Leo and Hanson

FAMILY COURT OF AUSTRALIA

LEO & HANSON

[2010] FamCA 321

FAMILY LAW – PARENTING PROCEEDINGS – FATHER’S APPLICATION FOR SOLE PARENTAL RESPONSIBILITY OF CHILD – Mother of child is deceased – The Court is persuaded that the child’s best interests would be served by a joint parental responsibility arrangement between the father and maternal grandmother – Child to reside primarily with the maternal grandmother, and spend extensive periods with the father, given the attitudes and capacities of the parties

Family Law Act 1975 (Cth) Part VII

Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Hort & Verran [2009] FamCAFC 214
Russell & Russell And Anor [2009] FamCA 28
Donnell & Dovey [2010] FamCAFC 15
Simpson & Brockmann [2010] FamCAFC 37
Mulvany & Lane (2009) FLC 93-404

APPLICANT:

Mr Leo

RESPONDENT:

Mrs Hanson

FILE NUMBER:

DUC

405

2008

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Dubbo

JUDGMENT OF:

Coleman J

HEARING DATE:

15, 16, 17 & 18 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mark Auld

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW Dubbo

COUNSEL FOR THE RESPONDENT:

Ms Brana Obradovic

SOLICITOR FOR THE RESPONDENT:

Nelson Keane & Hemingway

COUNSEL FOR THE ICL:

Mr John Berry

SOLICITOR FOR THE ICL:

Boyd & Longhurst

Orders

That all previous parenting orders in relation to the child K born … June 2005, the child of Mr Leo (“the father”) and Miss A Hanson (deceased), be discharged.
That the father and Mrs Hanson (“the maternal grandmother”) have joint parental responsibility.
That until the child commences high school she live with the father as follows:
(a)For the first week of each month commencing on Saturday 1 May 2010, at 12 noon.
(b)For the whole of the school holidays which follow school terms 1, 2 and 3.
(c)For half of each Christmas school holiday, which the first half in odd numbered years and the second half in even numbered years, such time to include Christmas Eve, Christmas Day, New Years Eve and New Years Day.
(d) On Father’s Day if father’s Day falls on a day when K is with her father.
(e) At such other times as the parties may agree.
That the child live with the maternal grandmother at all other times and be enrolled in Distance Education.
That the maternal grandmother take all steps necessary to register with the local Aboriginal Lands Council.
That the maternal grandmother take all steps necessary to apply for a scholarship open to Aboriginal students for K’s high school education.
That once the child commences high school that she live with the father as follows:
(a)For the first half of all school holiday periods in odd numbered years and the second half in the even years.
That the child live with the maternal grandmother at all other times.
That both parties use their best endeavours to connect to Skype to enable the child to have video communication with the party with whom she is not living.
That the child communicate with the party with whom she is not living:
(a)Each Monday and Thursday between 7:00pm and 7:30pm or such times as the parties may agree in writing, with that party instigating the telephone call to the party with whom the child is living and that party ensure the child takes the call; and
(b) At any time by email or Skype.
That the change over shall take place outside C Post Office or such other place as the parties may agree in writing.
That in the event that the child suffer any illness requiring medical attention or hospitalisation during any period the child is spending with each of the parties they shall immediately notify the other party of such illness and the name of the medical practitioner or hospital to which the child has been taken.
That each of the parties:
(a)       Sign all documents and do all things necessary to:
(i)Authorise the school at which the child may from time to time attend:
(1)To furnish the parties with copies of all school reports, notices advices concerning:
(1a)     the said child; and
(1b)     any activity involving the said child;
And
(2)To make available to the parties copies of any school photographs of the said child at each party’s expense.
(b)      Notify the other party immediately of:
(i)       Any major illness suffered by the said child;
(ii)      Any hospitalisation of the said child;
And
(c)Make available to the other party copies of any medical report or reports that may be sent to them in connection with such illness or hospitalisation;
And
(d)Authorise:
(i)Any hospital in which the said child may be admitted; and
(ii)Any medical practitioner under whose care the said child may be to give such information to the parties as they may request.
That each party keep the other party advised of their residential address, landline telephone number, mobile telephone number and e-mail address and shall give the other party 21 days notice in writing of any intention to change their residential address, landline telephone number, mobile telephone number or e-mail address and provide the other party with the details of such change.

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

FAMILY COURT OF AUSTRALIA AT DUBBO

FILE NUMBER: DUC 405 OF 2008

MR LEO

Applicant

And

MRS HANSON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

The parenting proceedings before the Court relate to the child K who was born in June 2005. The parties to the proceedings are K’s natural father Mr Leo (“the father”), and her maternal grandmother Mrs Hanson (“the maternal grandmother”).
By a Minute of Order tendered through his counsel early in the course of evidence at trial the father sought, on the basis that he would be residing in the northwest of the State of New South Wales, that the child live with the maternal grandmother for a one week period four times per calendar year, and at such other times as might be agreed.
On the second day of the trial, the father suggested that it would be in the child’s best interests to spend an additional weekend with the maternal grandmother in each school term, or possibly as much as one weekend in each month between school holiday periods.
In the course of her oral evidence at trial, the maternal grandmother suggested that if the child were to reside primarily with her she should spend all of each of the three mid year school holiday periods with her father, and half of the Christmas school holidays, alternating the first and second half of such holidays on a year about basis.
Counsel for the Independent Children’s Lawyer (“the ICL”) supported the father’s stance.
In cross-examination, the maternal grandmother suggested that the child spending additional time with her father during school terms, essentially on the basis proposed by the father during the course of his evidence, would be in the child’s best interests. The minutes of order submitted by counsel for the maternal grandmother at the conclusion of the trial reflected that suggestion, and further provided that the child spend an additional week per school term with the father.
The issue is accordingly whether K’s interests would be better served by residing primarily with her father, and spending regular and substantial time with her maternal grandmother, or by her residing primarily with her maternal grandmother and spending regular and substantial time with her father.

Background

Before proceeding further, it may be helpful to identify the people who have assumed significance in the child’s life, a number of whom have given evidence at trial.
The father was born in 1978. He is accordingly 31 years of age.
The maternal grandmother, the mother of A Hanson, and grandmother of J Hanson, was born in 1953 and is thus aged 56 years.
K’s mother A Hanson (“the mother”) was born in 1979 and died in July 2008. The mother was K’s primary carer until the time of her death.
K is the mother’s second child. J Hanson who was born in February 2000 is the mother’s first child. The father in these proceedings is not J’s biological father.
In April 2007 the father and the mother were injured in a motor vehicle accident. As a result of the injuries he then sustained, the father was hospitalised for approximately seven months, and is now an incomplete quadriplegic.
Although J was primarily cared for by the maternal grandmother after the mother’s death in July 2008, since the end of January 2010 J has been living with her natural father, Mr F.
The maternal grandmother has two other daughters, S who was born in 1978, and R who was born in 1994. S has a son who was born in August 1999. S is expecting another child later this year.
The maternal grandmother resides on a 16,000 acre rural property in northern New South Wales. The maternal grandmother has lived on the property for more than a decade. The property is owned by Mr H who resides on the property. A regular visitor to the property is Mr D who was in a relationship with the mother from November 2006 until the date of the mother’s death in July 2008.
The father lives on a 40,000 acre rural property known as “B property” which is also located in northern New South Wales. The father lives with his parents, the paternal grandfather who was born in 1946, and the paternal grandmother who was born in 1948 (herein after referred to individually as “the paternal grandfather” and “the paternal grandmother” respectively, and jointly as “the paternal grandparents”). The paternal grandfather is aged 65 and the paternal grandmother is aged 63. The paternal grandmother and the paternal grandfather are engaged on “B property” as caretakers.

Material Facts

K’s parents commenced cohabitation in 2001 and separated in mid 2007. Both parents were significantly involved in the care of the child until that time. After the parties separated, the father’s contact with the child was limited. The evidence does not enable the Court to find with confidence why that was so. The inability to make a finding in that regard is not of significance for present purposes.
After the death of the mother, the father’s contact with the child was more limited. The Court is unable to make findings with confidence as why that was so. That inability does not assume significance for present purposes.
On 30 October 2008, by which time the father and the maternal grandmother were engaged in litigation in relation to the parenting of the child, interim orders were made in the Local Court which provided, in essence, for the child to live with each of her father and maternal grandmother on a week about basis.
Notwithstanding the animosity which continues to exist between the maternal grandmother on the one hand and the father and the paternal grandparents on the other, there is no suggestion that either party to these orders has failed to substantially comply with them over a period which now approximates 18 months.
Neither party seeks to continue an equal shared time regime.

Credibility

When regard is had to the affidavit evidence relied upon by the parties, credit appears to assume considerable significance. Ultimately, having seen and heard the parties and their witnesses cross-examined, the Court is not persuaded that credibility in the strict sense of the word does assume great significance in determining the proceedings. Each of the parties and their witnesses presented as open and candid witnesses, who spoke their minds freely, and without apparent or undue regard to the possible consequences of doing so.
As is common in parenting cases, in this case the testimony of witnesses potentially assumes significance on a number of levels. The first and most obvious relevance of the testimony of parties and witnesses is in relation to the literal truth or otherwise of what is said in the course of such testimony. The second, and often equally significant aspect of the testimony of parties and their witnesses is in relation to attitudes to other persons, to the child the subject of the proceedings, and to parental responsibilities and obligations. What people say, and how they say it are often revealing in those respects.
Whilst, as will be seen, the Court is not satisfied on the balance of probabilities by the evidence in relation to a number of potentially serious allegations of fact, being not thus satisfied does not mean that the Court concludes that the party or witness whose allegations are not found proven has or have fabricated those allegations, or otherwise consciously or deliberately given untruthful evidence.
The essential reason why the Court so concludes is that each of the parties, and their witnesses, were so clearly and unguardedly candid in relation to other matters which they must, or should have realised were potentially to their detriment. It would no doubt have been tempting, and potentially advantageous, to have sought to create a different impression in relation to those matters. It is difficult to accept that witnesses whose evidence revealed such a general naiveté, or lack of sophistication, would consciously contrive to fabricate evidence of particular events or incidents.
As the evidence reveals, there is abiding and readily conceded animosity on the part of the maternal grandmother towards the father and the paternal grandparents. That animosity is reciprocated by the father and the paternal grandparents. To say that neither side “pulls any punches” in relation to their opinions of, and resentment towards, the other would be to encapsulate the spirit of the evidence of the parties and witnesses with respect to those relationships.
As will be seen, for a variety of reasons, not the least being in some cases the complete absence of forensic testing of allegations, or in others incomplete or ineffective testing of allegations, the Court is simply left with competing allegations about a number of potentially serious matters, and no circumstantial or other evidence impacting upon the probabilities.
To the extent that the father and the paternal grandparents made many and varied allegations of abuse, neglect and inadequacy with respect to the maternal grandmother’s parenting capacity, the circumstances relating to the emergence of those allegations, the absence of any, or any effective agitation of those allegations in cross-examination of the maternal grandmother, and absence of other evidence capable of establishing those allegations, means that the Court has little option than to conclude that those allegations remain unproved.
Whilst the maternal grandmother’s allegations of neglectful, inadequate or abusive conduct on the part of the father and the paternal grandparents were agitated with them, nothing emerging from that process, or any other evidence, provides a sufficient evidentiary foundation for finding on the balance of probabilities that those allegations were established. Ironically, as will be seen, a number of matters of concern to the Court arise from evidence volunteered by the paternal grandparents during cross examination.
The position is essentially that the child’s material needs would be adequately provided for in every relevant sense whether she were to primarily live with her father or with the maternal grandmother. The evidence fails to establish that in either household the child’s physical or material needs would be other than adequately provided for. This encompasses schooling, hygiene and health. Nor does the evidence establish that the child would be exposed to abuse or violence, or the risk of abuse or violence, whether she is to primarily reside with her father, or with her maternal grandmother.
As will be seen, it is in the second respect referred to earlier that the testimony of the father and his parents on the one hand, and the maternal grandmother on the other, assumes major significance. That is perhaps unsurprising given the Court’s conclusion with respect to the child’s physical care. At this point a review of the evidence at trial, with particular reference to what it reveals about attitudes to the responsibilities, duties and obligations of the parents, will hopefully be instructive.

Evidence of Parties and Lay Witnesses at Trial

In evidence in chief on the first day of the trial, the father revealed, for the first time, the proposal that he and his parents intended to move to reside in L, northwest New South Wales as soon as possible. The father explained that part of his motivation for moving to L was that he has a sister who lives near L, and that the schooling and facilities would be better for the child in L than in R or T, the towns near B property.
The father revealed that he had been “thinking about” thus moving over the preceding twelve months and had made a number of enquiries, or had enquiries made by his sister on his behalf, in relation to schooling, housing and amenities in L. The father was confident that suitable rented accommodation with appropriate modifications to accommodate his physical needs could be obtained in L.
The father’s parents have for many years owned approximately 1000 acres of rural land about half an hour out of L. Later, it emerged, in evidence from the father’s father, that the family hoped to build and live in a house on the rural property, but that this would probably not be sooner than two years hence. The father hopes to be residing in L by no later than the beginning of 2011 at which time the child would commence school. In the interim, he proposed renting a house in R.
Although the father was criticised for not having sooner revealed his intention to move to L, a distance of approximately 440 kilometres from the maternal grandmother’s home, and whilst it would clearly have been preferable for the father to have disclosed his intention sooner, the Court does not draw any adverse inference from the timing of the revelation of his proposal for the future. In the circumstances of this case, the maternal grandmother was not prejudiced by the father’s failure to disclose his proposal sooner. Whilst it can with some force be suggested that the proposal lacked detail, certainty, and was somewhat speculative in a variety of ways, the Court is not persuaded that there is anything inherently unsatisfactory about the father’s proposal. Nor is the Court persuaded that the father would be unable to implement his proposal or that, however it was implemented, the proposal would result in any aspect of the child’s material care being deficient.
To the extent that any question of the reasonableness of the father’s intended move to L was raised, the Court is satisfied that the proposed move is not unreasonable, largely for the reasons the father gave for deciding to make the move. To the extent that it was, or could have been suggested that the move was intended to put more distance between the child and the maternal grandmother, the absence of any real suggestion of that emerging from the cross-examination of the father, or either of the paternal grandparents, militates against so finding, and the Court does not so find.
The father’s love for the child was palpable. The father’s testimony leaves the Court in no doubt that the child is the most important person in the father’s life. K is undoubtedly the centre of the father’s universe. His commitment to her best interests could not be questioned by anyone who had seen and heard the father give evidence. The father’s appreciation of the importance to the child of the maternal grandmother however, and the extent of his appreciation of a number of aspects of having the primary care of the child are less certain.
The father conceded that he did not suggest to the child that she call the maternal grandmother during the weeks when she is with him and his family, but added that he did not get calls from the child while she was with the maternal grandmother, and that the failure to facilitate telephone calls was not one-sided. The father conceded that “it wouldn’t hurt” for the child to ring the maternal grandmother.

Whilst the father readily conceded that it was important that a child have a good relationship with a grandmother, the father suggested that “if [the maternal grandmother] was a better grandmother, yes” it would be important for the child to have a good relationship with her. The father unhesitatingly agreed with the proposition that he did not think that the maternal grandmother was a “good grandmother” or a “good person”. The father was asked whether the child loved the maternal grandmother. Following a lengthy pause the father said “maybe in a certain way, yes”, and added “to a degree, in a way”.
The father candidly agreed that he and the maternal grandmother would not be able to “agree on much” and, in fairness to him, did not suggest that he had, or would, try to make the communication book, to which the family consultant referred in his report, workable.
The father was cross-examined about the importance of K and her sibling J having a good relationship, and agreed that it was important that they do. Without referring to it in detail, the father’s evidence in relation to his attempts to facilitate that relationship, as was also the case with the evidence of the maternal grandmother, suggests that the future course of the relationship between K and J rests in the hands of others over whom the father and maternal grandmother have little or no control. The evidence does not enable the Court to fairly criticise the father or the maternal grandmother with respect to the relationship between K and J, or to regard either as being more likely than the other to be able to facilitate that relationship in the future.
The father readily acknowledged K’s Aboriginal heritage, and her entitlement to know and experience her Aboriginality. The father readily agreed with the proposition from the Court that the maternal grandmother, as an Aboriginal person, is in a better position to nurture the child’s sense of identity and heritage than is a non-Aboriginal person such as himself. As will be seen, and with respect to her, largely as a result of fair and frank concessions made by the maternal grandmother, issues of Aboriginality do not assume the significance in this case which first appearances suggest they would. More will necessarily be said about that later.
The father was cross-examined in relation to the level of care which he currently receives. There is nothing to suggest that, wherever he lives, the father would be unable to secure appropriate assistance or care commensurate with his needs from time to time. Nor does the evidence establish that the father is unable to adequately physically care for K, albeit he is at least to some extent reliant upon his parents in that regard.
In fairness, apart from raising the obvious questions, and referring to one particular incident, cross-examination of the father on instructions from the maternal grandmother did not seriously challenge the adequacy of the care able to be provided for the child by her father and the paternal grandparents. As is not in doubt, the father’s proposal has always involved his parents. His L proposal also continues to.
The father reiterated in the course of his cross-examination that his major concern remained that the maternal grandmother was not sufficiently vigilant in relation to the care of the child. When asked whether the child loved her maternal grandmother, the father affirmed his earlier evidence that, based on what the child says, he did not know whether she loved her maternal grandmother or not. When counsel for the ICL in cross-examination again traversed the father’s evidence that he did not know whether the child loved her maternal grandmother, the father responded that he “knew” the maternal grandmother, and had seen what she was like over a number years.
When invited to inform the Court of anything positive he had said to the child about her maternal grandmother, or to encourage her relationship with her maternal grandmother, the father responded “I do not say anything bad about” the maternal grandmother, and added that the child did not “bring up” the maternal grandmother “much”. The father conceded that the child would be aware that he and the maternal grandmother did not “get on”, and that this could be a problem if the child lived primarily with him, although it would depend upon the child’s feelings.
With respect to the father, and without placing unfair emphasis on the wording of his answers, his testimony, and hesitation in relation to the topic leaves the Court in little doubt that he has only limited insight into the importance of the child’s ongoing relationship with her maternal grandmother, and would struggle to promote that relationship. In his evidence, the father acknowledged that, although he would find it hard to encourage the child to say much about the maternal grandmother, he would not discourage a relationship between the child and the maternal grandmother. On a couple of occasions during his evidence, the father volunteered that the child refers to the maternal grandmother as “the other Nan”. Whilst that does not warrant criticism of him, the Court suspects that the father sees the maternal grandmother that way; as another, lesser grandmother to the child.
Mrs Leo Snr, the paternal grandmother, confirmed in her evidence the details of the proposed move to L about which her son had earlier testified. The paternal grandmother confirmed the evidence of her son in relation to his ability to provide, albeit with minor assistance, for K’s needs.
In the course of brief evidence with respect to bathing of the child, the paternal grandmother did not suggest there to be any issues of concern with respect to any aspect of the child’s development whilst she was living with the Leo family.
The paternal grandmother readily acknowledged that she did not like the maternal grandmother and that her general feeling was that the maternal grandmother was “not a very good grandmother at all”, who did not “take very good care” of the child, and “put her in harm’s way”.
When referred to the allegations made by her in her 11 August 2009 affidavit (paragraph 39) of an incident alleged to have occurred on 12 December 2008 when the child allegedly acted in an inappropriate sexualized way, the paternal grandmother volunteered that there were “many occasions” when the child had acted in a similar fashion to that which she had there described. The paternal grandmother described these occurrences as “fairly regular” during the period subsequent to October 2008 during which the child spent alternate weeks living in her home. The paternal grandmother quantified this regularity as 3-4 times per week. The paternal grandmother described the child as “humping” a pillow on these occasions, and confirmed that she used the expression “humping” to describe simulated sexual activity by the child. The paternal grandmother deposed to this conduct continuing to occur.
The paternal grandmother said that the child had been taken to Dr C in T after the alleged events of 12 December 2008. Subsequently tendered in evidence was a record from Dr C’s practice which corroborated the paternal grandmother’s assertion that shortly after 12 December 2008 the child had been referred to Dr C.
The reports of the T Doctors Surgery (Exhibit A3), of which Dr C was a member in December 2008, reveal with respect to a consultation on 18 December 2008:
“Grandma describes issues with alternate care – in [U] – child has described being touched and kissed etc whilst in care and being left with foster kids in the care of [JM]
Grandma describes inappropriate touching, kissing and language – has reported to DOCS locally but there has been no action to date”. [Exhibit A3].
The medical practice records include entries as late as March 2010, none of which involved any further or other referrals to DOCS.
Dr C’s records reveal that he referred the matter to DOCS on 19 December 2008. That is consistent with the paternal grandmother having raised her concerns with him and, presumably pursuant to the provisions of section 23 and 27 of the Child and Young Persons (Care and Protection) Act 1998, Dr C, as he was mandated to, having reported the matter to DOCS. There is no evidence before this Court as to what action (if any) DOCS or JIRT took either in relation to Dr C’s referral, or any other referrals to them which the Leos may have made.
The paternal grandmother’s evidence in relation to this topic is concerning for a number of reasons. The evidence of the frequency, and continuing nature of K’s behaviour emerged for the first time during cross-examination. It had not been referred to, or even hinted at, in an affidavit sworn at a time when the paternal grandmother asserted that this conduct was occurring. Not surprisingly, the paternal grandmother confirmed in cross-examination that the behaviour she deposed to having seen was a concern to her. Whilst it must be remembered that what appears in Dr C’s notes were his words, it is difficult to accept the disparity between what the paternal grandmother said in her affidavit evidence was the episode giving rise to the consultation with him on 18 December 2008, and what Dr C recorded in that regard could be the result of erroneous recording by Dr C. The difference is quite significant, and has not been explained by the paternal grandmother who, according to Dr C’s notes, made the complaint to him in the terms he recorded.
The father, who at all material times lived in the same house as the paternal grandmother did not, either in affidavit or oral evidence, give any evidence of the matters to which his mother deposed for the first time in cross examination. Mr Leo Snr, the paternal grandfather, who also lived in the paternal grandmother’s home at all material times did not in his affidavit depose to anything of the kind alleged by the paternal grandmother in cross-examination.
When interviews for the Family Report were undertaken in June 2009, the family consultant was clearly referred by the father to only one previous occasion (paragraph 6) of alleged sexualized behaviour. There is little room for doubt that, whether it was in accordance with the paternal grandmother’s affidavit, or Dr C’s file note, the previous “one occasion” reported to the family consultant was that deposed to by the paternal grandmother in her August 2009 affidavit as having occurred on 12 December 2008.
It is extraordinary that, if his mother told him of these matters, the father did not raise them with the family consultant in June 2009, and even more extraordinary if the paternal grandmother did not raise them with her son. It is inconceivable that, had he been aware of them, counsel for the father would not have raised these allegations with the father and/or his mother and/or his father, or all of them in evidence-in-chief rather than, as the course of cross-examination confirms, leave the emergence of these matters completely to chance.
The paternal grandmother confirmed that neither she nor anyone in her household, as far as she was aware, had contacted the maternal grandmother to raise this issue with her. In fairness, whilst the paternal grandmother confirmed that she did not trust the maternal grandmother, in her evidence at trial, she did not seek to blame this conduct on the maternal grandmother. A different stance was taken when the paternal grandmother spoke to Dr C. The paternal grandmother suggested that although her son (the father) had not witnessed this behaviour her daughter had. The paternal grandmother’s daughter did not give evidence on affidavit or orally at trial.
To the extent that, at least inferentially, the Leo family blame DOCS for the failure to investigate complaints in relation to alleged sexualized behaviour by K, the evidence before this Court provides no rational basis for criticizing the efforts of DOCS, and only establishes one matter in respect of which a referral was actually made to DOCS, albeit the documentary evidence suggests that the referral was made by Dr C.
The only document tendered in evidence with respect to DOCS (Exhibit A2) was a letter from the NSW Ombudsman to the father dated 23 January 2009. The letter relevantly stated:
This letter is confirmation of the actions this office has taken in relation to your complaint. On 22 January 2009, I contacted the Department of Community Service’s Complaints Unit who due to privacy requirements was unable to disclose if your friends [Mr and Mrs I] had lodged a complaint with their Unit. As discussed with you on 22 January 2009, and considering this, I therefore encourage you to contact the Complaints Unit yourself on […] to raise any concerns you have about how the Department of Community Services is managing the care of [K]. Furthermore, you may want to follow up with the Helpline on 132 111 to gain clarification as to what action they are considering in relation to previous reports made to them. [Exhibit A2].
As will be seen, of the three members of the Leo household at the relevant times, only the paternal grandmother alleged that K had engaged in the sexualized behaviour referred to as “humping” on more than one occasion. The evidence does not establish that the paternal grandmother ever complained, either to members of her own family, or any authorities in relation to this alleged ongoing behaviour. The paternal grandmother did not offer any explanation for the anomalies surrounding her evidence of the child’s alleged behaviour.
If, notwithstanding the curious state of the evidence in relation to this matter, the child did behave and continue to behave in the manner and with the frequency the paternal grandmother suggests, there is no evidence to suggest that this was directly or indirectly referable to any aspect of the child’s care in the home of the maternal grandmother, and in fairness the paternal grandmother did not suggest that it was. There is no evidence that similar behaviour occurs when the child is with the maternal grandmother.
Whatever the paternal grandmother may have imagined the utility of this evidence might be, notwithstanding considerable reservations in that regard, if the Court accepted that the paternal grandmother saw what she claims to have seen, a question arises which cannot be answered. That question is why the child would react in that fashion in one home, and not the other. Of perhaps greater concern is that, despite the Leo family’s attempts to criticize DOCS in relation to this issue, neither the paternal grandmother nor anyone in her household took, or sought to take, any effective steps to address this issue.
An alternative explanation for the failure to previously depose to, or otherwise raise the child’s inappropriate behaviour, or to complain to anyone, or seek to do anything about this alleged behaviour is that it did not occur. If the Court reached that conclusion, a finding that the paternal grandmother’s evidence of this was fabricated would be hard to avoid. However viewed, this topic represents a substantial impediment to the father’s case. Either the paternal grandmother has so little regard for the truth as to manufacture serious allegations of this kind or, if she believes in the truth of the allegations which she now makes, has serious shortcomings in terms of her duty of care to her granddaughter.
To the extent that there is any doubt about the paternal grandmother’s attitude to the maternal grandmother, brief cross-examination of her by counsel for the maternal grandmother removed the scope for any such doubt. When questioned about the proposed move to L, the paternal grandmother said “we are here today to take [K] out of a situation that is not good”. It was not suggested to either the paternal grandmother or anyone else that the move to L was intended to physically distance the child from the maternal grandmother, and the Court does not draw that inference.
The paternal grandmother volunteered that for the child to see her maternal grandmother “under supervision would be good”, although the paternal grandmother could not suggest by whom such supervision might be undertaken. The father’s proposal did not involve supervision. Although the paternal grandmother believed that it was important in principle for the child to have a good relationship with the maternal grandmother, in her evidence the paternal grandmother confirmed that she did not “believe it would be a good thing to do” in the circumstances of this case. When asked whether the child loved her grandmother, the paternal grandmother responded “I can’t answer that, you’d have to ask [K]”, or ask “the other Nan” as the maternal grandmother is evidently referred to by the child when with the father and the paternal grandparents. The paternal grandmother revealed no similar uncertainty in terms of the child’s feelings towards her. It is a concern that the paternal grandfather found it as difficult as she clearly did, when giving her evidence, to concede any possible worth in the child’s relationship with the maternal grandmother.
Whilst the paternal grandmother is not a party to the proceedings, she clearly is and will continue to be an integral part of the father’s caring proposals for the child. Her evidence gives the Court considerable disquiet as to the likelihood of the child retaining a meaningful relationship with the maternal grandmother were she to primarily reside in the paternal grandmother’s home, particularly in a case where there does not appear to be much money available in anyone’s household, and a distance of 440 kilometres physically separating the child from her maternal grandmother.
Mr Leo Snr, (“the paternal grandfather”), was cross-examined. The paternal grandfather’s evidence in cross examination also contained revelations which were unique to him.
The paternal grandfather revealed that the child sleeps between himself and his wife in their bed, although she has her own bed in her own room. The paternal grandfather said that the child did not want to sleep in her own room. The paternal grandfather said that the child was a “bit frightened” to do so, although he did not know and had been unable to find out what she was frightened of. It is to be remembered that the child’s father has a bedroom in the same house.
The paternal grandfather testified that, a month or so earlier, the child had again become difficult to get to take a bath on occasions. He further testified that the child did not wish him to go away while she was using the toilet, and that she was frightened of something, although she would not say what, and called him back to the toilet if he moves away from the immediate vicinity of it.
The paternal grandfather volunteered that the child had been “very good until [the maternal grandmother] got her”. Inferentially at least, that was a reference to a time on or before October 2008. The paternal grandfather testified that he had spoken to his wife and to his son about these things, which he confirmed went back to October 2008. Neither the father nor the paternal grandmother gave any evidence about these matters. As the paternal grandfather frankly conceded, these matters were not referred to in his affidavit. As the family consultant’s report of July 2009 confirms, these matters were not raised by the father with the family consultant when interviews were conducted in June 2009. Nor were they adduced in evidence in chief. Why that was so was never explained. The paternal grandfather endeavoured to suggest that he had told his son’s solicitor about these matters. In fairness to the paternal grandfather, when the Court pointed out to him the improbability of the solicitor having failed to make any mention of matters of this importance in an affidavit, or failed to adduce them in oral evidence in chief, had he or she been informed of them, the paternal grandfather appeared less certain that he had in fact done so. The paternal grandfather did confirm that neither he nor anyone in his household had sought to take the child to a counsellor in relation to this concerning behaviour.

It is little short of extraordinary that, if they happened, neither the paternal grandfather nor the father deposed to any of these matters. It is highly improbable that, at least on some occasions, either or both of them would not have observed what the paternal grandfather clearly regarded as regularly exhibited behaviour. If, notwithstanding the curious aspects of the evidence in relation to it, the conduct did occur, that would raise a concern as to the paternal grandfather’s capacity to provide for the child’s psychological and emotional needs. On the other hand, if it did not occur, and was manufactured out of a misguided desire to promote his son’s case, other concerns would arise about the paternal grandfather as a person significantly involved in the child’s caring arrangements.
Shortly after giving the evidence to which reference has been made with respect to the child’s concerning behaviour, the paternal grandfather referred to “when she was interfered with”. There was noticeable movement at the bar table when he said that. The paternal grandfather proceeded to suggest that a “young boy named [W] interfered with her at [U]” and that K had told him and his wife about this at “B Property”. The paternal grandfather confirmed that this had been before the end of January 2009. The similarity between terms of this allegation, and Dr C’s notes on 18 December 2008 is readily apparent. The paternal grandfather said that the child at about that time had “acted funny” and started wetting the bed, “rubbing herself and checking herself”. When the child was asked what was the matter, the paternal grandfather said the child wouldn’t answer. The paternal grandfather volunteered that the child was asked “Has anyone been touching you?” to which the child replied “Yes, [W]”.
The paternal grandfather confirmed that this was not one and the same incident as the paternal grandmother deposed to having occurred on or about 12 October 2008. The paternal grandfather said that his wife had got in touch with DOCS, but that neither he nor his wife had approached the Police. Why, particularly given the absence of goodwill which was by that time in existence between the Leos and the maternal grandmother, and the reality that litigation concerning the child’s welfare was well and truly in train, the Police were not approached remains curiously unexplained. The evidence before this Court does not establish that any complaint was made to DOCS about the matter.
Significantly, neither the paternal grandmother nor the father gave any evidence corroborative of the paternal grandfather’s allegations. To the extent that the father was not suggested to have been present when the alleged disclosure was made, it is inconceivable that he would not have been made aware of it by either the paternal grandmother or the paternal grandfather.
Again, whatever view is taken of the paternal grandfather’s evidence on this topic, concern arises. If the disclosures were made as the paternal grandfather alleges, he showed a regrettable lack of capacity to act appropriately to protect the child by not referring the matter to Police. If the allegations were manufactured, that too would raise concerns. At least inferentially, the paternal grandfather was suggesting that, in some way, the “interference” with the child had arisen at a time when she was in the care of the maternal grandmother. Such a suggestion was not agitated with the maternal grandmother during her cross examination.
As the paternal grandfather will be an ongoing and important part of his son’s proposals for the future care of the child, the evidence to which reference has been made gives rise to significant concerns, whatever view is ultimately taken as to the veracity of the paternal grandfather’s testimony about those matters.
Ms S Hanson, the maternal grandmother’s daughter, was cross-examined on an affidavit which she swore in the father’s case. As is not in doubt, Ms S Hanson and her mother, the maternal grandmother, are estranged from each other.
At least inferentially, and certainly in the evidence of the father, Ms S Hanson was put forward as being able to facilitate K’s identity as an Aboriginal person and her connection with her culture. Whilst Ms Hanson is an Aboriginal woman and identifies herself as such, without criticizing her or the father, her evidence suggests that the opportunities for her to actively promote K’s identity, as a young Aboriginal woman, would be extremely limited. Given the evidence subsequently given by the maternal grandmother, that evidence does not assume great significance.
In evidence in chief, Mrs Hanson, the maternal grandmother, testified that hearing the father’s proposal to move to L in oral evidence early in the trial was the first she knew of it. If the child primarily lived with her the maternal grandmother proposed that the child spend all mid year school holiday periods and half Christmas holidays with the father, and weekends once a month, or other times if the Leos were in the R/T region. The maternal grandmother further suggested that telephone contact, preferably of an afternoon, would be in the child’s best interest. In cross-examination of her it was not suggested to the maternal grandmother that she was disingenuous in proposing what she did, or that she would not facilitate the arrangements which she thus proposed.
The maternal grandmother deposed that she had not observed the child to engage in sexualized behaviour of any kind in her home, that the child was not frightened to go to the toilet on her own and that she slept in her own bed in her own room. None of those assertions was seriously challenged in cross-examination.
The maternal grandmother confirmed that no children other than K at present live on her property. The maternal grandmother explained the activities to which she takes the child when she is with her, at which K has the opportunity to socialize with other children.
In cross-examination the maternal grandmother confirmed that she was still grieving the death of her daughter A. That grief was palpable, and genuine, unless, which in fairness no one has suggested, the maternal grandmother was “putting on an act”. The maternal grandmother has been receiving grief and separation counselling from a counsellor once a month in R for about 12 months. She had alluded to that in her last affidavit of evidence in chief. In recent times, the third occasion being on the third day of the trial of the proceedings in this Court, K had been taken to the counsellor who the maternal grandmother had been seeing.
The maternal grandmother deposed to having been told to do a parenting course which she was waiting to do. It was not suggested to the maternal grandmother in cross-examination that her evidence in that regard was other than truthful, or that her intention was other than as she had stated. It is not insignificant that a person in the maternal grandmother’s position would volunteer that a suggestion that she do a parenting course had been made to her. The implication implicit in that suggestion, namely that her parenting left room for improvement, could not have been lost on her.
The maternal grandmother volunteered in relation to the parenting course that sometimes she does not know how to deal with things which J and K say to her, particularly things arising out of the death of their mother A. By that stage of her cross-examination, the maternal grandmother had testified about matters which suggested that she was a person of considerable insight.
The Court however is mindful of the evidence which followed, during which the maternal grandmother confirmed that she had doubts about whether the father in these proceedings is K’s biological father. When invited to suggest why that was so, the maternal grandmother did not hold back, suggesting that she had seen the father and his sister, and the paternal grandfather and the father’s sister out at a social venue of sorts, to which she referred as “the sheep yards”. There is not a scintilla of evidence before this Court to suggest that the allegations implicit in the maternal grandmother’s words have substance.
The maternal grandmother however testified that she had not said anything to the child about her reservations regarding her paternity, or what may have occurred at the sheep yards and would not do so, agreeing that the father in these proceedings is the person K has always known as her father and that to suggest otherwise would only be likely to cause the child hurt and distress. That potentially mitigates, but cannot excuse the maternal grandmother’s attitude. These matters remain of concern, and require careful consideration in the context of the statutory provisions governing the proceedings.
When cross-examined about the regrettably poor level of communication between herself and the Leos, the maternal grandmother volunteered that she would have to “swallow my pride” and talk to the paternal grandmother “a bit more”. The maternal grandmother’s evidence suggested, albeit on a fairly modest scale, that there had been some improvement in communication in recent times, albeit, as she conceded, the telephone conversations to which she referred had in each instance been initiated by the paternal grandmother.
The maternal grandmother’s unequivocal evidence was that she does not like the Leos, and does not believe anything they tell her. That sentiment was recorded by the family consultant in his June 2009 report. Adding that she had “personal issues” with the Leos, the maternal grandmother explained that, in her view, there was a difference between the personal issues which she has, and will continue to have with the Leos, and “[K’s] issues”, which, in K’s best interest, cannot be allowed to be obscured, or otherwise compromised by issues that are personal to herself and the Leos.
Whilst that might seem a convenient way of potentially avoiding the consequences of the evidence given by her with respect to the Leos as people, a reading of the totality of the maternal grandmother’s evidence, and even the slightest regard to her demeanour as she gave that evidence, provides a rational basis for tending to accept the truthfulness of it. Moreover, the absence of cross-examination of the maternal grandmother to suggest that her personal views of the Leos have influenced her dealings with the child or the child’s dealings with the Leos, provide further support for accepting that the maternal grandmother’s evidence was truthful.
As a reading of the affidavit material relied upon by the father confirms, much was there sought to be made of the maternal grandmother’s attitude to a man named Y who was convicted of sexually abusing R, and sentenced to a lengthy term of incarceration. Limited cross-examination of the maternal grandmother in relation to this issue established, uncontroversially, that she had been a witness for the prosecution, or the DPP as the maternal grandmother referred to the Crown, at the trial of Y which led to his conviction and incarceration. Whatever the realities of the Y prosecution, no evidence before this Court establishes that the maternal grandmother acted other than in a responsible manner.
To the extent that other allegations were made against the maternal grandmother in relation to the standard of care she provided for S and R, the absence of any cross-examination of her with respect to those allegations or other admissible evidence precludes the Court from making any adverse findings in terms consistent with those allegations.
The maternal grandmother gave evidence in relation to her home in the R/T region in northern New South Wales. Unless, which no one has suggested, the maternal grandmother staged the photographs of her home and surroundings which were attached to her affidavit, the home which she provides, is more than adequate. The photographs are also revealing of K’s role in the home. Wherever one looks, photographs, drawings, toys, paintings and other paraphernalia clearly referable to the child are to be observed. If anything, far from revealing any absence of appropriate physical care, the photographs suggest modest indulgence, which is not said critically. Given the photographs, which were in evidence, it is unsurprising that, to his credit, Counsel for the father refrained from seeking to suggest to the maternal grandmother that the physical environment provided for the child was other than adequate.
The maternal grandmother has lived on the property for more than a decade. Whether or not the maternal grandmother regards the station as her country is unclear, and ultimately not significant. There is no suggestion that the maternal grandmother’s tenure there is other than secure. It was never suggested to the maternal grandmother, or to the owner of the property, Mr H, that the maternal grandmother would be unable to continue to live on the property, as she clearly hopes to be able to.
It is to be remembered that, approximately 18 months since the week about care arrangement for the child was instituted, there is no reliable evidence of any aspect of the child’s care having been neglected during that time whilst she was in the care of the maternal grandmother. Were the maternal grandmother as lacking parenting capacity as the affidavit evidence adduced on behalf of the father suggested, it is probable that there have been reliable evidence of something untoward by now.
The maternal grandmother was cross-examined at some length about her proposal to distance educate the child if she is to reside primarily with her. As the transcript would confirm, the Court asked a number of questions in relation to that topic. The Court did so as it was concerned to know just how much the maternal grandmother had looked into Distance Education, thought it through, and demonstrated a commitment to it. Without referring to the evidence in detail, the maternal grandmother’s evidence revealed an impressive knowledge of, and commitment to, the principles and workings of Distance Education.
Another aspect of the Court’s enquiry about Distance Education was the extent to which a physically isolated child would miss out on opportunities to socialize with other children, were she be distance educated instead of attending school each day as the father’s proposal would have the child doing in L. The maternal grandmother demonstrated an awareness of the need to make sure that physical isolation did not become social isolation for the child. Both the implementation of Distance Education and the other activities which the maternal grandmother is currently taking the child to, satisfy the Court that the child would not be socially disadvantaged were she to be distance educated by the maternal grandmother.
Cross-examination of the maternal grandmother left the Court satisfied that, although her “personal issues” with the Leos were unlikely to dissolve, or possibly even abate, the maternal grandmother had not allowed, and would not allow those issues to compromise her ability to act in K’s best interests. That is not to say that the “sheep yards” and non-paternity evidence does not remain a concern. It does.
Probably the most significant matter to emerge from the evidence of all the parties in this case relates to the extent to which deeply held and abiding antipathies impact upon the capacity to promote relationships between K and a parent, or grandparent, or grandparents who is or are not respected. Although there is nothing to separate the warring factions in terms of their “personal issues”, the evidence reveals significant differences between the rival camps in terms of the ability to preserve and promote a relationship between the child and the family with which she does not primarily reside.
In the course of cross-examination about Aboriginality, the maternal grandmother perhaps, unexpectedly, demonstrated balance and fairness to the Leos. Having confirmed that K’s identity as a young Aboriginal person was an important part of her upbringing, and that knowledge of her Aboriginal culture and heritage was important, the maternal grandmother referred to her own experiences, and the tentative steps she had taken to nurture K’s Aboriginal identity. The maternal grandmother is a member of what has become known as the “stolen generation”.
The maternal grandmother readily, and fairly, conceded that time spent with her in the school holidays would be sufficient to enable the child to sustain her Aboriginal identity and acquire cultural knowledge, and that the child did not need to live with her on the property to realize her Aboriginal identity.
The maternal grandmother presented as an intelligent and perceptive woman. It is hard not to think that, as an Aboriginal woman, the maternal grandmother would not have appreciated the potential benefit for her case in taking a stronger line in relation to K’s Aboriginality. Whether she could have sustained such a stance is another issue. It is to the maternal grandmother’s credit that she did not seek to gain moral or strategic leverage from her Aboriginality.
As will be seen, the effect of the maternal grandmother’s evidence is that, although K’s Aboriginal identity is a very important matter, it does not ultimately become a matter of significance for the purpose of determining the child’s best interests. In short, on the maternal grandmother’s evidence, which the Court accepts, whether the child lives primarily with her on the rural property, or primarily with her father in L, the child’s Aboriginal identity and cultural heritage will be preserved.
Mr H was cross-examined briefly in relation to the affidavit he swore in the proceedings. Nothing emerging from that cross-examination provides any cause for concern with respect to any aspect of the maternal grandmother’s proposal for K’s primary care.
Mr C was cross-examined by telephone. Notwithstanding that on his own evidence, he had not met the father prior to his accident in 2007, and had only seen him twice after the accident, Mr D revealed no liking for the father, who he described as always having “come across as rude and arrogant”. The father’s lengthy time in cross-examination before this Court revealed no hint of either of those attributes.
Mr D gave evidence of the frequency with which he sees the child at the rural property and how she has “looked up to him” as “like a father figure”, adding “she is a special girl”. Mr D volunteered that he saw the “terrified look in her eyes when she has to go to her father’s place”. As was pointed out to him, that had not found expression in Mr D’s affidavit, nor had anyone else observed the child in that way.
Regrettably, the potentially most important aspect of Mr D’s evidence was never agitated with him during cross examination. In the Family Report of 5 July 2007, (paragraph 39) the family consultant raised concerns with respect to both the maternal grandmother and Mr D which were never agitated with either of them. Nothing expressly or inferentially raised with either the maternal grandmother or Mr D provides an evidentiary foundation for the concern expressed by the family consultant in his report. That is not said critically of the family consultant. As the judgment of Heydon JA (as his Honour then was) in Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 explained, when expert opinion evince is predicated upon facts which are not established, the weight liable to be given to such opinion evidence is likely to be reduced.

The evidence of the Family consultant

The Court has had the considerable assistance of a Family Report prepared by an experienced and eminently qualified family consultant. The Court has also had the benefit of hearing the family consultant cross-examined in relation to such report.
Through no fault of the family consultant or the Court, the interviews upon which the Family Report were based occurred more than nine months ago. As is not in doubt, the impact on all the parties of the death of A Hanson, K’s mother, in July the previous year, was still being keenly felt at that time. The Court has to proceed in reliance upon lay evidence given at the trial. As earlier passages in these Reasons for Judgment would confirm, a number of the allegations now made, and which are said to pre-date the interviews with the family consultant, were not raised with him. As also earlier noted, a number of the matters which were raised as issues of substance with the family consultant in June 2009, received no or little attention during cross-examination at trial. The difficulties presented by these realities are regrettable and significant given the role of the family consultant as an expert witness, and the Court’s role as the ultimate trier of fact.

Although concerned by these matters, the necessity for the Court to maintain its role as an impartial umpire has limited the extent to which the Court has felt comfortable to raise with the family consultant matters emerging from the lay evidence over the previous three days of the trial which were not raised with him by counsel, or were raised in a less than rigorous manner.
At the conclusion of his comprehensive and cogently reasoned report, the family consultant presented his “Summary and Conclusions”. There the family consultant accurately opined that the “central fact precipitating the present dispute was the tragic and untimely death of [K’s] mother” on 12 July 2008. The family consultant assessed, undoubtedly correctly, that the maternal grandmother was then “still struggling to come to terms with this most profound and tragic grief”. [Family Report, page 13, par 61]. As earlier passages in these Reasons for Judgment reveal, the maternal grandmother is still grieving the loss of her daughter. The evidence before this Court also reveals, as was the case at the time the family consultant saw her, that the maternal grandmother was attempting to address her loss, and doing so to the best of her ability.
In the absence of any cross-examination of the family consultant which enables the Court to definitively so find, the evidence before it suggests that, whilst clearly an ongoing “emotional task” for the maternal grandmother, grieving the loss of her daughter does not continue to be the maternal grandmother’s primary emotional task. The evidence of the progress of counselling, and recognition of the need to try to improve communications with the father and his parents, and to improve her own parenting skills support that conclusion.
In his report, the family consultant suggested that the maternal grandmother’s “preoccupation” with the emotional task of coming to terms with the death of her daughter meant that she may not be “the most optimal person to provide for [K’s] needs into the future”. [Family Report, page 13, par 62]. The evidence before this Court establishes that whilst the maternal grandmother’s grief remains ongoing and real, it falls short of establishing that to be a matter of “preoccupation”.
As the family consultant sagely observed in his report, the focus of the Court’s determination must be on the child’s best interests, rather than those of any of the adults involved. That observation has particular relevance with respect to the father. On the evidence before it, the Court could not fail to be sympathetic to the position of the father. That sympathy however cannot obscure proper consideration of the factors which Part VII of the Family Law Act 1975 (Cth) (“the Act”) mandates that the Court consider.
Whilst at the time of the interviews with the family consultant the maternal grandmother may have “articulated her primary motivation in seeking orders for [the child] to live with her as being to retain the memory of [the mother] alive for [K]”, and that remains an abiding consideration for the maternal grandmother, the evidence before the Court does not suggest that to be either, consciously or otherwise, the maternal grandmother’s “primary” motivation. [Family Report, page 13, par 63]. The matters chronicled in the family consultant’s report are entirely consistent with the conclusion that the maternal grandmother at that time exhibited a “predominantly backward-looking focus” which was not consistent with the child’s needs. [Family Report, page 14, par 63]. Whilst, as the Court’s review of the evidence of the maternal grandmother confirms, there remains much to be done in terms of the maternal grandmother's attitudes, the evidence before the Court does not demonstrate, on balance, a predominantly back-ward looking focus on the child’s needs on the part of the maternal grandmother. The evidence of the maternal grandmother in relation to the child’s environment, her attachments and development suggests that the maternal grandmother now has a greater capacity to place the child’s needs above her own.
Again, with abundant justification having regard to the matters chronicled in his report, the family consultant expressed concern over the maternal grandmother’s “intense negative feelings” with respect to the father. The intensity of those negative feelings remains unabated. The evidence of the maternal grandmother to which reference has been earlier made in these Reasons, and which the Court accepts as genuine, suggests that the maternal grandmother has a greater insight into the need to separate what she personally feels, from what the child should be exposed to.
Whilst the maternal grandmother undoubtedly maintains a low opinion of the father and his parents, which is almost mirrored by the father and his parents with respect to the maternal grandmother, the evidence does not establish that the maternal grandmother has, deliberately or otherwise, minimized or devalued the importance of the father and his parents in the child’s life. The absence of evidence of events over a period of 18 months, and comparative success of the reasonably onerous arrangements for the child’s care which have existed during that time are supportive of so finding.
The Court accepts the expert opinion of the family consultant that “serious concern” would exist if living primarily with the maternal grandmother led to the child being emotionally distanced, estranged or even alienated from her father. There is no evidence before this Court that, whatever attitudes the maternal grandmother holds, there is any tangible evidence of the child becoming distanced, estranged or alienated from her father.
Significantly, the family consultant expressed his recommendation that the child “should probably live primarily with her father, and spend time with her maternal grandmother on a regular basis” as being “on the basis of the information currently available to me”. [Family Report, page 14, par 65]. As the cross-examination of the family consultant confirms, a number of matters of which the Court is aware were not raised with him. Not all of those matters had arisen prior to the June 2009 interviews, but many of them had.
The Court approaches the evidence of the family consultant on the basis that, notwithstanding that a number of matters raised with him in cross-examination led him to have some concerns, or possibly to wish to revisit some aspects of his report, the family consultant remained of the view that, on balance, the child’s interests would be better served were she to primarily live with her father than to primarily live with the maternal grandmother.
Given the difficulties arising from the manner in which the evidence at trial emerged and/or was presented, it is more instructive to first refer to the salient aspects of the Family Report, and then to the cross-examination of its author.
The family consultant recorded [paragraph 4] the specific concern of the father about “the potential for [the child] to be sexually abused by others while in [the maternal grandmother’s] care”. [Family Report, page 1, par 4]. The Court has earlier noted that this issue was not agitated in any sustained way in cross-examination of the maternal grandmother. At no time was the maternal grandmother squarely confronted with the allegations which had been made by that time. Not insignificantly, by the time the maternal grandmother was cross-examined, the evidence of the paternal grandparents, which emerged for the first time in cross-examination, had been given.
The absence of cross-examination of the matters giving rise to a concern about possible sexual abuse of the child would not necessarily preclude a finding in those terms. Nor would the absence of any testing of the maternal grandmother’s denials of those allegations of which she was aware prior to the commencement of the trial. There is an absence of any other evidence able to be accepted as establishing that risk on the balance of probabilities. The Court thus cannot find that the father’s specific concern about the potential for the child to be sexually abused has an objective foundation.
The bases upon which the father suggested to the family consultant that he had a specific concern about the potential for the child to be sexually abused by others whilst in the maternal grandmother’s care [paragraph 5] were not agitated with the maternal grandmother in cross-examination. Nor were they the subject of other reliable evidence.
The Court has earlier referred to the disclosure to which the family consultant referred [paragraph 6], and noted that the only reliable evidence before this Court establishes one disclosure on or about 12 December 2008. In his oral evidence, the family consultant confirmed that he had only ever been told of one occasion when the child had “demonstrated sexually provocative behaviour”.
The allegations raised with the family consultant about the “quality of the physical and emotional care provided” to the child by the maternal grandmother [paragraph 7] were not traversed with the maternal grandmother in cross-examination. There is no other reliable evidence establishing any of those matters. The evidence before this Court, involving the evidence of the maternal grandmother and Mr H, provides an adequate basis for making positive findings with respect to the capacity of the maternal grandmother to provide physical and emotional care to the child of an acceptable standard.
As is clear, and understandable having regard to the evidence of the father and his parents, the possibility of relocating to L was not traversed with the family consultant when interviews for the preparation of the Family Report took place in June 2009. Given that the decision was only recently made, it would be unfair to criticize the father for not having disclosed that possibility at that time.
The family consultant recorded that the maternal grandmother’s grief consequent on the death of her daughter remained an “unresolved emotional issue for her” [paragraph 10]. That situation continues. So does the maternal grandmother’s overwhelmingly negative view of the father and his parents.
Interestingly, the reporting [paragraph 12] that the lack of communication and negative relationship was not adversely impacting upon the child articulated by the maternal grandmother, was almost mirrored by the father and his family. It seems to have been lost on all of the adults involved in her care that saying nothing positive, or nothing at all, may be interpreted by a child as being as much of a criticism as saying something negative.
In his report, [paragraph 15, and later paragraph 39] the family consultant identified as a concern the possibility that the maternal grandmother was seeking to encourage the child to see Mr D as her father. Surprisingly and regrettably, neither the maternal grandmother nor Mr D was confronted with this possibility. Whilst Mr D clearly takes a very keen interest in the child, other than by elevating suspicion to the status of proof, the Court is unable to find on the balance of probabilities that this is a material risk if the child is to primarily reside with the maternal grandmother. Neither the father, nor either of his parents gave evidence of anything done or said by the child which might support that concern.
In terms of Aboriginality, [paragraph 18] the maternal grandmother gave affidavit evidence, which was not challenged, of her confusion at the time Aboriginality was discussed with the family consultant. Quite properly, neither counsel for the parties or the ICL took up this issue with the family consultant in cross-examination. It is sufficient to say that nothing before this Court suggests that the maternal grandmother has other than a balanced and genuine interest in fostering the child’s identity as an Aboriginal person, and promoting her acquisition of appropriate cultural knowledge.
Under the heading “Child Issues” the family consultant favourably reported his observations of the child’s interactions with her father, the maternal grandmother and the paternal grandparents. Those observations however were in the context of a concern expressed by the family consultant in the following terms:
23. [The child] attended this event in the company of [the maternal grandmother] and [J]. When [K] initially saw [the father] at the commencement of this event, she was reluctant to approach or greet him. Despite encouragement by [the father] for [K] to approach him, she did not do so. When [the maternal grandmother] was directed by the family consultant to provide the necessary encouragement or emotional permission to [the child] [the maternal grandmother] half-heartedly encouraged [the child] to greet her father, but [K] clearly remained uncertain about what to do. However, as this initial indecision subsided, it was observed that [the child] finally greeted her father with a kiss and a hug. [Family Report, page 5, par 23].
The Family consultant also recorded:
28.By contrast with [the child’s] previously warm and comfortable interactions with her father during the formal observation period (ie. in [the maternal grandmother’s] absence), at the end of the day [the child] was once again observed to be reluctant to kiss or hug her father or paternal grandparents in farewell, at least in front of [the maternal grandmother]. With encouragement from both [the father] and his parents, as well as prompting by the family consultant, [the child] ultimately did so before leaving the Registry with [the maternal grandmother]. [Family Report, page 6, par 28].
The context within which the present dispute has arisen was succinctly summarized by the family consultant in the following paragraph of his report:
32.Unhappily for [K], [the father] and [the maternal grandmother] do not share a positive relationship as joint caregivers. Indeed, theirs is a relationship characterised by extreme emotional tension and acrimony. Although they did not share a positive relationship prior to [the mother’s] death, the intensity of their mutual acrimony appears to have increased significantly since that event, with this dispute over [the child’s] living arrangements providing the current focus for this. [Family Report, page 7 par 32].
The family consultant observed that since the death of K’s mother in July 2008, the maternal grandmother may have “developed a negative attitude towards the father which may not be entirely warranted or accurate”. Whether the attitude developed or intensified subsequent to July 2008, there is little doubt that the maternal grandmother’s attitude towards the father, and the paternal grandparents, is both negative and, on the evidence this Court has heard, not entirely warranted or accurate. As recorded earlier, those observations apply with equal or almost equal validity to the father and the paternal grandparents.
A concern in relation to the maternal grandmother’s views about K’s paternity was articulated by the family consultant in the following terms:
35.This particular belief about [the child’s] paternity appears to confound an objective or biological fact (that [Mr Leo] is probably [K’s] father) with an ‘emotional fact’ (ie. that [the maternal grandmother] would prefer that Mr [Leo] was not [K’s] father). Although this confounding of facts and emotions is not an uncommon feature in high conflict family law disputes, it indicates the depth of the antipathy that [the maternal grandmother] holds for [the father], and suggests a poor prognosis for her capacity to support and encourage [the child’s] relationship with [the father] into the future, especially if she was to become [the child’s] primary carer. [Family Report, page 7, par 35]
The Court has earlier recorded the evidence of the maternal grandmother in relation to this topic, and the concerns which result from it. The probabilities are that the maternal grandmother would prefer that the father was not K’s father. The Court accepts the maternal grandmother’s evidence however that her beliefs have not been communicated to the child and will not be, instead remaining amongst the “personal issues” to which she referred in her evidence. In the absence of this issue having been more thoroughly agitated with the maternal grandmother than it was in cross-examination, and an absence of other evidence supportive of so finding, the Court does not find that the maternal grandmother’s views about the child’s paternity are likely to have the potential to cause or contribute to the child being alienated from her father.
The implied criticism of the maternal grandmother with respect to the father’s reports about the child demonstrating sexually provocative behaviour [paragraph 36] becomes less inexplicable when regard is had to the evidence which this Court has heard and recorded in some detail earlier in these reasons. It is clearly not forensically correct to suggest that the matters which have emerged in evidence before this Court, and the manner in which they have emerged can in some way retrospectively validate the maternal grandmother’s summary dismissal of a report made in December 2008 simply on the basis that it came from the father and his parents. In the light of that evidence however, the Court is not able to be as critical of the maternal grandmother in relation to such claim as the family consultant was entitled to be when he interviewed the maternal grandmother in June of last year.
This Court has struggled, as earlier passages in these Reasons for Judgment hopefully indicate, to know just what to make of the allegations which the father, and more particularly the paternal grandparents have articulated in cross-examination. On the material presented to him, and his observations at the time, it was well open to the family consultant to record that it was “hard to escape from the perception that the maternal grandmother is allowing her own strongly negative views about The paternal grandfather to influence her parenting of [the child]” [paragraph 38]. So too was the concern then expressed as to whether the maternal grandmother would be able to “differentiate between [the child’s] need for an ongoing relationship with her father/paternal family, from her own personal need and interest to have nothing whatsoever so do with them”.
As the evidence before this Court to which reference has previously been made reveals, both in terms of the maternal grandmother’s own insights, and the evidence of the ongoing good relationship which the child enjoys with her father and the paternal grandparents, the Court is unable to find on the balance of probabilities that the maternal grandmother continues to be able to differentiate between her needs and the child’s needs. That is not to say that the maternal grandmother does not struggle to do so. She clearly does.
The family consultant recorded, undoubtedly correctly, that the father possessed a “reciprocally negative view” of the maternal grandmother and at least “to some degree” voiced the concerns raised by the father as to whether or not the maternal grandmother would “adequately monitor or supervise [the child], especially with regard to her vulnerability to sexual abuse”. Given that the evidence before it fails to provide an objective foundation for it, whilst not dismissing the concern expressed by the family consultant, the Court is unable to accept that a possible basis of, or justification for, the father’s negative views of the maternal grandmother relates to those concerns.
Under the heading “Issues relating to [the maternal grandmother’s] own Children”, the family consultant traversed a number of allegations raised by the father, some of which were expressly raised with the maternal grandmother. Few if any of those matters were the subject of evidence before this Court, or raised with the maternal grandmother to any real extent during her cross examination.
The evidence of the maternal grandmother, which was not disputed, is that she was a witness for the prosecution in the proceedings taken against Y. No inferences adverse to the maternal grandmother could be drawn with respect to Y’s case. Nor does any evidence before this Court provide an evidentiary foundation for making findings on the balance of probabilities in the terms of other provisions contained within those paragraphs. That is not to say that these matters were not raised with the family consultant, or to suggest that his impressions were other than accurate, but simply to reiterate that the opinion evidence of an expert such as the family consultant requires as its basis or foundation in some instances findings of fact which the state of the evidence before this Court precludes it from making.

In Simpson & Brockmann [2010] FamCAFC 37, the Full Court followed the decision of the Full Court in Donnell. Those decisions oblige this Court to apoproach the present case on the basis that “parent” means what it says. Ultimately, that has little practical significance, for the reasons the Full court has explained in Donnell and other cases.
The Court’s conclusion was consistent with other decisions of the Full Court to which reference was made. One of those decisions (Hort & Verran [2009] FamCAFC 214) concerned a dispute between a natural mother and paternal grandmother.
The authorities to which the Court has referred above establish that, whilst there is no mandate for extending the definition of “parent” to include grandparents or others who are not parents, the substance of the matters referred to within section 60CC(3) and section 60CC(4) remain to be considered in the light of the findings of fact made by the Court.
The authorities also suggest that, to the extent that any of the matters specifically referred to in section 60CC(3) refer only to a parent, consideration of those factors with respect to, in this case the maternal grandmother and the paternal grandparents, being clearly relevant to determining K’s best interests, can be accommodated within section 60CC(3)(m) of the Act.
Whilst it may be technically preferable to consider section 60CC(3) factors referring to parents first, and then consider those factors with respect to the maternal grandmother pursuant to section 60CC(3)(m), the Court proposes to address these factors by reference to their subject matter. So doing is considered more instructive in terms of the Court’s ultimate conclusion, and an understanding of the reasons underpinning such conclusion. That approach does not appear inconsistent with the authorities which the Court has cited. It is not proposed to refer in detail to the findings of fact which have earlier been recorded in these reasons when addressing the various provisions of s 60CC. The conclusions or inferences which are recorded with respect to these provisions are based on such findings.
No views expressed by K assume significance in the proceedings. No one suggests that they should.
K has a loving relationship with her father and each of her paternal grandparents. The child also has a loving relationship with the maternal grandmother. Whilst the evidence implies, as does commonsense, that the nature of the relationships would be somewhat different, whatever that difference might be, or be presumed to be, the evidence does not suggest that to be a factor which assumes significance. Notwithstanding the animosity which exists between the adults in this case, the quality of K’s relationship with each of her father, her paternal grandparents and her maternal grandmother is such that it would be artificial to seek to qualitatively differentiate between them in any significant way.
In terms of the willingness and ability of K’s parent and his parents on the other hand, and her maternal grandmother on the other to facilitate and encourage a close and continuing relationship between the child and the other parent or grandparent or parents, there is, as the Court’s review of the evidence reveals, not a vast difference, although the Court perceives there to be somewhat more willingness and ability on the part of the maternal grandmother to facilitate and encourage a close and continuing relationship between the child and her father and her paternal grandparents than there is on the part of the father and the paternal grandparents collectively to achieve those objectives with respect to the maternal grandmother.
As the Court’s Reasons for Judgment have earlier made clear, that conclusion is significantly reliant upon the Court’s finding that, whilst there may be little to differentiate between the maternal grandmother and the father, the reality that the paternal grandparents are part of the father’s household, and will continue to be in the future materially alters that solution.
Without reiterating the matters which lead the Court to that conclusion in detail, they include the greater insight into K’s needs revealed by the cross-examination of the maternal grandmother, her greater willingness to admit fault on her part with respect to relationships between the competing households, and her willingness to accept correction and advice in that regard. Albeit modest, the maternal grandmother revealed some ability to recognise the love which exists between the child and her father and the paternal grandparents, and an ability to tolerate that state of affairs. The contrast between the revealed attitudes of the maternal grandmother and those of the father and the paternal grandparents in this regard is significant.
In isolation none of the factors favouring the proposal of the maternal grandmother could properly assume real significance. Cumulatively however, the Court believes that they should, particularly when regard is had to the concerns that Court has with respect to the willingness and ability of the father’s household to promote an ongoing relationship between the child and her maternal grandmother. The orders proposed by the maternal grandmother also provide some support for concluding that the maternal grandmother has somewhat more willingness and ability to promote an ongoing relationship between the child and her paternal grandparents than do the father and the paternal grandparents.
The likely affects of any changes in K’s circumstances assume minor significance in determining her best interests. As is not in doubt, for the past eighteen months the child’s life has been spent between two remote rural properties, with her father on “B property”, a 40,000-acre property and at a 16,000-acre property with the maternal grandmother.
If the child was to primarily reside with the maternal grandmother, her continued association with her familiar environment on that property would continue. Although the property is remote and isolated, there has been no criticism of the child’s living arrangements there, other than for the fact that there are no other young children in residence. It is unsurprising that the criticism of life on the property has been thus limited, given that the paternal grandparents have for almost a decade lived in what appears a not dissimilar environment on “B property”, as has the father for a period which now exceeds two years.
The father’s proposal is to move to L irrespective of the outcome of these proceedings. Whilst there is no reason to be critical of the arrangements which the father proposes there, notwithstanding that those arrangements could have been further advanced and more certain than the evidence reveals them to have been, there is no rational basis for finding that the child’s welfare would be compromised were she to reside in L. Reality demands however that it not be forgotten that a move to L would be a new and, for K and indeed the father, untried arrangement. Stability in the life of a child is not irrelevant to the child’s best interests, particularly where the child has lost her primary carer.
As counsel for the maternal grandmother submitted, if the child resides primarily with the maternal grandmother the need for change would be limited. That is not the case if the child is to reside primarily with her father although, it must be recognized that the father proposes that the child spend extensive time with the maternal grandmother. The extent to which this factor favours the maternal grandmother’s proposal is thus limited.
Whilst the evidence before this Court is probably sufficient to infer that the child will miss her father if she is to reside primarily with the maternal grandmother, and that the converse would be true, the evidence falls short of establishing that the child would not cope with either of the outcomes which present themselves in this case. On balance, it is not realistically possible to suggest whether the child would miss her father more if she were to reside primarily with the maternal grandmother than she would miss the maternal grandmother if she were to reside primarily with her father in L.
Whatever happens in this case, distance has the potential to impact upon the child’s right to maintain personal relations and to spend time with one or more of the people who are dear to her in life. There is simply no way of avoiding that reality. That is not said critically of the proposals of either party.
It is entirely reasonable that the father and his family wish to move to L, and fairly, no one has really suggested otherwise. Similarly, it is entirely reasonable that the maternal grandmother would wish to continue to reside on her property. Again, in fairness, no one has really suggested otherwise. How much time the child is able to spend away from the place where she primarily lives will be limited by distance and, albeit perhaps to a lesser extent, expense occasioned by distance.
The capacity of the father and the paternal grandparents on the one hand and the maternal grandmother on the other to provide for the child’s needs, including her emotional and intellectual needs assumes considerable significance in this case. The Court is satisfied that K’s material, educational and social needs would be adequately met, whether she were to live with her father and the paternal grandparents, or with the maternal grandmother.
As the family consultant identified, the issue of “emotional permission” assumes significance in this context. Whereas, for reasons which he detailed and which were cogent, the family consultant concluded in June 2009 that the child would be likely to experience significantly greater emotional permission were she to primarily reside with her father than with the maternal grandmother, the evidence before this Court suggests that, nine months later, the position is materially different.
If the case fell to be determined by reference solely to the evidence of the maternal grandmother and the father, the difference between them could not be regarded as significant. However, when regard is had to the evidence of the paternal grandparents, and the Court’s findings with respect to that evidence, the position is somewhat different.
The Court feels sorry for the father. He clearly, at least to some extent, needs the assistance of his parents in caring for the child. Regrettably, the capacity of the paternal grandparents to rise above their personal animosity towards the maternal grandmother and focus on K’s needs gives rise to concern. As the family consultant observed during oral evidence, questions arise from the evidence of the paternal grandparents at trial as to whose needs were being met, and how boundaries were being set in the father’s household. Those questions remain concerningly unanswered.
On balance, and without suggesting that the difference is overwhelming, the Court is persuaded by the evidence to which reference has earlier been made, that K’s entitlement to “emotional permission”, which was rightly considered to be problematic in the maternal grandmother’s household in mid 2009, is now, on balance, likely to be more problematic were she to primarily reside with father and his parents. The difference is, in the Court’s assessment, sufficiently pronounced to be a matter of significance.
The Court has earlier identified, but not resolved, the dilemma created by the evidence of the paternal grandparents in cross-examination which the Court has detailed. As the Court has noted at several earlier points, the circumstances surrounding the giving of that evidence and absence of other evidence in support of the matters raised for the first time by the paternal grandparents in cross-examination preclude the Court finding on the balance of probabilities that the matters complained of, particularly those which expressly or impliedly related to the maternal grandmother, had been established.
The Court does not, and does not need to find that those claims were fabricated. If, in extending the benefit of the doubt to the paternal grandparents in relation to those matters, the Court accepts that they genuinely believe that the allegations raised by them had substance, the Court must be concerned as to their capacity to effectively parent K given that neither they nor the father took or sought to take any effective steps to deal with allegations which, if true, placed the child at serious risk of abuse. The evidence does not reveal any corresponding failure to act on the part of the maternal grandmother.
So far as the evidence, particularly of the paternal grandparents in relation to K’s behaviour when in their home is concerned, it is difficult to see on what basis the paternal grandparents could have deposed to those matters other than on the basis that they are actually happening in their home. It is inconceivable that any misguided sense of loyalty to the father, or desire to assist his case could have led the paternal grandparents to have invented those matters as they could not be thought to be likely, if accepted, of adversely impacting upon the maternal grandmother’s case.
As noted earlier, accepting the evidence of the paternal grandparents with respect to the child’s sleeping, toileting and sexualized behaviour raises two questions which remain unanswered. The first is why that occurs given that there is no suggestion of similar conduct when the child is with the maternal grandmother. The second, and more concerning question, is why no-one in the father’s household took, or sought to take any effective steps to deal with behaviour which, understandably, the paternal grandparents view with concern. With all due respect to the father and the paternal grandparents, the evidence suggests that these matters will simply continue. It is a concern that the father and the paternal grandparents have not appreciated the need to raise these matters with the Court, the family consultant, other experts, and seek to address them.
Albeit by a matter of degree, the evidence before the Court persuades it that the maternal grandmother has a greater capacity to encourage the child’s ongoing relationship with her father and the paternal grandparents than they collectively have to encourage and facilitate the child’s ongoing relationship with the maternal grandmother. Albeit minor, part of that disparity in capacity relates to K’s ongoing relationship with her sibling J and her maternal aunts S and R.
Whilst there is clearly some overlap between the two issues, the Court is satisfied by the evidence before it that primarily living with the maternal grandmother would better facilitate the child’s ongoing relationship with her father and paternal grandparents than would the converse. That conclusion has not been reached lightly, or without serious consideration of the disturbing evidence of the maternal grandmother in relation to the child’s paternity, and the “sheep yards” allegations.
The Court also concludes that were the child to primarily reside with the maternal grandmother, her primary carer would have a greater capacity to identify and appropriately address any social, emotional or developmental issues which arose, than if she primarily lived with her father. It is not without relevance in this context that there is no evidence of the existence of the issues raised by the paternal grandparents’ evidence when the child is residing with the maternal grandmother, and that in the father’s household, where the evidence suggests that there are such issues, no effective steps have been undertaken to address them.
As is not in doubt, K is Aboriginal. In this case, unlike Hort & Verran [2009] FamCAFC 214 (1 December 2009), and many other cases, the issue of Aboriginality does not assume significance in determining K’s best interests. That is not to say that K’s Aboriginality does not assume significance. It clearly does. As a young Aboriginal person, K’s entitlement to her Aboriginal identity and cultural heritage is to be respected and preserved. The Court’s duty in that regard is clearly mandated by the Act.
The evidence of the maternal grandmother in this regard was impressive, both with respect to the steps she would take to promote K’s Aboriginal identity, and her willingness to concede that she would be able to do this even if the child were not primarily residing with her. That evidence enables the Court to conclude that, wherever the child primarily resides, her Aboriginal identity will be promoted and her entitlement to acquire her cultural heritage will be preserved. To his credit, the father recognizes the importance of K’s Aboriginality, and fairly conceded that, as a non-Aboriginal person, his capacity to preserve K’s Aboriginal identity was not equal to that of her maternal grandmother.
The attitudes of the child and the responsibilities of parenthood and nurturing the child superficially demand that all the adults involved in the child’s care since the death of K’s mother in July 2008 warrant criticism. That however would not ultimately be fair or reasonable. What follows should be read in the light of the conclusion with respect to attitudes and capacities which the Court has earlier recorded.
The untimely and tragic death of K’s mother has undoubtedly plunged four decent adults into an extremely difficult situation. Under the microscope of court proceedings, these four decent people have had to resolve issues of grief, anger and blame whilst at the same time endeavouring to do the best they can for a child they all love dearly. Notwithstanding the “personal issues” with which all the adults have struggled, with varying degrees of success and failure, it can be seen that the child has been largely spared from those personal issues, or at least the worst of them.
The terrible things each of the parties unhesitatingly say about each other render it little short of amazing that the child presents as she does, and that the comparatively onerous care arrangements which have been in place now since October 2008 have operated as successfully as the evidence reveals them to have. Whilst the Court could criticize the attitude of each of the four adults to their responsibilities to the child in the past, it would not be realistically fair to criticize any of them more than any other or others of them.
Although it has largely been traversed by reference to capacity, the attitudes to responsibilities for the future however in the Court’s assessment of the evidence, provide more positive indicators on the part of the maternal grandmother than they provide with respect to the father and the paternal grandparents. To regard this factor as independently favouring the maternal grandmother may distort the exercise of discretion in a finely balanced case as, in substance, this factor substantially overlaps with the capacity issue, which has been earlier considered.
Violence and family violence are not relevant considerations in the exercise of the Court’s discretion.
The extent to which a final order can realistically be made for a child K’s age in a case such as this is problematic. The future will take its own course, and nothing this Court says can alter that. The Court must make the order, which it considers in K’s best interests. Implicit in that is the belief that the order will be sustainable, or at least that it is not destined to be unsustainable. Beyond that little more can usefully be said about the likelihood of future proceedings.
On balance, as these Reasons hopefully reveal, albeit not on an overwhelmingly clear basis, or in reliance upon any one factor, the Court is persuaded that K’s best interests would be served by her residing primarily with the maternal grandmother and spending the very extensive periods of time proposed by counsel for the maternal grandmother with the father. The factors which are decisive in so concluding operate cumulatively to have that effect. These matters relate to a variety of “attitudes” and “capacities”, both demonstrated and inferred. Giving all permissible weight to the position of the father as a parent does not change the Court’s conclusion.

Although not the subject of extensive submissions, the Court concludes, notwithstanding that so doing may not at first appear to sit well with the Court’s numerous findings of fact recorded earlier in these Reasons for Judgment, that K’s best interests would be served by her father and the maternal grandmother having joint parental responsibility for her. There are a number of reasons why that is so. Whilst the evidence reveals a regrettable level of communication to have existed between the adults who have cared for K since the death of her mother, the fact remains that those adults have been able to implement a shared care regime for a significant period, and with considerable success. This suggests that, when they put their minds to it, K’s father and grandparents have considerable ability to make arrangements for her care work successfully.
There is a need for communication to improve and an expressed willingness on the part of the maternal grandmother for that to occur, and some demonstrated willingness on the part of the paternal grandmother for that to occur. Hopefully, the parties would perceive an order for joint parental responsibility as not only indicating the Court’s requirement that the parties attempt to communicate more effectively in K’s interests than they have been able to in the past, but also encouragement to them in that regard.
Although it is a minor aspect of the Court’s conclusion with respect to joint parental responsibility, the Court has some concern that an order for sole parental responsibility may either be seen as endorsement of the maternal grandmother’s previously unacceptable attitude to the relationship between K and her father and the paternal grandparents or some indication to all the adults that communication and cooperation is not required. An order for joint parental responsibility may help curb any such misguided impressions. Objectively, though K’s father, her paternal grandparents and her maternal grandmother are the most important adults in her life, and will continue to be so in the foreseeable future. Only if those four adults pull together will K’s best interests be satisfied.
The minutes of order submitted on behalf of the maternal grandmother provide for the child’s secondary education. Although an admirable aim, with respect to counsel for the maternal grandmother, in this Court’s view it is unrealistic to provide for the child’s secondary education at a time when she has not yet begun kindergarten. So many other events could intervene between now and when the child commences secondary education, including, hopefully, consensus as to what should then occur. In the Court’s view making an order for K’s secondary education now may well create more difficulty than it could possibly avert. The Court accordingly declines to make that order.
The Court also declines to make the order sought by the maternal grandmother in relation to implementation of the Court’s orders. Quite apart from any questions of the Court being functus afficio, making an order in the terms sought has an undesirable potential to discourage the parties from accepting responsibility for their own lives, and to encourage them to return to Court in the event of any difficulties arising, rather than attempting to resolve them.

I certify that the preceding two hundred and seventy nine (279) paragraphs are a true copy of the reasons for judgment of the Honourable Justice

Associate:

Date: 23 April 2010

[2010] FamCA 321

23 April 2010

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