Faulk and Anor and Deitz
[2010] FMCAfam 1285
•11 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAULK & ANOR & DEITZ | [2010] FMCAfam 1285 |
| FAMILY LAW – Parenting – arrangements for five year old child to spend time with his paternal grandparents – father deceased – paternal grandparents found to be undermining child’s primary attachment to his mother – reduction of time ordered. |
| Family Law Act 1975 ss.60B, 60CA, 60CC |
| First Applicant: | MR FAULK |
| Second Applicant: | MS FAULK |
| Respondent: | MS DEITZ |
| File Number: | MLC 6014 of 2009 |
| Judgment of: | Bender FM |
| Hearing date: | 9 November 2010 |
| Date of Last Submission: | 9 November 2010 |
| Delivered at: | Geelong |
| Delivered on: | 11 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ambrose |
| Solicitors for the Applicant: | Samantha Ward Pty |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Cahill & Rowe Family Law |
ORDERS
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child [X] born [in] 2004 (“[X]”).
[X] live with the mother.
[X] spend time and communicate with the paternal grandparents as follows:
(a)each third weekend from 9.00am Saturday to 5.00pm Sunday, commencing 13 November 2010 and each third weekend thereafter (save for [date omitted] 2010, being [X]’s birthday, when such time shall conclude at 12.00 noon);
(b)
for one week in each of the second term school vacation and the long summer vacation as agreed between the parties and failing agreement the first week in the second term holidays from 9.00am on the first Saturday to 12.00 noon on the second Saturday and from 9.00am on 2 January to 12.00 noon on
9 January each year;
(c)on [X]’s birthday for four hours if a school day as agreed between the parties and failing agreement from after school to 7.30pm and if a non-school day for five hours from 12.00 noon to 5.00pm;
(d)on each of the paternal grandparent’s birthdays for four hours if a school day as agreed between the parties and failing agreement from after school to 7.30pm and if a non-school day for five hours from 12.00 noon to 5.00pm;
(e)from 3.00pm to 8.00pm each Christmas Day; and
(f)as otherwise agreed between the parties.
The paternal grandparents time with [X] pursuant to these orders shall be suspended as follows:
(a)on Christmas Day, save as set out in order 4(e) herein, and Boxing Day each year (noting in 2010 [X] would have spent time with his paternal grandparents on the Christmas weekend and he shall spend the previous weekend with them in lieu); and
(b)if [X] is spending time with the paternal grandparents on either of his or his mother’s birthdays from 12.00 noon to 5.00pm.
If Mother’s Day falls on a weekend when [X] would be with the paternal grandparents they shall forego time on that weekend and shall spend time with [X] on the following weekend in lieu of the Mother’s Day weekend.
For the purposes of the paternal grandparents time with [X] pursuant to these orders the paternal grandparents shall collect [X] from and return [X] to the mother’s residence.
The parties shall advise the other of any serious illness or injury suffered by [X] whilst in their care.
The mother shall provide the paternal grandparents with copies of [X]’s school reports, school photograph order forms and newsletters.
The paternal grandparents shall be permitted to attend [X]’s school concerts, speech nights and other extra-curricular activities usually attended by parents and grandparents.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X], and from permitting any other person so to do.
The paternal grandparents are to provide to Ms M of the Family Relationships Centre Geelong a copy of the Family Report of Mr H and of this judgment.
IT IS NOTED that publication of this judgment under the pseudonym Faulk & Anor & Deitz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT GEELONG |
MLC 6014 of 2009
| MR FAULK |
First Applicant
| MS FAULK |
Second Applicant
And
| MS DEITZ |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
This matter involves the paternal grandparents’ Application to spend time with their grandson, [X] born [in] 2004 (“[X]”). [X]’s parents separated shortly after his birth. In August 2005, orders were made by consent for [X] to live with each of his parents on a four night-three night basis each week. It is unclear from the evidence put before me if such living arrangements actually unfolded. There are allegations of ongoing drug and alcohol issues involving the parties, as well as poor parenting, all of which the mother denies. It would appear, however, that [X] lived primarily with the mother, spent intermittent time with his father and consistent time with the paternal grandparents.
The paternal grandparents commenced these proceedings in the State Magistrates Court in Geelong on 19 June 2009. They sought orders that [X] live with them and spend supervised time with each of his parents.
The mother’s Response sought that the paternal grandparents’ Application be dismissed, that [X] live with her, that he spend time with his father each alternate weekend and Wednesday night, and with the applicant paternal grandparents every fifth Saturday between
12.00 pm and 4.00 pm, or as arranged between the father and his parents during [X]’s time with him.
The father also filed a Response seeking that the paternal grandparents’ Application be dismissed, that [X] live with him and spend time with the mother on alternate weekends, and with the applicants every sixth Saturday from 10.00 am until 4.00 pm.
When the matter came before the Geelong Magistrates Court it was transferred to the Federal Magistrates Court in Geelong, where it was heard for the first time on 3 August 2009. By consent on that day, orders were made for [X] to live with the mother, spend alternate weekends and Wednesday nights with the father and spend every fourth Sunday from 10.00 am to Monday morning and alternate Tuesdays from 3.00 pm to 8.00 pm with the paternal grandparents.
The matter next came before the court on 12 November 2009, when orders were made for the parents to have equal shared parental responsibility, for [X] to live with the mother, spend alternate weekends and Wednesdays with the father and then every fourth week from 10.00 am Sunday to before school Monday and alternate Wednesdays with the paternal grandparents.
Sadly, [X]’s father committed suicide on [date omitted] 2009. The paternal grandparents filed an Application in a Case on 8 February 2010, seeking orders that [X] spend time with them each alternate weekend from after school Friday to before school Monday, overnight each Wednesday and for half school holidays. On 9 March 2010, orders were made by consent which provided for [X] to spend time with the paternal grandparents on alternate weekends from after school Friday to 7.30 pm Sunday, each alternate Wednesday from after school to 7.30 pm and half the school holidays. The paternal grandparents advised the court at the time they were not pursuing their residence Application as set out in their Application filed 19 June 2009.
The orders made on 9 March 2010 also noted that the parties would engage with a counsellor at Centrecare with a view to:
“seek her (sic Ms W, Family Counsellor, Centrecare) assistance regarding improving the relationships with each other and resolving the dispute about the arrangements for [X]”.
This notation was necessary because, unfortunately for [X], the relationship between the paternal grandparents and the mother is most acrimonious. It is this issue that goes to the heart of this matter, and will be expanded upon as this judgment progresses.
At the hearing of this matter, it was indicated that the applicant paternal grandparents are seeking final orders in the terms of the interim orders that are currently in place. The mother is seeking orders that [X] spend time with the paternal grandparents on the first weekend of each month from 10.00 am Saturday to 5.00 pm Sunday, for two separate periods of five days, one period in the second term holidays and one period in the long summer vacation, and for three hours on special occasions or two hours if that special occasion falls on a school day.
Background
By way of background, the paternal grandparents have three children: Ms K who is 28, the father Mr F, and a younger son Mr K who is 21. The paternal grandfather is 56 years of age and is employed as a [omitted]. The paternal grandmother is 54 years of age and is engaged in home duties.
The mother was born [in] 1977 and is aged 33. The mother is of mixed heritage, her mother being Papua New Guinean and her father being Australian. She has four siblings, all of whom live in the Geelong area. The mother is currently single and [X] is her only child. She is engaged in home duties and lives with [X] in a two bedroom unit which she rents from the Ministry of Housing.
The mother and [X]’s father, Mr F, were in a relationship between in or around 2002/2003 to 2005. As noted earlier in this judgment, after separation orders were made in 2005 which provided for [X] to live with his parents on a four night/three night basis. There are allegations by the paternal grandparents of alcohol and drug usage by the parents. The relationship between the paternal grandparents and their son Mr F was, at times, rocky with he and [X] living with them for periods of time and there also being periods of estrangement.
In 2006, the mother and [X] were involved in a serious house fire when at the mother’s cousin’s home. In 2008, the Department of Human Services became involved, arising from allegations that [X]’s chronic constipation was as a result of the mother’s care. These concerns were raised by the paternal grandparents and were investigated by the Department, who found there was no cause for concern in relation to [X] when living with his mother.
The paternal grandparents have long maintained that they have concerns about the care [X] receives from his mother, and the relationship between the mother and the paternal grandparents has never been positive.
The evidence
Mr Faulk
The paternal grandfather confirmed that he and the paternal grandmother are seeking that the current orders for [X]’s living arrangements continue.
In this matter, Mr H prepared a Family Report, which was released on 17 September 2010. In that Report, Mr H stated the following:
10.Ms Deitz stated that she has no wish to hinder the paternal grandparent’s relationship with [X] and acknowledged their past support. She described her proposal to reduce the paternal grandparent’s time as an effort to reduce her exposure to, what she experiences as, their relentless criticism of her parenting, and if this could stop she would be willing to maintain the alternate time with them.
11.The writer discussed a compromise proposal with the parties and provided them with feedback on my observations and review of the material. There were several other issues addressed such as an injunction preventing the maternal grandfather having any unsupervised contact with [X] should he return to Victoria, and some alteration to the return time for [X] on the Sunday afternoon. It was further agreed to cease the alternate Wednesday catch up time.
12.The writer discussed the need for the paternal grandparents to support the primary attachment relationship between [X] and Ms Deitz, and for them to move a way from a culture of critique to a more positive style of communication and co-operation. The writer informed the paternal grandparents that without such a shift in emphasis and attitude it would be difficult to support the agreement, and the focus would then need to be on preserving and supporting [X]’s primary attachment relationship with Ms Deitz.
13.All concerned are aware of the need for change in the way they have managed the communication and cooperation in the past and indicated that prior to the dispute the interaction between them was positive and mutually reciprocated. Both parties informed the writer they were about to engage in mediation in the coming week and it was suggested the issue of communication be addressed in these sessions. The writer informed the parties that their agreement would form the basis of my recommendations to the Court and be included in this report.
In the mother’s trial affidavit, which was filed on 3 November 2010, the mother made reference to two incidents that post-dated the release of Mr H’s Report. The first related to the paternal grandparents’ alleged refusal to honour their verbal agreement to allow [X] to attend his maternal cousin’s birthday during their time with him in the September school holidays in 2010. The second incident related to the paternal grandparents cutting [X]’s hair without the mother’s consent shortly prior to [date omitted] 2010. The paternal grandfather was questioned in relation to these issues. The paternal grandfather produced a recording device to support his evidence. The device was used to record telephone conversations between himself and the mother, and also changeovers with [X].
The paternal grandfather replayed a conversation between himself and the mother. It was numbered 22 on the recording device. In that conversation, the paternal grandfather and the mother reached agreement that [X] would spend the first week of the September school holidays with the paternal grandparents, and be returned at 11.00 am on Saturday 25 September 2010. In that recording, the mother mentioned [X]’s cousin’s birthday was on in that period, but no plans had been settled for a family gathering.
The paternal grandfather then played a conversation between himself and the mother at a Wednesday changeover. In that conversation, the mother agreed to the paternal grandfather’s request to have [X]’s hair cut. This conversation was numbered 10 on the recording device. It was the paternal grandfather’s evidence that it related to a conversation he had with the mother shortly prior to [date omitted] 2010.
It was the paternal grandfather’s evidence that [date omitted] 2010 was the date of his daughter’s wedding and that [X] was part of the wedding party. It was his evidence that the paternal family wanted to have [X]’s hair cut so he would be looking neat and tidy for the wedding. The paternal grandfather conceded under cross-examination that the paternal family had not told the mother that their daughter was getting married, or that [X] was part of the wedding party. When asked why the mother had not been told, it was the paternal grandfather’s evidence that whilst this was information the mother would have wanted to know, they were concerned that she would have withheld [X] from attending the wedding. This was based on the mother allegedly not allowing [X] to go to an airport earlier this year, when his uncle Mr K was travelling to the United States, when she had indicated earlier she would allow [X] to do so.
The paternal grandfather confirmed he recorded most conversations between himself and the mother, either by telephone or at changeover. He was questioned as to how the haircut conversation was number 10 on the device and the birthday conversation was number 22, when the latter preceded the former chronologically. It was put to the grandfather that the mother would give evidence that the recording on the device played to the court as to the haircut related to a conversation held previously between himself and her, and not to the haircut discussion just prior to [date omitted] 2010. The paternal grandfather was unable to explain why the haircut recording preceded the birthday recording. He was unable to confirm or deny that there had been an earlier haircut conversation he had recorded. His evidence in this regard was not particularly convincing.
In relation to the birthday incident, it was put to the grandfather that after he had recorded the conversation played to the court, the mother had rung him to advise that [X]’s cousin’s party was on the evening of Friday 24 September 2010 and that he was asked to return [X] by
5.00 pm on that date. It was his evidence that he and the paternal grandmother were taking [X] to their holiday home at [B] for the week of the holidays, and they could not have returned him on Friday. The paternal grandfather conceded that he had not advised the mother that they were taking [X] to [B].
When asked if recording conversations between himself and the mother evidenced a lack of trust in the mother, it was the paternal grandfather’s evidence that there was a lack of trust between his family and the mother. The paternal grandfather’s evidence was that there is longstanding “bad blood” between the paternal family and the mother that has arisen as far back as when their son and the mother were in their relationship. He conceded that nothing had changed in relation to that relationship since then, nor since the release of Mr H’s Report. It was the paternal grandfather’s evidence that the parties were to attend the Family Relationship Centre in Geelong to try and resolve matters between themselves. However on close examination the paternal grandfather indicated that, in fact, he and his wife were attending the POP program at the Family Relationship Centre, not necessarily counselling with the mother.
Ms Faulk
The paternal grandmother’s evidence was that she and the mother had not spoken to each other for many years. She conceded she did not like the mother, and that this dates back to when the mother and her son were in their relationship. She accused the mother of constantly asking for material assistance for [X] when he was a baby, indicating that it was like “blackmail”, and that she could only see [X] if they helped the mother financially.
The paternal grandmother indicated that if she thought [X] was not being properly cared for by the mother in the future, she would pursue an Application for [X] to live with her and her husband.
When asked what the mother could do to improve the paternal grandmother’s view of her, the paternal grandmother replied:
“She could start with an apology.”
When asked to expand on what it was that the mother needed to apologise for, the paternal grandmother’s evidence was that it related to an incident some six years ago. Her evidence was that if the mother did not apologise, the relationship would remain as it was.
The paternal grandmother was cross-examined in relation to Mr H’s Report, and in particular, the paragraphs previously referred to in this judgment. It was the paternal grandmother’s evidence that she did not understand what Mr H meant by:
“supporting [X]’s primary attachment relationship with
Ms Deitz”
or the need for them to
“move away from a culture of critique to a more positive style of communication and co-operation”.
When challenged on how communication and respect between herself and the mother could be improved, it was her response that this:
“was a two-way street.”
The paternal grandmother’s dislike and disdain for the mother was palpable whilst she gave her evidence.
Ms Deitz
The mother agreed that [X] loves his grandparents, that they love him, that he enjoys his time with them and looks forward to seeing them. It was the mother’s evidence however that when with them, [X] is cross-examined as to the circumstances in his mother’s household and made to feel that she is
“not the best of mums.”
It was the mother’s evidence that at his paternal grandparents’ home, [X] has lots of expensive toys and games, including computer-type games that she cannot afford, and that [X] is becoming more aware of the differences in the households brought about by the differing financial circumstances in each of them.
The mother indicated that [X] was not permitted by the paternal grandparents to bring any of his toys or clothes that are at his grandparents’ home to his home with his mother.
In relation to her niece’s birthday, it was the mother’s evidence that initially she agreed to an 11.00 am Saturday return, however, subsequent to that conversation, and having ascertained when her niece’s birthday was being held, it was her evidence she spoke to the paternal grandfather and they agreed [X] would be returned at
5.00 pm on Friday, rather than 11.00 am on Saturday. She confirmed that the paternal grandparents failed to return [X] on the Friday in breach of their verbal agreement to do so. She further confirmed that the paternal grandfather had not told her they were taking [X] to [B].
In relation to the haircut incident, it was the mother’s evidence that the conversation played by the grandfather was of an earlier incident, and not just prior to [date omitted] 2010. She confirmed she did not know of [X]’s aunt’s wedding or that [X] was part of the wedding party.
It is [X]’s birthday [date omitted] when, under the existing orders, [X] is to be with his paternal grandparents. The mother gave evidence of her difficulty in trying to arrange for [X] to spend time with her for his birthday. She indicated she initially asked if [X] could spend time with her on Saturday, as she had made plans for a party, and was told:
“no”
as the paternal grandparents had a function planned themselves. She said that the paternal grandparents finally agreed to return [X] at
2.30 pm on Sunday, when she felt he would be too overtired to enjoy his birthday with her.
It was the mother’s evidence that she felt that her proposal for the time that [X] should spend with the paternal grandparents would be best for [X]. It was her evidence that [X] would understand he lives with her and sees his grandparents. She felt that because of the way the paternal grandparents felt about her, it was not healthy for [X] to be exposed to this, because he feels their animosity towards her.
The mother gave evidence that she was attending counselling with
Ms M at Centrelink to assist with the relationship between herself and the grandparents. Ms M had suggested she use a communication book and a scrapbook to pass between herself and the grandparents. The latter would enable [X] to record the good things he did in each household and those would move between the parties to assist in their communication. The mother gave evidence that she had recently discovered the paternal grandparents were also about to engage or had engaged with Ms M. It was her evidence, which I accept, that Ms M had told her that mediation between the parties was not viable in the near future, but may be something that hopefully the parties could engage in down the track.
Mr H
Mr H is a Regulation 7 Family Consultant with the Federal Magistrates Court. He prepared a Family Report in this matter dated 16 September 2010. Mr H also provided oral evidence at the final hearing of this matter.
The salient paragraphs of Mr H’s report have already been set out previously in this judgment.
Mr H was asked what his recommendations would be for the time [X] spends with his grandparents if the court found that the paternal grandparents had not ameliorated their negative attitude of the mother and of her parenting of [X], and were unlikely to do so into the future.
It was Mr H’s evidence that in those circumstances there should be an immediate reduction of [X]’s time with the paternal grandparents, so that he spent time with them every third weekend from Friday to Sunday, plus one week in the middle term holidays, and in the long summer vacation.
Mr H was advised that the mother preferred that the weekend time be from Saturday morning to Sunday.
Mr H was told of evidence of the paternal grandfather, given in this matter, where the paternal grandfather indicated that recently he and the grandmother had met with [X]’s school teacher who told them [X] smelt so badly she would not have him sit on her knee for reading. The inference being, I assume, that this was as a direct result of the mother’s lack of ensuring [X] maintains proper levels of hygiene. I also note the mother was never cross-examined as to this issue.
Mr H found this to be a particularly worrying circumstance. It was his evidence this confirmed that the
“culture of critiquing”
perpetrated by the paternal grandparents was still ongoing, and that in those circumstances, the mother’s proposal of Saturday to Sunday was not unreasonable.
Mr H was asked whether he was of the view that [X] was being shielded from the adult conflict. It was his evidence that his general impression was [X] had not been shielded from the grandparents’ negative views about the mother. He thought at times [X] had been interrogated by his grandparents about life in his mother’s home. Mr H indicated that he had raised this with the paternal grandparents, who explained to him that as they remain very concerned about [X]’s care with his mother, they felt it was appropriate to question him.
It was Mr H’s evidence that the primary attachment relationship that [X] has with his mother must be protected. He indicated that if the paternal grandparents continued to critique and challenge the mother’s parenting, her level of anxiety and feelings of distress would increase to a level where her capacity to parent [X] would be negatively impacted, as would her capacity to let [X] spend time with his grandparents. It was Mr H’s evidence that a reduction in [X]’s time with his grandparents would allow the mother’s levels of anxiety and stress to diminish, so that she could be a lot more relaxed and comfortable around [X] and in her parenting of him.
Mr H conceded that [X] would miss his grandparents if time was reduced, but indicated that this must be balanced against the stressors on the mother if she continues to feel she is constantly being investigated by the paternal grandparents.
Mr H was refreshingly frank about the benefit of counselling and whether that could assist the parties, and especially the paternal grandparents, to develop the necessary insights and understandings to change their behaviours and communications with each other. It was Mr H’s evidence that counselling only works where both parties have a commitment to change. That is, all parties to the counselling accept there is need for a fundamental change in how they approach each other. In the circumstances of this matter, where there has been no change in that approach for nearly six years, and especially since the release of his Report, Mr H’s prognosis for change through counselling was, to use his words:
“low, remote and slight.”
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with the objects and underlying principles that are to be applied when making orders in relation to children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)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
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)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
(b)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
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In order to determine what is in the child’s best interests, the court must consider each of the parties’ proposals, or such other proposal as the court determines, in the context of the parties’ behaviours as related to the relevant factors that are set out under section 60CC(2) and section 60CC(3) of the Act.
Section 60CC(2) of the Act sets out the primary considerations, and they are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[X] has a close and loving relationship with his mother, and it is to her that he has his primary attachment.
[X] also has a loving relationship with the paternal grandparents, who have been an important part of his life since birth.
The paternal grandparents are of the very strong view, and have been since [X]’s birth, that [X] is not properly cared for by his mother. They are hyper-vigilant in this regard, and perceive any lesser standards of hygiene or care than theirs as being evidence of neglect. Their concerns have been reported to the Department of Human Services on at least two occasions to date, and those concerns have not been ameliorated in any way by the Department’s finding that they were satisfied [X] was properly cared for by his mother.
In his report at paragraph 8, Mr H noted:
“There is nothing in the material before the writer or in the observations of [X] and Ms Deitz that would lead the writer to conclude that Ms Deitz poses a physical or psychological risk to [X]’s welfare at this point in time.”
I, too, am satisfied that [X] is well cared for by his mother and that he is not at risk in her care.
Section 60CC(3) of the Act sets out the additional considerations to be taken into account when determining what orders should be made in the best interests of [X]. We look at those sections where relevant.
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
As [X] is only five – nearly six years of age – his views were not canvassed as is appropriate.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As noted earlier in this judgment, [X] has a close, loving and meaningful relationship with his mother and with his paternal grandparents.
[X]’s primary attachment is to his mother and Mr H’s evidence was that this relationship must be protected, and a failure to do so would have a very negative impact on [X].
Mr H expressed real concerns that the ongoing acrimony and negative views of the paternal grandparents to the mother’s parenting capacity had a real risk of undermining that primary relationship attachment. Mr H’s evidence was that the paternal grandparents must shift their attitude from one of a culture of critique to a positive style of communication in which they spoke positively to [X] about his mother, her household and parenting practices.
Absent that shift, Mr H indicated there would need to be a reduction of time of the time [X] had historically been spending with the paternal grandparents, to curtail [X]’s exposure to their attitudes.
The grandparents’ demeanour in the witness box and their evidence before me gives me no reassurance that such a shift in their attitude is likely. It was apparent that they did not have any insight into how their attitudes towards the mother impacted on her capacity to be the best parent she can be for [X], and how that in turn would impact negatively on [X]. It was clear they had not understood the matters raised in
Mr H’s Report, or the recommendations made by him as to the need for a change in their attitude.
The paternal grandparents did not take any responsibility for their behaviours and attitudes, and it was apparent that they were not open to any suggestions that they should change their approach to the mother. The paternal grandfather seemed to be of the view that “that’s just how it is and nothing can change”. The paternal grandmother holds grudges against the mother for alleged wrongs committed by the mother to her over six years ago, and seemed incapable of moving on. She has not spoken to the mother for years. Neither grandparent exhibited any insights that if they were to extend the hand of friendship to the mother and let the past remain the past for [X]’s sake, that there was every real chance that the mother would greet such overtures readily, and that these proceedings would become redundant. That this could occur, unfortunately, is most unlikely.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The mother has, to date, generally ensured that [X] has spent regular time with his grandparents. There was a period in 2009 when [X] did not see his grandparents because of a breakdown in the relationship between them and their son, although the mother gave evidence that she did arrange for the grandparents to see [X] during this period. It was unclear if the grandparents agreed that this occurred. The mother indicated a willingness for the grandparents to spend generous time with [X] if they shared a willingness to support her as [X]’s mother. Unfortunately, that willingness to support her as [X]’s mother has not come to pass.
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:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother’s proposal will significantly reduce [X]’s time with his grandparents. It was Mr H’s evidence that this needs to be balanced against the stressors currently placed on the mother because of her feelings that her parenting is constantly being undermined by the grandparents’ negativity towards her, and their ongoing investigations of her.
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
As all parties live in Geelong, this is not a relevant consideration.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I am satisfied the mother can provide for [X]’s physical, emotional and intellectual needs.
However, as has been fully detailed in this judgment, I am most concerned as to the paternal grandparents’ capacity to provide for [X]’s emotional needs in circumstances where they are unable to understand that their ongoing negativity toward the mother and her parental capacity impacts upon her capacity to best parent [X]. This in turn puts her primary attachment relationship at risk, which also then places [X] at risk.
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
The disparity in the economic strengths of both households has been previously commented on in this judgment.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There may have been times in the past when the mother’s lifestyle was questionable, especially during her relationship with [X]’s father. However, I am satisfied that she is parenting [X] competently, and is doing everything to be the best parent to [X] that she can.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
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
As noted earlier in this judgment, the paternal grandparents remain convinced that [X] is not properly cared for by his mother, and remain hyper-vigilant to any perceived shortcomings in her care of him.
Whilst all parents and grandparents should ensure that their child or grandchild is properly cared for, this is so much better done for the child if it is in an atmosphere of mutual respect and support. Thus, if a parent, especially a single mother, is feeling overwhelmed or vulnerable, she can seek the assistance of others, including grandparents, without feeling that she will be judged, criticised or have that call for help used against them in future proceedings. Absent that environment, help may not be sought when needed. Thus, the protection that the grandparents are wanting to provide is in fact undermined.
In this matter, absent the development of greater insight, understanding and acceptance of responsibility for changing their attitude by the paternal grandparents, unfortunately the possibility of future proceedings cannot be discounted.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
Whilst Mr H was less than optimistic as to the success of the counselling for these parties, I am perhaps not so pessimistic. That the parties have already commenced counselling is, in my view, very positive. It can only be hoped that the counsellor, given the necessary understanding of the issues for these parties, will be able to assist them in moving forward. To that end, I am going to make orders that the paternal grandparents provide their counsellor, Ms M, with a copy of Mr H’s Report and these Reasons for Judgment.
Conclusion
This very unfortunate matter relates to the arrangements that should be put in place for [X], a much-loved son and grandson, to spend time with his paternal grandparents in circumstances where their relationship with his mother is undermined by their belief that she does not properly care for their grandchild. This attitude, one that goes back to the time of [X]’s birth, is such that the mother feels constantly under threat from the paternal grandparents, such that she is now seeking that the time [X] spends with them be curtailed.
In the Family Report of Mr H, and in his evidence before me, he clearly spelled out that unless there was a change in the paternal grandparents’ attitude towards the mother and her parenting style such that they were supporting rather than critiquing her, then the time [X] spends with them must be curtailed.
This is because the primary attachment relationship that [X] has with his mother must be supported so that [X]’s mother is given the space and peace of mind to concentrate on being the best mother to [X] that she can.
As set out earlier in this judgment, I am unfortunately of the view that at this time at least, the paternal grandparents cannot and will not be able to make that change in their attitude towards the mother. They are unable to see that in failing to make that change, they will not only fail to achieve their goal to ensure [X] is safe, but they will achieve an outcome whereby their time with [X], instead of being greater, will be reduced.
Having made findings that the paternal grandparents cannot support the mother in her role as [X]’s primary carer, I am satisfied that the orders to be made at this time, that will be in [X]’s best interests, are those as recommended by Mr H in his oral evidence given to this court. Accordingly the paternal grandparent’s time with [X] will be reduced from the current level to every third weekend from Saturday to Sunday, two separate weeks of holiday time and provision for time on special occasions.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 7 December 2010
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