Chess and Cope

[2007] FamCA 1223

FAMILY COURT OF AUSTRALIA

CHESS & COPE [2007] FamCA 1223

FAMILY LAW – CHILDREN – Living with – spending time with – children living with maternal great-grandmother

APPLICANT: MRS CHESS

RESPONDENT PARENTS:

MR COPE and

MRS COPE

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 1185 of 2004

DATE DELIVERED: 5 October 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Bell J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Childs

SOLICITOR FOR THE APPLICANT: Nicholas Gervasi

COUNSEL FOR THE RESPONDENTS: Mr G.R. Noble

SOLICITOR FOR THE RESPONDENTS: Womersley & Co

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr K. Tredrea

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Services Commission South Australia

Orders

Re T born … April 2005.

1. That the applicant maternal great-grandmother and the father (hereinafter referred to as “the parties”) shall have equal shared parental responsibility with respect to major long term issues in relation to the care, welfare and development of the child T born … April 2005.

2. That in all other respects the applicant maternal great-grandmother shall have sole  parental responsibility as to issues affecting the day to day care, welfare and development of the child.

3. The child shall live with the applicant maternal great-grandmother.

4. The child shall spend time with the father as follows:

   a.    Each alternate weekend from 12.00 noon on Friday until 12.00 noon on Monday (commencing on Friday 19^th  October 2007) unless otherwise agreed between the parties.

   b.   From 12.00 noon on Wednesday until 12.00 noon on Thursday (commencing Wednesday 17^th  October 2007) and for the same period during each alternate week – unless otherwise agreed between the parties.

   c.   For one half of each short school holiday period – commencement to coincide with the time that the father spends with the child pursuant to subparagraph 4 (a) herein – or at such other times as may be agreed between the parties.

   d.   Subparagraphs 4 (a) and (b)  shall be suspended during each Christmas school holiday period such that the child will be in the father’s care:

   i.From 3.00pm on 25^th December to 5.00pm on 26^th December in each year (SUBJECT TO  the child being in the maternal great-grandmother’s care from 5.00pm on 24^th December to 3.00pm on 25^th December in each year), and:

   ii.For half of the Christmas school holidays at times agreed between the parties (whether such time be taken in a block or otherwise).

   e.   The periods of time referred to in subparagraphs 4 (a), (b) and (c) shall resume on the first weekend following the resumption of term 1 each year.

   f.   At such other times, and on such other special occasions as may be agreed between the parties – including but not limited to the child’s birthday, the father’s birthday, Father’s Day, and Easter.

5. That the order for the appointment of the Independent Children's Lawyer is discharged.

6. That all outstanding applications do otherwise stand dismissed.

Re M born … July 2004
AND UPON NOTING that when the respondent mother did attend on 3^rd October 2007 and was asked for her attitude to the child M living with the applicant maternal great-grandmother the mother stated that she had no objection thereto:

IT IS ORDERED:-

1. That the applicant maternal great-grandmother shall have sole parental responsibility with respect to major long term issues and the day to day care, welfare and development of the child M born 2^nd July 2004.

2. That the said child shall live with the applicant maternal great-grandmother.

3. That the order for the appointment of the Independent Children's Lawyer is discharged.

4. That all outstanding applications do otherwise stand dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bell delivered this day will for all publication and reporting purposes be referred to as Chess and Cope

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1185  of 2004

Mrs Chess

Applicant

And

Mr and Mrs Cope

Respondent Parents

REASONS FOR JUDGMENT

1. This is an application on the part of the maternal great-grandmother for certain orders in relation to a child; namely, T, who was born in April 2005.

2. In one way, it is a very simple case.  In another way, it is extremely difficult.  I say the simplicity arises from the fact that T has a very lucky life ahead of him.  He has his parent, who I will set out at a later stage, who is going to do the very best he can for T’s future and, as well, we have the maternal great‑grandmother, who is going to do the best she can for T in the future.  He is a fortunate boy, but the circumstances of this case make it very difficult for me to determine with whom the child should live and I have to set out what could be somewhat confusing facts in relation to this matter.

3. The maternal great-grandmother had three children, at least, one of whom was R.  R was born as a result of a pregnancy brought about as a rape perpetrated upon the applicant, the maternal great‑grandmother, who was born in August 1950.  The perpetrator of this cowardly act upon her was an Aboriginal and, as a result thereof, R is of Aboriginal extraction.

4. R gave birth to two children, one in particular, the respondent mother (the mother).  The mother is the mother of T.  The mother is also the mother of M, who is older and was born in July 2004, the father of whom is unknown.  She is also the mother of S, who was born earlier this year - in January - and his father is unknown.

5. The mother, unfortunately, has a great deal of difficulty, it appears, with drugs.  Whilst I do not take as evidence her appearance here in court on Wednesday, I must say, observing her, she gave me the impression that she was not well.  She exhibited signs of restlessness, self‑scratching and perhaps some people would go as far as saying self‑mutilation.  There is evidence before me that she is a drug addict, and regrettably her morals do not seem to be of any high standard at all, she herself not knowing the fathers of M and of S.

6. The respondent father formed a relationship with the mother at a time when she was heavily pregnant with M in early 2004.  M was born.  He subsequently intermarried with the mother and the marriage did not last very long at all.  T was born.  Shortly after his birth the mother and the father separated - and this is confusing - the mother taking the child either to the maternal grandparents or to a house which was by no means a house which could be said to be in the best interests of T.

7. The father, shortly after separation, instituted proceedings in the Federal Magistrates Court for the child to live with him, and various orders have been made before the matter was transferred to this court.

8. The maternal great‑grandmother was given possession of M by the mother.  Dr P, a paediatrician, gave evidence that, when he first came in contact with M, M was grossly overweight and she suffered from fructose, lactose and sucrose intolerance.  It was absolutely essential that she be put upon a very strict diet, not only to control those intolerances but also her weight.  I say in passing now that Dr P was particularly impressed with the care which was offered by the maternal great‑grandmother to M, and M is very well, and he no longer thinks it is necessary for him in his speciality to see M.  Her weight has been controlled and generally, he used the words "she is well".

9. T came into the possession of the maternal great‑grandmother.  I am not quite sure how he did.  It is either by an order of the court or someone suggested it was by Families SA, and I think someone else suggested that in fact the mother took the child to the maternal great‑grandmother - I will refer to her as the applicant - and left the child with her.  Nevertheless, whatever manner the child came into her possession, the child came into her possession and has been in her possession ever since.  He has some health problems in that I understand he is intolerant to lactose and fructose but not sucrose.  Consequently, a diet is required for him as well.

10. S came into the possession of the maternal great‑grandmother very shortly after birth and has remained in the maternal great‑grandmother's residence since then.  She then has in her house not only these three but two grandchildren, boys of about 14 and 16.  Nothing has been suggested in relation to those children.  They are teenagers.  There is no suggestion by any of the parties that the applicant has done other than a remarkable job in relation to the five children which she has accepted as being her responsibility and looking after them.

11. I will be referring to Ms L at a later stage.  Ms L indicates that she had no concerns about the applicant looking after her bailiwick, which we have heard, was M and, in particular, T, and no‑one else seems to have made any complaints about her.

12. T has thrived.  He has met all his milestones and, according to Dr P, is well.  We did not hear very much about S.  S is very young.  The mother has, as far as I am concerned - and I am quite happy to find - abandoned these children.  She has abandoned them, fortunately, to a person of the standard of the applicant.  These children are thriving in her care, and it is not suggested to the contrary by anybody.

13. The father is a fine, decent type of man.  He is at present employed by the a Bank.  He has had a pilot's licence.  He has been able to look after himself for a period when he was in Victoria.  There is nothing that anybody could suggest that he would be other than a good custodian, if I may use the old word, of T.

14. He receives great support from Ms L, a specialist psychologist in this field, who has given three reports but, in particular, two that I am concerned about.  The first report, if my memory serves me correctly, dealt with M.

15. I must say in passing that the mother was in court.  I asked her what her attitude was to the applicant's application for M to live with her and she said she has been trying to do that for the last three years.  Consequently, as I have indicated to counsel in this matter, none of whom opposed any order being made that M live with the applicant maternal great‑grandmother, I will be making that order.

16. As I indicated in argument, I feel loath to make any order in relation to the child spending time with the mother, for obvious reasons to which I have already referred.  I am mindful, of course, of the requirements of the act whereby there is a presumption for joint parenting, which of course is superseded by the best interests of the child, and M deserves the right to be raised by a person who is at least, shall we say, comparatively normal.

17. T has been observed by Ms L - and I refer to her two reports, one in 2006 and one in 2007 - with the applicant, with the father and with the paternal grandparents, Mr and Mrs Cope senior, more of whom anon.  She was of the opinion that, insofar as the first report was concerned, the boy was obviously well adjusted, had a very close, warm and loving relationship with his father, and in particular she referred to the fact that there was a warmth in their relationship with each other when she observed them playing together, particularly on a home visit.  She did not deem it necessary to see the applicant's home as she believed there was nothing wrong with her and consequently it was unnecessary.  She also observed that there was a very warm, loving and caring relationship between T and the applicant.

18. So far we are level pegging.  Ms L says that, in her opinion, the best that a child could look for is two parents to support the child and do all those things, the duties of parents.  If there is only one available, and I am quite happy to find that there is only one available – the mother is at this stage gone; the mother has abandoned T; she has not seen T or the other two children since June of this year, notwithstanding that there were orders for her to spend time with M and with T.  There are none in relation to S.  She is of the opinion - and I emphasise this - that if there is nothing wrong with the father, if the father, on the evidence before her and on her view of the father, is able to adequately and properly nurture, care for and encourage the child, the best thing for the child is for him to be with his father.

19. She concedes that the applicant has done everything she possibly could.  As Dr P said, the applicant has acted brilliantly in the care of these children, and in particular M and, as well, T.  I put it to her, all things being equal, she would prefer the child to be brought up by the father, to which she readily agreed.  I have had the opportunity - and I compliment Auscript [sic] for getting this done speedily, as they have - of having a transcript recently put before me and I have endeavoured to read it thoroughly.  In particular, I refer to page 7, line 24, wherein Mr Tredrea was investigating the separation of T from his siblings, and he put this question to her:

    What weight do you place on that factor (sibling separation) in [T’s] life?

    She says:

    Well, it's important obviously that he keeps links with his brother and sister.  If we are asking the question, "Which should be more important:  a link between a sibling or a link between a parent?" and that's the dilemma that's being faced, I think, in this matter as one of the issues, I'd put my money with [T] having a primary relationship with his father, for the reason I outlined a moment ago, which is that when he grows up and is old enough to consider this issue properly and he is not with his father when his father has been perfectly capable of raising him, he will ask the question, "Why did I not grow up with my father?  I've lost my mother," and in a sense it would be a loss of another parent as well.

20. This, to me, seems very strange.  It is quite clear that the father has not abandoned T.  If anything, as soon as T’s wellbeing was at risk, he instituted proceedings for the recovery of T.  He is to be complimented for that.  He is not one of these persons who disappears for six months, comes back after that time and says, "I'm all settled down now, I'll have the child."  He was in there fighting right from the beginning, and it could not at any time be suggested that in fact he had abandoned the child.  He was having contact with the child every weekend in accordance with the orders of this court, and I cannot for the life of me understand how Ms L could suggest that the child would say, "Why did I not grow up with my father?"

21. There is another one, wherein she suggests that, all things being equal, the child should go to the father.  In this case, I refer to page 6 of the transcript, at line 14.  I do apologise, but I have had little time to develop this judgment.  She has touched upon one thing; the separation of the siblings, and she goes on to say - and this is in the transcript, which once again surprised me - that, as far as she is concerned, she considers that one night per week would be adequate for T to maintain his relationship with his elder half‑sister and younger half‑brother.  I believe, as I put to her, that if that is the case it would be more than adequate time for him to maintain his relationship with his father for an equal period.  She did not agree with that, and I acknowledge that she is entitled so to do.

22. She has put little, in my opinion, weight upon the relationship of the child with his siblings.  She has put virtually no weight upon it at all, in my opinion.  She says that it is adequate for one night or one day a week for them to maintain a relationship.  If the child goes to the father, the child will be at least 40 minutes away from his siblings.  They would not attend the same schools when it comes about.  Admittedly, all are very young, but schooling is approaching.  They would live separate and apart, save for a period of one night and one day per week, although, as she says, at school time she recommends every alternate weekend.

23. The next question which I am particularly concerned about with Ms L’s evidence is that she is recommending in the first report a transition period over a considerable time when the child would be introduced to his father.  He would be introduced to his father over this period of time, as I understand her evidence, so the child would not become distressed or suffer too much distress about being removed from his carer with whom he had been for about a year in 2006, but it has been over two years in 2007.  She does not mention that in her second report, but in cross‑examination she concedes that it should be in there and that she believes that there should be a transition period of some months wherein the boy is gradually introduced to the father.  If the boy has such a good and close and warm and loving relationship with the father, why should there be a transition period?

24. Ms L emphasises the relationship between the father and the boy, in that she saw - and I think I have touched upon this already - last year how close and warm and loving it was, he crawling all over the father and having a good time.  This year the child showed signs of distress, and the only occasion that Ms L saw the child with the father the child was distressed.  He could not be settled by the father and had to be removed from the interview room in which Ms L was conducting the interview.  She dismissed the child's distress, until such time as I put it to her: could he be anxious about being removed from the applicant, to which she said, "That might have been the case, sure."

25. She did not investigate this.  She did not take the matter any further, as to whether in fact the separation from what could be classed - and I use the word advisedly - the mother of T would in any way affect him.  It will affect him, on that evidence.  She dismissed that.  She said there was a close, warm and loving relationship last year but this year the child was fractious, and she did not take any notice of it.

26. Another thing that she did not investigate to any great extent, which I touched on with Mr Tredrea, is the question of the diet of the child.  There is evidence in her report about that and, when asked how she thought the father was handling the child, she said, yes, but she is a bit concerned that he comes back with diarrhoea on occasion and that she is afeard that his diet may not be properly followed.

27. That was a complaint that was made about what, in my opinion, is a very important part of this boy's health, and that is his diet.  He is intolerant.  She did not even consider that.  She put it in her report and went off on something else.  She did not, in my opinion, take into consideration that this was a matter that should have been investigated.  One would have thought it would have been investigated thoroughly on the trial, but it was not.  It is not for me to make the running for any of the parties.  In fact, people would be very upset if I did so.  Insofar as the anxious factors are concerned, I refer to page 15 of the transcript that I have.

28. What do we have there?  We have a statement from Ms L that, in her professional opinion she considers that, all things being equal, the boy should be with the father.  Are they equal?  No, they are not.  They are not equal.  The boy is showing signs of being upset, for whatever reason it may be.  It was not investigated, but when I put it to her that it could be separation from the applicant, she said, yes, it might be.  "It might be" were her words.  She did not investigate a complaint, and I think a justified complaint, on the part of the mother [sic] that there may be - it is not that I am finding that there was - some concern about his diet being properly followed.  The father was asked that by Ms L and he said that he did give certain things to him.  Once again, I was not assisted by evidence from Dr P as to whether or not this was the correct diet for the child.

1. The transition:  if in fact the child is so comfortable with the father and will be comfortable in future, why a transition?  The separation of the siblings:  Mrs Cope senior, who gave evidence – the paternal grandmother - said, and I use her words, "I couldn't think of anything worse than to have a child separated from his siblings."  Ms L thinks that could be covered by one day per week and, when they got to school, each alternate weekend.  I do not believe that that is the case.

2. I am mindful, of course, that there is the so‑called presumption, and I do not believe that I am in any way bound by it since I consider the best interests of the child are more important than any presumption which has been put into an act by politicians.  I have to, of course, consider those matters to which Mr Noble quite properly referred me in section 65 and also, as Mr Tredrea and Mr Noble referred me, in section 60CC.  I do not have to go through them seriatim, although there are various matters which have been brought to my attention in particular by Mr Tredrea, being (f) and (i), if my memory serves me correctly.

3. Before we get onto that, I make it quite clear that, in my opinion, there is no preferred role of a parent to have a child live with him, notwithstanding, in this case in particular, the father is a very good father.  The applicant is a very good maternal great‑grandmother.  T’s welfare would be, as I have said, adequately looked after by each if in either of the households but, as I have said before - and I emphasise this again - all things are not equal, notwithstanding what Ms L says, and I have to look at these matters for T’s sake.

4. Insofar as section 60CC(2), it is necessary for me to consider a meaningful relationship with both of the child's parents.  As I have already found, the mother would not have a meaningful relationship with this child notwithstanding the fact that the child deserves it and it would be his right to seek it, but he is to have a meaningful relationship with his father and will continue to do so because of the orders that I will make in relation to spending time with him.

5. I must say in passing - a matter which I had overlooked - that the applicant has indicated that as T gets older she would consider increasing any order for spending time with that I may make.  I think that is most important.  T must not lose the fact that he has a father.  It is difficult enough in this day for children to grow up.  He has a father who loves him dearly and such contact, as I use the old word, must be increased as he gets older, and I am sure the applicant will take that into account.

6. The relationship of the child, as I have touched upon, with each of the protagonists, if I may use that word - the maternal great‑grandmother and the father - is good.  It is not perhaps quite as good, as Ms L said, because of the unfortunate fact that this matter did not get on early enough, and it is not for me to be blamed for that, nor for the court.  Perhaps the parties could look at political pressure to ensure there are more judges available to hear matters of this importance.

7. I have touched upon the likely effect of the changes in the child's circumstances.  I consider that there is evidence before me which should have been looked at further to show that there would be some effect on the child of the separation from the applicant and also I do not believe that there has been enough emphasis in the specialist's evidence upon the separation of T from his half‑siblings.

8. I believe that in each of the cases their capacity is not in any way diminished for their being able to provide for the needs of the child, including emotional and intellectual needs.  There was some suggestion that the applicant came from a lower socio-economic group.  I have no evidence to support that.  I note that the two grandchildren who are residing with her - the boys - are attending a private school.  It is a Christian college, and I would have thought that their education needs are being adequately looked after in a Christian education.

9. Mr Tredrea asked me to consider (i) insofar as, "The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents."  The mother has shown none at all.  The father has shown a lot.  I see that he is distressed, and I expect that that will be the case.  I thought he was distressed, but he has come back.

10. There was one matter which was touched upon.  I do not believe that this is of great importance but it is of importance, as I am directed to consider it, and that is the Aboriginality of the child.  T, according to the evidence of Ms K, is an Aboriginal.  He is of an Aboriginal extraction mother, through no fault of the applicant, and Ms K, who gave evidence, obviously has suffered from a stroke, which is somewhat debilitating, but I was particularly interested in her affidavit, which is one of the very few affidavits which has been put before me insofar as Aboriginal matters are concerned which have touched upon what I consider to be most important matters in relation to the culture of the indigenes of Australia.

11. She gave evidence that T, because of the acceptance of Aboriginality by, in particular, the applicant great‑grandmother, is an Aboriginal.  He is also an Aboriginal, as far as I am concerned, because of the connection of R with her father, unnamed as he is.  I think that that is something which should be encouraged.  The grandchildren - the boys to which I have referred - have already partaken in Aboriginal culture, and I would think that that should be encouraged, and there is not much evidence before me to suggest that the father would not do that, although it may be more difficult for him to do it than the applicant, who does have, I think, one day a week dealing with indigenous organisations.  Ms K is a good friend of hers.  She impressed me,  Ms K.  It is unfortunate that the stroke has slowed her down, if I can put it that way, and she has had to move away from being close to the applicant.

12. As I have said, it is a particularly simple case, in a way, because of the love that is shown by both the participants in this action, but the difficult job I have is to decide with whom the child should in the future live, and I regret that I have - and I am sure the father has listened closely - decided that T should remain in the place in which he has been for some two and a half years.

13. I order that the child reside with the applicant and that she have the long‑term care and control of the child.  I think that otherwise the responsibilities of parenting should be shared.  This is a question which has worried me intensely.  It is the question of the father spending time with the child.  I think it should be maximised - I have said that before - but I do not believe that I could go anywhere near the shared parental presumption which is set out in the Act.  Philosophically, I am against it.

14. I believe that shared parenting works particularly well.  It works exceptionally well, but we rarely see it in court because the parties agree that that is the best for the child.  If you come to court and cannot agree on shared parenting, how could you possibly agree?  That is one thing that I am very worried about.  In this case I think the parties are able to agree generally, but it has not been propounded by the independent children’s lawyer that there should be this so‑called seven‑day event, and I do not think it is in the best interests of a child of his age that he should be separated at this stage from what is, in effect - and I use the word advisedly - his mother for any lengthy period, but he must be encouraged to know his father because, in the fullness of time, he is going to go and live with his father.  There is no worry about that.

15. As a result thereof, I will be calling upon Mr Tredrea, the independent children's lawyer, to put before me a draft order which could be initialled by the other gentlemen to the effect that, whilst I think each alternate weekend is too little, I think that every weekend is too much, because I believe that the boy is entitled to spend time not with the applicant but with his siblings in an uninterrupted period.  There is also evidence from the applicant that he has been invited to parties and has not been able to go on weekends, and as the time comes on there will be sleep‑overs and things of that nature.  I think it should be every alternate weekend from midday on Friday until midday on Monday.  I think also there should be an overnight period on the so‑called off weekend, and that will be from midday on the Wednesday until midday on the Thursday.  I do not believe that the applicant's job, which he carries out mainly at night, would interfere with such periods.

16. Insofar as the special days are concerned, I would think that Mr Tredrea can in the draft order put before me those matters.  There must be, of course, spending time with the father on the father's birthday and on Father's Day.  Insofar as Christmas is concerned, because of the siblings I think it is essential that Christmas morning be with the applicant because of that, but I think that the father should be entitled at this stage to have T for his Christmas Day from 3 o'clock on Christmas Day until the expiration of Boxing Day at 5 pm, if in fact such days do not come within one‑half of the school holidays that he will be entitled to, notwithstanding the child is not attending school.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  15 October 2007