Kelly and Landridge

[2013] FCCA 1737

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLY & LANDRIDGE [2013] FCCA 1737

Catchwords:
FAMILY LAW – Children – Sudden death of Mother who was the primary carer of three children aged 10, 8 and 3 by three different fathers – Applicant is “psychological father” of middle child – maternal grandmother and Father compete for where the two younger children shall live – biological Father of middle child does not actively pursue time with son – high conflict and mistrust exists - /court orders younger children live with the Applicant Father and he have sole parental responsibility.

Legislation:

Family Law Act 1975; s.60CC

Donnell & Dovey (2010) FLC 93-428
Jones & Dunkel [1959] HCA 8
Kelly & Landridge (2012) FMCA 374
Yamada & Cain (2013) FamCAFC 64

Applicant: MR KELLY

Respondent: MS LANDRIDGE

File Number: BRC 1904 of 2012

Judgment of: Judge Baumann

Hearing dates:

7-8 February 2013; 17 June 2013;

4 October 2013

Date of Last Submission: 4 October 2013

Delivered at: Brisbane

Delivered on: 25 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Middleton

Solicitors for the Applicant: SJP Law

Counsel for the Respondent: Mr Galloway

Solicitors for the Respondent: Mumfords Lawyers

Counsel for the Applicant: Mr Bunning

Solicitors for the Applicant: HM Lawyers

ORDERS

1. The children X born (omitted) 2005 and Y born (omitted) 2010 live with the Applicant Father (‘the Father’).

2. The Father shall have sole parental responsibility in relation to the children.

3. In the exercise of his sole parental responsibility, the Father will consult with the First Respondent (‘the maternal grandmother’) in relation to any long term decisions that are to be made in relation to the children but in the event that no agreement can be reached, the Father will make the decisions regarding the children.

4. The children will spend time with the maternal grandmother at all times as may be agreed between the parties but failing agreement to be at least as follows:

   (a)Between after school Friday to before school Monday every second weekend,

   (b)During the Easter, June/July and September school holidays for half of such holidays as follows:

   (i)In odd years, the first half, with changeover at Midday on the middle day,

   (ii)In even years, the last half, with changeover at the commencement of the time to take place at Midday on the middle day with the children to return to the Father’s home by 4:00pm on the day before school commences,

   (c)For a period of two (2) weeks during the December/January school holidays (not including the Christmas special days) with the maternal grandmother to provide to the Father one (1) months’ notice of the days that she elects that the children spend with her and in that regard:

   (i)Time shall commence at Midday on the first day of the time elected,

   (ii)Time shall conclude at Midday on the last day of the time elected.

   (d)During the Christmas special days as follows:

   (i)In even numbered years between 4pm Christmas Eve until 4pm Christmas Day,

   (ii)In odd numbered years between 4pm Christmas Day until 4pm Boxing Day,

   (e)Between 9am and 5pm on:

   (i)     Mother’s Day,

   (ii)    The birthday of Ms A,

   (f)On 14 February from after school to the commencement of school the next day (if a school day) or if a weekend day, then 9:00am to 5:00pm.

   (g)On each of the children’s birthdays with both children between after school (or 3:00pm the day before) the birthday until 9:00am on the day of the birthday in even numbered years and between after school (or 3:00pm) on the day of the birthday until 9:00am the day after the birthday in odd numbered years.

5. The maternal grandmother shall collect the children from the Father’s residence at the commencement of her time and the Father shall collect the children from the maternal grandmother’s residence at the conclusion of her time, unless changeovers under this order occur at school.

6. These Orders act as an Authority for the Father to obtain a passport for X and in the event that the Australian Passports Office requires the signature of Mr N on the Application the following Orders shall apply:

   (a)The Father shall write to Mr N seeking his consent and seek a response within twenty-eight (28) days,

   (b)In the event that no response is received or Mr N does not consent to the passport issuing then, a Registrar of the Federal Circuit Court of Australia is appointed to sign the document on behalf of Mr N, pursuant to Section 106A of the Family Law Act 1975.

7. The Father and maternal grandmother are hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which the parents are invited. This Order shall be authority to the school to provide such documents to the Father and maternal grandmother.

8. The Father and maternal grandmother are hereby authorised to obtain from the children’s medical practitioners such information as they may require in relation to the health and/or treatment of each child. This Order shall act as authority to the medical practitioners to provide such documents and/or information to the Father and maternal grandmother.

9. The Father and maternal grandmother must notify the other as soon as is practicable of any matter in relation to the health or well-being of the children that requires the attention of a medical practitioner or health professional (save for common coughs and colds, minor abrasions and similarly trivial medical issues) and provide to the other parent the name and telephone contact details of the medical practitioner or health care professional involved.

10. The Father and maternal grandmother are to advise the other of any change of telephone number or residential address within 48 hours of such change.

11. The Father and maternal grandmother will not criticise or denigrate the other party or the other party’s family in the presence of or in the hearing of the children nor allow any other person to do so in the presence or the hearing of the children.

12. The Father and maternal grandmother will attend joint counselling with a counsellor as agreed to assist them in their communication, with the costs of counselling to be shared equally.

13. The grandmother shall advise the Father in writing not less than one (1) month prior to her introducing X (when in her care) to either Mr N or other members of the (omitted) family either by telephone or in person.

14. The Application in a Case filed by Mr N, be dismissed.

15. The Independent Children’s Lawyer is discharged.

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

FEDERAL CIRCUIT COURT

OF AUSTRALIA
AT BRISBANE

BRC 1904 of 2012

MR KELLY

Applicant

And

MS LANDRIDGE

Respondent

REASONS FOR JUDGMENT

Introduction

1. On (omitted) 2012, Ms A (then aged 28 years) no doubt began her day like many other days.  She cohabited on the (omitted) with her then partner, the Applicant, Mr Kelly (now aged 24 years).

2. In her primary care were three children, all having different fathers:-

   a)Z born (omitted) 2002 (now aged 10 years);

   b)X born (omitted) 2005 (now aged 8 years); and

   c)Y born (omitted) 2010 (now aged 3 years).

3. Although Ms A had, as the history of her prior relationships demonstrates, been challenged in maintaining long term relationships, her relationship with the first respondent Ms Landridge was supportive.

4. Ms Landridge was clearly, in all respects, a loving grandmother to the three children.  The fact that she began her relationship with Ms A as a foster mother to both Ms A (then aged 2 years) and her brother Mr J (then aged 4 years) in 1985, and is therefore not the biological grandmother, is of no consequence.  Ms A changed her surname to “Landridge” in 2002 shortly after becoming an adult.

5. Tragically for all concerned, but particularly Z, X and Y, the events on (omitted) 2012 changed their lives forever.

6. Ms A was involved in a serious car accident on that day and never left hospital before passing away on (omitted) 2012.

7. Her sudden death unleashed a number of events as well as these proceedings commenced by the Father on 5 March 2012.  Even the trial, which was conducted on 7-8 February 2013, did not bring an end to the desire to provide the Court with more evidence, as the procedural history below exhibits.  In some way, the understandable grief that engulfed the parties and the extended families from January 2012, has not diminished and has taken time to “settle down”.  Other financial factors arising from compensation payments available appear to have fuelled continued tensions between the Father and the grandmother.

8. In these reasons, whilst I refer to Mr Kelly as “the Father”, I am of course conscious of the fact he is the biological father only of Y.

Competing proposals

1. The position of the Applicant Father is fully set out in Appendix One, attached.

2. The position of the Respondent grandmother is set out in Appendix Two, attached.  The grandmother, under cross-examination, indicated that if the children, X and Y, were both ordered to live with the Father (which of course she opposed), then she would seek orders that the children spend each alternate weekend (Friday to Monday) and half of school holidays with her, as well as each alternate Thursday overnight.

3. At the time of final submissions, the Independent Children’s Lawyer (“ICL”) produced a proposed Minute of Final Order, which was marked Exhibit 4, and is Appendix Three, attached.

4. Although a comparison of the positions of the parties reveals a different level of prescription in the varying form of orders (and the ICL orally indicated that Ms B (referred to in their proposed order 12) was no longer contended for as the therapeutic counsellor) the essential core disputes were:-

   a)Where should X and Y live;

   b)Who should have parental responsibility; and

   c)What time should the children spend with the other party and/or Mr N.

5. In my view, the lack of interest shown by Mr N (the biological father of X) in both X and these proceedings does require some brief examination – particularly where the encouragement of such a relationship by the grandmother was so pronounced.

Principles

1. The orders I am asked to make are parenting orders and as such the Court must:-

   a)Follow the defined legislative pathway being aware of the overarching objects and underlying principles.

   b)Be mindful of the requirement imposed by s.60CA that the best interests of the child or children are the paramount consideration, but not the only consideration.

   c)Give proper weight to the primary considerations (s.60CC(2)) and the additional considerations (s.60CC(3)).

   d)In certain circumstances apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

2. As the transcript of both the evidence and submissions (including exchanges with the bench) will attest, the lack of biological connection between the children and the parties (save for the Father and Y) was averted to on more than one occasion.

3. In some ways, this issue was promoted more by the grandmother when she kept reminding the Court that the Father was not the biological father of X.  This caused, regrettably, the Father to react by reminding the Court that the grandmother was not the biological mother of Ms A.

4. It is, as a result of those undercurrents, appropriate to refer briefly to the suggestions some “presumption” in favour of a parent (as opposed to a non-parent, in this case, the grandmother) exists or that some presumptions arising in favour of a biologically connected party exists.  As higher authority has indicated, the fact that some of Part VII’s provisions do not apply to non-parents, does not mean there is a “manifest legislative intention to give primacy to parenthood in determining best interests and, therefore, in making parenting orders when the claims of non-parents compete” (this issue, but involving a dispute between a Mother and the Paternal Great Aunt) was discussed by the Full Court (Thackray, Murphy and MacMillan JJ) recently in Yamada & Cain (2013) FamCAFC 64 at paragraphs 17 to 32, when this important observation at paragraph 27 was made:-

   “27.The broad inquiry as to the best interests contemplated by s.60CC (in the context of the other provisions of Part VII) recognises that it is no parenthood which is crucial to the best interests of Z, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.”

5. In the said discussion in Yamada & Cain (supra) the Full Court referred with approval, to what a differently constituted Full Court in Donnell & Dovey (2010) FLC 93-428 said at [101], namely:-

   “101.…However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account.  In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.  As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight. 

   102.We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].”

Credit

1. Apart from the professional witnesses (Ms V, Ms B and Mr F), the only other witnesses who were cross-examined were the Father, the grandmother and Ms D.

2. I should note that the grandmother relied on other witnesses in her case outline, however, none of those witnesses were required for cross-examination.  I have taken into account their evidence.

3. Having had the benefit of seeing the effective cross-examination of the parties, I am comfortable in finding that both the Father and the grandmother (as was Ms D) were credible witnesses.  Some of their recollections and perceptions have been shaped by the sense of loss each feel, and these proceedings.  The Father, who says he felt he had a good relationship with the Landridge family before Ms A’s death, remarked that he felt “hounded” by them now.  The way in which the case run by the grandmother has been presented, which was more adversarial and negative of the Father then in my view was necessary, contributed I feel to his sense of being under attack.

4. The grandmother presented to me as if she was obliged to run such a case not only for the children, but also for her late daughter, the extended Landridge family, and for Mr N and his extended family.  This was a heavy burden to carry, and as seen by Mr N’s inaction, at times unrewarded.

5. It is always difficult to really know what evidence might have emerged from Ms A – who everyone agrees was a kind, caring and devoted mother.  Ms A had commenced a parenting role when she was only 19 years old.  I accept that the grandmother provided support and assistance to her daughter as her daughter confronted the birth of two further children and the issues surrounding the breakdown of Ms A’s relationship with Mr D and Mr N.

6. In such circumstances it is understandable that she would be concerned about “complaints” raised by Ms A with her about the Father – yet, as I set out below, although I am satisfied the relationship between Ms A and the Father was suffering tensions, the fact remains that they were an intact couple at the time of Ms A’s untimely tragic death.

7. The context set out above provides to the Court a reminder that it should not judge too harshly some of the reactions, interactions and comments made in the months shortly after Ms A’s death.  The grief these parties felt was palpable when the Court was asked to make an interim decision in March 2012.  The grandmother reflected that she “resented” the decision, and I can well understand why she may have felt that way.

8. To some extent, the need for the grandmother to make two applications to reopen reflects a fervent desire to ensure the Court was “up to date” with new developments – and especially those she feels support her application for X to live with them.  I deal, of course, with that additional evidence below.  However, I note that neither party sought leave to cross-examine the other party on this additional evidence, and neither party submitted that the new evidence supports a change in their proposals as set out above, articulated at the hearing – rather they both say the evidence reinforces such proposals as being still in the best interests of X and Y.

9. There have been some issues on which I have been required to make findings and, in those circumstances, I have generally sought to explain why I have preferred one version of the facts over the other.

10. Hereafter, in these reasons, the statements of fact should be construed as findings of fact.

Brief contextual history

1. The Mother, Ms A, was born in (omitted) 1983 and came into the foster care of the grandmother Ms Landridge and her husband Mr Landridge (together with her brother Mr J) in 1985 when Ms A was nearly two years old.

2. Ms A commenced a relationship with Mr D in 2000 and their child, Z, was born on (omitted) 2002.  The relationship ended in late 2004 and Z (then about two years old) remained in the primary care of Ms A.

3. Shortly thereafter, Ms A (still only 21 years old) commenced a relationship with Mr N.  It was not a happy relationship and it resulted in a final separation in late 2005 shortly after the birth of their son, X, on (omitted) 2005.  Although Mr N had some contact with his son as permitted by Ms A for about 12 months, all contact between X and Mr N ceased by late 2006.

4. On 19 October 2005, Ms A made a will.  The will was made only days before the birth of X.  In that will Ms A appointed the grandmother “to be the guardian of any biological child of mine”.  This desire was consistent with an earlier written intention of Ms A.

5. Relevantly, Ms A did not wish Mr N or Mr D (the fathers of X and Z) to be “the guardian”.  Furthermore, the will was made prior to the relationship with the Father, Mr Kelly, or the birth of Y.  It seems no subsequent will was made.  The grandmother regards the will as a very important authority for her to pursue her applications.

6. The Father says, and I accept, he commenced a relationship with Ms A in 2008.  The grandmother asserts the relationship commenced in April 2009.  I think there is every prospect, in view of her past relationship history, that Ms A may have concealed the true extent of her relationship with the Father initially to her mother.  The fact that he was five years younger than her might, I speculate, have been an issue.  I find Mr Kelly was about 20 years old when the relationship began, and the Mother Ms A was about 25 years old and had the primary care of Z (approaching 6 years) and X (approaching 3 years).  Although the grandmother says the “Landridge family” met the Father for the first time in mid-2009, a relationship was certainly intact, with Y being born on (omitted) 2010.

1. I deal below in these reasons with some of the events in the relationship between Ms A and the Father particularly the “Chocolate incident: reported by Z, said to have occurred in August 2010.  I also below deal with the therapy undertaken by Ms A with psychologist Mr F from 15 October 2011.

2. The sudden events of (omitted) 2012 sent the family and these three young children into a grief-generated state of confusion and chaos.  As the reasons, which I published (see Kelly & Landridge (2012) FMCAfam 374) set out, the difficult interim decision was made less than two months after the death of Ms A, and resulted in orders for X and Y to live, on an interim basis, with the Father and spend time with the grandmother. Z went to live with his Father, Mr D who had married years earlier Ms D. They had a child. As we see below, when the Mr D family moved to the (omitted) Suburbs of Brisbane in 2013, Z changed schools and moved with them.

3. Although X and Y have continued to live with the Father since the death of their Mother (a period now of over 18 months),Z is to return to the (omitted) and live with the grandmother for the reasons explained by Ms D in her affidavit filed 30 September 2013.  In short, this is as a result of a number of factors including:-

   a)The express wishes of Z;

   b)Ms D, who undertakes the majority of the care of Z as his Father is often away from home for work, has found Z’s behaviour at times “challenging”;

   c)Z has struggled at his new school and has complained of “bullying”;

   d)Ms D has expressed concerns about her “stress levels” in light of her current pregnancy; and

   e)The Father, Mr D, may be starting a new contract in early 2014, which would require the family to relocate to (omitted).  Sensibly, the Mr D family do not wish Z to be that far away from X, Y and the Landridge family.

4. I accept the child focused arrangements that the grandmother and Ms D have made for Z.  With Z to live on the (omitted), that clearly creates other more practical options for all three siblings to spend time together if the three children do not live with her.

Procedural history

1. In this case, some understanding of what occurred after the interim orders were made 23 March 2012 is desirable.

2. To the lawyers’ credit, they arranged shortly after the death of Ms A, and when it must have been apparent to all involved that a complex situation had arisen, for a consultation with experienced social worker, Ms V, to take place on 15 March 2012.  I deal with her reports below, however, it is clear that the decision of the Court on an interim basis did not support the recommendation by Ms V that X live with the grandmother.

3. The interim orders placed X and Y with the Father and provided for X to spend time each alternate weekend (Saturday to Sunday) and alternate Thursday overnight with the grandmother.  After an initial period of day only time, Y by 28 April 2012 was to spend the same time with the grandmother as X was spending.  An Independent Children’s Lawyer (“ICL”) was appointed.

4. Mr N had become a party to the proceedings by virtue of being named as a party by the grandmother in her Response filed 21 March 2012.  The initial application sought orders in respect of only X and Y, and no orders have ever been sought in respect of Z and, as a result, his biological father, Mr D, was never a party to these proceedings.

5. The interim orders directed Mr N be served.  The evidence of the grandmother was that she had informed Mr N of Ms A’s death.  The notations to the first order made are worth recording:-

   “14.That the Father has enrolled in an anger management course through his engagement with a psychologist under a mental health plan.

   15.That the parties intend that X engage with Ms B for therapeutic purposes and the parties will attend such sessions as required by Ms B.

   16.The Court does not require any further forensic investigations to be conducted at this stage but would like the parties and the Independent Children’s Lawyer to identify where and optimally when a more family therapeutic process might be able to be undertaken.”

6. Even at that early stage, the Court had suggested this was a matter where the interests of all three children would be served by all adults working together rather than litigating.  Alas, that suggestion was not fully embraced by the respective families.

7. The grandmother filed with her Response a Notice of Child Abuse alleging physical abuse of Z by the Father and that the children X and Y were at risk of abuse by the Father articulated at paragraph 4 (Item 10) as follows:-

   “4.The maternal Grandmother’s position is as follows:-

   a. That there was violence between Mr Kelly towards the Mother of the children, Ms A (“Ms A”).

   b. That Mr Kelly has been violent towards the children on the occasions referred to above.

   c.  That Ms A was on the verge of ending her relationship with Mr Kelly prior to her death.

   d. That Mr Kelly was not the primary carer of the children during the relationship.

   e.  That Mr Kelly is an inexperienced parent and that Y is presently receiving inadequate care.

   f.  That Mr Kelly smokes marijuana.

   g. That the children are at risk of physical harm in Mr Kelly’s care.”

8. As is clearly demonstrated, from the first material filed, the grandmother made her position clear.  It is, as her evidence at the hearing nearly 12 months after she filed this Notice of Child Abuse revealed, still her position that the Father is “violent and a drug abuser”.  In every respect, the Father was being called upon to defend himself consistently.

9. In contrast, the grandmother promoted X’s need to have a relationship with Mr N. Her lawyers filed, on Mr N’s behalf, an Application in a Case on 21 June 2012.  As I set out below, Mr N appears to have either rejected nearly every opportunity to get involved in these proceedings or pursue, genuinely, an application he filed to spend time with X.  The grandmother, as is shown, even involved Mr N’s mother when Mr N seemed to lose interest.  This behaviour of the grandmother is assessed later.

10. The Court early in the proceedings, was aware that Ms V had opined X “ruminated” on seeing Mr N.  He told Ms V that he had never met his biological Father “but he knows his name”.  When the prospect of the grandmother introducing in her home Mr N to X arose (from her clear insistence that X had “a right to know”), the Court on 23 May 2012 ordered that:-

    “no party shall discuss the introduction of Mr N into X’s life or allow anyone else to do so.”

11. This order was also made in the context of the grandmother, shortly after Ms A’s death, telling X about Mr N in circumstances where she did not tell the Father of her intentions “because I knew he would not support it”.

12. Further interviews with Ms V were arranged and took place on 17 October 2012 – some seven months after the original interviews.  Ms V’s report dated 28 October 2012 and her evidence at the trial are discussed below.

13. On 5 November 2012, the matter was listed for hearing on 7-8 February 2013 on 5 November 2012, at which time arrangements for Christmas holidays were made.

14. As earlier noted, the delivery of these reasons were delayed by two successful applications by the grandmother to reopen.  Further affidavits by both the grandmother and the Father were filed.  The evidence revealed that post the hearing:-

    a)Z, by arrangement with Ms D, spent most weekends with the grandmother at the same time as X and Y was also there.  The Father deposed to being aware of those arrangements and supported them, although it was out of his control;

    b)As Z’s father works in the (omitted), it was not unreasonable for him to spend time with Z when he was home.  This clearly reduced the weekend time available for the three children to spend time at either the home of Mr Kelly or Ms D, although they were together for Y’s birthday in June, with Z spending overnight; and

    c)The issues around the claims for Work Cover Compensation and the Superannuation life benefit (from (omitted)) are a significant focus of the grandmother’s material (particularly her affidavit in reply filed 27 June 2013).

15. The second application to reopen filed and the further evidence then filed by the parties was, as is apparent, of some significance in that:-

    a)The Court was informed about the arrangement reached between the grandmother and Mr D & Ms D, whereby Z will live full time with the grandmother from the commencement of the 2014 school year.  The combination of reasons for this decision are set out above;

    b)X has been involved in two incidents at school – on (omitted) July 2013 and (omitted) August 2013 – both involving a knife.  There was another incident involving X and a little girl at school in the week of (omitted) August 2013.  Volumes of correspondence were sent to the Father’s solicitors.  The correspondence reveals the poor level of communication between these parties.  The tenor of the correspondence is somewhat demanding and accusatory.  They speak for themselves;

    c)Again, the grandmother saw fit to raise “financial matters” and the entitlements that arise from the WorkCover dependency claim which totals $288,470 and which WorkCover have verbally indicated that:-

    ·     the three children and Mr Kelly are to receive 25% of the total claim each; and

    ·     the payments for Z and X are to be made to Mr Landridge – the grandmother’s former husband, from whom she separated in 2005.  The payments for Mr Kelly and Y are to be paid to Mr Kelly; and

    d)The apportionment is different to that proposed by the Father, who in submissions to WorkCover dated 19 July 2013 sought 45% of the claim as well as 21% to Y; 18% to X and 16% to Z.

16. The Father’s Response by affidavit filed 18 October 2013, revealed that:-

    a)At paragraphs 1-9 the Father deals with the first incident and at paragraphs 10-14 he deals with the second incident at school.  It also contains details of the text exchange between the Father and the grandmother.  It is noted that although the grandmother, at paragraph 34 said she sent a text message to the Father (as she did) she did not include in her affidavit the quite reasonable response by the Father.  Rather, the grandmother launched her solicitors into another volley of correspondence.  The Father, not surprisingly, chose not to respond to every piece of legal correspondence;

    b)At paragraphs 15 to 20 of his affidavit the Father set out the therapeutic steps he has taken to support X; and

    c)The grandmother gave her version of discussions she instigated with the school about “rough play” involving X.  On 3 September 2013, the grandmother caused her solicitors to write again to the Father’s solicitors – despite those solicitors indicating they had no instructions.  The Father, at paragraph 21 says the school did not raise the matter with him.  I have no reason to doubt the Father’s evidence – it may be that the incident was not as serious as the grandmother seeks to make out; and

    d)The Father denies other allegations which the grandmother raises, from comments she alleges the children made to her about the Father leaving the children unsupervised.

17. My view, when I consider the evidence the grandmother has offered through the two limited reopenings into the evidence as a whole, is that, at best, this shows, again, the different parenting styles of the highly experienced older grandmother and the more casual younger Father.  Many parents would not see it as necessary to continue to engage with the school by email the way the grandmother does – telling the teacher, for example, as she did, that X had an “awesome” weekend with his siblings.  She will always want to be an involved grandparent, however, it is open to the Court to find that the tone and behaviour of the grandmother is also directed to the continued disparaging of the Father and his efforts to parent – as the Father suggests.  In my view it is a bit of both – and the continued correspondence from the solicitors for the grandmother have a “self serving” character.

The position of Mr N

1. It is abundantly clear that from the time of Ms A’s death the grandmother regarded it as important that X have a relationship with his biological father Mr N.  The reasons given for this apparent change of attitude is said to be entirely directed towards X’s best interests.

2. I am not satisfied that is entirely the case.  I have regrettably come to the view that the grandmother’s actions are more motivated by unsettling the close relationship between X and Mr Kelly.  Overall, I formed the view, on all the evidence, that the grandmother does not comfortably accept the strong attachment X has with the Father.

3. Although I would accept the evidence, again procured by the grandmother, from Ms K (the paternal grandmother), that the Mr N family would like a relationship with X, she acknowledges no relationship exists at the moment.

4. The reasons for that are patently clear.  The Mother, Ms A, made the decision when X was about 12 months of age that Mr N should not have a relationship with his biological father.  There is some evidence to suggest that the end of their relationship was conflictual.

5. There is no evidence at all that the biological father did anything about it – although his mother says he paid child support.  There is no evidence that the paternal grandparents did anything to preserve the “right” they all now say X has to get to know his paternal side.

6. More importantly, the only conclusion I can draw from the history is that if the grandmother, Ms Landridge, genuinely believed all this time X was being denied a relationship with Mr N, she did not do anything like she has done since Ms A’s death.  It seems clear by her conduct that Ms A did not wish to promote any relationship between X and Mr N – and rather promoted Mr Kelly as X’s father – never his biological father, but his father in every daily sense from the time they got together.

7. Mr N’s ambivalence is obvious.  His remarks to Ms V made on 15 March 2012 (see paragraphs 107-110) reveal what I find is the case.

8. Namely, despite the urging of his own family and particularly the grandmother, he is unable to commit to being X’s biological father, to be a consistent person in X’s life.  I regard the tactical inclusion of Mr N in these proceedings as designed predominantly to support Ms Landridge’s claim for X to live with her.

9. On one level the Court can understand those strong emotional urges, however, when it places at risk the relationship X has with the only father he has known, Mr Kelly, it reveals, in my view, a lack of child focus by the grandmother.  I appreciate such a finding will be hurtful to the grandmother – but in my view, such a finding is compelled by all the evidence and must be made to better explain the decision, in this finely balanced case, the Court must make.

Family reporter – Ms V

1. In hindsight, in some ways, the initial assessments made by Ms V when she saw the children and the parties only 30 days after Ms A had passed away, was premature.  The family was engulfed by grief and uncertainty.

2. However, by the time of the interviews on 17 October 2012, stability in arrangements had occurred.  Ms V has not been instructed to further interview the children, despite the fact that a further 12 months had elapsed since the last interviews, however, in my view, that was not necessary.  It might have been helpful to know the full extent of the reasons why the decision was made for Z to live with the grandmother.  It seems there are even further developments in that regard since Ms D’s affidavit sworn 18 September 2013, which indicated Z would see out the 2013 school years in the home of his father.  The submissions filed by the Father, recently indicate he has received notice of the change to Z’s residence now, occurring on 26 October 2013.

3. Ms V has previously described X as being “confused” and in a sense more vulnerable, the Court has no idea what Z makes of the changes he has been asked to make since February 2012.  To the extent that the grandmother may now offer some stability to Z in her household, that is likely to be a good result for Z, although there is real uncertainty about what time in the future he might spend with his Father which is likely to be shaped by things such as his Father’s work and whether Mr D relocates to (omitted).

4. All those arrangements, as fluid as they might be, are completely out of the control of the Court – but more importantly, out of the control of X and Y.  The tenor of Ms V’s second report reflected an assessment that the Father was doing a better job of parenting X and Y than “she had foreshadowed” and that by the second report he had “showed me he was growing into maturity” as a parent.  It is to be recalled that in the first report, the report writer expressed the opinion that the Father:-

   “…does not have either the life experience or the homegrown wisdom to manage the complexities of raising a child who bears no biological relationship to him.”

   which founded her initial recommendation that X should live with the grandmother.  By the second report, and whilst it remained clear that the criticisms by the grandmother of the Father’s parenting had not abated, Ms V was unable to make a recommendation regarding the best care arrangement for X.  She strongly recommended that Y live with the Father.

5. At the time of the second report, there seemed to be no doubt that Z would remain living with Mr D & Ms D, who were saying they did not wish there to be any formal structures in place for Z to spend time with his siblings and extended family.

6. From paragraph 94 of the second report, Ms V opines as follows:-

   “94)Y’s situation is now largely straightforward too in psychosocial terms.  When I first saw this family, concerns were raised about Mr Kelly’s parenting abilities and his propensity to lost his temper with the children and his contribution in exposing them to conflict.

   95)In my opinion, these concerns have not largely dissipated.  While it seems fair to say that he doesn’t yet have the emotional maturity of Mr D and Ms D, he has cared for Y and X very well for several months since Ms A’s passing and for almost two years prior to that.  The last few months have encompassed particularly trying circumstances.  Y, in particular, is developing very well and thriving.  The efforts of the Father and his family have underpinned this.

   96)Z had made some disclosures about Mr Kelly hitting him.  Whatever actually happened will remain unknown.  However it is notable that Z is eager to spend time with X and Mr Kelly and he displays no fear of being under Mr Kelly’s supervision.  It seems wises therefore to regard those past incidents as a manifestation of the dynamics operative in the household when Ms A was a part of it.

   97)I recommend that Y live with Mr Kelly.

   98)X’s future care arrangements are not straightforward.  The psychosocial factors for X in each of these households are finely balanced and I am unable to determine which is the strongest.

   99)Mr N indicated his intention to participate in this assessment.  Indeed as I understand it, the date for interviews were set specifically to accommodate his work roster.  Yet he didn’t come and attempts to contact him were unsuccessful.  On the face of it, it suggests his continued ambivalence.

   100)I need to preface my further comments by reiterating that I consider Mr Kelly’s parenting to be sound.  Ms Landridge has raised a number of concerns.  I would not be confident to rely upon X’s say-so since he is a small child, bewildered by events in his lift and quite likely playing adults against each other.  Even if these were accurate, they are not sufficiently substantial to draw adverse conclusions about his attitude to this child.

   101)It is my view that Ms Landridge’s deep-felt belief that X should be with her leads her to place more weight on these matters than they warrant.

   102)Along similar lines, Mr Kelly is wounded by the comments that X relates Landridge family members having made.  It is my view that he needs to put a perspective on those.  Too many hurtful comments were made by too many people earlier this year within the aftermath of grief and emotional mayhem following Ms A’s loss.  He talks about the need for everyone to leave all of this in the past but, like Ms Landridge, he himself is yet to achieve this.

   103)X is a confused little boy who, in one sense, doesn’t belong anywhere.  Yet he is the focus of a torrid dispute between two families who are desperate to have him and a father who can’t make up his mind whether to be a part of his life.

   104)In Mr Kelly’s care, he is somewhat like a square peg in a round hole, so to speak.  He bears no blood relationship with anyone there except Y, so his situation is akin to fostering or adoption.

   105)It can be a difficult task for some children in these circumstances ever to develop a sense of belonging.  While I anticipate that the Kelly’s will make their best endeavours, they present as not being sensitized to (sic) the special issues surrounding raising a child who is not theirs by birth.  It is unfortunate that Mr Kelly only saw fit to attend parenting education for one hour.  TH suggestion of undertaking this was never intended to imply that he was a failure, but rather, that all parents benefit by learning and exposing themselves to as many ideas as possible.

   106)If Mr N were to become a serious consideration, I have reservations about how well Mr Kelly would be able to foster this.

   107)Like Mr Kelly, Ms Landridge’s parenting abilities are not in question here.  Beyond this, however, she has had long experience in mothering her natural children and foster children.  She is likely to be more keenly aware of a child’s inner need to feel he belongs.

   108)On the fact of it, Ms Landridge is prepared to support X and Mr N getting to know each other.  This is largely supposition however.  The records indicate some history of violence on his part towards Ms A, adding to the mix of unknowns.

   109)Mr Kelly counters the argument supporting Ms Landridge by pointing out that Ms Landridge is not a blood relation of X either.  His point is valid – but, in my opinion, only in an academic sense here.  Ms A grew up in their family.  She used their name; it was the only ‘family’ that she ever had.  X would have excellent exposure to his maternal identity fi her were to live with Ms Landridge.

   110)In considering the possibility of placing X with Ms Landridge, there are significant downsides.  Firstly X has stabilized in the Kelly home in the months since losing his mother.  He has been living for approximately four years with the only father-figure he has ever known.  Leaving there would be another huge loss for him.

   111)Moreover he would be an only-child in the Landridge home.  He would be living separately from both his sister and his brother.

   112)Lastly the three children’s connection needs to be considered.  It is difficult to manage this when children are divided between two households; it will exponentially harder to achieve if they all lie in different homes.”

1. As some of the findings already made above show, I regard many of the opinions expressed by the expert to support those findings based on the whole of the evidence.

2. The history since the assessment made in October 2012 does not challenge my overall findings that the Father has competently cared for X and Y – in at times difficult circumstances, now for 20 months.

3. In this respect, I should deal with an issue raised in submissions – namely that the failure by the Father to call evidence from his parents about their involvement in parenting X and Y, should lead to a finding that they could not give evidence that would assist him.  I reject this reliance by the grandmother’s Counsel, Mr Galloway, on the principles in Jones & Dunkel [1959] HCA 8. The Father has always said he welcomed and happily accepted the support of his mother and family. They have in a clear demonstration of support, provided him with a place owned by them to live in. The Father’s mother was interviewed by Ms V for the purposes of the first family report as well as the later report.

4. As I understand the position advanced by the grandmother, it was that the Father is deficient in his parenting to such an extent that he relies on his family to parent the children.  Such a proposition was rejected by the Father and I accept that his desire to involve his parents in the support of X and Y was totally appropriate and nothing more than Ms Landridge herself regards as important – involvement of extended family.

5. I acknowledge that, at paragraph 111, when contemplating the effect on X on living with the grandmother, Ms V said that “he would be the only child in the Landridge home”.  That clearly will not be the case now for as long as Z continues to live, by arrangement, with his grandmother.  In my view, there is no certainty that the child may not, in the future, return to live with his Father.

6. The strong relationship between Y and the Father was observed by Ms V and now appears to be conceded by the grandmother.  However, the grandmother has been unable to make such a concession in respect of X and the only Father he has ever known – the person he calls “Dad” – the Father in this case.  As I have already noted, and as Ms V muses in the passages recorded above, other agendas and feelings seem to be present.

7. I do not criticise Ms V for being unable to make a recommendation as to where X should live.  It is a decision which has positives and challenges.  However, it is a decision the Court must make – as it is the duty of this Court to do.  I do give significant weight to the opinions expressed by the expert.

Primary considerations

1. In respect of the analysis of the evidence within the matrix of the primary and additional considerations which follows, I rely upon but do not repeat, findings already made above.

2. By definition, the only parental relationship in this case to which s.60CC(2)(a) refers, is the one that exists between the Father and Y.  It is both intact and meaningful and Y derives significant benefit from it.  As Ms V opined, and I agree, Y has flourished in her Father’s care.

3. Section 60CC(2)(b) requires the Court to examine “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.  The grandmother has consistently asserted that the Father is a risk to the children in his care and, based on the evidence, I make the following findings:-

   a)The grandmother has not discharged the evidentiary onus of establishing that the Father still uses marijuana.  The Father acknowledged he and the Mother had used cannabis during their relationship.  In effect, he says he stopped using this illegal substance after Ms A’s death and when the responsibilities of parenting fell heavily on his shoulders  The only random drug test failed to detect any illicit substances.  He gave a creditable explanation for not doing a hair follicle test – being unable to afford it.

   b)Relying on comments made by Z in particular about an incident in August 2010 arising from the suggestion he had been involved in taking some chocolates which were for Ms A, the grandmother says the Father’s behaviour at that time and thereafter (including taking the children to the Police Station) reveal a violent and unpredictable flaw in the Father’s character, which places the children at risk.  X has also disclosed that his Father has smacked him.  The Father deposes to engaging with a psychologist on two occasions about “anger management” issues.  The grandmother says that is not likely to have had an effect.  One of the difficulties is that, with the sad passing of Ms A, the source for raising these concerns is the grandmother relying on what she claims her daughter told her as well as Z.  At the interim hearing, the Court had Ms V’s report which included some remarks obtained from Z and X.  However, by the time of the final hearing, Ms D informed the Court that Z had largely recanted his versions of the chocolate incident – or at least had put it into a perspective.  Ms D, I think honestly, indicates she cannot be sure what happened – and neither can I, save that I do accept that the Father has used physical discipline with his hand on the boys.  The Court made an order that neither party use physical discipline and there is no evidence that order has been breached by the Father.  I can easily accept that as a mature and experienced parent, the grandmother would have developed many strategies to deal with unacceptable behaviour of children in her care.  My view is that the Father has now developed some further strategies which might not have been so apparent three years ago.  I do not accept that the children are at risk of harm or abuse in the Father’s care.

   c)There is no doubt that in the months leading up to the death of Ms A, she was expressing some concerns about her relationship with the Father.  She shared such concerns with her mother and family.  As the evidence of her psychologist Mr F, (whose notes were also available, see Exhibit 3) which is contained in his report attached to his affidavit filed 24 January 2013 reveal, shows during the six sessions with the Mother (two by telephone), the Mother was very critical of the Father, describing him as “lazy” and that he was ”sucking everything out” of her.  Clearly, as the Father acknowledged, the financial pressures were telling – the Father’s work was spasmodic and with modest remuneration.  When questioned by Mr F about her description of the Father being abusive “she responded that he was rarely physically abusive, mostly emotional and financial”.  The only real incident she raised was an incident where she claimed the Father “fully hit one of the boys with the car door”, which she felt was “on purpose”.

4. I regarded it as important that the Mother said she “will never harm or put children at risk” but had taken no steps before her death to leave the relationship.  This suggests to me that she wanted to try and work through the issues in the relationship being conscious about not having “yet another failed relationship”.

5. On the totality of the evidence, including the denials by the Father of physical abuse of the Mother (but an acceptance of their angry arguing and relationship tensions for which he was also responsible), I have formed the view that, as the Mother described it, the relationship was “hard going”. It would be unfair however, as the grandmother seeks to portray the situation, that all the pressures arose from the Father.  Ms A by the age of 26 years had three children by different fathers; insecure financial support and, as an intelligent and emotional person (she told Mr F at times she can “overreact”), she was under a lot of stress.  Her younger partner could possibly have done more to support her and the fact that he did not always do so is a result of his age and immaturity more than anything else.  It was a significant responsibility to take on the Father role for X and Y and a role in Z’s life, as well as being a dutiful partner to Ms A.

6. Considering all these factors, however, it is my view that with the sad passing of Ms A, the Father has now been required to take on added responsibilities.  With some support from his family and with the grandmother having regular contact this period has tested his resolve and capacity.  It is unlikely that the Father will ever satisfy the grandmother’s standards.  It is unlikely that the grandmother’s concerns arising from things her daughter told her will dissipate.  However, in my view, the Father has demonstrated a sound and improving capacity to parent and I do not accept the children are at risk in his care.

7. Before leaving this topic however, I am compelled to make some observations about the psychological risk these children are exposed to from a continuation of the hostilities between the Father and the grandmother, which I find have their source largely in the attitude and deep seated feelings of distrust and lack of respect the grandmother holds about the Father.  Her criticisms and at times subtle undermining of the Father have not abated.  My fear is that the decision I have made will only fuel further disappointment and hurt in the grandmother.

8. I am unable to make a clear finding on whether a member of the Landridge family has suggested they would stab the Father and/or that they wished he was dead.  However, for X to hear anything like that about the person he treats as his father is destructive and totally unacceptable.  I am unable to make a finding about whether members of the Kelly family have made hurtful comments about the Landridge family.  If they have, they must stop.

9. These three children have suffered what, in many ways, is likely to be the hardest loss they will ever experience – the death of a loving and caring Mother.  Surely all the adults in this complex family situation can begin to take steps to heal these rifts and all genuinely support these three children, as they deserve to be supported.  If the adults cannot do so after this decision is made, the Court holds significant concerns for the emotional wellbeing and development of these special children.

Additional considerations

1. I propose to deal with these factors prescribed by the Act, if relevant, in a narrative form.

2. Y is too young for any views expressed by her to be given any weight.  X, however, is older, and in Ms V’s second report at paragraphs 77 to 84 Ms V records some views expressed, but she notes he gets “relationships mixed up and that it can be somewhat bewildering for him”.  However, he did express a desire to live with “(omitted)” (a nickname used for the Father), and seemed to understand he would still be able to “see granny” if he did so.

3. I am satisfied that Y is primarily attached to her Father and that X now has a strong attachment to the Father as well.  It is likely that as each month passes the attachments get stronger – as the Father is I am satisfied, and has been, the primary carer of X and Y now since February 2012.  In this context, and considering the experience and formal social science qualifications of the grandmother, her expressed views of the lack of importance of the attachments was curious.  I can only form the view that she was anxious to not make anything that looked like a positive concession about the Father’s relationship with X – although she did acknowledge the strong bond between Y and the Father.

4. The grandmother has an excellent and loving relationship with X and Y as the devoted grandmother that she is.  The Father acknowledged as much.  I admire her dedication to maintaining the connection with the “maternal” side of the children’s identity and I am sure the times at her home where aunts and uncles and cousins gather must be joyous occasions.  The whole Landridge family want to make the children happy and do so.  I infer from the recent history that X and Y also spend time with the Father’s extended family.

5. I have already raised the concerns previously about the introduction of X to the Mr N family in general, and Mr N in particular.

6. Apart from these “adult–child” relationships, the most important continuing and long term relationship X and Y shall benefit from is that with each other and with their older brother, Z.  This is extremely important to all of them.  The separation of Z from the other two siblings after Ms A’s death would have been a major adjustment for them.  The time, regular and predictable, that the grandmother has organised for the three siblings to spend together at her home does her great credit.  It was possible in no small measure because Mr D & Ms D allowed it to occur – although there was a period of some weeks where Z did not spend time with the grandmother because it seems, Ms D felt the grandmother was too involved.  Thankfully, those issues were resolved – no doubt in part by the desire Z expressed to see his siblings.  Because it seems Z was spending every alternate weekend with the grandmother (when she had contact with X and Y), there really was then limited time available for Z to spend time with his siblings in the Father’s home (save for Y’s birthday), if Z, who during 2013 was living in Brisbane, was to have time in his new blended family unit.  As a result, I regard the grandmother’s criticisms of the Father in failing to facilitate time between the siblings as without foundation.

7. As a result, I am satisfied that the Father has met his obligations, as a parent, to maintain and nurture the children in his care (ss.60CC(3)(c) and (ca)).  I will return to ss.60CC(d), which lies at the core of this dispute, towards the end of this narrative.

8. There are no practical difficulties in the children spending time in either the Father’s home or the grandmother’s home – especially now that Z has begun to live again on the (omitted).

9. I have come to the conclusion that both the Father and the grandmother have the capacity to meet the emotional and intellectual needs of X and Y.  Although, as often acknowledged in these reasons, the grandmother has enormous experience in parenting children and is good at it, the less mature and much younger Father has grown into the role.  He is, in my view, a parent from a younger generation and with a different (perhaps more “laid back”) style, but he is good at it as well.  It is not unusual for even intact couples to have different styles.  Children learn to adjust.  What is important is an appropriate capacity and attitude to the child, and the responsibilities of parenthood being demonstrated.  The Father has in my view been very carefully monitored by the grandmother, and although she continues to urge a finding of her abundantly superior parenting, I am not satisfied the Father is as poor a parent as she claims.

10. I have dealt with the issues of family violence (adopting the wide description that now applies) and also note that no family violence orders are in place.

11. I hold concerns that the grandmother in particular will feel some acute disappointment (perhaps even anger), with the Court’s decision about where X should live.  I do not ignore the possibility that she may truly feel that she has, in some way, let her daughter down.  I have little doubt, on the evidence I have heard, that if the Father and Ms A had separated prior to her death, then the three children Z, X and Y would have remained in her primary care.  However, that is not the situation which the Court finds itself in as a result of Ms A’s passing in (omitted) 2012.  There is a prospect that the grandmother will continue to closely monitor the Father’s parenting – at schools, at sport etc – and may regard it as her duty (if not right) to remind him of where she believes he is going wrong.  She could, quite possibly, continue to explore with X and Y the conditions in the Father’s home and otherwise continue to embroil them in the dispute which this decision is designed to bring to an end.  I genuinely hope these concerns do not come to pass – for if they do, further proceedings particularly for X, are almost inevitable.

12. The Court is asked to consider “any other fact or circumstances that the Court thinks is relevant” (ss.60CC(3)(m)), and clearly the grandmother regards it as relevant that the Father has made a claim (and in her view an excessive claim) to death benefits due to the dependants of Ms A.  It is not for this Court to comment on what might be the appropriate division of available funds under the Queensland WorkCover legislation.  That is the obligation of others.  However, I strongly reject that the Father’s application for X and Y to live with him – an application filed within three weeks of the Mother’s death - was motivated by money.  It was motivated by the Father’s view that the two children’s interests were to be served by them living with him and despite the circumstances that have developed since the death of Ms A, and the angst directed to him by the grandmother and some others, he has persisted.  He was, in my view, right to do so.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:-

1. Either of his or her parents;

1. Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. In circumstances where both parties accept Y should live with the Father (although the grandmother’s proposed order still seeks a week about arrangement for Y), the arrangements for X become pivotal.  There is no obvious answer to where X should live.

2. He has lived with the Father now for the majority of his life, and has since his Mother’s death, been in his primary care.  I do not say that an immovable “status quo” from the interim decision has been created.  The decision by Mr D & Ms D to initially have Z live with them in (omitted) and then to move with them to the (omitted) Suburbs of Brisbane, meant X had to adjust to his big brother not living with him.  I do not say that was easy or that X did not miss Z because I am sure he did.  The boys are close in age.  As the older two siblings, they had spent more of their lives together.  I would find that the regular weekends, and some holidays together at the grandmother’s home, was valuable in maintaining these bonds.

3. The effect of X living with Z at the grandmother’s home would be to reunite the brothers and that is a strong factor in favour of the grandmother’s proposal.  However, X would then have to adjust to not living with his sister and also not living with the Father.  These weigh against the grandmother’s proposal.  Furthermore, there is the concern that the Court holds about the impact on X of the grandmother being unable to disguise her complaints about the Father.  It would, in my view, be a major blow to X if he were to lose not only his Mother but the person whom he regards as his major male role model and father figure.

4. Z, of course, will not have to suffer that double loss – although what he makes of the time he has spent with his Father and the seemingly abrupt cessation of those arrangements is unknown.  He might be sad about it – although I would accept happy to live with his loving grandmother.

5. I say that is really the point.  Although the grandmother with all her parenting skills and experience, and all her love and empathy for these children, does not constitute a parent.  She remains in the cherished position of a loving and available “Granny”.  Y, at her age will over time adjust to X not living with her Father and herself – she might even like all the singular attention she would be likely to receive.  However, on balance and in this Court’s view, X should not have to suffer the further loss of the only Father he has known playing a primary role in his life.

Conclusions

1. The words “difficult” and “finely balanced” often find their way into reasons for judgment in parenting cases.  This decision does qualify for both descriptions.

2. Parental responsibility for major decisions such as education, health, faith, relocation and the like is vested in the Father for Y as the only biological parent and I see it in her best interests for that to continue.

1. Although the grandmother would, I am sure, have a worthwhile view to consider in respect of any major decisions for both X and Y, the fact that communication between the Father and Ms Landridge is still ineffective, and, in my view, shaped by the grandmother’s feelings that the Father is a bad or inadequate parent, makes the prospects of joint decision making problematic.  It is not reasonably practicable to occur.  I propose to adopt the submissions and proposal of the ICL, that the Father have sole parental responsibility for both children.

2. I do not know with any certainty if such an order is likely to affect who “controls” for these children the funds due from WorkCover and/or (omitted) Superannuation.  In recent correspondence it is suggested that neither the grandmother nor the Father would control the funds for X – but Mr Landridge.  I draw comfort from the assumption that any funds for X and Y would be impressed with a trust that they be used for those children’s benefit or preserved until they reach the age of 18 years, whoever might be the formal trustee for the funds.

3. It is in the best interests of both X and Y that they live with the Father and I intend to so order.

4. With Z now living with the grandmother, I believe that it is in the best interests of X and Y that they spend time each alternate weekend with the grandmother.  Ideally, during some weekends when X and Y are with the Father, Z could join them (as happened for part of the weekend for Y’s birthday), but that would require the support and facilitation of the grandmother and I am not certain she feels comfortable in doing so at this time.

5. For completeness, I do not regard it as in the best interests of either Y (as the grandmother sought) or X (which neither party sought but was contemplated by the Court), that they live in a week about arrangement.  I adopt Ms V’s concerns running from the age of Y and her strong attachment with her Father and supporting this view.

6. Although X spending time “week about” might be more manageable – and in the future if the parties communicate better might increase some beneficial time with Z – the poor communication makes it not reasonably practicable.  Furthermore, at this time, I believe X will benefit from having a primary base with the Father.

7. Holidays and special days as proposed by the ICL should be shared.  Although, as I anticipate, Z is likely to have holidays with his Father, limit Christmas holidays to two weeks.  The orders which appear at the commencement of these reasons adopt largely the ICL’s orders, save I believe the time for holidays with the grandmother (and therefore Z as well), should be increased.

8. It is appropriate that the three children be together with their grandmother on Mother’s Day, Ms A’s birthday on (omitted) each year, and (omitted) 2012 each year (after school if not a weekend).  I do not propose to make an order that the children get together for the maternal grandmother’s birthday.

9. The ICL proposed further counselling, after this decision, take place between the grandmother and the Father (but not specifying Ms B) and I propose to make such an order.

10. The Father, in his proposed order, sought the return of some items.  The grandmother indicated when giving evidence that she was prepared to return to the Father jewellery that he had given Ms A.  I hope she has done so, but otherwise I do not propose to make an order in respect of the items referred to in order 8.

11. Clearly, I am unable to make any orders at this time in respect of Mr N.  It is to be noted that when Mr N’s ambivalence again became obvious, no member of his family sought to intervene in these proceedings.  In final submissions, the ICL contended that the Father, if X lives with him, should manage the introduction of X to Mr N – the position opined by Ms V.

12. I agree that this is preferable and I believe the Father, with the added authority and completion arising from this decision, will facilitate the introduction to occur if Mr N shows any interest.  I have contemplated making an order that the grandmother be restrained by an injunction from reintroducing X to Mr N or Mr N’s family.  Such an injunction would be for the emotional protection of the child.

13. However, I could see that such an order will inevitably lead to further litigation as the grandmother has a strong view about the issue and I doubt anything the Court has said is likely to convince her otherwise.

14. X is curious about Mr N.  This may have arisen from the way the grandmother promoted him as his father.  It was only natural that Mr Kelly would have felt threatened about how X’s relationship with him might be affected – especially if the grandmother was managing the introduction.  The fact remains however, that X knows a man named “Mr N” is around.  If Mr N is prepared to get involved at any level it would be better that Mr Kelly manage it.  I recall from the evidence that the Father tried to engage with Mr N, but Mr N’s main interest seemed to be to support the grandmother’s application that X live with her.

15. That issue now having been settled, it would be appropriate to consider whether Mr N does actually want a complementary relationship with X.  Through Mr N, opportunities to the wider Mr N family may be explored in time.

16. For these reasons, I propose to order that the ICL serve a copy of these reasons on Mr N, care of the address given for his mother, Ms K.  I also formally dismiss the Application in a Case filed by Mr N.  He is not, of course, prevented at some time in the future from commencing proceedings, but I would urge him not to do so, unless he is prepared to commit to the likely long journey involved.

17. The orders will provide that the grandmother shall advise the Father in writing not less than one month prior to her introducing X (when in her care) to either Mr N or other members of the Mr N family either by telephone or in person.

18. Otherwise, I find that the orders which appear at the commencement of these reasons are in the best interests of X and Y at this time.

I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of Judge Baumann.

Date:  29 October 2013

APPENDIX 1

A.  ORDERS SOUGHT By way of final orders:

Day to day and long term living arrangements and welfare

1.     Firstly X born (omitted) 2005 and Y born (omitted) 2010 (“the children”) live with the Applicant.

2.     That the Applicant has the sole responsibility for making decisions in relation to the day to day care of the children.

3.     Except for any urgent and emergency situation, that the Applicant have sole parental responsibility for making decisions about the long term care, welfare and development of the children including but not limited to decisions about operations, medical treatment, dental treatment, speech therapists, physiotherapists and alternative medical treatment of the children.

Time to be spent with X and Y

4.     Firstly X and Y spend time with the maternal grandmother once a month from Saturday 9.00am until Sunday 4.00pm with the first period to commence on the second Saturday following the making of these Orders.

Changeover

5.     That the maternal grandmother collects the children from the Applicant’s residence at the commencement of contact and the Applicant shall collect the children from the maternal grandmother’s residence at the conclusion of contact.

Communication by telephone

1. That the maternal grandmother be at liberty to telephone the children once per week on a Wednesday night at 6.00pm.

7.     The children may telephone the maternal grandmother at any time they wish.

Items to be returned to the Applicant

8.     That the maternal grandmother forthwith return to the Applicant the following:-

a)    the mother’s lock of hair;

b)    The set of handprints made at the time of the mother’s passing;

c)    The mother’s jewellery;

d)    The photographs provided by the Applicant to the maternal grandmother.

Overseas travel

9.     That the Registrar of the Federal Magistrates Court, Brisbane Registry, be authorised to do all acts and things necessary to assist the Applicant to obtain a passport for X.

APPENDIX 2

PARENTAL RESPONSIBILITY & PARENTING

1. That the Applicant and the Maternal Grandmother have equal  shared  parental responsibility for the major long-term issues in relation to Y (“Y”) born (omitted) 2010.

2. That the Applicant and Maternal Grandmother are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)     they shall inform the other party about the decision to be made;

   (b)they shall consult with each other on terms that they agree; and

   (c)     they shall make a genuine effort to come to a joint decision.

3. That the Maternal Grandmother has sole parental responsibility for the major long-term issues in relation to X born (omitted) 2005 (“X”), subject to Order 4 below.

4. That in the event the Second Respondent re-establishes a relationship with X, that the Maternal Grandmother and the Second Respondent have equal shared parental responsibility for the major long term issues in relation to X, and in such event, they are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)they shall inform the other party about the decision to be made;

   (b)they shall consult with each other on terms that they agree; and

   (c)they shall make a genuine effort to come to a joint decision.

PARENTAL CARE

1. The Applicant shall be responsible for the daily care, welfare and development of the children when the children are living with or spending time with him.

2. The Maternal Grandmother shall be responsible for the daily care, welfare and development of the children when the children are living with or spending time with her.

3. The Second Respondent shall be responsible for the daily care, welfare and development of X when X is living with or spending time with him.

RESIDENCE AND TIME

X

1. Firstly X live with the Maternal Grandmother.

2. Firstly X spend time with the Applicant as agreed between the parties, but failing agreement each alternate weekend from Saturday at 8.00am until Sunday at 5.00pm, and such time is not to coincide with the Second Respondent’s rostered leave from work.

3. Firstly X spend time with the Second Respondent on times agreed between the parties.

4. That whilst X is living with the Maternal Grandmother, the Maternal Grandmother shall promote and facilitate X spending as much time as is reasonably and practicably possible with Z born (omitted) 2002.

Y

1. That Y live with the Applicant and the Maternal Grandmother on an equal shared time basis, with Y spending time on an alternating week about basis between the Applicant and the Maternal Grandmother respectively, with such arrangement to continue through school holiday periods (excluding the Christmas period during which period the Christmas arrangements shall apply).

2. That whilst Y is living with the Maternal Grandmother, the Maternal Grandmother shall promote and facilitate Y spending as much time as is reasonably and practicably possible with Z born (omitted) 2002.

SPECIAL DAYS

1. That the children otherwise spend time with the parties on special days as agreed between the parties, but failing agreement as follows:

   (a)   With the Maternal Grandmother:

   (i)on Mother’s Day from 9.00am to 5.00pm;

   (ii)on the Maternal Grandmother’s birthday from 9.00am to 5.00pm;

   (iii)on the Mother’s birthday from 9.00am to 5.00pm;

   (iv)on the Mother’s anniversary from 9.00am to 5.00pm;

   (v)On each child’s birthday as follows:

   A.should the child’s birthday fall on a day when the child is not attending school or day care, for half the day from 8.00am until 1.00pm in even years, and from 2.00pm until 7.00pm in odd years;

   B.   should the child’s birthday fall on a day when the child is attending school or day care, for a period of three (3) hours,

   (b)   With the Applicant (in respect of Y only):

   (i)on Father's Day from 9.00am to 5.00pm;

   (ii)on the Father’s birthday from 9.00am to 5.00pm;

   (iii)On Y’s birthday as follows:

   A.should the child’s birthday fall on a day when the child is not attending school or day care, for half the day from 1.00pm until 6.00pm in even years, and from 8.00am until 1.00pm in odd years;

   B.should the child’s birthday fall on a day when the child is attending school or day care, for a period of three (3) hours,

   (c)With the Second Respondent (in respect of X only):

   (i)      On Father’s Day from 9.00am to 5.00pm;

   (ii)     On the Father’s birthday from 9.00am to 5.00pm;

   (iii)    On X’s birthday as follows:

   A.should the child’s birthday fall on a day when the child is not attending school or day care, for half the day from 1.00pm until 6.00pm in even years, and from 8.00am until 1.00pm in odd years;

   B.should the child’s birthday fall on a day when the child is attending school or day care, for a period of three (3) hours.

CHRISTMAS

1. That during the Christmas period (being Christmas Eve, Christmas Day and Boxing Day), X will spend time with the parties as agreed between the parties, but failing agreement as follows:

   (a)   With the Maternal Grandmother in odd numbered years from 5.00pm Christmas Eve until 1.00pm Christmas Day, and in even numbered years from 1.00pm Christmas Day until 1.00pm Boxing Day;

   (b)   With the Second Respondent in odd numbered years from 1.00pm Christmas Day until 1.00pm Boxing Day, and in even numbered years from 5.00pm Christmas Eve until 1.00pm Christmas Day;

2. That during the Christmas period (being Christmas Eve, Christmas Day and Boxing Day), Y will spend time with the parties as agreed between the parties, but failing agreement as follows:

   (a)   With the Maternal Grandmother in odd numbered years from 5.00pm Christmas Eve until 1.00pm Christmas Day and in even numbered years from 1.00pm Christmas Day until 1.00pm Boxing Day

   (b)   With the Applicant in odd numbered years from 1.00pm Christmas Day until 1.00pm Boxing Day, and in even numbered years from 5.00pm Christmas Eve until 1.00pm Christmas Day;

CHANGEOVERS AND TRANSPORTATION

1. For the purpose of changeover, when changeover cannot take place at the children’s day care facility or school, the following shall apply:

   (a)   the Applicant shall collect X and/or Y from the Maternal Grandmother’s residence at the commencement of the time X and/or Y is to spend with the Applicant, and the Maternal Grandmother shall collect X and/or Y from the Applicant’s residence at the commencement of the time X and/or Y is to spend with the Maternal Grandmother; and

   (b)   In the event that the time between the Second Respondent and X is to occur at a place other than the Maternal Grandmother’s residence or when the Maternal Grandmother or the Maternal Grandmother’s agent will not be present, the Second Respondent shall collect X from the Maternal Grandmother’s residence at the commencement of the time X is to spend with the Second Respondent, and the Maternal Grandmother shall collect X from the Second Respondent at the commencement of the time X is to spend with the Maternal Grandmother.

2. At changeovers the parties shall:

   (a)   notify the other if they are running late;

   (b)   return to the other party all the belongings which the child/ren brought with them from the other party, in a clean and good condition and in particular the child/ren’s school uniform, shoes, general clothing, hats, toys, medication and books shall be returned; and

   (c)   deliver to the other party any school work that the child/ren is/are required to undertake and any school notes to be placed in a communication book so that both parties have access to see when the child/ren have assignments, special events, excursions and the like.

TRAVEL WITH THE CHILDREN

1. If the Maternal Grandmother is travelling in excess of 250km from her usual residence during a period the child/ren are with  living or spending time  with  her, then the Maternal  Grandmother  will  inform  the other  parties of the travel  and  provide  the address where the child/ren will be staying and a contact telephone number.

2. If the Applicant is travelling in excess of 250km from his usual residence during a period the child/ren are with living or spending time with him, then the Applicant will inform the other parties (including the Second Respondent if the arrangements relate to X) of the travel and provide the address where the child/ren will be staying and a contact telephone number.

3. If the Second Respondent is travelling in excess of 250km from his usual residence during a period X is with living or spending time with him, then the Second Respondent will inform the Maternal Grandmother of the travel and provide the address where X will be staying and a contact telephone number.

4. That the Maternal Grandmother shall be permitted to travel overseas with the children subject to the Maternal Grandmother providing to the other parties:

   (a)   one month’s written notice of their intention to so travel;

   (b)   a copy of the child’s pre-paid return air tickets at least 2 weeks prior to departure;

   (c)   a copy of the itinerary of the child’s timetable with contact details at least 2 weeks prior to departure, and provided that such travel is to a Hague Convention country and there is no DFAT alert in place in relation to the proposed country or countries.

5. In the event that such overseas travel for the child interferes with the other parties’ time with the children, the travelling party shall provide to the other parties make up time in lieu at such times as reasonably requested by the other parties.

6. That the Applicant shall be permitted to travel overseas with Y subject to the Applicant providing to the Maternal Grandmother:

   (a)   one month’s written notice of their intention to so travel;

   (b)   a copy of the child’s pre-paid return air tickets at least 2 weeks prior to departure;

   (c)   a copy of the itinerary of the child’s timetable with contact details at least 2 weeks prior to departure, and provided that such travel is to a Hague Convention country and there is no DFAT alert in place in relation to the proposed country or countries.

7. In the event that such overseas travel for Y pursuant to Order 24 interferes with the Maternal  Grandmother’s  time with  Y,  the Applicant  shall  provide to  the Maternal Grandmother make up time in lieu at such times as reasonably requested by the Maternal Grandmother.

8. That the Second Respondent shall be permitted to travel overseas with X subject to the Second Respondent providing to the Maternal Grandmother:

   (a)   one month’s written notice of their intention to so travel;

   (b)   a copy of the child’s pre-paid return air tickets at least 2 weeks prior to departure;

   (c)   a copy of the itinerary of the child’s timetable with contact details at least 2 weeks prior to departure, and provided that such travel is to a Hague Convention country and there is no DFAT alert in place in relation to the proposed country or countries.

9. In the event that such overseas travel for X pursuant to Order 26 interferes with the Maternal Grandmother’s time with X, the Second Respondent shall provide to the Maternal Grandmother make up time in lieu at such times as reasonably requested by the Maternal Grandmother.

10. Notwithstanding any order above,  unless  otherwise agreed,  overseas  travel  for the children shall not exceed 3 weeks of any calendar year and one occasion each calendar year for each party.

11. That each party shall do all acts and things necessary to assist the other party to obtain a passport or renewal of passport for the children when necessary.

12. That the children’s passports shall be held by the Maternal Grandmother for safekeeping who shall deliver the passport forthwith to the requesting parent after receiving notice from the requesting party of intended travel pursuant to Orders 24 and 26.

13. That none of the parties shall be permitted to relocate the residence of the children from the (omitted) without the prior written consent of the other parties.

SPECIFIC ISSUES ORDERS

Information about the parties and child

1. That the parties shall keep each other advised:-

   (a)   of their current residential address and telephone numbers, including mobile number and advise of any change within 48 hours;

   (b)   of the names and contact details of the children’s treating medical practitioners, specialist medical practitioners, allied health professionals or any other person who treats or interviews the child and any changes to these details within 48 hours of any change;

   (c)   as soon as practicable of any medical emergency involving the children requiring medical treatment by a hospital or medical practitioner whilst the children are in their care, including the name of the treating doctor and hospital and, if known, the contact number;

   (d)  as soon as practicable if the children do not attend school, or leave school early, and of the reason for the non-attendance or early finish.

2. These orders operate as an authority for the Applicant (in respect of Y only), the Maternal Grandmother (in respect of both X and Y) and Second Respondent (in respect of X only) to obtain information, results and reports from the medical practitioners, and other professionals who treat, consult with or interview the children during the emergency, at the expense, if any, of the party requesting the information, result or report about the children.

3. This order is sufficient authority for each school or day care facility attended by the children to allow each of the Applicant (in relation to Y only) and the Grandmother (in respect of both X and Y) and the Second Respondent (in relation  to  X  only)  to  undertake  parent/teacher  interviews  and  to  discuss  the education of the children, to forward to each the Applicant (in relation to Y only) the Maternal Grandmother (in respect of both X and Y) and the Second Respondent (in relation to X only) copies of all school reports, school photographs and notices concerning activities to be undertaken by the children with any documentation provided to either party to be at the expense of the party requesting same and to permit the Applicant (in relation to Y only) and the Maternal Grandmother (in respect of both X and Y) and the Second Respondent (in relation to X only) to attend school sporting activities.

The conduct of each parent

1. That the parties shall not discuss any matters in dispute between them with or in the presence of or hearing of the children.

2. That no party shall physically discipline the children.

Actions to be taken by the Parties

1. The parties will attend dispute resolution and counselling to genuinely attempt to resolve disputes about the interpretation of these orders, variations to be made to these orders or resolving issues in dispute arising from the care of the children.

2. To give effect to the parties attending dispute resolution with a family dispute resolution practitioner:

   (a)   in the event the parties cannot agree on the nomination of a family dispute resolution practitioner:-

   (i)the party seeking dispute resolution will nominate by forwarding in writing to the other party, the name of three family dispute resolution practitioners, their location and their fee for family dispute resolution;

   (ii)the party receiving that nomination will within 7 days of receiving it, nominate in writing to the party seeking dispute resolution, the name of one dispute resolution practitioner chosen by them from the list of three dispute resolution practitioners;

   (iii)that each party will then within 7 days of either nominating or being advised of the family dispute resolution practitioner, contact the family dispute resolution practitioner to initiate family dispute resolution;

   (iv)the parties will share the costs of dispute resolution equally; and

   (v)each party will attend upon the family dispute resolution practitioner as and when requested by the family dispute resolution practitioner.

   (vi)each party will attend upon the family dispute resolution practitioner as and when requested by the family dispute resolution practitioner.

3. Such other or further Order as the Court deems meet.
   

APPENDIX 3

THE COURT ORDERS THAT:

1. The children X born (omitted) 2005 and Y born (omitted) 2010 live with the Applicant Father (‘the Father’).

2. The Father shall have sole parental responsibility in relation to the children.

3. In the exercise of his sole parental responsibility, the Father will consult with the First Respondent (‘the maternal grandmother’) in relation to any long term decisions that are to be made in relation to the children but in the event that no agreement can be reached, the Father will make the decisions regarding the children.

4. The children will spend time with the maternal grandmother at all times as may be agreed between the parties, failing agreement to be at least as follows:

   a.Between after school Friday to before school Monday every third weekend,

   b.During the Easter, June/July and September school holidays for a period of four (4) nights as follows:

   i.In odd years, the first four (4) nights, with changeover at Midday after a period of four (4) night have been spent,

   ii.In even years, the last four (4) nights, with changeover at the commencement of the time to take place at Midday and the children being delivered to school/the Father’s residence at the conclusion of her time,

   c.For a period of ten (10) nights during the December/January school holidays (not including the Christmas special days) with the maternal grandmother to provide to the Father one (1) months’ notice of the days that she elects that the children spend with her and in that regard:

   i.Time shall commence at Midday on the first day of the time elected,

   ii.Time shall conclude at Midday on the last day of the time elected.

   d.During the Christmas special days as follows:

   i.In even numbered years between 4pm Christmas Eve until 4pm Christmas Day,

   ii.In odd numbered years between 4pm Christmas Day until 4pm Boxing Day,

   e.Between 9am and 5pm on:

   i.Mother’s Day,

   ii.The maternal grandmother’s birthday,

   iii.The birthday of Ms A,

   iv.(omitted) 2012.

   f.On each of the children’s birthdays with both children between after school (or 3pm the day before) the birthday until 9am on the day of the birthday in even numbered years and between after school (or 3pm) on the day of the birthday until 9am the day after the birthday in odd numbered years.

5. The maternal grandmother shall collect the children from the Father’s residence at the commencement of her time and the Father shall collect the children from the maternal grandmother’s residence at the conclusion of her time.

6. These Orders act as an Authority for the Father to obtain a passport for X and in the event that the Australian Passports Office requires the signature of Mr N on the Application the following Orders shall apply:

   a.The Father shall write to Mr N seeking his consent and seek a response within twenty-eight (28) days,

   b.In the event that no response is received or Mr N does not consent to the passport issuing then, a Registrar of the Federal Magistrates Court of Australia is appointed to sign the document on behalf of Mr N, pursuant to Section 106A of the Family Law Act 1975.

7. The Father and maternal grandmother are hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which the parents are invited. This Order shall be authority to the school to provide such documents to the Father and maternal grandmother.

8. The Father and maternal grandmother are hereby authorised to obtain from the children’s medical practitioners such information as they may require in relation to the health and/or treatment of each child. This Order shall be the authority to the medical practitioners to provide such documents and/or information to the Father and maternal grandmother.

9. The Father and maternal grandmother must notify the other as soon as is practicable of any matter relation got the health or well-being of the children which requires the attention of a medical practitioner or health professional (save for common coughs and colds, minor abrasions and similarly trivial medical issues) and provide to the other parent the name and telephone contact details of the medical practitioner or health care professional involved.

10. The Father and maternal grandmother are to advise the other of any change of telephone number or residential address within 48 hours of such change.

11. The Father and maternal grandmother will not criticise or denigrate the other party or the other party’s family in the presence of or in the hearing of the children nor allow any other person to do so in the presence or the hearing of the children.

12. The Father and maternal grandmother will attend joint Counselling with Ms B to assist them in their communication.

13. The Independent Children’s Lawyer is discharged.