D and W and C
[2003] FMCAfam 355
•15 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & W & C | [2003] FMCAfam 355 |
| FAMILY LAW – CHILDREN – Contact – application by paternal grandmother for contact with the child who resides with mother – hostility between the mother and grandmother – grandmother estranged from father – whether sufficient benefit to child to continue with contact – frequency of contact – best interests of child paramount. Family Law Act1975, ss.60B, 65E, 68F Stevens & Lee (1991) FLC 92-201 |
| Applicant: | MRD |
| First Respondent: | PMW |
| Second Respondent: | STC |
| File No: | PAM 3865 of 2002 |
| Delivered on: | 15 August 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 8 July & 13 August 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Snelling |
| Solicitors for the Applicant: | R.J. Russell |
| Counsel for the Respondent: | Ms Wearne |
| Solicitors for the Respondent: | Legal Aid Commission |
The Second Respondent appeared on his own behalf
ORDERS
The Applicant grandmother is to have contact with the child BAC-W born 23 October 1997 from 12.00 noon to 4.00pm on the first Saturday of each alternate month commencing on Saturday 4 October 2003.
For the purpose of exercising contact pursuant to these orders, the Applicant is to collect the said child from the mother at the O Contact Centre at the commencement of each contact period and return the child to the mother at the said Contact Centre at the conclusion of each contact period.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3865 of 2002
| MRD |
Applicant
And
| PMW |
First Respondent
And
| STC |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the paternal grandmother for an order for contact with the child, BAC-W, who was born on 23 October 1997. The parents of the child are separated, the child resides with the mother.
The father is the Second Respondent and he appears in these proceedings. He took the view that, subject to his own contact with the child being unaffected, he otherwise considered that there were benefits in this child having contact with the paternal grandmother. He did not file any pleadings and did not otherwise give evidence.
The father and the mother commenced their relationship in 1995. The child, B was born in 1997. He is now aged 5. He was born prematurely, he was hospitalised and was not released from hospital until January 1998. The paternal grandmother visited the child at the Liverpool and Campbelltown Hospital. The mother and the father were living in C at the time.
The parents separated the following year. The mother then moved with the child to A. After separation, the paternal grandmother visited the grandchild three or four times at the mother's residence. She, on occasion, stayed overnight. The relationship broke down after a period of time. The mother had concerns about the child's contact with the father. The father suffers from schizophrenia and has had some difficulties in that regard. There has been a history of use of illicit drugs by the parents and, indeed, the mother was hospitalised on occasion for some matters of a psychological nature.
The mother has formed a new relationship. She has moved out of the city and she now resides near the town of B in New South Wales. She has a relationship with a gentleman who spends part of the time with her and part of the time in the country town of M. He was available to give evidence and, in fact, did give some evidence in these proceedings.
The grandmother, who is the Applicant, has been having some contact with the child through the O Contact Centre as a result of an interim order made by me on 15th January. There were restrictions placed on the Applicant and contact has taken place, more or less, smoothly as far as arrangements are concerned through the auspices of the O Contact Centre.
The father has arranged separate contact with the child and, after some negotiations, he is currently having fortnightly contact at O on Sundays through the O Contact Centre for a period of 2 hours. The Applicant's contact has been occurring on a Saturday.
The state of the parties is that the mother is hostile to the Applicant having contact and she is certainly estranged from the father but acknowledges the need for contact as being in the best interests of the child. The Applicant and her son, who is the father of this child, are somewhat estranged and, indeed, there is an Apprehended Violence Order in force with the Applicant as the protected person, the father as the defendant. That order is in force until 17 December 2004.
What orders, then, are sought? The father, as I indicated earlier, has played a peripheral role and his contact arrangements, whilst somewhat shaky, are, at least, established. The Applicant seeks these orders. First, that she have contact with the child, B, for 4 hours each alternate weekend for a period of 3 months from the date of these orders and thereafter, for 1 day in each three weekends from 10.00am to 5.00pm. She acknowledges the fact that that contact would take place in the O/B area and is prepared to make the trip.
I ordered a Family Report. The Family Report was made available. The mother's proposal is not that there should be an order that the Applicant not have contact, but that there should not be a separate contact order. In the Family Report, the family and child counsellor, Mr Sheridan, at paragraph 35, referred to the Respondent mother opposing the contact with the Applicant. At that stage, she told the counsellor that she believed that she would not be able to successfully oppose the Applicant's contact with B and proposed contact over a period of 4 hours as un-supervised contact once a month in the B area.
By the time the matter came on for hearing on 8 July, I was informed by Ms Wearne for the mother that she had resiled from that position and was seeking that there should not be an order for contact.
I distinguish that, specifically, from an order that there should be no contact. However, by the time we got to final submissions, the mother indicated that, under certain circumstances, she would not object to there being contact for the Applicant and the child at times when the father was having contact but she did not seek an order in that respect and believed that that was something that she would prefer to control.
The evidence clearly indicates a degree of hostility and suspicion between the Applicant and the mother. I heard a considerable amount of cross-examination of the Applicant relating to matters in her past, some of which was not, to my mind, relevant to the immediate circumstances before me. It is clear that the parties have had an involvement in illicit drugs and the mother was critical of the Applicant in that the Applicant has some criminal convictions, none recently, but certainly in the not-too-distant past. She was particularly critical of the Applicant who had been involved in supplying of cannabis and, indeed, had been supplying cannabis to the father and to herself. There was some wry comments made about the fact that the parties received a family discount.
It is all very well for the mother to be critical of the Applicant, having been involved in the supply of prohibited drugs. If one reads the Drug Misuse and Trafficking Act 1985 (NSW), and looks at the definition of supply, it is a very wide definition. People who purchase drugs or receive them from a supplier are, themselves, involved in supply. The upshot would be that a person who buys prohibited drugs is committing a criminal offence and to criticise the seller of those prohibited drugs or the supplier of those prohibited drugs for committing a criminal act is a case of the pot calling the kettle black.
It certainly seems to me, on the evidence before me, that the mother has put drugs behind her, just as she has left the city and taken up residence in the country and formed a new relationship. There is recent evidence which causes some concern. The mother's concern, certainly, is that the Applicant is critical of her as a mother, has acted in a way that has destabilised her position as a mother and, whilst the Applicant has been described as wholly motivated to have contact with her grandson, the mother is critical of the way in which she has gone about it.
It is noteworthy that, in the Applicant's affidavit, there is a reference to contact commencing through the Contact Centre originally on 5 February, but that having to be put off for several days until 8 February. The Applicant did not accept that and, indeed, sought the assistance of her local Member of Parliament in dealing with the Contact Centre. On the face of it, this would appear to be an excessive reaction but as indicative of the strength of the Applicant's desire to get contact under way on a regular basis. It is also, as the mother said, indicative of the fact that she will, indeed, stop at nothing to achieve what she wants.
The matter that caused considerable concern arose from complaints that the Applicant made about statements that the child had made to her during supervised contact. In her affidavit of 16 June 2003, apart from referring to her enlisting the aid of a local Member of Parliament in her negotiations with the Contact Centre, she quotes the child as making negative comments about the Campbelltown area from where the parties came, saying that the child said:
“I'm never allowed to come back to C. Mummy said I'm never allowed to come back to C”.
She refers to a disturbing conversation on Saturday, 7 June, where she reports the child was saying:
“I want to be dead. I want to be in Heaven. I can kill myself.
I can get the gun and I can point it here, then I can kill myself and I will be dead”.
She later said the child said to her that he was going to walk home. He said:
“I'm just going to walk and keep walking and nobody will know where I am”.
He went on to say:
“I run away now. I run away from home into the bush”.
Disturbingly, she said he said:
“Yes, I can but when I come back, I get punished for running away. I have to drink more rabbit's blood. I have to drink dog's blood as well”.
He repeated that and the Applicant said she was very shocked and distressed by these statements. She referred to the supervisor from the Contact Centre, a person by the name of P, as having a look of disbelief on her face as well. The Applicant went on to say the child later raised the subject:
“Do you know I get flogged sometimes, Nanna?”
She asked:
“Why do you get flogged?”
He said:
“D –
referring to the mother's new boyfriend:
D flogs me”.
The Applicant asked:
“Why does D flog you?”
and the child said:
“I get flogged after I visit you”.
The Applicant said that she was disturbed by this, discussed them with staff members of the O Contact Centre and she said that they were going to report these statements. The Applicant, however, took it upon herself to report these matters to the Department of Community Services. The Department of Community Services has received the notification from the Applicant but has not, at this stage, taken action, largely due to what appears to be, from the evidence before me, staffing shortages.
I note that no notes of any of this appear in the material subpoenaed from the O Contact Centre. In fact, the only evidence of these disturbing suicidal statements and the child's complaints of abuse come from the Applicant. In fact, the Applicant, in her evidence, expressed one motivation for frequent contact with the child as getting him out of the mother's home environment almost as a form of respite care. Those are my words, those are not the Applicant's words. The evidence, however, particularly the material that I have quoted, indicates to me a serious gulf between the mother and the Applicant and, to my mind, gives some weight to the mother's concerns that the Applicant is acting in a way that destabilises her role as mother.
I had the benefit of a Family Report prepared by Mr Brian Sheridan, a family and child counsellor at this Registry. Mr Sheridan was also cross-examined. I found his Report useful and I found his cross-examination useful. Mr Sheridan certainly confirmed the degree of hostility by the mother towards the Applicant. At paragraph 4 of his Report, he says:
“Ms W does not want anything to do with Ms D. She's of the opinion that Ms D and her family are chaotic, unstable and volatile”.
He goes on to say, in paragraph 5, that:
“Ms W does not wish to have any dealings with Mr C, the Second Respondent, however she respects, subject to his psychological stability, his legitimate role in B’s life as his father”.
Mr Sheridan's assessment of the Applicant is that:
“Ms D, although somewhat critical of Ms W's behaviours towards her, states that she has previously and would be able to resume an amicable relationship with Ms W”.
He further goes on to say:
“The relationship between Ms D and Mr C,, the Second Respondent, is from both parties' point of view, supportive. However, both parties recognise that any time together can become quite destructive of both of them and I note that there is an Apprehended Violence in force”.
The counsellor formed the view that B presented as a happy and well-cared for 5 year old boy. He is repeating Kindergarten this year as he has some problems with fine motor skills and his speech and the child is of smaller stature than is the average for a child of his age, although I am mindful of the fact that he was born prematurely. The counsellor goes on to describe B's living circumstances as being:
“With D –
that is the mother's partner:
– Mummy and two dogs”.
B reported that he had fun when he saw Nanna at the Contact Centre, that he had a wish to see his father and his Aunty L, the father's sister of whom he has positive memories. The child asked, in the presence of his mother:
“When will I see Nanna?”
He happily separated from his mother to go with the counsellor to see the Applicant. The Applicant had brought some toys for the child and the observation was reported as a positive one. On his leaving the Applicant, B gave his grandmother a hug and a kiss. The counsellor described the relationship in paragraph 32 of the report as follows:
“Overall, the relationship between B and Ms D was observed as being friendly, rather than emotionally close. The quality of this relationship appears to be favourably consistent with the short history of the Contact Centre contact between B and his grandmother”.
In his discussion and conclusions, the counsellor, again, described B as a happy and well-cared for 5 year old boy. He referred to contact with the child's father which was due to start and, of course, the evidence now is that that has started. He raised the caveat, however:
“It is probably reasonable to suppose, given the father's mental health problems that the form of contact B will have with his father is, at this point in time, unclear”.
The counsellor summarised the relationship between Applicant and grandson in this way at paragraph 36:
“Ms D presents as being highly motivated to have contact with her grandson. The observed interaction between Ms D and B was indicative of a positive, though not a particularly close relationship. The quality of this relationship appears consistent with the limited contact that they have had with each other.
B reported that he enjoys contact with his grandmother”.The counsellor went on to say that:
“Unless evidence comes to light which indicates that Ms D's character is such that contact with B is contrary to his best interests, contact is recommended”.
He said that:
“Given B's age and by virtue of the fact that Ms D is a grandparent, alternate weekend contact would appear to be somewhat excessive”
and suggested that school holiday contact might be explored in the future.
The counsellor did, in fact, have material put to him in cross-examination by Ms Wearne for the mother about the negative comments allegedly made by the child during contact, the reporting to the Department of the Community Services and the degree of hostility between the parties. I should comment that the mother's boyfriend, Mr H, gave evidence, was, in fact, cross-examined about the allegations of having flogged the child and denied those out of hand.
Mr H's evidence was that he had found being a contact supervisor a somewhat difficult situation as far as the father was concerned, bearing in mind that he was the mother's boyfriend. He was a witness who gave clear and open evidence and my assessment of him, in the witness box, was that he appeared to be a sensible young man. He gave evidence of a positive relationship with the child and I form no impression that he had any intention to take over as the child's father.
In the light of the cross-examination of the counsellor, I actually put some questions to the counsellor about those issues. The counsellor had said that if the Applicant was saying that there were care issues relating to the child, that was not something that was presented to him and that was clearly the sort of matter to which he referred in his Report when he said that the Report found things that were contrary to the child's best interests and that would be a matter that would affect his recommendation.
I asked him, from the Bench, about the amount of contact that the mother had originally proposed but resiled from, the 4 hours, once a month. He replied, “At 5 years old, once a month, 4 hours to 6 hours to a day would be near the mark”. He reiterated his view that the amount of contact, without the other issues having been presented to him, the Applicant was seeking would be excessive. He went on to say, however, on being asked that if the Applicant is making false accusations, he said, "I would have serious concerns". He described, then, that there should be less contact, considerably less contact.
It is not, of course, for the counsellor to decide this case. The counsellor has provided the Court with a helpful report and was most helpful in his answers to cross-examination by Ms Snelling of counsel of the Applicant and by Ms Wearne for the First Respondent but it is well known that counsellors do not hear all the evidence, necessarily, and there was certainly material put to me that casts a somewhat different light on what had been put to the counsellor in the preparation of a Family Report.
I have a degree of scepticism about the seriousness of the suicidal ideation said to have been expressed by the child. I am supported in this by the fact that, notwithstanding these remarks about suicide and about a most bizarre form of abuse reported by the Applicant were said to have been made in the presence of one P, a supervisor from the O Contact Centre and a Contact Centre, of course, is, to my understanding, a mandatory notifier under State care legislation. There were no notes made in the Contact Report by the Contact Centre and it is clear there was no notification made by the Contact Centre about these disturbing issues.
I am mindful of the denials of abuse, particularly of flogging given by the mother's boyfriend, Mr H and, as I indicated earlier, I formed a positive opinion of him from his demeanour in the witness box under cross-examination.
The evidence that is before me indicates that the counsellor's assessment of B as being a happy and well-cared for child is an assessment with which I believe the evidence allows me to concur.
I am of the view, therefore, that there is some weight to the hostility that is expressed by the mother towards the Applicant.The issue that I see is whether the benefit this child would gain from contact with his grandmother would outweigh the difficulty caused by the actions and attitudes of the grandmother in undermining the stability of the relationship between the child and the mother. The principles that I should consider are, first of all, that the best interests of the child is paramount. That is set out in section 65E of the Family Law Act. It is a principle of Pt VII of the Family Law Act that, unless it is contrary to children's best interests:
“Children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development”.
That is set out in sub-section 60B(2). In the decision of the Family Court in Stevens v Lee (1991) FLC 92-201, Kay J referred to a stage where a child has a long and well-established relationship with a person other than the parent, such as a grandparent or some other friend of relative. His Honour said, at page 78,384:
“In those cases, if the Court is satisfied that the relationship is of significance to the child, that a bond exists and that the child will suffer detriment if the bond is severed, the degree of suffering then has to be weighed against the degree of hostility which exists in the custodial parent”.
In a later decision of Bright and Bright v Bright and Mackley (1995) FLC 92-570, the Honourable Treyvaud J referred to the decision of Kay J and said, at page 81,658:
“It is very important for the 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 extended and supportive family”.
I note that their Honours agreed, in their judgments, as to that principle, although, as the matter needs to be decided on a case-by-case basis, the decision was made in Stevens v Lee that there would not be a contact order, whereas in Bright and Bright v Bright and Mackley, the decision was made that there should be contact and His Honour made the orders.
The conclusion that I have reached, therefore, is that the mother asks, not that there should be an order that the grandmother should not have contact with this little boy, but that I should make no specific order for contact in favour of the Applicant. I consider, however, that it is in the best interests of the child that I should make such an order and that I should place some restrictions upon that contact.
The Family Report describes the Applicant as having a positive, though not particularly close relationship with the child. I believe that there should be an order for contact in favour of the Applicant for these reasons:
a)if there is no order, the degree of hostility between the Applicant and the mother is such that it is unlikely that any contact will occur in the near future;
b)the relationship between the Applicant and the child has been described as positive;
c)whilst the mother says that she has no objection to the Applicant having contact with the child whilst the father is exercising contact, under certain circumstances, the degree of estrangement between the Applicant and the father is such that, at this stage, contact is unlikely to occur, bearing in mind that there is an Apprehended Violence Order against the father for the protection of the Applicant in force until 17 December 2004;
d)the father's mental health and the degree of estrangement between the mother and the father are such that contact arrangements in the near future are problematic and there is a real possibility that contact may be suspended if the current arrangements, which are still in their infancy, break down; and
e)the relatively short periods of time over which contact with the father takes place, 2 hours every fortnight, indicate that the available time to should be devoted to building up the relationship between the child and the father.
The contact arrangements proposed by the Applicant have been described by Mr Sheridan as excessive, given B's age and by virtue of the fact that the Applicant is a grandparent. The mother originally proposed 4 hours, once a month with which the counsellor agreed unless the Court found that contact was contrary to the child's best interest. In answer to a question from the Bench, Mr Sheridan said that if the Applicant was making false accusations against the mother, he would have serious concerns and would propose that there should be less contact, considerably less contact.
I consider that contact should only take place 4 hours every 2 months. I am satisfied that more frequent contact would be de-stabilising to the mother's relationship with the child. I also believe that the child's relationship with the father should have priority and that a greater degree of contact, bearing in mind the distances that need to be travelled and the arrangements that need to be made would impose certain practical difficulties on the mother as far as actually making the arrangements for contact is concerned.
The contact, of course, is being supervised through a Contact Centre, although there appears to be no indication as to why supervision needs to continue. There is no evidence that the physical safety of the child would be compromised or that the Applicant would be likely to abscond with the child. I am of the belief that there should be this less frequent contact which would therefore be less destructive but it should take place away from the Contact Centre, although the Contact Centre should be used for pick-up and delivery so that there could be a more normal relationship between grandmother and grandson.
If contact were to take place more frequently that once every 2 months, I do have some concerns about the de-stabilising effect of the hostility between the grandmother and the mother with whom the child resides.
It is for those reasons that I make the orders set out at the beginning of this judgement.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 21 August 2003
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