Finch and Finch and Ors

FAMILY COURT OF AUSTRALIA

FINCH & FINCH AND ORS

[2012] FamCA 171

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child – whether father is capable of caring for the child unsupervised – where father has a serious disability – where mother is awarded sole parental responsibility – where paternal grandparents assert mother is not capable of caring for child – where Court is satisfied that mother is capable of caring for child – where mother admits to previously making false allegations against paternal grandfather in affidavit – where one party must be awarded costs because of a false allegations s 117AB

Family Law Act 1975 (Cth) s 4, s 60B(1)(a), s 60B(1)(b), s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 61B, s 61C, s 61DA(1), s 61DA(4), s 62B, s 65DA(2), s A65DAC, s 65 DAE and s 117AB
Evidence Act 1995 (Cth) s 128

Marsden and Winch (No 3) [2007] FamCA 1364
Cowley v Mendoza (2010) 43 FamLR 436
Goode and Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr B Finch

RESPONDENT:

Ms M Finch

INTERVENERS:	Ms D Finch and Mr R Finch
INDEPENDENT CHILDREN’S LAWYER:	Ms D Chan

FILE NUMBER:

BRC

9150

2008

DATE DELIVERED:

23 March 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

30, 31 May, 1 & 2 June 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Pearson
Pearson Law

COUNSEL FOR THE RESPONDENT:

Mr R Haddrick

SOLICITOR FOR THE RESPONDENT:

Richard Gray & Associates

SOLICITOR FOR THE INTERVENERS:

Mr Pearson
Pearson Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr A B George

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Office Queensland

Orders

That all existing parenting orders are hereby discharged.
That the mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) (“the Act”)) in respect of the child, C born … January 2005 (“the child”) save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Advise the paternal grandparents and the father in writing (in the one letter) of the decision intended to be made;
(b)Seek the written response of the paternal grandparents and the father in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)Advise the paternal grandparents and the father in writing (in the one letter) as soon as reasonably practicable of her ultimate decision.
That the child shall live with the mother.
That the child shall spend time with the paternal grandparents as follows:
(a)for one weekend in each school term commencing in second term 2012;
(b)for three periods of one week during the child’s school holidays with each such week being in a different school holiday period.
That for the purposes of paragraph 4(a) hereof:
(a)the paternal grandparents shall nominate the weekend that C is to spend time with them by advising the mother in writing by no later than the start of each school term as to which weekend they have selected in that school term;
(b)it is not to be either of the first or second weekends in the term and is not to be on the Mother’s Day weekend in second term;
(c)the mother has no right of veto and save for asking the paternal grandparents to change the weekend selected for another nominated by her, must ensure that C goes to the paternal grandparents on the weekend that they finally select regardless of the activities that he may otherwise have on the selected weekend;
(d)the child shall transition into the paternal grandparents’ care (or at least the care of one of them) at the McDonalds Family Restaurant in Town G at sometime between 5 and 6 pm on the Friday evening of the selected weekend and can be delivered there by the mother or her nominated person;
(e)the child shall transition back into the mother’s care (or the care of her nominated person) at the McDonalds Family Restaurant in Town G at sometime between 3:30 and 4:30 on the Sunday afternoon of the selected weekend (or on the Monday afternoon of the selected weekend if that Monday is a public holiday) and can be delivered there by the paternal grandparents or either of them.
That for the purposes of paragraph 4(b) hereof:
(a)the first one week period shall not occur until the child has spent at least two weekends with the paternal grandparents pursuant to 4(a) hereof;
(b)the paternal grandparents shall nominate the particular weeks that the child is to spend time with them by advising the mother in writing of the three particular weeks selected by them over the following year by no later than 30 June each year;
(c)the mother has no right of veto and save for asking the paternal grandparents to change the week or weeks selected for another or others nominated by her, must ensure that C goes to the paternal grandparents in the weeks that they finally select regardless of the activities that he may otherwise have on during the selected weeks;
(d)the paternal grandparents shall not select a week that includes any of Christmas Eve or Christmas Day or Boxing Day in consecutive years;
(e)the paternal grandparents shall not select a week that includes either New Years Eve or New Years Day in consecutive years.
(f)the paternal grandparents shall not select a week that includes any of Good Friday or Easter Saturday or Easter Sunday in consecutive years;
(g)the paternal grandparents shall not select a week that includes the child’s birthday in consecutive years;
(h)if the selected week starts on a Saturday or a Sunday the child shall transition into the paternal grandparents’ care by them or either of them collecting him at the mother’s home at the time nominated by them on that day and he shall transition back into the mother’s care or her nominated person’s care by being collected from the paternal grandparents’ home in Town A exactly a week later;
(i)if the selected week starts on a weekday then the child shall transition into the paternal grandparents’ care by them or either of them collecting him at the mother’s home at a time nominated by them after 5:30 pm and he shall transition back into his mother’s care exactly a week later by being delivered to the mother’s home by the paternal grandparents or either of them.
That the child shall spend time with his father during any of the time that he is spending with the paternal grandparents at the discretion of the paternal grandparents but such time is to be spent by the child and his father in the company of the paternal grandparents or either of them.
That during each period of time as the child shall spend with the paternal grandparents pursuant to paragraph 4 hereof at least one of the paternal grandparents shall not work during each such period and shall be available to care for the child during the whole of each such period.
That the child shall communicate with the paternal grandparents and the father:
(a)by telephone between 6:00 pm and 7:00 pm every second Sunday night if the child has not been with them on that weekend with the paternal grandparents to initiate the call to the child at their expense and with the child to be able to call them otherwise at his discretion, the mother to facilitate at her end all such telephone communication and to ensure that the child speaks to the paternal grandparents and the father with privacy;
(b)the paternal grandparents and the father are otherwise at liberty to write letters and cards and send them to the child at their discretion.
That when the child is spending time with the paternal grandparents during school holidays he shall communicate with the mother by telephone between 6:00 and 7:00 pm on the fourth night that he is away, with the mother to make the call to the paternal grandparents’ home at her expense and the paternal grandparents to ensure that the child speaks to his mother with privacy.
That the mother and the paternal grandparents shall communicate with each other by email if they each have access to computers and email addresses and, if not, then by letter and telephone, but they shall limit their communication to parenting matters only and they shall not abuse each other.
That the paternal grandparents and the father shall refrain from denigrating the mother to or within the hearing of the child.
That the mother shall refrain from denigrating the paternal grandparents and/or the father to or within the hearing of the child.
That the paternal grandparents (or either of them) and the father shall refrain from abusing or assaulting each other in the presence of the child.
That the paternal grandparents (or either of them) and the father shall refrain from referring to the paternal grandmother as “mum” to the child and shall not encourage the child to call the paternal grandmother “mum” at any time and shall positively advise him not to refer to her as “mum” if he ever does, reminding him on any such occasion that she is his grandmother and not his mother.
That the mother and the paternal grandparents shall keep each other informed at all times of their residential and postal addresses, landline and mobile telephone numbers (if any) and email addresses (if any) and each shall advise the other of the details of any changes to any of those within 72 hours of such change.
That the mother shall inform the paternal grandparents and keep them informed as to the name, address and contact telephone number of any school attended by the child from time to time and these orders are sufficient authority for any such school to provide any information that it is lawfully permitted to provide to a parent of such child as either of the paternal grandparents shall request.
That the mother and the paternal grandparents and the father (in the company of the paternal grandparents) are all permitted to attend at any school function or event to which parents and grandparents are ordinarily invited or at which parents and grandparents are permitted to attend by the school attended by the child from time to time.
That the mother shall provide a book that goes with the child to the paternal grandparents each time he goes to spend time with them in which she advises them in respect of any and all medication that the child is taking at the time and in respect of the prescribed dosage to be administered during the time the child is with them and they shall ensure that the book returns with the child to the mother with the child at the end of their time with him, along with any medication that is left over from any supplied by the mother at the commencement of that time.
That the Independent Children’s Lawyer is discharged.
That the paternal grandparents and the father shall file and serve on the mother’s solicitors any written submissions they intend to make in respect of the determination of the order as to costs that the Court must make against the mother pursuant to section 117AB of the Family Law Act within fourteen days of the date hereof and the mother shall file and serve on the paternal grandparents and the father any written submissions she intends to make in response within twenty eight days of the date hereof.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Finch and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9150 of 2008

Mr B Finch

Applicant

And

Ms M Finch

Respondent

And

Ms D Finch and Mr R Finch

Interveners

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

This is the determination of parenting arrangements for C who was born in January, 2005 and is now 7 years old. He lives in Brisbane with his mother and has lived with her for the three and a half years since she separated from his father in September 2008.

C’s father, Mr B Finch, lives in Town A, several hours drive north of Brisbane. Mr B Finch was the applicant in these proceedings but his parents intervened in the proceedings as well. They also live in Town A. The father and his parents were all represented by the same solicitor who appeared for all three of them at the hearing. On behalf of his clients, he sought to persuade this Court that C should live with the paternal grandparents in Town A, that they should have parental responsibility for him and that he should spend time with his father for no less than two hours each Saturday afternoon. On behalf of his clients, he also sought to persuade this Court that C should only spend time with his mother during his school holidays and also for one weekend per month during school term, but only then if the mother can travel to Town A.

At the end of the four day trial, the Independent Children’s Lawyer submitted to the Court that C should continue to live with his mother and that he should only see his father and his paternal grandparents, not necessarily at the same time, once each school term under supervision at a child contact centre.

The mother, who at the commencement of the trial was seeking to persuade the Court that the child should live with her and spend time with his paternal grandparents for half of his school holidays, and spend time with his father at the grandparents’ discretion and in their presence, changed her position and supported the ICL’s position at the end of the trial.

I have determined that C shall continue to live with his mother and that she shall have sole parental responsibility for him.

Notwithstanding the submissions made on behalf of the ICL and the mother, I have also determined that C shall spend time with his father and his grandparents on one weekend in each school term and for three one week periods each year during his school holidays. I shall now set out the reasons for my decision.

Background Facts

The mother was born in 1983 in the Phillipines. The father was born in 1981 in Town A.
In his early to mid teenage years, the father was first diagnosed with Schizophrenia. All these years later, he still suffers from it. A psychiatrist, Associate Professor V, said in a report dated 24 December 2010 that was in evidence before me:
Unfortunately [the father] is significantly disabled and it is most unlikely in the foreseeable future that he will be able to provide care for [C] without considerable assistance.
The father left school in Year 9 and was not able to maintain any form of employment for longer than a few months. He was assessed as qualified for a Commonwealth Disability Support Pension at 16 years of age and has been receiving an income that way ever since.
In or around 1999, the father’s elder sister who was but a few years older than him became completely estranged from their family. She was only 21 years old at the time. Her partner had lived together with her, in the family home, for a few months before there was a serious falling out between the two of them and her parents. The father’s sister and partner left the home with haste and had solicitors write to her parents informing them that a restraining order would be applied for if they came looking for her. There has been no contact between them in all the years since, at the time of the trial being approximately 12 years. The paternal grandparents are aware, having been informed by others, that their daughter and her partner now have children of their own. It saddens them that they have no contact at all with their daughter and her family.
In 2002, when the father was 20 years of age, with significant assistance from his mother, he made contact via the internet with the mother in the Philippines. She lived in circumstances of semi-rural poverty and had decided that a way of getting herself and her family out of that was to marry a foreigner and migrate with him to a richer country. She was an intelligent young woman, was working in a manufacturing factory for a foreign company operating in her country and was also in her third year of study towards a degree at a local university. She was in receipt of a bonded scholarship in respect of that study. She had entered her details on an internet website that existed to introduce Filipino women to foreign men who were seeking potential partners.
The father and the paternal grandmother together found the mother’s details on the internet website and the father began communicating by email with the mother. The paternal grandmother assisted the father in expressing himself appropriately and in composing those emails.
Within just a few weeks, the mother and the father agreed that the father would travel to the Philippines (with the paternal grandmother) as soon as possible so that they could meet each other as well as the other members of the mother’s family. The father and the paternal grandmother stayed in the Philippines with the mother’s family for a few weeks and, during this period, agreement was reached between the two families that the father and the mother would marry and that the mother would immediately begin the process required to obtain a visa from the Australian Government permitting her to come to Australia and to live here as the father’s spouse.
All this was agreed with the mother and her family being aware that the father had mental health problems and after having met him and the paternal grandmother and having spent time with them in the Philippines. Although he was not with his wife and son in the Philippines at that time, the paternal grandfather agreed with the proposed course.
In 2003, the father went to the Philippines again and stayed with the mother and her family for about four months whilst she was waiting for her application for an Australian visa to be processed. In about October, 2003, when the mother’s visa was approved, the father’s parents paid out the mother’s bonded scholarship and the mother and the father returned to Australia, married soon thereafter and settled in Town A, living together with the paternal grandparents in their Town A home.
Before too long, the relationships of the mother, the father and the father’s parents were all in turmoil. The mother became unhappy with the circumstances she found herself in. The father’s illness manifested itself quite seriously from time to time and the mother found herself unable to cope with the demands of caring for the father and having to live with his parents. Nevertheless, in those circumstances, she determined to have a baby and C was born in January 2005.
The mother then had a new born baby to care for and a husband who was constantly struggling with Schizophrenia. At the same time she was; struggling with homesickness for the Philippines and her family, having to manage increasingly difficult relationships with the father’s parents whilst living in the same home as them and having to go out to work and generate some income to contribute to the support of the family and the household in which she and the father and child lived.
At some point, between 2005 and 2008, the mother, the father and baby C moved out into a unit on their own. Things were a little happier for the mother there, but that did not last. The paternal grandparents moved in to that two bedroom unit with them after a few months due to financial pressures on them. Eventually, they all moved back into a bigger home but their relationships continued to deteriorate.

The child, C, was diagnosed at some point in those early years in Town A with a mild form of cerebral palsy that affects one of his legs and one of his hands, causing him some disability.
Unfortunately, with the confluence of all the stressors in the household, circumstances deteriorated dramatically in the second half of 2008, and there was an incident of verbal and physical violence involving the mother and the paternal grandparents in the household that resulted in police intervention. Soon after, the mother determined to take C and leave the father and the household they shared with his parents.
The mother and 3 year old child went to a refuge and then relocated to Brisbane where they have lived since that final separation.
The father commenced parenting proceedings in the Federal Magistrates Court in October 2008, just about a week after the mother had separated from him. A few weeks later, the paternal grandmother intervened in the proceedings. In early November 2008, FM Spelleken made orders restraining the mother from taking C out of Australia. Later that month, her Honour made further orders that C live with his mother and spend some limited time with his father in the presence of the paternal grandparents.
In February 2009, her Honour ordered the appointment of an ICL and recommended the preparation of a family report and a psychiatric report in relation to the father’s health. Her Honour also made orders providing for C to spend ongoing time with his father in the presence of either of his grandparents or any other mutually agreed person.
Reports were prepared by Ms J, social worker, and Associate Professor V and filed in the FMC in June, 2009. Around the same time, the father and the paternal grandmother filed contravention applications against the mother, alleging she had breached the earlier orders requiring C to spend time with them.
In the conclusions to his report, Professor V said:
Given [the father’s] disability which is certainly not mild, it is difficult to see how the marriage could possibly have worked even with the best of intentions. Schizophrenia is a very severe illness and even in the absence of psychotic symptoms, it profoundly affects an individual’s capacity to have normal interpersonal relationships and this is particularly the case if there is an intensity in the relationship as would be required in a conjugal situation. The individuals with Schizophrenia lose their ability to respond to another’s emotions and behaviour in appropriate ways and moreover they also have difficulty communicating their own feelings.
He went on to say:
…[the father’s] illness with resultant disability has made him incapable of caring for [C] on his own other than for a few hours. This is acknowledged by [the father’s] parents. Thus the dispute before the Court is whether [C’s] best interests are served by living [with] his mother or with his paternal grandparents and disabled father.
In a situation such as this, unless it can be shown that the mother is incompetent to take [care] of the child such that the child’s wellbeing is endangered while being in her care, it would be difficult to justify giving responsibility for the child’s care to the grandparents.
He concluded that the mother and the paternal grandparents did not suffer from any psychiatric condition that would preclude them from effectively caring for C.
Ms J, in her report, identified that the father had not been able to respond to the demands of parenthood and that his parents could probably care satisfactorily for C, subject to some reservations Ms J expressed about the amount of internal conflict and domestic violence that C might be exposed to in their home. Ms J went on, in rather the same vein as Professor V, to say:
In our community however, it is an accepted social norm that children be raised by a parent where one is available, fit and able. It is my view that there is no psychosocial basis for removing [C] from the mother’s care.
Ms J recommended that serious consideration be given to C living with his mother and spending time with his father and paternal grandparents for one weekend per term and three separate weeks of school holidays in a year.
In August 2009, FM Spelleken:
·dismissed the paternal grandmother’s Contravention application, finding the mother had a reasonable excuse for the failure of the child to spend certain time with the father and his parents;
·granted the father leave to withdraw his Contravention application; and
·made orders providing for C to spend time with his father and paternal grandparents that were generally in accord with Ms J’s recommendations.
In February 2010, an updated report was prepared by Ms J. She included in her Summary the following:
55)The grandparents continue to believe that [C] would be better off with them. They dote on their grandson and they miss him enormously.
56)In my opinion, their grief over losing him affects their perception of the mother. They seem unable to give her any credit as a parent. Indeed it is notable that they hadn’t given any consideration to the form [C’s] relationship with his mother would take if the Court permitted him to live with them.
57)From the data available to me, I do not see any significant parenting vulnerabilities in the mother’s care of [C]. It is my view that he should continue to live with her.
…
59)The present arrangements have been working satisfactorily but cannot continue with the same frequency now that [C] has started school.
60)The mother is happy for [C] to spend half of the school holidays with the grandparents and the father. While this is more than I recommend originally, I acknowledge that [C] enjoys his time there immensely and that he derives different stimuli in their home from what the mother offers him.
61)If the grandparents are able to arrange their work so that one or other is available to be with [C] during half of the school holidays, I recommend that this take place.
In March 2010, the paternal grandfather also intervened in the proceedings. Another Contravention application that had been filed by the paternal grandmother was dismissed, the previous orders providing for C to spend time with his father and paternal grandparents were suspended and a new order was made providing for him to spend time with them at a contact centre for two hours per month and injunctions were issued against the father and his parents restraining them from otherwise approaching or contacting the mother and/or the child. The matter was also transferred to this Court.
All that occurred after the mother filed a Notice of Child Abuse or Family Violence and a further affidavit in which she made some serious allegations against the father and his parents. The most noteworthy of those was the allegation that the paternal grandfather had sexually abused the mother whilst she lived in the same household and that he could in fact be C’s father.
It is assumed that the learned FM determined, appropriately, to take a cautious approach having regard to the seriousness of the allegations the mother was making. The matter was then listed before a Judge of this Court and a Child and Parent Issues assessment was prepared in August 2010 by a Family Consultant from this Court.
In his concluding remarks, that Family Consultant said:
24.It seems to me that supervision of the father’s time with [C] continues to be necessary. It is the only safeguard preventing [C] being directly exposed to unacceptable risk in the form of the father’s mental illness and the maternal grandmother’s seemingly dysregulated emotions in relation to the mother.
Before the trial could be reached, further Contravention applications were filed by the paternal grandparents alleging contravention of orders by the mother. A more serious Contempt application was also filed by them.
Professor V saw the parties and prepared an updated report in December 2010. I shall make further reference to its contents a little later in these reasons.
The matter came before me in a duty list on 25 February 2011. I determined to list the matter for a hearing at the earliest possible date and four days in May and June 2011 were set aside. The paternal grandparents agreed to withdraw their Contravention applications and I made orders for C to spend time with the paternal grandparents and his father on a number of weekends leading up to the hearing.
The matter came before me again, urgently, on 1 April 2011. C had not spent weekends with his grandparents as I had previously ordered. I made further orders that he spend time with them from that afternoon for the whole weekend. That occurred pursuant to my orders.
I then heard the trial over 4 days in May/June last year. At the conclusion of the trial, I made orders providing for C to spend time with his father and grandparents on a supervised basis at the contact centre at Town O during the period over which I considered my decision. My judgment has been reserved for far longer than I had expected. My hearing schedule and other judgment writing commitments have prevented me from attending to this judgment sooner than this. I appreciate that the parties waiting for my judgment would have experienced some anguish and I regret that fact. It is hoped that during that time the parties have been able to reflect on all that was said during the hearing and will, with the benefit of the framework provided by the orders that I will be making, be able to move on with their lives enjoying the relationships that they will have with C into the future.

The legal principles to be applied in the determination of this matter

The orders that are to be made in this case are to be determined having regard to the child’s best interests being the paramount consideration. (see s 60CA of the Family Law Act 1975 (“the Act”)) In determining what is in the best interests of the child, consideration must be given to expressly listed “primary” and “additional” considerations. (see s 60CC) One of those “additional” considerations, namely s 60CC(3)(m), is “any other fact or circumstance that the Court thinks is relevant”, evidencing that the enquiry is indeed a broad one. As broad as that makes the enquiry, it still has to be performed within the constraints of the statutory framework of Part VII of the Act.
Expressly listed as ‘primary’ amongst the considerations the Court must consider in determining what is in a child’s best interests are two matters (see s 60CC (2).) They are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the Act, it is said that making these considerations the primary ones is consistent with the objects of Part VII – that is, at least those two objects set out in s 60B(1)(a) and (b). (see the Note to s 60CC(2))
In any parenting case, the two “primary” considerations set out in s.60CC(2) are to “be accorded particular importance in determining what order will best promote the interests of the child” (Marsden and Winch (No.3)[2007] FamCA 1364 per Warnick and Thackray JJ at par 77). They are separately listed and described as “primary considerations”, so that is not surprising. As important as the two “primary” considerations are, the evidence in any case must also be considered and weighed in the light of all the s 60CC(3) “additional” considerations and the s 60B Objects and Principles in order to determine what is in a child’s best interests.
Relevantly, for this case, the principles that underlie the objects include the principle that 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) except when it is or would be contrary to the child’s best interests (s 60B(2) (b)).
Of further relevance in this case, the s 60CC “additional” considerations include reference to the nature of the relationship of the child with persons other than its parents, such as any grandparent or other relative and the likely effect on the child of any separation from either of his parents or other person, including any grandparent. They also include the capacity of any other person such as a grandparent to provide for the needs of the child.
Clearly, in this case, the application of the grandparents must be considered by way of reference to these particular considerations as well as all of the other s 60CC matters that do not relate expressly to grandparents.
I have observed in other decisions that Murphy J pointed out in Cowley v Mendoza (2010) 43 FamLR 436 that all of those s 60CC considerations are required, by way of the specific statutory framework of Part VII, to be considered at more than one point in the process. His Honour, in that case, drew together the relevant legislation and the principles from the decision of the Full Court of this Court in Goode and Goode (2006) FLC 93-286 and the High Court’s decision in MRR v GR (2010) 240 CLR 461 and then conveniently summarised the steps that are required to be taken in any parenting case in which the Court makes or contemplates making a parenting order. In my view, the steps can be no different when the competing applications before the Court are for the child to live with the mother and for the child to live with the paternal grandparents and, by that arrangement, to spend time with his father in their presence.
The statutory pathway requires the Court to:
·apply the presumption of equal shared parental responsibility
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility
·if the presumption applies:
·determine whether it is in the child’s best interests for there to be an order for equal time with each parent
·make findings as to the matters set out in s 65DAA(5) which are:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
· as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable
· if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order
·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests.
If at the early stages of that pathway it is determined that an order for equal shared parental responsibility is not in the best interests of the child, then there needs to be a determination of how parental responsibility for the “major long-term issues in respect of a child” (as that term is defined in the Act) is to be conferred between the parents and other parties to the case before moving to a determination of what orders are to be made as to whom the child lives with and whom he spends time and communicates with.

Consideration of the position taken by the grandparents and the father at trial

The paternal grandparents and the father presented a case at trial that the mother; was not an interested mother, was incapable of providing the same level of care for C as they could, was a liar and could not be trusted to keep C safe and to promote relationships between him and them. Indeed, the paternal grandfather said, of the mother, during cross-examination, “There is not a motherly bone in her body.” The paternal grandmother was no more generous in her assessment of the mother either.
I have no difficulty accepting the opinion that was expressed by Ms J in her second report that the paternal grandparents’ grief over “losing” C affects their perception of the mother. I have no difficulty rejecting their evidence that the mother is not a competent mother or in reaching a finding quickly that she is a ‘good enough’ mother and that she is acceptably competent to take care of C on a day to day and long-term basis.
The evidence establishes that the mother:
·Is dealing with C’s cerebral palsy appropriately, seeking and obtaining specialist treatment for it as required.
·Has made adequate arrangements for C’s educational needs.
·Has made suitable and appropriate arrangements for her sister to come out from the Philippines to live with her and assist her in caring for C when she is unable to due to employment or other reasons.
·Has obtained employment sufficient to generate income to support herself and C and her sister as well as servicing loans she has taken out to purchase a new car and pay for her legal representation in these proceedings.
·At the same time as working full-time, is studying successfully towards completion of a degree at a Brisbane university with the aim of giving herself and C better economic prospects in future.
These matters satisfy me that the mother is clearly interested in being as good a mother as she can be to C and that she has the capacity to prioritise his needs and to provide for them. To the extent that the paternal grandparents presented evidence to the contrary, such as from Ms H, I do not accept it. Ms H, a former friend of the mother, had clearly had a falling out with the mother over money at some time in recent years and, I find, possessed little objectivity when it came to expressing her views of the mother. Her evidence did not impress me at all. That it was obtained and put before the Court by the paternal grandparents did not impress me either.
The observations and opinions contained within the reports of Ms J and the Family Consultant satisfy me that C and his mother are lovingly bonded in an appropriate parent-child way.
I accept the views effectively expressed by Ms J and Professor V that there would need to be some particularly potent reason for determining that a child’s best interests are served by placing him in the full-time day to day care of his grandparents when the evidence establishes there is otherwise a parent ready and willing to care for him and with adequate capacity to do so.
Having determined that I reject the submissions put on behalf of the grandparents and the father that I would find the mother to be uninterested and incompetent in her parental role with respect to C, I go on to consider the two other significant arguments put on behalf of the grandparents and the father to determine if they are indeed potent enough to cause me to find that C’s best interests require him to be cared for by his grandparents instead of his mother.
They argue that the mother is a liar, that she has lied about very serious matters to the Court and, as their solicitor put to the Court in his final submissions, “it is not a good message to send to the community that litigants should lie and get away with it.”
Certainly this Court, like all others, depends greatly on witnesses telling the truth in proceedings before it. The giving of false evidence generally, though not always, makes the task of the Court more difficult. Discerning where credibility lies is not always easy and it must be acknowledged that mistakes can be made in that regard. Determination of where the truth lies, whilst important, is not the principal focus of the Court when deciding competing parenting applications. The process is principally one of determining what parenting orders should be made as between parties who cannot agree as to parenting arrangements between themselves, having mandatory regard to the best interests of the child whose parenting is in issue. The requirement for determining where the truth lies arises as part of that process where there is disagreement about a matter of fact that is relevant to that principal determination.

A determination, on the balance of probabilities, that a witness is not telling the truth about a particular fact does not necessarily lead to a determination that the witness is not telling the truth in respect of all of her evidence. A determination that a party to the proceedings is not telling the truth about a particular fact, or more than one fact, does not necessarily lead to the making of parenting orders as sought by the other party or parties. In proceedings where parenting orders are sought, the best interests of the subject child dictate the outcome, not any requirement to punish a party whose evidence the Court does not accept as truthful.
The Legislature has, by including s 117AB in the Act, mandated a particular outcome where the Court is satisfied that a party to the proceedings knowingly made a false allegation in the proceedings. That outcome is that the Court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings. It does not require determination of the proceedings in favour of the other party.
As already observed, in this case, the mother swore an affidavit in early 2010 in which she alleged that the paternal grandfather had sexually abused her whilst they lived in the same household and that he could be the father of C. There can be no underestimating the serious nature of that allegation. The paternal grandfather consistently denied the allegations. At the commencement of the trial before me, the mother’s counsel indicated that the mother resiled from those specific allegations and sought leave to give further evidence about it.
Leave was granted and, after some discussion, a certificate under s 128 of the Evidence Act 1995 (Cth) was sought in respect of such evidence. One was granted. The mother gave evidence that in so far as her previously sworn evidence included the allegation that the paternal grandfather had sexually abused her it was “very incorrect.” In so far as the evidence included the allegation that the paternal grandfather could be the father of C, the mother said that it was not true and that she knew Mr B Finch was C’s father.
Then the mother went on and gave some evidence that included some other serious allegations. She asserted that her former solicitor, who was acting for her at the time the subject affidavit was prepared and filed, had drawn the affidavit to include the false allegations against the grandfather without her instructions. She said that her former solicitor had presented the draft affidavit to her and said:
I want you to read something I have typed up for you. I do not want you to lie if you do not want to.
The mother said that she told her solicitor that the allegation included in the affidavit was not true and that she did not want it included. She said that her former solicitor then said to her:
In a Court room we need to get something serious against the grandfather.
The mother said she then responded:
I really do not like it there, I was not sexually abused.
She said her former solicitor had then said:
We need to come up with something very serious so that the grandfather cannot get that order.
The mother said she felt compelled and under pressure to include that false allegation in her affidavit and that she did, believing her former solicitor was giving her the best advice. The mother said that her former solicitor said to her about the false allegation:
You do not have to talk about it. You just have to burst into tears.
The mother said that she does admit that what she alleged against the paternal grandfather did not happen.
Clearly, the mother’s admission that she made a false allegation in an earlier affidavit is a serious matter. That she was prepared to admit at the trial that it was a false allegation, whilst commendable, does not totally remedy the wrong done to the paternal grandfather by the making of the allegation in the first place. Neither can the mother be in any way absolved of responsibility for making the false allegation by her assertion that she felt compelled and under pressure to make it. She ultimately swore the affidavit as true knowing it to be false. She is responsible for that.
As I have said though, it is misplaced to expect that simply making parenting orders as sought by the paternal grandparents is the way in which the Court would or could remedy the wrong done by the mother’s false allegation. The mother has admitted making a false allegation. There can, in the face of such an admission, be no doubt that s 117AB applies to such circumstances. Regardless of the outcome of the proceedings in so far as the parenting orders are concerned, the Court must make an order that the mother pay some or all of the costs of the grandparents and, potentially, the other parties. I will have to hear further submissions in respect of this issue in due course.
Otherwise, the relevance of the mother’s admission that she included false allegations in an affidavit is more in what it demonstrates about her personality and her attitude towards the role the paternal grandparents play in the life of the child, matters that are to be considered pursuant to s 60CC when determining what is in the child’s best interests.
In these circumstances, I digress to consider what, if anything, is the Court to make of the serious allegations made by the mother against her former solicitor? There was no application made by the mother or any of the other parties in the case for the matter to be adjourned so that the mother’s former solicitor could be informed of the serious allegations the mother had just made against her and given the opportunity to consider putting on evidence in response. There was no application made for the issue of a subpoena directed to the former solicitor requiring her to attend and give evidence in the trial. Nor did I, in the circumstances, consider it either necessary or appropriate to do any of those things of my own motion.
The mother was not challenged by the solicitor for the grandparents and the father or by counsel for the ICL in respect of her evidence about the former solicitor’s role in the making of the false allegation. Of course, that does not mean that I have to accept it. I harbour some very serious doubts about the mother’s honesty on this matter. Whilst it is not impossible that a solicitor might have said such things as the mother attributes to her, the probability of it happening is, fortunately, very low. Being already satisfied, on the mother’s own admission, that she was prepared to make false allegations against the father and let them stand uncorrected for over a year whilst proceedings progressed, I do not consider it necessary to make a finding in respect of the allegations she went on to make about her former solicitor. The mother and the paternal grandparents should know that it is open to any of them to bring the matter to the attention of the Legal Services Commission if they wish to have the serious allegations of professional misconduct by the solicitor considered by the proper authority.
As poorly as the matter reflects of the mother, I do not accept the argument that because the mother included those false allegations in her earlier affidavits that she is thereby disqualified from being the person to be given the principal responsibility of caring for C.
Professor V acknowledged that if her allegations against the paternal grandfather were false then personality issues are raised. But he still went on to say that he did not consider such personality issues to be such that they would impact on her ability to be the primary carer of the child. He said, considering the father’s significant disability with respect to being able to care for the child, the Court would have to find that the mother is very seriously flawed in personality to order that C live primarily with his paternal grandparents. I agree with that proposition and I do not find that the mother is so seriously flawed. As I have said already, the evidence satisfies me that the mother is otherwise a capable, caring mother to C.
The paternal grandparents and the father also assert that the mother is not capable of promoting the relationships between the child and them and that this mitigates seriously in favour of the child’s best interests being served by living with them instead of the mother.
It may be that the mother was dishonest by making the false allegations that she did in her earlier affidavit and there was an occasion or two where the weekends the child was to spend with the paternal grandparents and his father in early 2011 did not occur. However, I am not convinced that this evidences such a hostile attitude toward the paternal grandparents and the father on the part of the mother sufficient to support their argument. I formed the impression of the mother that she did appreciate the importance of the maintenance of family relationships, including for C and his father and his extended paternal family, and that she really did focus appropriately on C’s needs in this regard.
The mother has had to deal with the disability of the father and the particular personality of the paternal grandmother since separation in circumstances where they are seeking that C be removed from her principal care and be placed with them and where they are being extremely critical of her and her parenting capacities. Although her actions cannot be excused, they have to be seen in context and I am certainly satisfied that, at the trial, the mother had an appreciation of the importance of the obligation to comply with orders of the Court and the potential consequences of failing to do so without reasonable excuse. With orders providing for C to live with her in place, I expect the mother will have very little difficulty complying with the orders that require him to spend some time with his father and his paternal grandparents and that she will act appropriately to ensure that his important relationships with them are maintained. I am not convinced that she will work to undermine them on an ongoing basis.
On the other hand, the personalities of the paternal grandparents combined with their feelings towards the mother, cause me to be concerned that if I was to put C into their principal care, as much as they love him and as well as they might care for him, that his very important relationship with his mother would be put at significant risk. Indeed, the Family Consultant went as far as expressing the view that the paternal grandmother has “seemingly dysregulated emotions in relation to the mother” and that exposing C to those for any period of time presented a risk to his wellbeing.
The Family Consultant reported that the paternal grandmother was “intrusive and domineering in her interactions” with him. He considered that she had a “self-oriented perspective and apparent inability to empathise with her grandson’s experiences”. When the paternal grandmother was in the witness box being cross-examined, I was certainly struck by the strength and certainty of her feelings. I was able to easily see how the Family Consultant might have formed the opinions that he expressed.
I note though that Professor V reported his consideration of the personalities of the paternal grandparents in the “normal range”. Nevertheless, he went on to express the view that the grandmother has a highly enmeshed relationship with the father to the extent that there may be some boundary issues. The Professor said that this is not at all uncommon in families where there is a child with Schizophrenia, particularly where the Schizophrenia begins at a relatively early age. He said that whilst the paternal grandmother does present as having “high expressed emotion” that this is likely to be a reflection of the impact of Schizophrenia in a family. The Professor went on to say:
It is difficult to over-state the profound destabilising and often pathological impact of Schizophrenia on the family dynamics. [The father] was only 14 when the illness first manifested. It is almost inevitable that they would develop a highly dependent relationship with his mother who has devoted herself to his care even at the expense of her relationship with her daughter. She may have had little choice. Mothers in this situation alternate between infantalising the schizophrenic child to denying the reality of the illness and they can sometimes develop issues of boundary. The mother’s involvement in obtaining a wife for [the father] and the subsequent arguable over-involvement in [the father’s] relationship are indicative of this, as is her view that she and her husband are more appropriate parents for the child than his mother.
Importantly, these dynamic issues are a reaction to [the father’s] illness and his disability and do not, in my view, reflect any fundamental psychopathology in his parents to the extent that would disqualify them from being appropriate and caring grandparents. There is certainly no reason why contact between the grandmother and grandson requires to be supervised.
It seems on the date that the child, [C], does have an attachment to his grandparents and a relationship of some meaning with his father. If the Court were to decide that it is in the best interests of the child for him to remain under the primary care of his mother, then there is no psychiatric contra-indication to the child spending occasional time with his grandparents including overnight stays. During these stays he could spend significant time with his father in the company of the grandparents and there could be time limited contact with the father on his own.
Unless there is a significant improvement in the father’s condition, it is likely that as the child, [C], grows older his relationship with his father will become of less importance in his life. This may strengthen the need for an enduring relationship with the grandparents.
I conclude that there is no substance to the paternal grandparents’ arguments that the mother’s attitudes to them combined with her personality will result in the relationships between child and father and grandparents being unsupported by her to such an extent that the child should live with them. In fact, I am persuaded that there is far more substance to an argument going the other way and that placing the child with the grandparents would likely result in significant damage to his relationship with his mother that would have far more serious outcomes for his emotional wellbeing in the short and long-term.
C has been principally cared for by his mother all of his life so far. His care has been provided almost solely by her (with the more recent help of her sister) for the last three and half years. I am satisfied that the standard of care he receives is appropriate to his needs. I do not consider that his best interests demand changing this. Accordingly, having determined that it is in C’s best interests for him to continue to live with his mother there remains to be determined the conferral of parental responsibility and the question of what time he is to spend with his father and his grandparents.

The presumption of equal shared parental responsibily

Section 61B of the Act provides as follows:
Meaning of “parental responsibility”
In this Part, “parental responsibility”, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61C provides:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section.)
Section 61DA provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
….
….
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAC provides:
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see s 65DAE)
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Section 65DAE provides:
No need to consult on issues that are not major long-term issues
(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a)has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major long-term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.
(2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.
“Major long-term issues” is defined in s 4:
Major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
i.the child’s education (both current and future); and
ii.the child’s religious and cultural upbringing; and
iii.the child’s health; and
iv.the child’s name; and
v.changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
The consultation and genuine effort to come to a joint decision about an issue that is required by s 65DAC is limited to only decisions about “major long-term issues.” “Major long-term issues” include issues about the care, welfare and development of the child of a long term nature about the child’s education (both current and future), religious and cultural upbringing, and health. Clearly, the effect of s 65DAC is that if I make an order for parental responsibility to be shared between the parents and the paternal grandparents in this case, then the mother is required, by law, to consult with the father and the paternal grandparents before any decision on a major long-term issue about C is made and they are all required to make a genuine effort to make the decision jointly and then, ultimately, to make it jointly. As can be seen, the sections of the Act cited do not actually make express provision for what is to happen in the event of failure to agree on making the decision. By inference, in my view at least, the decision cannot then be made and acted on without an order of this Court.

Where parents and significant others (as in this case) are in high conflict and have demonstrated an incapacity to be able to put the conflict aside, it is very difficult to be satisfied that it is in the best interests of a child to put in place a parental responsibility regime that is likely simply to result in the most significant decisions that have to be taken in respect of a child’s life being unable to be made and acted upon without the parties being required to come back to this Court, potentially on a repeated basis. The Court must apply a presumption that equal shared parental responsibility is in a child’s best interests but the presumption is rebutted where the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
In this case, I have no difficulty finding that as C’s father is sadly afflicted by Schizophrenia, and is likely to be particularly influenced by his parents’ (particularly his mother’s) views about the mother and parenting matters, that it is not in C’s best interests for his parents to have equal shared parental responsibility. The prospect of them agreeing on decision making in respect of decisions about major long-term issues is, in such circumstances at this point in time, very poor. I am satisfied that the father’s condition really prevents him from having the capacity to properly consider and make decisions in respect of major long-term issues that are in C’s best interests.
I am also not satisfied that conferring any parental responsibility on C’s paternal grandparents whilst he lives with his mother in Brisbane is in his best interests having regard to the high conflict between them and the feelings the paternal grandparents have for the mother.
I am prepared to make an order conferring sole parental responsibility on the mother in this case because I am also satisfied that she has the capacity to make appropriate decisions about major long-term issues having regard to C’s best interests and I am further satisfied that it is in his best interests for her to be able to do that, ultimately, unfettered by the views of the paternal grandparents and the father. I will nevertheless provide for her to seek input from them before she makes these decisions but she will be able to make the decision that she considers best without veto from the father or the paternal grandparents.

What time should C spend with his father and paternal grandparents and what other orders should be made?

Both Ms J and Professor V expressed opinions that there was no reason they were aware of, within their respective fields of expertise, as to why C should not spend time with his father and his paternal grandparents on an ongoing basis without the requirement of supervision, save in respect of the father, who all involved in this case, with one slight exception, agree should be supervised when C is spending time with him. The exception was Professor V who did express the opinion, in the earlier cited passage from his last report, that C could spend a couple of hours in the unsupervised care of his father from time to time. I was not so convinced but shall return to that a little further on.
Both of these experts saw all of the relevant parties, and Ms J saw them with the child as well, in the course of the preparation of two reports by each of them over the course of the last few years since the mother and child left Town A.
It was only the Family Consultant who saw them all in the course of preparing a relatively short form single family assessment who opined that C’s time with his father and his paternal grandparents should take place under the supervision of a contact centre. He was particularly concerned about the father’s Schizophrenia and the paternal grandmother’s attitude to the mother, seemingly convinced that she would not be able to restrain herself from denigrating and undermining the mother when looking after C.
Whilst understanding the basis for the Family Consultant’s opinion, I am persuaded by the weight of the opinions expressed by Ms J and Professor V that C’s relationships with his father and his paternal grandparents are such that I find he would actually benefit from more time being spent with them than could possibly be facilitated through a child contact centre. With respect to the Family Consultant and the ICL in this case who adopted the very limited position taken by the Family Consultant, I do not consider that providing for C to spend time with his paternal grandparents for occasional weekends and for a few week long blocks in school holidays during which time he can also spend time, in their care, in the company of his father, exposes him to an unacceptable risk of harm that can only be ameliorated by providing for very limited supervised time at a child contact centre.
I do consider that there are some orders that I can also make that will provide extra protection for C in respect of his emotional well-being during the time he spends with them, particularly in respect to the risk posed by his paternal grandmother’s attitude towards the mother. An order for non-denigration of the mother is a good example. An order restraining the father and the paternal grandparents from referring to the paternal grandmother as “mum” or encouraging the child to call her that is another example. The paternal grandmother conceded in evidence that C was calling her “mum” in the past and she made it absolutely clear that she saw no problem with that. I do not consider it in his best interests to be referring to his paternal grandmother as “mum”. It could be emotionally confusing and destabilising for him and should not be permitted. My orders will expressly prohibit it.
At the trial, the evidence was that the father was not living at home with his parents at that time. He was living in share accommodation with one other person. It may be that he still is but I consider it likely that from time to time the father will be living back in his parents’ home. Clearly, the time that C spends away from his mother and with his father and paternal grandparents should be in the paternal grandparents’ care and the time he spends with his father should be, in my view, limited to when he is with his paternal grandparents or, at least, one of them. I expect there would be no difficulty with the father staying at his parents’ home on occasions that C is in their care even if he is otherwise living away from them at such time. Even if he does not stay overnight in the same home, I expect the grandparents will facilitate as much time as possible between C and his father.
Although Professor V did not rule out C spending a few unsupervised hours with his father, I do consider, having seen and heard the father in the witness box and having regard to other evidence that was before me, that allowing the father to have unsupervised time with C would expose C to an unacceptable risk of emotional and physical harm.
I find, on the evidence, that the father sometimes loses self-control and has physical confrontations with others around him, including his parents. He has had a reasonably serious car accident whilst driving alone in the past, as well as having an anxiety attack and losing self-control whilst travelling in the car with his parents on one occasion. Notwithstanding the Professor’s opinion on this, I am not satisfied that if the father was to have C in his sole care that there would never be an occasion when he lost self-control in this way or that he would always be able to exercise sound judgment in a sudden crisis. Accordingly, I consider it in C’s best interests to spend time with his father only when one or both of his paternal grandparents are present as well. I do not intend by this that they or one of them must be in the immediate presence of the father and C at all times but, by my orders, I intend for them to be in the general vicinity in the home or any other location where the father and C may be.
Both the paternal grandparents are employed. They each work shifts over a fairly full week. They do not always work at the same time. At the time of trial, they had boarders in their home. They might still, and they could from time to time in the future. It seems the boarders change on a frequent basis. I consider it in C’s best interests to make orders that require at least one of the grandparents not to be working during the entirety of the weekends and weeks that C spends with them. Rostering and annual holiday entitlements would, I am satisfied, facilitate such a position.
I have confidence that the paternal grandparents will comply with all of the orders that I make in this case. I am satisfied that they love their grandson dearly and that they will want to continue to have a meaningful relationship with him as he grows up, as well as being committed to the belief that it is in his interests to maintain a relationship with his father as he grows. I do not expect that they will, after the orders are made in this case, act in a manner that jeopardizes the prospect of C continuing to spend time with them and their son in their home in Town A into the future. I feel sure that having only had limited supervised time with C since the trial, they will be most unlikely to act in a way that might lead to the reintroduction of such a restricted regime in the future. It is with that confidence that I determine that unsupervised time between the paternal grandparents and C can be reintroduced at this point and that it be in the form that Ms J initially recommended, and as generally supported by Professor V’s opinions.
Having regard to the distance between Brisbane and Town A, I am satisfied that making orders that provide for C to spend one weekend each school term and for three one week blocks during his school holidays with his paternal grandparents and, through them, his father, is appropriate for the maintenance of the meaningful relationships that they have and will put only minimal but acceptable strain on his relationship with his mother.
I consider a mechanism for providing certainty to the mother as to when C is to spend that time with his grandparents and his father with sufficient notice is essential and I will provide for that.
The mother has a car, recently purchased and at the time of the trial she lived on the south side of Brisbane. She is working and studying and no doubt has a busy weekly schedule. The grandparents have a car too. They also work but would, I expect, be taking advantage of annual leave entitlements when having the week long blocks with C. The distance between the centre of Brisbane and Town A is approximately 360 kms and it takes about 4 hours to drive. I take that into account when considering the orders I make, particularly with respect to place and time of transition. I will make orders that the mother and the grandparents share the responsibility for travelling to facilitate C’s time with his grandparents and father, though not necessarily equally.
I will also make orders for the parties to keep each other informed of their contact details, for the mother to keep the paternal grandparents advised in respect of any medication C requires when with them and for the grandparents and father to be able to contact the child’s school and request of them information that the school is lawfully entitled to give them. The orders will also allow the grandparents and the father to attend at the child’s school at any event that they would normally be invited to or entitled to attend.
The orders will provide for what I consider is reasonable and appropriate telephone communication between the parties and the child and will also ensure that special days such as Christmas, Easter and the child’s birthday are shared between the parties from year to year.
I will also be making an order that the paternal grandparents and the father refrain from abusing or assaulting each other when the child is in their care. I consider this necessary as there is evidence that even since separation the father and the paternal grandfather have had physical altercations where punches have been thrown by each at the other. It is simply not appropriate for C to be exposed to this behaviour when he is with them.
For all of those reasons, I make the orders set out at the commencement hereof.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 23 March, 2012.

Associate:

Date: 23 March 2012

[2012] FamCA 171

23 March 2012

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