Locke and Locke and Anor
[2012] FMCAfam 645
•9 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LOCKE & LOCKE & ANOR | [2012] FMCAfam 645 |
| FAMILY LAW – Grandparent seeking time with grandchildren – responsibilities of parents – completely fractured relationship between grandparent and parents – best interest considerations. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(2), 60CC(3), 65(C), 70NAE(2)(b), 70NAE(5), 70NDA |
| Childers v Leslie (2009) 39 Fam LR 379 Lowy v Lindgren [2008] FamCA 1010 Rice v Miller (1993) 16 Fam LR 970 Russell & Russell [2009] FamCA 28 SPS & PLS (2008) FLC 93-363 |
| Applicant: | MS M LOCKE |
| Respondents: | MR LOCKE & MS S LOCKE |
| File Number: | CAC 2044 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | By written submissions |
| Date of Last Submission: | 18 May 2012 |
| Delivered at: | Canberra |
| Delivered on: | 9 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Self Represented |
| Counsel for the Respondent: | Self Represented |
ORDERS
All previous orders be discharged.
The Application filed 17 December 2010 be dismissed.
The Application for Contravention filed 1 November 2011 is found to be established but reasonable excuse is also established.
IT IS NOTED that publication of this judgment under the pseudonym Locke & Locke & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2044 of 2010
| MS M LOCKE |
Applicant
And
| MR LOCKE & MS S LOCKE |
Respondents
REASONS FOR JUDGMENT
Introduction
Contests between parents are always troubling. Contests, such as the current matter, between a Grandmother and her son (and daughter-in-law), which involves her seeking to spend time with her grand-children, are, in some ways, particularly fraught. The contest here has been on-going for quite some time. The children involved are five year old [X], and three year old [Y].
For reasons of financial and other economy, all have agreed that the matter be determined ‘on the papers.’ Each party has filed written submissions, as well as affidavit material. Necessarily, the veracity and credibility of matters set out in the materials put before the Court are not able to be tested in the usual way in view of the procedural course taken.
At the outset, I should note that I have been aided in the discussion and resolution of this matter by the comments and observations of the Full Court concerning the significance of parenthood (compared to other relationships) in Rice v Miller, and of Ryan J in Russell & Russell.[1]
[1] Rice v Miller (1993) 16 Fam LR 970; Russell & Russell [2009] FamCA 28.
In addition to the parenting matter to be resolved, there remains to consider also a contravention application that was filed by the Applicant Grandmother in November 2011. The matter raised in that contravention is a very discrete issue and, although rather unusual in process, in my view, it too can be considered and resolved in the course of these reasons.
Some brief history is necessary.
Background
A detailed report was prepared by a highly experienced Regulation 7 Consultant, Ms C, in April 2011. On the principles articulated by Warnick J in SPS & PLS, that Report should be taken to be admitted into evidence.[2] In the course of oral reasons delivered in July 2011, I had indicated that the Report of Ms C was admitted, but it is as well formally to record its admission in these written reasons.
[2] SPS & PLS (2008) FLC ¶93-363.
In the light of that Report, I made orders on 20th July 2011 that provided for a very slow introduction of the Grandmother to her grandchildren. I hasten to add that the orders made reflected, as the oral reasons made plain (and certainly were so intended) to highlight the extremely fragile base upon which the Court sought to [re]-introduce the Grandmother to these two very young boys. This was so primarily because she was effectively a stranger to the youngest of the children, and importantly because of the poisoned relationship between the Grandmother and her son, the children’s Father. At the time,
Mr Locke (and his Wife) maintained that (a) the matter should have been resolved via mediation prior to the institution of any proceedings, and (b) the real intent of the litigation is the Grandmother’s pursuit of her relationship with her estranged son. The parents also raise issues in relation to the Grandmother’s mental health. All such matters the Grandmother disputes.
As things have turned out, the diffidence (indeed extreme caution) expressed in those reasons and reflected in the orders have borne even less good fruit than hoped. If at all possible, as noted below, rather than for good, all matters have turned decidedly for ill.
The contravention to which I have referred arises out of those July orders. The alleged, and only, contravention is that Mr Locke has failed to register with the contact centre, known as Marymead.
There is only one matter on which there is agreement between the parties, which is the completely fractured and poisonous relationship between the Applicant Grandmother and her Respondent son (and daughter-in-law). In my view it is determinative of the issue[s] before the Court. From the submissions and other material of the parties the area of agreement is confirmed from the following comments.
In her most recently filed submissions (filed 18th May 2012: p.4), the Grandmother states (emphasis added):
… Mole hills turned into mountains and our relationship became more and more estranged and acrimonious until he completely lashed out physically to me with violence and malice.
He has not been sorry or remorseful about his actions and I was determined not to allow him to abuse me like both my father and his father had done.
I am finding it hard to show forgiveness towards my son for putting me through what he has especially considering how difficult my life had already been prior to his skirmish with me. I hope he feels guilty for the rest of his life for what he has tried to do to me, and I feel that reconciliation between us will never happen.
For his part, and that of his wife also, Mr Locke states the following from the jointly sworn affidavit, filed on 16th May 2012 (paras.9, 10 & 11) (emphasis added):
The relationship between us, the respondent parents, and the Applicant grandmother is fractured beyond repair. The Applicant grandmother has consciously caused our family emotional and financial stress. Since our decision to estrange ourselves from her in 2008 following a disturbing display of her behaviour, she continued a vexatious, inexorable campaign to bring turmoil and unrest upon us and our extended family. This includes the commencement and continuation of these legal proceedings. She made it clear that her primary motive is not to spend time with our children, by declining an early offer to spend one hour per fortnight with our children in a public place of her choosing.
The Applicant grandmother has sent highly inappropriate letters to us and made harassing telephone calls to our family. This, combined with her persistent defamation of [Mr Locke’s] character and unrelenting attempts to pry for information continues to wear on us and our family members.
We have no interest in mediation with the Applicant grandmother and no desire or goal to reconcile our fractured relationship. The Applicant grandmother continues to show her true colours and we have wilfully decided to distance ourselves from her and her actions.
There is also little or no dispute that the Grandmother has only met the youngest child, [Y], on one occasion, and last spent time with the older child, [X], more than three years ago. The Respondent parents say: “The Applicant grandmother has only seen our children one time in the past 42 months.”
I also note that the Grandmother confirms that she is estranged from all of her own children and spends time with only one grandchild, out of five grandchildren.[3]
[3] See, for example, para.4 of the Grandmother’s submissions filed 2nd March 2012. This submission is inconsistent with a later submission of the Grandmother, filed 2nd April 2012, para.9.
Other evidentiary matters to note briefly (without making any formal findings in relation to them) are: (a) the Grandmother contends that the parents formerly used marijuana; the parents deny this; (b) the Grandmother contends that her son was physically violent towards her; (c) the Grandmother contends, in one submission, that the parents (or rather her son, in particular) have avoided mediation, while the parents aver that they offered mediation before the commencement of proceedings; and (d) the parents confirm that they offered time between the Grandmother and the two grandchildren, supervised by the Mother, but which the Grandmother confirmed she declined because she distrusted her daughter-in-law. Yet in an earlier submission (Submissions filed 2nd March 2012 (para.2)), inconsistently the Grandmother said that she had ‘offered’ to have her daughter-in-law present for any time with the grandchildren to allay any fears about her capabilities.
The final matter to record is that the parents contend that the principal object of the Grandmother’s litigation is less to secure time with her grandchildren but more to bring a degree of retribution on her son. The parents contend that the Respondent Father is the object of her litigious gaze, not the children. In this regard I simply note that much of the Grandmother’s submissions and other material is certainly and very directly aimed at her son. Whether it is the material in support of the contravention, with comments like “I want you [the Court] to BREECH [sic] him” (para.5 of annexure 2: affidavit filed 14th February 2012), or “I want him to be punished by insisting that he does Community Service” (para.2: submissions filed 2nd March 2012), it is difficult not to form a view that there is a significant focus by the Grandmother on her son and his perceived failures in her eyes.
Moreover, to say that there is a significant and disproportionate response from the Grandmother (“BREECH [sic] him” and ensure that he “does Community Service”) to what is, in the scheme of things, a relatively minor issue, namely her son’s failure to register at a contact centre, is a gross understatement. Indeed, given what is now before the Court it is more than appropriate to find that the Father’s failure to so register was with more than reasonable excuse. In such circumstances, and taking the evidence at its highest, the order shall be that the contravention is established (the Father essentially admits that he has not registered with the contact centre but pleads that it would be utterly injurious to the children for them to spend any time with the Grandmother at all, including at a contact centre) but reasonable excuse has been established.
The only thing that can be said in the light of these further matters is that the relationship between the Grandmother and the Respondent parents is implacably hostile and utterly poisonous. In my view, it is a relationship that is devoid of natural repair. As such, it would, on this fundamental ground alone, be impossible for any order to be made whereby the grandchildren should spend any time with the [Applicant] Grandmother. Having regard to the Court’s responsibility to make orders that are in the children’s best interests, pursuant to s.60CA of the Family Law Act 1975 (“the Act”), the risks of the acrid and corrosive relationship between the parties impacting on the parenting relationship with the children is so great as to warrant that no order for time with the Grandmother should be made.[4] Put another way, the Court’s protective responsibilities, set out in many places in the Act (e.g. s.60B(1)(b) and s.60CC(2)(b), together with s.60CC(3)(b)), must take precedence over all else in the bitter relational circumstances of this matter.
[4] The Father openly confirms that he did not register with Marymead but did not do so precisely because of the noxious relationship with his Mother and the genuine fears that he (and his wife) harboured for their children if they were required to spend time with their Grandmother. Having regard to (a) the Father’s admission of formal contravention of the order to register, (b) the definition of “reasonable excuse” in s.70NAE (and in particular s.70NAE(2)(b) and s.70NAE(5)), and (c) the general principles articulated by the Full Court (Warnick J) in Childers v Leslie (2009) 39 Fam LR 379, in my view, the facts and circumstances of this matter come readily within the terms of the sections to which I have referred, thus ‘reasonable excuse’ is established. In my view, the Father “ought to be excused in respect of the contravention.”
Although the finding I have made would be sufficient to dispose of the matter, for the sake of completeness, and given that the parties have filed submissions, I note the following further considerations.
The Submissions
Briefly put, in their various iterations, the Grandmother’s submissions are a narrative of her own abuse as a child and the effects thereof, the alleged violence perpetrated on her by her son, the estrangement of her other grandchildren, and her volunteer work for various organisations which, she contends, confirms that she is perfectly capable of looking after the grandchildren involved in the current matter, and that her son (and daughter-in-law) have nothing to fear from her. In particular, the Grandmother contends that her previous mental health issues have long been under control and that she takes her medication every day.
For their part, the parents contend that, as the children’s parents, and in accordance with the primary considerations in s.60CC(2) of the Act, their decision to oppose the Grandmother spending any time with their children is a protective decision, made in the best interests of their children. They confirm that they had previously offered time for the Grandmother to spend with the children, as well as agreeing to mediation. All such attempts, in their submission, have been either futile and or have resulted in a further deterioration of the relationship between the parties.
Further, the parents contend that the Grandmother spending any time with their children would be contrary to the protective provisions in the Act, notably s.60CC(2)(b).
By reference to s.60CC(3)(b), the parents confirm that the Grandmother has no relationship with the children and that it would be seriously upsetting for her to be [re]introduced into the lives of the young children. By reference to s.60CC(3)(c), the parents also confirm that they are unwilling (for reasons previously noted) to facilitate and encourage the relationship between the Grandmother and the children.
By reference to s.60CC(3)(d), the parents highlight their concerns about their children experiencing ‘anxiety and distress’ if they are forced to engage with the Grandmother. They emphasise that there is no detriment to the children in not knowing their paternal Grandmother.
Finally, by reference to s.60CC(3)(f), the parents confirm that they provide appropriately for the children’s needs and state bluntly, in a decidedly utilitarian manner, that the Grandmother “would add no value to our children’s lives.” I make no further comment on such a submission: it speaks for itself.
Consideration and Resolution
First, by and large, I accept the submissions of the parents.
Secondly, without going into much detail at all, it might be said that the older authority of Rice v Miller placed special eminence, but not necessarily a presumption, on the role of [natural] parents and parenthood.
Thirdly, respectfully, in the light of detailed amendment to the Act since that Full Court decision, the comments of Ryan J in Russell v Russell, particularly at [116] – [141], are more to the point. Respectfully, I adopt her Honour’s summary of principle.[5] There, her Honour noted that the best interests of the children must remain the paramount consideration of the Court in determining orders where an application is made seeking a parenting order pursuant to s.65C.
[5] See also the summary treatment of Part VII of the Act by Rose J in Lowy v Lindgren [2008] FamCA 1010 where his Honour dismissed an application by grandparents to spend time with a grandchild.
In the light of (a) the factual matters to which I have referred, most notably the utter breakdown in the relationship between the parents and the Grandmother and the attendant, flow-on risk to the children, and (b) the statements of principle also noted – primarily the requirement to have regard to the best interests of the children, in my view, the Grandmother’s application must be dismissed. For more abundant caution, all previous orders are also formally dismissed.
For the reasons also previously noted, the further order is that the contravention is established but reasonable excuse is also established in accordance with Part VII, Division 13A, Sub-division D of the Act. The contravention was established (by the Father’s admission) but a reasonable excuse was also established – being the completely fractured relationship between the Grandmother and the parents.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 9 July 2012
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