Collu v Rinaldo

[2010] FamCA 53

FAMILY COURT OF AUSTRALIA

RAND & COUNTER AND ANOR [2010] FamCA 53

FAMILY LAW – CHILDREN – With whom a child spends time – Grandparents

APPLICANT: Ms Rand

RESPONDENT: Mr Counter

SECOND RESPONDENT: Ms Counter

FILE NUMBER: WOC 903 of 2009

DATE DELIVERED: 19 January 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 19 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clifford

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT: Hozack Clisdell Lawyers

Orders

1. That orders are made in accordance with the document entitled “Amended Minute of Order Sought by Appellant Mother” as set out below:

   “1. That the children spend time with the Respondent Grandparents at the following times:-

   1.1.On the second weekend of each calendar month in 2010 from Saturday at 10:00am to Sunday at 5:00pm.

   1.2.From 6:00pm on Christmas Day to 11:00am on Boxing Day in 2010, and each alternate year thereafter.

   2.      That for the purposes of Order 1.1 herein, the Respondent Grandparents shall collect the children from the Appellant Mother’s residence at the commencement of the children’s time with them, and the Appellant Mother shall collect the children from the Respondent Grandparents’ residence at the conclusion of such time. 

   3.      That for the purposes of Order 1.2 herein, the Appellant Mother shall deliver the children to the Respondent Grandparent’s residence at the commencement of the children’s time with the Respondent Grandparents, and the Respondent Grandparents shall return the children to the Appellant Mother’s residence at the conclusion of such time.

   4.      That the Respondent Grandparents shall ensure that the children’s school materials, clothes and footwear are returned with the children to the Appellant Mother at the conclusion of all periods of time the children spend with them in accordance with Order 1 herein.

   5.      That the Appellant Mother shall do all things necessary to facilitate the children receiving a telephone call from the Respondent Grandparents at any reasonable time between 7:30am and 7:30pm on any day.

   6.      That the Respondent Grandparents shall do all things necessary to permit, not prevent or interfere with, and do all things necessary to facilitate the children initiating and receiving telephone calls to and from the Appellant Mother at all reasonable times whilst the children are in their care.

   7.      That the Respondent Grandparents shall notify the Appellant Mother in writing if they propose to temporarily remove the children from the [S] Region during the time they spend with the children in accordance with Order 1 herein, and they shall provide to the Appellant Mother a telephone number on which the children may be contacted during all such times.

   8.      That the Respondent Grandparents shall inform the Appellant Mother, in writing, of any change to their residential address or contact telephone number within two days of such change occurring.

   9.      That the Respondent Grandparents shall forthwith notify the Appellant Mother as soon as reasonably practicable of any accident or emergency involving the children or either of them which involves medical treatment or hospitalisation whilst the children are in their care.

   10.    That the Respondent Grandparents be restrained from providing the children, or either of them, with alcohol during the time the children spend with them in accordance with these Orders.

   11.    That each party be restrained from denigrating or verbally abusing the other party in the presence or hearing of the children and each party shall do all reasonable things necessary to ensure that no other person denigrates or verbally abuses either of the parties in the presence or hearing of the children.

   12.    That the Respondent Grandparents be restrained from entering upon, remaining upon, or loitering near the premises situate at and known as [M Street] in the State of New South Wales or any other premises at which the Appellant Mother may be residing (save for the occasions where the Respondent Grandparents, or either of them, are returning the children to the Appellant Mother’s care at the conclusion of the time the children spend with them), and the Respondent Grandparents shall take all reasonable steps to request and ensure that all other family members do not enter upon, remain upon, or loiter near the premises situate at and known as [M Street] in the State of New South Wales or any other premises at which the Respondent Mother may be residing.

   13.    That the Respondent Grandparents be restrained from intimidating, harassing or threatening the Appellant Mother, the children, the Appellant Mother’s partner and her extended family.

   14.    That the Respondent Grandparents be restrained from discussing these proceedings with the children.”

2. That in the first week of the school holiday periods other than the Christmas holiday period the children spend time with the paternal grandparents from 10am Thursday to 3.30pm Saturday.

3. That in the Christmas holiday period the children spend time with the paternal grandparents as follows:-

   a)In the second week of the holiday period from 10am Thursday to 3.30pm Saturday; and

   b)In the fourth week of the holiday period from 10am Thursday to 3.30pm Saturday; and

   c)In the last week of the holiday period from 10am Monday to 3.30pm Wednesday.

4. That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

5. That by consent, these proceedings are transferred to the Federal Magistrates Court, Wollongong.

IT IS NOTED that publication of this judgment under the pseudonym Rand & Counter and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 903 of 2009

MS RAND

Applicant

And

MR COUNTER

Respondent

And

MRS COUNTER

Second Respondent

REASONS FOR JUDGMENT

1. In this matter, which is a sad matter in many ways, the mother has appealed from orders by a local court magistrate of an interim nature providing the paternal grandparents with contact between the children involved on three weekends in every four.

2. On one weekend that contact is to be from 11 am on Saturday to 2 pm on Sunday, and on two weekends it is to be only on Sunday from 1 pm to 7 pm, in circumstances where the children's father died in 2007.

3. The children are aged seven and five respectively.  The five year old is about to start kindergarten.

4. Currently, all parties live in the M area.

5. The mother wants to move to the B area within the next few days because her male friend has obtained a job there.  It is to be noted the mother says she does not live with him but intends to move in with him when they move to B.

6. The mother is only 27 years old.  Her male friend is 26 years old.  The grandparents are in their 50s.

7. The evidence before me is not very complicated.  It is that after the death of the mother's de facto husband, the father of the children, she and the children grieved; in fact, the children are still receiving counselling for their grief.  Not long ago, the mother realised that the time for grieving, for her, should end, and that she should get on with her life. She has decided to do that.

8. Until this occurred, she was spending a great deal of time with the paternal grandparents and relying upon them. The children, of course, were spending an equal amount of time with them, if not more time. 

9. There is no suggestion that there is anything wrong with the children psychologically, apart from that they suffer grief from the loss of their father, and there is no suggestion that the children have other than a very good relationship with their grandparents and mother.

10. The reality of the situation is that the mother, on deciding to become more independent, confronted the resistance of the paternal grandparents to her doing this.  She regards them as controlling, and, as a result of that, there has been some conflict between them. Whereas the relationship between the grandparents and the mother was very good, it is no longer able to be described in that way.  At best, it could be called strained.

11. The mother's case is that the grandparents have tried to control her and have attempted to interfere in her parenting of the children to a very substantial extent.  I don't know, and I am not in a position in interim proceedings to determine, where the truth lies.

12. The grandparents say that they wish to be, and should be entitled to be, in the position of surrogate parents because of the death of their son.  That seems to me to place more value, and too much value at that, on their needs, rather than the children's needs.  The reality is the children are mainly cared for by a parent and the other parent has died which while in a good relationship with the living parent. The surviving parent does the parenting in place of the deceased one to a large degree. That is normal, and from the children's point of view will be felt to be normal by them.  Grandparents, after all, are not parents.  Nature provided a different role for them.

13. There is no question, and the mother does not dispute, that the children are loved by their grandparents; that the grandparents have the children's best interests at heart; and that the children, with some reservations, enjoy the company of their grandparents, but she disputes their entitlement to have the control that they seek to prevent her from moving to B, as she seeks; or, as she seeks, by wishing to take the children there, assuming that she will not go if she is not allowed to take the children, which I assume. She particularly resents the grandparents' unwillingness to accept that she is entitled to get on with her life. 

14. She says that the grandparents have even gone to the extent of trying to make her restrict her boyfriend's contact with the children, something which is out of touch with reality and has been regarded in that way for at least 20 years.

15. The grandparents wish to maintain the orders that the local court magistrate made. 

16. The mother seeks, somewhat generously it seems to me, to have in their place orders that the children spend time with the grandparents on one weekend each calendar month, namely, the second weekend, from Saturday at 10 am to Sunday at 5 pm.  She also is prepared to allow the children to spend time with their paternal grandparents on Christmas Day from 6 pm until 11 am on Boxing Day, from 2010 onward in each alternate year.

17. The solicitor appearing for the grandparents asked, and it seems a reasonable request, that I make provision for the children to spend more block time with the paternal parents in school holiday periods.  He asks for half of each school holidays.

18. I am of the view that, particularly for the younger child, half of the holidays with the grandparents is far too much.  The younger child, who has just turned five, is highly unlikely to be able to cope with more than two or three nights away from his mother, particularly as he is still suffering from grief due to the loss of his father.

19. In all of the circumstances, I think it is in the children's best interests to make an order for some block contact between them and the grandparents at Christmas and in other school holidays, but not as much as the grandparents seek.

20. In coming to any conclusions that I shall come to, I have considered all of the provisions of the Act and, in particular, the provisions of section 60CC.  On the facts that are before me, few of those provisions apply.  In fact, most of those provisions apply to parental contact, rather than grandparental contact.  I have mentioned the facts that could apply to any of the provisions.

21. It is my view that the main aspect of the case is that the children have a good relationship with their grandparents, but it is no longer perfect.  The mother is wishing to move to B and in interim proceedings should not be prevented from moving. The type of contact that has already been ordered is completely impractical in those circumstances, seeing that both children will be attending school, and travelling time between B and M is two and a half hours each way.

22. I am of the view that the type of contact that the mother asks the Court to order during school term is appropriate for the children at their ages in all of the circumstances.

23. However, I am of the view that there should be additional contact, contrary to the mother's wishes, in school holiday periods, but not much additional contact. 

24. The younger child is only five.  He is a boy.  Boys are normally slightly less mature than girls and less capable of being away from their mother for lengthy periods; that is, lengthy periods for them, not lengthy periods to adults. 

25. I think it would be appropriate to permit the children to spend three days in each of the shorter school holiday periods with the grandparents, including two nights. 

26. In the event that the parties cannot agree on those days, the appropriate days, in my view, are from Thursday to Saturday in the first week of the school holiday periods, commencing at 10.30 am on Thursday and ending at 3.30 on the Saturday; and in the Christmas holiday period, three such periods. 

27. In the event that the parties cannot agree on those periods, they are to take place in the second week of the school holiday from Thursday to Saturday, in the fourth week of the school holidays from Thursday to Saturday, and in the last week of the school holidays from Monday to Wednesday, in each case commencing at 10.30 am and ending at 3.30 pm.

28. Other orders are sought by the mother.  The grandparents do not oppose those, so I shall make them.

29. I note that the mother includes in the orders she suggests the ability of the grandparents to be able to ring the children every day at a reasonable time.  I commend her for her attitude; in fact, I must say that her attitude to these proceedings and the attitude shown both by the orders she seeks and by her affidavit material infers that it is the children's best interests that she has at heart, apart from a wish to get on with her own life, something that she is entitled to do, and something which will ultimately and immediately improve the children's welfare.

30. It concerns me that the grandparents were seeking to restrict the mother's ability to get on with her life by restricting where she can live and trying to restrict her relationship with her boyfriend, if that is what they did.  But some indication that that might be the case - and therefore is more likely than not to be ultimately found to be the case, in the absence of evidence which would allow me to make any finding - is that they persisted in wishing to see the children on three weekends out of every four despite the fact that the children will both be attending school, and that will leave the mother with relatively little relaxation time with the children.

31. I shall make orders in accordance with those that the mother seeks, including the Christmas Day order, together with the additional holiday period orders that I have said.

32. By consent, I shall transfer this matter to the Federal Magistrates Court, Wollongong.

33. I note that nothing in my orders is intended to vacate the mention date that is set in the Federal Magistrates Court for the hearing of this matter.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              2 February 2010