Fotherdell & Stadley and Ors

FAMILY COURT OF AUSTRALIA

FOTHERDELL & STADLEY AND ORS

[2009] FamCA 606

FAMILY LAW – CHLDREN – With whom children live – Grandparents – Separation of siblings

APPLICANT:

Mr N Fotherdell

FIRST RESPONDENT:

Ms S Stadley

SECOND RESPONDENT:

Ms L Stadley

INTERVENERS:

Mr J Fotherdell and Mrs Y Fotherdell

FILE NUMBER:

BRF

1400

2005

DATE DELIVERED:

24 June 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

22 June 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

The Applicant Father appeared in person by telephone link

SOLICITOR FOR THE FIRST

RESPONDENT:

There was no appearance by the First Respondent Mother

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Rennick of Counsel appeared for the Second Respondent Maternal Grandmother

SOLICITOR FOR THE INTERVENERS:

The Intervening Paternal Grandparents appeared in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr George of Counsel appeared for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Grant & Associates, Solicitors

Orders

The child, M, born … November 2000, (hereafter “M”) live with the Maternal Grandmother (Ms L Stadley).
The child, J, born … November 2001, (hereafter “J”) live with the Paternal Grandparents (Mr J Fotherdell and Mrs Y Fotherdell).
The Maternal Grandmother and the Paternal Grandparents have equal shared parental responsibility for the said children M and J.
The Maternal Grandmother shall spend time and communicate with the child J at all times as may be agreed between the Maternal Grandmother and the Paternal Grandparents and failing agreement on the following occasions:

(a)during the school term from 5.00 pm Friday to 5.00 pm Sunday on the third weekend of each calendar month PROVIDED THAT should the Friday immediately preceding or the Monday immediately following such weekend be a public holiday, then such time shall commence at 5.00 pm on Thursday or conclude at 5.00 pm on Monday as the case may be;
(b)for the first half of the 2009 June/July school holidays;
(c)save as set out in Order 4(b) hereof, for the second half of the Easter, June/July, September/October and Christmas school holidays in odd-numbered years and for the first half thereof in even-numbered years.

The Paternal Grandparents shall spend time and communicate with the child M at all times as may be agreed between the Maternal Grandmother and the Paternal Grandparents and failing agreement on the following occasions:

(a)during the school term from 5.00 pm Friday to 5.00 pm Sunday on the first weekend of each calendar month PROVIDED THAT should the Friday immediately preceding or the Monday immediately following such weekend be a public holiday, then such time shall commence at 5.00 pm on Thursday or conclude at 5.00 pm on Monday as the case may be;
(b)for the second half of the 2009 June/July school holidays commencing at 5.00 pm on Saturday, 4 July 2009;
(c)save as set out in 5(b) hereof, for the first half of the Easter, June/July, September/October and Christmas school holidays in odd-numbered years and for the second half thereof in even-numbered years.

For the purpose of the child M spending time with the Paternal Grandparents pursuant hereto, the Paternal Grandparents shall collect the said child from the E Railway Station at the commencement of such time and return the said child to the residence of the Maternal Grandmother at the conclusion of such time or otherwise as may be agreed from time to time.
For the purpose of the child J spending time with the Maternal Grandmother pursuant hereto, the Maternal Grandmother shall collect the said child from the E Railway Station at the commencement of such time and the Paternal Grandparents shall collect the said child from the residence of the Maternal Grandmother at the conclusion of such time or otherwise as may be agreed from time to time.
The Maternal Grandmother and Paternal Grandparents shall encourage and facilitate the said children telephoning each other or the other at all reasonable times.
The Father be permitted to communicate with the said children by telephone at all reasonable times as may be agreed with the Paternal Grandparents.

10. The Father be permitted to write to the said children and forward cards, gifts and the like to them at all reasonable times as may be agreed with the Paternal Grandparents.

11. The Father be restrained from attending at the Paternal Grandparent’s home without their consent and only upon having given the Paternal Grandparents not less than twenty-four (24) hours notice.

12. The Maternal Grandmother and the Paternal Grandparents use their best endeavours to ensure that the Father does not come into physical contact with the said children at any time.

13. That the within Orders hereby authorise the school/s attended by the said children to provide to the Maternal Grandmother and the Paternal Grandparents, upon their request and at their cost, copies of school reports, school newsletters, applications for class photographs and the like AND FURTHER to provide information to the Maternal Grandmother and the Paternal Grandparents in relation to the said children’s educational and social progress.

14. That the within Orders hereby authorise any medical and/or allied health professional consulted by the said children to provide to the Maternal Grandmother and the Paternal Grandparents, upon their request and at their cost, copies of documents and/or information in relation to the said children’s health and welfare.

15. The Maternal Grandmother and Paternal Grandparents shall keep each other informed at all times of their current residential address and contact telephone numbers (including landline if applicable) and of the name and contact details of any school/s attended by and/or medical and allied health professionals consulted by the said children from time to time.

IT IS FURTHER ORDERED THAT:

16. All outstanding applications be dismissed.

17. The Independent Children’s Lawyer be discharged.

18. Pursuant to s65DA(2) and s62B, 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 the Maternal Grandmother and Paternal Grandparents shall use their best endeavours to ensure that each of them are able to spend time with the said children (and the children with each other) on or about special occasions including but not limited to the children’s birthdays, Mother’s Day, Father’s Day and the like.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1400 of 2005

MR N FOTHERDELL

Applicant Father

And

MS S STADLEY

First Respondent Mother

And

MS L STADLEY
Second Respondent Maternal Grandmother

And

MR J AND MRS Y FOTHERDELL
Intervening Paternal Grandparents

REASONS FOR JUDGMENT

This litigation concerns the future care of two young children, M and her brother, J born in November 2000 and November 2001 respectively.
The applicant, Mr N Fortherdell, is the biological father of these children. He is currently incarcerated in a Correctional Centre. The earliest time any application for parole could be made by him is August this year. In the current litigation which predates his incarceration, he simply supports the orders sought by his parents, Mr J and Mrs Y Fotherdell.
The biological mother of the children has not filed material pursuant to directions issued in this matter, nor did she seek to appear at the hearing. I am satisfied she is well appraised of the fact that the hearing was to take place this week. She has a further child, R, born in about September 2007 in her care. She resides in the north coast region of South-East Queensland.
The contest in the proceedings before me was between the maternal grandmother, Ms L Stadley, on the one hand and Mr J and Mrs Y Fotherdell, the paternal grandparents on the other. It is convenient to refer to the parties by their Christian names. Agreement was given to this approach during the course of the hearing before me.
The child, M, has been in the care of the maternal grandmother, L, since she was about nine months of age. There is no challenge but that M should continue to remain in the maternal grandmother’s full time care. There are issues as to what arrangements should be made for her to spend time with her paternal grandparents.
The child, J, until last year had been raised by his mother. By all accounts her parenting of this child left a great deal to be desired. The child was regularly moved from school to school and no adequate treatment was sought for his speech impediment. A little over 12 months ago the mother voluntarily surrendered J to the maternal grandmother’s care. This litigation has had a lengthy and somewhat troubled history which I will endeavour to summarise during the course of these reasons.

Orders Sought by the Independent Children's Lawyer.

The orders as sought by the independent children's lawyer are to be found at page 33 of the outline of case document filed 17 June 2009. In summary form those orders provide that M live with the maternal grandmother, that J reside with the paternal grandparents, that the three grandparents have equal shared parental responsibility for both children and that there be orders that the children spend time with each other each weekend and for all of school holidays, alternating on an equal basis, between the two homes.
There are also ancillary orders sought relating to additional communication, travel arrangements and suchlike. Of particular note was an order that the paternal grandparents not permit their son, N, to have physical contact with the children although there was provision for communication by mail or phone.

Orders Sought by the Paternal Grandparents

At the commencement of the hearing the paternal grandparents J and Y Fotherdell indicated they sought orders in identical terms to those proposed by the independent children's lawyer. By the conclusion of the hearing, however, there was a challenge to paragraph 4 of those orders. The Fotherdells now proposed that the children spend time with each other on alternate weekends only so that it would mean J would be travelling to the maternal grandmother's residence one weekend a month when the two children would be together and M would travel to their residence a fortnight later, one other weekend in a four week period.

Orders Sought by the Maternal Grandmother

The orders sought by the maternal grandmother are as set out in exhibit 4. They provide that both children reside with her and spend time with the paternal grandparents every third weekend from 5.00 pm Friday until 5.00 pm Sunday and the children spend additional time and communicate with the paternal grandparents at such further times as may be agreed between the maternal grandmother and the paternal grandparents but, failing agreement, three consecutive nights on the first weekend of gazetted school holidays and for a period of nine nights during the Christmas school holidays each year. Counsel for the maternal grandmother indicated those orders were drafted in early 2008 and no objection would be made for an order for the children to spend more frequent time with the paternal grandparents. Why that was not spelt out when I first sought clarification of the orders sought by the maternal grandmother was not made clear.
At the commencement of the hearing leave was sought to file an affidavit from the maternal grandmother. The maternal grandmother had last filed material, being the parenting questionnaire, on 14 July 2008. She had not complied with trial directions made well over 12 months ago. The matter had been set down for trial before me in February this year as a reserved matter but could not proceed at that time. That date, as I recall, was early February this year. It was evident when the matter was called on that the maternal grandmother had not complied with the directions to file material. I extended the time in which she could file material to 20 February this year. Still nothing was filed until leave was sought to file material on the morning of the trial. For reasons I gave at the time I refused to allow such material to be read.

Witnesses Giving Evidence

As no orders were sought by the children's father, he was not required to give evidence although he attended the proceedings by way of telephone link-up from the correctional centre. As noted earlier, the mother did not attend at all. Oral evidence was taken from the maternal grandmother, the paternal grandparents and the social worker, Ms J, who had provided four reports in the period, December 2005 through to November 2008. The independent children's lawyer also relied on affidavits of Dr M, a psychiatrist in private practice in Brisbane, filed on 29 March 2006 and 6 September 2006. She was not required for cross-examination by any of the parties. In addition there was a report from Ms W, a speech pathologist. Her report was annexed to an affidavit filed on 11 February 2009, an updated report by her of 4 June 2009 was tendered and marked exhibit 5. On the basis of this further report Ms W was not required for cross‑examination by any of the parties. By consent, documents from the children's school annexing their school reports for the 2007/2008 years were produced as exhibit 6.

Issue for Determination

The central issue for determination is whether the siblings should be separated by virtue of the orders I must make. The paternal grandparents seek that this be the case, the maternal grandmother opposes that course. The independent children's lawyer adopted the somewhat unusual stance of indicating the orders to be recommended to the Court at the outset of a hearing rather than waiting until the conclusion of the trial. As noted above, the independent children's lawyer recommends to the Court that the child, J, be placed in the care of his paternal grandparents.

Chronology

The paternal grandfather is 67 years of age, the paternal grandmother is 64 years of age and the maternal grandmother, 50 years of age. The father was born in February 1976 and the mother in June of 1981. After a brief relationship the parents separated in December 2002 shortly after the birth of J, although the evidence would indicate they continued to see each other from time to time. It is not disputed other than the fact that the relationship between the parents was a volatile one.
In about the year 2000 the father was diagnosed as suffering paranoid schizophrenia. The mother, at all times, attended special schools throughout her education. Serious questions have been raised about her capacity to parent her children. The father was released from prison, having served a term of approximately 12 months in about March 2004. He applied to the Magistrates Court at E for orders relating to the children in about November 2004.
Some time around mid-2004 the maternal grandmother moved to Tasmania with M. I can only assume that at that time she also travelled with her twin children, D and W, who were born in August 1989. They would have been 14 or 15 years old at the time. The consequence of the move to Tasmania was that S, the mother, was left to care for J on her own in South-East Queensland. There is a considerable body of evidence which would indicate at that time J was not receiving adequate care whilst with his mother.
In September 2005 Judicial Registrar Smith, on the application of the mother, made a location order directed to Centrelink to obtain information as to the whereabouts of the maternal grandmother. When the maternal grandmother was made aware of this litigation she returned from Tasmania to South-East Queensland. The father was also seeking location orders directed to Centrelink to ascertain the whereabouts of both the mother and the maternal grandmother. In explaining her move to Tasmania, the maternal grandmother deposed as follows in an affidavit filed 13 October 2006, paragraphs 46, 48 and 49:
"46:I relocated with [M] to Tasmania somewhere between mid-2004 and early 2005. I cannot recall the specific date. I'd always wanted to go to Tasmania and decided that if I was to move that I should do so before [M] started school. Prior to relocating to Tasmania I lived continuously in the Sunshine Coast area when [M] had been in my care.
48.During the time [M] and I were in Tasmania I talked to [the mother] about her coming down with [J] to visit us but [the mother] could not afford this - - I telephoned [the mother] from time to time while [M] and I were in Tasmania and [M] would speak to [the mother] and [J] at these times.
49In September 2005 I heard from [the mother] that there was some sort of action in the Family Court with respect to [M]".
In paragraphs 54, 56 and 57 of the same affidavit the maternal says:
"54.When I travelled to Queensland for the Court proceedings it was not my intention to return permanently to Queensland, however, due to the Court proceedings and my requirements to participate in the process of family reports, it was necessary for me to make arrangements to travel to and remain in Queensland for the interim hearing on 11 January 2006 and for a month or two following the interim hearing. I was under no obligation to remain in Queensland after this time but made the decision to stay.
56.These Court proceedings have been very disruptive to my living arrangements and those of my children. Throughout this year I had intended to move back to Tasmania at the end of the year. I was not going to move during the year to allow [M] to finish the year at the one school and also to develop a stronger bond with her mother, her brother, [J], as well as her father. I felt staying in Queensland would also help me to gauge how [M] is coping with the contact arrangements and how she might cope if we move back to Tasmania.
57.As a result of having settled back with [M] and my children to the Sunshine Coast area and my children obtaining employment and taking up opportunities to study, I've decided that I no longer intend to relocate to Tasmania with [M]."
Interviews were conducted by social worker, Ms J, in early December 2005. Her report dated 12 December 2005 was issued shortly after the interview process. In early 2008, the father was sentenced to a further period of imprisonment on armed robbery charges. After this event the paternal grandparents sought to intervene in the proceedings to seek orders as described. Pursuant to Court orders the paternal grandparents have seen the children on a regular basis, though not without some difficulty on occasions.

Reports of Ms J

Ms J - First Report

As noted, the first report of Ms J was prepared on 12 December 2005. When this report was prepared the issue in dispute was what time the father should spend with the children and what conditions should attach to such visits. It was noteworthy that location orders had been made to locate both the mother and the maternal grandmother. In this first report in making observations concerning the maternal grandmother, Ms J observed:
"41.[The maternal grandmother] states that she's now self-employed in [alternative therapies]. […].
42.On the face of it [the maternal grandmother] was co-operative with the interview process. She conveys herself as having gained wisdom from a grim history of life challenges. I formed the view, however, that her insight into relational issues is greatly limited. There are notable dependency and histrionic features in her emotional presentation."

At paragraphs 64 to 66 of this report it is noted:
"64.[Ms S Stadley], the mother, has always had the full-time care of [J], thus [J] and [M] have had virtually no contact with each other. They barely know each other.
65.[The father] and his parents have not seen [M] since she was one year old nor [J] since he was also about one year old, although [the father’s] overall affect is blunted from his illness, his feelings about his children are strong. The [paternal grandparents] confirm that he has never wavered from his deep desire to be reunited with them.
66.For their part, [the paternal grandparents] present as a family-focused household and they have felt this as a sad loss too. They state that they attempted to ring [the maternal grandmother] numerous times in the early stages when they were still in touch with [Ms Stadley] in order to see [M]."
At paragraphs 78 an 79 of her report under the subheading "The Relationship Between [the mother] and the Maternal Grandmother" it is noted:
"78.[The maternal grandmother] does not appear to find the breached nature of her relationship with her daughter particularly remarkable. Indeed she presents as being quite removed from the process. Although [the mother] and [the father] have been separated now for four years she's reluctant to entrust [the mother] with any private details. She appears tired of [the mother’s] antics and immaturity. She says that [the mother] has always surrounded herself with dramas and that she, [the maternal grandmother], has no interest in knowing about these.
79.From the accounts of those interviewed it seems that [the paternal grandparents] were the ones to bend over backwards, so to speak, to help [the mother] out and be a surrogate mother and father to her. This continued even for a year or so after the young couple separated until she disappeared."
It appears that one reason why she disappeared was that she had formed a relationship with a person referred to in the affidavits as T. It is now challenged whether T is the father of her third child, R. Nothing reliable is known of her current circumstances. In commenting on the children at paragraphs 88 and 89 of this first report Ms J notes:
"88.I saw [M] and [J] with [the father] and the paternal grandparents. [The paternal grandparents] were excellent with them, warm and engaging. They provided an excellent bridge for [the father], who was shy and stilted in relating with the children.
89.During this session [J] spent much of his time exploring toys whilst [M] moved from one adult's lap to another. Since she had never met any of them since her pre-verbal age I view her behaviour as overly affectionate. It is possible that this suggests a degree of emotional deprivation although the current data is too slim to draw such a conclusion with confidence."
Under the heading "Summary Assessment and Conclusions" at paragraphs 104 and 105 it is noted:
"104.I have been unable to form a clear picture of the maternal grandmother's adjustment. Whilst she said all the right things during this assessment, her actions over [M’s] lifetime suggest she has moved around constantly. She has kept her activity and details secret. Her relationship with her daughter has been seriously damaged since at least adolescence.
105.She's raised [M] single-handedly as her own daughter. She appears to have had little compunction in keeping her isolated from both of her parents and from her paternal extended family."
I accept the observations made in Ms J’s first report and, indeed, in the other reports to which I will shortly be referring. In particular, I accept that the maternal grandmother’s conduct over the years would indicate she was determined to keep M in her care.
“[M] refers to [the maternal grandmother] as mum and to her natural mother [by her first name]. The conduct of [the maternal grandmother] probably stems from the instability that resulted to [M] with [the mother] regularly placing the child in her care and then after a period, removing the child from that care. After a period of time [the maternal grandmother] determined that the child was best in her care but was at all times concerned about [the mother] unilaterally deciding to take the child from her or instituting legal proceedings. There is a strong sense that for the maternal grandmother her primary concern was the well being of [M]. The needs of [J] tended to involve a secondary consideration."

Second Report of Ms J dated 16 October 2006

At the time of preparation of this report the issue was again what time the father should have with his children and what conditions, if any, should attach. At paragraph 38, in making observations about the children Ms J notes in relation to their reaction to the paternal side of the family:
"38.Apart from this the children were happy to see the [paternal grandparents]. [The paternal grandmother] has a natural easy manner with little children. They warm to her. I suspect that this is also the case for [the paternal grandfather], although his natural demeanour is to sit back a little more and wait for the children to involve him.
40.[J] seems somewhat confused by being in an unfamiliar environment and what was going on around him. After a short while, however, he settled into playing with building blocks with [Mr Fotherdell]. [Mr Fotherdell] followed the child's cues and responded well."
At paragraph 46 of her report under the heading "Summary Assessment and Conclusions" Ms J recommended that the timing was right to advance to the next stage of the paternal grandparents informally supervising the father's day visits. As I understand the evidence this did not eventuate.

Third Report of Ms J dated 10 March 2008

In the introduction to this report Ms J notes at paragraph 7:
"The maternal grandmother was gracious and superficially co-operative but it is my view that she provided information on a need to know basis."
When dealing with the maternal grandmother's proposals and concerns Ms J noted in paragraph 65:
"In summary, [M] and [J] have seen very little of each other apart from their visits with the [paternal grandparents]."
When making observations of the children Ms J noted at paragraphs 79 and 80 to 82 - 84, 85, 87 and 90 as follows:
"79.[J] presented in this setting as a well behaved but mischievous, spontaneous young fellow who chattered happily about child related topics.
80.He told me that he loves seeing Nan and Pop and that he loves seeing [M].
81.[J’s] speech remains difficult to understand although it has improved upon the way that it was previously.
82.He's presently in grade 2. [The mother] wouldn't tell me which school he attends. She says that he's getting speech therapy through his school.
84.The most telling part of this section of the assessment surrounded [M]. [M] refused to see me when it was her turn. She lent against her grandmother's knees listening to her Ipod for the whole time and saying 'no' resolutely each time she was asked to come with me. Her behaviour amounted to a passive tantrum. [The maternal grandmother] sat playing with [M’s] hair and asking her to change her mind. She was never firm with her and it was essentially left to [M] to decide what she would do.
85.[M] only decided to change her mind when I agreed to see [J] and her together.
87.It is my view that these two children love spending time together.
90.They were both delighted to see the [paternal grandparents] and their warmth and affection with them was notable."
Under the heading "Summary Assessment and Conclusions" at paragraph 98 Ms J noted:
"I do not know a great deal about the maternal grandmother's parenting of [M] but her demonstration of managing [M’s] petulant behaviour during this assessment was far from impressive. She allowed [M] to make up the rules about whether or not I interviewed her. [M] refers to her mother [by her first name]. The maternal grandmother continues to exclude [M] from the mother's life as far as she can. She makes no effort to take [M] to visit the mother and [J]. Any visits that have taken place have come about because of the mother's efforts to go to the Sunshine Coast."
At paragraph 103 Ms J notes:
"They, the [paternal grandparents], want to continue to see the children on a regular basis in their own right. They have a warm and loving relationship with both children. They wish to provide a point of stability for both children."
At paragraph106 she notes:
"It is my view that a voluntary agreement will not work. Whilst the mother might comply for a fair bit of the time, the maternal grandmother would not. Her complaints about the [paternal grandparents] are trivial and ungenerous and tells far more about her and her attitudes than they do about the [paternal grandparents]."
At paragraph 107 she observes:
"In my opinion it would be an extraordinarily unfortunate outcome for the children if they are denied regular time with the [paternal grandparents] because the [paternal grandparents] do not have the wherewithal to represent themselves in Court."

The Fourth Report of Ms J dated 25 October 2008

Ms J notes in this report that the major change which had taken place was that J was now living in the same household with his sister, M, and being cared for by the maternal grandmother. The other change, of course, was that the paternal grandparents had been given leave to intervene and were now the major players. At paragraphs 35 to 42 she notes as follows:
"35.The [paternal grandparents] believe that it would be better for [J] to live with them. [J] is a headstrong little boy who needs constant management and one-on-one interaction to bring out the best in his development. They feel that they'd be stricter and more consistent in their approach to his behaviour.
36.They'd like to see [J] receive counselling. They note that he has been a challenged boy in recent months. His behaviour has deteriorated, he's been swearing badly and he's been notably aggressive towards [M]. As noted above, they believe that he's feeling rejection of having been displaced by [R] and having been abandoned by his mother.
37.[J’s] academic abilities are well behind his peers because of the disruption of his schooling and his extensive absenteeism. The [paternal grandparents] believe that they can provide him with the individual assistance and tutoring that he will need to bring his performance to an appropriate level.
38.They note that his speech is still very poor. They would ensure that he received professional consultations and treatment. They would fulfil any home training necessary to facilitate this.
39.[J] suffers from asthma and they would like to enrol him in swimming to improve his physical fitness and strength in his airways.
40.They hold reservations about whether [the maternal grandmother] and [J] have bonded. [J] always becomes sad when it's time to go home. They note the manner in which he stands to the side when [the maternal grandmother] arrives and how she hugs and greets [M] warmly. It seems to them that [J] is neglected in this process.
41.The [paternal grandparents] have considered also applying for [M] to live with them so that the children could be together. They have decided against this.
42.As they see it, there's a big difference between [M] and [J]. [The maternal grandmother] took over [M’s] care when she was a babe in arms and they formed a strong stable bond. Whilst I do not agree with some of [the maternal grandmother’s] views of parenting, they also recognise that it would be extremely traumatic for [M] to be removed from her care."
At paragraphs 53 to 56 she observes of the maternal grandmother's proposals:
"53.[The maternal grandmother] believes that [J] should live with her. She says that he's now settled in at school and doing well. She said that he and [M] are getting along well and she sees it as valuable for the children to be raised together.
54.She said that she has already given [J] all the things that the [paternal grandparents] say they'll be able to provide, that is, a stable home, activities, stable schooling and speech therapy.
55.She notes that she's also a lot younger than they are which assists in providing for his care.
56.She believes that [J] is missing his mother. She spoke about this in presumption terms rather than nominating any particular data to support her conclusion. She notes that [the mother] has told him that he will be returning to her when she gets a house and [the maternal grandmother] hasn't told him any differently. She says that [J] doesn't talk about it much."
Under the heading "Summary Assessment and Conclusions" in this fourth report Ms J notes at paragraph 101:
101.Time has slowly but certainly revealed to the Court process the extent of social, emotional and educational deprivation to which the mother exposed [J]. He had lived in countless addresses and refuges. He's probably been exposed to domestic violence. He's been enrolled in a plethora of schools and then not sent to them anyway. At six years old his speech was virtually unintelligible.
102. The mother has no insight into her parenting incapacities.
105.If the Court were to decide that [J] lives with [the maternal grandmother] this would mean that he and [M] would be re-unified for the first time in their lives.
106.[The maternal grandmother] has cared for [M] since she was a baby. Whilst this lass is somewhat precocious and empowered with too much authority for her age, it's fair to say that [the maternal grandmother] appears to have provided stably and consistently for her.
107.I, nevertheless, hold some reservations about [the maternal grandmother’s] parenting, most noticeably she has known about the extent of [J’s] deprivation for many years. She has essentially been silent about this in both words and actions. In my opinion, she ought to have acted to protect this child's welfare rather than wait until the mother relinquished him. Her commitment to [J] seems not to have had any historic depth.
108.To her credit she's now setting about meeting his needs, he is attending school regularly, he's receiving speech therapy.
111.If the Court were to decide that [J] live with the [paternal grandparents], it's my view that the [paternal grandparents] would provide excellent care for [J]. They're straightforward people who impress as entirely trustworthy. They're child focused and they have a clear idea of his needs and how to meet these.
112.They have demonstrated their commitment to [J] and [M]. They've never missed an opportunity to spend time with the children and this has often meant hours of driving in two different directions to collect both of them.
113.There is a serious question of whether the [paternal grandparents] could ensure that the children do not come into contact with their father unless the present Court orders are changed some time in the future to allow for this. The [paternal grandparents] appear to have canvassed this in their own minds as far as they can. They understand their responsibilities and they have spoken at length with the father about this.
115. In comparing the benefits for [J] of living with the [paternal grandparents] or [the maternal grandmother], the focus turns in part to [M]. [The paternal grandparents] have actively decided against applying for [M] because they believe that she's settled and bonded with [the maternal grandmother] and that moving the child would be acutely distressing for her.
116.In applying for [J] and not [M], this would result in splitting the siblings. Their sibling relationship is important to the two children.
117.That said, a decision to separate the siblings in this family is quite different from situations in most families where children have life-long relationships and dependency needs being met through one another's presence. In other words it's important but not necessarily pivotal unless the Court finds all else to be largely equal.
118.If the Court determines that [J] lives with the maternal grandmother it is my view that he and [M] should spend time with the paternal grandparents every second weekend and half of the school holidays and that travel time and costs are shared.
119.If the Court determines that [J] lives with the paternal grandparents it's my view that he and [M] should spend time with the maternal grandmother every second weekend and half of the school holidays and that travel time and costs are shared."
I do not find it necessary to refer to the reports of Dr M, the psychiatrist, and Ms W, the speech pathologist. I have considered the contents of those reports closely. I note there has been no challenge to the observations and conclusions made in those reports.
I have not had a great deal of assistance from the affidavits of the parties. Such affidavits in the case of the maternal grandmother are largely historical. The matter proceeded under the less adversarial trial process. A parenting questionnaire was completed by the respective grandparents. The joint affidavit of the paternal grandparents was filed on 28 January 2009 and was relatively brief in format. As noted previously the maternal grandmother filed no material. No adequate explanation was placed before the Court as to why this was the case. The maternal grandmother blamed her solicitor but I am somewhat sceptical. She is quite capable of displaying a forceful personality. She knew there were orders in place for the filing of material. It is surprising, in the circumstances, that she did not take steps to ensure that material had been prepared on her behalf until well before the last minute.
I turn to a consideration of the law to be applied. The Federal Parliament has passed laws which require me specifically to take into account the following factors, which I will proceed to enumerate. They are to be found at s 60CC of the legislation. Section 60CC deals first and foremost with primary considerations. There are two primary considerations. The first of those is:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents.
In my consideration of s 60CC I have to bear in mind that the contest here is between grandparents and not parents.
So far as the parents are concerned under this primary consideration the father says that upon his release he intends to bring an application before the Court seeking orders which will allow him to spend time with his children. It is not possible for me at this point in time to forecast the outcome of such an application.
The relationship between M and her mother is somewhat problematic due, in part, to the maternal grandmother’s possessive attitude towards her granddaughter. The relationship between M and her father is, at the present time, largely non-existent, although she has a reasonable relationship with the paternal grandparents.
The paternal grandparents, I might add, struck me as being extremely truthful in the giving of their evidence, both in their affidavit and their oral evidence. To my mind they are more open in nature and much more likely to be encouraging of a relationship with the extended family of both households. They have had a good relationship with the mother in the past, referring to themselves as being surrogate parents to her, even after the time of separation from the father.
The second primary consideration I have to take into account is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I am more than satisfied there is no risk of abuse, neglect or family violence in either household. I am more than satisfied the paternal grandparents are able to protect the children from their father, if indeed they need such protection. There is no evidence that the father has ever been violent to the children. He has certainly acted irrationally at times and that has to be taken into account. The events at the time of the armed robbery incident were particularly irrational and he has paid the penalty for that.

The father, by all accounts, adores his children. I am satisfied the paternal grandparents would protect their grandchildren from their father if ever the situation were to arise that they needed such protection. The paternal grandparents have a close relationship with their son.
The additional considerations which I have to take into account are set out in sub-s (3) of s 60CC. The first of those additional considerations is the views expressed by the children. A submission was made on behalf of the maternal grandmother that there was no updated report from Ms J and her report is virtually out of date. I accept that to some extent there is some merit in that submission but I note that this matter was originally listed for trial on 1 August 2008. I refer to the order of Registrar Coutts dated 26 June 2008 in that regard. It did not proceed to trial at that time but was set down as a reserve trial for 16 February 2009. Once again, it could not proceed at that time. I expect ordering a fifth report would produce more of the same. The observations of Ms J in her four previous reports follow a consistent pattern.
I am satisfied both children have a close and loving relationship with the paternal grandparents. There are strong indications of Ms J’s fourth report that the events which occurred during the course of the interviews between the children and the paternal grandparents were orchestrated by the maternal grandmother and/or the mother. I accept that M has a close relationship with the maternal grandmother. That relationship, of course, is not under challenge in any way. There are indications in the material, at some times subtle indications, that J is not closely bonded to the maternal grandmother and that his views are more favourably bent towards the paternal grandparents.
The second matter I have to take into account is the nature of the relationship with each of the child's parents and other persons. I accept that each child has a good relationship with the respective grandparents. I accept the children have a close relationship with each other.
The third factor I am required to take into account is 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.
As noted above, I expect the paternal grandparents are much more able to encourage and foster an ongoing communication of the children with the mother and maternal grandmother and members of that extended family. Their manner is open and patently honest. They are extremely impressive citizens. If I had the distinction of being able to hand out Australia Day awards I would put the paternal grandparents very high on my list. They have shown great courage and determination in continuing with this litigation in the fashion that they have.
The favourable observations I make about the paternal grandparents were echoed by Ms J, commented on by the independent children's lawyer and his counsel and even by counsel for the maternal grandmother. I give him great credit for his acknowledgment of that fact. It is evident to anybody who has had dealings with them. At all times they have behaved with great dignity. In their dealings with their son, in assisting the mother and their willingness to help out with the children, they have at all times shown themselves sensitive to the needs of the children. By contrast sadly there is a mean spirited air about the maternal grandmother's attitude to the paternal grandparents as expressed in Ms J’s reports.
I note an inconsistency in the evidence of the maternal grandmother in saying that she went to Tasmania because of her fear of the father. This is in contrast with her own sworn affidavit on her return to which reference has previously been made that she travelled to Tasmania because she always wanted to visit that State. I have detected an air of hyperbole about the maternal grandmother's evidence. By way of example she reported the father was charged with attempted murder following an unfortunate incident at her home in Queensland. The police records were not tendered into evidence but it seems likely he was charged with a breach of domestic violence order at that time, a far cry from attempted murder. There are indications in the evidence which support Ms J’s observation of the maternal grandmother behaving on occasions in a histrionic fashion.
The next matter that I have to consider is sub-s (d), the likely effect of any changes in the children's circumstances as a result of the orders. As I have noted, I am satisfied J plays second string in the maternal grandmother's household and I have no doubt about that. It is not to say that he is not cared for and looked after appropriately, it is just that the favourite is M. It is borne out by observations made by the paternal grandparents when the maternal grandmother arrives to collect the children after spending time in the paternal grandparent's household. As I have said, I do not for one moment doubt the maternal grandmother’s love of J and she has shown this in her willingness to care for him but it is most unfortunate in the lives of these young children that they have not been raised together. Criticism was made of the maternal grandmother for taking M to Tasmania when she did, knowing that the ongoing care of J by the mother was less than adequate. The problems with J’s speech and the constant disruption by living in a series of women shelters cannot be underestimated.
An attempt was made to criticise the paternal grandparents for not taking action in a similar vein to protect J. I am satisfied with the reasonableness of the explanation given, namely, they had no interaction with J for years and had no idea how bad things were.
The children have now been together for 12 months. I have no doubt J benefits from the relationship with his sister. He would also, I am sure, benefit immeasurably by a close ongoing relationship with the paternal grandparents who, to my mind, would be able to provide an exceptionally high level of dedicated care for him.
I have to consider the practical difficulties and expense of a child being able to spend time with any other parent or grandparent. I note the parties live approximately 90 kilometres apart. It is common ground that they are prepared to share travel arrangements. It is to the great credit of the parties that this is the case and I commend them for that.
Under sub-s (f) I have to consider the capacity of each of the child's parents and other persons to provide for the needs of the children including emotional and intellectual needs. I have regard to the positive reports from the speech pathologist. The maternal grandmother is to be commended for assisting J with therapy over and above that provided through the school.
School Reports
I have examined the school reports for M and J. The children's results are only average but given the instability in their lives, particularly for J, the results are commendable. I have studied the school reports carefully and I note in particular the positive comments made in the letter from the school. It is not dated. It is simply dated 2008 which is not particularly helpful but it notes that J was enrolled at the school on 5 June 2008. The report concludes:
"The only adult we have dealt with is [the maternal grandmother]. She's made weekly contact with us by phone or in person to check in on his progress and to let us know of any changes that may be occurring at home such as [J] spending time with relatives so that we would be prepared for any changes that [J] may have exhibited."
Generally I note the school reports are complimentary of the homework and projects done in the home environment.
Under sub-s (g) I have to consider the maturity, sex, lifestyle and background of the children. I have no specific observation to make in this particular case about that. Sub-s (h) is not relevant.
Subsection (i) I am required to take into account the attitude to the children and to the responsibilities of parenthood demonstrated by each of the child's parents. There is a question mark over the ongoing stability that the maternal grandmother can provide. The issue was raised, what would happen if the mother insisted on taking J back into her care. I accept that as a result of this litigation if J is to be left in the maternal grandmother’s care, she would have the benefit of a Court order, but given her laissez-fare manner it may be that she would not take action against her daughter. Ms J has made adverse comment about the maternal grandmother’s inability to give firm directions to the children, particularly on issues of discipline.
I note that the paternal grandparents have moved from D to the Hervey Bay region and now live in E, but it would seem that the maternal grandmother has been involved in significantly more moves and certainly covering a greater geographical terrain. Her move to Tasmania, in my view, is likely to have arisen by the formation of a relationship with someone or, more likely, a concern that she had that M would be taken from her. It was certainly a move that showed scant regard to the interests of M and J who were deprived of the opportunity to have an ongoing relationship with each other. She also paid scant regard to the need for the children to have an ongoing relationship with the mother, with the paternal grandparents and with their father.
The mother has never been open and forthright in the encouraging of regular communication between the paternal grandparents and the children. The most significant proof of this is the history of the litigation in this Court where the paternal grandparents have had to fight every step of the way to have an ongoing relationship with their grandchildren.
I have had regard to the submissions made on behalf of the maternal grandmother. To accede to the orders as sought by her would allow the children to remain together. I have made findings that the children appear to be close. This is the first opportunity in their lives they have had to be together and to grow up as siblings. I am conscious of the status quo argument that to remove J and place him in the paternal grandparent's care is to create another significant episode of instability in his young life. I am conscious that the evidence would indicate he has made progress in dealing with his speech impairment and the maternal grandmother is entitled to be given credit for her actions in that regard in recent time. I have had regard to the positive school reports provided for J which again reflect positively on the maternal grandmother.
Submissions in favour of the paternal grandparents include:
(1)The relationship between the maternal grandmother and M is not that of grandmother/granddaughter but rather of mother and daughter. The relationship between the maternal grandmother and J could never approach the closeness in bonding that has occurred with M. It is likely that in the circumstances that J will feel left out in that household and find that M is given preferential treatment.
(2)There is a basis for legitimate criticism that the maternal grandmother did not intervene to take J into her care at a much earlier stage. She was conscious of the frequent changes of address, changes of schooling and failure to obtain assistance for the speech difficulties brought about by the mother's itinerant lifestyle. She acquiesced in the mother's ongoing behaviour when she knew or ought to have known of the harm that this would be doing to J.
(3)The maternal grandmother’s relationship with the mother is problematical and has been for most of her life.
(4)There is a question mark as to what would eventuate if the mother was insistent that J be placed back in her care, notwithstanding the fact that the maternal grandmother may have orders of the Court in her favour. This would not preclude her from acquiescing in J having lengthy periods of time with his mother. I would not perceive this as being in J’s best interests.
(5)The maternal grandmother does not promote a relationship with the paternal grandparents and, in particular, between the child and his father. The observation in the report from the school is recent evidence of this. In my assessment the paternal grandparents, as I have noted, are wonderful people. I ask myself why, in 2008, with the father in gaol, is the maternal grandmother suggesting to the school to be on the look-out for any changes in J’s behaviour after spending time with his "relatives" (the paternal grandparents). Her portrayal of the father borders on the histrionic. I accept he has engaged in criminal behaviour but I am not convinced the maternal grandmother needs to ensure the degree of security about such matters as she does.
(6)The paternal grandparents, to my mind, are far more insightful in relation to the children's needs, in particular, J’s. They are far more compassionate, they are far more resourceful in being able to attend to J’s needs. They have given careful thought to bringing an application for M to be placed in their care but quite properly elected not to adopt that course.
(7)If J is placed in the care of the paternal grandparents he would have the benefit of a male and female role model. Criticisms were made of the health and age of the paternal grandparents. There is no evidence to indicate that health would play a relevant factor in their ability to care for J in the future. Whilst there is a considerable age difference between the maternal grandmother and the paternal grandparents, I do not see this as being a particularly relevant aspect of this case. As I have stressed, the paternal grandparents are more child focused. I would assess J as a child who would benefit immeasurably from being the sole focus of caring adults. That is what he would receive in the Fotherdell household. That is the principal reason why I propose to make orders providing for him to live primarily with his paternal grandparents.
No submissions were received at all on the issue, the important issue of joint responsibility. That is, long term issues of the care, welfare and development of the children. I note that in the draft orders put forward by the independent children's lawyer, by paragraph 3 it is said that:
"The maternal grandmother and the paternal grandparents have equal shared parental responsibility for the children."
ORDER DELIVERED
It will mean that for both M and J and J’s future care, there is a need for the maternal grandmother and the paternal grandparents to consult and keep each other informed on major issues such as whether they have medical treatment, whether they are going to attend school, change schools, consultation on a whole range of issues.
I would expect that by and large one household will respect the integrity of the other household and not be critical of the decisions being made, but they should be consulted, there should be a better level of communication. I have stressed this right from the word go. I have said that the price the children will pay is the loss of their childhood if they continue to be involved in adult issues, adults fighting over their care. I do not want to be critical of anybody. I am simply saying that the children pick up on these things.
I have to consider also the important issue of what time should be spent with the children being together. What I propose to do is to make an order throwing the responsibility back where it should be, namely, letting the two households agree on this, saying that the time together the children spend should be at all times they may mutually agree. If one child is sick it is not to say the other child should not be attending. If one child is sick, provide for make-up contact. I am saying it should be swings and round-about situation emanating from both households to just be reasonable.
The paternal grandfather, on behalf of the paternal grandparents, submitted that the order for the children to be together every weekend and the whole of school holidays should be varied and his proposal was that it be once a fortnight from 5 o'clock Friday to 5 o'clock Sunday. The reasoning there is he wants to involve J in soccer and swimming and other sports presumably but particularly team sports. It is my assessment that J would benefit immeasurably from being involved in team sports. I suspect he has had very little opportunity for that and if, for example, he is involved in soccer he would only be missing one game a month instead of two games a month. I see merit in that. I think the parents of the respective households should be able to agree on that issue but in the absence of agreement I propose to accede to that proposal.
What it will also do is cut down on the driving a lot in that each family will only have to drive once a fortnight instead of driving every week and I think that is important. It becomes chore like for the children. They have got their own lives in their own households and they should be able to develop those with the visits to be regular but not burdensome. Could I say to the parties how important it is, for example, to have photos of their parents in the children's bedrooms, how important it is, for example, for M to be taking school projects down to the paternal grandparents and showing what she is doing and for the paternal grandparents to do likewise for J to be taking up his homework and showing off his work. This way the children are feeling empowered - they are being encouraged and given approval to move between the two households without fear, guilt or rancour, that somehow sensing that one household is not approving of these visits.
ORDER DELIVERED
There will come a time in the next four or five years when M is going to be wanting to go out. She will be the first, she will be going out with her friends, wanting to engage in her own activities. You will just have to be able to adjust to that. Do not be hide bound by Court orders. It is a sad day when you allow your lives and the lives of the children to become locked in by a rigid interpretation of Court orders. Whilst you have the freedom to vary them, if you cannot agree you will have to observe the courtesies of being on time, being punctual, being treated as you would want to be treated.
There are going to be all sorts of events, whether it is a soccer carnival or a school fete, family get togethers, when you are going to have to ask for a bit of flexibility. I really, sincerely hope that that would be forthcoming. And, as I said, it will cut both ways over a 12 month period.
ORDER DELIVERED
I have done that on this basis, that it will give J almost a month to settle into the E household and then to gain confidence in his environment. I want to discuss briefly whether the parties have agreed on it, is it accepted what school J will go to. There is reference to it but I did not have time to look it up.
RECORDED : NOT TRANSCRIBED
I would commend that approach to the parties. It is time to move on. There is no point reflecting back about what Ms J said, et cetera. I cannot give you a solution. I cannot do that. I can give you a decision and I have done that. I do not enjoy making these decisions. I did agonise. I can see the benefits, particularly for J, of being in a relationship with M. I weighed that but the impression I picked up was that J is going to benefit from being centre stage, and I think that is what the paternal grandparents can give him above all else.
ORDERS DELIVERED
·    In the absence of submissions on the issue I will make orders for joint responsibility as sought by the independent children's lawyer.
·    I will make an order that the children spend all school holidays together. That seems to me sensible.
·    I will make an order effectively and, Mr Grant, I am flagging you in hand because you have drafted the orders and you have got them on your computer, if you would do out the orders. I propose to make orders by and large in terms of your draft save that for paragraph 4, the children will spend time with each other at all such times as the maternal grandmother and the paternal grandparents may mutually agree but, failing agreement, on the first weekend of each month in the paternal grandparent's residence from 5.00 pm Friday until 5.00 pm Sunday. In the third weekend of each month, in the maternal grandmother's residence from 5.00 pm Friday until 5.00 pm Sunday.
·    I will extend that to the long weekends.
·    What I provided for, Mr Grant, is in the event the parties cannot agree on school holidays the paternal grandparents are to have the first half for this year and each alternate year thereafter, and for the second half, next year and each alternative year with, of course, the reverse being the case for the maternal grandmother.
·    Well, on special occasions as agreed is what I would say. So that, again, a judicial colleague of mine used to refer to it as double stuffing on Christmas Day with them being overfed in both households.
·    If you could do the order for the June holidays and then leave them as they are. It was good reason that I wanted to put them in the broader Fotherdell environment for this first Christmas together. So we will leave it as the first holidays - you make separate orders for June and that will give the maternal grandmother the opportunity for the first half throughout next year.

I discharge the independent children's lawyer with great thanks. It has been a protracted matter particularly because the parties have not been legally represented. The assistance of you, Mr Grant, and your counsel has been invaluable to the Court and I place that on the Court record.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate:

Date: 24 June 2009

[2009] FamCA 606

24 June 2009

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