Drummond and Drummond

[2015] FCCA 2626

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRUMMOND & DRUMMOND [2015] FCCA 2626

Catchwords:
FAMILY LAW – Interim arrangements for care of infant aged 2½ years – father deceased – paternal grandparents seek to spend time with child – high conflict between grandparents and mother – should time be supervised – if so, should time be professionally supervised or take place in presence of mother – best interests.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 65C

Cases cited:
Bright & Bright (1995) FLC 92-570

Applicant: MS DRUMMOND

Respondents: MR DRUMMOND & MS L DRUMMOND

File Number: ADC 1764 of 2015

Judgment of: Judge Brown

Hearing date: 31 August 2015

Date of Last Submission: 31 August 2015

Delivered at: Adelaide

Delivered on: 31 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Anderson

Solicitors for the Applicant: Adelaide Family Law

Counsel for the Respondent: Mr McGinn

Solicitors for the Respondent: Christopher Ganzis & Co

ORDERS

1. The parties each enrol at the (omitted) Children's Contact Centre to assess their suitability to take part in the supervised access program by no later than close of business on 11 September 2015.

2. The child X born (omitted) 2013 live with the mother.

3. Subject to the satisfaction of order one hereof, the paternal grandparents spend time with the child as follows:

   (a)For no more than two (2) hours per fortnight at a specific time and date to be nominated by the Director of the (omitted) Children's Contact Centre or his/her nominee;

   (b)The time be subject to the supervision of the Director of the (omitted) Children's Contact Centre or his/her nominee and take place at the expense of the paternal grandparents; and

   (c)At the conclusion of four (4) a report be prepared in respect of the child’s interactions with the paternal grandparents and such report to be at the expense of the paternal grandparents.

4. Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 17 November 2015 at 9.15 am to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on (omitted) to confirm their attendance.

5. Further consideration of the matter is adjourned to 11 December 2015 at 9.30 am when it is anticipated the report will be to hand.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1764 of 2015

MS DRUMMOND

Applicant

And

MR DRUMMOND & MS L DRUMMOND

Respondents

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered ex tempore, immediately after the interim hearing concerned.  The case concerned is a highly controversial one.  In these circumstances, it is appropriate that the reasons be transcribed so everyone concerned in the case can know clearly why the decision in question was made.

2. This afternoon, I have to deal with an application in which Ms Drummond is the applicant and Mr Drummond and Ms L Drummond are the respondents.  It is a sad and difficult case.  The proceedings relate to interim arrangements for X, who was born on (omitted) 2013.  The applicants are X’s paternal grandmother and grandfather.  The respondent is X’s mother. 

3. Regrettably I have to touch on the circumstances which bring the parties to this point and to the institution of court proceedings.  X’s father has lost his life in tragic and criminal circumstances.  He was murdered shortly prior to X’s birth.  It is hard to think of more difficult and tragic circumstances coming before the court. 

4. The mother and X’s late father married in (omitted) 2012.  Given what has happened, it must be the case that both sides of X’s family – the paternal family and the mother – are still coming to terms with these traumatic and tragic circumstances. 

5. The grandparents commenced these proceedings on 20 May 2015.  They asked for their application to be listed urgently.  Due to pressures on the court’s time it was not listed as quickly as they would have liked.  There was no suggestion that X was at risk of harm.  Rather, it was listed today, on 31 August 2015, so that the mother would have ample time to respond to the application in question.

6. It is the grandparents’ position that they have not seen X since February of 2014.  It is their case that they love their grandson and wish to interact with him and for X in turn to know that he has grandparents who love him and want to be involved in his life.  In their application the grandparents seek that the parties be referred to a child dispute resolution conference and in the interim that they spend time with X at a children’s contact centre. 

7. The mother responded to the application a short time ago.  It is her case that initially she was open to the grandparents spending time with X.  However, it is her position that they have overstepped the proper role of grandparents in a grandchild’s life. 

8. Rather than being respectful of her, she asserts that they have created turmoil and conflict with her over the management of their late son’s estate and have insensitively demanded money be paid out of the estate to her financial detriment.  To this end, she asserts that they have commenced proceedings in the Magistrates Court for no good reason. 

9. She also asserts that, after her husband (and the applicants’ son) was killed, they came into her house and removed items from there without her consent which she found intolerable.  Accordingly, it is her position that from the start of last year onwards, she decided that she would stop the grandparents’ time with X. 

10. That is a brief summary of the issues in dispute between the parties.  At this stage I am not in a position to make findings of fact about those matters, other than to say that it is quite clear that there is a very bitter dispute between the paternal grandparents and the mother, which necessarily must pose some threat to the emotional wellbeing of this little boy who already faces many challenges in his life. 

11. I was told earlier that the matter had been resolved between the parties and that that they had agreed on the way forward, in the short term, for X to spend time with the grandparents.  That is no longer the case.  It is regrettable that the court must now make a decision about X.  The fact that the parties were able to reach some compromise, which has now fallen apart, is testament to the conflict between them.

12. The mother has filed a response to the application.  It is her position that X is a vulnerable child and that any time he spends with his grandparents needs to be very cautiously approached indeed.  It is her position that there should be time for no more than two hours, once per month, at somewhere like a play café or a McDonald’s restaurant.

13. Significantly, she would want to be present supervising the time.  It seems to be the case that there were discussions between the parties about using the (omitted) children’s play café, which is in (omitted) on (omitted).  Those discussions, as I say, have broken down. 

14. What is in dispute at the moment seems to be whether the time is once per fortnight or once per month; whether it is at a play café; and most significantly whether the mother should be there with someone of her choice and whether the grandparents should be there with somebody of their choice. 

15. Underpinning the mother’s case is her assertion that when some other proceedings were on foot in the Magistrates Court about the estate matters, things which should not have been said were said in the foyer of the court to her.  She found these comments hurtful.  In these circumstances, she wants to be present during any time between X and his grandparents and she wishes the time to be only once per month, given the tensions between the parties.

16. The legal principles I have to apply are not unduly complicated. There is no doubt that the grandparents have standing to bring this application. Pursuant to section 65C of the Family Law Act, a child’s grandparent has standing to bring a parenting order.

17. A parenting order is an order which determines parenting arrangements for a child, including what time the child should spend with person or persons who are significant to the child concerned. It is clear from the Family Law Act that grandparents are persons of potential significance to a child.

18. In this case, as in all cases to do with children, the best interests of X are the paramount or most important consideration. However, how his interests are to be best served is guided by a number of provisions in the Family Law Act, particularly the objects and principles underlying part VII of the Act, which is the part of the Act which deals with children.

19. One of the principles which the court is directed to have in mind, when making orders in respect of children, is contained in section 60B(2)(b) of the Act. It reads as follows:

    Children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development, such as grandparents and other relatives.

20. In addition, pursuant to section 60B(2)(e), children have the right to enjoy the culture they share with other people, who also share their kith and kin. In this case, in general terms, it seems clear that the paternal grandparents and X share a similar background.

21. Again in general terms, it is likely, I think, to be of benefit to X, as he grows up, to have a sense that he does have a connection with his father’s side of his family. 

22. I must also bear in mind, above all things that I have an obligation to protect a child from coming to physical or psychological harm as a result of being exposed to, amongst other things, family violence. 

23. This is a major concern to me given the tensions between the two aspects of X’s family.  It concerns me that there is the potential for there to be an unpleasant incident for all sorts of reasons, between the mother and the grandparents, particularly given what has happened over the last few years. This, of course, is no responsibility of X himself, who is a child. 

24. The mother has made other criticisms of the grandparents.  In particular, she alleges that they are elderly and both suffer from arthritis and so perhaps will find it challenging to look after a child of X’s age.  It is also suggested, by the mother that, in the past, the grandmother has indicated a disinterest in young children and has not parented her own children as she should have done.  Those are issues which I cannot resolve in a case of this kind at this stage. 

25. In the past it seems that X has spent time with his grandparents.  What memories he has of that is, of course, unclear to me.  But it is likely that he does not have a significant level of relationship with them, given his tender years and the fact that he has not interacted with either of them for over a year. 

26. This is a major concern for the mother who is concerned about the child’s routine being disrupted because of people X does not know coming into his life.  It is on that basis that she submits that any more than once a month would be onerous for X. 

27. I have no reason to think anything other than that the grandparents have brought this application because they are interested in X because he is their grandson. As such, they are following the natural instincts of grandparents who want to know their grandson so they can dote on him and give him a sense that he is loved by members of his father’s family.  They are, I think, very significant things indeed and are reflected in the principles of the Act, to which I have already alluded. 

28. Children in a general sense do well if they know where they fit in in a wider family.  Grandparents are a source of family history and that is, in a case like this sad one, likely to be significant.  Sadly, X will never know his father.  His grandparents will be an obvious source of information about him.

29. In this regard I have reference to the comments of Treyvaud J in the case of Bright & Bright. [1]  In that case his Honour speaks of the importance that grandparents have in a child’s life and development, particularly giving a child a sense of where he or she fits in a broader or extended family. 

    [1]  Bright v Bright (1995) FLC 92-570

30. In this case, with some reluctance, I have come to the conclusion that it is better that, at least in the initial stages, the supervision of any interaction between X and his paternal grandparents is professionally provided.  I think it is likely to be prudent, in the short term, for the court to move cautiously and incrementally and err on the side of caution.

31. I reach that conclusion because it is my view, which may of course be mistaken, that there is a high level of volatility surrounding the relations between the mother and the grandparents which has the potential to ignite. 

32. As a consequence, it is perhaps expecting too much that this supervision be provided by a layperson.  I think it better that the supervision be provided in a professional setting in which there will be no direct interaction between the parties concerned.

33. I bear in mind X’s tender years.  I also bear in mind that what is envisaged is supervision in a children’s contact centre, which will be professionally run and which will have activities for a child of X’s age, where each of the parties will be briefed beforehand about what is to happen and also will have an opportunity to see the centre beforehand during the induction process. 

34. Significantly the centre will provide facilities which will ensure that the parties do not have to come into contact with one another so that X can move effectively through an emotional airlock between his mother and grandparents. 

35. I think at this stage that is likely to be the best outcome for X, balancing his need for stability and predictability with, I think, the need to re-instate his relationship with his grandparents gradually and incrementally. 

36. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:          2 December 2015