Cleanaway Operations Pty Ltd
[2018] FWCA 201
•24 OCTOBER 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: TONG and DOWLER [2018] FCWA 201
CORAM: O'BRIEN J
HEARD: 30 AUGUST 2018
DELIVERED : 24 OCTOBER 2018
FILE NO/S: PTW 136 of 2010
BETWEEN: MS TONG
Applicant
AND
MR DOWLER
First Respondent
AND
MS LAI
Second Respondent
Catchwords:
FAMILY LAW – CHILDREN – Application by maternal grandmother – Narrow issues in dispute – Where maternal grandmother seeks to travel overseas with the child and access to the child’s school reports – Where mother has not participated in proceedings – Where father does not oppose travel in principle but there is a dispute as to when travel should commence – Where father opposes maternal grandmother having access to school reports – Where father concerned that the maternal grandmother will put undue pressure on the child in relation to his education – Orders made permitting progression to overseas travel.
Legislation:
Family Court Act 1997 (WA) s 202
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| First Respondent | : | Self Represented Litigant |
| Second Respondent | : | No Appearance |
| Independent Children's Lawyer | : | Ms Brinkley |
Solicitors:
| Applicant | : | Self Represented Litigant |
| First Respondent | : | Self Represented Litigant |
| Second Respondent | : | No Appearance |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in decision(s):
Banks v Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 259 CLR 662
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
These proceedings were commenced by [Ms Tong], who is the maternal grandmother of [D], born [in] 2007. The first respondent [Mr Dowler] is D’s father. The second respondent [Ms Lai] is D’s mother. Ms Lai did not participate in the proceedings and has not played any active role in D life for some considerable time.
The issues for determination are, as will appear below, very narrow. The relevant background may therefore be briefly stated.
Ms Tong was born in 1949. She is [an employment officer], working four days per week. She previously had a long career as [an office administrator] in her native [Thailand].
Mr Dowler was born in 1977. He works full-time as a [mechanic].
Mr Dowler and Ms Lai began living together in early 2006. They separated under one roof in late 2009. In early January 2010, Ms Lai left the family home, leaving D in the father’s care. Initially at least, she moved overseas to pursue a new relationship. D has lived with the father ever since. The Single Expert Witness (“SEW”) described Ms Lai as appearing to have “a limited interest in the parenting of [D]”. Both Ms Tong and Mr Dowler said at trial that they were unaware of Ms Lai’s current whereabouts. Ms Tong last spoke to her over a year ago.
Ms Tong commenced the proceedings on 27 March 2012. She sought orders whereby D would spend the last weekend of each month with her, from Friday evening to Sunday afternoon, that he spend the weekend before his birthday with her, and that he spend a week or longer with her if she wished to take him overseas for a holiday.
That application was brought in the context of Ms Tong later reporting to the family consultant, who conducted a case assessment conference in March 2013, that she had not spent time with D since 2011.
While Mr Dowler engaged with the proceedings in the sense that he attended conferences and court events, he did not file any court documents until very late in the piece. That said, interim orders were made by consent on 26 September 2014, after the distribution of the first SEW report, for him to have sole parental responsibility for D, for D to live with him, and for Ms Tong and Ms Lai to undertake reunification therapy with D. Subsequently, a series of orders were made by consent to facilitate D spending time with Ms Tong.
Ms Tong and Mr Dowler attended a late intervention dispute resolution conference facilitated by Legal Aid Western Australia on 31 July 2018. Ms Lai did not participate. To their credit, and notwithstanding their antipathy towards each other, Ms Tong and Mr Dowler were able to reach agreement in relation to most issues. In particular, they were able to agree to orders for D to spend time with Ms Tong each alternate weekend in a four week cycle, from 4.00 pm Saturday until 4.00pm Sunday in week two, and from 9.00 am until 5.00pm on Sunday in week four. They also agreed that D should spend time with Ms Tong for one church camp each year. They agreed specific arrangements for Christmas.
At that point, the following issues were noted as requiring determination at trial:
(a)travel by D with Ms Tong;
(b)what time D should spend with Ms Tong during school holidays;
(c)the release of medical and school information about D to Ms Tong;
(d)D’s extra-curricular activities;
(e)arrangements for Mother’s Day; and
(f)appropriate methods for communication between the parties.
On 14 August 2018, Mr Dowler filed a response and affidavit. It appeared from those documents that further agreement between the parties might still be possible.
The parties, with the assistance of the Independent Children’s Lawyer (“ICL”), undertook further discussions on the morning of trial. Further agreements were reached, and orders were made by consent.
The remaining issues for determination were:
(a)at what stage D should have the opportunity to travel overseas with Ms Tong, at what time of year that should occur, and for how long; and
(b)whether, as she sought, Ms Tong should be provided with copies of D’s school reports.
In accordance with the principles for the conduct of child-related proceedings set out in Division 11A of Part 5 of the Family Court Act 1997 (WA) (“the Act”), and the Court’s general duties and powers relating to evidence in child-related proceedings set out in s 202L, the evidence, cross-examination and submissions at trial were limited to those necessary to inform a decision on those narrow issues.
The proposals of the parties
Ms Tong sought orders whereby she would be able to travel overseas with D commencing with a period of seven to 10 days in the school holidays in July 2019. She wishes to be able to take D overseas in alternate years thereafter, for a period of up to two weeks, and to be able to do so during any school holiday period she may nominate, so as to afford herself maximum flexibility in terms of the availability of her annual leave. She explained that in her current employment she is not able to dictate when she takes that leave. She has to apply for it in competition with other workers, and her employer’s permission to take leave at a particular time is subject to operational requirements.
Mr Dowler was agreeable to orders permitting Ms Tong to take D overseas for up to 10 days at a time, but proposed that only commence once D reaches the age of 15 in August 2022. He said that there are still difficulties in the relationship between D and his grandmother, and that he would not want D to be in a potentially difficult position in that regard and unable to return to his care, at least until D is old enough to deal with such a situation. He proposed also that Ms Tong’s overseas travel with D be restricted to the summer school holidays, saying that D regularly visits paternal relatives during the shorter school holidays.
The ICL was supportive of D having the opportunity to travel overseas with his grandmother. She noted that D’s maternal extended family, apart from Ms Tong, lives in Thailand and [Indonesia]. She submitted that it was in D’s best interests to have the opportunity of exposure to the culture of his maternal extended family, and to build relationships, particularly in circumstances where he has effectively been abandoned by his mother.
She submitted, however, by reference to the evidence of the SEW, that D should have the opportunity of at least one period of five nights in Ms Tong’s care within Australia before progressing to overseas travel.
Ms Tong sought orders whereby she would be provided with copies of all of D’s school reports on an ongoing basis. She argued that by virtue of her experience and professional background, and the emphasis that she places on education, it would be in D’s best interests to put her in a position to actively monitor his educational progress and to assist him as needed.
Mr Dowler, while agreeing to various orders whereby Ms Tong will be kept informed regarding any medical issues affecting D, did not agree to the orders proposed in relation to school reports. He expressed concern that Ms Tong would place undue pressure on D in relation to academic performance. He acknowledged that his priorities and those of Ms Tong differ. He said that he does not “push [D] to be an A student”, wanting him to enjoy school and a range of extracurricular activities. He was sceptical about the statement by Ms Tong under cross-examination that she would seek his permission before offering any academic assistance to D, and would not interfere in his studies if that permission was declined.
The law
The Court’s power is to make such parenting order as it considers proper. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration.
The legislation sets out matters which must be considered by the Court in determining what is in a child’s best interests. The considerations are divided in the legislation into “primary” and “additional” considerations. A number of the considerations are, by their very nature, specific to disputes between parents and are not applicable to a dispute between a grandparent and a parent.
Even leaving that aside, not all of the considerations set out in the legislation will be relevant in every case. The Court’s task is to consider the relevance of the considerations to the matters to be determined in the individual case.
I am required also to be guided by the objects of Part 5 of the Act and the principles underlying them.
Ultimately, as the High Court observed in Bondelmonte & Bondelmonte (2016) 259 CLR 662 at [32], the making of a parenting order involves the exercise of a judicial discretion. The primary considerations set out in the legislation are “matters to be borne in mind as consistent with the objects” of Part 5. The additional considerations set out in the legislation:
…require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
As the Full Court observed in Banks v Banks (2015) FLC 93-637 at [48] and [49]:
“…in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant….
…the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion.” (citations omitted)
The evidence
Ms Tong relied on the following affidavits:
•her affidavit filed 27 March 2012;
•her affidavit filed 7 January 2014;
•her affidavit filed 17 September 2015;
•her affidavit filed 6 March 2018; and
•her affidavit filed 30 July 2018.
Mr Dowler relied on his trial affidavit filed on 14 August 2018.
The ICL relied on affidavits of the SEW filed on 19 August 2014 and 28 March 2017, and her own affidavit filed on 8 August 2018 annexing a report from a clinical psychologist who had assisted D. Memoranda prepared by the family consultant and documents produced by the Western Australian Police were also in evidence.
The parties cross-examined each other. The ICL cross-examined them both. While nothing turns on the credibility of either party, the cross-examination was nevertheless informative. It demonstrated not only the strong antipathy between the parties, but also the strong views of Mr Dowler as to what he would regard as being the domineering nature of Ms Tong. Equally, it demonstrated the strength of Ms Tong’s views as to the importance of her role as a grandmother and the qualities she and her family have to offer D, and a certain lack of respect on her part for Mr Dowler role as parent and primary carer for him.
The cross-examination and submissions also demonstrated clearly that each party blames the other for the clear communication difficulties between them. Their antipathy appears both long-standing and deep-seated; for example, Mr Dowler clearly has the view that the personality traits of Ms Tong, which he finds objectionable, were also the cause of her troubled relationship with Ms Lai and, in his words, “drove her away”. By the same token, Ms Tong’s questioning of Mr Dowler regarding his education, literacy and knowledge about information technology demonstrated both a healthy self-regard and her low regard for him.
The dynamic is perhaps best summarised for present purposes by an exchange I had with the SEW:
His HonourIs it fair to say that there is a highly conflictual relationship between [Ms Tong] and [Mr Dowler]?
[SEW]Yes, there is your Honour.
His HonourIs it fair to say that neither of them has any particular insight into their own individual contribution towards that conflictual relationship?
[SEW]Yes, your honour.
His HonourIs there any prospect in your view of them dealing with each other in a cooperative fashion?
[SEW]Highly unlikely.
The primary and additional considerations
Neither party suggested that the primary considerations in the legislation inform the decisions to be made. The ICL submitted, and I accept, that there is a risk of psychological harm to D from exposure to the high degree of conflict between the parties.
The father said that D has expressed his views in the sense of being reluctant at times to spend time with Ms Tong. In particular, on his case, D is reluctant to spend extended periods with her and that informs his position in relation to overseas travel. That said, the father has acknowledged the benefit to D of a relationship with Ms Tong.
Ms Tong’s proposals as to overseas travel would, if implemented, represent a change in D’s circumstances and a separation from Mr Dowler to which he is not accustomed.
Ms Tong would argue that she has a high capacity to provide for D’s needs, including his emotional and, most particularly, his intellectual needs. Mr Dowler clearly has the capacity to provide for D’s needs, albeit that Ms Tong is somewhat disparaging of his capacity to provide for his intellectual needs. Understandably, Mr Dowler takes issue with that, particularly in circumstances where he has been solely responsible for D’s care since Ms Lai departed.
Neither party suggested that the maturity, sex, lifestyle and background of either particularly influence the decision to be made. The father would argue that D’s current level of maturity supports his argument that overseas travel with Ms Tong should not yet commence; Ms Tong sees no difficulty in that regard.
It would be preferable to make the order least likely to lead to the institution of further proceedings.
Discussion and conclusion – overseas travel
When Ms Tong was interviewed by the SEW in November 2016, she “reported that currently the scheduled time [with D] was going well but school holiday periods were not going as well. [She] was of the view that the father is limiting the cultural and family experiences of [D] by not permitting him to travel with her on a holiday. She considered that any arrangement for [D] to spend time with her should be fair and that if the father is taking [him] to [Town A] to spend time with the paternal grandmother one Easter then the other Easter [D] should be able to spend time with her.” She described herself as “the mum for [D]”.
The SEW observed the negative relationship between the parties and attributed some responsibility for that to each of them. She noted that “at some level” the father had been promoting D’s time with Ms Tong, but also that there appeared to be negative influence from the father in relation to her. Certainly, D made various negative comments about Ms Tong when interviewed.
Equally, the SEW described Ms Tong’s attitude towards the father as “generally negative”.
The SEW expressed the view that “it may be that an arrangement could be considered whereby the child spends time with the maternal grandmother up to three overnights during the short school term holidays, increasing to seven nights in the Christmas school holidays. In the event that arrangements are made for the child to spend time overseas, it may be that the maternal grandmother could arrange for the child to spend up to seven days with her in the school holiday period during term school holidays.”
Subsequent to that report, of course, the parties reached agreement in relation to the regular school holiday time D is to spend with Ms Tong. Orders were made by consent providing for D to spend time with Ms Tong for three nights in the Term 2 and Term 4 school holidays, or as otherwise agreed, subject to her being able to take leave from her employment.
At trial, the SEW expressed the view that while the opportunity to spend from seven to 10 days overseas with Ms Tong might be beneficial for D, it would be in his best interests for him to have an opportunity to spend at least one extended holiday of five to seven days within Australia with her before that travel occurred.
Against that background, I consider it appropriate to make orders facilitating D spending a holiday of up to five days with Ms Tong within Australia at the end of the 2019 school year. By then, he will have spent more regular time with Ms Tong, pursuant to the orders made by consent, including shorter extended periods during some school holidays.
I consider it appropriate for D to then have the opportunity to spend a holiday of up to seven days with Ms Tong during the school holidays at the end of the 2020 school year, by which time he will be 13. That holiday may include brief overseas travel if Ms Tong wishes to avail herself of that. I acknowledge that the time permitted may not be conducive to overseas travel.
D will then have the opportunity to spend a holiday of up to 14 days with Ms Tong during the school holidays at the end of the 2021 school year, and alternate years thereafter, but subject to his wishes. Those holidays may also include overseas travel.
By approaching the matter in that way, the father’s concerns about D reacting adversely to extended time with Ms Tong and effectively being “stuck overseas” before he is mature enough to handle such a situation are addressed. By the same token, Ms Tong will need to recognise that it is appropriate for D’s wishes in relation to overseas holidays with her to be respected, particularly when orders progressing her extended time with him over the next couple of years have been made and when by the time his wishes are determinative he will be 14 years old.
While neither party expressly proposed orders in relation to overseas travel that would be subject to D’s wishes, I am of course not bound by the proposals of the parties and the possibility of such a condition being imposed was clearly foreseeable from the cases as presented.
With no disrespect to her, in my view, Ms Tong also needs to recognise the inherent limitations in her role as a grandmother, particularly in circumstances where she and the parent solely responsible for D’s care have such a poor relationship. It cannot, in my view, be in D’s best interests for Ms Tong to impose herself on the father’s care of him beyond the extent permitted by the orders made by consent and those which I propose to make.
For similar reasons, I accept the submission of the father that any extended holiday period with Ms Tong, including for overseas travel, should occur during the long school holidays at the end of the year, rather than the shorter mid-term holidays. Ms Tong’s arguments to the contrary were focused on her own convenience and employment arrangements as distinct from D’s best interests or any acknowledgement of his other commitments and interests.
Discussion and conclusion – school reports
In short, I accept the submissions of the father in relation to this issue. I do not accept that Ms Tong’s expressed intention to seek the father’s permission before seeking to have any input into D’s study or education was genuine; indeed, her expression of that intention stood in stark contrast not only to her actions but to other statements she made during the trial, and her presentation generally.
I do not doubt that Ms Tong has skills which she could offer to D to assist him in whatever academic endeavours he might pursue. As their relationship grows, D may or may not choose to seek out that assistance. If he does, I have no doubt that it will be willingly given. That does not, however, mean that Ms Tong has any entitlement to impose her views as to education on either the father or D. Regretfully, I have no confidence in her capacity to restrain herself from doing so should she be provided with the school reports which she seeks.
Proposed orders
Subject to any submissions as to form, I propose to make the following orders:
1.During the school holidays at the end of the 2019 school year, the applicant maternal grandmother be at liberty to nominate, on not less than 30 days’ notice to the father, one period of up to 5 days to travel with [D] within Australia.
2.During the school holidays at the end of the 2020 school year, the applicant maternal grandmother be at liberty to nominate, on not less than 30 days’ notice to the father, one period of up to 7 days to travel with [D], such travel to include overseas travel.
3.Commencing with the school holidays at the end of the 2021 school year, and each alternate year thereafter, the applicant maternal grandmother be at liberty to nominate, on not less than 30 days’ notice to the father, one period of up to 14 days to travel with [D] during the relevant end of year school holiday period, including overseas, such travel to be subject to [D’s] wishes.
4.Where the maternal grandmother proposes to travel outside of Australia with [D] during a nominated travel period, she shall provide in addition to the required notice to the father:
(a)a contact telephone number for the child for the travel period;
(b)full itinerary;
(c)flight numbers;
(d)travel insurance which is to be obtained; and
(e)accommodation details.
5.All outstanding applications and responses be and are hereby dismissed.
6.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days’ from this order.
7.In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
LH
ASSOCIATE
24 OCTOBER 2018
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