Church & Overton & Anor
[2008] FamCA 953
•12 November 2008
FAMILY COURT OF AUSTRALIA
| CHURCH & M OVERTON AND ANOR | [2008] FamCA 953 |
| FAMILY LAW – CHILDREN – the position of grandparents under the Family Law Act 1975 (Cth) - people significant to child’s care, welfare and development FAMILY LAW – CHILDREN – application by grandfather to spend time with and communicate with grandchildren – two further concurrent similar applications regarding other grandchildren – children have no relationship with their grandfather – parents strongly opposed to any time or any effective communication – when court should interfere in exercise of parental responsibilities – the rights of parents to determine with whom their children relate - whether in best interests of the children in the circumstances to spend time with and communicate with grandfather. FAMILY LAW – CHILDREN – orders – order by consent that grandfather may send correspondence which will be kept by the parents until the children make enquiries about the grandfather and then will be provided to them – application otherwise dismissed. |
| Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) International Covenant on Civil and Political Rights |
| Souter & Meagher & Anor [2007] FamCA 18 Sedgley and Sedgley (1995) FLC 92-623 Irvine & Irvine (1995) FLC 92-624 Grant & Grant (1994) FLC 92-506 C & B [2007] FMCAfam 539 Troxel v Granville 530 U.S. 57 (2000) Re C: (Contact: Grandfather) [2004] NIFam 5 |
| APPLICANT: | Mr Church |
| FIRST RESPONDENT: | Ms M Overton |
| SECOND RESPONDENT: | Mr O’Brien |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Theobald |
| FILE NUMBER: | HBF | 1099 | of | 2007 |
| DATE DELIVERED: | 12 November 2008 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 3 October 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Munro |
| SOLICITOR FOR THE APPLICANT: | John Munro Barrister & Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Lee |
| SOLICITOR FOR THE RESPONDENT: | Ogilvie Jennings |
| INDEPENDENT CHILDRENS LAWYER | Mr Theobald |
Orders
All existing parenting orders regarding John (born … January 1997) spending time or communicating with the grandfather are discharged.
The grandfather be permitted to forward separate letters and cards to each of his grandchildren John, Bronwyn, (born … March 2000), Karen (born … June 2003) and Laurie (born … April 2008) subject to the following:-
(a)A limit of three letters or cards for each child in each calendar year (except 2008 when there is a limit of two letters or cards for that year);
(b)M Overton (“the mother”) and/or Mr O’Brien (“the father”) are not required to give or show those letters or cards to the children unless enquiries are made by a child, after the child attains the age of thirteen years;
(c)If after attaining the age of 13 John, Bronwyn, Karen or Laurie ask for information about the grandfather then the parents (or either of them) shall give to that child the letters and cards forwarded by the grandfather to that child pursuant to these orders.
(d)The grandfather shall pay for the provision and maintenance of a post office box address at a post office reasonably nominated by and in the names of his three daughters, M, T and S Overton, for the purpose of forwarding any such letters and/or cards.
The mother and/or the father shall safely retain any letters and/or cards sent to each of the children by the grandfather pursuant to these orders.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The application of the grandfather is otherwise dismissed.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgement under the pseudonym Church & M Overton and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBF 1099 of 2007
| MR CHURCH |
Applicant
And
| MS M OVERTON |
First Respondent
And
| MR O’BRIEN |
Second Respondent
REASONS FOR JUDGMENT
Mr Church (“the grandfather”) wants to be permitted to send letters, cards and presents to his grandchildren, John aged 11 years, Bronwyn aged 8 years, Karen aged 5 years and Laurie aged 7 months. In addition he wants to phone each of them once a month, and spend time with them for two hours four times per year. He wants know where they live and would like some photographs of them. Ms M Overton (“the mother”) and Mr O’Brien (“the father”) are the children’s parents and they oppose all such contact and communication, except for the sending of letters and cards on a very limited basis.
This is a particularly sad dispute. The grandfather has three adult daughters, T, M and S Overton. Together with the fathers of their respective children, these adult daughters are the respondents to three separate applications by the grandfather to spend time and communicate with his grandchildren.
These adult daughters oppose all but the most limited communication between their children and the grandfather. The daughters claim that the grandfather is a spiteful person who is using these proceedings to hurt them through their children, and that his contact with the children would be personally distressing to them, and their family. In addition, that as the parents of their children, each of them should decide with whom their children have a relationship. The daughters submit that it would not be in the grandchildren’s best interests to see or to hear from the grandfather.
The Church family have been involved in family litigation in one form or another for more than a decade.
The grandfather says it is in his grandchildren’s best interests to see and know him. Further, he says that under the Family Law Act a grandparent has a ‘special place’ which entitles him/her to spend time and communicate with the grandchildren. His daughters and partners (except S Overton’s former partner) claim that it is their role to determine with whom their children have a relationship.
Underlying these arguments of legal principle is the question, in each of the three individual proceedings, as to whether the orders sought by the grandfather (or some variation of those orders) are in the best interest of the children in the context of their particular family.
Ms T Overton is aged 29. She and her partner Mr Cooper have two children, Cole aged 9 and Kirsten aged 3. T and Mr Cooper are expecting the birth of a third child in the near future. T, Mr Cooper and their children live in South Australia.
Ms M Overton, the mother in the present application, is aged 27. She and her partner Mr O’Brien, the father, have four children, John aged 11, Bronwyn aged 8, Karen aged 5 and Laurie aged 6 months.
Ms S Overton is aged 24. She has two children, Adam aged 6 and Tom aged 3. Their father is Mr Shell. S and Mr Shell are separated. Mr Shell does not presently spend time or communicate with either Adam or Tom.
The grandfather was married to his daughters’ mother, J. That relationship ended in about 1999 and the grandfather and J have since divorced. There was litigation and conflict between the grandfather and J following their relationship breakdown.
The grandfather is now married to L. She has 2 daughters and a number of grandchildren with whom the grandfather and L have an ongoing and apparently loving relationship.
There are three separate proceedings which are before me. They were heard simultaneously and all the evidence from each proceeding is expressly available in each of the other proceedings. As such the factual platform for each of the proceedings and the principles of law needed to be applied are identical. However, the consideration of law and fact, the evaluation of the evidence in each family dynamic and the determination as to what is in the best interests of each child in each family is and must be separate.
An independent children’s lawyer was appointed to represent the interests of all of the grandchildren.
It was agreed between the parties and the independent children’s lawyer that the grandfather should be given permission to send letters and cards to each of his grandchildren care of their mothers. Such letters and cards would be retained by each child’s mother given to a grandchild if she or he asked about the grandfather. I will make that order by consent.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context in which the statement is made.
The law
In exercising its jurisdiction in relation to children the court is bound by the provisions of the Family Law Act 1975 (Cth). The objects of the provisions of the Act relating to children are to ensure that the best interests of the children are met by[1]:-
(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.
[1] s 60B(1) Family Law Act 1975.
The principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:
(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).
[2] s 60B(2) Family Law Act 1975.
Each of the parents of a child has complete but several parental responsibility for such child[3]. Section 61DA of the Act provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child.
[3] s61C Family Law Act 1975.
I raised with counsel for the parties and the independent children’s lawyer the question of the presumption.
With regard to Adam and Tom, their parents (S and Mr Shell) had been involved in parenting proceedings. In December 2007 I had made an order that these parents have equal shared parental responsibility for Adam and Tom and as such there is no need to reconsider the question of parental responsibility. The grandfather does not seek orders for parental responsibility and does not seek to disturb my 2007 parental responsibility order.
With regard to the children of M and T, the relationships of their respective parents subsist. T and Mr Cooper jointly parent their children in an intact relationship. M and Mr O’Brien, the mother and the father in this case, do likewise. These parents cooperatively made decisions about their children and there was no utility in disturbing that status quo. The grandfather seeks no orders as to parental responsibility.
Counsel for M, T and their partners, counsel for the grandfather and counsel for the children submitted that I should leave in place the present parental responsibility regime, that is several responsibility as set out in s 61C of the Act. I accept that joint approach and having regard to the particular facts in each of the proceeding I determine that it is not in the best interests of the mother’s children and S’s children for there to be an order for equal shared parental responsibility.
In determining what orders it should make the court must regard the best interests of the child as the paramount consideration. The factors that the court takes into account in determining what is in the best interests of a child are set out in s60CC of the Act.
Do grandparents have special entitlements to see or communicate with grandchildren?
The Family Law Act places parents in a special position in respect of their children. The objects and principles (s 60B supra) clearly set out their importance. The primary considerations (s 60CC(2) of the Act) weight the importance of a meaningful relationship between child and parent against the need to protect a child from harm.
The Family Law Amendment (Shared Parental Responsibility) Act 2006 amended various sections of the Family Law Act in relation to parenting orders and made explicit reference to grandparents.
On face value the amended Act does not invest grandparents with a special category of rights or position over and above other people who might be significant to a child’s care, welfare and development. The only people in such a special category are parents. The principles which support the objects of Part VII of the Act – the part dealing with children - refer to grandparents. Section 60B(2)(b) says:
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).
Grandparents are included with “other relatives” as an example of the class of people who may be able to establish that they are significant to a child’s care, welfare and development, and if that is the case and it is in the best interest of the child then the child has a right to see that grandparent.
The Explanatory Memorandum accompanying the 2006 amendments explained as to s 60B(2):
39. Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child's life. It implements recommendation 43 of the LACA Report[4] and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children.
[4] The Committee recommended that the proposed subparagraph 60B(2)(a)(ii) be amended to include specific reference to grandparents and other relatives.
The legislation specifically empowers a grandparent to apply for a parenting order. Section 65C of the Act states (emphasis added):
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Parenting orders can be made in favour of grandparents, who are given a specific inclusion in section 64B of the Act. This is not surprising as sometimes grandparents are the sole stable feature in the lives of some children.
Grandparents are also referred to section 65G of the Act, in which the legislature imposes some conditions upon a court if a residence order is to be made otherwise than in favour of a ‘parent, grandparent or other relative of the child.’ This gives grandparents some special significance in terms of parenting.
Of the 2006 amendments the Explanatory Memorandum said in respect of s60CC(3)(d) and 60CC(3)(f):
60. Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification. Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to grandparents or other relatives. The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child's circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship. New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives. This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents.
62. Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification. Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents or other relatives. This provision provides that in determining the best interests of the child, the court should consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs. The amended paragraph 60CC(3)(f) recognises the importance of the relationships that the child has with wider family, in particular grandparents.
In his second reading speech to the Bill in the House of Representatives on 8 December 2005 the Honourable Phillip Ruddock said:
“The bill contains changes to better recognise the interests of children in spending time with grandparents and other relatives, who also play an important role in the raising of children.”
On the literal reading of s 60B if the particular grandparent is not significant to the child’s care, welfare and development it seems the child has no statutorily enshrined right to spend time with them on a regular basis. Given the paramountcy of the child’s best interests, however, regular time might be ordered. Reading the totality of the amendments in the context of the explanatory memorandum it is clear that the legislature was endeavouring to acknowledge the importance of grandparents and other relatives in the lives of children.
Counsel for the grandfather submitted that the community is increasingly aware of the role and importance of grandparents in children’s lives and that this is reflected by the 2006 amendments. He further submitted that whilst it would be unusual for a stranger who has had no relationship with a child to apply for a “time” order, it would not be unusual for a biological relative such as a grandfather to seek a parenting order for a child they had never seen, saying:
They have a relationship with that child by virtue of their biological/genetic connection. That connection is the cultural, family and genetic heritage of the child and the court should not lightly disregard the importance to the child of “knowing” their family background especially where that parent or grandparent has the capacity and is willing and able to provide that connection and care.
The independent children’s lawyer said in his closing submissions:
There has been recognition of the role of grandparents for some time in the Family Law Act. It’s an implicit recognition of their role because they have been specified as people who can make applications but at no stage has the legislation given them any rights over and above any other person to make an application for contact, or indeed, for a parenting order. They are there as an example and no doubt the legislation had in mind bringing the particular position of grandparents as significant persons to the attention of the court, but the important words are “people significant to their care, welfare and development…
It is clear that the Act has been specifically amended to refer to grandparents at various points. The legislative intent is that interested grandparents should be specifically considered and recognised when determining which orders to make in the best interests of a child.
In Sampson & Jacks [2008] FamCA 176, O’Ryan J said;
32. In my opinion, the importance of children having a relationship with extended family including grandparents was recognised even prior to the amendments made by the Family Law Amendment (Shared Parental Responsibility) Act. A number of cases dealt with issues regarding applications by persons who were not biologically related to a child but were people significant to the care, welfare and development of a child.
The Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interests. However, any determination of the best interests of a child or children should be informed by the family dynamics between the children’s parent/s and grandparent/s. In that regard, the views of the parents are significant but not necessarily determinative.
The right of parents to make decisions about their children
The Act set out principles that parents [emphasis added] are expected to share duties and responsibilities for the care welfare and development of their children (s 60B(2)(c)). The Act provides that parents should agree about the future parenting of their children (s 60B(2)(d)).
The Act makes parents endeavour to resolve parenting issues themselves. To do this they must generally undertake some alternative form of dispute resolution before commencing court proceedings. When parenting orders are made, parents can usually make changes to those orders by agreement.
The presumption of shared parental responsibility only applies to parents. In Souter & Meagher & Anor [2007] FamCA 18, Cronin J said (emphasis added):
132. Whether it was a legislative oversight or not, it is curious that the provision is limited to parents. This is particularly so in a case where a child such as R has been effectively parented by his great grandparents for the major portion of his life. It is quite clear in the additional considerations in s 60CC(3)(b), (d) and (f) that persons other than parents and in particular grandparents are treated as significant participants. However, the presumption in relation to the question of sharing parental responsibility is limited to the parents. That does not mean that a court cannot make an order for a relative to have parental responsibility (See s 64B(2)(c)). Counsel for the independent children’s lawyer pointed to the fact that the principle objects of Part VII refer to parents and that it was the intention of the legislature to place the onus on parents to undertake those responsibilities primarily. I agree with that proposition.
Where parents jointly (or if a sole parent, solely) have a strong view in relation to the parenting of their children, courts should be cautious about interfering with that exercise of parental responsibility. In general, parents best know their own children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of children. This does not mean that courts take over the role of parents.
There are limits on the ability of parents to make decisions regarding their children. The most obvious example is their ability to consent to certain medical procedures (most notably, sterilisation) in the absence of a court order made by this Court.[5]But the defining tenor of the Family Law Act is to empower parents to take responsibility for making decisions regarding their children free from arbitrary or unwarranted interference.
[5] Department of Health & Community Services v JWB & SMB ("Marion 's Case") [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992)
Australia ratified the International Covenant on Civil and Political Rights on 13 August 1980. Article 18.4 of that Covenant states:
4. The States parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Article 15 of that Convention states:
17.1 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Article 23 of that Convention states:
23.1 The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
There has been some implementation of these rights in Australia. Section 43 of the Family Law Act provides that the Court shall, when exercising its jurisdiction under the Act, have regard to:
43
(a)…
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c) the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure safety from family violence; and
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
The majority judgment of the Supreme Court of the USA in Troxel v Granville 530 U.S. 57 (2000)[6], discussed the role of parents and is of some assistance, although turning on domestic constitutional issue of law. In delivering judgment for the majority, Justice O’Connor found that §26.10.160(3) [the domestic State law] unconstitutionally interfered with the fundamental right of parents to rear their children. Her Honour said:
The liberty interest at issue in this case–the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” …….
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); …
Santosky v. Kramer, 455 U.S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”).
[6] For a review of the case law dealing with grandparent applications subsequent to the decision of Troxel v Granville 530 U.S. 57 (2000) see J D Gregory, The Detritus of Troxel Family Law Quarterly volume 40 number 1 (Spring 2006)
This reasoning is to be seen in the context of the constitutional rights as they exist in the USA. However, in many ways those rights are like the principles set out in the Family Law Act which recognise the underlying right and obligation of parents to determine how their children ought to be raised.
In C & B [2007] FMCAfam 539, Altobelli FM dealt with an application by the mother seeking orders restraining each parent from involving the child in their respective faiths unless the other parent first consents in writing. His Honour said at paragraph 113:
This is a difficult issue. I do not have enough evidence to make a decision. I would in any event be reluctant to make an order in terms of that sought by the mother. I doubt it can be enforced. Even if it were contravened it would be almost impossible to fashion an appropriate sanction. There are some matters of parental responsibility that are simply best left to parents to decide. This is one of those issues where, on the facts of this case, law should not intervene.
Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was incorporated into private law in Northern Ireland by the Human Rights Act 1998, which in turn was relied upon by a grandfather seeking contact with his grandson in the case of Re C (Contact: Grandfather) [2004] NIFam 5 (06 February 2004). The grandfather had been found to have sexually abused the child’s aunt when she herself was a child. The mother herself alleged she had also been subject to abuse. He had never met his two year old grandson.
Justice Gillen noted that in those proceedings the best interests of the child were paramount. His Honour noted the provisions of Article 8 of the Convention which states:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
His Honour found that the phrase “family life” includes the relationships between grandparent and grandchild and that there was a growing awareness of the important role of grandparents in the lives of children, particularly young children. He further noted the growing acceptance within domestic and international law of the right of children to know their identity[7]. His Honour stressed that any such rights are not absolute and must be balanced against the welfare of the child concerned. In refusing the grandfather’s application His Honour said:
In my view it must be for the mother to decide what contact her child has with her father and other members of the family. It must be for her to decide what the child is told and when. It is a considerable burden for her to bear alone but I am satisfied that as the child’s primary carer she is in the new life will now seek advice as and when she needs it. She will be better able to care for the child because there is no order requiring her to allow the child to have contact with the applicant.
(…)
This application is but a further unwelcome and carefully calculated intrusion by him into her life. This cannot be in the interests of the child since it will almost inevitably lead to an adverse effect on the health of the child's primary carer with an accompanying knock on effect on the child. I propose to make no order on the father's application for indirect contact because I am satisfied that this mother will take the appropriate steps in due course to inform this child of his family background in an appropriate manner. It will be a delicate and difficult task given the findings that have been made against this applicant. However I am satisfied that the life story work that this mother will carry out with this child will meet this concern in an informed and appropriate manner at the proper stage when she considers the child is mature enough to understand the issues.
[7] United Nations Convention on the Rights of the Child 1989; ratified by the UK on 15 January 1992 and Australia on 16 January 1991
The United States of America and the United Kingdom each have rights legislation. Australia has no comprehensive rights legislation. That is not to say that various rights are not enshrined in diverse statutes. Courts need to be aware of these differences when referring to case law from other jurisdictions. It is likely that the jurisprudence between States with rights legislation and those without will diverge.
Section 60B(2) of the Act provides the principles underlying the objects in parenting proceedings which are expressed in ss60B(2)(a) to (e). These are expressed in the negative in that they apply “except when it is contrary to the child’s best interests” (emphasis added). This means that parents ought to be left to parent their children according to those objects unless it is established that it is not otherwise in the best interests of a child.
The law is that parents are entitled to parent children. If there is an assertion that parenting duties ought to be usurped it is for the person asserting that fact to establish that parents are not carrying out those duties in the best interests of the child.
An example of the court’s approach to overriding a joint parental decision about a child is Re Michael (1994) FLC 92-471. Michael was 12 years old and suffered from a serious cardiac condition. His parents appealed Treyvaud J’s decision enabling the Public Advocate to seek a declaration that he be authorised to consent to a medical procedure for Michael. Whilst a Full Court of Nicholson CJ, Fogarty and Joske JJ were focussed on the standing of the Public Advocate, during the course of the judgment their Honours made it clear that it was for the Public Advocate to establish by way of medical evidence that the parent’s decision was unjustified (at page 80, 893).
If a court is satisfied that an approach to the upbringing of a child by a parent or parents in whatever way is contrary to that child’s best interests, then the court should interfere by putting in place appropriate orders. In the absence of substantive issues as to the child’s best interests, it is not the role of a court to peer over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all.
That is not to say that a parent who acts capriciously in isolating a child from a grandparent with whom the child had a meaningful relationship ought not be the subject of orders, nor should this derogate from the role of the many grandparents and relatives who have taken up the care of children in circumstances where the parents were unable or unwilling to care for them.
The facts
Evidence was given by the grandfather. His evidence was not seriously impeached although it was subjective and seemed at some levels he fashioned his answers to meet his case. The evidence about the impact of any orders on his daughters was an example of him adjusting his views to meet his perceived needs. He prevaricated in some of his answers to questions.
S, M and T Overton each gave evidence in accordance with their affidavits. They each gave evidence frankly and thoughtfully. They impressed as witnesses of honesty although came inevitably from subjective points of view and all were clearly upset and emotional at the very existence of these proceedings.
Mr Shell is a party to the proceedings between the grandfather and S. Mr Shell was aware of the hearing and has chosen not to be involved as a party. In August 2008, Mr Shell swore an affidavit in support of the grandfather’s application. Mr Shell did not make himself available for cross-examination on that affidavit. Notwithstanding that circumstance, his affidavit was read into evidence and the question of weight attached to it was open for consideration by me. I do not give it great weight because he declined to be available for his evidence to be tested by cross examination and I was impressed by the evidence of S.
In terms of Mr Shell’s evidence, I accept his evidence that he does not object to Adam and Tom seeing the grandfather. I am not able to determine whether this consent was a thoughtful consideration by him of the needs of his children or whether it was part of the continuing conflict he has with S or otherwise.
Mr Shell claims that S refuses to make Adam and Tom available to see him and that he is seeking legal advice as to how he could spend time with his children. S disputes this evidence and says Mr Shell has chosen not seen their children since September 2007. I prefer S’s evidence on this point.
At around the time of their separation S obtained a family violence order against Mr Shell as she feared for her safety. I prefer the evidence of S to that of Mr Shell, that he had been abusive to her.
S said and I accept that from time to time she had stopped the children seeing Mr Shell out of concern for particular health of the children but did not otherwise prevent Mr Shell from seeing their children when it is safe to do so.
Mr Shell’s consent to the grandfather’s seeing Adam and Tom should be seen in the context that Mr Shell does not see his children and has not engaged in their day to day care. He does not communicate with them and leaves the total parenting of the children to S. She is the sole carer for Adam and Tom.
The grandfather’s wife L gave evidence in accordance with her affidavit and that evidence was not challenged.
Mr O’Brien, the father in this case, gave evidence and was cross examined. He was not a particularly impressive witness and expressed rigid views. He sees no value in his children seeing or communicating with the grandfather. At the time of the break-up of the marriage of the grandfather and J, the grandfather applied for and obtained a restraining order against the father. The father’s feelings against the grandfather are clearly not as deep as those of the mother. He sees little value in a relationship between his children and the grandfather but I am satisfied that if the mother determined that in would be best for their children should see their maternal grandfather, the father is likely to accede to that request.
Background
To understand this dispute it is necessary to consider the history of the Church family over the last decade or so.
The grandfather was a hard working parent who left most of the day to day parenting of his daughters to his former wife, J. The perception of his daughters was that he was a remote father who did not generally involve himself in their lives. The grandfather disputes that view. There is no forensic value in making a finding of fact in respect of that history, as I am satisfied that S, M and T genuinely have that view, irrespective of the background.
The mother gave evidence that the grandfather abused alcohol and that he gave alcohol to her son John to the extent that John became intoxicated. She had recollections of the grandfather drinking alcohol during the course of her upbringing and held the belief that he was an alcoholic.
The grandfather gave evidence that he was not and is not an alcoholic. He says that he is a responsible person of good character and wants his grandchildren to know him. His present wife, L, says that he is a sensible person of sober habits. She was not challenged in terms of that evidence. The drinking habits of the grandfather prior to 2000 and before are of little relevance in these proceedings save as is discussed below. I am satisfied that his present alcohol use is not an adverse factor in the determination of these proceedings.
His past drinking is a factor in terms of his daughters’ views of him. Those perceptions are real in terms of the state of mind of T, M and S irrespective of the factual history upon which they are based.
The mother was very young when she fell pregnant and gave birth to John. She said, and I accept, that as a consequence of that pregnancy she was required to leave her home and did not receive any or enough support from the grandfather.
As a consequence of that history, the mother feels isolated and alone. She remains angry with her father. She has four children and her relationship with their father, Mr O’Brien, continues. The mother and the father have lived together in Tasmania since 1996.
The mother’s concerns about the children spending time with the grandfather are that he, in her words, “[he] ruined my family’s life”. In her affidavit she said that she hated the grandfather and that such was her opposition to him seeing her children she would “give strong consideration to going to prison” before allowing her child to see the grandfather.
The mother sued her father in a small claims court for $350 in firewood and for the return of sundry personal possessions of very modest value left in the grandfather’s possession subsequent to his separation from his wife J. The orders made were then the subject of an appeal by the grandfather to the Tasmanian Supreme Court. The belief by the mother and her partner that the grandfather took their firewood and used the civil court system to frustrate their legitimate claim, still upsets both parents.
The father was the subject of an intervention order application by the grandfather. This litigation and the conflict arising from the failure of the grandfather’s first marriage (which the mother describes as ‘a very bitter divorce’) has further soured the mother’s regard to and her relationship with her father.
The mother believes that these proceedings by the grandfather are further vindictive litigation by him which reflects her opinion that he acted in a vindictive way at the time of his separation from her mother.
A consent order was made in the Family Court in September 1997 entitling the grandfather and his then wife, J, to spend time with John. This order was made when the mother was aged 15 and John was aged 8 months. As part of these proceedings I will discharge that order. John spent some time with the grandfather up to his separation from J in about 1999 and saw John on a number of occasions until Easter 2000.
The grandfather has not had any real time with John since Easter 2000. John has not seen his grandfather since he was about 3, he is now aged 11. He knows that the grandfather exists but no longer has any relationship with him.
There was an issue of fact as to whether the grandfather gave beer to John which left him intoxicated in Easter 2000. This was the final event, according to the mother, which ended the contact between John and the grandfather. The grandfather denies that he gave beer to John and that John was intoxicated. Tendered in evidence was a photograph apparently taken at that time showing John drinking from a beer bottle. The photograph is not clear as to the person sitting beside John, but on balance I am satisfied it is the grandfather. I prefer the mother’s evidence that John had consumed some beer before she had picked him up from the care of her father at that time. In itself this is a relatively minor matter, but it has taken on a much greater dimension in the mind of the mother.
The mother’s evidence needed to have been observed to gauge and understand the depth of her distress at the thought of her children seeing or having any relationship with the grandfather. Her distress and anger are real.
The same can be said of the evidence of S and T. All three of the grandfather’s daughters gave emotional evidence of their respective deep and abiding opposition to him seeing their children. Their evidence was personal and credible. The opposition of M, S and T was rooted in their own deep beliefs and was not a reflection of views of their mother, J [as was suggested by the grandfather].
Part of the sadness of the failure of the relationship between the mother and the grandfather is that the grandfather stood back and did not try and contact the mother or his other daughters for a number of years. He saw this as giving them space and time to heal the emotional scars following his divorce from their mother J. On the other hand, the mother was upset and angry that the grandfather had left it so long. She said she would have initially rejected him but may have come around, but after all this time she sees this litigation as a continuation of what she regards as a litigation mindset of the grandfather.
S gave evidence in accordance with her affidavit. I have made earlier remarks in respect of the involvement of Mr Shell. S says that when she was 15 her mother, J, and the grandfather separated. I accept S’s evidence that she has not spoken to her father since that time, he does not know where she lives and he has never met Adam or Tom.
S says that the grandfather has effectively never attempted to contact the children or even send a birthday card. The children only know two grandfathers: Mr Shell’s father and J’s present partner, C.
S believes that her father had her pet dog put down. She wrote a letter at that time[8] to her father’s then solicitor asking about her dog and received no satisfactory reply. In the letter she said:
I am writing to find out where my dog is. There has [sic] been rumours that we took him but we did not. We did not take [the dog] when we left because we had to go to a rented house. My mum did write to ask if we could go and see [the dog] but he [the grandfather] never answered.
My mum has gone to the Council and contacted the dogs home and the RSPCA and none of these have had or seen [the dog]. [The dog] is old and he would not have run away from his home. I love [the dog] and I want to know where he is. I asked my father last week but he just turned his back on me and walked away.
[8] Exhibit R2.
At the time of sending that letter S was aged 16. Whether the grandfather disposed of the dog or not, the impact of the break-up of her parent’s marriage and the consequences for this then teenage child are apparent. The foundation of the disintegration of her relationship with her father can in part be seen from this letter. There is no evidence to base her belief that her father had her dog put down. Her belief arises from her very negative views of him and the collapse of effective communication between them. All this was developed in the crucible of her parent’s bitter divorce and the surrounding conflict and litigation.
The impact of her parents’ marriage break-up was significant and S has clear memories of proceedings that were necessary to bring about return of her personal possessions. The grandfather had refused to return them until the final settlement.
S said that she has a childhood memory of her father hitting her on one occasion. She said that was he was never there for her; he was from time to time drunk and verbally abusive to her.
The memories of her childhood, the failure of her parent’s marriage, the loss of her dog, the litigation, the conflict, the failed communication, her father’s retention of her possessions and consequential emotional turmoil has shattered S’s relationship with her father.
S gave evidence that the sending of letters, cards and providing information to the children would deeply upset her. She did not want this to happen. She did not want the grandfather to have anything to do with her children and she did not accept that they would be safe in his care. In final submissions her counsel said that she would agree to the identity type communication outlined earlier in these reasons, this concession was reluctantly made by S.
There was evidence from the grandfather that he was concerned that the mother and S were planning to leave Tasmania. This was a presumption he came to because of the difficulty serving them and their refusal to engage in a mediation process through the Family Relationships Centre. The evidence of both the mother and S was that they had no intention of leaving Tasmania. In many ways this is indicative of the miscommunication that has dogged the relationship between the grandfather and his daughters for very many years.
T gave evidence on video link from the Adelaide registry. She and Mr Cooper have two children and T is pregnant with their third child. T left her family home in 1996 and commenced cohabitation with Mr Cooper in 1999. Together they moved to South Australia in 2007. Mr Cooper suffers from epilepsy and needed an operation for removal of a brain tumour in the late 1990s. T says that this epilepsy is severe and for a period of two months this year Mr Cooper was suffering attacks twice per day. T’s evidence, which I accept, is that when Mr Cooper becomes upset he has a greater number of epileptic fits. He does not answer the phone. His health is such that he is unable to participate in these proceedings. She says, and I accept, that Mr Cooper opposes the children seeing the grandfather.
These proceedings are causing T great distress and that in turn impacts upon Mr Cooper’s health. It has stirred up many unhappy memories T has of her father and as such she has sought medical assistance.
T says that when her sister, the mother in this case, had a baby the grandfather was disapproving and that the atmosphere at home was such that she left.
T says that the grandfather made no real efforts to contact her in the aftermath of the break-up of his marriage with her mother. Clearly her perception of that history was different to that of the grandfather.
T describes when she was pregnant with her second child she was in a shopping centre and her father and his new wife approached her. T says that she was intimidated and was reduced to tears. She sees no benefit in him having a relationship with the children and the children do not know him. She says that her eldest child is progressing well at school and there would be no change to their lives if the application was dismissed. Further she says that if an order was made the children would not know the grandfather and he would be treated as a stranger.
Observing T in the witness box, I am satisfied that she is deeply upset by these proceedings and deeply troubled by these applications. At one stage she said “what he has put us through I will never get over”.
She says that her views are her own views and not those of her mother. Even after hearing the evidence from the grandfather that he loved his daughters, T’s view was that nothing had changed and that the grandfather has taken the family through yet another court proceeding. She said it was necessary for her to take proceedings at the time of her parents break-up to regain her possessions.
The grandfather was cross-examined by counsel for S, the mother and the father about the events back in 1999 and 2000 and some chance encounters between the grandfather and some of his daughters after that date. Clearly the recollections of the grandfather over that time are somewhat deficient from time to time. Essentially the finding of facts in respect of those issues will do nothing to assist me in this determination.
For whatever causes the grandfather has no effective relationship with his daughters and all three have deep concerns and fears about him having any contact with their children. On the evidence it is unlikely that these concerns will change.
It may be, although I make no positive finding to that effect at this time, that the grandfather was spiteful at the time of his relationship break-up with J. I do not find that these applications were commenced out of spite by the grandfather to his daughters. These are applications by a person who is rigid in his approach and lacks insight into the way he interacts with his daughters. He loves his daughters and wants to develop a relationship with his grandchildren. He blames his former wife for the attitude of his adult children. He cannot see or understand that at least part of the problem is in terms of his long term interaction with his daughters who have each independently as adults formed strong views of their own.
The grandfather lacks insight into how he will deal with his absence from the lives of his grandchildren for so long and I accept the submission of the independent children’s lawyer that it is likely that these grandchildren will end up as the “meat in the sandwich”. He said:
It's my submission that to place these children in a position where they were to see their grandfather would be to place them in the position of literally meat in the sandwich. My submission is that the grandfather showed no insight at all into the attitude and emotions of his daughters and consequently it would be very difficult for him to refrain from explaining his absence from the children's lives except in the context of his daughters refusing him to see the children.
The grandfather’s insights into his attitudes and emotions to his daughters will make it difficult for him to explain his absence in an appropriate way and would leave the mothers apprehensive about that contact and openly hostile to compliance.
This court should not be “blackmailed” by a party asserting that they would not comply with orders made by it. At the same time the court needs to be conscious of extent of the feelings, views and impact of an order. This is particularly the case when contact between a child and another person (such as the grandfather in these proceedings) would engender such unhappiness in a parent and would consequently impact on the ability of that parent to care for such child. I have no doubt that orders, other than those agreed to by S, M and T would adversely impact upon those mothers and would adversely impact on their respective families including the children.
The grandfather had no or limited insight as to the impact of his application on his daughters’ parenting of their children. He said under cross-examination that if his application upset his grandchildren he said he would not change his application, although he resiled somewhat from that position on re-examination.
When cross-examined by the independent children’s lawyer about the mother’s comment that she would give strong consideration to prison before allowing her children to see him, the grandfather said he was determined to go ahead with his application.
In his written submissions, Counsel for S, the mother and the father said that any order providing for time between the grandfather and his client’s children would have a detrimental effect on his clients. He submits and I accept that;
The parents are genuinely concerned about the welfare of their children and how they will manage if the Applicant is permitted to spend time with their children.
In her affidavit sworn 19 June 2008 the mother says and I accept that;
13. I know the word “hate” is a very strong word but I cannot think of a better description for the Applicant. I do not consider that I have a father at all, as sad as that may sound.
14. Once I found out that the Applicant had recommenced these proceedings I felt shattered and angry. We have to go through this whole process again. I am currently pregnant with my fourth child and I am worried that the Applicant is going to be able to see this child as well.
In her affidavit sworn 2 July 2008 S said and I accept that;
5. When I found out that the Applicant had commenced proceedings in this court I was absolutely ropeable. I was extremely annoyed. The Applicant had never been there for me when I was growing up and I do not see how he should be able to do this when he hasn’t’ wanted anything to do with us for such a long time.
In her affidavit sworn 21 April 2008 T said and I accept that;
20. I say that the application of my father is a nonsense…
21. I cannot understand my father’s motives in wishing to establish time with the children now given his complete lack of concern or interest over the last 8 years.
Counsel for S and Mr Coopper submitted and I accept that;
…on the basis of the evidence given, and upon [S’s] presentation in Court, the Court could be satisfied that an order forcing [S] to facilitate the applicant spending time with her children would be significantly damaging to her wellbeing, the wellbeing of her partner and the wellbeing of her children.
In Sedgley and Sedgley (1995) FLC 92-623 the Full Court (Lindenmayer, Kay and Moss JJ) set aside orders that had allowed the husband access to an eight year old child where the husband had over a period of years intimidated the wife, failed to return the child at the end of access periods, and who had, according to the trial judge, ‘behaved in an intimidatory and bullying way and shown no respect for court orders.’ The Full Court said at 82,259:
“Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent's household may be a more compelling need for the child.”
The same court in the case of Irvine (1995) FLC 92-624 also set aside orders granting a father access to three children aged 13, 10 and 7 where there was a serious history of post-separation violence. Their Honours said at 82,273:
“In deciding whether it would be in the interests of the children to grant such access, the Court had to bear in mind the obvious effect the respondent’s conduct must have had upon their custodial parent.”
In Grant (1994) FLC 92-506 Purdy J said at 81,259;
If the Court comes to the conclusion that an access order will have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child then the Court must take that into account in assessing whether access is for the benefit of the child.
Particular discussion
The mother and the father have agreed to some limited communication between the grandfather and the children, but only when they are older. In relation to that consent, I was concerned as to the profound impact these proceedings had on the mother and the impact of receiving mail will have on her into the future and how it will affect her parenting of these children. As a consequence, I have limited the number of letters and or cards that can be sent in any particular year.
I have considered when letters and cards should become available. The independent children’s lawyer expressed concerns about how the grandfather would explain to his grandchildren his absence from their lives. I share that concern. The grandfather has no or limited insight as to the upset he could cause the grandchildren children with a subjective explanation about his absence from their lives. It is in the best interests of the children that they wait until after their respective 13th birthdays before a request for information about their grandfather would lead to them being given the cards and letters.
The mother has a real and deep emotional opposition to any of her four children spending time or communicating with their maternal grandfather, except in limited identity communication to which both she and the father have consented. This opposition is based upon her memories of her childhood, her father’s reaction to her early pregnancy; the failure of her parent’s marriage and the conflict and litigation that followed; the domestic violence proceedings between the father and the grandfather; the firewood litigation; the feeding of beer to John and her father’s silence for the last 7 or 8 years. These proceedings are seen by her as a furtherance of her father’s litigious nature. Whether these are subjective or objective views they are genuinely believed by her and her opposition to any meaningful contact is not transient or trivial.
When determining what is in the best interests of each child, one of the two primary considerations set out in paragraph 60 CC (1) of the Act is the benefit to the child of having a meaningful relationship with both of the child's parents. I must also consider the nature of the children’s relationships with their parents and with other persons, including grandparents and relatives, and the capacity of the grandfather, the mother and the father to provide for the children’s needs.
The mother and the father are in an intact relationship and their parenting was not challenged apart from their refusal to allow contact between their children and the grandfather. There is no suggestion that they are other than effective and loving parents. The children have a normal and loving relationship with their parents.
The children do not have any meaningful relationship with the grandfather. He has not met two of them.
The grandfather lacks insight and empathy into the effect of these proceedings on the mother and to a lesser extent the father. As I said earlier, I am not satisfied that he would be able to restrain himself from expressing his views as to the history of the disintegration of the Church family relationships which inevitably would impact in respect of the relationship between the children and their mother.
The capacity of the parents is not in issue, except to the extent that they would support with any orders made by this court. The grandfather is rigid and consequently inflexible in his approach. His failure to respond to S’s request for information about her dog, his insistence to hold onto his children’s personal possessions and dogged approach to the firewood litigation are indicative of this. His initial fixed view about time with his grandchildren, despite possible emotional harm to their parents (his daughters) is likewise indicative of this attitude.
In the past the grandfather may have been seen to have difficulties with alcohol and may have acted irresponsibly in his care of John in Easter 2000. I am satisfied that at the present time his motivation to see his grandchildren is not spiteful but is simply his desire to move forward from the past and endeavour to form a relationship with his grandchildren.
The grandfather is not a risk of physical harm to the children. I accept the evidence of his wife L that he acts appropriately with her grandchildren and that he would present no risk to the children in any physical way or by way of anger or use of alcohol.
The views of the children are not known. These proceeding were conducted under Div 12A of Part VII of the Act and in preparing for hearing there was discussion about the need for a family report. Section 69ZN(3) sets out one of the principles for conducting child related proceedings in that:
…… the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings
The parents did not want contact between their children and the grandfather; they had adopted that approach from Easter 2000. To have ordered a Family Report, in the factual and legal circumstances of this case, could have adversely impacted upon the children and as such the parties agreed to or acquiesced with that approach.
In view of the ages and maturity of Bronwyn, Karen and Laurie I am satisfied that their views would not be of assistance in this determination.
As to John, he has not seen his maternal grandfather since Easter 2000. At that time he was aged three; he is now aged eleven. In the context of this dispute I see no relevance to his views.
There are no current issues of family violence nor are there any relevant family violence orders applicable to the children or members of the children’s family. Thus the other primary consideration to be taken into account when determining the children’s best interests is not relevant.
I must consider the demonstration of the responsibilities of parenthood by each parent and the maturity, sex, lifestyle and background of each parent and the child. I must also consider the likely effect of any changes in each child’s circumstances. The mother and the father (to a lesser extent) implacably oppose any other contact between their four children and the grandfather. I have already noted that otherwise, their parenting is unchallenged and there is no suggestion that they are other than effective and loving parents.
Any order I make for the children to spend time or communicate with the grandfather would impact on the children by way of the unhappiness of their parents, particularly the mother.
The fundamental question is whether I ought to put in place orders in the face of determined opposition by functional parents. This in circumstances where the grandfather has no relationship with the children and where his ongoing involvement with them (pursuant to any orders that I may consider making) will upset the mother and to a lesser extent the father.
The consequences of such orders will be that the mother and the father will be forced to introduce their children to a person for whom they have little respect and with whom the mother remains very angry. The children are likely to know of their parents’ disapproval and distress. It would upset a working arrangement.
If the children had a meaningful relationship with the grandfather which was terminated by one parent or another that could be a significant factor, particularly if such action was capricious.
I am obliged to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. Given the strength of the mother’s opposition to the grandfather’s application and the intensity of her distress at the prospect of its succeeding, I am of the view that granting the grandfather’s application would increase the likelihood of further litigation between these families. Resort to litigation has already embittered this family to a significant degree.
I accept the submission of the independent children’s lawyer when he said:-
It’s my submission that [the grandfather] fails the test of convincing the court that he is a significant person to the care, welfare and development of any of the children…it doesn’t in my submission, end there because the court has a responsibility to make an order, the matter being before it, and in making that order it has to have regard to the best interests of each of the children as a paramount consideration….having heard all the evidence, it could not ever be found to be in the best interests of these children to spend time with [the grandfather] when their parents are clearly deeply opposed….in my submission the court should uphold the parental decision.
This is not about the needs of the grandfather; it is about the interests of the children. Their parents in exercising their the overall responsibility to parent decided some 8½ years ago that the grandfather should not be involved in their lives. This decision was not taken lightly and remains the parents’ approach. The Family Law Act acknowledges the principle that it is for parents to parent and that they should be entitled to do so unless it is contrary to the children’s best interest. That is what these parents are doing and it has not been established that it is contrary to the children’s best interest, nor has it been established that the grandfather is a person ‘significant to their care’ as envisaged by s 60B(2) of the Act.
Having regard to all of the facts and having regard to all of the relevant factors in considering what is in the best interests of these children I determine they should not spend time with or communicate with the grandfather except as is agreed by their parents and as agreed during the hearing. I have set out some views in respect of the rights of parents to parent their children. Even if the principles of law were not as I have discussed, I would not have made orders sought by the grandfather.
I certify that the preceding 143 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 12 November 2008
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