Lowy & Lindgren

FAMILY COURT OF AUSTRALIA

LOWY & LINDGREN

[2008] FamCA 1010

FAMILY LAW – CHILDREN – With whom a child spends time – Whether it is in the child’s best interests to spend time with the maternal grandparents – parental alienation – the benefit to the child of a meaningful relationship with the mother as the primary carer – the child’s future relationship with the maternal grandparents

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755

APPLICANTS:

Mr and Mrs Lowy

RESPONDENT:

Ms Lindgren

INDEPENDENT CHILDREN’S LAWYER:

Harris Leiberman, Solicitors

FILE NUMBER:

BRC

629

2007

DATE DELIVERED:

31 October 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

27 & 28 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	A Tonkin
SOLICITOR FOR THE APPLICANT:	Family Law Solutions

COUNSEL FOR THE RESPONDENT:	P O'Shaugnessy
SOLICITOR FOR THE RESPONDENT:	Adams Leyland, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	G Blank
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Harris Lieberman, Solicitors

Orders

That the mother shall have sole parental responsibility for … born … October 1999 (“the child”) AND the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the child live with the mother.
That the maternal grandparents or either of them may communicate with and/or have periods of time with the child as may be agreed upon by the parties.
That the mother shall use her best endeavours to ensure that her husband email or otherwise correspond with the maternal grandparents no less than 14 days prior to the child’s birthday and Christmas each year setting out a description of appropriate gifts from which the maternal grandparents may choose for the purpose of sending the child a gift on one or more of such occasions and for that purpose the mother shall cause the maternal grandparents to be given written details of a postal address for the purpose of sending any gift or gifts.
That in the event of the mother receiving a gift for the child sent by the maternal grandparents in accordance with the list provided by the mother’s husband pursuant to Order 4 she shall promptly provide that gift to the child and encourage her to immediately provide an acknowledgment to the maternal grandparents in such manner as the mother deems appropriate.
That the application of the maternal grandparents for parenting orders is dismissed.
That all documents produced on subpoena be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: BRC629 of 2007

MR and MRS LOWY

Applicant

And

MS LINDGREN

Respondent

REASONS FOR JUDGMENT

Introduction

The applicants in these proceedings are the maternal grandparents of a daughter born in October 1999 (“the child”) who is nine years of age.
The maternal grandparents are retired.
The maternal grandmother and maternal grandfather are 64 and 72 years of age respectively. They live in Sydney.
The respondent mother is 38 years of age.
The child lives with the mother and her husband, Mr Lindgren who is 51 years of age. They live in H.
The mother and her husband own and operate a business in H.
Mr T is the father of the child (hereinafter referred to as “the father”).
The mother and the father ceased their relationship several months prior to the child being born.
I am satisfied that the father has had ample notice of these proceedings and I accept the evidence contained in the Affidavit of the mother’s solicitor, Emma Kate Hill sworn 27 October 2008 which became Exhibit 5. The father has not taken any active steps in these proceedings at any stage.
The orders sought by the maternal grandparents are in accordance with their Amended Application for Final Orders filed 2 September 2008. In substance, the orders sought by them provide for the child to spend periods of time in their care for two one week blocks each year being for the first week of the mid-year school holiday period and the fourth week of the Christmas school holiday period. In addition, the maternal grandparents sought orders enabling them to have communication with the child by telephone; provision of letters, cards and gifts; and that the mother authorise the school to provide them with copies of school reports, newsletters and other relevant information. The maternal grandparents also sought an order that the mother keep them informed of the residential and postal addresses of the child.
The orders sought by the mother are as set forth in her Amended Response filed 18 September 2007. The orders sought by the mother are that she have sole parental responsibility for the child; that the child live with her; that the child spend time and communicate with the father; and that the maternal grandparents “be permitted to send letters and gifts to the child”.
No submissions were made, nor was any issue raised during the course of the evidence in relation to potential orders that the mother have sole parental responsibility for the child and that the child live with her.
I make a similar observation in relation to the order sought by the mother which provides for the child to be able to spend time and communicate with her father as agreed in writing between the mother and father. I will not make that order as sought as I do not have any evidence before me in relation to the living circumstances of the father or any other matter touching upon the father’s capacity to care for the child or indeed any of the matters that are relevant pursuant to s.60CC which may enable me to make findings which would support an order that is in the child’s best interests. The child’s parents are in any event free to make such arrangements between them in relation to care of and communication with the child as they see fit. That is entirely a matter for them in the circumstances of these proceedings.
The principal issues for determination at the hearing were whether it is in the child’s best interests for her to spend time with the maternal grandparents and for them to be able to communicate with her whether by telephone and/or through gifts, cards and letters.
During the course of the evidence and subsequent submissions, it was also clear that an issue arises as to whether or not the maternal grandparents should be furnished with copies of the child’s school reports and newsletters, whether by the school Principal upon request or via direct authorisation by the mother in the event that the answer is in the affirmative whether there should be an injunction which restrains the maternal grandparents or either of them from communicating with the Principal or any of the staff of the child’s school or attending the school.

Historical background

The following are further relevant historical matters.
On 19 January 2007 in the Federal Magistrates Court in Maroochydore an ex parte Centrelink location order was made upon the application of the maternal grandparents.
On 27 July 2007 the proceedings between the parties were transferred to this Court at its Albury sittings.
On 21 September 2007 interim orders were made by consent which provided for the mother to have sole parental responsibility for the child; that the child live with her and that the maternal grandparents may write to and send gifts to the child. An independent children’s lawyer was appointed.
On 11 December 2007 orders were made by consent whereby Dr W, child psychiatrist was appointed as single expert for the purpose of the single expert’s report.
On 28 April 2008 the proceedings were transferred to the Canberra Registry of the Court for hearing.
On 21 August 2008 directions for the hearing were made.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in s.65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s.60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of its parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
Grandparents have specific considerations in relation to a child due to the 2006 amendments to the Act.
It is important to note that s.60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[2]
[2] B and B, ibid

Relevant matters pursuant to section 60cc

I make the following findings in relation to relevant matters that arise for consideration pursuant to s.60CC(3) in respect of which weight will ultimately be given for the purposes of the primary consideration of the benefit to the child of a meaningful relationship with her parents; similar consideration so far as the child and the maternal grandparents are concerned; and orders that are in the child’s best interests.
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[3]
[3] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Fortunately, the second primary consideration is not relevant in these proceedings.[4]
[4] Section 60CC(3)
Consequently, I propose to make findings of fact in relation to matters that are signposted in s.60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Views expressed by the child and other relevant factors

This consideration arises in relation to the views that the child may have expressed for the purpose of spending time with both or either of the maternal grandparents or otherwise communicating with them. There was scant, if any, evidence in relation to the latter.
There was evidence given by each of the maternal grandparents directly or indirectly which suggests that the child has expressed views of enjoying and presumably wanting to spend periods of time with them in contrast to the evidence of the mother that the child has expressed a view resisting the prospect of spending time with them.
Independent expert evidence was given by Ms J, psychologist and Dr W, child psychiatrist. Dr W’s evidence is contained in his Report dated 24 May 2008 which became Exhibit 1. Ms J’s evidence is contained in her Report dated 20 September 2007 being annexure “B” to her Affidavit sworn 2 September 2008.
Ms J conducted interviews and formal assessments with the parties and the child on 6 September 2007. Her conclusions were that the child had a strong positive relationship with both the mother and her husband. Ms J concluded that “whilst [the child] interacted well with her grandparents during the observation period it was no more warmer than she had been reacting with me (a stranger) during the day”. Ms J also expressed the opinion that testing which had shown a negative response by the child towards the maternal grandparents seemed to be as a result of information learnt from the mother, rather than from the recollection of any particular event that may have upset her. Ms J noted that the child “reported some quite positive memories of being with her grandparents”.
Ms J concluded that:
“…whilst the mother is not quite deliberately influencing [the child] it is likely that the grandparents have been discussed in a negative way in front of her and that she is being influenced by this and by the high level of distress this is causing her mother. It is likely that [the child] will act in a way to protect her mother who she has a strong relationship with. Continual conflict between [the mother] and [the grandparents] is likely to result in [the child] forming a more negative relationship with them.”
Ms J was not required for cross-examination. I accept the evidence contained in Ms J’s report.
Expert evidence was given by Dr W. His evidence was more contemporary than that given by Ms J as the interviews with the parties and the child as well as with the mother’s husband took place during May 2008. Dr W’s Report is dated 24 May 2008 and is Exhibit 1. Dr W also gave oral evidence before me.
In Exhibit 1, Dr W expressed the conclusion that the child reflected the mother’s position that implicitly she did not want to spend periods of time with the maternal grandparents. Dr W qualified that conclusion by stating “there was some behavioural evidence of ambivalence towards her grandparents and some retained positive feelings”. He further stated that although the child is “quite a bright child”, in view of her age and having regard to the issues in the case her qualified wishes should carry relatively little weight.
I accept the evidence of Dr W. I find that the child’s views are qualified in that so far as spending periods of time with the maternal grandparents she has negative views in that regard although qualified by some “positive feelings” in relation to them. In addition, I find that the child has been significantly influenced in her negative views towards the maternal grandparents due to the admitted and strong antipathy that the mother has for the maternal grandparents and the impact that has had upon the child, especially in circumstances where the child has a close attachment with the mother.
I give more weight to the evidence of Dr W than that of Ms J as her evidence was aged.

The nature of the relationship of the child with each of the parties and other persons

There is no issue that the child has a loving close relationship with the mother and a fond and relaxed relationship with her husband.
There is little evidence with regard to the relationship that the child has with the mother’s brother and members of his family. There is an absence of any negative evidence in relation to them.
Ms J reported that whilst there were positive aspects to the relationship between the child and the maternal grandparents, that relationship was affected by the child’s very negative feelings towards them “strongly influenced by her allegiance to the mother and wanting to please her in circumstances where the mother had very adverse views and reactions towards the maternal grandparents”.
In Exhibit 1 Dr W concluded that on a historical basis, that is prior to the mother and child ceasing to live in N where the maternal grandparents were living, it was likely that the child “had a strong and secure attachment to her grandparents and indeed she may have seen them as her primary carers”.
Dr W further expressed the view that based on his interview for an assessment of the child that there were mixed aspects to her relationship with the maternal grandparents reflecting “an understandable ambivalence and remaining positivity about her grandparents”.
Dr W also concluded that whilst the child’s relationship with the mother was a solid and good one there was some evidence “of residual attachment to her grandparents and even at this late date, it is probable that this would be sufficient for her to resume a reasonably satisfactory relationship with them under the right circumstances”. {emphasis added}
Dr W considered that the mother’s behaviour had been the “major factor” leading to the alteration in the child’s attitude towards the maternal grandparents. That was based upon the mother’s active role in preventing the child from spending any time with the maternal grandparents and the child “being exposed to a great deal of inappropriate anxiety and hostility about the grandparents which has undermined her relationship with the maternal grandparents at an age when her capacity to objectively evaluate what her mother is saying is quite limited”.
Dr W’s oral evidence was consistent in all material respects with Exhibit 1.
I accept Dr W’s evidence and find that the child has essentially a negative relationship with the maternal grandparents qualified by some positive aspects, and further that the negative elements of the relationship have been strongly influenced by the mother’s negative views about the maternal grandparents and opposition to the child spending time with them, supervised or not.

The willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother and the maternal grandparents

It is clear that the mother is adamantly opposed to the child spending any periods of time with the maternal grandparents supervised or not.
The maternal grandparents contend that they want only the best for the mother and the child. They stated that they only wanted to spend time with the child to support her and give her the benefit of their love and assistance. I accept the maternal grandparents’ evidence in that regard. However, there are issues regarding the impact of that approach in terms of the relationship between the child and the mother to which subsequent reference will be made.

The capacity of the parties and the mother’s husband to provide for the needs of the child

There is no issue that the parties have the capacity to provide for the physical and intellectual needs of the child as does the mother’s husband.
The capacity of the mother and the maternal grandparents to provide for the emotional needs of the child lie very much at the heart of these proceedings.
The mother vehemently rejects the maternal grandparents. The strength of the mother’s opposition to them spending any time with the child and preferably not having any communication with the child is not in doubt. Nor does the mother refute the allegation that the child is aware to her attitude towards the maternal grandparents and has become negatively influenced against the maternal grandparents. These matters must be seen in the context of:
(a)the mother’s health history,
(b)the maternal grandparents’ relationship with the mother,
(c)the maternal grandparents’ attitude towards the mother, and
(d)the maternal grandparents’ manner of relating to the child.
The mother has had a troubled history in her relationship with the maternal grandparents. That has developed due to a number of factors. From the time of the mother’s early teenage years to early 2004, the mother increasingly used illicit drugs and consumed alcohol to the point of bouts of binge drinking. The mother’s relationship with the maternal grandparents became complicated particularly with the maternal grandfather. The complexity of the mother’s relationship with the maternal grandparents was such that she loved and idolised them, yet increasingly resented and rejected the control which she perceived the maternal grandparents were trying to impose upon her. That was particularly so in relation to the maternal grandfather. In effect, the mother deeply resented his failure to give her privacy as well as his authoritarian attitude towards her. There is no dispute that for many years the maternal grandfather was often intoxicated in the house. The mother claimed that the maternal grandfather was verbally abusive towards her and that one occasion struck her leaving her with a black eye.
Having heard the maternal grandfather’s disparaging remarks about the mother at every opportunity whilst giving his oral evidence, I accept the evidence of the mother in relation to those matters and make findings accordingly.
A part of the complex historical relationship between the mother and the maternal grandparents is that they have been supportive of the mother and the child from the child’s birth to mid 2004. The maternal grandparents cared for the child extensively during that time, especially when the mother was suffering the effects of substance abuse and encouraged and joined with the mother in establishing herself with the child in a new environment in N with the maternal grandparents commencing in about mid 2003. That was against a background of the mother being hospitalised for depressive illness and/or substance abuse. Unfortunately, the relationship between the mother and the maternal grandparents soon deteriorated due to a combination of the mother’s resentment to interference (as she saw it) by the maternal grandparents with her parenting role of the child and the personality (and on one occasion) serious physical conflict between the parties, the effects of the mother’s depression and alcohol abuse. The parties’ relationship deteriorated to the point where the police were called and the mother voluntarily admitted herself to hospital. The mother was discharged on the same day.
The mother and the child left N in mid 2004 and moved to a nearby area. The mother has subsequently facilitated the child spending time with the maternal grandparents in Brisbane and other places. Further disagreements developed between the mother and the maternal grandparents and attempts at mediation failed.
In 2005 the mother met her husband and their cohabitation provided a stable influence on the mother’s life which has continued to the present time.
There is no dispute in relation to the evidence which I have summarised. I find that the mother has the capacity to provide for the emotional needs of the child in all respects, except for her inability to shield the child from the antagonistic attitude she has towards the maternal grandparents who she refers as “them”. The harmful effect upon the child in terms of the pressure that has been created, is clear from the evidence of Dr W.
The maternal grandparents undoubtedly love the child. However, the intensity of their interaction with the child and the lack of recognition of how overwhelming this is for the child as observed by Dr W referred to in Exhibit 1, demonstrates a lack of insight on their part, no matter how unintentional that may have been.
The undisputed evidence of substance demonstrates that the mother’s husband has the capacity to provide for all of the child’s emotional needs.

The child’s age and maturity

The child has the maturity commensurate with a child of her age.

The practical difficulty and expense relating to time which the child may spend with the maternal grandparents

There is obvious practical difficulty and expense in a child spending time with the maternal grandparents given that they live in Sydney and the mother and her husband live in H, in southern New South Wales. However, those matters can be overcome by appropriate arrangements to meet at a halfway point between those two places.

Other relevant matters

No other matters arose for consideration in accordance with s.60CC(3) as was made clear from the submissions by competent counsel.

Conclusion

I have reluctantly determined that it is not in the child’s best interests for there to be an order that the child spend periods of time with the maternal grandparents. My reasons are as follows.
The past history of care by the maternal grandparents was a positive one and for the benefit of the child as well as the mother. As previously referred to, in the early years the maternal grandparents were intensely involved with the care of the child in circumstances where had such care not been available the child might have suffered due to the history of substance abuse by the mother.
The increasing dispute between the mother and maternal grandparents has continued where the mother has had escalating resentment at what she perceives to have been the maternal grandparents’ refusal to follow the boundaries of the care of the child set by the mother, such as the type and quantity of food provided to the child, clothing, and the maternal grandfather allowing the child to call him “daddy”, as well as the physical display of affection shown by the maternal grandfather. That dispute has been extensive and has had added emphasis against the historical background of the mother’s resentment of the maternal grandparents marginalising her role as a parent.
The mother’s antagonistic attitude towards the maternal grandparents has developed as a result of those matters and her fear that they will continue to act in that manner towards the child, regardless of her wishes. Indeed, there is substance to the mother’s fear given the history earlier referred and the maternal grandfather’s oral evidence that he would not change anything in the manner in which he has cared for and supervised the child as well as attending to the child’s needs.
I accept the maternal grandfather’s evidence and find that the mother’s anxiety of the manner of control by the maternal grandparents, oblivious to her wishes, with regard to the periods of time the child spends with the maternal grandparents has real substance.
The mother’s attitude towards the maternal grandparents has reached the point where it is unhealthy for both her and especially the child given the mother is the child’s primary carer. The mother has felt demeaned by the maternal grandfather and referred on more than one occasion of him having said to her “I have to love you as you are the mother of my child”.
In relation to the desirability and effect of the maternal grandparents spending time with the child there was helpful expert evidence provided by Dr W in Exhibit 1, page 28. Dr W stated as follows:
“There seemed to me to be three possible findings which the court might make. Firstly, they may find that the mother continues to have problems with drugs and alcohol. Secondly, they might find that the mother has no problems with drugs and alcohol now and the risk of relapse is negligible. Thirdly, they might find that she is free of drug and alcohol problems now but there is a discernible risk of relapse. The maternal available to me would incline me towards the third conclusion.”
Dr W then proceeded to make the following notation on the basis of which he put forward a recommendation described as “the safest solution”. The matter which Dr W noted was as follows:
“I have noted above that apart from [Mr Lindgren], [the mother] has no reliable family supports for her parenting and if she does have a relapse in her emotional state and particularly if [Mr Lindgren] is no longer on the scene [the child] would be in an unenviable position. It is my view that the safest solution would be for [the child] to be able to re-establish her relationship with her grandparents along manageable lines in order for an alternative family to be available. In my view this could be achieved by two one week blocks of contact per year.”
As Dr W conceded during the course of his oral evidence, that his recommendation was based upon the factual platform to which I have referred. In the event that the facts are found to be contrary to that platform then Dr W’s recommendation would need to be revisited.
My findings have been that the mother does not at present have problems with drug and alcohol abuse. Indeed, it was never suggested to the mother during cross-examination that she has any of such problems or that her manner or style of living suggests she has or may have such problems. In addition, I find that the mother and her husband have a stable marriage and lifestyle.
The mother and her husband have operated a business owned by them for a considerable period of time. There is no evidence to suggest that there have been any difficulties in the operation of that business which were or may be related to any substance abuse by the mother. There is no evidence of the mother having been engaged in any anti-social behaviour.
The child has developed well in the mother’s care. In my view, the possibility of the need for reliable family support does not arise given the stability and strength of the mother’s relationship with her husband, and the husband for his part having an undoubted capacity to provide for the child’s physical, emotional and intellectual needs, as well as being supportive of the mother in all aspects of her health and otherwise.
During the course of his oral evidence, Dr W stated that:
“If the court was satisfied that the mother has turned the corner then the risk of contact unsettling her may outweigh the benefit of seeing the grandparents. Distress to the mother is such that it is her parents who have this attitude towards her. It is presently damaging to her. Whether it will be in the future is not clear and depends on various scenarios.”
As a consequence of my findings, I have concluded that there is no need for “backstop” in accordance with Dr W’s oral evidence. It is my opinion that there is support for and there is a benefit to the child of maintaining a meaningful relationship with the mother free from anxiety. That anxiety is only likely to be perpetuated and perhaps increased as a result of increased periods of time that the child may spend with the maternal grandparents as well as any oral communication with them such as by telephone. Whether the basis for that anxiety is irrational or exaggerated is irrelevant. There is no evidence other than that the anxiety is genuine and is not one of manipulation or exaggeration for the purpose of the litigation which unfortunately has continued between the mother and the maternal grandparents.
In Exhibit 1, Dr W stated that:
“It could be argued that this referring to periods of time between the child and maternal grandparents could cause the mother too much anxiety and that her capacity to parent in the meantime would be compromised. While I accept that this might be the case this does need to be balanced against the level of risk that the child perceives the mother’s emotional state may deteriorate to the point that the grandparents would need to be available for [the child].”
During the course of his oral evidence, Dr W stated that without the need for a backstop he could not recommend that there be time to be spent with the maternal grandparents.
In my view, the matter which determines my conclusion is that the mother has the deep-seated anxiety to which reference has been made, and that she has an entrenched resentment towards the maternal grandparents who the mother made clear she has disowned, and that the mere prospect of there being time where the child might spend with the maternal grandparents has induced a reaction of the type categorised by Dr W as similar to a “panic attack”.
The question of counselling for the mother was raised with Dr W, as well as counselling for the maternal grandparents. The mother recognised and stated, which I accept, that she does need counselling and will seek it. It is clear on Dr W’s evidence, which I accept, that the maternal grandparents also need counselling. It would be rather ironical and somewhat perverse that on the basis of the mother and the maternal grandparents having counselling, the child should continue to spend periods of time with the maternal grandparents and that for reasons which may defy rational thought that was somehow for the child’s benefit.
The reality must be faced that the child is in the primary care of the mother and her husband. The child has progressed well. The mother in turn has also progressed well. The mother has the anxiety and resentment to which I have referred. There is no reasonable basis for assuming that once periods of time have commenced with the maternal grandparents that that anxiety and resentment with consequent pressure upon the child would dissipate. It would amount to experimenting with the child’s emotional reactions by ordering that periods of time be spent by her with the maternal grandparents. In my view, that cannot be in the child’s best interests.
I recognise that this whole litigation and the issues that have been raised are extremely painful for the maternal grandparents from their perspective as they have had a history of providing unconditional love and support for the child at a time when the mother was particularly vulnerable. However, events have changed dramatically since those days. The mother’s mental health and emotional disposition to which I have referred has deteriorated so far as her relationship with the maternal grandparents. Yet, on the other hand there have been many positive aspects which may not have been contemplated some years ago. They are represented by the mother’s stable marriage, the conduct of a demanding business, the excellent development of the child in her care, and the fact that it appears on the findings made that she has turned around her life with the substantial assistance of her husband. Therefore, it is in my view that the child’s best interests are served by the mother’s care and supervision which should not be disturbed and that any risk of doing so should be avoided, notwithstanding the sad effect it may have upon the maternal grandparents.
An issue was raised in relation to communication through letters and cards from the maternal grandparents. Necessarily, that would involve a vetting of the content of such correspondence from the mother so as to allay any anxiety that she may have on the basis that there was a perceived inappropriate comment or statement in such correspondence. The very nature of having to carry out such a vetting on a subjective basis creates a platform for yet another dispute between the mother and the maternal grandparents, let alone whether such correspondence was passed on by the mother to the child.
As a result, I have concluded that such a potential dispute needs to be avoided in the best interests of the child. Consequently, I will not make the order as sought.
So far as school reports are concerned, the issue raised was whether or not it was in the child’s best interests for copies of school reports and newsletters to be provided by the Principal of the school to the maternal grandparents or by the mother to them. In addition, an issue was raised as to whether or not it was appropriate in those circumstances for an injunction to be granted restraining the maternal grandparents or either of them from approaching or communicating with the Principal or any staff member of the school.
On the face of it, provision of copies of school reports and newsletters appears to be desirable. However, upon further reflection I have concluded that it is not in the child’s best interests to do so. My concerns are that the maternal grandparents have an intense approach to matters affecting the child. From the maternal grandparents’ viewpoint they would claim that they have good reason for doing so. However, the maternal grandfather in particular appeared to be one who would readily jump to conclusions of an adverse basis with regard to the mother, notwithstanding that he does not possess current facts which would support such conclusions. Examples are that the maternal grandfather considered that the mother and her husband’s business was unlikely to be run in a financially viable way, that the mother perhaps continued to be engaged in substance abuse, and some years ago she was engaged in prostitution when he had no evidence of real substance to support any of those matters.
The maternal grandfather’s emphasis and focus on possibly finding matters to criticise the mother as demonstrated by his oral evidence are matters of concern. It seems to me that in the event that the maternal grandparents and particularly the maternal grandfather found a matter which he or they considered to be of criticism or concern in any of the school reports of the child, that would possibly lead them to an irresistible need to communicate either directly or indirectly with the school via the staff. Therefore, that may provoke not only an invasion of the care of the child by the mother, but necessarily lead to an escalation of the adverse relationship that the mother has with the maternal grandparents.
The making of an injunction in those circumstances would not only be demeaning, but might in fact then lead to the possibility of further litigation in view of alleged possible breaches of the injunction.
On balance, I have concluded that it is not in the child’s best interests for copies of school reports or newsletters to be provided to the maternal grandparents from any source and that the matter is not assisted in a positive way by the granting of an injunction.
So far as gifts are concerned, it became clear in the evidence that a methodology for such gifts to be provided was acceptable to all concerned. That reflected the mother’s husband providing an email list of appropriate gifts to the maternal grandparents for the child’s birthday and/or Christmas and then it would be a matter for the maternal grandparents as to whether they decided to purchase any gift reflecting that list and forwarding it to the mother.
I will make an order to enable that process to be followed.
With regard to the issue of further counselling for all of the parties, I have considered that it is a matter for each of them as to whether they do so or not. Clearly, if the parties do undertake counselling and it is beneficial, then it may one day lead to a reproachment so far as their relationship is concerned.

In the hope that the parties may eventually be able to find some basis for a reconciliation and put past difficulties between them, they are then of course free to make their own arrangements for such periods of time that the child might spend with the maternal grandparents. I will not make an order that restrains them from ever spending periods of time with the child. It would be a matter of whether or not agreement is eventually reached between the mother and maternal grandparents. Consequently, to emphasise such flexibility for the future an appropriate order will be made.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 25 November 2008

[2008] FamCA 1010

31 October 2008

Key Legal Topics

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Family Law

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Standing