Ladd and Hacker
[2010] FMCAfam 73
•1 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LADD & HACKER | [2010] FMCAfam 73 |
| FAMILY LAW – Parenting issues – grandparents caring for child – mother deceased – father wanting child to live with him. |
| Family Law Act 1975 ss.60B, 60CA, 60CC, 61DA |
| Simpson & Brockmann (2008) FMCAfam 763 Mulvany & Lane (2008) FMCAfam 473 Simpson & Brockmann (2009) FamCA 73 Mulvany & Lane (2009) FamFC 76 |
| Applicant: | MR LADD |
| Respondents: | MR & MS HACKER |
| File Number: | BRC 10319 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 10 June 2009 |
| Date of Last Submission: | 15 June 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 1 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Forrest |
| Solicitors for the Applicant: | Barry & Nilsson |
| Counsel for the Respondent: | Ms McMillan SC |
| Solicitors for the Respondent: | Journey Family Lawyers |
ORDERS
That Order 4 of the current interim Orders made on 3 February 2009 be varied to include the following:
“4(aa)from after school each other Friday until the commencement of school Monday.”
That pursuant to section 62G of the Family Law Act 1975, the parties and the child [X] born [in] 1998 attend upon Ms Sue Waterman, Family Consultant on 1 March 2010 at times to be advised for the purposes of preparation of a further family report.
That a family report deal specifically with the following matters:
(a)the risks to the child identified by Ms Waterman in her earlier report if there is to be a change in the residence arrangements of the child;
(b)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the child.
That this matter be adjourned for further mention to 9.30am on
29 March 2010in the Federal Magistrates Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Ladd & Hacker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 10319 of 2008
| MR LADD |
Applicant
And
| MR & MS HACKER |
Respondents
REASONS FOR JUDGMENT
(Revised from the transcript)
This matter concerns the parenting arrangements for one child, [X], born [in] 1998. [X]’s mother, Ms L Hacker, passed away in August, 2008. The present dispute is between [X]’s father, Mr Ladd, on the one hand and her maternal grandparents, Mr and Ms Hacker, on the other hand. Presently, [X] is in the full-time care of Mr and Ms Hacker. She spends time with Mr Ladd according to some interim orders that were made by Federal Magistrate Willis on 3 February, 2009. Those orders provide for [X] to spend time with Mr Ladd each alternate weekend from after school on a Friday to before school on a Tuesday morning and for some extended time over the school holidays.
The Hackers argue that there should be an order for equal shared parental responsibility between them and Mr Ladd for [X]. They argue that [X] should continue in their care predominantly and spend from Friday after school to Tuesday before school with Mr Ladd each alternate weekend.
The precise terms of the orders they seek are set out in their outline of case document filed on 20 May, 2009. They argue ultimately for orders that accord with the recommendations set out in a family report prepared by Ms Sue Waterman, to which I will refer more fully in due course.
Mr Ladd argues that he should have sole parental responsibility for [X], and that she should reside full-time in his care. He says that for the next 12 months, she should spend each alternate weekend with the respondents, from after school Friday to before school Monday. He argues that after 12 months, that time should reduce to once per month. He proposes extended time for [X] with the respondents over the school holiday periods.
The precise terms of the orders he seeks are set out in his outline of case document filed on 27 May, 2009. Both parties seek orders for other specific matters, the details of which are set out in the documents to which I have already referred.
It became apparent during the course of the trial that Mr and
Ms Hacker and Mr Ladd all thought that it was appropriate for [X] to live with her father at some point in the future, but the Hackers were unable or perhaps unwilling to identify when that point in time was. Their case relies very much upon permitting [X] to make that decision when she chooses to do so.
I turn to the legal principles. Proceedings concerning parenting issues are conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. Those principles and objects are subject to section 60CA in that, in determining the outcome of a particular case, the best interests of the relevant children are the paramount consideration. That is the overriding principle. It is not the interests of the parents or, in this case the grandparents, their wants, needs or desires but rather the best interests of the relevant child.
Section 60CC prescribes the matters that need to be taken into account in determining what orders are in a child’s best interests. It comprises a list of matters that must be considered to the extent that each is relevant in a particular case. Section 60B is important as it provides the context within which the relevant section 60CC factors are to be determined and ultimately weighed. The importance of section 60B varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility for their welfare. The presumption, however, only applies to biological parents. I decided as much in a case called Simpson & Brockmann (2008) FMCAfam 763, as did Howard FM in a case called Mulvany & Lane (2008) FMCAfam 473. Both cases have been the subject of appeal.
The appeal in Simpson & Brockmann has not yet been determined, although the Full Court declined to make consent orders allowing the appeal and substituting orders including a declaration for paternity where each party to the proceedings was not the biological parent of at least one of the children the subject of the dispute (see the report of Full Court decision in Simpson & Brockmann (2009) FamCA 73). The Full Court in Mulvany & Lane (2009) FamFC 76, (the appeal from Howard FM’s decision in Mulvany & Lane), accepted that the applicant in that case who was found by DNA testing not to be a biological parent of the relevant child, was not a parent for the purposes of the Act under section 61DA - see Finn J at paragraph 5 of that judgment and May and Thackray JJ at paragraph 75. Therefore, no occasion for an application of the presumption under the section 61DA arose. Although the point was not the subject of argument, the Full Court was prepared to accept the correctness of that proposition.
The respondents in this case are not [X]’s parents although they may have acted in that role from time to time. Application of the presumption set out in section 61DA(1) does not arise in this case, although I am still able to make an order for equal shared parental responsibility if I consider that it is in [X]’s best interests to do so.
If I make an order for there to be equal shared parental responsibility, section 65DAA(1) requires a Court to consider whether the child spending equal time with each of the parents would be in the best interests of the child, and (b), consider whether the child spending equal time with each of the parents is reasonably practicable and (c), if it is, consider making an order to provide for the child to spend equal time with each of the parents.
Because the respondents are not parents of [X], however, it seems to me that even if I make an order for equal shared parental responsibility, a consideration of the proposals to which attention is directed by section 65DAA(1) and 65DAA(2) is not mandated by the Act. The relevant proposals for consideration therefore are those argued for by each of the parties.
I set out some background findings. There are some disputes about the evidence as to what occurred during the course of [X]’s life, and the relationship between Mr Ladd and Ms L Hacker whilst she was alive, but the following is a recitation of the facts as I find them to be.
Mr Ladd and Ms L Hacker were in a relationship between 1996 and 1999. There is a dispute about the actual dates of cohabitation and separation but it is not necessary for me to resolve those disputes in the context of these reasons. After separation, [X] moved to live with the maternal grandparents in the maternal grandparents’ home with her mother. Mr Ladd moved to live at [omitted].
Ms L Hacker commenced a relationship with Mr M at some point between 1999 and 2000. One child was born of that relationship, [Y] - born in July 2000. He is [X]’s half-brother.
Ms L Hacker continued to reside at the maternal grandparent’s house with [X]. Mr Ladd moved to his own two bedroom unit at [C] and was posted to a nearby police station. Mr Ladd spent sporadic time with [X] on two occasions each month or thereabouts.
In 2003, [X] commenced pre-school at [O] whilst in the care of her mother. During that year, [Y] moved to live with his father whom had separated from Ms L Hacker at that time.
In 2003, Mr Ladd became concerned about the condition of [X]’s teeth, and after discussions with Ms L Hacker, he decided to take matters into his own hands. He arranged for [X] to attend upon a dentist, and she was subsequently referred to a paediatric dental surgeon. It is clear from the evidence that she required significant dental work – work that had not been attended to by [X]’s mother, or the maternal grandparents with whom she was then living.
In 2004, Ms L Hacker commenced a relationship with Mr G. In January, 2005 Ms L Hacker and [X] moved to an address in [R] with Mr G, and Mr Ladd commenced spending time with [X] more frequently.
At that time, [X] also commenced spending time with the maternal grandparents up to four nights a week. There is a dispute in the evidence about this, but I prefer the evidence of the maternal grandparents. On my assessment, Mr Ladd was not in a position to know how much time [X] was spending with her maternal grandparents. His case at face value is that Ms L Hacker and her parents worked towards concealing the true state of [X]’s care arrangements from him, and if that is so, then he would not have known what the true arrangements were.
In February, 2005 [X] underwent major restorative dental surgery, and she was admitted to hospital for that purpose.
In December, 2005 or thereabouts Mr Ladd commenced a relationship with Ms G. As far as the evidence indicates, he remains in that relationship.
Ms L Hacker and Mr G moved to a home in [G] in 2006 and [X] commenced school at [S] School, a nearby primary school. She commenced overnight time with Mr Ladd for a maximum of one night each alternate weekend. She continued spending time with her grandparents for up to four nights a week. It is clear from what [X] told Ms Waterman during the course of the interviews for the family report that he perception is that she was spending significant time with her maternal grandmother and grandfather.
In April, 2008 the Department of Child Safety contacted Ms L Hacker and Mr Ladd in relation to a notification made by [X]’s school concerning her welfare. Both parents attended interviews with the Department and following an investigation the Department established that the allegations that led to the notification were unsubstantiated.
Sadly [in] August, 2008 Ms L Hacker passed away. [X] moved into her maternal grandparents’ full-time care. That was over Mr Ladd’s objection. He objected to that arrangement continuing on a long-term basis.
The evidence demonstrates that at the time of Ms L Hacker’s passing, and in so far as his behaviour towards [X] was concerned, Mr Ladd acted in a sensitive and appropriate way. There is evidence from him, which I accept, about how he conducted himself at the time of Ms L Hacker’s death and her funeral. He tried, at an appropriate time, to open discussions about [X]’s future. I repeat, he conducted himself in a sensitive and appropriate way.
The same cannot be said for the maternal grandparents, in my view, who immediately took a defensive posture with a view to ensuring that [X] remained in their care. I will speak a little more of that later in these reasons.
Presently, as the evidence permits me to find, Mr and Ms Hacker live in [B] in a four-bedroom home. [X] lives with them, as I have already discussed. The evidence demonstrates that they are both working full-time. [X] attends the [S] School and she remains there by reason of some orders made in this court which prevents the parties from changing her schooling arrangements without agreement.
Mr Ladd lives at [K] with his partner Ms G in a four-bedroom home. It is located close to schools and both Mr Ladd and Ms G are in full-time employment.
In August, 2008 there was an interim parenting plan that provided for [X] to live with her maternal grandparents and spend time with her father each alternate weekend from Friday, 7 pm, to Sunday, 5 pm, and for half of the September school holidays. Those arrangements were overtaken by the interim orders to which I have earlier referred.
I turn then to a consideration of the relevant section 60CC factors.
Mr and Ms Hacker accept that there is benefit to [X] if she has a meaningful relationship with Mr Ladd.
In this case I have the benefit of a family report from Ms Sue Waterman, a social worker, prepared at the joint instruction of the parties in this matter. At paragraph 171 of that report, Ms Waterman expressed a view that it is more appropriate for children to live with parents rather than grandparents. However, the issue of emotional attachment cannot be ignored. I will deal with the issue of emotional attachment later in these reasons, but for present purposes I record
Ms Waterman’s general view - it is nothing more than that - as just set out.
It was not suggested that it was relevant to consider the benefit to [X] of a meaningful relationship with the Hackers under s.60CC(2)(a) of the Act. Nonetheless, it is clearly a relevant factor and is called for consideration, whatever the position under s.60CC(2)(a) by either ss.60CC(3)(b) or 60CC(3)(d) of the Act.
The way in which section 60CC(2)(a) ought to be utilised in cases involving only one biological parent was the subject of some examination by the Full Court in Mulvany & Lane (above). At first instance the trial Federal Magistrate determined not to treat the applicant, who until shortly before the trial had been considered the relevant child’s biological father until that possibility was disproved by evidence, as a parent for the purposes of section 60CC(2)(a). According to the trial Federal Magistrate, the only relevant consideration arising pursuant to section 60CC(2)(a) therefore was whether the child would benefit from a meaningful relationship with her mother in that case.
The Full Court decided that his Honour’s approach was erroneous, but Finn J had different reasons for so saying than May and Thackray JJ. Finn J said:
12. In my opinion, it was not open to his Honour to interpret s 60CC(2)(a) in the way in which he did, that is, in effect to hold that where a child only has one parent participating in the parenting proceedings, it will be a primary consideration in determining the child’s best interests, that the child have a meaningful relationship with that parent. The legislation does not say this. Indeed it could well be asked why, if his Honour was prepared to place an interpretation on s 60CC(2)(a) other than an interpretation clear on its plain words, did he not interpret the expression “parents” to include the father in this case?
…
14. With that having been said, I acknowledge the difficult task which faced his Honour and which will face the next Judge or Federal Magistrate who has to determine this case.
15. It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent.
16. As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.
May and Thackray JJ took a different approach, and considered that his Honour should have considered both adults’ relationships with the child, not just the mother’s, pursuant to section 60CC(20(a). Their Honours said:
75. We find ourselves in substantial agreement with the submissions made on behalf of the father. Whilst we accept the learned Federal Magistrate was right to conclude the father was not a “parent” within the meaning of the Act, we consider he erred in the way he allowed that conclusion to affect the process of reasoning by which he reached his decision.
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
78. In our view, his Honour was quite right to consider and make findings in relation to all of the relevant “additional considerations” in s 60CC(3), even though he acknowledged some had no application to the father because they relate only to a “parent”. However, for the sake of consistency it seems to us his Honour should have adopted the same approach when discussing s 60CC(2)(a). What occurred instead is that the father was treated as a “parent” for some purposes but not others.
79. If the father had adopted S, his Honour would have been obliged to consider the benefit to S of having a meaningful relationship with him. If the father had been the biological father, but never lived with S, his Honour would still have been obliged to consider the benefit to S of having a meaningful relationship with him. Why should a different approach be taken because it was discovered that the boy was the product of an extramarital liaison?
80. His Honour found the answer to this question in his acceptance of the submission made by counsel for the mother, which we propose repeating:
… the Court would not fail to recognise that parliament specifically has not included in s.60CC(2)(a) of the primary considerations to which the Court must have regard, the benefit to the child of having a meaningful relationship with persons other than the child’s parents – parliament’s intention, it is submitted, remains to distinguish between parents (in respect of whom a meaningful relationship is accorded a status of a primary consideration) and persons other than parents (within which category the applicant in the present case falls).
81. Whilst we accept, as a matter of statutory interpretation, that s 60CC(2)(a) had no application to the father, we are not convinced Parliament ever turned its mind to whether husbands in his position should have any different “status” for the purposes of Part VII of the Act. It should be remembered that the law has always been quite content to presume, absent proof to the contrary, that every child born to a married woman is the child of the man to whom she is married - even if the couple are not living together. (See now ss 69P(1) and 69U(1).)
The facts in Mulvany & Lane distinguish it from the present case, however. In that case the child the subject of the proceedings considered the non-biological male party his father, and had done so for a long of time. Indeed, it was only shortly prior to the trial that it became apparent that the male party could not have been the child’s father.
This case is different. [X] does not consider her grandparents to be her parents. She does not consider her grandmother her mother, although her relationship with her is very strong. This is a case where there is a clear distinction, at least in [X]’s mind, it seems, between her father and her grandparents and her mother. So much is apparent from
Ms Waterman’s report. It seems to me, therefore, that section 60CC(2)(a) has very little place to play in this case.
There is a concession by the respondents that [X] will benefit from a meaningful relationship with her father, although it was argued in the course of submissions that the present arrangements would permit a meaningful relationship and has permitted a meaningful relationship to develop.
Neither party suggested that the second of the primary considerations is relevant in this case. There is no need, on the evidence, to think that [X] requires protection from physical or psychological harm in the household of any of the parties by reason of being exposed to abuse, neglect or family violence.
Ms Waterman identified [X]’s attachments and wishes and the factors that have shaped those wishes as one of the foremost significant issues in this case. I agree with Ms Waterman’s assessment. She interviewed [X] for the purposes of her report. She found [X] to speak in a mature manner for a 10 year old. She told Ms Waterman that she wanted to stay with “nanny and grandad”. She was teary when she told
Ms Waterman this. It is clear from what [X] told Ms Waterman though, that both Mr Ladd and Ms Hacker had explained to [X] that perhaps she should live with Mr Ladd. Ms Waterman records, at paragraph 127 and following in her report:
When asked whether she had told her father that she wishes to stay with her nanny and grandad, [X] indicated that she had spoken to him about this during the September holidays. However, she felt that he had not really listened to her. [X] said that she had told her father that she did not want to move away from the school and that she had wanted to remain living with her nanny and grandad. She said that he had told her that he is her father and has a responsibility to care for her. [X] said, “It felt like he was forcing me. He was not really listening to me.” [X] was tearful as she related the following. She said that her father had tried to reassure her that she would make new friends at the new school. However, she does not want to make new friends. She commented, “My mum just died and now I don’t want to leave my old friends.” [X] indicated that her paternal grandmother also spoke to her about this and reiterated the same comments that her father had made. She said, “She wouldn’t let me say that I wanted to live with nanny and grandad. She said dad is dad, and nanna and grandad are your grandparents.”
I am satisfied that the evidence permits of a finding, which I make, that [X] has a very strong desire to remain living with the Hackers. She has lived with them for a significant period of her life. Even while her mother was still alive [X] lived at least four nights a week with the Hackers for a number of years. She told Ms Waterman that she considers the Hacker’s home her home.
Ms Waterman further records at paragraph 161 of her report:
The report writer asked [X] whether she felt comfortable with the comments she had made and she replied, “Yes, I think dad will be upset, but this is seriously how I feel. I know it makes him upset and I’m sorry, it doesn’t mean I don’t love him.”
I accept that [X] presents as a relatively mature child for her years.
I also accept Ms Waterman’s opinion that her level of maturity may be partly attributable to her life experiences, in which she has had to cope with her parents’ separation and her moves between their households from a young age. In addition to this, it seems that [X] has also moved between her mother’s home and the maternal grandparents’ home on a regular basis since 2005 (see paragraph 162 of Ms Waterman’s report).
It is clear, from the range of topics that [X] has reported to
Ms Waterman that she has thought about – for example her mother’s sudden loss, the arrival of new children in her father’s family and her step‑brother’s family, and the impact of her comments upon her grandparents to name a few – that she is a thoughtful and reflective child.
I am satisfied, however, that [X]’s wishes have also been influenced by the Hackers. Ms Waterman assessed that Mr and Ms Hacker consider themselves to be more than grandparents to [X] by virtue of the fact that she has lived with them for most of her life. I think it is highly likely that the Hackers have said things to [X], perhaps innocently, which have influenced [X]’s wishes. It is hard not to be drawn to the conclusion that, having lost their daughter, the Hackers do not wish to lose [X].
I accept Ms Waterman’s opinion that the real factor in forming [X]’s desire to remain living with the Hackers is her strong, emotional attachment with them. So much seems apparent from [X]’s observation to Ms Waterman, “Sometimes Nanna and Grandad are upset and she ([X]) does not want to say anything to add to their sadness” (see paragraph 141 of Ms Waterman’s report).
Thus, the question of the nature and strength of the relationship between [X] and the parties in these proceedings is necessarily connected to [X]’s wishes. [X]’s wishes are an important, but not a decisive, factor in this case. [X]’s age and the influences upon her detract from the weight that her wishes might otherwise attract. Nonetheless, I take them into account in the context in which they have been formed, and whilst I accord them significance, I do not accord them overwhelming significance.
Another issue identified by Ms Waterman as one of the major issues in this case is the nature of the relationship of [X] with each of the parties to these proceedings. The parties spent considerable time in their evidence traversing their views of how, and in what circumstances, [X] came to live where and when she did from time to time. In my view, given that both Mr Ladd and Mr and Ms Hacker agree that, in principle, [X] should live with Mr Ladd, and the real issue between them is whether [X] should be permitted to decide for herself when and where and how that should happen, an assessment of those competing claims is sterile.
What is more to the point is an assessment of [X]’s relationship with Mr Ladd and Mr and Ms Hacker, and the probable effect of the parties’ proposals upon [X]. I see no reason in the evidence to depart from
Ms Waterman’s assessments concerning [X]’s relationship with Mr and Ms Hacker, set out in paragraphs 166 and 181 of her report. Those assessments were as follows:
[X] appears to be coping reasonably well with the sudden loss of her mother. And I speculate that this is most likely due to the fact that she has been able to maintain the significant attachment that she has with her maternal grandparents. It would seem that this attachment has been equally as strong as the attachment to her mother and that it has served to buffer her, to some extent, against the devastation of the loss.
At 181:
In my overall assessment, [X] was primarily attached to her mother. However, the relationship that she developed with her maternal grandparents was very close, if not equal, to that of her relationship with her mother, given the time that they spent together.
Those assessments were not seriously challenged by Mr Ladd. Despite the wording of paragraph 181 of her report, Ms Waterman’s assessment of the relationship between [X] and the Hackers is based upon more than merely time spent between them. It is also informed by the nature and extent of the involvement of the Hackers in [X]’s day to day life, as recorded in Ms Waterman’s report (see, particularly, paragraphs 172 to 180 of the report).
The family report indicates that Mr Ladd has a relationship with [X]. Ms Waterman observed of Mr Ladd, his partner, Ms G and [X] that [X] “appeared quite happy in their company and interacted with them appropriately and warmly”. Ms Waterman opines at paragraph 195:
In my assessment, [X]’s attachment to her father is not nearly as strong as her attachment to her maternal grandparents and I am concerned about the emotional impact of placing her in this situation so soon after the loss of her mother. The sense of security that is provided by maintaining the close and familiar relationships with her maternal family should not be underestimated. And I am concerned about how [X] will cope with being suddenly placed in an environment where she has spent relatively little time.
Nothing in the evidence persuades me that I should not accept Ms Waterman’s assessment of the nature and extent of [X]’s relationship with Mr Ladd or Ms G.
The next significant factor identified by Ms Waterman, and with which I agree, is the likely effect on [X] of the proposed changes in her circumstances, including the likely effect on her of any separation from her maternal grandparents in this case. In her report, at paragraph 227, Ms Waterman recommends the following:
Until [X] commences secondary school, I suggest the following care arrangements be considered for [X]:
· to live with her maternal grandparents for nine nights per fortnight;
· to live with her father for five nights per fortnight.
For example:
Week 1 - Thursday pm to Monday am, unless Monday is a public holiday in which case she should spend this time with her father and return on Tuesday am;
Week 2 - Thursday pm to Saturday 9 am.
228.Prior to [X] commencing secondary school, if the parties are unable to come to an agreement between themselves in relation to the care arrangements, then I would recommend a reassessment in this matter in 2010. By that stage, [X] would have had the opportunity to spend significant time with her father, and she will be in a better position to express her views as to her wishes about her future care arrangements. In addition to this, I recommend that [X] attend counselling to address issues of grief and also in relation to the changes in the family situation. I recommend that the father and Ms G and the maternal grandparents attend family therapy to assist with resolving the issues impacting on [X]’s transition between the households and in an effort to improve communication and co‑operation.
Ms Waterman identified that if the present arrangements remained in place, she would not expect the father-daughter relationship to progress significantly. In her oral evidence, she highlighted the importance to [X]’s well‑being of her relationship with Mr Ladd growing and strengthening. Ms Waterman opined that [X] would readily accept the present arrangements continuing, but it would not assist her emotional well‑being in the longer term. Mr Ladd would likely remain a less significant figure in [X]’s life.
A move for [X] to live with Mr Ladd’s household would overcome the lack of opportunity for [X]’s relationship with him to grow. There is no evidence to suggest that Mr Ladd could not meet [X]’s physical and intellectual needs if she lived with him. It is not suggested that he lacks in parenting skills and so would not cope with having to care for [X]. In some senses, he is an untested parent, but that was not raised in this case against Mr Ladd’s proposals. I am satisfied that he could care for her in a physical and intellectual sense.
I accept Ms Waterman’s opinion that there is real reason to be concerned, however, that [X] would not cope emotionally with a sudden and immediate change to living with Mr Ladd. I can do no better than to set out the relatively lengthy following discussion from her report:
196.While [X] appears to be coping reasonably well at this stage following the death of her mother, I note that she is experiencing some generalised anxiety and that she reports that she worries more than previously. She worries that her father and Ms G will have a baby and forget about her and she worries that her brother, [Y] will care more about his new baby sister than her. I consider these concerns about her place in the family to be understandable, considering the loss that [X] has experienced. I note that her main concern is that she will be removed from her grandparents’ care and forced to live with her father.
197.[X] has indicated that her grandparents promised that she would not be removed from them against her will. And so it seems that this has contributed to her expectation that she would remain with them. While Mr and Ms Hacker said that they did not promise this as such, this is clearly how the child has interpreted their comments. In any event, I do not consider that this promise has been the crucial issue in determining [X]’s wishes, and it is my impression that the maternal grandparents were attempting to appease [X]’s anxiety after her mother’s death. I consider that [X]’s wish to remain with the grandparents is related to her close emotional attachment to them.
198.I am concerned that if [X] was removed from her maternal grandparents’ care at this stage her anxiety is likely to escalate, and she may also be at risk of developing depression. She could either act out by way of externalising her feelings, however, given her personality, it seems more likely that she would internalise her feelings of depression and anxiety, which would compromise her social and emotional functioning. [X] is approaching her adolescent years and, as such, will be increasingly vulnerable in an emotional sense.
199.Mr Ladd is of the view that if the transition is made and the decision is taken out of [X]’s hands, then the child will soon adjust, and then have the opportunity for a settled and stable life. He is confident that she will respond positively.
200.It is my concern, however, that if [X] is removed from her grandparents and placed with her father against her will, she will grieve the loss of these very close and important relationships, and also, that she will become angry and resentful.
201.[X] has stated very clearly that she does not want to live with her father and Ms G, and I am concerned that if her wishes are disregarded, that she will respond by becoming even more negative about the relationship. I am concerned that if her views are ignored, that her negativity will become permanently entrenched, thus lessening the future potential for [X] to want to spend time with her father. Essentially, I am concerned that forcing [X] into a care arrangement against her will is likely to be counterproductive.
Ms Waterman was cross-examined on her opinion but, in my view, not shaken from it. Her concerns were well explained in the context of [X]’s relationship with her grandparents and the impact of the death of her mother. Mr Ladd’s position is that his proposed final orders ensure that the Hacker’s will remain a regular fortnightly feature in [X]’s life for a period of 12 months to assist with and minimise the effects on [X] that any separation from them may have on her.
Mr Ladd argues that [X] has been moving between different households and schools for most of her life. In 2003, she was separated from her half-brother, [Y], and he suggests that there is no evidence to show that [X] did not cope with that separation. That might be so, but it is a very different matter, in my view, to that now under consideration. [X] was much younger, and I doubt that her relationship with her half-brother then could be seen as of a similar nature or strength as her relationship with her mother before her death or her grandparents now.
The difficulty with Mr Ladd’s arguments is that they are not supported by the evidence. There is no evidence that even if his proposed final orders do ensure that the Hacker’s remain in regular fortnightly contact with [X], and therefore a feature of her life for the next 12 months, it will assist with and minimise the effects on [X] that any separation from them may have on her. In fact, Ms Waterman provides evidence that there is a real reason to be concerned about a proposal such as that advanced by Mr Ladd. The risks are real, they are not fanciful, and they have been measured, quantified and qualified by Ms Waterman.
Ms Waterman’s recommendations have essentially been in place now for 12 months. They were reflected in the interim orders made by Willis FM in February last year, and so, somewhat by default, the proposal suggested by Ms Waterman has nonetheless come to pass. In my view, what is appropriate now is for there to be a further report from Ms Waterman, a report which deals specifically with the way in which [X] has coped with the transition that has been in place for the last 12 months. At the same time, there should be some further transition to her father’s household.
The geographical distance between the parties presents somewhat of an obstacle. There is evidence before me, which I accept, that the current arrangements are difficult for [X] because of the travel that is involved between her father’s household and her school. She does that each alternate weekend on a Monday morning and Tuesday morning, at least as the evidence suggests, and on a Friday afternoon. My initial feeling was to make an order that that arrangement happen each weekend until such time as the matter was the subject of a further report by
Ms Waterman, but on reflection, it seems to me that that would be too burdensome on [X]. She would be required, as the evidence permits, to arise at 6.15 on school mornings Mondays and Tuesdays, for the journey across town to her school.
For that reason, it seems to me that the current interim orders should be varied, pending a further report from Ms Waterman, so that [X], spends time with her father each weekend from after school on a Friday to before school on a Monday, or, if the parties otherwise agree, to Sunday afternoon. The order will be until Monday morning, but it might be that the parties take the view that a better outcome for [X] would be for her to return to her maternal grandparents on a Sunday afternoon. That is a matter entirely for the parties. But that will see [X]’s time with her father increase, and it will increase so that she is spending every weekend with her father and her father’s family.
I will make an order for the parties to attend on Ms Waterman for further family report interviews on 1 March 2010, and the matter will be adjourned for further consideration before me, following the receipt of that report in the week before Easter. It is my intention to, on that occasion, if the parties agree, make final orders which dispose of the case, subject to what Ms Waterman has to say.
Having Ms Waterman revisit the matter is a way is to ensure that the risks that she has identified for [X] are not coming to pass. That is the crucial issue in this case – management of the transition for [X] so that the risks identified by a properly qualified social worker do not come to pass for this child. It seems to me that a review by Ms Waterman will provide some answer towards that question – indeed, in my view, will provide the answer to that question and so a transition, if not contraindicated, from her maternal grandparents’ household to her father’s household can take place shortly after Easter.
The interim orders, therefore, that are presently in place will remain in place, including the order for equal shared parental responsibility, until further order. Those orders will be varied, as I have already indicated. There will be a report prepared pursuant to section 62G at the Court’s expense, updating the previous family report in specific respects set out in the order, and the interviews for that will take place on 1 March. The matter will be adjourned to 29 March at 9.30.
I hope that it is plain enough from the reasons that I have given that on the evidence that presently exists, [X] should probably be living with her father. The issue is how that is to be managed in circumstances where there have been some very clear risks identified by a person qualified to identify them. The respondents in this case – and this is not intended to be a criticism, but simply a statement of fact – are prepared to permit [X] to make these decisions for herself – that itself is risky. In those circumstances, it seems to me, without the support of both families to a transition to her father’s household, the transition needs to be carefully managed with the assistance of input from someone like Ms Waterman.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 25 March 2010
0
0
1