Ultimately the paries agreed that the order should not be made in the proposed form but that an order in the following form be made: “That the paternal grandmother is authorised to take the children to a General Practitioner for treatment if she is of the view that it is required and to administer medication to the children as prescribed.” Accordingly I propose to make such an order in view of order 12 as originally proposed.
Proposed order 13 – The father was unable to spell out any practical way in which the making of this order could affect him adversely, whereas it could make life easier for the paternal grandmother in assisting with the children. For those reasons I propose to make those orders.

The Orders

That all existing orders regarding the children T born … January 1999, A born … April 2001 and S born … August 2002 be discharged.
That each of the parents have equal shared parental responsibility for the children.
That the children live with the father except as specified below.
That the children live with the mother:-
(a)During school terms from noon Saturday until before school on Monday (extending to Tuesday on a long weekend) on the first, second, third, fifth, sixth, seventh and ninth weekends of each school term;
(b)From noon on the first Saturday until 4:00 pm on the following Friday of the first week of the term one, two and three school holidays;
(c)For the first half of the Christmas school holidays in odd numbered years and the second half of the holidays in even numbered years, provided that the parent not having the care of the children in the first half of the said holidays shall have their care between noon on Christmas Eve and 3:00 pm on Christmas day.
The children shall spend time with the paternal grandmother from after school (or from 4:00 pm on non-school days) each Friday until noon each Saturday, the only exception being where Christmas Eve or Christmas Day fall on Friday or Saturday.
The children shall be in the care of the mother from noon on Saturday of the Mother’s Day weekend, and in the care of the father from noon on Saturday of the Father’s Day weekend, regardless of the operation of the above orders.
The parent not otherwise having the care of the children on each of their birthdays shall have the care of the children from 4:00 pm until 8:00 pm on those days unless the parents otherwise agree.
All parties shall ensure the changeovers for the care of the children occur at the home of the paternal grandmother.
Each party shall notify the other of any medical appointment, prescribed medication or any emergency medical treatment involving any of the children as soon as practicable.
The father shall ensure that the mother and the paternal grandmother are notified of all school events and shall provide to them reports or progress notes involving any of the children and shall inform them of all events involving any of the children to which the parents and/or grandparents are invited.
That each party maintain address and telephone contact number notified to the others, and each party shall forthwith notify the others of any change in such notifications.
That the parties must do all reasonable acts and things and execute all documents for the purpose of assisting in the children’s names being added to the Medicare card and Centrelink Healthcare card of the paternal grandmother.
That the paternal grandmother is authorised to take the children to a General Practitioner for treatment if she is of the view that it is required and to administer medication to the children as prescribed.
That the parties must do all acts and things and execute all documents to allow the paternal grandmother to contact or attend any school or preschool that the children may attend from time to time.
The parties must do all acts and things and execute all documents to allow the paternal grandmother’s phone number to be recorded as an emergency contact number for any school, preschool or any place or activity that the children may attend from time to time.
That within 21 days of the date of these orders the parents each make contact with the Director, F Service, N with a view to engaging themselves and their child, A born … April 2001 in therapeutic counselling within the “keeping contact program” as conducted by the said service and thereafter each parent do all acts and execute all documents reasonably directed by the Director to ensure their participation and the participation of A in the said program.
That the Independent Children’s Lawyer’s application for costs is dismissed.
Liberty to apply.
Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-
(a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-
(i)an obligation to do all reasonable things to give effect to the orders; and
(ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.
(b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties. This sets out:-
(i)the penalties which may apply, or other things which may occur, if you breach the orders made; and
(ii)details of who can assist parties to adjust to and comply with the orders made.

I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele

Associate:

Date: 3 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BLOUNT & SPEARS AND ANOR

[2007] FamCA 644

3 July 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Costs

Jurisdiction