Marshall and Anor and Stellini
[2010] FMCAfam 825
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARSHALL and ANOR & STELLINI | [2010] FMCAfam 825 |
| FAMILY LAW – Application for maternal grandparents to spend time with seven year old twin grandchildren – dispute as to how much time to be spent – mother not biological mother of children – mother dying after she and children living with grandparents – consideration of family report. |
| Family Law Act 1975, s.60CC |
| Applicants: | MR MARSHALL & MS MARSHALL |
| Respondent: | MR STELLINI |
| File Number: | MLC 3510 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 17 & 18 June 2010 |
| Date of Last Submission: | 18 June 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 11 August 2010 |
REPRESENTATION
| Counsel for the Applicants: | Ms Smallwood |
| Solicitors for the Applicants: | Pearsons Barristers & Solicitors Pty Ltd |
| Counsel for the Respondent: | Dr Alexander |
| Solicitors for the Respondent: | Kelly & Associates Family Lawyers |
ORDERS
Any submissions to be made by the parties as to costs be filed and served on or before18 August 2010 with any reply thereto to be filed and served on or before 25 August 2010.
The children [X] and [Y] both born in 2003 (“the children”) spend time with Ms Marshall and Mr Marshall (“the maternal grandparents”) as follows:
(a)Each Wednesday during school term from the conclusion of school at 3.30 pm until the commencement of school Thursday morning.
(b)Each alternate weekend during school term from the conclusion of school on Friday at 3.30 pm until 6.30 pm on Sunday.
(c)Half of term school holidays as follows:
(i)From the conclusion of school on the last day of school term until 6.00 pm on the Saturday in the middle of the school term holidays in 2010 and all even years; and
(ii)From 6.00 pm on the Saturday in the middle of the school term holidays until the commencement of school term in 2011 and all odd years.
(d)Half of the long summer holidays as follows:
(i)From the conclusion of school on the last day of school year until 6.00 pm on the midpoint of long summer holidays in 2010 and all even years; and
(ii)From 6.00 pm on the midpoint of the long summer holidays until the commencement of school year in 2011 and all odd years.
(e)Christmas day from 10.00 am to 2.00 pm in all odd years.
(f)New Year’s Day from 10.00 am until 2.00 pm in all odd years.
(g)On the children’s birthdays from 10.00 am until 2.00 pm if the birthday falls on a weekend.
(h)That the time the children spend with the maternal grandparents be suspended as follows:
(i)Father's Day from 10.00 am until 6.30 pm;
(ii)On Christmas day in even numbered years from 10.00 am until 2.00 pm; and
(iii)On New Year’s Day in even numbered years from 10.00 am until 2.00 pm.
(i)Other times as agreed between the parties.
The maternal grandparents collect the children at the commencement of their time with the children and the father collect the children at the conclusion of the time with the children save and except for Wednesdays and alternate Fridays when the maternal grandparents will collect the children from school and return them to school the following morning.
The maternal grandparents have liberal telephone communication with the children as agreed or failing agreement:
(a)Monday at 6.00 pm for up to fifteen minutes;
(b)Thursday at 6.00 pm for up to fifteen minutes; and
(c)The father provide a landline telephone number to be used for the purposes of the telephone communication.
If the father or his partner are unable to care for the children for a period of more than six hours, then they are to offer that the children spend time with the maternal grandparents prior to arranging any external childcare.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Marshall and Anor & Stellini is approved pursuant to s.121(9)(g) of the family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3510 of 2009
| MR MARSHALL & MS MARSHALL |
Applicants
And
| MR STELLINI |
Respondent
REASONS FOR JUDGMENT
Introductory
The issue in this case is how much time the twins, [X] and [Y], born in 2003, spend with their maternal grandparents, Mr and Ms Marshall, who are the applicants.
The respondent father proposes that the children spend time with the grandparents every alternate weekend in a cycle which is essentially a Saturday on one week, and a Saturday to Sunday on the second.
The grandparents seek that the children spend every second weekend with them from conclusion of school Friday until 6.30 pm on Sunday.
Similar differences are set out in the regimes proposed by the parties for holiday time, with the grandparents wanting more and the father proposing less.
For the reasons which follow, I have concluded that the proposals advanced by the applicant grandparents should be adopted.
The Facts
The respondent father was born in 1962 and is a [tradesman]. His former wife, Ms Stellini, was born in 1961. Ms Stellini died following a relatively lengthy period of serious ill health involving substantial times in ICU in 2009, at which time she was 48 years of age.
The applicant grandfather, Mr Marshall, was born in 1933 and is, therefore, presently 76 years old. His wife, Ms Marshall, was born in 1935 and is 75 years old.
Mr Stellini married Ms Stellini in September 2001, and they separated either in late 2004 as the grandparents have it, or in February 2005 as the father asserts.
Following separation, the children lived with their mother, Ms Stellini, in the house of the maternal grandparents where they continued to live until about a week after their mother’s death.
The father re-partnered with Ms M in 2005. Ms M’s affidavit deposes that, “I moved into [Mr Stelllini]’s home in September 2005.”
It is clear from the evidence as a whole that the relationship between Ms Stellini, and indeed her parents, and the father was poor. It appears to have got worse as Ms Stellini’s health deteriorated, but I suspect may have been poor for a considerable time. After all, Mr Stellini and Ms Stellini separated following only four years of marriage.
Although it is not necessary for these purposes to go in any detail into the nature of the relationship between Mr Stellini and Ms Stellini, I note that at paragraph 42 of the report of the family consultant, Dr O,
Dr O observed:
“Mr Stellini has very little insight into how he has contributed to the breakdown of the relationship breakdown (sic) between himself and Ms Marshall. He appears to believe that the breakdown was entirely due to Ms Marshall’s inability to live outside of her parent’s (sic) home.”
It is clear that Ms Stellini disliked Mr Stellini strongly. In her Will she provided that her parents should be the guardians of the children rather than that they should be taken into their father’s care.
Ms M gave what I consider to be credible evidence of an unpleasant incident, which I infer from what she said took place relatively shortly before Ms Stellini’s death, where Ms Stellini and her parents were both involved in a screaming match with the father.
It is also plain that Mr Stellini had to go to Court to get to see his children following separation, and the mother on one occasion contravened Court orders for the children to spend time with the father.
As already mentioned, Ms Stellini died in 2009. The children lived with their grandparents for a week and were thereafter voluntarily put into the care of their father and Ms M.
The father and Ms M clearly are perfectly capable of looking after the children, and the children’s school reports of the school they now attend suggest that they are coping with what are self-evidently very difficult circumstances.
Initially, Mr Stellini permitted the children to spend each Thursday after school with their grandparents, but in September 2009 he ceased this. This was bitterly resented by the grandparents. The children have continued, however, to spend each Saturday with the grandparents, but have been permitted only the briefest of overnight stays during the school holidays 2010.
Further problems have continued between the parties since the children started to live with the father and Ms M. These proceedings are the end result of those difficulties. Without traversing the evidence in detail, it is perhaps sufficient to say that the picture I have is that while Ms Stellini was alive, her attitude towards Mr Stellini meant that
Mr Stellini was always somewhat on the back foot with regards to spending time with his children. Now the boot is firmly on the other foot.
The issues raised as between the parties to justify their positions
Both the grandparents say that they very much wish the grandchildren to spend more time with them. They adore them, say they can look after them well while they are in their care and that it would be in the children’s best interest to continue seeing more of them, bearing in mind that the children lived with them for a very substantial period of their lives.
The father and Ms M point to a large number of alleged inadequacies and/or deficiencies in the way in which the grandparents care for the children, and problems that are said to arise from any extended period of time being spent with the grandparents, including overnight time.
In this regard, it should be noted that very late in the day, the father amended his position to include one overnight stay per four weeks. This late concession, while doing him credit, only goes to undermine significantly many of the criticisms that he and Ms M make of the grandparents as carers.
It was also put strongly by the father and Ms M that the grandparents, in particular Mr Marshall, were threatening and abusive and that they were scared of having any dealings with them.
The credit of the witnesses
Both Mr Marshall and Ms Marshall were cross-examined extensively. I do not propose to traverse their evidence in detail.
Mr Marshall is plainly a grandfather who adores his grandchildren. He answered questions directly, candidly and honestly. He was a witness of truth.
I accept his denials of any physical discipline upon the children while they have been in his care, either by himself or his wife. I accept that his health is sufficiently good, notwithstanding his age, for him to be able to care for the children to the extent that he does so.
The grandparents’ household is plainly a conservative one.
Mr Marshall says that his wife looks after the house and he looks after the outside, and I accept that that is so.
I also accept his evidence that he had not known, until Mr Stellini told him at mediation, that the two girls are not in fact the biological children of his daughter, Ms Stellini, but in fact, they were conceived with eggs donated by a friend of the father when it was discovered that Ms Stellini was unable, because of her ill health, to conceive.
The grandmother, Ms Marshall, was, likewise, a palpably honest witness. She candidly conceded some of the various health problems that she has, in particular blood pressure and cholesterol difficulties which are controlled by drugs. She concedes that she has arthritic knees and finds walking long distances difficult. I accept her denial that she has lupus.
I have no doubt that the grandmother will be well-able to care for the children while they are in her care.
I roundly reject all the criticisms made of the grandparents as carers of the children.
The father, Mr Stellini, gave evidence. The passage I have earlier quoted from Dr O’s report as to his lack of insight was, in my view, borne out by his evidence before the Court.
It is not going to be helpful in this judgment to deal in great detail with aspects of the father’s evidence that I found to be unsatisfactory. I should emphasise that I did not find him untruthful, rather lacking in insight and perhaps in compassion.
In particular, I point to the fact that he (putting the matter perhaps slightly more generally than he did) wants the children in effect to move on and get over the death of their mother. While this is, at one level of analysis a sensible long-term view, it fails to appreciate the impact on these children of the death of their mother at so young an age.
Indeed in his evidence he said words to the effect that he did not think that the death of the mother was as massive an issue as counsel put it to him. He went on to say words to the effect that the children at 5½ years old would not have as great an understanding of their mother’s death as counsel for the grandparents suggested. I do not agree.
I note that in paragraph 17 of his affidavit filed on 3 June 2010, the father complained about the amount of money provided to Ms Stellini in the property settlement between them in 2007. One would infer that he was asserting these moneys had been obtained in part by false pretences, and perhaps dissipated.
In oral evidence before the Court, the father made it clear that that is exactly what he suggested. He accused the mother of having obtained the figure of $270,000 by tricking the Court into believing she would buy a home when she had no intention of doing so.
I am sorry to say that I share the view expressed by Dr O at paragraph 79 of her report that:
“It is evident however, that to disclose the means of conception of the girls at round Table Dispute Resolution by Mr Stellini could serve no purpose other than to hurt Mr Marshall or be relayed out of spite or anger.”
I should make it clear though that those remarks made by Dr O immediately follow the following passage:
“Mr Stellini likewise presents as reasonable and genuine in his concerns about the girls.”
And I should make it clear that I accept that observation also.
Ms M gave evidence and was cross-examined. I have no hesitation in finding that she has been a good and loving mother to these two young girls who have suffered so tragic a loss. This is entirely to her credit.
Nonetheless, I found some aspects of her evidence extremely troubling. It is understandable that she should have a negative view of the applicant grandparents. She doubtless came into her relationship as the new woman with the father, and I have little doubt was treated less than optimally by both Ms Stellini and the grandparents.
Nonetheless, the extent of her disquiet about the grandparents, and
Mr Marshall in particular, seems to me on any reasonable objective view to be wildly exaggerated and extreme.
She has refused, and in the most adamantine terms, to endeavour to assist all these parties by being a first point of contact with the grandmother, Ms Marshall, who struck me as a placid and perfectly sensible woman.
She has gone so far as to in effect order her own teenage children, who live with her and Mr Stellini, not to speak to Mr Marshall on the telephone. Indeed the father resists phone calls being made on his landline by Mr Marshall.
Mr Marshall may on occasions have behaved less reasonably and sanguinely than he presented in Court, but I have no doubt that any lack of self-control that may have obtained in the past would be directly related, and understandably so, to the sort of emotions you would expect of a father with a daughter dying in effect in front of his eyes following a difficult separation from somebody from whom she had become estranged.
In passing, I would note that it seems clear beyond doubt that the excision of the father from a photograph, being exhibit R1, was clearly by Ms Stellini. Both grandparents denied being the perpetrator, and I accept their denials. It is far more probable than otherwise that this excision reflects the emotions of Ms Stellini herself.
The report and evidence of Dr O
I will return to the report shortly, but it is sufficient to say of Dr O that she gave her evidence in a very assured and believable way. She is a highly qualified professional in her field, and to the extent that her evidence was challenged (the father did not accept the report or recommendations), she resisted those challenges effortlessly.
It is sufficient to say that I found every aspect of Dr O’s report as credible as it was informative. At paragraph 56 and paragraph 60, she recorded the clearly expressed views of [X] and [Y] respectively to spend more time with their grandparents.
At paragraph 70 Dr O said:
“70. It would appear that there has been long term conflict and distrust between Mr Stellini, Ms Marshall and the Marshall family. There has been previous difficulty with compliance to orders and some mistrust between the parties prior to Ms Marshall’s death. Unfortunately, this is despite initial approaches by Mr Stellini to develop a “gentleman’s agreement” regarding the Marshall’s contact with [X] and [Y]. This relationship appears to have become further undermined by Mr Stellini taping conversations with Mr Marshall.
71. It is evident that both families have differing backgrounds, cultural and religious beliefs and ways of dealing with death and grief and parenting style. In the midst of their own grieving processes they appear to have been unable to clearly understand or accept the other party’s behaviour or manner of dealing with what has been, without doubt a highly stressful and emotional time.
72. In the process they appear to have become hyper-vigilant, looking for points of criticism and disagreement. The detail of which is however, unimportant and secondary to the best interests of the children. The children’s interests are best served by collaborative and supportive contact between the two family units.”
Dr O went on at paragraph 74 to suggest that:
“Both parties need to cease being hypersensitive to how the girls name places and persons and appreciate that this will change over time as the girls process and adjust to their new life circumstances and come to terms with their mother’s death. The highlight by the adults about these issues places harmful and unnecessary pressure on the girls. It seems likely that the adults are placing meaning to statements that are not relevant to the girls.”
Dr O went on to say at paragraph 76 that:
“It is imperative, having lost their mother, that they have the opportunity to continue a significant and substantial relationship with their grandparents who have in essence acted as primary caregivers for the majority of their six years.”
It should be noted that it was put to Dr O that the children had been coached before they saw her to say that they wanted more time with the grandparents and that Dr O roundly rejected any such assertion.
Although I have perhaps made this clear already, I accept the above conclusions of Dr O. Not only as I have said was Dr O a very impressive witness, but her observations entirely accord with the evidence as given before me and the conclusions that I have drawn from that evidence.
It should also be noted that in oral evidence, Dr O confirmed that the grandparents would send the children home if they were fretting.
She also said, however, that the bottom line is that the children need more time with their grandparents. This will assist them in processing the grief that they so naturally feel as to their mother’s death. She further said that more time with the grandparents was particularly necessary as a result of the negative attitude of Mr Stellini and
Ms M both to the memory of their mother and to the grandparents themselves. She said it was vital that the children maintain a connection with their mother.
Consideration of the matters raised by the Statute
Neither party suggested that there should be any order other than that the children continue to live primarily with the father and Ms M, and that the father have sole parental responsibility for the children.
There is no relevant issue raised in this case, bearing in mind the findings of fact I have already referred to, of any need to protect the children from family violence. They are not the subject of family violence in the father’s home, nor in that of their maternal grandparents.
This is not a case in which the grandparents are seeking equal time or substantial and significant time within the meaning of the Family Law Act 1975 (“the Act”). It is therefore a matter of considering the children’s best interests against the relevant matters in s.60CC(3) of the Act.
Section 60CC(3)(a) – The views of the children
The children are now seven years old. They have expressed clear views to Dr O that they wish to spend more time with their grandparents. I accept Dr O’s evidence that those views were not coached.
Subsection 60CC(3)(b) – The nature of the children’s relationships
The children clearly have good relations with their father and with
Ms M. They likewise quite clearly have excellent relationships with their grandparents, with whom they lived for some 4½ years. For part of this time, at least, the grandparents were the primary carers. Their relationship with their extended maternal family is not quite so clear, but there is no reason to doubt that it is good.
Subsection 60CC(3)(c) – The willingness of the parties to facilitate a relationship with the other party
Arguably this subsection is not relevant as the grandparents are, of course, not parents. Nonetheless, in the context of the circumstances of this case, in which the grandparents are to all effect parents, it is a relevant issue, whether it is considered under this subsection or under subsection 60CC(3)(m). It is clear that the grandparents do not seek in any way to usurp the primary caring role of the father and Ms M. It is, however, equally clear, unfortunately, that the attitude of the father and Ms M to the grandparents is less beneficent.
Subsection 60CC(3)(d) – The likely effect of any change in the children’s circumstances
I do not think that the children will be adversely affected by spending overnight time, as the grandparents seek, with them. The children lived with those grandparents for the majority of their lives and have a strong attachment to them. While it is true that there appear to have been some issues upon their return following time with their grandparents, whether overnight or otherwise, in my view this owes more to the hypervigilance described by Dr O than to anything else.
Subsection 60CC(3)(e) – The difficulty and expense of spending time
The maternal grandparents live within 30 minutes driving time from the home of the father. Both parties are well-able to afford such expenses as are involved with the time being spent with the grandparents.
Subsection 60CC(3)(f) – The capacity of the parents and other persons to provide for needs of the children
I have no doubt, for the reasons I have already expressed, that not only the father and Ms M, but also the maternal grandparents, are fully capable of providing for the children’s emotional and physical needs when they are in their care. The grandparents have a three bedroom home in which the children can have a room each, and it is after all where they have lived for most of their lives.
Subsection 60CC(3)(g) – The maturity (and other matters) of the children and their parents
I repeat that the children have a strong attachment both to their father and his partner and to the grandparents. They are well-familiar with living with their grandparents.
Subsection 60CC(3)(i) – The attitude to the children demonstrated by the parents
In the context of this case, this matter has already been dealt with.
Subsections 60CC(3)(j) and (k)
Since there is no family violence in this case, these matters are not relevant.
Subsection 60CC(3)(l) – The desirability of avoiding further litigation
The orders I am minded to make will indeed bring, one would hope, litigation between the parties to a conclusive end.
Subsection 60CC(3)(m) – Any other relevant circumstance
What is relevant here is that the Court will, hopefully, by the findings and orders made, bring what is no doubt a very distressing litigation experience to an end. It will also, hopefully, provide an objective reality test for the parties themselves.
I wish to make it clear that although, in part, I have made remarks critical of Mr Stellini and Ms M, those remarks should be seen in proper context. They are caring and devoted parents to these two girls.
Likewise, although I found substantially in favour of Mr and Ms Marshall, it is all too possible that their relationship with the father in the past has been characterised by episodes that have been regrettable.
All parties will hopefully draw upon this decision as indicating, amongst other things, that they should concentrate first and last upon the best interests of the children and do their best, albeit in what are clearly very difficult circumstances, to put the past behind them and move forward.
The particular orders to be made
In my view, orders should be made in the form sought by the applicant grandparents in their amended application filed on 1 June 2010. Those orders are, in large part, those recommended by Dr O.
I do not think it is appropriate to make the order proposed in paragraph 95 of Dr O’s report that time should be suspended on long weekends. The thrust of Dr O’s evidence is that the girls very strongly need to spend regular time with their grandparents both for the benefits that gives them of itself and for their developing capacity to cope with their grief at the loss of their mother. It is inappropriate to interrupt that on a number of occasions per year. No evidence has been put before me that Mr Stellini and Ms M are in the habit of taking short family holidays on those long weekends.
On the other hand, however, I think that the orders proposed by
Dr O in paragraph 96 make eminent sense. The question of the children’s routine activities, such as music lessons and sports, was not, as far as I can recall, significantly explored before me, but if they do have such activities then it is entirely appropriate that they continue when they are with their grandparents. It is also appropriate that
Mr Stellini should ensure that the Marshalls are aware of these activities, and I note that it has been agreed that Mr Stellini will have primary contact with Ms Marshall in communications.
Both parties should be permitted liberal contact by telephone, by landline, when the children are not in their care. I regard the concerns expressed by the father and Ms M about contact with Mr Marshall in particular as being unreasonable, albeit that their origin may be understandable. The times proposed by the applicant grandparents seem to me to be reasonable.
I do not propose to make the orders sought in paragraph 1.3 of the final orders sought in the amended application. An order of this sort is only too likely to be unworkable and give rise to further litigation.
I have prepared draft orders giving effect to my conclusions but will give the parties an opportunity to consider them before I make them final.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 11 August 2010
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