Dukes & Anor and Talford
[2017] FamCA 63
•10 February 2017
FAMILY COURT OF AUSTRALIA
| DUKES AND ANOR & TALFORD | [2017] FamCA 63 |
| FAMILY LAW – CHILDREN – Best interests – Non-parent – With whom a child spends time – Where the applicants are the child’s maternal grandparents – Where the child’s mother is deceased – Where the applicants seek orders to spend time with the child once per month – Where the grandparents had close involvement in the early part of the child’s life – Where at trial the single expert changed the recommendations as set out in her report – Where there is a high level of conflict and mistrust between the parties – Where the child has been exposed to conflict – Where the child has displayed resistance to spending time with or communicating with the grandparents – Where orders requiring the child to spend time with the grandparents would expose the child to a continuation of conflict – Where the risk of the child having no relationship with the grandparents is outweighed by the likely trauma involved if structured spend time orders were made – Application dismissed – Order made that the child spend time with the grandparents as agreed between them and the father. |
| Family Law Act 1975 (Cth) – ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA |
| Aldridge & Keaton (2009) FLC 93-421 Burton & Churchin and Anor (2013) FLC 93-561 Valentine & Lacerra and Anor (2013) FLC 93-539 |
| FIRST APPLICANT: | Ms Dukes |
| SECOND APPLICANT: | Mr Dukes |
| RESPONDENT: | Mr Talford |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | PAC | 3317 | of | 2012 |
| DATE DELIVERED: | 10 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 1, 2, 3, 4 & 5 August 2016 |
REPRESENTATION
| COUNSEL FOR THE FIRST & SECOND APPLICANTS: | Mr Johnston |
| SOLICITOR FOR THE FIRST & SECOND APPLICANTS: | Goldrick Farrell Mullan Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth |
| SOLICITOR FOR THE RESPONDENT: | Gordon & Barry Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
The following parenting orders are made in relation to the child B born on … 2008.
The Amended Initiating Application filed by the maternal grandparents on 11 February 2014 be dismissed.
The child shall spend time with the maternal grandparents on such occasions and at such times as agreed between them and the father.
For the purpose of the orders the father and/or the child’s step-mother Ms Talford may, if the father considers it appropriate, be present when the child spends time with the maternal grandparents.
In the event that the child becomes distressed while spending time with the maternal grandparents and cannot be readily consoled, the maternal grandparents will telephone the father, so inform him and if requested by him so to do, make arrangements for the child to be collected from their care.
The grandparents on the one hand, and the father on the other hand shall each pay one half of the costs of the Independent Child Lawyer within 42 days.
All exhibits are released.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dukes and Anor & Talford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 3317 of 2012
| Ms Dukes |
First Applicant
And
| Mr Dukes |
Second Applicant
And
| Mr Talford |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings.
Mr Dukes and Ms Dukes are the maternal grandparents of the child B (“the child”) born in 2008. For convenience I shall refer to them as “the grandfather” and “the grandmother” or “the grandparents”.
For the first few years of her life the child lived in the grandparents’ home together with her parents Mr Talford and Ms C Talford. Tragically, in 2011, the child’s mother was killed in a motor vehicle accident. Following the accident the father moved with the child from residing at the grandparents’ home.
The child previously had a very close relationship with the grandparents. Unfortunately, this relationship broke down some time ago and the child has not spent time or communicated with the grandparents since early 2015.
The grandparents have asked this Court to make orders to enable the child to have appropriate opportunity to resume and develop her relationship with them.
The father is opposed to the grandparents’ application.
Applications
The grandparents seek the same orders as those proposed by the Independent Child Lawyer (“ICL”). These would be orders to the following effect:
·That the grandparents spend time with the child on the last weekend of each month on either a Saturday or Sunday for four hours commencing in the month in which the orders are made;
·That the father give the grandparents 7 days notice of the day and time he elects for the grandparents to spend time with the child;
·That for the first three periods of time the child spends with the grandparents either the father or his wife Ms Talford accompany the child and remain with the child for as long as they deem appropriate;
·That the father give the grandparents 7 days notice of the location and meeting point for the first three occasions that the child spends time with the grandparents, with one of the first three occasions to be at Taronga Zoo;
·That after the first three occasions changeover shall occur by the grandparents collecting the child from the father at the commencement of time and delivering her to the father at the conclusion of time;
·That the grandparents be permitted to communicate with the child by sending letters, cards, photographs and/or gifts to her and that the father provide all such items to the child;
·That the father provide copies of the child’s school reports and school photos to the grandparents;
·That the father and the grandparents shall be restrained from speaking about each other and any member of their household or family in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child and use their best endeavours to prevent any other person from doing so;
·That the father use his best endeavours to encourage the child to attend to spend time with the grandparents; and
·That the parties are restrained from physically disciplining the child.
On the other hand, the father seeks orders to the following effect:
·That the grandparents’ application be dismissed;
·That the child spend time with the grandparents on such occasions and times as agreed between the grandparents and the father and that the father or his wife Ms Talford may be present during such time if the father considers it appropriate;
·That a condition of the child spending time with the grandparents is that in the event the child becomes distressed and cannot readily be consoled, the grandparents telephone the father and, if requested by him, make arrangements for the child to be collected;
·That the grandparents (or either of them) pay the father’s costs of and incidental to these proceedings.
For completeness the form of orders sought by each of the parties is at Annexure A to these Reasons for Judgment.
Background
The grandfather was born in 1951 and is 66 years of age. The grandmother was born in 1958 and is 58 years of age.
The father was born in 1986 and is 30 years of age. The father is married to Ms Talford (formerly King) (“Ms Talford”), also 30 years of age. Sadly the child’s mother, Ms C Talford died in 2011.
In June 2006, the child’s mother and father commenced a relationship. The mother was working full time and the father was a full time student.
In September 2006 the father and mother commenced living together at the home of the grandparents. The father left school and commenced employment.
In late 2006 or early 2007 the mother and father moved out of the grandparents’ home. In mid-2007 the mother became pregnant with the child, and thereafter the parents moved back in with the grandparents.
In 2008 the child was born.
In March 2008 the mother returned to work and the father left his job to care for the child full time.
In 2009 the mother and father married. The grandparents looked after the child while the mother and father went on a honeymoon for 12 nights.
In mid-2010 the father commenced seeing a relationship counsellor about his relationship with the mother and the grandparents.
In early 2011 the father commenced working three days per week.
In 2011 the mother died in a motor vehicle accident. The father and the child continued to live at the home of the grandparents.
In late August 2011 the father commenced attending upon Ms D, psychologist having been referred to her by his general practitioner doctor for treatment of an acute grief reaction. The child was attending day care three days per week.
In September 2011 the father started to become more friendly with Ms King (“Ms Talford”), who had been matron of honour at his wedding. The grandparents were not encouraging of this friendship. There was an argument between the grandmother and the father about his developing relationship with Ms Talford. The grandmother informed the father that if he moved in with Ms Talford she would never speak to him again. The father moved out of the home of the grandparents with the child in September to stay with the parents of a friend.
Following the father moving out of their home, the grandparents reached an agreement whereby the child spent time with them every second Friday from the conclusion of pre-school until the commencement of pre-school on Monday. From December 2011 the father changed this arrangement to twice per month, from 4.00 pm on Saturday until 6.00 pm on Sunday.
In October 2011 the father and the child moved into Ms Talford’s home. The grandparents regarded this as being disrespectful and insensitive towards their late daughter and themselves. They made their views known to the father.
In October 2011 the father returned to the grandparents’ home to collect some belongings. Since that time, he has confined his communication with the grandparents to matters relating to the child.
In February 2012 the father and Ms Talford commenced a relationship.
Unfortunately, given the very complex dynamics following the loss of the mother, and the father forming a new relationship with the mother’s former close friend so soon after that tragic event, understandably the previously good relationship between the father and the grandparents deteriorated.
By approximately June 2012, the time spent between the grandparents and the child was further reduced by the father to once every three weeks.
In July 2012, the father commenced full time work. From this time the child attended day care full time.
On 2 August 2012 the grandfather commenced these proceedings in the Federal Circuit Court. The father said that this was a shock to him because he was facilitating time between the child and the grandparents and because he understood that the parties were endeavouring to resolve their dispute about contact between the child and the grandparents. The child was placed on the Airport watch list.
On 24 August 2012 the father was informed by an officer of the Director of Public Prosecutions that the person responsible for the accident which caused Ms C’s death would be committed for trial on 6 September 2012. That person subsequently entered a guilty plea. The proceedings were adjourned for sentencing on 1 March 2013.
The father did not attend the sentencing hearing. This caused disappointment and distress to the grandparents. The father said that by this time he and the grandparents were not in communication and he wanted the occasion to be about Ms C rather than about their dispute. He said he meant no disrespect to the grandparents.
On 6 December 2012 the parties attended mediation at Relationships Australia.
In 2013 E (“E”), the child of the father and Ms Talford was born.
In late January 2013 the child commenced primary school.
On 7 March 2013 the father’s solicitors advised the grandparents that the father did not agree to facilitate further time or communication between the grandparents and the child.
On 10 April 2013 interim orders were made by consent providing for the grandparents to spend time with the child once every four weeks from Saturday until Sunday, and for telephone communication once each week on Wednesday evening.
The father said that there were difficulties with the telephone calls each Wednesday. He said that the child became reluctant to talk.
In August 2013 a segment was screened on commercial television about the death of the mother. The grandparents had participated in an interview. The promotional clip for the interview included pictures of the child. I shall refer to this matter again below.
On 8 September 2013 when the child was spending time with the grandparents, they became unavailable to care for her late in the weekend because they were catching a flight to the United Kingdom. So they left her in the care of the maternal uncle and aunt. No notice was provided to the father prior to that arrangement being made. I shall refer to this again below.
On 13 November 2013 the child telephoned the grandparents from the father’s mobile phone. After approximately two minutes she handed the phone to her father and walked away. She had ended the call. The grandparents were disappointed and there followed text messages between them and the father in which they expressed their frustration, and the father said that he had complied with the court order.
On 27 November 2013 Ms Talford informed the father that the child said to her “I wish someone would break into the house and steal Daddy’s phone so that I would never have to call them again.”
On 12 December 2013 the child telephoned the grandfather after school. Ms Talford informed the father that the child said “… It’s so much better when I can call when I want to. It’s heaps easier”.
On 10 December 2013 orders were made listing the proceedings for final hearing and the parties agreed to remove the child from the watch list.
In early 2014 difficulties continued with the telephone calls to the point where on 5 March 2014 the child started to cry and refused to make the telephone call.
On 14 April 2014 the final hearing commenced before Judge Stewart in the Federal Circuit Court at Parramatta. On 16 April 2014 consent orders were made providing for the suspension of the orders made on 10 April 2013 and noting that the father, Ms Talford and the grandparents were to attend on Mr F for family counselling. From this time the child and the grandparents had some telephone communication. The grandparents spent some day time periods with the child.
As next of kin of Ms C, the father was given her ashes. The ashes remained in the grandparents’ home for a period. The father removed them apparently upon assuming a different residence. He subsequently took it upon himself to distribute the ashes without any notification to the grandparents. On 18 May 2014, the father handed the grandfather a letter addressed to the grandparents in which he explained the location where he and the child had distributed Ms C’s ashes at a time approximately 11 or 12 months previously. The grandmother informed Dr G that the father had promised the grandparents that they would be involved in the disposal of Ms C’s ashes. The father informed Dr G that initially he had intended to dispose of the ashes with the grandparents. But following court and other events he felt he could not approach the grandmother. He expected the grandparents would tell him what he had to do with the ashes and decided to dispose of them without involving the grandparents. At a time when the grandmother was feeling very emotional she told the father she would never forgive him for this. The father eventually conceded that from the grandparents’ point of view he had made a dreadful decision about this.
In May 2014 the parties commenced to attend on Mr F.
On 14 June 2014 the grandparents attended the child’s swimming lesson. The father said that the grandparents indicated to him that he was not welcome to come into their house and informed him that they did not wish to come to his home when returning the child. The grandparents denied this. The grandfather said that he has never forbidden the father to come to the grandparents’ home. But he also said that the father has not been invited to any social function there since he removed his possessions.
On 15 June 2014 the father invited the grandparents to meet him and the child for breakfast at McDonalds at 9.30 am prior to the commencement of spending time at 10am. The grandparents declined and collected the child at 10.00 am.
On 5 July 2014 the child spent overnight time with the grandparents until the following day at 5.00 pm. This was the last occasion she stayed overnight with them.
In 2014 the child telephoned the grandmother for her birthday and Ms Talford arranged the delivery of flowers to her.
On 30 July 2014 the grandparents attended Grandparents Day at the child’s school. They had not been invited to do so. I shall refer to this matter again below.
Two weeks later, on 15 August 2014, the child said to the father that she did not want to go to Monster’s (the grandmother’s) because she was sick. She did not attend time with the grandparents appointed for the following day. The father took her to the doctor. He informed Dr H that the child’s hair seemed to be falling out in chunks and he was concerned. Dr H referred the child to a paediatrician.
On 24 August 2014 the child was to attend a fete at I School with the grandparents. The father said that she requested that he and Ms Talford attend with her. There were emails between the parties about this and the upshot was that the child did not attend the fete. The father invited the grandparents to join them for breakfast as an alternative. But the grandparents declined and met them there at 10.15 am. The father said that the grandfather greeted everyone but the grandmother did not greet anyone. He said that he made numerous attempts to engage the grandmother in conversation and she did not respond. The father said that when he, Ms Talford, E and the child returned home, the child said “… Monster is mean to everyone. Why can’t she be nice? She wouldn’t talk to you and that made me sad. I don’t want to see her.” He said that the child cried for about 30 minutes.
On 6 September 2014 the father’s solicitors sent a letter to those acting for the grandparents informing the grandparents that the child had been experiencing stress in relation to the current arrangements and requesting that the grandparents agree to a suspension of the orders so that there would be no fixed orders for time.
The following day the child telephoned the grandfather for Father’s Day.
On 16 September 2014 the father’s solicitors sent a follow up letter about suspending the orders. The grandparents did not agree to this request.
Over this period the parties continued to attend on Mr F.
On 30 October 2014 Judge Stewart suspended the orders until 14 November 2014.
On 14 November 2014 Judge Stewart suspended the orders made on 16 April 2014, the proceedings were transferred to this Court, and an Independent Child Lawyer was appointed. Since this time, the child has only spent time with the grandparents in the presence of either the father or Ms Talford.
On 21 December 2014 the child spent time with the grandmother in Ms Talford’s presence at a pet shop for one hour.
On 23 December 2014 the father, Ms Talford and the children attended the Christmas lights and music at Suburb J. At their invitation the grandparents also attended. The father said that immediately before this, when he informed the child that the grandparents might be there she went quiet and had tears in her eyes. He assured her that he would stay with her the whole time.
On 20 January 2015 orders were made to suspend the orders made on 10 April 2013 and to expedite the proceedings.
In early 2015 the grandparents sent gifts from the child’s extended family for her birthday but receipt of the gifts was not acknowledged.
In February or March 2015 the father and the child met the grandmother at Gloria Jeans. The grandfather was interstate. This was the last occasion of any contact between the child and the grandparents.
On 8 June 2015 the father informed the grandparents by email that despite Mr F’s assistance he had the view that their relationship was incapable of being repaired and that he and Ms Talford would no longer be participating in the therapy with Mr F.
There was an arrangement for the grandparents to meet with the father and the child in June 2015. But the father cancelled this.
In 2015 the father and Ms Talford were married.
At Christmas 2015 the child received a Christmas card from the grandparents. The father suggested on two occasions that she telephone the grandparents to say Merry Christmas and tell them what she received from Santa but she declined to make the calls.
On 28 January 2016 the child commenced attending a new school in year three.
The grandparents sent a birthday card and letter to the child for her eighth birthday.
On 23 July 2016, at the invitation of the grandparents, the father and the child attended a ceremony to mark the passing of the child’s maternal great grandmother. That afternoon the child and the father accompanied the child’s Uncle K and cousin, L to a recreational venue.
During the course of the hearing, the father, Ms Talford and the grandparents had a meeting. During this meeting they endeavoured to ascertain whether they might be able to make some progress towards arriving at an agreement. But they were unable to achieve an agreement.
Credit
Ms Dukes
Ms Dukes gave her evidence in a responsive manner. She made numerous concessions.
There was an issue about whether she had given photographs of Ms C and the child to officers of the media for the purpose of the documentary about accidents involving unlicensed motor vehicle drivers. Ms Dukes said she did not provide any photos. She said that the only photo she had of Ms C was (a wedding photo?).
I regard Ms Dukes as a witness of the truth. I accept her evidence about not having given any photos to Channel 9.
Mr Dukes
Mr Dukes was responsive and forthright in his answers to questions during cross-examination. He was quite frank about matters that he could not recall and attributed lack of recollection to the period of time that had elapsed. He made concessions.
I have no hesitation in regarding Mr Dukes as a witness of the truth.
Mr Talford
The father was not always responsive in his answers to questions. He appeared to have quite a flat affect.
He had some difficulty making concessions. For example, he was unable to concede that the grandparents had been truthful in deposing that they had not given any photographs to the media, notwithstanding some evidence that the media had been able to obtain photos without reference to the grandparents.
At times the father also appeared to be somewhat evasive. For instance, he was asked, in the context of him wanting to be present during time spent by the child with her grandparents, whether he would do so to ensure that it would be a positive experience for the child and whether he would work to ensure that the time spent would occur in the future. He agreed. He was then asked did he think that Ms Talford would work with that as well. He responded that she would do what was best for the child.
Having said this, I did not have any sense that the father was untruthful.
Ms Talford
Ms Talford was an impressive witness. She was responsive and made concessions. I regard her as being a witness of the truth.
The Grandparents’ UK Holiday
The grandparents were to spend time with the child from 5.00 pm on Saturday 7 September 2013 until 5.00 pm the following day in accordance with the interim orders in place at the time. They collected the child from her father at the commencement of this time without informing him that they would be going overseas the following day and therefore would not be able to return her at 5pm that day. The grandfather said that they were concerned that if they so informed the father he would decline to make the child available.
The grandfather sent an email message to the father late on the Sunday morning informing him that the child would be returned by her uncle and aunt, Mr M and Ms N.
In my view, on this occasion the grandparents appear not to have acted in accordance with the orders, because the obligation on them under the orders was for them personally to care for the child during the spend time with periods.
The Television Segment
This matter has caused considerable distress and worsened the parties’ relationship.
On approximately 27 August 2013 Ms Talford saw a promotional presentation on television which indicated that the grandparents were to participate in a television interview that evening. The presentation showed a large photograph of the child. Ms Talford informed the father about this and the proposed interview. The grandparents had not informed the father about this.
The father was concerned that children at the child’s school or their parents might see the program and this could cause distress to the child. The father telephoned the television station and requested that they not screen the program. He also caused his solicitors to write to those acting for the grandparents requesting the grandparents to cause the interview to be withdrawn.
Late that afternoon, in the absence of receiving a response from the grandparents’ solicitors, the father again contacted the television station and they agreed to withdraw the images of the child from the program.
The grandparents’ solicitors replied to those of the father that evening, after the program had screened. Their letter informed the father, amongst other matters that the grandparents had been approached to contribute to the news item which was about the number of deaths caused annually by unlicensed drivers. The letter also indicated that the grandparents had not provided any photographs and that Channel 9 advised that the only photograph they proposed to use relevant to the parties was already in the public domain having been published in print media shortly after Ms C’s death.
The grandmother said that she and the grandfather only received a day’s notice before the interview took place. She said that in the context of what the television station proposed she did not think it was relevant to ask the father whether he would have any concern. The grandparents thought that they would have an opportunity to see the program before it went to air. The grandfather said that with the benefit of hindsight they should have informed the father about the program.
The grandmother said that the father had become involved in a television segment on another station shortly after Ms C’s accident and did not inform her about it.
Grandparents Day at the child’s school
The child’s school had Open Day/Grandparents’ Day on 30 July 2014. Prior to this day, the father had a conversation with the child. He asked the child whom she would like to invite. She replied “Mummy, Daddy, [E], Nanna [O], [Grandad P], [Q] and [R].” He asked “What about Papa and Monster?” She replied “No, I don’t want them here. They will be mean to everyone, especially [Nanna O] and I don’t want them to be mean.” In view of the child’s resistance the father did not inform the grandparents about the Open Day.
The father was unable to attend. Ms Talford’s mother Ms O (“Nanna O”) attended with the child.
The grandfather ascertained from the school’s website that 30 July 2014 was to be Open Day/Grandparents Day. The grandparents thought that the child would be happily surprised to see them attend and they decided to attend. The grandfather said that it never occurred to him or the grandmother that the child might not want them to attend.
When the grandparents entered the child’s classroom she was sitting at a table with Ms Talford’s mother, Ms O, whom they had never met. The grandfather said that they approached the child and she looked up at them in surprise and seemed a bit hesitant. The child started showing the grandmother her books and Ms O moved away. After approximately five minutes the grandfather went over to Ms O and introduced himself. It is unnecessary to describe much further detail except there was a concert in which the child performed. It appears that Ms O withdrew her involvement somewhat and contacted the father.
The father and Ms Talford subsequently attended. What appears to have occurred is that the arrangements the father had made for Ms O to attend and supervise the child were overtaken by the attendance of the grandparents. Ms O’s perception was that it was an uncomfortable experience when the grandparents arrived. She informed the father that the grandmother did not acknowledge her, proceeded to take over, effectively excluded her from looking at the child’s work and took the child from the classroom.
The grandmother said that the grandparents did not have the impression that the child was unhappy with them being in attendance. She said that the child spent the whole time during the concert looking at them and smiling. She said that she believed the child’s attitude changed to please the adults with her.
The father said that after school that afternoon the child was teary and upset. Ms Talford took the child to see her psychologist, Ms D. The father said that at approximately this time the child’s hair started to fall out.
The grandfather accepted that attending the Open Day in the way the grandparents did would have been interpreted by the father as disrespectful.
The Child’s Trust Account
After Ms C’s death, her colleagues at her workplace had a fundraising exercise which generously resulted in a fund of approximately $12,000 being placed in trust for the child.
The grandfather was the fund’s trustee and he deposited the funds to an account apparently in the child’s name.
Unfortunately the child has a perception that the grandfather “stole” her money.
The father took the child to the bank because she had said to her father that she wanted to withdraw money for a gift. Apparently what had occurred was that the grandfather had withdrawn the money from her account to place it on a term deposit at a higher interest rate. The father said that he said to the child something like “[Mr Dukes] must be looking after it for you, we’ll ask him sometime”. How the child became aware that an account, which appears to me not to be an account that she could make withdrawals from, had been depleted is not clear to me.
The grandfather said that he now accepts that it would have been preferable to have discussed management of the trust account with the father.
The father said that he regrets that the child harbours a perception about her grandfather that is not true.
I have no reason not to accept the father’s explanation about how the child might have come to hold her view about this.
Unfortunately, in my view, this is just another example of how the poor relationships between the parties and their poor communication has had a negative impact on the child. The child’s incorrect perception about this matter needs to be corrected.
Submissions
ICL
As indicated above the ICL supports the making of orders which would provide for time between the child and the grandparents for four hours on one occasion each month.
In summary, the submissions were as follows.
For a period the grandparents and the parents were able to co-operate with the outcome being that the child was spending regular time with the grandparents. There is some reason for optimism that each side has developed a greater understanding of the position of the other. The grandparents acknowledged that their handling of the incident involving the media should have been done differently. The father is not sure whether the grandparents are lying about not having provided photos. There is some acknowledgment that the grandparents need to see the father’s failure to attend at the criminal hearing in the context that he had his reasons for not appearing. And the grandfather acknowledged that he could have managed the investment of the child’s trust fund in a manner which would have involved the father.
Dr G said that if there were now some changes in the relationships between sides, if the father now has some regrets and there were overtures to reconciliation, if he is coming to a position where he can trust the grandparents, if he concedes they are grieving and if he genuinely feels he wants to reconcile with them, and get back to a position where he could reconnect with his earlier feelings during his close relationship with them, then Dr G thought the child should be seeing the grandparents.
Orders would be necessary to ensure time between the child and her grandparents because in their absence, if simply left to the father’s discretion then it would, in reality, mean that there would be no time.
For a considerable period the child expressed that she wanted to see the grandparents, including having sleepovers. The child last had overnight time in 2014 when the grandparents took her to the theatre and to her favourite restaurant. There was day only time on 18 May 2014 and the grandparents attended the child’s swimming lesson on 14 June 2014. Then she spent the next day with them.
In April 2014 the hearing was suspended to enable therapy with Mr F. Unfortunately not long afterwards the father sent the letter explaining that he had dispersed Ms C’s ashes and this was of course seriously upsetting. The parents had to leave their session with Mr F to attend the child’s school and she was upset to the point where that afternoon she attended on Ms D. Shortly afterwards her father said the child’s hair had been falling out.
To the father’s credit he was able to achieve the child attending the ceremony for her maternal great grandmother in July 2016. The father was able to reassure her that it would be the right thing to do and that he would be there with her. Hopefully now that the father and Ms Talford have more ideas about things they can do to encourage the child, including that the grandparents love her, that she is special to them, and that the father wants her to go, she would be more confident about attending.
In relation to the serious issue of the father and Ms Talford feeling considerable pressure on their relationship from the dispute and, in particular, the litigation, hopefully once the litigation is completed this will take the pressure off. At one point, the father said that he was fearful of losing Ms Talford and E. Dr G described this as scapegoating because the dispute with the grandparents and the litigation would not be the only reason for difficulties in the marriage. Dr G also said that for the child to be able to see the grandparents would provide opportunity for her to have a safe haven with them if there was trouble in the parents’ home.
The grandparents’ motivation is only to spend time with the child rather than to challenge the father’s parenting.
The grandfather acknowledged that he needs to show respect for the father and his decisions.
The ICL has optimism that the parties can continue to repair their relationship. For example, the Christmas lights went well at Christmas 2015 followed by a positive visit in March 2016 when the father brought the child to the café to see the grandmother. He was able to get the child there and she had a reasonable time.
The orders proposed would still give the father flexibility of nominating the time.
In relation to commencement, Dr G thought the best “icebreaker” would be a relaxed setting such as a beach. An office meeting with a therapist would not be appropriate. Dr G did not consider that imposing further therapy by court order would be helpful. Dr G did not think three visits in six months would be sufficient to re-engage the child with the grandparents. Accordingly, the ICL sought once a month for four hours.
The Grandparents
Counsel for the grandparents said that they adopt the Minute of Orders sought by the ICL, as well as the ICL’s submissions.
Their additional submissions were as follows in summary.
The fact that the father and Ms Talford remain married and are having another child, are indicators that their relationship is back on track. Both the father and Ms Talford gave evidence that theirs is a loving relationship, an intimate relationship, a true partnership and that they are comfortably off, there being no mortgage and they enjoy income coming in regularly.
Dr G said that if the Court determined that time between the child and the grandparents was in her best interests, the appropriate frequency would be sufficiently close visits for the child’s anxiety to continue to be exposed to enable the anxiety to wane. She said long intervals, even two monthly, would be too long in this context.
The grandparents were both truthful witnesses who did their best to assist the Court. Ms Talford was immediately willing to speak with the Dukes and a meeting between both sides was held after the court day on Wednesday during the hearing. To the father’s credit he voluntarily engaged with Ms Talford and the grandparents to try and find some common ground. Though there was no agreement, the Court could take some comfort from this meeting that the parties would work together in the child’s interests towards her spending time with the grandparents.
Both the father and Ms Talford gave evidence that if orders were made they would do all that was reasonably necessary to make the time happen.
Both the father and the grandparents gave evidence that they had a number of regrets, those regrets resulting in the breakdown of their relationship.
To the father’s discredit, in October 2011, he told the grandmother that Ms C had had an affair with someone at work and that Ms Talford had given him this information. Ms Talford said in fact she had not done this.
The Court would be very concerned that the father had manipulated the Court until the recent meeting, intending to show that he would be so distraught if orders were made that there would be a severe breakdown of his marriage. The Court would reject this.
The father lacked child-focus, he took an immature approach and by his manipulation seeks control at any cost, at least up to the meeting with the grandparents this week, to the detriment of the child and to his marriage.
The grandparents have altered their position taking account of the matters discussed with the father and Ms Talford.
In relation to Dr G, it was a long and difficult afternoon for her, particularly after she initially went to Parramatta mistaking the venue. Dr G was wrestling with the various effects on the child of the possible courses to be taken and in the end it almost all looked too hard, and became a matter of whatever the father would be able to cope with.
The Father
In summary the submissions on behalf of the father were as follows.
The child is very much aware of the conflict and deep disharmony between her parents and the grandparents. For example, the grandfather says in his affidavit that the child was having great difficulty balancing her need to keep her father happy and spending time with her maternal family which provides her with a great deal of happiness. Dr G reports that the child is behaving in a manner in which she can protect her father and herself from experiencing another loss of a mother, home and family. Counsel submitted that this is an untenable and intolerable situation for the child.
Dr G identified that there are two risks for the child. The first is that without spending time with her grandparents, she is at risk of future difficulties with her identity formation. The other risk is that Dr G considered it likely that the father will continue to experience ongoing distress should orders for contact between the grandparents and the child be made. Dr G also expressed the opinion that the absence of orders for time between the child and the grandparents would give some relief to the child from the impact of proceedings on her parents. Dr G also said that the legal process has caused the father to feel uncomfortably exposed and his couple relationship stressed. Dr G referred to what she described as the child’s competing rights, on the one hand to see her maternal family but on the other hand to be raised without that conflict by mentally well parents.
In her report Dr G had recommended regular time to be spent between the child and her grandparents. But at the commencement of her cross-examination Dr G reversed that recommendation. Dr G posed the question: “What is the lesser of two evils?” She asked “Is it a greater trauma for the child to be left in a household with compromised parents – parents who have difficulty with sleeping, with anxiety.” She thought “it is more of a trauma for the child to live in this household with parents who decompensate to some extent, where there is so much tension and hostility to the grandparents”.
Dr G noted that these proceedings have been going on for half of the child’s lifetime. She also noted that the child has been rejecting the grandparents and her household has become so toxic for the child that Dr G was faced with the dilemma that it is more of a trauma for the child to live under these circumstances. She said that there are two evils. One is the lost relationship with her grandparents. The other is living in a household for the majority of time with stress and conflict. She said on balance she thinks it more detrimental for the child to be raised in a household with two vulnerable decompensated parents and therefore reluctantly she changed her recommendation. She said that she did not think that for the child not to be seeing her grandparents would mean all is good in her household. But she said that if there is no order, the father and Ms Talford could look after each other and work out how they parent.
Dr G was struck by how little had changed in six months.
It was explained to the father during the hearing that in the event that he did not comply with the Court orders the grandfather had indicated that if pressed he would bring a contravention application with all that could flow from that, including the imposition of serious sanctions. Dr G opined in these circumstances she was concerned that the father and Ms Talford would become more resentful about having to comply with orders that they did not agree with so that the child would still be a child living in a household of stress.
If the Court was to make orders for specific time, Dr G did not know what frequency would be “doable” by the father because she did not know how it would affect his mental health, but she said that if the orders affected the marriage, the child would be significantly at risk.
Counsel said that the Court would have to consider balancing the risks. In relation to the risk of loss of the child’s relationship with her grandparents, this being what Dr G said would risk the child’s identity formation, counsel said there are three mitigating matters. The first is that it was common evidence that the child is developing very well, this being the view of Dr G and the father, and this was also reflected in the school reports. Dr G said these are all good indicators. The second submitted mitigating matter is that contrary to the grandparents’ fears, every card, gift, item of clothing, jewellery or photograph which had been given or sent to the child has been preserved in her household. The third asserted mitigating factor is that the Court could be confident that the father and Ms Talford have not shut down the child’s contact with her grandparents in a wanton way.
The grandfather did say in his affidavit that the sessions with Mr F had not resulted in time between the child and the grandparents but counsel said this runs clearly contrary to his own evidence. The evidence is that there have been seven visits and two office visits between the child and her grandparents between April and December 2014, and this was during a period when there were no formal Court orders, those orders having been suspended. In addition, the father offered four invitations to the grandparents to join the child for breakfast and all were declined.
It was said that the grandfather appears unable to credit the father with much co-operation which emerged from the submission by his counsel about manipulation.
The reference to manipulation is an example of the depth of the distrust that exists and an indication that significant work would need to be done to repair the relationship between the grandparents and the parents. If this could not be addressed it would continue to be an ongoing burden.
So far as the law applicable is concerned, in applications involving persons interested in the welfare of a child who are not one of the child’s parents, the Court need not refer to “the pathway” but would consider the relevant s 60CC considerations to determine what the child’s best interests would require.
Counsel then addressed the relevant s 60CC considerations. As a primary consideration the benefit to a child of having a meaningful relationship in this context is only available to parents. In relation to the second primary consideration, drawing from all the evidence, the child is at risk of psychological harm if any order was made which required her to spend time with the grandparents. Ms D’s notes indicate that the father was continuing to have a struggle. This is contrary to the submission put on behalf of the ICL that the fact of the father’s marriage and that he and Ms Talford were about to have another child is evidence that all is on track for them.
Counsel for the father addressed in considerable detail the relevant additional considerations and it is unnecessary to refer to them further in detail. These submissions were highly relevant and have been taken into account.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·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); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). That this is so in the case of a person interested in the care, welfare or development of a child has been made clear by numerous authorities, including Valentine & Lacerra and Anor (2013) FLC 93-539 and Aldridge & Keaton (2009) FLC 93-421. In the latter case, at [75] and [79], the Full Court said as follows:
75.While there can be no doubt that the amending Act (2006 amendments) has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
·the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
·the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
·that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79.In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
It is clear that the child has a meaningful relationship with her father and I shall refer to this further below. Suffice it to say that clearly it will be to her benefit to be able to further develop that relationship.
This primary consideration of meaningful relationship does not apply to the grandparents because it is clear that it only applies as a primary consideration to each of the child’s parents. In Burton & Churchin and Anor (2013) FLC 93-561 the Full Court said as follows:
51.… There can be no question … that the words of s 60CC(2), or more accurately s 60CC(2)(a), refer only to the benefit to the child of having a relationship with both the child’s parents. The paragraph says what it means, and there is no canon of statutory construction which would enable it to be rewritten. If this needs to be confirmed then we refer to and adopt what the Full Court (Warnick, Thackray and O’Ryan JJ) said in Donnell & Dovey (2010) FLC 93-428, at [101]:
In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. That is so because the paragraph refers only to “parents”, and there is no extended definition of that word …
In my view, the benefit to the child of having a meaningful relationship with her grandparents is a relevant additional consideration pursuant to s 60CC(3)(m) and I shall refer to this below.
As indicated above, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence is the second primary consideration. In Burton (above) the Full Court said that there can be no doubt that s 60CC(2)(b) has application in every parenting proceeding, no matter who the parties to those proceedings are.
There are various risks to the child from what is proposed by each of the parties and I shall return to consider this primary consideration below.
Additional Considerations – s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.
Sub-section 60CC(3)(a) – 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 to the child’s views
The child’s views about visiting and communicating with the grandparents have changed over time. For some time following the father moving from the grandparents’ home the child was expressing happiness about spending time, including overnight time, with her grandparents. But this position changed. As indicated above, by mid-2013 the child was starting to protest about speaking with the grandparents by telephone. By mid-2014, the child was commencing to protest about being required to spend time with her grandparents.
Over time this appears to have become a “fear”. Ms Talford informed Dr G that the child did not want to be left alone with the grandparents because “Monster’s mean and asks too many questions”. She said the child has told her she is not allowed to talk about her family and that the grandmother asks too many questions and writes down the answers. Ms Talford said the child has displayed a fear of the grandparents turning up uninvited to events.
At the interview with Dr G, Dr G asked the child how she felt about coming to be seen with the grandparents. Dr G said that wearing a big smile, the child said that she did not want to come.
It is clear from Dr G’s evidence that the child has taken this position of rejecting her grandparents in an endeavour to protect her relationships with her parents which she perceives as being threatened by the grandparents.
Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Obviously the child has a very close relationship with her father with whom she has lived for the entirety of her life.
Ms D, psychologist, who has been assisting the child, the father and Ms Talford, expressed the opinion in September 2014 that Ms Talford and the child seem to have a very close relationship. She also said that the child seems to adore E.
Dr G said that the child has undoubtedly become attached to Ms Talford whom she says is now psychologically (and practically) her mother.
When Dr G asked the child who the one person would be who she would take in a rocket into space, the child said “Mummy, because she’s nicer than Daddy, he smacks me and Mummy doesn’t”. Dr G said in three houses the child would place in her home Mummy, E, Daddy … Dr G asked the child to place in a house far away, never to see again and she immediately wrote “Monster”, “Papa” saying “they’re mean to my family” because of “ignoring E”; “took all my money off me” … and they “ignore” her parents.
Having referred to this, Dr G did say that at her interview attended by the grandparents and the child, the child appeared to be “well engaged” with both grandparents. When Dr G told the child it was time to finish the child became nervous and was prompted to say goodbye. Dr G said that the child did not rise from her chair to farewell her grandparents, but rather did so verbally. Dr G said to the grandfather’s enquiry if he was getting a “kiss, cuddle or wave” she waved at him. Dr G said when they left the room, the child spontaneously explained that she had not cuddled them because “Mummy said not to because then they will think I want to go to them and would think Mummy and Daddy are lying. Monster and Papa are lying, they say I want to go there and I don’t want to go there”.
Dr G asked the child how it was to see the grandparents and she said she liked seeing them, it was different but she was “still sad, they’re still mean to (her family). They ignore Mummy and Daddy and [E]”.
The grandparents informed Dr G that the child had not been her natural self in the presence of both the grandparents and her parents. The grandmother told Dr G that the child had been more like her usual self when the grandparents and the child had played a board game during her last visit with them.
Dr G said that she had no doubt that previously the child had a close relationship with the grandparents, that she loved them and obviously they loved her.
Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child
This is not relevant.
Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Clearly the father has provided adequately for the child in terms of her physical needs. On all accounts he appears to be doing this very well. He is employed fulltime and lives in his own home which is mortgage free.
Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
Dr G expressed the opinion that if the child does not have the opportunity to develop her relationships with the grandparents and her maternal family she is at risk with her identity formation.
I shall refer in some detail to this below when I consider the primary considerations in s 60CC(2)(b) of the Act.
Sub-section 60CC(3)(e) – 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.
This is not relevant.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and 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.
The Father
The father is employed full-time.
It is clear that the father is a capable parent. He is providing well for the child’s physical needs and she is doing well at school both in an academic sense and socially. The grandmother said that the father is a good father. Ms D described the child as always well-kept and cared for.
But unfortunately the father’s parenting capacity falls short in the sense that he is unable to encourage an appropriate relationship between the child and the grandparents. He appeared to have no insight into what the long-term effects for the child might be if she was to have no contact with her maternal family.
Dr G said that the father did not appear insightful into how significantly the parental tensions and anxieties, of which the child was only too aware, can influence the child’s attitudes and wishes in wanting to please her parents.
In terms of his health, the father has been experiencing anxiety for some years, particularly anxiety about the ongoing disputation between him and the grandparents, and of course about these proceedings. The father appears to have been managing this condition in a mature and appropriate way. He has been consulting Ms D, psychologist since shortly after Ms C’s death and the father continues in a therapeutic association with her. The father takes the medication Endep to assist him in managing his anxiety. He has also been involved with the other professionals referred to in these Reasons.
There have also been difficulties in the father’s relationship with Ms Talford. They have been in dispute with the grandparents for the entirety of their relationship following Ms C’s death. They have both made it clear that this has been very stressful and that this stress has had a negative effect on their relationship. Dr G referred to the father and Ms Talford as parents who have been “decompensated” to some extent and that this affects their capacity to properly parent the child to some extent. This matter and the state of the father’s mental health are relevant to the child’s emotional and psychological well-being. I shall refer to these matters again below.
Ms Talford
Ms Talford has worked professionally for the same employer for quite some years.
Dr G described Ms Talford as an anxious, attractive, thin 29 year old. She said her affect was reactive with her being tearful at times. Dr G said that Ms Talford reported being “scared of the whole process”. Ms Talford informed Dr G that she does not usually become depressed but was “likely to be quiet and anxious, feel sick when stuff with the grandparents’ occurred”. She said she was normally a “happy, energetic and kind career driven” person with a goal to become team manager at work.
Dr G said that in terms of her parenting, Ms Talford described feeling strong in her communication and nurturing while she sometimes struggled with disciplining the children.
Dr G said that Ms Talford’s contact with mental health services has only occurred through contact with Ms D, psychologist whom she has seen for what Ms Talford described as “court related stress and help with the child’s stress”. Dr G said that Ms Talford has no history of use of alcohol or other substances.
The father informed Dr G that Ms Talford has been a good influence on the child. He said that Ms Talford has developed from being “a female influence” for the child at the commencement of their relationship to the point where she “now loves ([the child]) as her own”.
Ms D observed the child always to be well-dressed, her hair done perfectly and as having presented with good manners.
In my view, it is clear that Ms Talford is a capable parent. She has stepped into the child’s life, accepted the role of parent and is fulfilling this responsibility well. This is demonstrated by the close attachment the child has formed to her and by the fact that the child is doing well at school.
The Grandparents
It is clear that during Ms C’s life the grandparents were very much involved in the care of the child. And for a couple of years after her death the grandparents continued to be able to spend time with, and communicate with, the child. The grandparents organised numerous pleasurable occasions and experiences for the child which obviously the child enjoyed. The grandmother informed Dr G that she and the child “read together a lot”. As the situation became more complex, the child started saying things like “Monster asks too many questions” and “Monster is mean”. But such statements have to be interpreted in the context of the increasing conflict and hostility developing between the households, and the child’s sensitivity to this. No serious complaints have been made about the grandparents’ care of the child.
The father regards the grandparents as having engaged in somewhat controlling behaviour towards him and as interfering in areas of the child’s parenting which clearly he regards as his responsibility. For example, the grandparents when discussing with the child her mother’s death, provided the child with a level of detail which the father considered inappropriate. When the father raised this with the grandfather the latter made it clear that he and the grandmother would tell the child what they thought would satisfy her request because they did not want to lie to her. The father considered this to be controlling behaviour which undermined his parental authority and responsibility.
The father also regarded the grandparents’ behaviour in commencing legal proceedings against him, and particularly placing the child’s details on the airport “watch list”, as being controlling and threatening.
The father considers that the grandfather consumes alcohol excessively. This is denied by the grandfather. The grandmother told Dr G that the grandfather had reduced his alcohol intake which had been “too much for his health”. The grandfather informed Dr G that he drinks half to three quarters of a bottle of wine each night and might have a scotch when he finishes work. I can take judicial notice of such a level of alcohol intake being above what various qualified experts have informed this Court from time to time is a safe level of intake. In any event, if I determine it to be in the child’s best interests for orders to be made for specific time between her and the grandparents, an appropriate order could be crafted to address this issue.
The grandparents each acknowledge that, with the benefit of hindsight, a number of the issues between themselves and the parents could have been managed better.
In my view, the grandparents have demonstrated that they have a lot to offer the child and that they have considerable capacity to meet her physical and emotional needs. This was also the opinion of Dr G.
Sub-section 60CC(3)(g) – 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.
Dr G described the child as having presented as “a developmentally age appropriate seven year old”.
Dr G also described the child as “Vulnerable” and as “a temperamentally sensitive girl … (who) would be well aware of her parents’ feelings, particularly towards her (grandparents)”.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
There can be no question that the father takes his responsibility as the child’s parent very seriously. As indicated above he has provided very well for her in a physical sense. On numerous occasions during the hearing he referred to what he described as his “duty of care” towards the child.
Dr G observed that the father and Ms Talford have successfully worked to meet the child’s needs for a maternal figure. She said that following Ms C’s death the father appeared highly motivated by his belief that he needed to make all alright for the child, attempting to construct the life he and Ms C apparently envisaged for her. “That was a Mummy… learn to dance and have brothers and sisters and a doggie…”. Dr G also said that although the father quickly replaced Ms C, she agreed with Ms D’s comments about the importance of the child’s current nuclear family to her and that the child would be traumatised to lose any of the members.
I reject the submission on behalf of the grandparents that the father endeavoured to manipulate the Court and thereby has not demonstrated an appropriate attitude to the responsibilities of parenthood. There were two parts to this submission.
The first was that it was a manipulation for the father to endeavour to persuade the Court to a finding that if structured contact orders were made, this would exacerbate his anxiety and bring about a severe breakdown of his marriage. The difficulty about this submission is that Dr G thought that such an outcome was entirely possible and she said that if it was to occur, this would be catastrophic for the child.
The second suggested manipulation (as best I could understand it) was to the effect that the father had been disingenuous in agreeing to participate in the family therapy with Mr F, failed to properly apply himself towards this in an endeavour to bring about an agreement which would enable time between the child and the grandparents and was content for the sessions with Mr F to stall the litigation process. I must say I have difficulty accepting this in the face of considerable evidence about the stressful and debilitating effect which the ongoing nature of the litigation was having on the father, on Ms Talford and on the child. In any event, Dr G spoke with Mr F and she said that she did not have any impression from him that the father had been other than bona fide with respect to the therapy sessions.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
This is not relevant.
Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;
This is not relevant.
Sub-section 60CC(3)(l) – 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
In my view, if the Court was to make an order for specific times to be spent between the child and the grandparents and/or for communication with them, this would almost inevitably lead to further litigation. This is because it is very clear that the father does not want such an order and would struggle to implement such an order. He did say during cross-examination that he would do his best to comply with the orders. However, at various times during his cross-examination I had the strong impression that if he considered that making the child available in accordance with the orders might cause her distress or otherwise be against what he personally might perceive as being in her interests, he would find it difficult to make her available.
The grandfather made it very clear that if contact orders were made and the father did not comply with the orders then his first preference would be to endeavour to mediate the difficulty but if it became necessary to do so, he would use whatever enforcement mechanisms were available to ensure that the child was made available in accordance with the orders.
On the other hand, if there were no orders made for a specific time to be spent between the child and her grandparents or communication between them there would be no substantive order capable of enforcement. And the litigation would end.
Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
The first of these matters is that clearly, in earlier times, the child had a close and meaningful relationship with the grandparents. Dr G has made it clear that it is very important to the child’s development, particularly to her identity development that she has a relationship with the grandparents and her maternal family. I shall refer to this again below.
Unfortunately the relationship between the parents on the one hand and the grandparents on the other hand is very poor.
When the father had been living at the grandparents’ home with Ms C, he enjoyed a very good and close relationship with them. In turn, they regarded him as being like a son.
The father’s perception is that the grandparents and others in their family “hate” the father. The father clearly resents the fact that the grandparents have involved him and Ms Talford in litigation about the child which he described to Dr G as being “a terrible experience”.
The father told Dr G that during the conflict with the maternal grandmother shortly after Ms C’s death, the grandmother told him that he needed to have a relationship with someone not known to Ms C, that she “yelled” at him and said she would never talk to him again.
The father informed Dr G that mediation had ceased in May 2015 when it was “evident the communication between the four adults broke down beyond repair”. He said this was because the grandparents were not willing to change their attitudes.
The grandmother said that the only time she had become really emotional was after the father had referred to “the pettiness of (their) feelings”. She replied “she’d never forgive him for the way he dealt with Ms C’s ashes”. The grandmother told Dr G she regretted saying this. The grandmother denied that she had referred to Ms Talford as “a waste of space”.
The grandfather told Dr G that he doubted that he and the father could rebuild a personal relationship but he said that he thought that he could have a “business relationship” with the father. The grandmother said that she thought that she and the father could have a “cordial” relationship.
The grandparents informed Dr G that they do not know how to build bridges with the father and Ms Talford and need someone to assist with such a process.
Ms Talford told Dr G that the relationship between the adults had been “bad from day 1, since we went to Court, which occurred soon after the [Dukes’] found out we were together”. Dr G said that the grandparents were said not to accept the father as part of their family nor her as the child’s stepmother. Dr G said Ms Talford asserted “they do not like me, wanted revenge. They hate me”, which allegedly the grandmother said during therapy with Mr F. Ms Talford asserted that the grandmother said “I despise you … waste of space, insignificant” before Mr F stopped her. Dr G said that the grandfather had kept quiet but at other times referred to the child as a business transaction and that they have a blood entitlement to her.
Primary Consideration
I turn to consider the matters in s 60CC(2)(b) of the Act. As indicated above, these relate to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Amongst the risks to the child are the following.
On the one hand, if the child does not have the opportunity for a relationship with the grandparents the following risks would be involved.
As Dr G has reported, the child “is at risk of future difficulties with her identity formation” if she is not provided an opportunity to continue to develop her relationship with the grandparents and maternal family. Dr G said “Compounding the loss of her mother with the loss of her maternal extended family, particularly those with whom she was attached, makes the child vulnerable to difficulties trusting others, feeling secure she is unconditionally loved and wanted and had not been abandoned in her childhood.” There is no question that this is a serious risk and could well cause difficulties for the child as she matures.
And Dr G said that if the marriage between the father and Ms Talford was in difficulty, this would involve stress and distress in that household for the child and it would be good for the child to be able to go to the grandparents’ household as a refuge from that distress.
Furthermore, Mr F said that the father interprets things said by the child at their face value rather than thinking whether there might be a deeper meaning. Dr G said that this has become a problem because when the child has said something like “Monster is mean” the father has not challenged this by saying something like “well they are mean but they love you and they have cared for you.” Dr G said that such failure to challenge such statements by the child has caused her to have the impression in her mind that the grandparents are “mean”. Dr G said that this becomes a way of thinking which if it persists to adulthood without correction can cause problems.
On the other hand, Dr G also identified the following matters as presenting a risk to the child:
·Referring to what she described as the father’s history of affect dysregulation (stress, anger and anxiety), combined with his perception that the grandparents are responsible for his mental health difficulties, Dr G said that if orders were made for the child to spend time/communicate with the grandparents the father would continue to experience ongoing stress;
·The father would be resentful about having to comply with orders about which he did not agree;
·If the conclusion of the litigation resulted in the making of orders there would not be the usual relief the litigant might experience at the conclusion because the orders would “exacerbate” the father’s anxiety and threaten the family;
·Dr G described the prospect of a structured set of orders as being the greater of two evils. Dr G said such would be:
… more of a trauma for the child to go on living in this household with parents who have decompensated to some extent, where there is so much tension, so much hostility towards the grandparents that working with an experienced clinician has been unable to shift the whole difficulty for the child and (has) been going on for half the child’s lifetime, she has been caught up in it, she has been distressed and ended up rejecting grandparents whom I have no doubt she was close to, whom she loved when she was living there – they certainly loved her. But the household had become so toxic for [the child], for whatever reason, so toxic to the child having a relationship with the grandparents I was faced with the dilemma – is it more of a trauma for [the child] to continue to live under these circumstances… or lose her loving relationship with (her grandparents)?
·Dr G said that the father had endured significant stresses and pressures over a short space of time, since 2011, and it was unsurprising therefore that there were stresses in his relationship with Ms Talford. Dr G said that the risk to the child if the relationship between the father and Ms Talford was to end would be catastrophic. Dr G reported that the child was “Vulnerable (and at risk of adult depression) because of the loss of her mother when she was aged three and a half, the child has become undoubtedly attached to Ms Talford, who is now psychologically (and practically) her mother”. Both Dr G and Ms D have said that to lose her new mother (Ms Talford) to whom she is attached would be catastrophic for the child. Dr G said that the child’s safest unit is the family of the father, Ms Talford and E. If the relationship between the father and Ms Talford broke down, Dr G thought that the father would blame the grandparents and that it would be probable that blame would be passed on to the child.
·The risk to the child from the father’s anxiety in itself. There is no question that the father has been struggling with anxiety for which he has been prescribed medication. As indicated above, he is currently taking Endep medication for depression and anxiety. The child is very closely bonded to her father and is trying to protect him. Dr G said that the child as a “temperamentally sensitive girl … would be well aware of her parents’ feelings, particularly towards (the grandparents), but also their fears about the continuity of their relationship. Their anxieties would make her anxious. She is highly likely to behave in a manner she expects could protect her father and herself from experiencing another loss of a wife/mother/home and family”. Both grandparents agreed that the child needed to be relieved of this burden. Dr G said that the absence of orders would give the child relief from that impact;
·Dr G said that the order proposed by the grandparents might be a very light order in the general run of family law matters but it might be unreasonably stressful for the father because he is still in the process of escaping grief but fears it is just over the horizon;
·Dr G described the child’s behaviour in expressing resistance to time with the grandparents as involving anxiety and Dr G was confident that the child’s anxiety would diminish if the father’s anxiety was to diminish. She said that the father is “the key player”.
Discussion and Conclusion
In my view, there is no doubt that the grandparents love the child dearly and are most desirous of being able to have an immediate and longer term loving relationship with her. As Dr G has said, the child did have a close and loving relationship with the grandparents. There is also no doubt that they can continue to offer the child a warm extended family environment with love and caring, and much opportunity for a sense of connection with her maternal family, with all the advantages for the child which would flow from this.
I am very mindful of the tragedy of the grandparents having lost their daughter, Ms C. Obviously the child is their closest connection with Ms C. So it is also very important for them to retain their relationship with the child.
In an ideal world, it would be very important for the child also to regain the very close relationship she previously had with the grandparents and extended maternal family. As Dr G has said, this would be likely to well serve her identity development and also offer her a place of refuge if the parents’ marriage continues to be marked by difficulties.
It is most unfortunate for the child and all of the parties that their relationships have broken down so badly and that this very sad situation has come about.
As Dr G has observed:
This matter is striking because of how the interplay of loss and complicated grief, combined with the personalities of the adults involved, had adversely impacted on a child much loved by them all … The loss of Ms C triggered rupture (in the relationship) between Mr Talford and (the grandparents), with allegations the others have acted in a manner disrespectful to her memory …
It seemed the grieving families have had strong feelings about whom Ms C had belonged to and how to honour her memory, rather than non-judgementally (sic) accepting how the others have grieved and what the loss of Ms C has meant to each of them as individuals.
The grief of the two families collided and they never managed to get together to grieve.
[The child] is caught between the proverbial “rock and hard place” and as is to be expected, her behaviour over the last year reflects her allegiance to her primary caregivers. She is developmentally vulnerable because of the significant losses in her life: her mother, the extended family members and a father free from grief.
Sadly, the adults have not been able to bring about the probably super human effort involved in achieving a harmonious and conflict-free environment for [the child].
Even prior to the grandparents filing their application in the Federal Circuit Court in August 2012, there was a serious breakdown in the relationships between the households.
In my view, all parties have tried very hard to improve their relationships. These relationships remain badly broken and the child has a clear perception that this is the case. She has struggled to live her very young life amongst this conflict. Clearly it has affected her adversely. She has been seeing her psychologist Ms D. Her hair had been falling out. To their credit the grandparents recognised that the child was suffering from stress and agreed to a suspension of the orders.
Appropriate resources have been provided to the parties in the form of Mr F, an expert in family conflict resolution, to assist in offering a therapeutic approach in an endeavour to assist the adults to improve their relationships and develop some strategies to ameliorate the conflictual situation, with the hope of ultimately being able to resolve their dispute.
Although the parties, certainly the grandparents, have found this to be helpful, regrettably, this course has not really improved the relationships between households, certainly not to the point where there has been anything like a reconciliation. The father made this very clear in his email message to the grandfather in June 2015.
The conflict brought about by this very difficult situation has become unbearable for the child to the point where she has chosen to protect her relationship with her father, Ms Talford and E, at the expense of having a relationship with her grandparents and extended maternal family.
Dr G said in her Report that the father appeared to be entrenched in his position about the grandparents. She said that despite Mr F’s therapeutic intervention, the father remains angry and mistrustful of the Dukes referring to them with terms such as “toxic”, “dangerous”, “bullying” and alleging they feel “bitterness” and “hatred” towards him.
Dr G also said in her Report that given the current perspectives of the father and Ms Talford, it is probable that they would not be able to support the child spending time with the grandparents in the foreseeable future unless the child openly expressed a desire for this to happen. Dr G said that the difficulty with this is that the child would be unable to express such feelings without her parents’ support and willingness to accept Dr G’s opinion and the Court’s findings in the event that orders were made for the child to spend time with the grandparents.
Despite this, Dr G in her Report, having the view that the relationship between the child and the grandparents remained meaningful and nurturing of the child, and that to maintain the child’s relationship with them would be important for her identity development, recommended that orders be made for the child to spend time with the grandparents once a month for a minimum of four hours.
At trial, which was more than nine months after Dr G completed her report, she said that she now changed her recommendation. Dr G said that upon reading the parties’ affidavits, and particularly the father’s deposition (at paragraph 296) that he could not agree that her recommendation for structured orders was in the child’s best interests nor in line with what he said the child communicated and that it would be justifiable for him to ignore such an order, she was struck by how little had changed. Dr G said in essence, that upon reading the further material, particularly the fact that the father was so “fixed” in his opposition to structured orders, while she considered that there would be trauma for the child in not having a relationship with the grandparents and maternal family, it would be a greater trauma for the child to be continuing to live for most of the time in a household with compromised parents who are scapegoating the grandparents for any difficulties they are having, that for the child being caught up in the angst and distress of this is a trauma. Dr G said that for such trauma to continue would be “a great adversity for her now and in the long term.”
After Dr G had expressed her changed recommendation, counsel for the grandparents informed Dr G that during the course of the trial the father had expressed some regrets, including about the level of breakdown between the families, about the way he had dealt with the dispersal of Ms C’s ashes, not engaging with the Director of Public Prosecutions, the dynamics with the grandparents and how things had all ended up. Counsel also indicated that Ms Talford had said that she would love to see a reconciliation between the parents and the grandparents. Counsel also indicated that the parties had participated in a confidential meeting the previous evening which had resumed that morning. He said that Ms Talford had indicated that she thought there was some positive outcome for the child’s future. Counsel also said that he had asked Ms Talford did she think there might be some hope for reconciliation in the future and she replied “Yes, I’ve always been hopeful.” Counsel also referred to the father having discussed with Ms D in late 2015 that he was fearful that Ms Talford might leave him and that Ms Talford had confirmed during cross examination that they had been discussing recently the possibility of separating. Counsel asked Dr G how would having been appraised of these matters affect her recommendation.
Dr G replied that if the father was having regrets about the breakdown in his relationship with the grandparents and he has made overtures which are positive towards some sort of reconciliation and particularly making a reconciliation where he can actually trust that the grandparents are not going to be some sort of terrible influence on the child, if he has genuinely reconstructed that idea that the grandparents are terrible people as opposed to people like all of us who have flaws, particularly at a time when the grandparents were grieving the loss of Ms C, if he has changed and genuinely been able to convince the court that he genuinely wishes to make a reconciliation and allow the child to have more wonderful opportunities with the grandparents, then Dr G would change her recommendation back to recommending that the child spend time with the grandparents.
Counsel also referred to the fact that the father had said that he had loved the grandparents when he lived with them before the breakdown in their relationship and that he accepted that they loved him then and treated him like a son. He asked Dr G whether that would give her more confidence. She said that it would, provided that the father could reconnect with those feelings, which she appeared to have some doubt about because she said that the father “has a bit of a track record of moving on from relationships rather than working on them…”. Dr G indicated that she would stand by her view that the greater trauma for the child would be continuing to live with compromised parents in a state of stress and distress.
As indicated above, it was submitted on behalf of the grandparents that Dr G had experienced a long and difficult afternoon and, in the end, it almost all looked too hard. It was submitted that her opinion became that the child’s best interests would be served by whatever contact the father would be able to cope with. In my view, this is an inadequate summation of the professional opinion which Dr G has expressed and to which I have referred above.
I do not accept in any respect that the task was “almost … too hard” for Dr G. Rather, it was clear that Dr G had brought herself up to date with relevant developments since she had interviewed the child and the parties, and she listened carefully to the further relevant information which had emerged during the trial. To her credit, Dr G explained with detailed reasons why she had changed the opinion she had expressed in her report.
I have referred to these reasons above. When Dr G was informed about the expressed regrets, the fact that the parents and the grandparents had been able to have the meeting and the other matters referred to above, Dr G considered these matters. She said that if certain conditions were met, and I have referred to these above, then she would recommend that the child spend time with the grandparents.
In my view, the essential part of this different recommendation was in the conditions which were enunciated by Dr G and these are as follows:
·if the father is making a reconciliation where he can actually trust that the grandparents are not going to be some sort of terrible influence on the child;
·if he has genuinely reconstructed that idea that the grandparents are terrible people;
·if he has changed and genuinely been able to convince the Court that he genuinely wishes to make a reconciliation and allow the child to have more wonderful opportunities with the grandparents; and
·if he can reconnect with (his) feelings that (when he and Ms C lived with the grandparents) he loved them.
In my view, the evidence does not go anywhere near enabling the Court to make findings to this effect, nor in my view to have much optimism that things would move sufficiently quickly in the required direction. Regrettably, I am far from persuaded that there has been much movement, if any, by the father away from his now long held views of mistrust and antipathy towards the grandparents.
In relation to the last of the conditions, about feelings of love, as indicated above, Dr G expressed doubt that the father would be able to reconnect with such feelings because he has a history of moving on from relationships rather than working on them.
The clear impression which I had was that Dr G maintained throughout her cross-examination the revised recommendation which she had articulated at the commencement of giving her oral evidence. This was that the lesser of two traumas for the child would be for her parents not to be subjected to structured Court orders.
It is clear that there are serious problems in the household of the father and Ms Talford. As indicated above, the father suffers from anxiety and this condition is being managed, amongst other things, by medication. There have been problems in the marriage of the father and Ms Talford. Dr G also referred to the stress experienced by Ms Talford on the day of the interviews of the parties and the child for preparation of her expert’s report. Dr G said in considering what would be in the best interests of the child, one would weigh the trauma experienced by the child of living in the household where she has lived for the last four or five years with parents who are clearly compromised, who are suffering difficulty in sleeping and having anxiety, endeavouring to manage their own mental health issues, parents who have decompensated to some extent. Dr G said that there has been so much tension and hostility to the grandparents that even working with experienced clinicians has been unable to shift the difficulties for the child. These difficulties have been present for half of the child’s lifetime. She has been distressed, she has rejected the grandparents whom she was very close to and whom she loved. She has required psychological assistance by reason of the level of distress from her situation.
Dr G said that if the father was required by formal order to present the child to spend specific times with her grandparents, in view of the compulsive aspect of this with the weight of enforcement orders likely to follow any transgression, this would likely make the father and Ms Talford to become even more resentful and stressed by reason of having to comply with Court orders with which they do not agree. Dr G said the consequences for the child in these circumstances would likely be very serious indeed. The child has been doing well in the care of her father and Ms Talford as exemplified by her school reports and by Dr G’s description of her as “a smiley, chatty, pretty seven year old”. By reason of her now close attachment to Ms Talford, if the parents were to come under greater stress and particularly if the marriage was to fail and they were to separate, the loss and trauma for the child would be very great indeed.
Dr G did not consider relieving the parents of structured orders would mean that everything would then be good in the father’s household, particularly because the parents had a tendency to use the grandparents as scapegoats for much of the troubles in their household and with their relationship. But she did say that if the parents were no longer subject to structured orders they could then concentrate on working on their relationship and have space to endeavour to address their anxieties.
I accept that as Dr G has said, determining what arrangements would be in the best interests of the child requires a weighing of risk of emotional and psychological harm. On the one hand, the child has lost the close loving relationship she previously had with her grandparents. For such a situation to continue for her would be a serious detriment for her, what Dr G referred to as a trauma. But this has to be weighed against all that would be involved for the child if this Court was to put in place orders as sought by the grandparents and by the ICL. In my view, such orders would almost certainly lead to a continuation of the conflictual environment in which this young child has been endeavouring to navigate in order to live a peaceful life as well as a continuation of the compromised parenting by her father and Ms Talford about which Dr G has expressed concern. It would almost certainly ensure a continuation of litigation with enforcement applications and probably further applications. It would be contrary to the very carefully considered recommendation of the highly qualified and experienced single expert Dr G.
In my view, the best interests of the child require a stable and peaceful environment in which she can develop to her potential. In my view, such an environment can be provided by the father and Ms Talford. In my view, it would be of benefit for the child to be able to further develop her relationships with the grandparents and members of her extended maternal family. But highly desirable as this is, it cannot come at any cost, and certainly not at the risk of causing so much stress to the father and Ms Talford that it risks their capacity to appropriately parent the child and even worse still, the existence of their marriage. As Dr G has said, the consequences for the child of losing her second Mummy would be horrendous.
In any event, the child has not been able to withstand the conflict. She has been signalling her difficulties about this now over several years. To commit her to what would almost certainly be a continuation of the conflict and hostility she has had to endure for most of her life would be completely inconsistent with her best interests
I accept Dr G’s opinion that in weighing these risks the risk of the child continuing not to have a relationship with her grandparents is outweighed by the likely trauma to her if structured orders were made of further decompensation by her parents with all that would be involved for the child from that.
I propose for all these reasons not to make structured orders as sought by the grandparents and the ICL.
It is to be hoped that the father and Ms Talford have taken careful note of the importance Dr G has placed on the child having connections with the grandparents and maternal family. As submitted on behalf of the ICL there is some reason for some optimism that much of the frustration and difficulties experienced by each side have been ventilated during the course of this hearing. There appear to me to have been some misunderstandings, which will be better understood by each side. In recent times, as indicated above, the father to his credit had indicated a preparedness to provide opportunity for the grandparents to participate in the child’s life. The grandparents in turn appreciate that errors of judgment have been made by each side. There was the discussion during the course of the hearing by all four adults with a view to exploring whether there is opportunity for a reconciliation between them. None of them would regard such an outcome as being easy to achieve. They have been endeavouring to grapple with their differences, assisted by highly experienced professionals now over a long time and reconciliation has not come about. Dr G has made it very clear that it would be critical to the child’s best chances of developing into a reasonably well-adjusted adult for her to have opportunity to resume and develop her relationship with her grandparents and maternal family. It is to be hoped that the father and Ms Talford will be able to provide appropriate opportunity for this.
I am only too aware that the orders I propose can only add to the tragic and enormously distressing position the grandparents find themselves in, which has arisen as a consequence of the loss of their daughter Ms C. I am most sorry for this. But as a matter of law, in parenting proceedings, as indicated above, the interests which this Court is required to regard as paramount, are the best interests of the child.
Costs
The ICL seeks an order to the effect that the grandparents and the parents would each pay one half of the costs of the ICL.
The grandparents agreed that they would pay one half of such costs.
The application was opposed by the father.
The amount is $8,235.50 each. The father has paid $1,650 so the remaining sum sought is $6,585.50 against the father.
It is submitted that although the father owns a home which is not encumbered by any mortgage his income is very modest and less than average weekly earnings. It is submitted that he has had to pay one half of Dr G’s fee and there is a further $550 owing by him for Dr G’s supplementary letter.
It is the case that the father was in receipt of significant funds paid as a consequence of Ms C’s death, the quantum of which is unknown to me. I accept that he does not receive financial assistance from any source for the support of the child.
In my view, however, the parties should be required to bear the cost of the ICL rather than the public purse.
I propose to make orders accordingly.
I certify that the preceding two hundred and seventy three (273) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 10 February 2017.
Associate:
Date: 10 February 2017
ANNEXURE A
ORDERS SOUGHT BY THE INDEPENDENT CHILD LAWYER AND BY THE MATERNAL GRANDPARENTS
That the Applicant Grandparents, Ms and Mr Dukes, spend time with their grandchild, the child B, born … 2008, (“the child”) on the last weekend of each month from 10am to 2pm or from 2pm til 6pm, on either a Saturday or Sunday, commencing in the month in which these orders are made.
The Father is to give the Applicants 7 days notice of the day and time he elects for the Applicants to spend with time with the child in accordance with order 1.
That for the first 3 periods of time that the child is to spend time with the Applicant Grandparents, the Father or his wife Ms Talford are to accompany the child to spend time with the Applicants and remain with the child for as long as they deem appropriate.
The Father is to give the Applicants 7 days notice of the details of the location and meeting point he has chosen for the first 3 occasions of spending time with the child.
One of the first three occasions of spending time is to be at Taronga Zoo.
Changeover for each spend time occasion after the first three occasions shall occur by the Applicants collecting the child from the Father at the commencement of time and delivering the child to the Father at the conclusion of time.
The Applicants shall be permitted to communicate with the child by sending letters, cards, photographs and/or gifts to the child.
The father is to provide all such letters, cards, photographs and/or gifts to the child.
The Father is to provide copies of the child’s school reports and school photos to the Applicant Grandparents.
The Father and the Applicant grandparents shall be restrained from speaking about each other and any member of their household or family in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child, and shall use their best endeavours to prevent any other party from doing so.
The father is to use his best endeavours to encourage the child to attend to spend time with the Applicant Grandparents.
The parties are restrained from physically disciplining the child.
ORDERS SOUGHT BY THE FATHER
The Court notes following definitions for the purpose of these Orders:
“Ms Talford” means Ms Keller now Ms Talford born … 1986.
“Maternal Grandfather” means Mr Dukes born … 1951.
“Maternal Grandmother” means Ms Dukes born … 1958.
“Maternal Grandparents” means Mr Dukes and/or Ms Dukes.
“Father” means Mr Talford, born … 1986.
“B” means the child born … 2008.
The Court Orders:
The Application filed by the maternal grandparents be dismissed.
That the child spend time with the maternal grandparents on such occasions and at such times as agreed between the Maternal Grandparents and the Father.
That for the purpose of Order 3 the Father and or Ms Talford may if the Father considers it appropriate, be present when the child spends time with the Maternal Grandparents.
That as a condition of the child spending time with the Maternal Grandparents pursuant to these Orders, in the event the child becomes distressed whilst with and cannot be readily consoled, the Maternal Grandparents will telephone the Father to discuss the situation and if requested by him to so do, make arrangements for the child to be collected.
The Maternal Grandmother and/or Maternal Grandfather shall pay the Father’s costs of and incidental to these proceedings.
Key Legal Topics
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Standing
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Remedies
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