Klement and Glynn (No 2)

[2010] FamCA 97

FAMILY COURT OF AUSTRALIA

KLEMENT & GLYNN (NO. 2) [2010] FamCA 97

FAMILY LAW – CHILDREN – parenting order – application by the mother seeking an injunction restraining the father from causing or encouraging his new partner from referring to herself as a motherly figure – best interests of the child – held it was not in the best interests of the child after weighing up the factors in s 60CC of the Family Law Act 1975 (Cth) – application not granted

Family Law Act 1975 (Cth) s 64B(1), 64B(2), 60CA & 60CC

APPLICANT: Ms Klement

RESPONDENT: Mr Glynn

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 2056 of 2008

DATE DELIVERED: 5 February 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: DAWE J

HEARING DATE: 5 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MCQUADE

SOLICITOR FOR THE APPLICANT: LEMPRIERE ABBOTT McLEOD

COUNSEL FOR THE RESPONDENT: MS NELSON, QC

SOLICITOR FOR THE RESPONDENT: BELCHAMBER LEGAL

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER MRS LINDSAY

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER LEGAL SERVICES COMMSSION OF SA

Orders

1. By consent I make orders in terms of the minutes this day signed by me with the addition of inserting the words after 13(b) “SAVE & EXCEPT that each party shall be at liberty to attend any performance, concert, sporting match (being a sporting match which occurs after the child obtains the age of 8 years) or other special event.”

2. IT IS FURTHER ORDERED (Not by consent but not opposed) that there be no order as to costs between the parties.

3. That the parties pay the Independent Children’s Lawyer’s costs to Legal Services Commission in the amount of $4,000 each within 56 days from today.

4. Remove all matters from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2056 of 2008

MS KLEMENT

Applicant

And

MR GLYNN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have this morning heard submissions and argument in relation to the only part of the final orders which now remains in dispute between the parties.  That is the orders which mother seeks, set out in what is paragraph 15(e) of the minutes of order, which are otherwise now made by consent.  The order that the mother seeks is that each party not cause nor permit Mrs D Glynn to engage in any verbal or written communication with the child or with any other person or organisation, by which she is referred to as “Mum” or “Mummy” or “Mummy [D].”  The father consents to the order so far as it relates to the use of the expression “Mum” or “Mummy” for the stepmother, but does not consent to any injunction so far as it relates to permitting the stepmother to be described as “Mummy [D].”

2. The history and the background to this matter is set out in some detail in the file in which has there has been litigation since the child was four months old.

3. The child was born in November 2003.  The parties separated in March 2004.  There has been litigation for a considerable part of the time since March 2004, with some periods when the consent orders entered in to between the parties have been treated as final and other periods when litigation has again recommenced. 

4. The file indicates (and the parties would no doubt concede that it indicates) that there has been an ongoing difficulty in the relationship between the child’s parents.

5. The matter was set down for trial before me commencing this Wednesday for 12 days with a large amount of material and witnesses to be called and with many of the issues in dispute.  It is very encouraging, particularly for the child’s future, that after some considerable negotiation with the assistance of the legal representatives and counsel, the parties have been able to come to a consent order in relation to most of the matters concerning the child.  A consent order was made yesterday which provided for the mother and father to have equal shared parental responsibility for the child, and living arrangements which provided for the child to live with each parent in alternate weeks, from Friday through to the following Friday, and for specific arrangements for school holidays and special occasions.

6. The consent order is in itself detailed with very specific arrangements in relation to various matters concerning handover and other injunctions in relation to the child. 

7. However it is encouraging that the parties have been able to come to a conclusion by consent.  Hopefully that will indicate that in future, the parties will be able to resolve matters without resort to further proceedings in this Court. 

8. The matter that now remains in dispute relates to the husband’s current partner, Mrs D Glynn.  Both parties have entered in to other relationships which have been ongoing for some time.  The mother has an ongoing relationship with Mr L.  Both the stepmother and Mr L have been mentioned with some significance in the Family Reports, and in particular the report of Dr B which is as recent as 28 January this year.

9. The reference to the mother’s concern about the use of the expression “Mummy [D]” by the child is contained in that report in paragraph 24, under the heading “Additional Concerns”:

   “24.[The mother] also raised her ongoing concerns that [the father] was attempting to replace her as [the child’s] mother.  She stated that [the father] relied on [the stepmother] to take [the child] to appointments and activities and that [the child] was ‘encouraged’ to call [the stepmother] ‘Mum’ or ‘Mummy’ and that [the stepmother] would often sign [the child’s] school communication book as ‘Mum’ and that she would take [the child] to medical appointments and present herself as [the child’s] mother.  [The mother was adamant that [the child] should only call her ‘Mum’ and that they were very careful that Mr [L] was called [by his first name].  However, when the writer told [the child] she would be seeing her father, she asked ‘which daddy?’ suggesting that even though [the child] may not call Mr [L] daddy that she perceives she has two fathers and two mothers.  [The stepmother] strongly ‘rejects’ the accusation that she presents herself as [the child’s] mother.”

10. The parties have agreed on a consent order so far as it relates to use of the expression “Mum” or “Mummy” in relation to Mrs D Glynn, but the matter remains in dispute as to the use of the expression “Mummy [D].”  I referred to Dr B’s report where the issue is raised, however, Dr B, in her recommendations, does not specifically deal with that issue.  That is, of course, not surprising considering the other significant issues which took priority, no doubt, when Dr B was preparing her report.

11. In that report, recommendations were made which were on the basis that the child live with the father, who was to have sole parental responsibility for the child.  The submissions I have heard today emphasise the concern which the mother has in relation to the confusion the child would have in relation to calling the stepmother “Mummy [D].”  Emphasis was placed upon the fact that the child only has one mother, and that, bearing in mind the difficult relationship which has existed between the parents, it was suggested that the use of the expression “Mummy [D]” would not assist in restoring a reasonable relationship between the parties.  I think it was used as a description of being “an incendiary action” on the part of the father and his current partner.

12. On behalf of the father it was submitted that the child had been using the expression “Mummy [D]” for some time.  Emphasis was placed upon the age of the child at only six, and the relationship she had with Mrs Glynn as her stepmother. 

13. The Court is required to consider carefully in any decision made concerning the child’s welfare what is in the child’s best interests.  In that regard, of course, it has to be determined that the order the Court is being asked to make is a parenting order.  The order is, of course, directed to the father, who is the party to these proceedings.  The stepmother is not a party to the proceedings.

14. I have indicated to the counsel that the current phrasing of the proposed order, where it refers to “causing nor permitting” the stepmother to do something causes me concern, and that, because it is a question of the authority of the father to be in a position to permit the stepmother to do anything or not.  I would therefore propose to make any order phrased to be “not to cause nor encourage” the other person to do something.  That would apply to both subparagraphs (e) and (f) of paragraph 15. 

15. When considering, however, whether this is a parenting order, the Court is required to take in to account the provisions of section 64B(1) in the Family Law Act, which says, when attempting to define a “parenting order”:

    “A parenting order is (a) an order under this Part, including an order until further order, dealing with a matter mentioned in subsection (2);  or (b) an order under this Part discharging, varying, suspending, or reviving an order or part of an order described in paragraph (a).”

16. Section 64B(2) says, “A parenting order may deal with one or more of the following,” and then it sets out, “(a) the person with whom a child is to live; (b) the time a child is to be spend with another person or other persons; (c) the allocation of parental responsibility for a child. It then proceeds to set out other matters which are not specifically relevant, and comes down to:

    (i)any other aspect of the care, welfare, or development of the child, or any other aspect of parental responsibility for a child.

17. The provisions of section 64B(2) can therefore be stretched to include the order being sought as an order which deals with any other aspect of the care, welfare, or development of the subject child, and therefore can be included in the wide definition of a parenting order set out in section 64B. Of course, in most circumstances, arrangements and specific details of names used would be something that the parents would normally agree upon outside of the Court process. However, in this case, it has not been possible. The parties have been able to agree a considerable amount of detail concerning the child’s future, and that is encouraging.

18. The Court is required by the provisions of section 60CA to make a parenting order only after deciding what is in the best interests of the child, that being the paramount consideration.

19. When determining what is in the best interests of the child, the Court is required to give consideration to the factors set out in section 60CC. The primary considerations there refer to the benefit to the child of having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. Obviously the emphasis in this case must be on maintaining and encouraging the meaningful relationship with both of the child’s parents.

20. The family report indicates that the stepmother specifically rejected any suggestion that she was trying to take the place of the mother in her relationship with the child. 

21. In considering the additional factors, section 60CC(3)(a) provides that the Court will have to consider any views expressed by the child, and any factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views. We do not specifically have the child’s views in relation to the orders sought. The only expression of any view is the fact that we have the child using the expression “Mummy [D]” from time to time. It is also clear in Dr B’s report that she also referred to Mr L as “Daddy.”

22. In subsection (g) of section 60CC, the Court is required to take in to account the maturity, sex, lifestyle, and background of the child, and other characteristics of the child that the Court thinks are relevant. In view of the child’s young age, and her circumstances of living in two different households for most of her life with an ongoing relationship with persons who could be described as a stepfather and stepmother, I do not place much significant weight upon the possible view that could be considered an expression of her views when she refers to either her stepfather or stepmother. I do that on the basis that the child is six, and could well have made a determination of her own or be under the influence of others when referring to her step-parents.

23. Subsection (b) of section 60CC requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child. This is a significant factor, and it would require the Court to take in to account any concern the mother had about her position and any inappropriate influence by any other person including any other step-parents. The nature of the relationship of the child that the Court has to consider includes the nature of the relationship between the child and each of these step-parents. It is a factor that, considering the arrangements which have been put in place by the consent orders, as both relationships as stepfather and stepmother are likely to be ones of significance.

24. Subsection (c) is also a significant factor in this matter, being the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  The concern of the Court has been significantly overcome by the consent orders which the parties have reached. 

25. The other factors in section 60CC which are relevant are the capacity of each of the child’s parents, and any other person, including any grandparent or other relative of the child, to provide for the needs of the child, including emotional and intellectual needs. This refers not only to the capacity of both mother and father, but of each of the step-parents.

26. I have already referred to subsection (g), and take in to account the child’s young age and the context of her coming to grips with the circumstances in which she has been placed, and the many relationships with which she has to deal.

27. Subsection (i), the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents, is also significant but does not assist the Court in a great deal in coming to a conclusion about this specific matter. 

28. Subsection (l) is also significant.  That requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.  It would be of considerable benefit to the child and promote her welfare, if all litigation were to cease.

29. The order which is sought in relation to a name which is used to describe the stepmother wants to bring about a cessation of something the child has been known to do in the past.  I would be concerned that such an order may lead to further litigation of some difficulty, where it would be up to the Court to determine whether the father had breached the order in relation to permitting, or causing or encouraging the use of the expression by the child or the stepmother in particular circumstances. 

30. Subsection (m) is any other fact or circumstance that the Court thinks is relevant.  The order is sought to restrain the party to the proceedings dealing with a relationship between the child and another person.

31. My main concern, however, is the effect of the order upon the child.  It would not be a direct effect upon the child, because the order does not deal with the child herself.  It is not proposed that the order prevent the child from using the expression “Mummy [D],” but only that the father not cause or permit his current partner to use that expression with the child or any other persons or organisation. 

32. Weighing all of the factors up, and particularly that the child has in the past used the expression “Mummy [D],” and on the basis that I am not satisfied from any of the material before the Court that the use of the expression “Mummy [D]” by the stepmother would undermine the mother’s relationship with the child, I am not satisfied that it is in the best interests of the child that the injunction as currently sought by the mother is granted.

33. The order which would be made which would be an injunction restraining the father from causing or encouraging the stepmother to use the expression “Mum” or “Mummy” is a significant step forward.  Hopefully this will alleviate some of the concerns of the mother about the ongoing role that the stepmother plays in the life of the child.  I also accept that, at her age, she will develop and in future will be likely to, or may well possibly, adapt to calling each of her step-parents by their first names rather than using expressions of either “Mummy” or “Daddy.”  Bearing that in mind, I am satisfied that in all of the circumstances it is not in the best interests of the child to make the order so far as it refers to “Mummy [D].” 

34. I am proposing that paragraph (e) be worded that each party shall (e) not cause nor encourage the stepmother to engage in any verbal or written communication with the child or with any other person or organisation by which she is referred to as “Mum” or “Mummy,” and that (f) be similarly amended so that it refers to, instead of “permit”, the word “encourage” is written in. 

35. Now, for the purposes of preparing the orders, the mother’s solicitors were going to engross the orders which were made by consent yesterday.  It would be preferable if those orders were made afresh today by consent so that they are all in one order rather than in two separate documents, which is only likely to confuse everybody.  However, paragraph (e) would not be by consent, and would have to be inserted, immediately above 15(e), the words “not by consent.” 

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  15 February 2010