Harwood and Retziaff
[2010] FMCAfam 1335
•6 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARWOOD & RETZIAFF | [2010] FMCAfam 1335 |
| FAMILY LAW – Child – time to be spent with grandparent. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(2), 60CC(3), 60CC(3)(f) & (m) |
| Mulvany & Lane (2009) FLC93-404 Aldridge & Keaton (2009) FLC 93-421 |
| Applicant: | MR HARWOOD |
| Respondent: | MS RETZIAFF |
| File Number: | ADC 3040 of 2009 |
| Judgment of: | Cole FM |
| Hearing dates: | 1 & 2 July; 26 August 2010 |
| Date of Last Submission: | 14 October 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 6 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lee |
| Solicitors for the Applicant: | Lachlan McAuliffe |
| Counsel for the Respondent: | Ms du Barry |
| Solicitors for the Respondent: | C M Tucker & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms Lindsay |
| Independent Children’s Lawyer: | Legal Services Commission of South Australia |
ORDERS
The paternal grandfather spend time with the child [X] born [in] 2002 as follows:
(a)on either 18 December 2010 or 19 December 2010 for such two (2) hour period as is agreed to by the parties however failing agreement on 19 December 2010 between the hours of 11.30am and 1.30pm, such time to be at the home of the maternal grandparents and to be in the presence of the paternal grandmother;
(b)on Sunday 17 January 2011 and Sunday 21 February 2011 at the home of the paternal grandmother between the hours of 11.30am and 3.30pm with the maternal grandparents to be responsible for delivering and collecting the child to and from the home of the paternal grandmother;
(c)on Sunday 14 March 2011 at the home of the paternal grandmother between the hours of 11.30am and 3.30pm with the maternal grandparents to be responsible for delivering and collecting the child to and from the home of the paternal grandmother;
(d)on Sunday 11 April 2011 at the home of the paternal grandfather between the hours of 11.30am and 3.30pm in the presence of the paternal grandmother with the paternal grandfather to collect the child from and deliver her to the maternal grandparents home;
(e)on Sunday 12 May 2011 and each alternate Sunday thereafter from 10.00 to 4.00pm with the paternal grandfather to collect the child from and deliver her to the maternal grandparents home at such other times as agreed between the parties (with such time to be on Saturday, in the event of the Sunday falling on [X]’s birthdays, Mother’s Day or Christmas Day;
(f)for the second Monday of the school holidays of Term 1 in 2011 at the home of the paternal grandmother from 10.00am until 4.00pm;
(g)for the first Monday of the school holidays of Terms 2 and 3 at the home of the paternal grandfather from 10.00am until 4.00pm;
(h)by way of telephone on her birthday, Christmas Day and Easter; and
(i)at such other times as may be agreed by the parties.
The mother ensure that the child is at liberty to contact her paternal grandfather by email, telephone, text, in writing by mail or otherwise at any reasonable time.
The mother take such steps and do all such actions as are required to ensure that [X] can attend upon an appropriate counselling service if required being CAMHS or I-Kids or such other service as is recommended by Dr C with the costs of such counselling to be met by the paternal grandfather.
The mother take such steps and all such actions as are reasonably necessary to ensure that [X] attends upon Dr C prior to 17 January 2011 for the purposes of Dr C explaining the orders to her, with the paternal grandfather to bear the costs of such attendance.
The mother continue to attend upon Dr G and follow her advice until such time as Dr G deems her attendance is no longer necessary.
The parties be restrained and injunctions are hereby granted restraining each of them from:
(a)abusing, denigrating or insulting the other party in the hearing or presence of the child or permitting any other person from so doing;
(b)abusing, denigrating or insulting the extended family of the other party in the hearing or presence of the child or permitting any other person from so doing; and
(c)consuming alcohol to excess in the presence of all whilst having the care of the child.
The paternal grandfather be at liberty to send to the child photographs, gifts, letters and other such appropriate items via the mother’s parents’ home and these should be provided to the child without any intervention or interference by the mother.
Upon the child attending upon Dr C and the effect of the order being explained, the appointment of the Independent Children’s Lawyer be discharged.
All proceedings be otherwise dismissed.
Liberty to apply as to consequential orders.
IT IS NOTED that publication of this judgment under the pseudonym Harwood & Retziaff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3040 of 2009
| MR HARWOOD |
Applicant
And
| MS RETZIAFF |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves the Application of the paternal grandfather filed on 31 July 2009 seeking orders to spend time with his grand-daughter [X] born [in] 2002, the daughter of his deceased son Mr H.
The mother in her Response filed on 3 September 2009 seeks orders that the paternal grandfather’s Application be dismissed.
The mother was born [in] 1979 and is aged 31 years.
Mr H and the mother met in June 2001 and commenced a relationship.
Mr H died in a car accident on [date omitted] 2002.
The child of the relationship [X] was born [in] 2002 and is now aged eight years.
Background
The grandfather has had no time with [X] since her birth. He seeks to be introduced to her life.
[X]’s father Mr H and the mother were in a relationship. The mother’s evidence is it was something of a surprise when she found out she was pregnant. Mr H was informed of the pregnancy on or around [date omitted] 2002. The mother was eight weeks pregnant at the time.
Sadly, on [date omitted] 2002, Mr H was killed in a traffic accident. The funeral was held on [date omitted] 2002.
[X] was born on [date omitted] 2002.
There was some contact between the applicant and the respondent regarding the arrangements for Mr H’s estate, which is the subject of criticism by the respondent.
The applicant visited the mother in hospital and held [X] which again is the subject of criticism by the respondent.
The applicant has not seen [X] despite a number of attempts since that time.
The respondent mother says that as a consequence of his conduct in the period just prior to and following his son’s death, and [X]’s birth (which will be addressed later) she does not want “that man” to impact in any way on her life or that of her daughter.
In her words [X] deserves a good mother and if he (the applicant) was given time with [X], she would not cope.
Evidence
In support of his Application, the applicant relied on:
a)the Trial Affidavit filed by him on 22 June 2010; and
b)the Trial Affidavit of Ms H (his partner) filed on 22 June 2010.
The applicant and Ms H were subjected to cross-examination.
The respondent relied on:
a)her Trial Affidavit filed on 8 June 2010;
b)the Affidavit of her father Mr R filed on 8 June 2010; and
c)the Report annexed to the Affidavit of Ms J filed on 24 May 2010.
The respondent, Mr R, and Ms J were made available and were subjected to cross-examination.
The Independent Children’s Lawyer produced the Report of Dr C which was annexed to the Affidavit of the Independent Children’s Lawyer and filed with the Court on 20 November 2009.
Dr C was cross-examined by Counsel for the parties and the Independent Children’s Lawyer.
The law
The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub-ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and 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.
Section 60CC(3) sets out additional considerations, which are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)any other fact or circumstance that the court thinks is relevant.
The difficulty with the legislation is that reference is made throughout the provisions of s.60CC to the child’s parents. The issue is whether or not those factors that one is required to have regard to when considering what is in the best interests of the child should be excluded when they refer only to the child’s parents.
This issue has been addressed in a number of decisions by the Full Court including the matter of Mulvaney and Lane [2009] FLC 93-404. In that matter it was found that the husband was not the father of the child.
This raised the issue of whether or not consideration should be given to those factors under s.60CC that refer to parents only.
The Full Court at paragraph 76 stated that:
76.It is important to recognise that the miscellany of “considerations” contained in section 60CC(2) and (3) is no more than a means to an end. Self-evidently they are only matters to be considered. Of course, we accept they are of great importance, being factors being identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each section 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catch all consideration in section 60CC(3)(m), namely “any other fact or circumstance that the Court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
In our view, His Honour was quite right to consider and make findings in relation to all of the relevant “additional considerations” in s.60CC(3) , even though he acknowledged some had no application to the father because they relate only to a “parent”.
The issue was also addressed in Aldridge and Keaton (2009) FLC 93-421 where the Court considered the status of grandparents and the procedure for consideration of the issues stated at paragraph 56:
The category of grandparent as a discrete category of applicant was inserted into the Act in 2000. That and other amendments made by the amending Act are intended to highlight the importance of grandparents in the life of a child. If grandparents’ status is not in doubt the implication from the drafting of the sub-section is clear – a threshold test has no application.
The Court went on to determine that there was no error in using the framework of s.60CC(2) and (3) to arrive at the ultimate determination.
I would therefore propose with reference to the provisions of section 60CC(3)(m) to give consideration to the factors set out in section 60CC when considering what is in the best interests of this child. That is, I will for example be considering the benefit to the child of having a meaningful relationship with the paternal grandfather. In so saying I note the provisions of section 60B(2)(b) set out earlier in these Reasons.
The child’s best interests
I will turn now to a consideration of the matters set out in section 60CC of the Act adapted to the facts of this case being an application by the paternal grandparent for time with his granddaughter.
The benefit of the child having a meaningful relationship with the paternal grandparent (section 60CC(2)(a))
There is no suggestion that there is no benefit to the child having a meaningful relationship with her mother.
The mother does not oppose the child having a relationship with [X]’s paternal family. (I note the mother’s representations to Dr C and to
Ms J in addition to her letter to the paternal grandmother of 16 June 2010 where she stated “I believe it is important for [X] to spend time with you”).
The issue is whether there is a benefit in the child having a meaningful relationship with the paternal grandfather.
The mother argues that the Court must give appropriate consideration to the effect orders made by the Court will have on the primary caregiver. The mother says that there have been a series of events that have caused her great distress. In the written submissions put forward by Counsel she says that they have been identified by Ms J as:
a)the grandfather’s insistence on trying to organise Mr H’s estate and get answers from the mother as to her intentions to make a claim;
b)the applicant’s presence at the hospital following the birth of [X];
c)the applicant attending at the mother’s home in December 2003 unannounced and uninvited; and
d)receiving a letter and photographs in the post in December 2007.
Reference is also made to the breakdown of the mediation and the applicant’s refusal to proceed with the proposal for time.
This will be addressed in more detail when considering the risk of psychological or physical abuse. At this stage however, it should be noted that it appears to be common ground between Dr C and Ms J that the mother’s aversion to the paternal grandfather is something that needs to be addressed. Both agree that the way forward would be by way of a gradual exposure to the issue of the paternal grandfather rather than avoidance. This issue is the pace of change.
What is apparent however, from what the mother is arguing is that for the Court to find there is a benefit in [X] having a meaningful relationship with her paternal grandfather, the Court must take into account she says, the serious impact this will have on the meaningful relationship [X] has with her mother (in that her mother will be unable to cope).
My concern about this line of argument is that it ignores some basic facts namely:
a)[X]’s father died before she was born. As a consequence of events that have since unfolded, [X] has had limited time with the paternal family and in particular, has had no time with her father’s father;
b)[X] is now aged eight and is approaching an age where she may well start to ask questions about her father and his family;
c)there is no suggestion from the mother that her reaction to any time that [X] may spend with her paternal grandfather will diminish over the passage of time;
d)Dr C was of the opinion that it was dysfunctional and arguably unreasonable for the mother to continue to be so debilitated by this emotional associate (page 13) with the paternal grandfather. Ms J has expressed qualified agreement that the mother’s anxiety requires treatment through symptom management and gradual introduction to appropriately graded situations. The point being, both report writers considering something needs to be done about the mother’s situation. The primary proposals presented by the mother offer no options that would satisfy the Court that the issues presented by the mother are being addressed in any way whatsoever; and
e)should [X] seek to spend time with the paternal family and in particular, the paternal grandfather as she gets older and the mother react as she has done in the past, then the meaningful relationship that she has with her daughter could be placed at grave risk.
I therefore cannot accept the mother’s argument that there is no benefit to [X] having a meaningful relationship with her paternal grandfather. Her suggestion that this will impact on her relationship with her daughter invites the Court to leave this child in a situation where her primary caregiver is, on the evidence available to the Court not addressing some serious issues that will eventually impact on her relationship with her daughter, in a way that is not in the best interests of [X].
SECTION 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Consideration of matters under this section overlap to a degree with the consideration of issues regarding the issue of a meaningful relationship.
It is the mother’s case that due to the “harassment” of the paternal grandfather subsequent to the death of Mr H, she left her job and her home and went to live at her parent’s house (paragraph 45 of Trial Affidavit). She spent two weeks with her sister and friends in the Northern Territory before returning to her parents’ home (paragraph 49 of Trial Affidavit).
It is clear that she had difficulty coping with the death of Mr H. She says at paragraph 50
“I spent the following two months prior to [X]’s birth feeling extremely depressed; my parents in particular were very worried about me. I spent most days in bed not communicating with anyone …”.
Ms J, the author of the psychological assessment of Ms Retziaff states in her report:
“Incidents of conflict and stress involving contact with
Mr Harwood were reported by Ms Retziaff as commencing shortly after Mr H’s death. Four sets of contact appeared particularly significant to this writer.
Firstly, Ms Retziaff reported that soon after Mr H’s funeral,
Mr Harwood contacted her and arranged for a meeting in person. She said that Mr Harwood presented her with a list outlining Mr H’s estate and made a number of comments regarding the estate and requests of her that she found distressing and inappropriate. These included directions regarding where she should live, how the estate should be managed and pressure regarding finalising these details. Ms Retziaff reported feeling unable to address these matters, and seeking to remove herself from the discussions with Mr Harwood. ...
The second occasion followed [X]’s birth (that is [date omitted] 2002). Ms Retziaff required an emergency caesarean section two weeks prior to [X]’s due date, due to pre-eclampsia complications. Despite the previous communication described, and requests of hospital staff not to allow anyone but her own family to her room, Mr Harwood presented in Ms Retziaff’s hospital room without invitation, notice or permission. …
Following [X]’s birth and their release from hospital, Ms Retziaff built a life in [omitted]. …. This third occasion of contact noted occurred approximately one year after [X]’s birth (in 2003).
Ms Retziaff received a handwritten note from Mr Harwood in her home letterbox. Given her attempt to put distance between herself and Mr Harwood, including taking a private telephone number and not disclosing her address, this raised Ms Retziaff’s anxiety. She did not respond to Mr Harwood’s letter, finding it again to be evidence of his unwillingness or incapacity to acknowledge his previous behaviour as inappropriate.
Mr Harwood subsequently presented at her home, an experience for Ms Retziaff that was, again, intrusive, aggressive and upsetting. Severe and sustained symptoms of anxiety and depression resulted as described by Ms Retziaff. ….
The fourth occasion related to discussion occurring as part of mediation. At that stage [X] had not spent any significant time with Mr Harwood. [X] had had some contact with one of Mr H’s brothers and his family, as facilitated by Ms Retziaff, and with
Mr H’s mother. [X] had well established positive relationships with extended maternal family members. Ms Retziaff proposed that Mr Harwood initially spend time with [X] at the home and in the presence of [X]’s maternal grandparents – for [X] a familiar place with familiar people. Mr Harwood declined this offer and sought to commence contact in the presence and at the home of his son with whom [X] and Ms Retziaff had had some contact. From Ms Retziaff’s perspective, this was an opportunity for Mr Harwood to begin establishing a relationship of some trust and positive communication with her family, requiring him to engage with [X] in a place familiar for her and considered safe for
Ms Retziaff. That he was unwilling to do so indicated to
Ms Retziaff that Mr Harwood was unable or unwilling to place [X]’s needs (and her own wishes) as more important than his own.”
The mother also refers to receiving a letter and photographs in the post in December 2007 which she found highly distressing.
Mr Harwood’s evidence was that he was, whilst dealing with the death of his son, attempting to resolve the issues of his son’s estate including ensuring that his son’s previous partner (who held an interest in a house with Mr H) and the mother were catered for.
He was unaware at the time that his behaviour had caused the mother to be distressed.
He felt he had done little to create such strong feelings in the mother and wanted to show that he was not the bad person she thought he was.
He was sorry that the mother had reacted this way. He considered from all he had heard that the mother was doing a good job and he did not want his actions to impact on that.
He was cross-examined in respect of the incidents complained of by the mother.
His answers were appropriate and I would find his actions at the time were consistent with those of a father and grandfather trying to do the right thing. It is clear he had no understanding of the mother’s state of mind or the impact of his actions on someone in that state.
As Counsel for the mother puts it, the contacts need to be analysed in terms of the mother’s state of mind, not a reasonable ordinary person, to whom they might otherwise seem merely annoying or momentarily distressing.
I cannot find anything in the actions of the applicant to suggest there is any risk to the child of physical or psychological abuse.
Consideration however needs to be given to the conduct of the mother and her reaction to the applicant.
Ms J noted in her final paragraph:
“The writer accepts that Ms Retziaff’s functioning has become disorganised in associate with Mr Harwood.”
She states previously at the bottom of page 6 of her report:
“Although the writer agrees that Ms Retziaff’s anxiety requires treatment through symptom management and gradual introduction to appropriately graded situations, the treatment approach recommended by Dr C (that is exposure versus gradual) is considered likely to be overwhelming for Ms Retziaff and therefore detrimental.”
The mother gave evidence prior to Ms J being cross-examined.
Upon Ms J being cross-examined it quickly became clear that:
i)Not all relevant matters had been put to Ms J when compiling her report; and
ii)More importantly, Ms J had not addressed a significant issue being the mother’s threat to commit suicide after she had read the report of Dr C.
I will address those issues in more detail.
Relevant matters
The mother in her evidence had said to the Court that she had been that distressed by the process of negotiations, mediation and subsequent litigation with Mr Harwood that from February 2008 until in or around September 2009 she had taken to drinking to ease the anxiety and pressure that she felt as a result of Mr Harwood’s request to spend time with her daughter. Her evidence was that she was drinking every night, seven days per week, drinking a bottle of wine at a time.
The evidence of Ms J was that the time period recorded by her was closer to six months in that she was informed that the mother had been drinking too much for approximately six months. It was Ms J’s opinion that this evidence was consistent with the evidence provided to the Court. I have difficulty with this.
The evidence of the mother was that for some 14 months, she had been existing on two hours sleep per night. This was put to Ms J who confirmed that this was not part of her report. Ms J’s opinion was that she would not have thought that someone could function on two hours sleep per night for a month. It was certainly not possible to function on two hours sleep for 14 months. She did say that it was common for people with depression to under estimate.
It was put to Ms J that the mother had given evidence that she openly wished that Mr Harwood was dead. This again was not mentioned in the report. Ms J confirmed it was her opinion that she would be concerned if anyone had made threats to kill and she would be concerned if threats were occurring in front of the child.
She went on to say that it concerns her if the mother has said negative things about the grandmother or grandfather. This was not child focused behaviour.
When cross-examined by the Independent Children’s Lawyer she confirmed that it would be possible that the mother would not give [X] permission to develop a relationship with the grandfather.
She confirmed, however, that predictability in any arrangements that were made would help more than unpredictability.
Suicide attempt
Of significant concern with Ms J’s report, however, is the fact that she neglected to mention that the mother upon receiving the report of Dr C had become extremely distressed, driven to her father’s residence, (on the mother’s evidence) yelled and screamed at him, and said words to the effect of “if I have no control over my or my daughter’s life then there is no point in my being here”, had said goodbye and then left, leaving her daughter with the grandparents.
Her evidence to the Court which was corroborated by the records produced pursuant to subpoena was that she had driven off in the hope that she would pick up the courage to drive her car into a tree. She advised that she was aware that her parents had attempted to contact her and that she eventually returned to her parents’ residence the following day to collect her daughter that afternoon.
None of this was canvassed in the report of Ms J and represents a major concern when considering the opinions provided by her. In the circumstances this is a flaw in the report and where the reports of Dr C and Ms J conflict, I prefer the evidence of Dr C.
The mother’s evidence was in direct contrast to that of her father concerning this incident. I appreciate the mother’s parents are walking “a fine line” (Dr C’ report at page 13) between supporting their daughter and what may seem otherwise reasonable.
Either Mr R senior was protecting his daughter with his version of the events of that night (which did not accept for example, that she was yelling and screaming) or the mother was exaggerating when she described her behaviour. Neither option is attractive and both scenarios confirm that there is a problem that needs to be addressed. Both versions confirm the parents were left with an impression that the mother may not come back.
In any event, either the mother is exaggerating her symptoms which should have been commented on, or she exhibits behaviour that is clearly dysfunctional and lacking in any perception of the effect it has on her child and others who witnessed this outburst (such as her parents who were left thinking she had driven off to kill herself).
I will address the report of Dr C shortly, however, I must note that it would appear both report writers agree that Ms Retziaff’s anxiety requires treatment through symptom management.
There also appears to be agreement that the treatment pathway should be gradual, or to use Dr C’s words, a gentle and respectful way forward.
Ms J in her last paragraph of her report wrote:
“There was no evidence to suggest pervasive or permanent mental health issues or to suggest that she is an unfit parent”.
However, when the following was put to Ms J, she agreed that it did not constitute child focused behaviour that is:
a)The mother’s evidence was:
i)there had been a period of 14 months when the only way she could sleep was to self medicate. The self medication involved drinking at least one bottle of wine before she fell asleep;
ii)she claimed to have been sleeping for two hours per day;
iii)she had difficulty and often could not control her reaction when she received letters from the applicant requesting to spend time with [X].
iv)her reactions would involve yelling and screaming;
v)[X] had on occasion witnessed her reactions;
vi)she had not withheld her feelings from her daughter;
vii)that when the negotiations started she became upset and [X] asked her what was wrong she responded that her grandfather was wanting to spend time with her and it made her upset.
It is possible the unrestrained venting of her emotions could in some cases be characterised as emotional abuse.
Dr C
Dr C provided evidence and was cross-examined in respect of his report.
Dr C confirmed his view that he would be concerned if contact between [X] and her paternal family ceased.
There is no dispute that the mother and father of [X] had a loving relationship. [X] is therefore presented with a very positive view about her father.
From that, her father and therefore his family would be a significant factor in [X]’s development.
He noted that there was a very rich and positive relationship between [X] and the mother’s family.
He considered it was in the child’s best interests to have an ongoing connection with her paternal family.
He had the impression from his discussions with [X] that she had formed the impression that the paternal grandfather was “a scary guy”.
He considered there was no way a child of that age could have an independent view of the grandfather.
The mother’s reaction to the paternal grandfather was a matter of concern and in particular, the debilitating symptoms shown by the mother.
It was a matter of particular concern that these symptoms could not be controlled in the presence of [X].
He had no reason to doubt that the mother had suffered debilitating symptoms.
It was his view, however, that it was in the child’s best interests that those symptoms be treated. If the mother has a phobia that relates to Mr Harwood, then clinically he considered that could be overcome. Avoidance simply entrenched the phobia and the symptoms could become worse. He noted that in some ways the litigation procedure had already commenced that process. He noted that the mother and
Mr Harwood had each been present in the Court for the three days of the trial.
If she could cope with being present in the courtroom with
Mr Harwood, then this was prima facie evidence that she could cope with the child seeing Mr Harwood.
If a person has a phobia, then exposure can bring about extreme anxiety. If that was the mother’s condition, then she would not be able to cope with sitting in the room for three days. What was being asked of her was to be able to control the phobia enough to enable the child to have a relationship with the paternal family. (I note that subsequent to this evidence being provided, the mother did not enter the courtroom when the trial resumed some weeks later for closing submissions.)
He considered that independent of anything else, it was in the child’s best interests to address the issue of the mother’s phobia.
He noted that Ms J in her report had also expressed that opinion.
It was clear that the mother would need support through this process. There would need to be in place coping strategies so that she could stay calm for those moments when her imagination goes wild. He was confident the mother could cope with that.
He notes in Ms J report at page 6:
“Ms Retziaff’s results of the PAI (Personality Assessment Inventory) pointed to a self reliant, self assured personality, and of some difficulties as a result of alcohol intake.
He further noted that Ms J agreed that Ms Retziaff’s anxiety required treatment.
He expressed concern that the mother’s suicide attempt had not been addressed in the report.
He considered that this incident was a cry for help. To some degree it was a recognition that her own sense was that she had lost control of herself.
He saw no problem with the mother’s email seeking a report from
Dr G. He had no reason not to accept that the mother upon reading the report had a genuine high level of distress. He further noted that she did not present as particularly distressed in the context of the interview.
He noted that the summary of the incidents that Ms J said had the most significance for the mother in her interaction with Mr Harwood. These were the conduct post Mr H’s funeral, [X]’s birth, the incident when [X] was a year old, and the proposals discussed during the mediation and the refusal of Mr Harwood to accept those proposals.
His evidence was that he would argue that even on their worst interpretation, these incidents were not serious enough to exclude the grandfather. They did not form a reasonable basis to exclude him from [X]’s life. I accept his evidence on this point.
He went on to say that there appeared to be no effort to put these matters in perspective, only avoidance.
In his opinion, the more this matter was avoided, the more distress there was likely to occur. Any treatment would try to unravel this.
In his opinion Mr Harwood could not be held responsible for the trauma and issues the mother had, particularly if he became associated with the trauma of the loss of Mr H. The only caveat he mentioned was that the dynamic that we are in, being the litigation process, undermined to some extent the mother’s motivation to comply.
He was asked if there was an unacceptable risk to the mother. His answer was that prima facie he considered that she could cope if the time was ordered.
He also mentioned that it would be good for [X] to have this matter resolved.
He did say, however, that the task would be to find a gentle and respectful way forward. He confirmed, however, that the paternal family was particularly important in view of the fact that the child does not have a father. He said that if the mother could bring herself to at least say words to the effect that “I do not like him (being the paternal grandfather) but he is still your dad’s dad and you can get to know him and make up your mind in a safe environment. The Court says you have the right to have that occur”, then that would help.
Towards the end of his evidence he commented that the mother’s primary focus seemed to be about how distressing it was for her and not what was in the best interests of the child.
He noted that there was a potential, for a situation where the child would be wanting to explore her relationship with her paternal family and after years of being told that she would not be safe in the presence of the paternal grandfather, finding that her own experience did not accord with that relayed by her mother. This may lead to serious issues for the relationship between the mother and the daughter which would have only been brought about by the failure of the mother to address her phobia of the grandfather.
In the circumstance, Dr C considered there was a benefit to [X] in having a meaningful relationship with her paternal family, and in particular the paternal grandfather. I accept his recommendation on this issue.
I am of the view that the risk to [X] of being exposed to physical or psychological abuse is greater, if this matter is left alone, than it is if the issues are addressed now.
The mother
The mother attempted to construct a case that the paternal grandfather was a violent man who had a dysfunctional relationship with the paternal grandmother and his children.
She made note of the fact that Mr H and his brothers, Mr D and Mr B, expressed some animosity towards the paternal grandfather. She further commented as previously set out in these Reasons on her harassment of her following his son’s death.
I agree with the comments made by Dr C in respect of this matter that even on their worst interpretation, I do not consider the events described by the mother to be sufficient to exclude the paternal grandfather from [X]’s life.
I note further that the mother’s perception of this matter appears to be completely self centred. She spoke often of her distress at the loss of her partner and the father of her child. All of this is a proper and appropriate reaction.
At no stage, however, did she acknowledge the loss suffered by the paternal grandfather or the paternal grandmother. Nor did she acknowledge that the loss may well have affected the behaviour of the paternal grandfather in the months following his son’s death.
It was only when it was put to her in the course of cross-examination did she grudgingly accept that he may have been suffering significantly at the time and may not have had the perception to realise the impact of his behaviour upon her.
That the paternal grandfather apologised in a letter to her for any effect his behaviour may have had upon her and the fact that he had subsequently apologised when invited by Counsel for the Independent Children’s Lawyer for any effect his behaviour may have had upon her, made no impact.
Whilst some concessions were made by the mother, there was very little evidence of any movement from her position that the paternal grandfather was a person she did not want in her life or that of her daughter’s.
I accept the evidence of Dr C that this is a phobia that needs to be addressed.
I further accept his evidence that unless the matter is addressed it could lead to a worsening situation which would not be in the best interests of the child. I consider that if the matter is left alone, there may well be some risk of the child being exposed to the risk of psychological abuse.
I note the concession of the mother that some of her behaviours exhibited in the last two years including the night that she left her child with her parents, yelled at her father so loud that on her evidence the neighbours could hear, and drove off into the night leaving her father with the impression that she was going to commit suicide, amounted to a form of abuse.
This behaviour needs to be addressed and I find nothing in the mother’s case that would assure me that this would in fact happen.
I note that the mother is seeking assistance from Dr G. I note that that assistance has now decreased from each fortnight to once a month. This confirms my concerns that this matter may well be left without treatment, should there not be some form of intervention.
I note the concerns of Dr C that to order the mother to undergo therapeutic treatment would not be of assistance. This must be balanced against the concern that nothing will occur.
I also note the suggestion of Dr C that the motivation that would be inherent in any order that the Court may make that set out a time for the child to spend time with the grandfather, may provide the trigger for the therapeutic assistance to be properly attended to.
SECTION 60CC(3)(a) - any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
[X] is aged eight. Dr C has commented on this in his report.
He states:
“Based on what mum has told her and the upset she has witnessed in mum, [X] believes that Mr Harwood is a mean man who has really upset her mum and now wants to see her without anybody and will probably take her away. In this manner, it is clear that the mother’s persistent anxieties and attitudes have been transferred to [X]. In other words [X]’s negative attitude towards Mr Harwood derives almost entirely from the unquestioned views and chronic emotional responses of the mother, and perhaps an occasional unhelpful negative implication by the paternal grandmother by other family member.
[X] thus has no independent reason not to have a relationship with Mr Harwood and in fact the means for this being developed in an emotionally safe, natural, graduated manner exist; the ongoing connection Mr D’s family has both with [X] and, quite separately with Mr Harwood and Ms H (Pop and Nana).”
I accept that [X]’s views must be seen in this context.
SECTION 60CC(3)(b) - the nature of the relationship of the child with:
(a) each of the child’s parents
There is no question that the child has a good relationship with her mother. There are concerns regarding the mother’s ability to manage the symptoms of her phobia. These are addressed elsewhere. It is also noted that any variations to the current arrangements need to be made such that the relationship with the mother has some degree of protection.
I also note that [X] refers to the paternal grandmother as Grandma
[Ms G] and says of her paternal Uncle [Mr D] (“he’s a very nice guy’ he’s my favourite one”) (page 5 of Dr C’s report dated 16 November 2009).
It is unfortunate that the mother in her evidence has said that “[X] deserves a good and happy mother and I will only be happy if that man is not in our lives”. My concern therefore is that the relationship is only good whilst things are going the mother’s way. What happens, for example, when [X] wants to see the grandfather?
(b) other persons (including any grandparent or other relative of the child)
The paternal grandfather has not seen [X] since she was born.
Dr C, however, observes that in the context of positive things being said about [X]’s father, it is important to consider a relationship between [X] and her paternal family.
There is no dispute that [X] should have a relationship with the paternal family and that it should continue. Whilst that relationship may have cooled somewhat in the course of this litigation, there is nothing to suggest it should stop.
I also note that both Dr C and Ms J consider it important that [X]’s relationship with her paternal family should be maintained.
SECTION 60CC(3)(c) - the willingness and ability of each of the parties to facilitate, and encourage, a close and continuing a close relationship between the child and the paternal grandfather
The Mother
There are obvious and strong concerns about the willingness and ability of the mother to facilitate a close relationship between the child and the paternal grandfather.
The mother has not hesitated in actively voicing her feelings in front of [X].
Her evidence is that when she gets notice of legal matters by correspondence or otherwise, she can get hysterical, cry, yell, cannot think or speak properly, and her thoughts become angry.
She admits to crying in front of [X].
She admits that her thoughts were “I wish he was dead and that he did not exist, that this was not happening”.
She admits that when she drove off into the night with thoughts of killing herself, having announced as much to her father, [X] would have been easily able to hear her reaction.
I have accepted the recommendations of Dr C.
The paternal side of the family, particularly in view of the absence of the father, is of great importance to the child.
It is an issue that will not be resolved if left alone. The paternal side of the family will always be there.
It is also an issue that has potential to seriously backfire against the mother.
The paternal grandfather
The paternal grandfather is simply seeking time with his granddaughter.
He is clear in his evidence that he considers the mother, save and except for the issues arising from these proceedings, to be doing an excellent job for [X].
He does not in any way wish to impact upon that relationship.
He is prepared to take such steps as are recommended to attempt to enter into a relationship with his granddaughter.
He supports the relationship between the daughter and the mother. I accept his evidence on this point.
SECTION 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(a) her mother
What is being proposed at this stage is what is referred to by Dr C as a gentle and respectful way forward.
[X] has a relationship with her paternal grandmother. She also has a relationship with her Uncle [Mr D]. It is proposed to introduce into this mix the paternal grandfather.
The mother has given evidence that [X] is regularly cared for by her parents for example, whilst she works at [omitted] each Sunday.
She has also given evidence that [X] has spent time with the paternal grandmother.
The introduction of the paternal grandfather into this mix will enable her to explore a relationship with her father’s father. It will also enable a more rounded and balanced relationship with the paternal family.
It has the potential to offer this child who sadly lost her father prior to her birth, the opportunity of having the balance of maternal and paternal family supporting and loving her as she grows up.
The likely effect of any separation from her mother, save from any symptoms the mother may choose not to control, is unlikely to be of significance.
(b) any other child, or other person (being the paternal grandfather)
[X] has lost her father.
She lives in the context where there are many positive memories and reinforcement of their memories about her father.
I accept Dr C’s recommendations that:
a)It would be in the child’s best interests to facilitate that relationship and;
b)It would not be in the child’s best interests to allow this phobia regarding the paternal grandparent to continue.
The strategy as suggested by the mother, namely avoidance of the paternal grandfather would not, as Dr C says, free [X] up to “develop a normalised connection to her whole wider family including
Mr Harwood (the paternal grandfather) and Ms H (his partner)”.The problem (as the mother sees it) will not go away. She claims that she wishes to encourage a relationship with the paternal family being the paternal grandmother and Mr D. If she is indeed genuine in this wish, it will eventually become obvious to [X] that something is missing from the equation.
If and when [X] expresses a desire to see the paternal grandfather, then I have grave concerns as to the mother’s reaction to this news.
In the circumstances I consider that the likely effect of the separation of [X] from the paternal grandfather being allowed to continue has the potential to have grave consequences for the relationship between mother and daughter and does not in any way address the issues that currently confront them.
SECTION 60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This issue was not raised as the parties live in relatively close proximity.
SECTION 60CC(3)(f) - the capacity of the mother and the paternal grandfather to provide for the needs of the child, including emotional and intellectual needs
Save and except as set out below, there is no issue raised with the mother’s parenting by the applicant.
It is the relationship with the paternal grandfather, however, that is the “elephant in the room”. The mother says that the best way to deal with this is by avoidance. That is against the evidence of Dr C, the report writer, and would also appear to be against the evidence of Ms J.
The evidence before me would suggest that there has been no improvement in the mother’s condition since the death of Mr H in 2002.
The evidence also suggests that when a crisis has arisen in respect of this anxiety disorder, the mother has been unable to control herself and concedes that her reactions have amounted to a form of abuse of [X].
The paternal family live in the area where [X] is living and growing up. They, and in particular the paternal grandfather, are an issue that will not go away.
The advice of the experts is that avoidance only entrenches the anxiety disorder and runs the risk of increasing the symptom that [X] has witnessed to date. It is possible that without appropriate action in respect of this matter, that the mother’s capacity to properly parent [X] will diminish. This would not be in [X]’s best interests.
The evidence is the mother is a [occupation omitted]. She has some experience in mental health issues arising from a short (3 month) course and the problems faced by her sister.
In any event, she would have the training to know that:
a)drinking in excess of a bottle of wine per night to get to sleep over a fourteen month period; and
b)sleeping two hours a night while holding down three jobs and caring for her daughter for that period
are symptoms that should not be ignored.
She would also know that showing extreme distress in the presence of her daughter when receiving any correspondence or reports arising from this litigation is not the action of a child focused person. The concern is she has taken little or no action, other than avoidance, to remedy this action.
I do not have concerns about the capacity of the grandfather to care for [X] whilst she is with him.
SECTION 60CC(3)(g) - the maturity, sex, lifestyle and background of the child
[X] is aged eight. I accept the evidence of Dr C that [X] is in a position where she would be able to explore her relationship with her paternal grandfather. Dr C’s notes, there is also the chance, unless the mother commits to this path, [X] will end up resenting her mother when she subsequently gains alternative information or perspectives about key issues relating to her grandfather’s connection with her father, with
Mr D’s family, and her mother precluding her from relations with him.
SECTION 60CC(3)(h) – if the child is an Aboriginal child …
This section is not relevant.
SECTION 60CC(3)(i) – the attitude to the child and to the responsibilities of parenthood demonstrated by the mother and the grandfather
I have concerns regarding the attitude to the child and the responsibilities of parenthood demonstrated by the mother.
I appreciate that she has an anxiety disorder in respect of the relationship with the paternal grandfather.
I note her concessions provided under cross-examination that some of her behaviour had amounted to abuse.
I do not consider the behaviour she has demonstrated in front of her child to be appropriate. Nor do I consider it appropriate that until recently she has not addressed this issue.
In respect of the paternal grandfather, he has not had the opportunity at this stage to demonstrate anything in respect of his relationship with his granddaughter.
He indicated that he was anxious to:
a)Show that he is not the bad person that the mother thinks he is.
b)He had no complaint about Ms Retziaff’s family.
c)He was sorry if he had in any way offended the mother.
d)He was not aware of the level of her distress. He had simply been attempting to wind up his son’s estate.
e)He thought she was an excellent mother doing a difficult job.
f)He was prepared to assist in anything that could repair the relationship to enable [X] to spend time between their houses.
I saw his evidence as that of someone who was prepared to take all necessary measures to avoid conflict.
He was a reluctant participant in the proceedings and accepted that in hindsight it may have been best to have accepted the offer made in mediation. His evidence was that he received legal advice that the conditions imposed including the banning of his partner, Ms H, from the time he wished to spend with [X]. He therefore did not proceed with the proposal.
SECTION 60CC(3)(j) – any family violence involving the child or a member of the child’s family
The mother made allegations regarding violence inflicted by the paternal grandfather upon his son Mr D.
She recounted in paragraph 15.4
“As I am told, there was an argument between Mr D and his father. [Ms G] tried to intervene, Mr Harwood pushed her. Mr D then told his father not to push his mother whereupon
Mr Harwood hit Mr D so hard he ended up in hospital, and that police attended the scene.”
Her allegation was not backed up by the evidence. When this issue was put to the paternal grandfather he advised that at the time, Mr D was inebriated and wanting to go out on Highway [omitted]. He said he had already lost one son in these circumstances and would never forgive himself if Mr D was killed, hence the physical nature of the argument in which both parties were injured. It was something he regretted, however, he was not prepared to risk losing another son. In the circumstances, I do not consider the allegations of violence to have any substance (it being a family argument that was resolved) nor is there any basis for any fear of Mr Harwood.
SECTION 60CC(3)(k) - any family violence order that applies to the child or a member of that child’s family
This section is not relevant.
SECTION 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Because of the intransient nature of this matter, it has not been possible, as if often the case, for the trialling of any arrangements pending the final hearing of this matter. All that can be canvassed is the first step.
In the circumstances, it is difficult to see how, when one is thinking to introduce or commence a relationship, that arrangements can be made to cover all such situations as may occur up until the child reaching the age of 18. I do consider, however, that to make no order would have the greatest chance of leading to the institution of further proceedings in due course.
Section 60CC(4) - Extent to which the mother has fulfilled or failed to fulfil responsibilities as a parent
I have already expressed my concerns about the fact that the mother has been unable or unwilling to control her emotions in front of her child and her family.
The mother is a trained health professional.
If a patient presented with symptoms such as hers, then it would be hard to imagine the mother not recommending the patient seek treatment forthwith. Nevertheless, she has been reluctant to do so and has only since the commencement of litigation commenced attending upon a therapist.
In the course of that time, she felt free to unburden herself upon her parents often in the presence of her daughter.
To allow this to continue by way of avoiding the situation cannot be a fulfilment of the responsibility as a parent.
Conclusion
The mother’s position would appear to be that any involvement of the paternal grandfather in her life would be destructive in the effect that it would have on her.
At the same time, the mother concedes that in the past she has acted inappropriately when she has felt the paternal grandfather is intervening in their lives. Her inappropriate conduct has been mentioned in these Reasons and includes excessive drinking and loud and abusive behaviour in front of her daughter.
The mother concedes that until this litigation began she had not sought any help for her reaction to the applicant’s attempts to see her daughter. She does not propose to take any steps to address these issues.
She reluctantly concedes, if the Court is not minded to make orders in terms of her Response, to a restricted regime whereby [X] can spend some time with her paternal grandfather.
I have throughout these Reasons expressed my opinion that this is something that cannot be left unattended. I note and accept the comments as set out by Dr C on page 13 of his report that:
Based on the mother’s presentation, I believe it is actually in her best interests to take the present situation as an opportunity to deal constructively with the ghosts of her unfortunate past. The trauma and natural anger of Mr H’s untimely and in some ways foolish death (she intimated some anger towards him over this) clearly became associated with and compounded by her distress at Mr Harwood’s approach. It is, in my opinion dysfunctional, and arguably unreasonable, for her to continue to be so debilitated by this emotional association, particularly when it functions to preclude [X] from what appears otherwise to be a natural and beneficial step in her development.
I am aware that the mother has been receiving some counselling assistance, but I believe that she requires focused therapeutic help to overcome her inordinate fear of Mr Harwood (here exposure methods are actually the preferred therapeutic advice in dealing with such traumatic anxieties and avoidance). This would, in my view, be in [X]’s best interests not only because it will relieve her of having to see her mother so distressed that would free her up to develop a normalised connection to the whole wider family including Mr Harwood and Ms H.
The mother, in the event that I am not minded to dismiss the application of the paternal grandfather, proposes that the limited daytime only contact with the paternal grandfather, initially through the child’s grandparents.
It is proposed that the first session for two hours at the home of the maternal grandparents on the Sunday preceding week six of the school term, such time to be in the presence of the paternal grandmother who was at liberty to take [X] away from the maternal grandparents’ home for short periods.
It is then proposed that [X] spend time with the paternal grandfather at the home of the maternal grandmother for the first Monday of the school holidays in December 2010 from 10.00am until 4.00pm with the maternal grandparents to deliver the child to the home of the paternal grandmother and be at liberty to stay with the child for the day if they so wish.
It is then proposed for the Sunday preceding weeks two and six of Terms 1, 2 and 3 that [X] spend time with the paternal grandfather at the home of the paternal grandmother from 11.00am until 3.00pm, the child to be collected from and delivered to the home of the maternal grandparents.
Time with the paternal grandfather is not to commence at his residence until 2012.
The paternal grandfather on the other hand seeks that time commence forthwith from 10.00am until 4.00pm at his residence.
The Independent Children’s Lawyer proposes a raft of orders with various options which include commencing with a family gathering at the home of the maternal grandparents in the absence of the mother for the first occasion.
A second gathering is then proposed to occur within one month with the introduction to [X] of the paternal grandmother on that occasion.
Time is then slowly increased from that point on culminating in overnight time on weekends each fourth weekend from 10.00am on Saturday to 5.00pm on Sunday.
It is common ground that there needs to be an introductory period.
It would also appear from the evidence of the paternal grandfather and the submissions of the Independent Children’s Lawyer and Counsel for the mother, common ground that the maternal grandparents may be able to assist in defusing the tension in this matter.
Finally, it appears common ground that [Ms G] (the paternal grandmother) and Mr D (the paternal uncle) may be of assistance in the initial stages.
I consider it necessary (from the evidence I have heard) that some support is provided for the mother. I would therefore, propose to order that the mother continue to attend upon Dr G and follow her instructions in respect of any treatment she may prescribe.
I also consider it important as proposed by the Independent Children’s Lawyer that there should be orders that:
a)the mother arrange and facilitate counselling for [X] with CAMHS or I-kids with the paternal grandfather to bear the cost if applicable; and
b)the parties take such steps as are required to arrange for Dr C to explain the effect of the orders to [X] in accordance with the provisions of s.65L with the paternal grandfather to bear the cost of Dr C’s services.
I have nominated Dr C to explain the effect of the orders to [X] because [X] has already attended upon him and would not then have to attend upon a new person in respect of issues arising from this litigation.
Furthermore, I considered the explaining of the orders to [X] to be separate and apart from the availability of counselling should it be required by [X] at a later stage.
I note the maternal grandparents are prepared to assist with the introduction of time between [X] and the paternal grandfather. Whilst I commend them for their assistance, I have some issues with the suggestion that they continue that they continue in that role.
Whilst the pace of change needs to be gradual I am of the opinion that the requirement for the maternal grandparents to be physically present should be concluded as soon as possible. Their ongoing assistance with handovers however, would on the current evidence, no doubt assist [X].
It is clear that Mr and Ms Retziaff senior have had the difficult task of supporting their daughter over the years and providing further support through the course of this litigation.
The families have gone through a lot and I do not wish to make the orders any more complex than they should be. I would therefore propose that the maternal grandparents assist with the initial period of time with their role to be cut back with the paternal grandmother being asked to step in before matters progress to the stage where the paternal grandfather, in the company of Ms H, his wife, spends time at his residence with such members of the paternal family as they choose to invite.
Whilst I understand the concept I am doubtful as to whether it would be appropriate to order that the maternal grandparents hold a family gathering at the residence in terms sought by the Independent Children’s Lawyer. At the same time, in view of the fact that they appeared to have agreed to be part of the orders proposed by the mother, I have no difficulty with requesting them to consider holding a meeting with the paternal grandmother and paternal grandfather if possible, to discuss how the first visit should proceed.
The paternal grandfather is at this period of time going to need some support of his own and I see no harm in his partner Ms H accompanying him. Ms H gave evidence in the course of these proceedings and I found her to be a credible witness and have no issue with her acting with the best interests of [X] in mind. Furthermore, as suggested by the Independent Children’s Lawyer, her presence may provide [X] with some reassurance.
It should not be forgotten that [X] is the well loved granddaughter of two families. There has been little or no evidence of the impact of a regular routine and pattern with the paternal grandfather upon the commitments of this young child. [X] is at school and her leisure time will need to be spent in part with her mother, maternal grandparents, maternal family, paternal grandmother, paternal family, and paternal grandfather to mention a few.
In addition, taking into account the history of this matter, I am reluctant at this stage to proceed to overnight time. A lot of work has to be done before matters can reach that stage. I would therefore, frame the orders to allow progression to day time with the paternal grandfather with the parties to attend mediation before instituting any further proceedings.
Once a routine and a pattern evolve then consideration can be given to overnight time.
I am aware that the grandfather’s time is to commence at one of the busiest times of the year. I have therefore allowed some flexibility in the initial order and ask that the parties confer on the best time for this process to start. If agreement cannot be reached a default time has been provided.
I would request the maternal grandparents arrange a meeting with the paternal grandmother and grandfather prior to the paternal grandfather’s time commencing with [X].
Eight years have passed since [X]’s birth and she has yet to spend time with her father’s father.
It is likely that, all going well, [X] will eventually stay overnight at her grandfather’s home. Dr C was unable to say when that should occur and neither am I. Time needs to commence. A routine and pattern needs to be established. A relationship between [X] and her grandfather needs to be built. Once that is underway, the next step can be considered by the parties.
I certify that the preceding two hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of Cole FM
Date: 6 December 2010
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