Manning and Manning and Anor

[2008] FamCA 1159

FAMILY COURT OF AUSTRALIA

MANNING & MANNING AND ANOR [2008] FamCA 1159

FAMILY LAW – CHILDREN – Contest between parents and paternal grandmother – Parents concede to grandmother – Specific issues

APPLICANT: Ms Manning

FIRST RESPONDENT: Mr Manning

SECOND RESPONDENT: Ms Tenina

FILE NUMBER: BRC 2457 of 2007

DATE DELIVERED: 18 November 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 17 & 18 November 2008

REPRESENTATION

THE APPLICANT: The Applicant appeared on her own behalf

THE FIRST RESPONDENT: The First Respondent appeared on his own behalf

COUNSEL FOR THE SECOND RESPONDENT: Ms Martin

SOLICITOR FOR THE SECOND RESPONDENT: Gary S Rolfe Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED BY CONSENT

1. That the children, T born … February 2003 and M born … April 2005, live with the Paternal Grandmother, Ms Tenina.

IT IS FURTHER ORDERED

1. That the Paternal Grandmother have sole parental responsibility for the said Children.

2. That the said Children spend supervised time with and communicate with the Father at all times as may be agreed between the Paternal Grandmother and the Father but failing agreement for four (4) hours once per week, to be supervised by any of the following:

   3.1    the Paternal Grandmother;

   3.2    the Paternal Grandfather;

   3.3    the Paternal Aunt, Ms W.

3. That the said Children spend time with and communicate with the Mother at all times as may be agreed between the Paternal Grandmother and the Mother but failing agreement as follows:

   4.1supervised for two hours once per fortnight on a Saturday at the C Contact Centre at times to be nominated by the Contact Centre, with the costs of the Contact Centre to be shared equally between the Paternal Grandmother and the Mother, but with the Paternal Grandmother’s share to be limited to $20.00 or half the costs, whichever sum is the lesser;

   4.2on the following special occasions, to be supervised by the Maternal Aunt, Ms P, at the following times:

   4.2.1     Christmas Day for a period of four (4) hours;

   4.2.2     Easter Sunday for a period of four (4) hours;

   4.2.3     Mother’s Day for a period of four (4) hours;

   4.2.4on the following birthdays, or on the nearest weekend should either of the children have school commitments:

   4.2.4.1      both children’s birthdays for a period of four (4) hours;

   4.2.4.2      the Mother’s birthday for a period of four (4) hours;

   4.2.4.3both Maternal Grandparent’s birthdays for a period of four (4) hours.

4. That in relation to Order 4.2 above, the Paternal Grandmother deliver the said Children to McDonald’s, M, at the commencement of the time to be spent with the Mother and collect the said Children at McDonald’s, K, at the conclusion of the time spent with the Mother.

5. That each party keep the other parties informed of their residential address and inform the other parties in writing within 48 hours of any change of address and the Paternal Grandmother and the Maternal Aunt, Ms P, exchange contact telephone numbers.

6. That the said Children’s educational facility and medical practitioners are authorised to communicate directly with all the parties on any matters concerning the said Children and to provide copies of any reports or other written information available pertaining to the said Children, including but not limited to medical appointments and treatment, and any associated costs are to be borne by the party making the request.

7. That all parties immediately inform the other parties of any medical emergency and/or serious injury involving the said Children.

8. That all parties communicate about issues concerning the welfare and development of the said Children and any proposed changes to the time arrangements by way of a communication book which will travel with the said Children.

9. That each of the parties be restrained from denigrating any other party or any member of their family in front of the said Children, or expose the said Children to anyone else so doing.

10. That the Paternal Grandmother be at liberty to provide copies of these Orders to the said Children’s day care centres, treating medical practitioners, the C Contact Centre and the named supervisors.

11. That the Independent Children’s Lawyer be discharged from these proceedings.

12. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATIONS:

1. That in accordance with Order 3 above, it is the intention of the parties that, provided the Father’s time with the said Children be supervised, then that time should be maximised in order to ensure the said Children spend optimal time with their Father, provided it is understood that the Father does not reside with the Paternal Grandmother full time.

2. That it is hoped that, should the Mother and Father successfully address their health problems, the parties might reach agreement to extend the time the said Children spend with each of their parents and that the parents might ultimately be consulted about matters relating to major decisions affecting the said Children’s welfare and about parental responsibility matters.

3. That in relation to the terms of Order 6 above, it is understood that the Maternal Aunt Ms P is not at liberty to disclose to the Mother the telephone number of the Paternal Grandmother.

4. That the communication book is to be used for child focussed purposes only and not to be used to exchange any derogatory or malicious comment between parties.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2457 of 2007

MS MANNING

Applicant

And

MR MANNING

First Respondent

And

MS TENINA

Second  Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. As I have indicated in another context yesterday, the parties have reached agreement about the immediate living arrangements for the children of the relationship, T, born in February 2003 and M, born in April 2005. 

2. The children have been residing with their paternal grandmother, Ms Tenina, since September of 2006, in large part because of the health problems being experienced by each of their parents who appear in these proceedings. 

3. The mother sought an adjournment of these proceedings yesterday and it was refused for the reasons I have given.  The parties then entered into negotiations and I was informed that they had reached agreement about most of the matters relating to the children's living arrangements and future specific issues between the parties.

4. In addition to being handed a document yesterday which was signed by the parties, the mother has informed me on a number of occasions that, as difficult as this decision has been for her, she is convinced that it is currently in the children's best interests to live with the paternal grandmother and that it is an arrangement that best suits their welfare.

5. She has, in the process, acknowledged that she has made mistakes in the past and that she needs to address her health for the future in the hope that, one day, she may be able to play a fuller role in her children's lives.

6. The matters that have not been agreed and have been the subject of submissions relate to parental responsibility and supervision and one or two other incidental matters. 

7. As to parental responsibility, neither the father nor the mother really raised any strong arguments against that.  The mother again affirms that it is a difficult concept for her to accept, but the reality is, in this case, for the reasons I highlighted during the course of my judgment on the adjournment application, reasons which I do not see any need to repeat, that unfortunately the parents are currently in a situation where their time with their children will be quite limited and, for the time being, supervised, and the evidence is very clear, both from a medical point of view and from the point of view of the history between the parties and their inability to readily communicate, that there is no other viable option in this case, other than to have the paternal grandmother not only look after the children on a day-to-day basis, but that she have the sole parental responsibility to make the decisions necessary for their care.

8. Again, I reiterate that it is to be hoped that, at some time in the future, the parents may be able to be more directly involved in issues relating to parental responsibility.

9. On the question of the supervision of the father's time with the children, the proposals of the paternal grandmother are that that time should be supervised by herself, by the paternal grandfather or the paternal aunt, Ms W.  I have heard from each of the witnesses.  I am satisfied that they now have an appreciation of the nature and extent of T’s difficulties, that they understand their obligations as a supervisor and that they would take them seriously and, in the circumstances, I do not have any reservation about making order 2.

10. Order 3 relates to the mother's time, which is to include some time at the C contact centre once per fortnight for two hours and on other special occasions supervised by the maternal aunt, Ms P.

11. The paternal grandmother is not opposed to the contact on special occasions as a matter of principle, however, she asks that this Court impose a pre-condition to the times set out in sub-par (b), to include an order that the mother not be able to take up such contact until such time as she has submitted to treatment and complied with treatment designed to address her current health problems.

12. For the reasons that I share with the Independent Children's Lawyer and will shortly identify, the Independent Children's Lawyer does not support that pre‑condition.  I accept the legitimacy of the paternal grandmother's concerns and the legitimacy of the proposition she advanced to the Court.  The difficulty in this case, like all cases, is that it is a question of balance, of weighing the risks of the proposed orders against the advantages inherent in them.

13. In this case, the children have a right to know their mother and a right to spend time with their mother.  Regrettably, in this case the unusual circumstances surrounding it mean that, for the time being, that time will be very, very limited to a couple of hours a fortnight and a few hours on some special nominated occasions per year.  I am satisfied that it is in the children's best interests to have that opportunity, as precious little as it is. 

14. I acknowledge that, in the absence of submissions as to appropriate treatments, there would potentially be some risks, on the medical evidence, of the type of contact proposed by and on behalf of the mother as supervised by the maternal aunt.  However, in my view, having heard the evidence of the maternal aunt, she also understands her obligations.  She was brutally frank in her evidence and volunteered information about concerns she had about the mother, difficulties she has had with the mother, and indeed it emerged that they had had a falling out over the very question of supervision.  The maternal aunt seems to understand the obligations, takes them seriously and has an insight into her sister's problems, and I have no reservation in accepting the proposition that she would, at all times, put the interest of these young children above her relationship with her sister.

15. Secondly, there have been a number of very significant developments during the course of this case which are to be distinguished from the history prior to trial.  Most fundamentally, the mother has, I accept, with a great deal of difficulty, moved from a position where she was contesting the day-to-day living arrangements, suggesting that the children should live with her, where she was mounting a case of complete criticism of the paternal grandmother and one where she seemed to live largely in denial of her own problems, to a position where she has said before me that she acknowledges that the paternal grandmother is caring for her children very well. 

16. She acknowledges that she has made many mistakes in the past and that she is in need of help for the future and, most importantly, she has conceded to the paternal grandmother to have the day-to-day care of her two young children who mean so much to her.

17. They are not only significant concessions, they are concessions which one would hope and expect paint a more positive future.  Once the mother has addressed those major decisions in her life, she has every incentive in the world to avoid the mistakes she has made in the past and seek the very help that may stand her in the best possible stead for being able to spend more time with her children in the future.

18. She would be well aware that any repetition of the major mistakes that she has made in the past, including trying to wrongfully remove the children from her sister, would not only be harmful to her children but would be very harmful to her prospects in the future of being able to play a more meaningful role in her children's lives.

19. Accordingly, with the combination of my acceptance of the maternal aunt as a suitable person to undertake the responsibilities of supervision and my acknowledgement of what the mother has addressed during the course of this trial, has convinced me not that there are not any risks, but that, on balance, the benefits that would flow from these children being able to spend these special occasions, or part of them, with their mother, outweigh the risks identified by the paternal grandmother.  So I do not propose to impose any pre-conditions upon the mother being able to spend Mother's Day, part of Christmas Day and Easter Sunday and the children's birthdays with her children.

20. The paternal grandmother has taken on a significant burden in this case in the past and she has now committed to that in the future.  Others are doing the same; the maternal aunt and, potentially, the paternal grandfather and the paternal aunt from time to time.  These special occasions are only a handful of occasions per year.  Everyone has limited financial capacity and many of the days in question are likely to be public holidays and I see some advantages in the handovers being at McDonald’s.

21. Again, I am very encouraged by the positive acknowledgements of the maternal aunt, an acknowledgement of the fine job that the paternal grandmother has done, and it can be hoped in the future that the maternal aunt and the paternal grandmother can develop the capacity to communicate and facilitate these handovers.  However, in the circumstances, I think it is appropriate that there be a sharing of the handovers and that they occur at McDonald’s at M at the commencement of each of these handful of special occasions and that the paternal grandmother collect them at the K McDonald’s at the conclusion of those periods.

22. As to the costs, again, all the parties are struggling financially.  I have determined that it is in the children's best interests to spend some limited time with their mother and the burden, in my view, again is to be shared.  It is part of the burden and responsibility imposed upon the paternal grandmother.  She is at least receiving some modest financial support from the mother in the form of $50 per fortnight.  The order I propose is that she will be required to apply $20 of that to meet half of the costs of the fortnightly contact at the contact centre and the mother will have to meet the other half from her remaining limited resources.

23. I propose that order 1(a) will be in terms of the draft; order 1(b) will be that the paternal grandmother have sole parental responsibility for the children, and then there will be a second notation after the existing one that it is to be hoped that, should the mother and father successfully address their health problems, the parties might reach agreement to extend the time the children spend with each of their parents, and that the parents might ultimately be consulted about matters relating to major decisions affecting the children's welfare and about parental responsibility matters.  I wish to make it clear that, unless there is agreement, the paternal grandmother retains that sole responsibility.

24. A third notation will be that, in relation to the terms of para 4 of these orders, it is understood that the maternal aunt is not at liberty to disclose to the mother the telephone number of the paternal grandmother.

25. As I have noted on the way through, I believe that covers the matters in issue.  In relation to the pick-up and collection, that will be a new order, number 9, and the current order 9 will become number 10, and there are those three notations now.

RECORDED : NOT TRANSCRIBED

1. Also, that the paternal grandmother be at liberty to provide copies of these orders to the children's schools, day care centre, treating medical practitioners, the C contact centre and the named supervisors.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  13 January 2009