Hidalgo and Nava and Anor - [2009] FMCAfam 804

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HIDALGO & NAVA & ANOR

[2009] FMCAfam 804

FAMILY LAW – Parenting – application by maternal grandmother to spend time with child – mother presently incarcerated – child living by agreement with paternal grandparents – father living in another town but spending time with the child – weight to be given to wishes of the child – consideration of maturity behind such express wishes – consideration of weight to be given to a Family Report when an interview between child and maternal grandmother did not occur – consideration of influences upon the child of the animosity between the two sides of the family – the need for balance in time to be spent with maternal grandmother and finality insofar as orders are concerned.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC (2) & (3), 61DA, 65DAA

H v W (1995) FLC 92-598

Applicant:

MS J HIDALGO

First Respondent:

MR NAVA

Second Respondent:

MS G HIDALGO

File Number:

ROC 359 of 2008

Judgment of:

Coker FM

Hearing dates:

16 & 17 June 2009

Date of Last Submission:

17 June 2009

Delivered at:

Townsville

Delivered on:

6 August 2009

REPRESENTATION

Counsel for the Applicant:

Mr Forrest

Solicitors for the Applicant:

ReesLaw, Toowoomba

Counsel for the First Respondent:

Ms McLennon

Solicitors for the First Respondent:

Anne Murray & Co

Second Respondent:

Self Represented

ORDERS

The Father have sole parental responsibility for the child, [X] born in 2000, subject to the communication and notification of such decisions to the Mother.
Notwithstanding the provisions of Order 1:
(a)The Father be responsible for the daily care, welfare and development of the child when he is living with him.
(b)The Maternal Grandmother be responsible for the daily care and welfare of the child when he is living with or spending time with her.
(c)The Father have sole parental responsibility for the child in relation to the following matters:
(i)a child’s education (both current and future);
(ii)child’s religious and cultural upbringing;
(iii)a child’s health;
(iv)a child’s name;
(v)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
The child live with the Father or, upon the Father’s agreement, with the Paternal Grandparents.
The Mother spend time and communicate with the child at all reasonable times as may be arranged.
The Maternal Grandmother spend time with the child at all reasonable times as may be agreed and in particular:
(a)During the gazetted school term, for 1 day per month on either a Saturday or a Sunday as may be agreed between the Maternal Grandmother and the Father and failing agreement, from 9.00am until 5.00pm on the third Sunday of each month.
(b)During the gazetted school holidays at the end of Term 1 and Term 3, for three days and two nights, and during the gazetted school holidays at the end of Term 2 and Term 4, for four days and three nights, on days to be agreed and failing agreement, from 9.00am on day 1 till 5.00pm on day 3 or day 4, as may be required pursuant to these orders, at the discretion of the Father.
The Maternal Grandmother communicate with the child at all reasonable times as may be agreed and in particular:
(a)On the second and fourth Sunday of each month at times to be agreed and failing agreement at 6.00pm, with the Maternal Grandmother to be responsible for making the call to the child and for the Father to ensure the availability of the child to take the call in a quiet and private environment.
(b)On the birthday of the Maternal Grandparents, the Maternal Aunt, Ms H, and of the child, at times to be agreed and failing agreement at 6.00pm, with the Maternal Grandmother to be responsible for making the call to the child and for the Father to ensure the availability of the child to take the call in a quiet and private environment.
Each party have liberty to apply within 28 days of the date of this order in relation to any point of clarification of the orders herein and in respect of costs.

IT IS NOTED that the Father will facilitate telephone communication by the child with the Mother at all reasonable times and in accordance with guidelines of the Queensland Department of Corrections and will facilitate time to be spent by the Mother with the child on at least one occasion during each gazetted school term in accordance with guidelines of the Queensland Department of Corrections.

IT IS NOTED that publication of this judgment under the pseudonym Hidalgo & Nava & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

ROC 359 of 2008

MS J HIDALGO

Applicant

And

MR NAVA

First Respondent

MS G HIDALGO

Second Respondent

REASONS FOR JUDGMENT

These proceedings relate to orders sought regarding the parenting of the child, [X]. [X] was born in 2000 and is, therefore, aged 9 years. [X] is the child of a brief relationship between Ms G Hidalgo and Mr Nava. The proceedings before me, however, are not as between the mother and the father, rather they are brought by the maternal grandmother, Ms J Hidalgo, against both of the parents but, in particular, the father.
The proceedings, unfortunately, have been on foot for a considerable time. The first application was filed in July 2008, but that is not to say that there have not been other proceedings in relation to this little boy earlier in time. The circumstances surrounding this family as a whole, are quite tragic, there having been many instances which, no doubt, had led to difficult circumstances for all concerned, but most particularly, of course, difficult circumstances in relation to this child.
The proceedings brought by the grandmother are encapsulated in the final orders that are sought by her as outlined in the case outline of

9 June 2009
. The orders that are sought are comprehensive and deal not only with issues in relation to parental responsibility where it is acknowledged that, at least, at this time there should be sole parental responsibility vesting in the father, but then go on over a number of pages to address various different scenarios in relation to [X] spending time with his grandmother, but more extensively, the maternal side of the family excluding the mother.
I do not intend to set out at length the orders that are detailed in the case outline filed in relation to this matter. The reason for that is, perhaps, obvious, when it becomes clear that in the very final summation provided in relation to this matter it was indicated on the part of the grandmother that her position had changed quite significantly from what which had been detailed, even only a matter of a week or two prior to the hearing of the application.
Quite simply, the grandmother's position, as she is the applicant and, perhaps, one might say the major protagonist in relation to these proceedings, is to seek the opportunity now to have [X] spend time with her each alternate weekend during the gazetted school term from after school Friday until before school Monday in each fourth weekend, and additionally, in the alternate fortnight - or what might be described as the second weekend – to have the child with her from 9.00am until 5.00pm on the Sunday.
Additionally, the grandmother had originally sought orders which provided for the child to spend one half of the autumn, winter, spring and summer school holidays with her. It was clarified, however, following evidence in relation to the matter and, perhaps, a reconsideration of the difficult circumstances that this little boy finds himself in, that the grandmother sought orders which were, if anything, a reflection of that which had been agreed some three years earlier and were encapsulated in orders of 17 March 2006. Quite simply, the grandmother's proposal in relation to such arrangements were - again, using the terminology, autumn, winter, spring and summer - to have three days and two nights; four days and three nights; three days and two nights; and four days and three nights.
There did not seem to be a great deal of difficulty in relation to that arrangement with regard to the holiday periods, certainly at least, after there was some clarification of the position in relation to criminal proceedings which had been brought against the maternal grandfather.
In the meantime, however, the father's position, and it appears to have been supported at least at this time by the mother, is to suggest that there should be an opportunity for [X] to spend time with his maternal grandmother each alternate week on a Saturday or a Sunday, from 9.00am to 5.00pm. The preclusion was more in relation to the issue in respect of overnight time sought to be spent by the grandmother with the child.
It is not, in the whole scheme of things, necessary for me, therefore, to outline the alternative proposals that were put in relation to this matter. What was detailed was that pending the outcome of the police charges against the maternal grandfather, there was that proposal for time each alternate Sunday, 9.00am to 5.00pm, and then, if the grandfather were found to be not guilty or the charges against him were withdrawn, then it was proposed that there should be a continuation of those times which are now accepted by the maternal grandmother as being appropriate to coincide with the various school holiday periods.
The father, again, no doubt, supported by the mother, proposed also that there should be the opportunity for telephone communication on one occasion per month as well as on special days which arose within the maternal grandmother's household, including the birthdays of the maternal grandparents and of the maternal aunt, Ms H, as well as the opportunity for communication by telephone, on [X]'s birthday.
Interestingly, there did not appear to be a further proposal in relation to the time to be spent by the maternal grandmother with [X] during school holidays if, in fact, the maternal grandfather were found guilty of the charges which have presently been made against him. One can only presume, therefore, that the proposal in relation to time being spent by the maternal grandmother with [X] each alternate Sunday from 9.00am to 5.00pm was proposed to continue in the event of the maternal grandfather being found guilty of the charges, though that appears to be a little unclear in all the circumstances.
As I say, the proposed orders in relation to this matter are basically those which are set out on the part of the maternal grandmother and the father. There are no specific proposals by the mother though as I have indicated, she appears generally to be supportive of the position taken by the father, in relation to this matter.
The mother is presently incarcerated for dishonesty offences. She was unrepresented at the hearing though appeared, initially it would seem, as a witness called on behalf of the father, but in light of certain indications given by her in relation to the proceedings, it was considered more appropriate that she participate as a party to the proceedings. The mother's position in relation to the matter was generally to say that at the present time, she being incarcerated until, it would appear, at least June of 2010, was that the matter was one which needed to be determined as between the maternal grandmother and the father.
She further indicated that it was her intention, if necessary, to pursue her position in relation to the parenting of [X], once she was released from gaol. What she did indicate, however, was that she was seeking to have time with the child in the meantime and it was confirmed by counsel for the father that the father was willing to facilitate time by [X] with his mother during the next year or so that she would certainly be incarcerated.
I shall comment a little further in relation to that particular aspect of the matter, but it is important that it be noted in relation to these reasons, because as a result of that indication given on the part of the father, it was further confirmed that the maternal grandmother would not pursue orders in relation to her having the opportunity to ensure that [X] spend time with his mother whilst incarcerated. It was based, however, on a condition that the father was to make necessary arrangements to ensure that [X] had the opportunity to visit his mother whilst incarcerated on, at least, one occasion each school term.
It would appear, therefore, that if the father were not either ordered to take such steps in relation to ensuring [X]'s opportunity to spend time with his mother, or that he undertook to do so, then her position in relation to the matter would be more specifically pushed.
This is an unusual case, obviously, in light of the fact situation that exists. It was also an unfortunate case because of the very considerable effect that the circumstances that this little boy finds himself in has had upon him.
There were a number of witnesses called in relation to the matter as well as number of witnesses who provided affidavits but were not required in relation to the determination of the matter. It is important that I, at least, at this time give some passing reference to the evidence of the various witnesses before going on to consider what might in all the circumstances be the most appropriate arrangements to be put in place with regard to this child and to his opportunity to spend time with those additional to his parents.
Affidavits were provided by Ms W, Ms J, and Ms M. None of those deponents who were all called on behalf of the maternal grandmother were required in relation to this matter. It is, perhaps, understandable that they were not required in that they did not really take the matter terribly far in relation to assisting with regard to the final determination.
It was noteworthy, however, that each of the deponents did make reference to their observations of the interaction between [X] and the maternal grandmother. In paragraph 10 of her affidavit, Ms W says the following:
On a number of occasions, I have met [Ms J Hidalgo] when she was 'out and about' with her grandson, [X]. I have seen [Ms J Hidalgo] with [X] on a number of occasions over the years, more in the last two years. I would often see [X] when he would come into the Neighbourhood Centre with Ms H.
Ms W then goes on:
[X], [Ms J Hidalgo] and Ms H, have always appeared happy and comfortable being together. [X] looked quite comfortable, and would be smiling and ‘chatty’.
Similarly, Ms J indicated in her affidavit at paragraph 9 that she also had observed [X] with the maternal grandmother and says the following:
I observed that [X] was always happy and talkative in [Ms J Hidalgo]’s company. [Ms J Hidalgo] and [X] would both chat happily about where they had been that day, or where they were going. I formed the view that [X] and [Ms J Hidalgo] had a close, and fun, relationship.
Again, of a similar vein were comments made by Ms M in her affidavit. At paragraph 8 she says the following:
[X] always appeared happy in [Ms J Hidalgo]’s presence and I did not see any sign that he wasn't happy spending time with his grandmother. [X] never appeared 'sad' or 'annoyed' or 'bored', [Ms J Hidalgo] always appeared like she doted upon him and always included him in conversations and told me about what plans they had while spending time together. [X] appeared cheerful and smiling. [X] would tell me what he had been doing while spending time with [Ms J Hidalgo].
I detail those particular quotes by the deponents, Ms W, Ms J, and Ms M, because each of them are speaking about circumstances, at least, a little time ago. More particularly, however, Ms J and Ms M make comment about more recent observations. At paragraph 12 of her affidavit, Ms J says:
I have seen [Ms J Hidalgo] and [X] together. I saw him a few months ago around Easter 2009, and [Ms J Hidalgo] and Ms H were with him. [X] said he was having fun, and quite happy to spend time with [Ms J Hidalgo] and Ms H.
More specifically, however, Ms M at paragraph 10 of her affidavit makes the following comment:
On a recent visit with [Ms J Hidalgo], both [Ms J Hidalgo] and [X] came over to my house. [X] appeared 'ill at ease' and did not seem like his usual self. [X] usually seems happy and chatty when spending time with [Ms J Hidalgo], however, it seemed like he was troubled by something.
I note that that affidavit by Ms M was sworn on 1 June 2009, and one can only assume that when referring to a recent visit she is speaking of a time in the last few weeks or month. I note her comment of a rhetorical nature in relation to [X] appearing troubled by something, and whilst it is difficult to speculate as to what might or might not be the situation in that regard, I will make a further comment in relation to that particular aspect of the matter a little later in these reasons.
Also swearing an affidavit in support of the maternal grandmother was the maternal aunt, Ms H. Ms H, is a total paraplegic and whilst employed part time as a [administrator] requires support which she described as, 24/7 and such support is provided by the maternal grandmother and to some degree, at least, by the maternal grandfather.
Ms H described the assistance provided by the maternal grandfather as dealing more with the mechanical things and when questioned about that particular aspect of the matter, the maternal grandmother also referred to the maternal grandfather assisting with the lifting of his daughter and such more physical aspects of her care.
Ms H spoke of the relationship that she observed between the maternal grandmother and [X], and also in her affidavit spoke of her relationship with [X]. It appears clear that there is a close relationship between the maternal aunt and [X] and I gained the distinct impression that there have been close bonds developed between the two of them over time, though at least to some extent they may have been eroded by the more limited opportunities for time to be spent by [X] with the maternal side of the family with the passing of time.
Insofar as the father was concerned, there was evidence called not only from him, but also from his mother, Mrs N. Mrs N is, of course, the paternal grandmother of [X] but has a very significant involvement in [X]'s care. It would appear that following discussions primarily, it would seem, between she and the father but involving [X], at least insofar as he indicating what his wishes might be, and at least to some extent involving the mother, arrangements have been made for the paternal grandmother and paternal grandfather to have a very significant role in relation to the care of the child.
It is obvious that for a considerable number of months and, in fact, at least for some period unknown to the maternal grandmother, [X] has been living with the paternal grandparents and they have taken almost the primary role in relation to his day-to-day care and supervision. The father has been spending alternate weekends with the child, it being the case that he lives in [E] and the maternal grandmother lives in [R].
It has also been the case, that the paternal grandparents have been facilitating the changeovers which have been required in relation to [X] spending time with the maternal grandmother. I will comment a little later in these reasons about some aspects of the attitudes and behaviours of the extended family on both sides of this matter, but it is important that there be some indications of the difficult circumstances that exist as between the two families.
In particular, in Mrs N senior's affidavit, filed 4 June 2009, the following statements have been made, at paragraph 14:
While [X] was with us during Ms G Hidalgo's time in hospital he said to me 'Mummy's a gambler, mummy's a thief'. I would say, 'Mummy loves you dearly.' [X] said, 'Yes, but she drinks. She steals from nana and Ms H.' I said, 'Who tells you all this rubbish.' [X] said, 'Nana does.' [X] was crying telling me this.

Additionally, the paternal grandmother says at paragraph 20 of her affidavit, the following:
Ms J Hidalgo has been seeing [X] in accordance with what the Court has ordered. My main objection to Ms J Hidalgo seeing [X] is that she doesn't appear to be able to stop discussing adult issues with him or denigrating his mother (vis paragraph 14 above). I also think if she can denigrate her own daughter - you can't tell me we're not all getting a serve.
Finally, at paragraph 28 of the affidavit of the paternal grandmother, the following is said and it is, perhaps, the most accurate indication of the difficult relationship that exists.
The relationship that Mr N and I have with the Hidalgos is one of distrust. Neither Mr Hava nor Ms G Hidalgo, [X]'s parents - want to foster a relationship that takes priority over the parental role. [X] does know Ms G Hidalgo's family. He can continue to know them by seeing them on a daily basis rather than overnight - if and when the drug matters have been satisfactorily resolved. [X] should not be exposed to the dangers that a drug environment produces.
As is clear from those selected excerpts from the affidavit of Mrs N, the relationship between the two families are strained to the extreme. This was evidenced even more squarely when Mrs N gave evidence in relation to this matter.
In cross-examination she was asked by counsel for the maternal grandmother about the relationship. She was asked whether it was correct to suggest that she did not have a good opinion of [Ms J Hidalgo], the maternal grandmother. Her response was very distinct and was in these terms, "most definitely." She was then asked whether, about four years ago, she "gave her a mouthful". Her response again was definite and it was in these terms, "my oath." She was then asked whether she used some language, obviously, of a derogatory or unpleasant nature, and, again, her response was "my oath."
She then went on, I thought most tellingly to make the following comments, "You have to deal that way with 'people of that class'", and then went on to finally say, "I never discuss that name in my house," and was, of course, referring to the Hidalgos and, in particular, to the maternal grandmother.
It is a most unfortunate set of circumstances, and whilst one can be critical of Mrs N, it is clear that there are similar elements of distrust and distaste held by the maternal grandmother and one would think other members of the mother's side of the family for those members of the father's family. It, of course, leads to the extreme difficulties that this little boy is experiencing on so many levels. It is, indeed, a tragic situation.
I do not intend at length to comment about the evidence of the father, the maternal grandmother, and the mother. I will, of course, make some passing comments in relation to their evidence, before turning, as I consider it to be fundamental in relation to this matter to the evidence of the report writer, Ms Jillian Mason-Johnson.
Before turning to those more significant persons in the proceedings, however, it would remiss of me to not make comment about the fact that an affidavit was filed by the maternal grandfather Mr H but that subsequently that affidavit was not relied upon, and accordingly, the maternal grandfather was not required to give evidence, in relation to the matter.
Whilst, obviously, I do not consider the evidence in relation to the matter, some of the issues that arose in relation to the maternal grandfather do need to be commented upon. As is obvious from the comments that I have already made during these reasons, one of the major, if not the major difficulties, in relation to the time to be spent by the maternal side of the family with [X] arises from the fact that the maternal grandfather is currently the subject of a number of drug related charges.
There have, in fact, as I understand it, been charges in the past but these have not been proceeded with. The mother comments about the lifestyle and behaviours of her father in her affidavit, filed in relation to these proceedings, and I will comment a little later in relation to that particular aspect of the matter. But what needs to be noted, of course, is that the maternal grandfather still has a significant involvement in the day-to-day life of the maternal grandmother and, of course, as I have already noted assists significantly in the care required to be provided to the maternal aunt, Ms H.
Notwithstanding that, however, Mr H has apparently left the joint matrimonial home occupied by he, the maternal grandmother and the maternal aunt, though that is not as a result of the breakdown in the relationship between he and the maternal grandmother. It is, perhaps, most aptly described, as it was by the maternal grandmother, as a means by which there could be a break down of the distress apparently caused, at least, for the father and, perhaps, also to the mother in having the maternal grandfather present, certainly overnight, if [X] were at the home.
The maternal grandmother, when asked whether she knew why her husband was not present at court, indicated that she did not know and, when asked whether she must have some idea because they lived together, her response was to say that that was not the case because only a matter of three days previously, on 13 June, the maternal grandfather had moved to another house, simply to allay the father's fears or concerns in relation to the grandfather being present.
When pressed in relation to whether that was, in fact, the reason that the grandfather was not there or whether it might more particularly have been so as to avoid the need, perhaps, to be directed to answer under oath, questions in relation to the charges presently against him, she responded again that she didn't know why he wasn't there. It was, she said, simply a choice that had been made by him and that she had not expected him to be there because, “she didn't expect anything of anyone anymore.”
I struggle with that particular statement and the position taken, in relation to this matter. Quite simply, the maternal side of the family and, in particular, the issue of the maternal grandmother but also the maternal grandfather wanting to spend time with their only grandchild is a live issue. I do not accept that the maternal grandmother knew nothing of the reasons or had not been involved in any way in the decisions made with regard to the maternal grandfather not participating in the hearing.
If anything it gives rise to a concern held by me that an inference could be drawn that the maternal grandfather was not present because of the legitimacy that would arise in regard to the concerns held by the father and the mother in relation to this matter.
I turn now to the most telling evidence in relation to the matter, other than that which came from Ms Mason-Johnson, and that is the evidence of the maternal grandmother, the father, and the mother.
It is, as I have indicated, an unfortunate case. The maternal grandmother has had significant involvement in the life of this child. The relationship between the mother and the father had been of only short compass and since [X] was a young boy there have been difficulties experienced as between the mother and the father, and on many occasions, the extended family, and in particular, the grandparents on both sides of the family have come to the fore providing assistance.
Unfortunately, it has been a turbulent situation, particularly insofar as the maternal grandmother has been concerned, because of the difficulties experienced, particularly in respect of the relationship between the mother and maternal grandmother.
Very early in the evidence that was given in relation to this matter, it became obvious that the maternal grandmother was a woman of very determined views, one not afraid in any situation, to express those views, and rather ill-considered in relation to how she expresses those views.
In particular, for example, there seemed to be little consideration by the maternal grandmother of what statements by her might lead to, either in relation to hurt to the persons about whom the statements are made or, more particularly, the consequences of the reaction that might come from the persons about whom statements are made. Specifically, I note that the maternal grandmother, in the presence of the mother, made statements with regard to the mother's mental health.
The mother had been in a relationship with another woman, Ms A. She was asked whether she, the maternal grandmother, had difficulties with the mother's relationship with Ms A. She indicated that she did and that as a result of that difficulty in accepting the relationship between the mother and her female partner, the mother had asked her to leave. The maternal grandmother acknowledged that that was the case and said, that in her opinion it was all to do with Ms A and that Ms A had been the person who had, if you like, been manipulating the mother.
When asked about that particular aspect of the matter and whether it was simply a difficulty that had arisen between the mother and the maternal grandmother, the maternal grandmother went into a lengthy explanation of why it was not her fault that there were difficulties there, that it was not her fault that there may have been some concerns in respect of the relationship between herself and the mother's partner, Ms A, but rather that it arose from the mother "having an undiagnosed mental health issue."
The grandmother then went on to more specifically define what she said was that undiagnosed mental health issue, when she said that she had an "anti-social personality disorder." She was asked how, without any qualifications whatsoever held by her, she could make such broadbrush statements in relation to her daughter and her response was telling. She said:
I can label the situation because I'm a mother who lived with her (the mother) for, at least, six months.
She went on a little later, when asked about such issues and whether the mother might have had some legitimate concerns about her household and, in particular, the issue of drugs, drug raids, and the effect upon the child, to be somewhat flippant in her responses in that regard, and to say that if the mother was worried about such issues, then the question would have to be directed to the mother.
She was asked whether, in fact, the mother had indicated to her that the reason for [X] being with the paternal grandparents at the present time, was because of those concerns and she responded, that she:
knew why the mother won't let her have contact, it was because I want her to be diagnosed in relation to the mental health issues and she won't get it done.
She was challenged again, in relation to this particular aspect later in questioning, when asked whether she accepted that both the mother and the father didn't want her to have a significant involvement in [X]'s life, because of drugs. Her response again was telling and I thought rather damning of any consideration of others in that her response was simply to the effect:
So they say but I know the facts.
The maternal grandmother gave me, as I note she also gave Ms Mason-Johnson, the distinct impression that she was a determined woman, that she’d say what she wanted, when she wanted, and gave little consideration to the effect upon others. It was also noteworthy that when this line of questioning, in relation to the difficulties in her relationship with her daughter and the concerns held by both the mother and the father about her interaction with [X] was raised, that she was also questioned about whether it was the case that she had had difficulties with all persons who had had the care of [X], she responded very positively and very definitely,
That's right.
I was troubled by much of that evidence given by the maternal grandmother in relation to this matter because, as I have already commented, her position in relation to the matter seemed very much to be based on a determined view by her, that what she wished in relation to arrangements with regard to her relationship with [X] was concerned were, in fact, the only matters which should really be considered.
It is, however, to the grandmother's credit that, no doubt, with the advice and indications given by her legal representatives, that her position with regard to the time she sought to have with [X] was, at least, insofar as the school holiday periods, somewhat considerably reduced. It is simply another indicator, however, of the difficulties that exist as between not only the maternal grandmother and the parents, but also the maternal grandmother and other persons significant in [X]'s life.
Additionally, I had the opportunity to consider the evidence of the father, Mr Nava, and also the opportunity to see him give evidence in relation to this matter. I must say that I was generally impressed with the father.
Whilst some concern might arise as a result of the fact that [X] was presently living with the paternal grandparents and not with the father, it appears clear that that has arisen most specifically as a result of the father's current circumstances, having remarried, having children of that relationship, as well as foster children in his care, and there being, at least on the face of it, some concerns expressed by [X] about the noise and crowded nature of the household with the father. And, therefore, an expressed preference to return to the care of the paternal grandparents, with whom he clearly has a very close relationship.
I accept that whilst there might be some concern held about that arrangement, it is an arrangement which has been put in place, taking into consideration the child's wishes and also a genuine attempt to effect the best arrangements that can be put in place to meet the needs of this little boy.
As I say, I was generally impressed with the father and with his position, taken in relation to this matter, though I was somewhat perplexed about the evidence that he gave in relation to what arrangements should be put in place with regard to [X] spending time with the maternal side of the family.
When asked whether it was the case that he offered alternate Sundays from 9 to 5, he confirmed that that was the position. He also confirmed that he had no objection to the maternal grandfather, Mr H, being present during the day time, to spend time with [X]. When asked why that was the case he indicated that he did not want [X] to be present in the house with the maternal grandfather overnight, because he believed the grandfather sold drugs and that would obviously be done, in the night time.
Of course, there is no evidence whatsoever, firstly, that the grandfather is guilty of the offences, but more particularly, there did not appear to be a skerrick of evidence at all about when such incidents might or might not occur, if they were to occur. The presumption that the sale of drugs occurred at night and, therefore, the child only needed to be protected at that time is nonsensical, in my assessment. If the maternal grandfather is as intimately involved in the drug culture as is alleged or suggested and, certainly, as is said to be the case by the mother, then his interaction with the child in the daylight hours or the night time hours, would be just as damaging because of the belief system that is held, if that is the case, by the grandfather.
The restriction, therefore, of time being spent by the child with the grandmother to day time only, but without a restriction upon the grandfather being involved is, as I have indicated, somewhat nonsensical. In my view, it is obviously the case that there is either a risk or not a risk and whether that occurs in the day time or the night time is something of an irrelevancy.
As I say, I struggled with that particular aspect of the position taken by the father in relation to this matter, but otherwise was generally impressed with the father in relation to the proposals that he had and the determination that he had to care and to provide for the child.
I was, in particular, impressed by the fact that the father had had little understanding or insight into the effects upon [X] of the limited opportunities to spend time with the mother and the sadness or grieving that this caused the child but, when having become aware of that situation, had indicated, and I accept, that he would be making arrangements for [X] to spend more time with his mother and for there to be in place arrangements for the child to communicate by telephone, with the mother.
I note also, that the indication was given by the father in open Court that upon the mother's release and her having, “gotten her life together”, that there would be no dispute by the father about the child living with the mother subject, of course, to there being no risk to the child of harm of either a psychological or physical nature.
Quite clearly, the mother must deal with those issues in relation to her criminal behaviours, because the fact that such behaviours occur are of themselves damaging for the child but, more specifically, her coming into and out of the child's life, as has been the case in the last few years, has been more damaging and distressing to the child than, perhaps, anyone, including the mother realised until recent times.
Just as clearly, however, the father acknowledged the closeness of the relationship, the need for it to be fostered, and the primacy of that relationship which needed to be considered upon the mother's release from prison.
Finally, I turn then to the evidence taken in relation to this matter from the mother, Ms G Hidalgo. Ms G Hidalgo's indication, as I noted earlier in relation to the matter, was that to all intents and purposes she considered the current dispute to be one between the father and the maternal grandmother subject, of course, to her having the opportunity to spend time with [X] between now and her release from prison.
I noted on a number of occasions, that Ms G Hidalgo became distressed in the course of evidence that was given in relation to the matter and, in particular, noted the mother's distress which I consider to have been wholly genuine when comments were made, particularly, by Ms Mason-Johnson, in relation to the grieving of the child at the separation from the mother and the concern felt by the child at having had limited opportunities to spend time with his mother.
There were a number of issues that arose in relation to the evidence of Ms G Hidalgo and, in fact, there was a significant preliminary argument which occurred in relation to whether, in fact, Ms G Hidalgo would be the subject to cross-examination by counsel for the father, it having been the case that the mother had filed an affidavit in support of his position. In the end I ruled that there would not be an opportunity for cross-examination, but that there would be obviously, if it arose in cross-examination by counsel for the father, an opportunity for there to be re-examination, in relation to matters that might have arisen.
As a result of that ruling there was no real examination by counsel for the father in relation to the evidence of Ms G Hidalgo, and only limited cross-examination by counsel for the maternal grandmother because, no doubt, of considerations with regard to opening lines of clarification that might arise in re-examination.
As a result of that, however, it was the case that the mother's evidence on many significant points was unchallenged. In particular, the mother says, at paragraph 6 of her affidavit, filed 12 July 2009, the following:
My father Mr H has always been a drug dealer. I first became aware of this when [X] was two years old when the family were living in [S]. Dad did ask me to courier drugs for him from Toowoomba at about this time.
The mother goes on in paragraph 7, again unchallenged, to make the following comment:
My mother whilst not actively involved with drugs has known about my father's involvement for a long time.

No doubt, those statements and the evidence of Ms H, particularly relating to the charges brought against her father will be the subject of in-depth cross-examination and challenge in the criminal proceedings. But the issue that needs to be addressed here is the very real concern, obviously, expressed by the mother about the household of her mother and father, and the concerns that she, therefore, held in that regard.
What also must be taken into account, however, is the fact, unfortunately, that the mother is a convicted criminal, that her offences have related to issues of dishonesty, and when challenged in relation to those offences of dishonesty, the mother, I think unfortunately, took a most evasive stance in relation to answering such questions.
She was asked, in particular, about the time when she had been living with her parents in late 2007 to early 2008, and the dispute that had arisen between them in relation to issues of dishonesty. In particular, she was asked whether she had used her parents' petrol card and taken money from her sister's account. She said in respect of both of those questions that she couldn't remember. She was asked whether she had entered into a course of conduct of a dishonest nature in relation to dealings with her parents, and she said that she couldn't recall. She was asked whether she had broken into their house, and she indicated she couldn't recall.
It was obvious, I thought, that the mother knew exactly what was being spoken of and, unfortunately, I thought knew exactly what the correct answers were in relation to those particular queries, but simply was not prepared to give those answers, because of the possibly detrimental findings that would arise in respect of same.
Quite clearly, there are issues of concern in relation to the household of the maternal grandparents, but just as clearly it is for another time and another place for determination to be given as to the legitimacy and genuineness of the statements that are made by the mother, in relation to that household.
What I am required to do, of course, is simply to be mindful of those issues and to take them into consideration when assessing the matter of what risk there might or might not be to [X], in spending time within the household of the maternal grandparents. I was assisted but, at the same time, troubled by the evidence of the mother, given in relation to this matter.
I turn now as I indicated I would do, to the report of Ms Mason-Johnson, of 10 March 2009. I should indicate at the outset that I was assisted by the report though I note the admitted difficulty that arises, as a result of the fact that the report was prepared without the opportunity for Ms Mason-Johnson to observe the relationship between [X] and the maternal grandmother. In part, that arose as a result of the fact that, until recent times, Ms Mason-Johnson believed, as did the maternal grandmother, that [X] was not living in [R] with the paternal grandparents, but rather was living in [E] with his father.
It gives rise to at least one concern in relation to the report and to what reliance can be placed upon it and, of course, as I was referred understandably by counsel for the maternal grandmother, the Court has, in the past, expressed some concern about reliance being placed upon reports where, for example, there has been a failure such as that which has arisen here in relation to observing the child with the applicant maternal grandmother. I shall come to that issue a little later in these reasons, and in particular, to considerations with regard to the weight to be given, particularly, to matters relating to expressed wishes of the child.
I note, in particular, the comments by Ms Mason-Johnson attributed to the child and referred to in paragraphs 20 and 21 of her report. In those paragraphs she says the following:
[X] is very concerned about what will happen when the maternal grandparents find out he lives in [R] with the paternal grandparents. He has made it very clear that he feels safe living with Mrs N and Mr N, but frightened about what retribution his maternal grandmother will take against his paternal grandparents, when she finds out that he actually lives in [R]. It is for this reason that the writer is asking for the contents of the report to be suppressed or at least sensitive parts, and that the Court considers only releasing the writer's recommendations.
The reporter then goes on:
The child [X] is mostly interested in spending time with his father each alternate weekend when the father comes to visit. [X] has stated that he would much prefer to spend time with his mother than his maternal grandparents who he feels clearly do not like his mother. [X] is suggesting that he would prefer to have a couple of hours with his maternal grandparents on a more regular basis, rather than having big blocks of days with overnight stays.
I make reference to those particular statements in relation to the matter for a number of reasons. The first of those, of course, is the concern that arises from such statements about the fact that the child has, what appear, at least on the face of it, to be legitimate concerns about the behaviours of the maternal grandmother.
As I commented earlier in these reasons it appears clear that the maternal grandmother is little troubled by the possible consequences or effects of actions or statements made by her and, unfortunately, of course, that appears, at least, on the face of these statements, to have had a direct influence upon the child.
More particularly, I thought it noteworthy that the statements made by [X] in more recent times, were that he would prefer to spend time with his mother than with his maternal grandparents who he feels clearly do not like his mother. [X] then goes on to suggest, that he would prefer to have more limited time with his maternal grandparents than big blocks of days with overnight stays.
That might explain the comment that was made in the affidavit of one of the grandmother's witnesses to which I referred earlier, that being the statement by Ms M, that [X] seemed to be troubled by something. It may be, and the inference I think can fairly be drawn, that that trouble or troubled state simply arises from the fact that the child has finally had enough of being the subject of the comments by the maternal grandmother and the hurtful nature of those comments, particularly when it is noted that they relate specifically to the mother, to whom he is incredibly close.
In that regard, it is noteworthy that the comments made by Ms Mason-Johnson in relation to [X] as detailed in paragraphs 75 through 81 reflect the closeness of that relationship and, more particularly, the hurt that the child is experiencing as a result of his separation from his mother, as a result of her incarceration, and the hurt that he experiences as a result of the comments which have been made by the maternal grandmother, relating directly to the mother.
Those comments in paragraphs 75 through 81 are as follows:
The child [X] was interviewed by himself, after an initial introduction to the writer in the presence of his father and paternal grandmother. [X] presented as being mature beyond his years and was well aware of what the interview was about. It was clear during the interview that [X] was keen to please everyone, including his maternal grandparents. Of the entire parties interview he was the most positive about all the adult players.
[X] told the writer that he had had big butterflies in his stomach prior to meeting me, but was happy to go ahead with the interview because he did not find the writer scary. He then went on to talk about school. He told the writer that he was in Year 4, and that he is doing well at school. [X] told me that he likes playing with friends his own age, he describes himself as a computer man, but is only allowed to be on the computer for a certain amount of time every day. [X] is currently learning to cook and is interested in growing his own fruit and vegetables, he doesn’t care to eat them but his ([nick-name omitted]) maternal grandmother insists they are good for him, so he thinks he will enjoy eating what he grows. [X] also likes to swim, loves his NRL and cricket and his motor bikes. He has a bike at both grandparents’ places. But the one at his Nana’s (maternal grandmother) is a bit small for him now. [X] appeared to be very impressed with his father’s current bike he rides over from [M]. Currently [X] is learning how to play the guitar, but is really keen to get a drum kit and play the drums.
The writer was told by [X] that he feels safe at [nick-name omitted] (paternal grandmother) and gave his paternal grandparents a score of 10/10. He went on to say that his main priority was spending time with his father on the weekends, and over the holidays when he did get to spend some time with his other siblings, which is not too bad as long as Dad is around. Spending time with his Nana (maternal grandmother) was not a top priority. He told the writer that he would much prefer to spend time with this Mum then his Nana, and that he missed his Mum “Big Time”.
[X] gave it careful consideration and told the writer, that he really did not want to spend big chunks of time with his Nana. What he would like is to spend more regular time with her for a few hours. He really was not fussed about over night visits. [X] also felt that he is old enough to ring her when he wanted, and felt he could manager regular phone calls quite well. [X] made it very clear that he did not want his maternal grandmother having his internet details, and did not want vidocam contact.
When visiting his maternal grandparents, [X] told me that he does not get to play with other children, but this is O.K. as his grandmother has bought him lots of things to play with.
[X] was very concerned about what would happen when his Nana found out that he was living with [Mrs N] and his granddad, as he knew how angry his Nana could get. [X] also confided that he did not like the way his Nana said awful things about his Mum who he “loves to bits”. He knows it is not safe to live with his Mum but he still loves her. The bottom line for [X] however is that he wants to spend heaps of time with his Dad, and if his Mum is around have time with her as well.
The writer was told by [X] that he does not like changeover time, as he is very aware of how much everyone dislikes each other. [X] told the writer that he tries very hard to keep everyone happy, but sometimes it is very hard especially when there is yelling going on.
As a result of the assessment in relation to this matter, Ms Mason-Johnson makes recommendations for [X] to have the opportunity to spend time with, it should be noted, his maternal grandparents and not just the maternal grandmother, but that that time be limited to even less than that which is proposed by the father and supported by the mother. More particularly, she also recommends that there be opportunities for telephone communication to occur.
Significantly, it is also noted that in the recommendations of

Ms Mason-Johnson, that there will need to be a reconsideration of the arrangements to be put in place, once the mother is released from gaol. I would think that that would be a given in relation to this matter and it is a matter that influences me in relation to the determination of these proceedings.
I was most assisted by the evidence of Ms Mason-Johnson in relation to the proceedings, particularly when in her oral evidence she detailed particularly the maturity of the child, at least, insofar as the comments that were made by him in relation to the proceedings.
I was also assisted by Ms Mason-Johnson's oral evidence in relation to her assessment of the benefits to [X] of a relationship with all of those persons significant in his life. In particular, when asked whether a child could have too many people in their lives who love them, she indicated understandably, that that was not a concern and that as many persons as possible significant and loving of the child would be beneficial.
When asked whether grandparents were important she indicated that, of course, that was also significant in a child's development. And when asked whether it was emotionally positive for a child to have grandparents involved in their development, she again said that that was correct but went on tellingly to say, that that was the case as long as the grandparents and all others acted respectfully, both to each other and in regard to the child's own interests.
I was somewhat troubled by some of the notations that were made by Ms Mason-Johnson in relation to those behaviours and, whilst, of course, there must be some consideration given to the fact that

Ms Mason-Johnson did not have the opportunity to observe [X] with the maternal grandmother, the assessment by her of the damaging nature of the reactions by the maternal grandmother in the presence or directly to [X] were matters that troubled me, in respect of these proceedings.
I noted also in cross-examination on this point by counsel for the father, that Ms Mason-Johnson was asked about the maturity of the child and the weight that could or should be given to the indications by [X] of what he wished to occur in relation to his opportunity to spend time with those people significant in his life.
She indicated in response to that particular line of questioning, that there were real concerns about manipulation of the child from many persons who should not be acting in such a manner in relation to the child. By the same token however, she indicated that she accepted and believed that [X]'s expressed wants and wishes in relation to this matter were his own thoughts and wishes, and that he had had to “grow up quickly”, because there had been so many expectations placed upon him, by many of the persons who really had the responsibility for the care and supervision of him. In particular, she said that he had had to be the, as she put it, "caretaker of the adults' feelings", in relation to this matter.
Ms Mason-Johnson commented, and I can only agree, that it should be the adults who have taken the responsibility in relation to the parenting of this child, rather than this child being the caretaker of the adults' feelings. I was most impressed by the evidence of Ms Mason-Johnson and of the very considered nature of her opinion, in relation to the proceedings.
I turn now, as I obviously must, to the application of the law and to the determination in respect of these proceedings. The starting point, as it always must be, are the provisions of section 60CA. Section 60CA is in these terms:
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.
The fact is that the paramount consideration is, of course, the welfare and the best interests of the child but just as clearly there needs to be consideration of the many other aspects relating to the child's life. It is not necessary here to consider the issue of equal shared parental responsibility or sole parental responsibility as arises pursuant to section 61DA.
The unfortunate circumstances that exist, mean that it is, to all intents and purposes, impossible for me to be satisfied that equal shared parental responsibility as between the mother and the father would be workable. The mother is incarcerated. Decisions have to be made in relation to the child and I am satisfied that the father has, in the past, and will continue at least into the foreseeable future, made mature and appropriate decisions in relation to the life of the child and to his future. And, in particular, having at least now some insight into the importance to [X] of his mother's involvement, that he will properly communicate such issues to the mother and will consult with her as he properly should do, in relation to decisions to be made.
It is also noteworthy and credible from the maternal grandmother's perspective that she does not seek involvement in that particular aspect of the child's life, but recognises that sole parental responsibility should vest in the father. I intend to make such an order.
Normally, consideration would have to be given then to issues with regard to the provisions of s.65DAA and whether arrangements could be considered in relation to equal time or alternatively significant and substantial time. Of course, again, in the circumstances that exist, that is not relevant in relation to the determination of this matter and, again, to the maternal grandmother's credit, it is not something that is sought by her but rather the opportunity for a continued involvement in the child's life.
In that regard, it is important that there be consideration of the objects and the principles as delineated in s.60B of the Family Law Act and also those considerations which are set out more specifically in s.60CC and, in particular, the primary and additional considerations as delineated in sub-sections (2) and (3) of the Act.
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relativesP; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right;
To maintain a connection with that culture; and
(a)To have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Section 60CC:
Primary considerations
(2)The primary considerations 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.
Additional considerations
(3)Additional considerations 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 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 Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(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;
(m)any other fact or circumstance that the court thinks is relevant.

I make reference specifically to the provisions of section 60B, the objects and principles, because it is noteworthy that what might be called the primary objects relate to the involvement in the life of the child, of the mother and the father. Only when certain of the principles are delineated later in s.60B does it become obvious that a further consideration is the child's right to a relationship, of a meaningful nature with others significant in the child's life and, of course, in that regard the grandparents are specifically mentioned.
It is reflected also in the considerations which are required to be looked at pursuant to the provisions of s.60CC. The fact is that the parliament has considered it appropriate that they should be broken into primary and additional considerations and, of course, the primary considerations relate specifically to issues in relation to a meaningful relationship between the child and the child's parents, with there being no reference in the primary considerations to a meaningful relationship with other persons significant in the child's life, and also the more general need for the child to be protected from harm.
I have commented about the need, obviously but expressly, raised by [X], in relation to a meaningful relationship with his mother. I accept, on the face of it, the evidence now before the Court that the father recognises, albeit a little late in time, the importance of fostering and developing that relationship and that he will take appropriate steps in doing so.
The counter balance in relation to s.60CC(2)(a), the need for a meaningful relationship, is that which is set out in s.60CC(2)(b), the need for the child to be protected. It should be noted that whilst sub-section (a) relates to a meaningful relationship between the child and the child's parents, there is not such a distinction drawn in relation to the issue of protection of the child. In other words there needs to be consideration of protection of the child, not only from the behaviours or actions of the parents, but of a more global aspect of protection. In other words, ensuring that the child is safe from psychological or physical harm which might arise in other respects and that, of course, includes from persons, with whom the child might come into contact.
I emphasise that particular aspect of the matter because, unfortunately, it is clear at this time that there have been issues in relation to the behaviours of the maternal grandmother which give rise to a very real consideration and concern, about the effect upon the child. Knowingly or unknowingly, and it is hoped that it was unknowingly, the uncontrolled statements of the maternal grandmother in relation to the mother, have hurt this little boy terribly.
I accept the comments and accuracy of the statements made by Mrs N senior, that [X] has made comments about being told by the maternal grandmother that his mother was a liar, that his mother was a thief, and that his mother was not a good person. The harm that has been caused to this child needs to be addressed, and it needs to be specifically known and understood by the maternal grandmother and all other members of the family, that such behaviours must not continue as they are simply detrimental to the best interests of the child. It is, unfortunately, a factor which does have some influence upon me in relation to these proceedings.
Having considered those primary considerations it is also necessary, of course, to consider the additional considerations as set out in s.60CC(3). It is clear, that any of those considerations set out in sub-section (3), are not to be given priority over any other considerations. They are all significant matters and matters which must be looked at.
Obviously, this child's wishes have been expressed in relation to the proceedings, but just as clearly, it is important that there be consideration of what might or might not have influenced those wishes. As I have indicated, it is clear that, at least to some extent, the behaviours of the maternal grandmother, herself, have led to the expressed wishes of the child in relation to his time to be spent with her and the maternal side of the family.
It could not be otherwise envisaged, than that the child wishes to reduce the hurt that he has experienced as a result of the comments made by the maternal grandmother and that, therefore, she is, in part, responsible for the child's reluctance to spend, as he put it "big blocks of time" with the maternal grandmother. Just as clearly, however, there is a significant degree of animosity as between, particularly, the paternal and maternal grandparents and quite obviously the behaviours of the paternal grandmother needs also to be taken into consideration in relation to this matter.
As was noted by counsel for the maternal grandmother, the Courts have previously commented about the benefit or assistance that would be forthcoming, in relation to orders being made, arising from statements of a child's wish if there could be greater evidence of the competence of the child to make such statements.
In particular, I was referred to the decision of the Full Court of the Family Court in H v W (1995) FLC 92-598 where Baker J commented that:
It would be helpful to the Court if counsellors, psychologists and psychiatrists endeavour to assess the level of maturity of each child and the extent to which a child has been influenced by a parent in order that a child's competence in regard to wishes can be properly considered by trial Judges.
I am mindful of that particular aspect of the matter because, of course, whilst Ms Mason-Johnson assessed the child as having a significant degree of maturity, there is little assistance as to how the child's wishes in relation to this matter might have been influenced in different ways, not only by the statements and behaviours of the maternal grandmother, but also by the statements, behaviours and actions of the paternal side of the family.
Again, I do not suggest that it would have occurred intentionally or in an overt manner, but the obvious distaste that was expressed by Mrs N to the Hidalgo family and to the maternal grandmother in particular, was palpable and quite clearly if it were able to be observed by me in the few minutes that she was in the witness box, it would clearly be able to be observed by the child in the days and weeks that he spends primarily in the care of the paternal grandmother.
I am mindful, obviously, of the expressed wishes of the child in relation to this matter, but I am also, of course, mindful of the assessments that I referred to at the very beginning of these reasons, given by unchallenged witnesses, in relation to the obvious enjoyment they observed in the relationship between [X] and the maternal grandmother.
I am mindful also of the need for the relationship to be fostered and developed, and for that to occur, notwithstanding the difficulties that might already be in place in relation to the child spending time with the maternal grandmother and extended members of the maternal side of the family. It is clear that there is a relationship in place.
It was noted by the father and the paternal grandmother as being a strong existing relationship between [X] and his maternal family. They noted it, particularly on the basis that there didn't need to be significant periods of time spent with the maternal side of the family, because the relationship was already in place and could be continued with more limited opportunities for interaction. Just as clearly however, there have been pleasant interactions in the past and, subject, of course, to the maternal grandmother recognising the hurt that she has caused through her actions to this little boy, there can be future "good times" had by [X] with the maternal grandmother and other members of the mother's extended family.
It is important that there be a recognition of the capacity of the parents to foster and develop the relationship with other persons, significant in the child's life. I am mindful, in particular, of the limited communication and, therefore, limited opportunities given to the maternal grandmother and to the mother's side of the family, to spend more significant periods of time with [X] or even to know a great deal about [X]. An example of this limited communication arose when the child came to live in [R] and that was not communicated for some considerable number of months afterwards. There needs to be a development on all parties' part, of an acceptance of the importance of a relationship being fostered with [X] and all persons relevant in relation to his life.
It is important that this relationship be fostered and developed. It is also absolutely essential, that the maternal grandmother realise that her role in relation to this child and the relationship that she has with [X] is one of a grandmother or grandparents' role with a grandchild and not the far more significant and influential role that exists, obviously, as a result of the close bond between a mother and father and the child.
I note that in that regard, the time that is sought to be spent by the grandmother with the child would appear to be very significant, certainly, during the school term. In that regard, Ms Mason-Johnson, particularly commented that, perhaps, one day a month would be not uncommon when families were together. It is certainly clear that when the mother is released from gaol, hopefully within the next 10 to 12 months, it will be a situation where this little boy will find even greater strain placed on his time being spent with those significant to him.
He commented to that extent in his discussions with Ms Mason-Johnson when he talked about the importance of having every opportunity to spend time with his father and his enjoyment of the alternate weekends that he spent with his father and, of course, his wish to spend more time with his mother. That will, of course, become even more significant upon the mother's release from gaol and, hopefully, the reunification of this little boy and his mother who is so important in his life.
It is a difficult balance that needs to be looked at when one considers already the emotional strains upon the parents as well as those financial concerns that have affected all involved in these proceedings, but more specifically the emotional damage that has already been caused to this child. It is relevant in my assessment, that any order that is made now be one which is workable whether or not the child is living with the father, or at the father's direction, with the paternal grandparents or, perhaps, in the not too distant future, primarily with the mother, spending time with the father and the paternal grandparents, but also having a regulated opportunity to spend time with the maternal side of the family.
In my view, there needs to be some balance taken in relation to this matter and the school holidays proposals that are put by the maternal grandmother and I would think generally accepted by the father, subject to the determination of the criminal proceedings against the maternal grandfather, are reasonable. Insofar as to whether they should come into affect before or after the determination of the criminal proceedings are concerned, I am far more inclined to the view that there is little, if any risk, to this child in having opportunities for slightly longer periods of time as suggested in relation to the autumn, winter, spring and summer school holidays as proposed.
In my view, there is no risk to this child arising from spending time now with the grandmother of three days and two nights; or four days and three nights; and with the maternal grandfather being present. There is no evidence whatsoever of any harm to this child even though he has in the past been present during police raids.
Obviously, if there were to be further police raids or evidence, clearly, of criminal behaviours by the grandfather and, perhaps, with the knowledge of the grandmother then the situation would need to be reviewed. But one would hope, that at the very least, there would be a recognition by all of the hurt that this child has already experienced and the need for there to be a fostering and developing of beneficial relationships with all persons significant in the child's life.
I am satisfied that it is appropriate that there should be, from the commencement of the school holiday period in September/October 2009, the spring school holidays, an opportunity for time to be spent within the grandmother's household, whether or not the maternal grandfather is present.
I struggled a little more with what arrangements should be put in place during the gazetted school terms. In my assessment the proposal by the maternal grandmother is to all intents and purposes, more than would in the vast majority of cases, exist with regard to a grandchild/grandparent relationship whether the family was a united family group or not. The suggestion that there would be three nights per month as well as an additional day is a significant period of time. It would be even more significant when, as I have already indicated, there are the real prospect or possibility of changes that would arise as a result of the mother's release from gaol.
The proposal by the family reporter of a period of, say, 9 or 10 until 4 or 5 on one Saturday or Sunday per month allows the fostering and developing of the proper relationship between grandchild and grandparent without the particular interference in the life of the child and the development of the far more significant relationship with the mother and the father.
In my view, the appropriate course to follow in this regard is, during the gazetted school terms, to put in place an arrangement which provides for the child to spend time with the maternal grandmother, maternal grandfather if he is present, and of course, the maternal aunt on one occasion per month during the gazetted school term but, of course, for that to cease during the school holiday periods to which I have already referred.
That takes into consideration, obviously, the child's right to a relationship and the parents and other persons significant in the child's life and responsibility to foster relationships with all such persons but at the same time, has the more limited interference in the life of the child, and particularly, the life of the child which will, hopefully, significantly change upon the release of the mother.
For the reasons that I have given, therefore, in relation to this matter the orders that I intend to make are as shown at the beginning of these reasons.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate: C Herbst

Date: 6 August 2009