D and S

[2007] FCWA 83

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: D and S [2007] FCWA 83

CORAM: MARTIN J

HEARD: 2 & 3 APRIL 2007

DELIVERED : 3 JULY 2007

FILE NO/S: PT 2562 of 2006

BETWEEN: D

Applicant

AND

S
First Respondent

AND

S
Second Respondent

Catchwords:

CHILDREN - with whom a child spends time - mother deceased - application by maternal grandmother

Legislation:

Family Law Act 1975 - s 60B, s 60CA and s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

First Respondent : Ms Brownlie

Second Respondent : Ms Brownlie

Solicitors:

Applicant: Self Represented Litigant

First Respondent : Paterson & Dowding

Second Respondent : Paterson & Dowding

Case(s) referred to in judgment(s):

Bright and Bright v Bright and Mackley (1995) FLC 92-570

Grant and Grant (1994) FLC 92-506

Stevens and Lee (1991) FLC 92-201

1The issue for determination is the application filed by the maternal grandmother, [Mrs D], on 17 February 2006, seeking parenting orders in relation to her granddaughter, [Sarah], born [in] March 2001. The applicant’s daughter, [Sally], who was [Sarah]’s biological mother, died on 22 November 2001. The child’s natural father is [Brian] who lives in [the Eastern States], and has had little involvement with the child. He was not involved in these proceedings.

2The applicant lives in [the Eastern States] while her granddaughter now lives in Western Australia. In summary, the applicant seeks to have ongoing contact with the child and some control over her inheritance, and the respondents strongly oppose this, and seek an order for costs.

3Shortly after the death of [Sally], [Sarah] came to live with the respondents, [Mrs S] being a cousin of [Sally].

4There have recently been separate proceedings before me in relation to the respondents’ application to adopt [Sarah]. On 2 March 2007, I ordered that [Sarah] be adopted by the respondents. The applicant had opposed the adoption application made by the respondents because she was concerned about the severance of her legal ties with [Sarah], and the security of [Sarah]’s inheritance.

5The applicant’s application for parenting orders was originally filed on 17 February 2006 in the Federal Magistrates Court in [Eastern States]. [Mrs S] and [Mr S] responded by filing an application on 30 March 2006 in the Federal Magistrates Court of Australia in [the Eastern States] seeking that the applicant’s application filed 17 February 2006, be dismissed. The matter was transferred to the Family Court of Western Australia on 3 April 2006. [Mrs S] had by then incurred the trouble and expense of travelling to [the Eastern States] twice, for a conference and a hearing.

6The last minute of final orders sought by the applicant dated 16 March 2007, sought the following:

1.That the Grandmother [Mrs D] be at liberty to exercise contact with the child [Sarah] as follows;

1.1On three (3) occasions each calendar year for a period of two (2) weeks;

1.2That on even numbered years one two week periods as referred to in paragraph 1.1 of these Orders will include Christmas Day, Boxing Day and New Years Day;

1.3That on odd numbered years one two week period will include Easter Holidays;

1.4For the entirety of the mid year school holidays every year;

1.5For the entirety of the September/October school holidays every year.

2.Notwithstanding the provisions of paragraph 1 of these Orders the Grandmother shall:

2.1 also exercise contact with the child as follows;

2.2By telephone each Wednesday at 6:00 pm with the grandmother to ring the child;

2.3By telephone on the child’s birthday with the grandmother to ring the child;

2.4By telephone on the grandmother’s birthday with the carer to ensure the child telephones the grandmother;

2.5By telephone on Mother’s Day with the carer to ensure that child telephones the grandmother;

2.6On odd numbered years the grandmother to telephone the child on Christmas Day at 9:00 am W.S.T.

3.That without limiting the carers’ responsibility the grandmother be informed of any specific issues affecting the child. For the purpose of these Orders, a “specific issue” is:-

3.1Any medical or health matters affecting the child;

3.2Matters relating to the education of the child; including but not limited to, the choice of school and curriculum and the grandmother to be supplied with school reports and school photographs;

3.3Disciplinary matters other than of a trivial nature;

3.4Matters concerning the social development and sporting activities of the child;

3.5Matters concerning the religion or the faith of the child;

3.6Any intended change of place of domicile.

4.That the carer and the grandmother shall at all times keep each other informed of their telephone numbers (landline and mobile) and address and shall notify the other in writing prior to 7 days of any such change.

5.That the shares in [the named] residence be liquidated and the proceeds placed in a Solicitor’s Trust Fund of the [S family]’s choice.

6.That the industrial/mining shares to be held in same Solicitor’s Trust Fund of the [S family]’s choice.

7.That the [S family] provide information of any dividends paid by the companies for the shareholdings transferred in last quarter of 2001 to first quarter 2007.

8.That the [S family] prove information of the shares and dividends which have been liquidated since last quarter of 2001.

7In closing, the applicant admitted this was an “ambit claim”, and proposed alternatively that the Court allow her to have contact with [Sarah] by telephone on a weekly basis for the next six months, and for the matter to be reviewed at the end of the six months.

8In response, the respondents filed a Minute of Proposed Orders on 23 March 2007, seeking the following orders:

1.The application filed by the applicant in the Federal Magistrates Court of Australia in [the Eastern States] on 17 February 2006 be dismissed.

2.The orders sought by the Applicant in the Minutes dated 16 March 2007 be dismissed.

3.The applicant pay the costs of the first and second respondents of and incidental to these proceedings on an indemnity basis.

4.The applicant be restrained by injunction from instituting further proceedings in relation to the child [SARAH] born [in] March 2001 without first attending mediation.

5.In the event that the applicant institutes further proceedings in relation to the child [Sarah]:

(a)There be a preliminary hearing to determine the threshold issue of whether there has been a change in circumstances; and

(b)The applicant be required to deposit into a bank account in the name of the applicant and the first respondents the sum of $20,000, with such sum to be held as security for costs.

Background

9As previously mentioned, [Sarah] was born [in] March 2001. Her biological mother, [Sally] died on 22 November 2001, in [the Eastern States]. [Sarah]’s biological father, [Brian] has had little contact with [Sarah] since birth and he subsequently agreed, in liaison with the applicant, that [Sarah] be placed in the care of the respondents.

10Orders were made on 18 December 2001 by the Family Court of Australia in [the Eastern States] for [Sarah] to reside with the respondents in Western Australia. The respondents were to have joint responsibility for the child’s day to day care and long term care, welfare and development in consultation with the child’s father, who was to have contact with the child as agreed. There was no order made for contact by the applicant. [Sarah] was then just under nine months old. The respondents have been wholly responsible for the care of [Sarah] since this time and, since 2 March 2007, have been the adoptive parents of [Sarah]. It is not in dispute that [Sarah] is progressing very well under their care.

11[Mr S] is 35 years of age and is a [specialist technician]. [Mrs S] is 32 years of age and is a [language teacher]. The respondents married [in] March 1996, and there are two children of the marriage, [Diana], aged nine years, and [Eric], aged eight years. [Mrs S] is a first cousin of [Sarah]’s biological mother [Sally] and therefore [Sarah], by birth, is her first cousin once removed. The applicant in these proceedings is [Mrs S]’s aunt.

12The relationship between [Mrs D] and [Mrs S] is poor, as is the relationship between [Mrs D] and other members of the family. Since [Sarah] has been in the respondents’ care, [Mrs D] has had very little contact with her.

13There was a short visit in Perth in 2003. In October 2004, [Mrs D] wrote a letter to [Mrs S] advising her that she intended to travel to Perth and she wanted to take the children to the zoo with a friend – she had annexed a copy of a lengthy disturbing letter which she had previously sent to [Mrs S]’s parents, and which is referred to subsequently. [Mrs S] did not want [Mrs D] to take the children as she did not know the friend, and she was also concerned the friend had a present for [Sarah] when there was no reason for this. She had also become concerned about some statements the applicant had made in the letter she sent to [Mrs S]’s parents, in particular, she had written that she wondered why her God had not let her die so she could be with [Sally], and that she also supposed she was suffering from post traumatic stress. [Mrs S] informed [Mrs D] that she did not want her to take the children to the zoo, but rather she could visit the children at her house. According to [Mrs S], [Mrs D] insisted on taking the children and told [Mrs S] that she had 10 days to agree otherwise she would apply for a court order. Subsequently, [Mrs D] agreed to come to the respondent’s home to visit the children for a short time. This was the last occasion on which the applicant has seen the child.

14[Mrs S]’s evidence is that, since then, she has not sent the child any Christmas presents, as she had previously done. There had been no request for any contact in 2005.

15In February 2006, [Mrs D] again attempted to see [Sarah] by advising [Mrs S] by email that she wanted [Sarah] to stay overnight with her on a weekend in February and a weekend in March at the same friend’s place in Perth. [Mrs S] refused as she felt [Sarah] was too young, being just under 5 years, for an overnight visit. She said she told [Mrs D] that she could come over again to their home to see the children but that she would not be home on one of the weekends she proposed as the family had commitments. The applicant later informed [Mrs S] that she had re-arranged her plans and instead she wanted to deliver a package for the children on 24 February 2006. According to [Mrs S], she told [Mrs D] that they would not be home on that particular day but she could leave the package on the porch of their house. When [Mrs S] arrived home that day there was no package on the porch.

16[Mrs S] was then, on 8 March 2006, served with the applicant’s application seeking orders for contact with [Sarah]. There had been no attempt to negotiate any formal arrangements.

17As to the orders sought by [Mrs D] regarding management of [Sarah]’s inheritance, administration of [Sally]’s estate was granted to [Mrs S] on 22 October 2002. The respondents claim that the applicant is only interested in the money [Sarah] inherited, while [Mrs D] claims that the respondents have mishandled [Sarah]’s inheritance. The issue is referred to at some length in my judgment on the adoption application, which all parties have received.

Relationship between the parties

18It is important to consider the background to the relationship between the Applicant and the Respondents, and other members of their family, as it is the main reason the respondents do not want [Mrs D] to have any contact with [Sarah]. The tension between the parties seems to have initially been caused by relatively minor incidents, but obviously these problems have been exacerbated by the ongoing legal proceedings.

19[Mrs S]’s evidence is that she developed a close relationship with [Mrs D] when she was a teenager while the applicant was staying with her family in [the country]. She believes it was during this time that [Mrs D] manipulated her, and made her feel as though she was an outsider in her family, particularly in relation to believing that her parents loved her sister, [Katy], more. Consequently, she blames the applicant for resentment she felt as a teenager towards her parents and her sister.

20[Mrs S] says her supportive relationship with [Mrs D] began to change after [Sally]’s death when she became the administrator of [Sally]’s estate and [Sarah]’s carer. She believes the applicant become more authoritarian and demanding. In particular, she stopped treating her as an equal. [Mrs S] says that she began to realise that [Mrs D] had been controlling and manipulating her for a number of years.

21The complete breakdown of the relationship between [Mrs D] and [Mrs S] and her family seems to be attributable to a single incident. In July 2004, [Mrs S]’s sister, [Katy], her husband and their two children stayed with the applicant and her partner, [Edward], at their house in [the Eastern States] while on a holiday around Australia. During their stay, which had gone very well to that point, there was an incident involving [Katy]’s husband, [Peter] disciplining their son, [Timothy] for not sharing his Lego with his sister, [Helen]. The applicant says [Peter] gave [Timothy] “a hiding” in the form of four “hefty swipes”, which she believed to be child abuse. She also considered that an injustice had occurred to [Timothy] in the treatment he received as opposed to that of his sister [Helen], who, according to the applicant, ruined the game he was playing. This incident, on the account of [Katy], did not cause a problem at the time it occurred, but created a huge rift between the parties later.

22[Mrs S] and her family maintain that [Mrs D]should have raised the incident with [Katy] and [Peter], either during their stay with her, or when they returned to Perth. [Mrs D] says that she did not have the opportunity to discuss the matter with [Katy] and [Peter] while they were staying with her, but she did not want to wait three months until they returned to Perth from their holiday around Australia. Instead [Mrs D] telephoned [Mrs S], told her about the incident, and expressed her intention to write a letter to her brother and sister-in-law, [Mrs S] and [Katy]’s parents. [Mrs S] told her to leave it alone and rather she would monitor the situation when the family returned from their holiday around Australia. During this telephone conversation, the respondents believe that [Mrs D] called them child abusers. [Mrs D] says that she simply telephoned [Mrs S] to enquire whether the respondents practised the same form of punishment on their children, and if so whether they treated [Sarah] in the same manner. The applicant denies calling the respondents’ child abusers, but rather maintains that she said “if you were treating your children that way then in her opinion that would constitute child abuse”.

23Following the telephone conversation, [Mrs D] wrote a 27 page letter to her brother and sister-in-law detailing the various injustices that have occurred to her throughout her life, including being the victim of domestic violence. This letter caused further problems, as the respondents were concerned and disturbed by certain statements made by the applicant in the letter. This, as mentioned above, deterred them from wanting the applicant to spend time with [Sarah].

24The respondents are also concerned about [Mrs D]’s relationship with other members of her immediate family. [Mrs D] does not have a close relationship with her three surviving children and is totally estranged from two of them, her son, [Richard], since 2001, and her daughter, [Anna], for the last 15 years. [Anna] lives [overseas], and [Mrs D] has had no contact with her children.

25[Mrs D] met her son [Stuart]’s children for the first time this year, with the exception of his eldest son whom she had met approximately seven years ago when he was a baby. [Stuart] is [an accountant], living in Perth. The respondents question the applicant’s desire to become involved in [Sarah]’s life as she has never made an application, or apparently even a formal request, for contact with her other grandchildren.

26[Richard] also gave evidence at the trial that [Sally], the child’s natural mother, had then not wanted their mother to be a part of [Sarah]’s life. [Mrs D] states in her affidavit filed on 28 November 2001 in the Family Court of Australia proceedings in [the Eastern States], that she had “a falling out” with [Sally] and had not had much contact with her in the last six months of her life, and that her relationship with [Sally] had been rocky and tenuous.

27At trial, the applicant’s evidence was that she had been restricted in the times she could see [Sally] because she worked seven days per week from as early as 5:00 am until at times as late as 10:30 pm at the [hostel] she ran with [Edward]. She also says that [Sally] did not like coming to her house as she has a guard dog, and was afraid of dogs. However, they would meet up occasionally for coffee or simply see each other in the street while she was shopping for supplies for the [hostel]. The last time the applicant says she saw [Sally] was in October 2001.

28[Richard] disagrees with his mother’s assertions. He says, from his experience of working at the [hostel], that the applicant did not work the hours she claims nor did she see [Sally] or [Sarah]. He believes that if [Sally] was seeing their mother in the six months before she died, then he would know because they regularly had conversations about their mother. [Richard] also says that [Sally] had told him that she did not want their mother to have anything to do with [Sarah] because she did not want negative and destructive influences in [Sarah]’s life.

29[Mrs D] says the only other person that could verify her relationship with [Sally] would be [Edward], but he was not called as a witness. In any event, the events of that time are of limited significance, but I do accept that the applicant did not have a close relationship with [Sally] at the time of her death.

30The respondents feel that the applicant has caused them significant stress in their lives. [Mr S] says that [Mrs D]’s interference with their adoption of [Sarah] and the proceedings she instituted in relation to contact with [Sarah] has affected his work, family life and relationship with [Mrs S]. It has caused him such stress that he has been diagnosed with depression and is taking anti-depressants and attending counselling. [Mrs S] also states that she has been attending counselling since August 2006, for her anxiety and depression caused through [Mrs D]’s actions in relation to [Sarah]. [Mr S]’s feelings towards the applicant are such that he does not believe he could re-establish a relationship with her in the future, and he does not consider that he would be in a position to facilitate any contact between her and [Sarah].

31The respondents have also had to bear the very substantial legal and other costs of the proceedings in [the Eastern States], and Western Australia, which has placed further strain on the family.

[Sarah]’s inheritance

32[Sarah]’s inheritance was predominantly used to contribute to the [S family]’s mortgage when they purchased a larger home in [the hills], they say to properly accommodate their increased family after [Sarah]’s arrival. [Sarah] had also received approximately 15,000 shares in a company called [HRL]. The [HRL] shares are held in trust for [Sarah], and as the company has diversified, [Sarah] has also acquired shares in a company called [PNL].

33The adoption of [Sarah] by the respondents does not affect her inheritance as she has a vested interest in the deceased estate. Her share of the estate is held by [Mrs S] on her behalf until she turns 18 years. After I expressed concern regarding the security of [Sarah]’s inheritance at a hearing in December 2006, the respondents signed a declaration of trust, on 11 January 2006, relating to [Sarah]’s interest in the property. At my request, a caveat was lodged over the property.

34In my judgment relating to the adoption of [Sarah], I said that while I considered the arrangements for investment of the funds to be somewhat unusual, there was no evidence that [Sarah]’s interest had been prejudiced in any way by them. However I accepted that the arrangement should have been more transparent, and appropriately documented, and that the management of the investment was an appropriate issue to be raised and addressed.

35The applicant’s trial affidavit filed on 26 March 2007, appears to focus more on [Sarah]’s inheritance, rather than her relationship with the child. She states that reason for the respondents adopting [Sarah] is her inheritance and that this is also the reason behind their refusal to allow the applicant to see [Sarah]. She believes that the respondents were careful and calculating in how they used [Sarah]’s inheritance and have shown they cannot be trusted with it.

36There was further evidence at trial about how the investment in the respondents’ home had been arranged.

37The respondents insist that if they require the money for [Sarah] they will be able to draw down on the equity in their home. However, the respondents do not want to use [Sarah]’s money for her education, rather they intend to maintain [Sarah]’s money for when she is older. They intend to, themselves, meet the costs of providing for [Sarah]. [Mrs S] said that if they had to sell their house they would not use [Sarah]’s money in the purchase of the new house rather they would invest the money elsewhere. However, if the respondents still had the same house and [Sarah] required the money they would re-finance the mortgage.

38[Mrs S] denies [Mrs D]’s claim that only a select few people knew about the inheritance. [Mrs D] claims that it was agreed between [Mrs S] and herself that no one else would be told of the inheritance so as to keep [Sarah] “normal”. This would ensure that [Sarah] would be treated the same as the other [S family] children and it would minimise the risk of any other person seeking care of [Sarah] for the purpose of managing her inheritance. The applicant believes that because she was the only other person who knew about the inheritance she was not notified about [Sarah]’s adoption and further if she died [Sarah] would not have known or received the benefit of her inheritance. [Mrs S] deposes that her immediate family, [Mr S]’s parents, the applicant’s sister and her sons, [Richard] and [Stuart], were all aware of [Sarah]’s inheritance. She denies that [Sarah]’s inheritance was ever a secret.

39From the evidence of the respondents during the trial, and the further disclosure of information relating to management of [Sarah]’s inheritance, I am satisfied that [Sarah]’s inheritance is secure for her future. The respondents have clearly expressed their intentions in relation to the management of the inheritance, and have obtained advice accordingly. In any event, they have supported [Sarah] for years without financial assistance from anyone.

40While I consider I probably have jurisdiction to do so, I am not prepared to make any orders in relation to the administration of the estate – it is now really not the applicant’s concern.

The legal position – parenting orders

41As [Sarah]’s grandmother, the applicant may make an application for a parenting order in relation to [Sarah] pursuant to s 65C of the Family Law Act 1975. The court has the power to make such parenting order as it thinks proper pursuant to s65D(1). The proceedings are pursuant to the Family Law Act 1975, as the parties are residents of different States.

42Although, generally, it is in a child’s interests to have contact with a grandparent, there have been cases where a grandparent has not been permitted to have contact with a child because of the poor relationship between the caregiver and the grandparent.

43In Stevens and Lee (1991) FLC 92-201, a grandmother who had longstanding hostility with her grandson’s mother sought contact with the child. Kay J held that although a relationship should be encouraged between the two, he did not think the benefits the child would receive from direct contact would outweigh the trauma and difficulties which would be bought about by his mother’s attitude, whether that attitude was well held or not.

44In Grant and Grant (1994) FLC 92-506, Purdy J held in that case that if the Court concludes that an “access” order would have an effect on the residence parent which would significantly impact on the emotional and physical support the residence parent could provide to the child, then the Court must take that into account in assessing whether “access” is for the benefit of the child.

45There have since been subsequent amendments to the Family Law Act 1975 made by the Family Law Amendment (Shared Parental Responsibility) Act 2006 which commenced on 1 July 2006. The amendments emphasise the importance of child’s relationship with other significant people in their lives, such as their grandparents. Section 60B(2)(b) states that children have a right to spend time on a regular basis with, and communicate on a regular basis with other people significant to their care, welfare and development such as grandparents.

46In determining whether or not to make a particular parenting order in relation to a child, s 60CA provides that the court must regard the best interests of the child as the paramount consideration. Section 60CC sets out the “primary considerations” and “additional considerations” the court must take into account when determining what is in the best interests of a child.

Primary Considerations

47The primary considerations are:

48the benefit of the child of having a meaningful relationship with both of the child’s parents; and

49the need to protect her from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

50The first primary consideration is not of relevance to this determination.

51As to the second, the respondents have raised a number of concerns, including both potential physical and psychological harm, if the applicant was granted contact with [Sarah].

52In relation to physical harm, they, and [Richard] in particular, expressed concern about the applicant’s dog, claiming it was dangerous. The applicant said that the dog was not a threat, but rather it was trained and acted as a guard dog during their time at the [hostel]. Concerns were also expressed about the applicant’s partner of 11 years, [Edward], who is a [war veteran] who had some psychological problems.

53The objections to [Edward] and the dog are more of relevance in showing the extent of issues the respondents are prepared to raise to stop the applicant seeing the child. In any event, the issue of safety does not arise as, in any event, I am not presently prepared to permit the applicant to have [Sarah] in her physical care, either here or in [the Eastern States].

54[Mrs S] also raised other concerns for [Sarah]’s safety. She says she is aware that during the applicant’s “custody” battle with her former husband, back in the 1980’s, the applicant abducted her children despite custody being award to her former husband. She also says that when [Sarah] was placed in [Mrs D]’s care by the police after [Sally]’s death, the applicant abducted [Sarah] so that her sons, [Stuart] and [Richard], did not know where [Sarah] was. [Mrs S] says that if the applicant is permitted to spend time with [Sarah] she would be in constant fear that she would abduct [Sarah]. [Mrs D] denies these allegations. She says that she did not abduct her own children as there was no court order in place at the time and further she did not abduct [Sarah] after [Sally]’s death but rather she was acting under her solicitor’s instructions to stay where she was.

55The respondents and other family members have expressed concerns that the applicant will psychologically harm [Sarah]. They believe that [Mrs D] will manipulate [Sarah] into believing that she is different from the respondents’ family, in particular [Diana] and [Eric], as she is adopted. [Mrs S] is particularly concerned about this as she believes the applicant manipulated her as a teenager and caused her to resent her parents and sister and the relationship they shared. She says that she has had to seek counselling in relation to the applicant’s impact upon her and she does not want this to happen to [Sarah].

56[Richard] also claims that his mother is a negative and destructive person and this was largely the reason why [Sally] had expressed to him that she did not want their mother in [Sarah]’s life. He says that during his childhood his mother often talked about his father in a derogatory manner. During the trial, the applicant admits that she may have spoken in a derogatory manner to her children about their father but only when she says he would beat them or when they came home and told her that he had beaten his second wife.

57I accept that there is a risk of possible denigration of the respondents by the applicant if [Sarah] is in their care.

Additional considerations

58I have not referred to any consideration which is irrelevant in the present circumstances.

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give the child’s views.

59[Sarah] is only six years of age, and her views have not been sought. She has had minimal contact with her maternal grandmother during her life, having only seen her a few times since she has lived in Western Australia. This contact has generally only lasted a few hours and has never been alone. The last time the applicant saw [Sarah] was in 2004. According to [Mrs S], at the last meeting, [Sarah] said to her grandmother that she did not want her to take her away.

The nature of the relationship of the child with:

i.each of the child’s parents; and

ii.other persons (including any grandparent or other relative of the child).

60There is no doubt that [Sarah] has a loving relationship, not only with the members of her immediate family, but also other members of her extended family. She does not have a meaningful relationship with her maternal grandmother.

61The applicant states, in an affidavit filed on 28 November 2001, that she had seen [Sally] and [Sarah] in the initial months after her birth and consider she has developed a relationship with [Sarah]. This relationship is denied by the applicant’s son, [Richard]. Regardless of whether or not the applicant had developed a relationship with [Sarah] at that stage, she has only seen [Sarah] on two occasions since she was nine months old. The applicant has also had some minimal telephone contact with [Sarah] and initially sent her birthday and Christmas presents.

62In Bright and Bright v Bright and Mackley (1995) FLC 92-570 at 81,658, Treyvaud J acknowlged the importance of child’s bond with its wider family;

“…it is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extend and supportive family.”

63It is evident that some of [Sally]’s immediate family, being her sisters and brothers are involved in [Sarah]’s life. I do not doubt that, even without her maternal grandmother in her life, [Sarah] would grow up feeling part of an extended and supportive family. However, it is important that [Sarah] has some form of knowledge of, and contact with, her grandmother. I do not propose that such contact be intrusive so as to create ongoing tension in [Sarah]’s family.

The willingness and ability to facilitate and encourage relationships.

64Clearly, the respondents are not prepared to foster the child’s relationship with the applicant, they say for good reason.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

i.either of her parents; or

ii.any other child, or other person (including any grandparent or other relative of the child), with whom she has been living.

65The respondents appear to be a close knit family. According to the respondents, [Diana], [Eric] and [Sarah] all attend the same school and are rarely separated. They believe that it would be very distressing for [Sarah] to be away from her family.

66[Sarah] is only six years old and she does not know her maternal grandmother. Under these circumstances, it is not in her interest at this time to be separated from her parents, and her siblings, to stay with her grandmother in [the Eastern States], nor to be taken on outings away from her immediate family in Western Australia.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

67The applicant lives in [the Eastern States], while the respondents and [Sarah] live in Western Australia. This obviously poses difficulties if any orders relating to physical contact are made. The applicant made no proposal for travel in her affidavits filed in relation to the proceedings. She did, at trial, state that it would be possible for [Sarah] to travel unaccompanied by aeroplane to visit her.

68I do not accept, at this stage, that it is in [Sarah]’s interests to travel to [the Eastern States] to see her grandmother.

The capacity of:

i.each of the child’s parents; and

ii.any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs.

69It is clear that the respondents are able to provide for the needs of [Sarah], including her emotional and intellectual needs. There has been no evidence to the contrary.

70The respondents question the applicant’s capacity to provide for the needs of [Sarah]. They are sceptical about her motives for becoming involved in [Sarah]’s life, and they are wary of the psychological impact she may have on [Sarah]. [Mrs S] is particularly concern that the applicant will manipulate [Sarah] by telling her that she is not the same as [Diana] and [Eric] and therefore is not loved in the same way as them. [Sarah]’s uncle [Richard] also had this fear based on the way he says his mother behaved during his childhood.

71[Mrs S] has also express concern as to whether [Mrs D] was in a proper state to take her children after she read statements the applicant made in the letter she wrote to [Mrs S]’s parents. The applicant says her statement referring to why her God did not let her die was a philosophical question as to why God would take her daughter who had a small child instead of her. She also says that she received counselling after [Sally] died and went on medication. She is no longer on the medication.

72I have some concerns for the applicant’s ability to care for [Sarah] emotional needs, having regard to the fact that her conduct and attitude in the past has led to her being estranged from almost all her family.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

73It is apparent that the respondents’ attitude to the responsibilities of parenthood are excellent, and [Sarah] has been well cared for in every respect.

74While their attitude to the applicant is quite harsh and uncompromising, to a considerable extent, this is understandable in the circumstances. However, I was unimpressed by their quite rude attitude to the applicant during the hearing before me, and whatever the legal requirement, they should have given the applicant notice of their intention to adopt.

75The applicant is clearly not focused on the child’s interests, at the least, by involving the child’s adoptive parents in lengthy, difficult and expensive proceedings, which she does not seem to realise could have a negative impact on the child, and by the method in which these proceedings have been conduct. She has shown no sensitivity, and should bear much of the responsibility for the estrangement from her family.

76It is clear that all parties have lost all sense of proportion about the case, but I am reasonably satisfied that, so far, there has not been a significant effect on [Sarah].

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

77It was not suggested that [Sarah] has any special characteristics to be taken into account. Despite her tragic start in life, she is, by all accounts, health, happy and progressing very well.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

78I am concern that regardless of any order I make there will be the possibility of the institution of further proceedings in relation to [Sarah]. This is largely due to the hostile nature of the relationship between the parties.

Any other fact or circumstance that the court thinks is relevant.

79Any other relevant fact or circumstance will be referred to in my conclusion.

Conclusion

80Fortunately, [Sarah] has many people that love and care for her, but it is very sad there is such a rift between her maternal grandmother and other members of her family, especially as her natural mother is deceased, and her natural father is not really involved in her life.

81Presently, [Sarah] has virtually no relationship with her maternal grandmother, but it is not in her interests to have no opportunity to know about her, and possibly have the opportunity to have some relationship in the future, even though she has other extended family. Hopefully, over time, things will settle down and the situation will improve, but having regard to the relationship that currently exists between the parties, and other significant people in [Sarah]’s life, any regular contact between [Sarah] and her grandmother may well create further tension and difficulties.

82As there is history of conflict surrounding the applicant and the other family members in [Sarah]’s life, any orders in relation to contact with her grandmother have to be sensitive to the impact it will have on her family and consequently on her.

83The respondents are particularly concerned about the negative impact the applicant may have on [Sarah]. [Mrs S] has a strong belief that no restraining order that prevents [Mrs D] from denigrating other people in [Sarah]’s life would stop her from doing so.

84I have referred to the fact that all parties have lost their sense of proportion in these proceedings. I am not satisfied that the applicant has pursued this application entirely out of concern for [Sarah] and it is difficult to understand why she has not made more of an effort to have a relationship with her other grandchildren.

85I am not satisfied that it is in [Sarah]’s best interests to permit more than very limit contact to keep open the lines of communication with her grandmother, as any benefit she will receive from an extended relationship does not outweigh the effect it will have on other significant people in her life, namely her adoptive parents, who have full parental responsibility for her.

86At this stage, any contact the applicant is to have with [Sarah] should be very limited, even on the applicant’s own case. At the end of the proceedings, the applicant suggested a compromise of weekly telephone calls for six months and for the matter to be reviewed at the end of such time. However, [Sarah] presently does not have a relationship with her grandmother, and there has been no history of regular telephone calls in the past. For a time, having regard to [Sarah]’s age, the respondents would be involved in the calls, and this would place further strain on the family.

87I am not satisfied that direct contact between [Sarah] and the applicant is appropriate at this time. However, there may be contact by cards, letters and presents at significant times in [Sarah]’s life, so the lines of communication may be left open. The respondents are to have the opportunity to vet any letters or presents to ensure they do not contain derogatory or inappropriate material.

Injunction re institution of proceedings

88The respondent had sought the following orders:

•The applicant be restrained by injunction from instituting further proceedings in relation to the child without first attending mediation;

•In the event that the applicant institutes further proceedings in relation to the child:

(a)there be a preliminary hearing to determine the threshold issue of whether there has been a change in circumstances; and

(b)the applicant be required to deposit into a bank account in the name of the applicant and the first respondent the sum of $20,000, with such sum to be held as security for costs.

89The respondents’ position was obviously that since they have incurred substantial expense, and have been placed under considerable pressure by the proceedings, the applicant’s right to commence further proceedings should be limited.

90They did not specifically seek an order pursuant to s 118 of the Family Law Act 1975, on the basis that the proceedings are frivolous or vexatious. The orders sought, in reality, to a large extent, reproduced the requirements of any future application, in that, whether or not conducted through a family relationship centre, at the least, the parties would be required to meet with a family consultant at the outset of any further proceedings.

91In addition, the legal position is that the applicant would have to satisfy the Court that there had been sufficient change of circumstances to justify variation in the orders, having regard to the best interests of the child.

92Although the applicant pursued her ambit claim, and must have known she had no chance of success, there was a real issue to be determined as to the extent and nature of any involvement she may have in [Sarah]’s life in the future, and in the circumstances, it was not unreasonable for her to seek to have some contact with the child, although this should have been on a very limited basis. While the respondents have had to be involved in fully defended proceedings, they have been legally represented throughout, and I suspect would have been advised that the applicant’s ambit claim had no chance of success, so the stress on them was likely to have been less significant than it could have been.

93However, it is important, in the interests of [Sarah], that matters now be allow to settle down for a time, and that there be no further proceedings between the parties until absolutely necessary. In addition, I consider it important that further proceedings be initially listed for hearing before me, having recently heard two trials between largely the same parties. Any applications are therefore to be listed before me in the first instance and must be commenced in the Family Court of Western Australia. I can then make appropriate orders as to whether the involvement of the respondents is justified, for the involvement of a family consultant if necessary, or even security for costs.

Costs

94I will hear further submissions as to any appropriate order for costs.

Propos orders

1.The applicant be permitted to send the child, [SARAH], born [in] March 2001, cards and/or presents on the child’s birthday, at Christmas and Easter;

2.The respondents are to ensure that the child receive any cards and/or presents sent by the applicant, but may censor any inappropriate or derogatory comments.

3.The respondents are to keep the applicant inform as to a postal address where correspondence may be sent to them to give to the child.

4.(1)Until further order, the applicant be restrain by injunction from instituting further proceedings in relation to the child in any Court having jurisdiction under the Family Law Act 1975, except in the Family Court of Western Australia.

(2) Any application, if practicable, be listed for hearing by the Honourable Justice Martin.

5.The applications otherwise be dismissed.

I certify that the preceding [94] paragraphs are a true copy of the reasons for
judgment deliver by this Honourable Court

Associate