MATEUS & MERRILL

FAMILY COURT OF AUSTRALIA

MATEUS & MERRILL

[2014] FamCA 643

FAMILY LAW – CHILDREN – where the parents of the children both died as a result of the same accident – where there are competing claims by the maternal and paternal families – where the applicant paternal uncle and aunt seek sole parental responsibility of the children with the condition they consult with the maternal grandparents prior to making a final decision – where the paternal uncle and aunt seek the current living arrangements where the children primarily live with them, remain the same – where the maternal grandparents seek orders for sole parental responsibility with the condition they consult the paternal uncle and aunt prior to making a final decision – where the maternal grandparents seek an equal time arrangement – where the family consultant recommended equal shared parental responsibility and to maximise the children’s time with the maternal grandparents – where consent orders were made in relation to holiday time, special days and other times – where the parties consented to attend therapeutic counselling together – where there is currently dysfunction and a lack of communication between the parties – where the maternal grandparents currently have substantial and significant time with the children – children’s current living arrangements during school term determined to be in their best interests and are to continue with time extended one overnight per fortnight – where it is found that an order for equal shared parental responsibility was not in the children’s best interest at the current time as there is an appreciable risk that the parties will not be able to reach a joint decision – order for the applicants to have sole parental responsibility with the condition they consult the maternal grandparents prior to making a final decision

Family Law Act 1975 (Cth)

APPLICANTS:

Mr and Ms Mateus

RESPONDENTS:

Mr and Ms Merrill

FILE NUMBER:

SYC

1759

2012

DATE DELIVERED:

8 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

28 - 29 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Russell McLelland Brown

COUNSEL FOR THE RESPONDENT:

Mr Steward

SOLICITOR FOR THE RESPONDENT:

Quirk Lawyers

Orders

Mr Mateus and Ms Mateus (“the paternal uncle and aunt”) shall have parental responsibility for B born 25 April 2006 and C born 9 February 2008 (“the children”) in relation to all major long term issues, on the conditions that:
1.1.The paternal uncle and aunt contact Mr Merrill and Ms Merrill (“the maternal grandparents”) in writing and provide their views about any such issue;
1.2.The paternal uncle and aunt shall consult with the maternal grandparents with regard to any such issue (such consultations may need to take place over time);
1.3.The paternal uncle and aunt and the maternal grandparents will make a genuine effort to come to a joint decision about any such issue; and
1.4.If no agreement is reached between the parties, the paternal uncle and aunt shall make the final decision and advise the maternal grandparents in writing of the decision about any such issue.
The children live with the paternal uncle and aunt.
The children spend time with their maternal grandparents during school term as follows:
3.1.Each alternate weekend from after school Friday until before school on Monday.
3.2.From after school on the following Wednesday afternoon until the commencement of school on the next day.
3.3.On the next Wednesday afternoon from after school until 6pm.
3.4.At all other times as agreed.
3.5.In the event that the Monday immediately following the weekend when the children are spending time with the maternal grandparents pursuant to order 3.1 is a public holiday or a pupil-free day, then the time the children are spending with the maternal grandparents is extended until the commencement of school on Tuesday morning.
It is noted that final orders in relation to the children spending time with the paternal uncle and aunt and the maternal grandparents during school holidays and on special days were the subject of consent orders made on 29 July 2014.
No order is made that would restrict the ability of the parties to vary these orders in the future by a parenting plan.
It is noted that the parties have agreed that a trust will be established with one or two members of each family as trustees and an independent third party as a trustee in case the two families cannot agree upon an appropriate use of funds for the children.
Pursuant to s.65DA(2) and s.62B of the Family Law Act1975 (Cth), 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mateus & Merrill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1759 of 2012

Mr and Ms Mateus

Applicants

And

Mr and Ms Merrill

Respondents

REASONS FOR JUDGMENT

INTRODUCTION

In 2011 the parents of B (“B”) and C (“C”) (collectively “the children”) were involved in a motor vehicle accident whilst visiting Melbourne. The father died at the scene of the accident and the mother’s life support system was turned off by her family three days later. At that time the children were 5 and 3 years of age. The children’s parents had left the children with their paternal uncle, Mr Mateus, and his wife, Ms Mateus, whilst they had gone to Melbourne.
Prior to the death of their parents, the children had had a significant involvement with their maternal grandparents, Mr Merrill and Ms Merrill, and their maternal aunties (Ms D, Ms E and Ms F Merrill).
In the midst of significant grief being suffered by all involved, ill-will developed around the issue as to with whom the children would ordinarily live and who would assume parental responsibility.
The two families are still consumed by grief. They each operate with the children in two separate silos with little knowledge or understanding of the other families history with the children. Attempts to bring them together to mutually manage the children’s lives have to date been unsuccessful.

APPLICATIONS

On 27 March 2012 the paternal uncle and his wife instituted proceedings to formalise the arrangements.
By way of a Response filed on 11 May 2012 the maternal grandparents sought orders in their favour. This application to the court was made nine months after the accident.
The parties are apart in relation to parental responsibility and time spent with each of them during school term. Arrangements in relation to holiday time, special days and other times have been the subject of agreement between the parties. Orders were made by consent in relation to these matters in the terms that are set out in Schedule 1.

Paternal uncle and aunt

The application by the paternal uncle and aunt is for parental responsibility in their favour in relation to major long term issues with a condition that they consult the maternal grandparents before making a decision. Their proposal in relation to time is that the current arrangements not change. That is, the children see their maternal grandparents each alternate weekend from after school on Friday to Monday morning, and every Wednesday afternoon. That is a three nights a fortnight arrangement with two afternoons.
In the event that the court adopted the recommendations of the family consultant (that the children be with the maternal grandparents for five nights a fortnight during school term), the paternal uncle and aunt propose that that be achieved by extending the current Wednesday afternoons each week to overnight time. Another option suggested by the paternal uncle and aunt was that the current three overnights a fortnight be extended to four, with the Wednesday afternoon closest to the weekend when the children are not with the maternal grandparents to be extended to overnight.

Maternal grandparents

Although the maternal grandparents initially proposed parental responsibility without consultation, during the hearing they changed their position so that it was a mirror of the position of the paternal uncle and aunt, namely, that they be given parental responsibility with a condition that they consult the paternal uncle and aunt prior to making a final decision. The maternal grandparents sought an order for week about time so that the children during school term went from one household to the other on Monday afternoons.

Family Consultant

The recommendation of the family consultant is that an order be made for equal shared parental responsibility. The family consultant also proposes that the best arrangement for the children would be for the children to spend five nights a fortnight with the maternal grandparents whilst also maintaining the weekly Wednesday afternoons. In terms of how that would be configured, the family consultant’s preferred position is that the children spend after school on Thursday to Monday morning in one week and from after school on Thursday overnight to Friday morning in the next week, whilst maintaining Wednesday afternoon time. An alternative would be for there to be five consecutive nights from after school Thursday to Tuesday morning each alternate week whilst maintaining Wednesday afternoon time. The family consultant was of the view that all parties should attend therapeutic counselling.

CURRENT ORDERS AND ARRANGEMENTS

The children currently live with their paternal uncle and aunt during school term and spend time with the maternal grandparents each alternate weekend from after school Friday until before school Monday, as well as each Wednesday afternoon from after school until 6pm. An equal time/week about arrangement is in place during the school holidays. The parties have shared special days and the children have gone from one family to the other on days which were special to that family.
When the children spend time with their maternal grandparents, they from time to time see each of their maternal aunties and their cousins who, as at the date of the family report (20 August 2013) were aged 15, 13, 13, 8 and 2 years of age.
Whilst the children are with their paternal uncle and aunt, they have time and contact with the paternal grandmother and her partner.
At the time of the accident the paternal uncle was estranged from his father. His father however was seeing the children as part of an arrangement he had with the maternal family. The paternal uncle’s father had separated from the paternal grandmother in 1993 and the paternal uncle says that his father suffers from a mental illness in the form of paranoia.

DOCUMENTS RELIED UPON

The documents relied upon by each of the parties are set out at Schedule 2.

CREDIT

Paternal uncle

The paternal uncle seemed to answer questions in a very direct way. He was at times emotional when questions touched on matters relating to the tragic events. He did not however appear to me to be in any way avoiding answering questions that he was asked nor did I think that he gave other than truthful responses to questions he was asked. The paternal uncle showed some insight into the dynamics that existed between the two families and was generally sensitive to the children’s needs. There was no submission made that challenged the paternal uncle’s credit.

Paternal aunt

The paternal aunt was a very impressive witness. She was intelligent, reasoned and measured in the responses that she gave and readily conceded the positive aspects of the children’s involvement with the maternal family. I gained the impression that to a large degree, she, of all the adults in the case, had attempted to be a bridge between the two sides of the children’s family. Her evidence was not challenged in cross examination in any significant way. There was no submission made which challenged the paternal aunt’s credit. I accepted her evidence without any reservation.

The applicants’ other witnesses

The other witnesses of the paternal uncle and aunt were not required for cross examination and I therefore accept their evidence as it has been provided.

Maternal grandparents

The maternal grandfather had difficulty remembering precisely how it had come about that B had given a witness impact statement for the prosecution of the driver who was responsible for the death of the parents.
The maternal grandfather also signed various documents which had been prepared by his lawyers that did not accurately set out the circumstances in relation to his health. Question 11 of the parenting questionnaire asks the following question:
“Do you suffer from any medical condition which requires supervision by a medical practitioner or for which you take prescribed medication or which could affect your ability to supervise and care for a child? If so, please provide details”.
The response provided by the maternal grandparents was: “No for either Respondent.”
In subsequent affidavits, the maternal grandfather did not deal with any issues in respect of health. At [27 (e)] of his affidavit filed 22 June 2012 the maternal grandfather wrote “Health – I do not have any health problems.”
On the first day of the less adversarial trial, I asked the maternal grandfather how is health was. He answered “reasonably so”. I asked him what that meant and he told me he only had “mild blood pressure.” The maternal grandfather did not mention that he had regular check-up’s with a medical specialist in relation to a diagnosis for leukaemia.
The maternal grandfather initially indicated the reason he did not disclose his diagnosis of leukaemia in his affidavit was because he had only just found out about it. This was not an accurate response as he found out about it three years previously. I discuss his diagnosis later.
On one occasion, the maternal grandmother attempted to correct the maternal grandfather when he was giving oral evidence. Overall the maternal grandfather attempted to give accurate information but I could not rely upon his version on any controversial matter.
The maternal grandmother presented as a women who intensely loved the children but who was also significantly burdened by the tragic loss, particularly of her daughter. She did not, in my view, deliberately attempt to mislead the court in any way.
Counsel for the paternal uncle and aunt focused upon absolute statements made in both the trial affidavits of the maternal grandparents to the effect that, “the nature and extent of [Mr and Ms Mateus’] prior involvement with my grandchildren, [B and C], was minimal”. Although that statement followed the text of earlier statements in earlier affidavits, at the time it was sworn (only 12 days before the commencement of the hearing), the maternal grandparents had had the opportunity of reading affidavits by the paternal uncle and aunt which set out at least 23 occasions prior to the accident when the paternal uncle and aunt were in the presence of the children, together with occasions upon which the paternal uncle and aunt asserted the children stayed overnight with them. The maternal grandparents would have been on far safer ground had they instead stated in their affidavits what they said in the witness box, namely, that they did not know what involvement the paternal uncle and aunt had had with the children prior to the accident. I take into account that these affidavits are drawn by lawyers, perhaps without properly updating their instructions, and I do not find that either of the maternal grandparents were attempting to be untruthful when swearing those statements in their affidavits.
The bigger point to make is that what emerged very clearly by the end of the hearing was that prior to the accident and since, the respective families have lived and interacted with the children completely separately, without either having any real appreciation of what the other had done or was doing with the children
The maternal grandmother has not come to terms with her daughter’s death. She said, and I accept, that she does not think she ever will. There was one occasion during the evidence of the maternal grandmother where she became very distraught and was temporarily unable to be consoled. What I observed in the witness box on that occasion simply underlines the amount of grief that exists in this case. It is that emotion that has driven much of the behaviour which would otherwise draw criticism in a parenting case.

The maternal aunties

Some emphasis was placed during the hearing on the interview that the three aunties had with the family consultant in the course of the preparation of the family report. A particular paragraph of that report was referred to in cross examination of the three sisters at some length. It is appropriate that that paragraph be set out in full:
From the children’s aunts’ perspectives, the maternal family and the paternal grandfather were the only people in [B and C’s] lives and [Mr and Ms Mateus] and the paternal grandmother had nothing to do with them until the accident. They expressed negative views about [Mr Mateus] and about the nature of his relationships with his father and deceased brother. One of the aunts expressed the opinion, with which the others did not appear to disagree, that [Mr Mateus] is motivated by money, specifically the money coming to the children as a consequence of the accident and donated by the public for their care. It is also alleged that the children complain of being “abused” in their uncle and aunt’s care, including that [C] gets “dragged” upstairs thereby dislocating her elbow, that they do not get fed properly by their aunt and uncle and that they are too scared to tell [Mr and Ms Mateus] that they don’t like the school lunched prepared for them (which they throw away). It was alleged that the children have been heard to say a number of times that they do not want to live with their aunt and uncle because “[they are] nasty”. One of the aunts stated that, from her point of view, [Mr and Ms Mateus] were engaged “in a big act for everyone”, whereas “behind closed doors” they were “different people to the kids”.
I find that in relation to all the allegations contained in the above paragraph, so far as they assert matters which are negative against the paternal uncle and aunt, those assertions are without any foundation.
During the hearing, all aunties indicated they did not remember saying the things the family consultant reported they said. Some of what is asserted is serious. The things said were very negative. I find that as at the date of the interviews for the family report, which was August 2013, those feelings and attitudes were prevalent amongst the maternal family directed towards the paternal uncle and aunt. It seems that the maternal grandmother may now have moderated some of her views about these matters. The lack of memory by the three aunties in relation to what they had previously told the family consultant was unconvincing. I formed the view that they were not prepared to admit what they had previously said for fear that it might be found that that was their current attitude to the paternal uncle and aunt and that it would count against their parents in the final result.
Ms E Merrill made one concession against interest. She admitted that she was the person who made the assertion to the family consultant that the paternal uncle was motivated by the money coming to the children as a consequence of the accident donated by the public. She apologised for doing so. She could however remember nothing else of the conversation that she had with the family consultant.

Ms D Merrill was very unresponsive to questions generally and was not prepared to concede that she had any memory of her conversation with the family consultant. The family consultant’s evidence was to the effect that Ms D did most of the talking in the interviews between the aunt’s and the family consultant. I find that Ms D has had a significant level of involvement with the children whilst they have been in the household of the maternal grandparents and in the event that the children were placed with the maternal grandparents, as the years went on Ms D would play a more significant role in the care of the children.
Ms F Merrill said that she remembered that she sat fairly quietly during the interview with the family consultant. That may have been the case. However, given the caustic nature of some of the things said it is inherently unlikely that she would have no memory of the conversation at all.
The lack of frankness from the aunties in the witness box does diminish the weight that I can place upon their evidence.
The aunties’ lack of memory in relation to their interview with the family consultant is to be contrasted with the aunties’ detailed affidavits. They are able to recall events and conversations had with the mother Ms G Merrill prior to the accident and also cast their minds back to the lack of involvement of the paternal uncle and aunt with the children prior to the accident.
Notwithstanding what the aunties might have portrayed as their underlying attitude to the paternal uncle and aunt during the interviews for the family report, the paternal uncle and aunt themselves conceded in cross examination that the aunties were individually each a positive influence on the children’s lives. That attitude by the paternal uncle and aunt is underlined by their consent to an order that the children spend additional time with the maternal family on two of the aunties’ birthdays (one of the aunties’ birthdays falling on Christmas Day in respect of which there are other particular agreed arrangements).

DETAILED CHRONOLOGY

The maternal grandfather was born in 1951 and is currently 63 years old.
The maternal grandmother Ms Merrill was born in 1948 and is currently 66 years old.
The paternal uncle was born in 1975 and is currently 38 years old.
The paternal aunt was born in 1978 and is currently 35 years old.
The paternal grandparents separated in 1993. The paternal grandmother Ms H Mateus has since re-partnered with Mr I.
B was born in 2006 and is currently eight years old.
C was born in 2008 and is currently six years old.
On 11 August 2011 the children were placed into the care of the paternal grandmother, and they stayed at her home on the night of 11 August 2011 when the parents travelled to Melbourne. The paternal aunt collected the children from the paternal grandmother’s home on 12 August 2011. The children stayed with paternal uncle and aunt that night.
Prior to travelling to Melbourne on the weekend of 12 August 2011, the paternal uncle says that the father had spoken with the paternal aunt and as a result of that conversation the paternal uncle and aunt were to look after the children whilst the parents travelled to Melbourne. The paternal uncle says that sometime after that discussion, he had a subsequent conversation with the father in which the father said words to the effect of “we want to enjoy Melbourne so we want to fly down on Friday 12 August 2011 and return on Monday 15 August [2011]. Would you mind having the children for the entire weekend?” to which the paternal uncle replied “of course, we are happy to have the children”. This conversation was said to have taken place after the mother’s birthday at the parents’ house.
Whilst in Melbourne, the children’s parents, Ms G Merrill (“the mother”) born in 1980 and Mr J Mateus (“the father”) born in 1978 (“the parents”), were hit by a car on 13 August 2011. The father died at the scene of the accident.
The paternal uncle says that on 13 August 2011 he received a phone call from his aunty who informed him that the father had been killed in an accident in Melbourne. The paternal uncle then contacted the Victorian Police and spoke with Detective Cunningham who confirmed that the father had been killed as a result of a collision and the mother was in a critical condition.
The paternal uncle then informed his mother and later spoke with one of the maternal aunts, Ms F Merrill. Shortly thereafter the paternal uncle flew to Melbourne with his mother, her partner Mr I, and an uncle, Mr K.
The maternal grandmother received a phone call from Royal Melbourne Hospital that same and was informed of the father’s death. The maternal grandfather informed the paternal grandfather. The maternal family, together with the paternal grandfather, then also travelled to Melbourne.
When the paternal grandfather and the maternal grandparents went to the morgue to see the father, the paternal family members were waiting. The maternal grandfather asserts that the paternal grandfather gave the paternal uncle a hug, but the paternal uncle pushed him away and said “I don’t want anything to do with you”. The family report outlines that the maternal uncle indicated a rift developed between he and his father after his father disowned him in the mistaken belief that he had arranged a birthday party for B and C at their paternal grandmother’s house without telling him. The paternal uncle stated that the first time he saw his father again after this was in Melbourne. The paternal uncle told the family consultant that he had been upset by his father’s decision to travel to Melbourne with the maternal family rather than informing him or his mother about it. According to the paternal uncle, his father attempted to put his arms around him and he told his father not to touch him and that his father referred to him as “son”, to which he replied “so now I am your son”. In their interviews with the family consultant the maternal aunties indicated that at the morgue the paternal grandfather was asking what he would do without his only daughter in law and saying that he only had one son and he was dead.
The families met with a social worker at the hospital who told them that the children should have the situation explained to them as soon as possible. The paternal uncle asserts that the maternal grandfather said to him words to the effect of “I don’t want them to know yet [the mother] is still alive”. The paternal uncle then flew home to be with the children who were in the care of his wife, and the remaining members of the family stayed in Melbourne.
On 16 August 2011 the decision was taken by the maternal family to remove the mother’s life support.
On or about 19 August 2012 the maternal grandparents attended the paternal uncle and aunt’s home to inform the children of their parents death. The paternal uncle and the maternal grandfather met with the children alone. Following the accident, the children remained living with the paternal uncle and aunt, however spent time with the maternal family on a regular basis.
By 11 September 2011 the paternal uncle had formed the view that he and the maternal grandparents needed to have a discussion to come up with a suitable routine for the children as he believed there were problems with “people wanting to take the kids with no notice”. The paternal uncle contacted his friend, Ms L for assistance with this discussion. Ms L is said to have experience in dealing with family disputes. That afternoon, the paternal uncle, the maternal grandfather and Ms L met and had a lengthy meeting concerning the children. The maternal grandfather says he became upset during these discussions because of what Ms L was saying.
The maternal grandfather emphasised in his oral evidence that the maternal family believed that it was inappropriate for the paternal uncle to restrict the children’s time with the maternal family given what the maternal family believed was the minimal lack of involvement of the paternal uncle with the children before the deaths of their parents.
The paternal uncle and aunt and the maternal family attended B’s soccer presentation on 18 September 2011. The children then spent the rest of the day with the maternal family.
For a time the parties were able to sort out temporary arrangements. Following a meeting with the paternal uncle and aunt, maternal grandparents and Ms L, it was arranged that the children would spend time with the maternal family each alternative weekend from 10.00 am Saturday until 7.00 pm Sunday evening, as well as additional time each Monday and Wednesday evening after school/preschool. C was also spending time with the maternal family from each Wednesday from 8.30 am.
Following a round table conference and mediation, it was agreed that the maternal family’s time with the children would be extended until 6.00 pm each Monday evening.
Agreement was reached about when the children would be with both sides of the family for Christmas 2011, and on Christmas 2011 the children spent time with the paternal uncle and aunt until 9pm Christmas Eve and then again from 3pm Christmas day until 1pm Boxing Day. The children spent time with the maternal family from 9pm Christmas Eve until 3.00 pm Christmas Day.
The paternal uncle and aunt’s child, M, was born in 2012 and is currently two and a half years of age. That child has at all times been an ordinary member of the household of the subject children.
The paternal uncle and aunt filed an application for parenting orders on 27 March 2012.
The paternal uncle asserts that on or about 22 April 2012, when putting B to bed, B told the paternal uncle that “[Ms D]” had told he and C a secret that he was not allowed to tell the paternal family; that the maternal grandparents were going to see a “special man”, and that the children would then live with them and after the switch would go to live in Queensland.
On 11 May 2012 the maternal grandparents filed a response seeking orders for parental responsibility and that the children ordinarily live with them.
The paternal uncle asserts that on 8 August 2012 when he raised with the children the fact that they were going to see the family consultant the following day, C said that the maternal grandparents told her to tell the family consultant “yes” if she was asked if she wanted to stay with the maternal grandparents, and “no” if asked if she wanted to live with the paternal uncle and aunt.
Interviews for the Children and Parents Issues Assessment took place on 9 August 2012 and the report was released on 24 August 2012.
On 22 October 2012 interim orders were made that pending further order there be equal shared parental responsibility and that the children ordinarily live with their paternal uncle and his wife and that they spend each alternate weekend from after school Friday to the beginning of school Monday and each Wednesday afternoon from after school to 6.00 pm with the maternal grandparents. That order has now been in place for almost two years and it is not a matter of contention that the order has been complied with without incident.
Interviews for the Family Report took place on 10 July 2013 and the report was released on 20 August 2013.

SPECIFIC EVENTS AND ISSUES

History of conflict between the two families

The maternal grandfather said in evidence that the source of the conflict commenced after the tragic accident when the paternal uncle and aunt refused to make the children available in a way that acknowledged, in the maternal family’s view, the involvement the children had with the maternal family prior to the accident. The maternal grandfather said in oral evidence that he didn’t enjoy “a 100 per cent relationship” with the paternal uncle and aunt at present “because of what happened”. When asked what “what happened” referred to, the maternal grandfather said that when they came back from Melbourne the maternal grandparents asked for access to the children but were told they could only have them for two hours. As the children had been a big part of their family that hurt the maternal grandparents a lot.
The family consultant opines that the difficulties between the two families might pre-date 13 August 2011. The family consultant opined that there were difficulties in the paternal family arising from the separation of the parents of the father and the paternal uncle in 1993. It seems tolerably clear that the father of the children was close to his own father and as a result, his own father had a reasonable level of involvement with the children. The involvement of the paternal grandfather to a significant degree took place in the context of activities organised by the maternal family. The family consultant opined that the paternal uncle looked after his mother. In that environment, it can be understood that the children’s parents did not give the maternal family a lot of information about the amount of time the children were spending with the paternal grandmother, paternal uncle and aunt. This fundamental lack of information may have led to the problems which occurred after the accident.
As already mentioned, the maternal family did not have an understanding as to the level of involvement of the paternal uncle with the children prior to the father’s death.
The paternal uncle says that he and his wife enjoyed a great relationship with the parents and children prior to the accident. He says they generally spent time with the children at least once per week and would often spend time with the children of a Sunday evening at the parents’ house. They would also spend time regularly with the children at the home of the paternal grandmother. The paternal uncle provides a list of 23 other occasions he and his wife spent time with the children (on holidays or at outings). Further he says that the children had slept at he and his wife’s home prior to the accident; B on at least five occasions and C on at least three.
The paternal uncle, when asked about whether or not the circumstances in which the children came to live with him was important now that the children have been with him for three years, indicated that it was very important given that the last thing his brother and his wife asked he and his wife to do was to look after the children whilst they went to Melbourne. He said this with deeply felt emotion. However, the paternal uncle was not saying that there had been some well-considered conscious understanding that the children would live with the paternal uncle and his wife in the event that there was a joint tragic accident to the childrens’ parents.
Counsel for the maternal grandparents obtained general concessions from the paternal uncle and aunt that, the history of the children’s involvement with both sides of the family and the circumstances in which they came to be with the paternal uncle and aunt after the accident, were of little relevance when looking forward as to what arrangements would now be in the best interests of the children, given the affluxion of time. However, that history is not without any relevance. In fact, that history was still very much alive as a driving motivation for the maternal grandfather coming into the final hearing. Much of the maternal grandparents’ evidence is directed towards those historical matters. The inability of both sides of the family to reach an agreement in relation to those matters which the ask the court to now decide, is in large measure a product of the fundamental lack of knowledge of one side of the family about the other. That, combined with the grief felt by the key participants, has led to the current unresolved situation.
Both the paternal uncle and aunt agreed that it was the last three years and in particular looking towards the future that was more important than looking at those historical matters.

Victim impact statement

B gave a witness impact statement for the prosecution of the driver responsible for the death of the parents in May 2014.
The paternal aunt sets out the conversation she had with B relating to his victim impact statement at [8]-[12] of her affidavit filed 19 June 2014:
8.      On Tuesday, 6 May 2014, [B] was upset and said words to the effect “why does [Mr Mateus] have to go to Melbourne? I don’t want him to go.”
9.     I explained to him words to the effect “[Mr Mateus], Grandma, Nan and Pop and your Aunties are going down to Melbourne because they all wrote letters to the Judge about how much mum and dad meant to them before he decides what to do about the lady.”
10.    [B] replied with words to the effect of “Yeah I know I wrote one.” I replied with words to the effect of “you wrote one what?” [B] replied with words to the effect “I wrote a letter to the Judge, Pop asked us if we wanted to write one, [C] didn’t want to so she drew a picture. I drew a picture too.” I replied with words to the effect “When did you write this letter?”. [B] replied with words to the effect “In the School Holidays it was before Nan and Pop went to Melbourne the first time.”
11.    This came as a shock to me as not only did I not know that [B] had written an Impact Statement we had had a discussion with Ms a few days prior in which nothing had been discussed.
12.    I relayed the conversation to [Mr Mateus] and I was present when [Mr Mateus] telephoned the Detective in Melbourne that evening.
The paternal uncle indicates in his affidavit filed 19 June 2014 that he phoned the Detective in Melbourne and asked him about B’s Victim Impact Statement. The Detective told him he thought the paternal uncle knew about it and proceeded to read out the statement over the phone.
Counsel for the maternal grandparents made the point that the paternal uncle and aunt did not make it clear one way or the other as to whether or not they were of the view that it was inappropriate for B to have provided an impact statement at all. That is, however, beside the point. The complaint made during the hearing was about the lack of communication about that topic. The maternal grandmother in her oral evidence apologised for the fact that the maternal family had not consulted the paternal uncle and aunt about B providing a witness impact statement.

The 2013 Christmas letters

At Christmas time in 2013 Ms D Merrill gave each of the children a letter which was in the following terms:
“Merry Christmas miss you heaps.
Hope you enjoy your presents and Christmas Day.
Love you lots.
Mummy & Daddy”
I accept the evidence from the maternal grandparents that they were unaware that Ms D had written these letters and was handing them to the children on Christmas morning. The maternal grandfather, maternal grandmother and Ms D all gave evidence about the children’s reaction to receiving these letters on Christmas morning. They all reported that the children were joyful at receiving these letters. The maternal grandmother formed the view that the children were not confused by the letters and clearly understood that their parents were “in heaven”.
When asked about these letters the family consultant stated that she thought the intention was a good one to help the children deal with the loss or lessen the feelings of loss and keep a sense of connection. However, she was of the view that it was a bit misguided, particularly if the children hadn’t yet appreciated what death is and how final it is.
In her most recent affidavit the paternal aunt sets out a conversation she had with the paternal uncle and C where C said “Nan told us that Mum and Dad didn’t write the letters. Santa wrote them but Mum and Dad helped him deliver them.”
I accept the paternal aunt’s evidence about what C said to her. This would indicate that there was, at some point, some disquiet that needed to be attended to, in the home of the maternal grandparents, arising from some confusion in the children’s minds about how the letters were written by their deceased parents. I find that on balance it is likely that the maternal family are glossing over the unintended consequences of what I accept was something that Ms D did with good intentions, thinking that it would be something that would bring comfort to the children. The difficulty in relation to the letters (as with the victim impact statements) was that these things were done without consultation with or the knowledge of the paternal uncle and aunt. There was no thought given as to how the paternal uncle and aunt might feel about the children being exposed to those things. Whilst not major in their own right, these issues are a symptom of the current dysfunction and lack of communication between the two families.

C’s dislocated elbow

A clear example of how the prism of grief has distorted beliefs held by the maternal grandmother is the maternal grandmother forming the view that the paternal aunt had dislocated C’s elbow when dragging her up the stairs. That belief arose when C was at a disco in the care of her grandmother. Somehow or other she dislocated her elbow. She was taken to hospital for attention and subsequently redelivered to the paternal uncle and aunt. At changeover the paternal uncle and aunt indicated to the grandmother that the dislocation of the elbow had happened on previous occasions. There was, at another time, a conversation, according to the grandmother, between her and C where C complained to the grandmother in at least Ms D’s presence that the paternal aunt had dragged her up the stairs and hurt her elbow.
Whilst Ms D Merrill in her evidence dismissed that statement by C as innocuous, the maternal grandmother put the two pieces of information together to conclude that the paternal aunt had dragged C up the stairs and had, in doing so, dislocated her elbow. In fact, hospital records (exhibit 5) indicate that a previous dislocation of C’s elbow had happened prior to the fatal accident at a time when C was in the care of her deceased parents. The maternal grandmother had put two pieces of information together in her grief and formed a negative conclusion against the paternal aunt in circumstances where that was not at all warranted.

Delay in bringing application

Counsel for the paternal uncle and aunt referred to the fact that the maternal grandparents did not actually seek any orders from the court for a period of nine months. The maternal grandfather seeks to give some explanation as to why that period of time elapsed. In his affidavit filed 5 December 2012 the maternal grandfather states:
At that time we did not seek legal advice as we were hoping that the families could work it out and come to a sensible arrangement but [Mr Mateus] was not interested in hearing what we had to say about the children coming to live with us and said worlds to the effect ‘I don’t know you as a family’.
At that time we did not know our legal position in this situation and we were also in the process of sorting out [Ms G] and [Mr J’s] affairs, such as vacating their rented home, cleaning, re-painting and removing the furniture.
The maternal grandfather conceded during cross examination that the work done on the parents’ home only took about one month. In oral evidence he sought to blame former lawyers for action not being taken sooner, although that is not referred to in his affidavit. I do however take into account the turmoil and grief that the maternal family would have been suffering at that time and I do not put any great weight on the amount of time it took them to do something in terms of court process, particularly given that they did attend mediation in that period.
All that having been said however, the fact is that the children were left primarily in the care of the paternal uncle and aunt after the accident and there was nothing done by the maternal grandparents for a nine month period to attempt to change that.

The parent’s intentions

The maternal grandmother says in her affidavit “I am in no doubt that [the mother and father] wishes (sic) would have been for [B] and [C] to live with [the maternal grandfather] and I and also have their aunties also care for them, just like we all did when they were alive…..”. I have no evidence that would allow me to reach a finding that that is so. There was no formal discussion or agreement between anybody about what might happen. The tragedy was not foreseen, although clearly the parents wanted the paternal uncle and aunt to look after the children on the weekend they were in Melbourne. That, however, cannot be extrapolated past that weekend in terms of inferring what the parent’s intentions may have been for the medium to long term.

EVIDENCE OF THE FAMILY CONSULTANT

As stated earlier, the family consultant recommended that the children spend five nights per fortnight with the maternal grandparents as well as maintaining the current Wednesday afternoon routine. She suggested this arrangement could be either Thursday to Monday and Thursday night in the other week, or Thursday to Tuesday in the alternate week. She opined that her first proposal broke up the time and was therefore more advantageous. The family consultant was not of the view that each Wednesday night be extended to overnight time, if maintaining the current alternate weekend overnight time, because the changeovers would be too quick (in one of the two weeks the children would sleep Wednesday night with their maternal grandparents, Thursday with their paternal uncle and aunt, and Friday again with their maternal grandparents). She also proffered that simply extending Wednesday to overnight time would not be following her recommendation as her proposal actually added two additional nights and did not substitute those Wednesdays.
The family consultant was of the view that it was a great shame that the parties were not able to sit down either formally or informally at any time since the interviews with her one year ago. Whilst she said it was a source of concern that there had not been a “warming of the teams” in terms of her recommendation for joint parental responsibility, she said that one of the good things was that there had been compliance with orders and a general civility. She also observed that it was a good sign that there had been no difficulty in the changeovers and noted that it was important to consider the time the parties have been involved in this litigation, and that the continuing litigation did not improve conflict. The Family consultant was of the hope that when the final decision was made that “might just free everyone to get on with living”, but at the same time questioned whether there might still be major areas of disagreement if joint parental responsibility was ordered. However, the family consultant also noted that although the parties cannot see a way to negotiate, “if they haven’t tried they don’t know”. When it was put to the family consultant that the maternal family had not consulted the paternal uncle and aunt regarding B’s Victim Impact Statement, the family consultant said that was an indication of the dysfunction which is happening. She conceded that that was a cause for concern when considering joint parental responsibility however opined that when it comes to situations like this that require a focus upon the children’s emotions, it is important that everyone is talking. She ultimately conceded that if sole parental responsibility was ordered it should be with the parties who have the children primarily in their care.
The family consultant’s greatest motivation for her recommendations arose out of her observation that the court is dealing with “two orphans, two children who lost both parents”, and in her view the children deserve representatives of both their parents in their lives.
The family consultant was of the view that although issues within the family could have been managed very differently, it is of importance to remember that the parties were not thinking straight, not functioning well and decisions may have been made in a highly emotional state, as all the parties have been grieving. She did indicate, however, that the parties must ensure that they maintain a child focused view of situations and remember how much the children have to gain by having both families involved intimately in their lives.
As already mentioned, the family consultant was highly in favour of an order that the parties attend therapeutic counselling. The family consultant was reminded of the history and asked if it may be counterproductive unless the parties participate in a genuine way. The family consultant opined that sometimes “goodwill has to be tapped”, and therapy can sometimes help people focus on the children’s needs rather than their own sense of injury and hurt.
The family consultant indicated that she was of the view that one primary base was in the best interests of the children, however, had the parties come to agreement for an equal time arrangement, she would not oppose such arrangement. She further indicated that there was purpose to her recommendation of five nights per fortnight, that being that she was seeking to maximise the children’s time with the maternal grandparents whilst still maintaining a primary base. She opined that the children involved in this particular matter were not dealing with two arguing parents but rather had lost both their parents and were dealing with links to two families. She noted that whilst there was a level of conflict between the two surviving families there was also a level of cooperation.
The family consultant further conceded that past behaviour is the best predictor of future behaviour, and the parties have adhered to the interim orders and no issues had been raised at all in terms of parties breaching orders. However, she was not in favour of the maternal grandparents’ equal time proposal because “it can be a very adult construction and not designed for all children’s needs”. Further she indicated that week about time in school term is very different to holiday time; one is leisure and one is work.
The family consultant’s position, on her own admission, was somewhat of a triumph of hope over experience.
Ordinarily in circumstances where parties have been absolutely unable to resolve differences over a three year period and have been embroiled in conflict, past history would be taken as the most reliable guide as to what might happen in the future. The family consultant emphasised that in this case the facts were out of the ordinary and that the level of grief experienced by both families’ needs to be heavily factored in when attempting to predict what the behaviour of these families might be after final orders are made.

THE APPROACH IN CHILDREN’S CASES

The relevant objects of Part VII Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
The main relevant principle underlying these objects (unless contrary to a child’s best interests) is:
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

STATUTORY CONSIDERATIONS

No presumption arises in respect of the parties having equal shared parental responsibility given that s 61DAA(1) of the Act in its terms, only relates to the parents of the children. Nor are the provisions of s 65DAA relevant as again that section only applies to an order for equal shared parental responsibility in favour of a child’s parents. I shall deal with parental responsibility once I have considered what time the children will spend with each of the parties.
A number of s 60CC factors are irrelevant because they are expressed as only applying to parents and some other considerations do not have any weight in this case.
Section 60CC(3)(m) of the Act however requires the court to consider many of the types of matters that would be otherwise considered under s 60CC(2) and (3) of the Act in respect to parents.

The benefit to the children of having a meaningful relationship with both of the children’s families

All parties agreed that the children enjoyed good relationships with all adults involved in both families. All parties have spent as much time with the children as they had had the opportunity of doing so.

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Both parties agreed that there were no issues of abuse, neglect or family violence that were a feature of this case.

Children’s views

B told the family consultant that he liked spending week about time with each family during the holidays. He indicated his favourite cousins are N and O. With regards to when he sees the maternal grandparents, B indicated that he would not like to do anything different, except that he would like to see them more as he does not feel that he sees them very much. B also told the family consultant it would help him to feel better if he were to spend a week in each home. B said that he felt excited when he sees his paternal grandmother.
B identified both the maternal grandparents and his paternal aunt and uncle as people helping him with his feelings of missing his parents.
At the beginning of her interview C listed many negative things about the paternal aunt and uncle but when prompted also had nice things to say about them; the paternal aunt and C have girls day on Tuesdays and the paternal uncle is nice to her although he sends her to her room sometimes when she is naughty.
C expressed feelings that her maternal grandparents are “nice to” her and play with her. C herself mentioned to the family consultant the question of whether she was going to live with her maternal grandparents or paternal aunt and uncle, and said that her mum wanted her to stay with her maternal aunt Ms D. C indicated Ms D had told her this. C also said both her maternal grandparents and paternal aunt and uncle help her with her sad feeling about her parents. C said that she gets kisses and cuddles from M and everyone, and indicated that she sometimes wants to live with her paternal aunt and uncle.
When the maternal grandparents were brought to childcare during interviews with the family consultant, C told the maternal grandmother that she does not want to live with the paternal aunt and uncle and the maternal grandmother indicated that she should tell the family consultant.
In her affidavit filed 5 December 2013 the paternal aunt sets out several conversations she has had with the children about things the maternal family has told the children regarding the hearing. For example, on or about 8 August 2012, one day prior to the interviews for the Child Responsive Program, C stated “if the lady asks us if we want to live with Nan and Pop we have to say ‘yes’ and if we want to stay with you we have to say ‘no’”.
The maternal grandmother in her affidavit states that “[B] and [C] really love coming to our home and they tell us they want to live with us and not [the paternal uncle and aunt] but they do want to see them. They say they can wait (sic) wait to lie (sic) with us and say words to the effect of ‘if the special man says we have to stay with [Mr and Ms Mateus] we will still fight to get them.’” The maternal grandfather states in his affidavit “the children love coming to live with us and they tell us they count the days down to when they can be with us…”.
In their respective interviews, B reported that, when M cries, Ms Mateus “shoves food in his mouth” and C said “[Ms Mateus] shoves food in [M’s] mouth when [he] doesn’t want to…”.
When asked about the statements made by the children that might indicate they had been coached prior to their interviews with her, the family consultant was of the view that whilst it is very similar language, and might suggest there was some discussion prior to the interviews in the maternal family, the situation is also one where the children are subject to conflict and that it may be language they have learned. Also, she stated it may have been initially an innocent comment interpreted in a certain way and has become more violent or negative in an atmosphere of aligned negativity. In such situations children need to secure themselves and will continue producing negative things about the other family.
In relation to C’s comment “I’ve forgotten the rest” (after a list of complaints about the paternal uncle and aunt), the family consultant opined it may be because she had a list of independent things she doesn’t like about the paternal uncle and aunt, and she had forgotten some of them, or that she forgot what the maternal grandparents told her to say. The family consultant thought the latter explanation more likely. The family consultant indicated that children have all sorts of complaints and do not always have only positive feelings towards people who care for them. When there is conflict, those complaints are not dealt with in the proper way but become something much more significant, particularly in an atmosphere of mistrust.
I find that it is unlikely that the children would make the complaint they did to the family consultant in identical terms had it not been discussed whilst they were with the maternal family reasonably proximate to the interviews with the family consultant.
I conclude that little reliance can be placed upon the expressed views of the children during the interviews with the family consultant about what parenting orders should be made, not only because of their age but because it is highly likely that some of the things that they said were in response to things that were said to them by members of the maternal family prior to the interviews.

Relationships of the children with other persons

I accept what the paternal uncle and aunt say about their involvement with the children prior to the accident. The photographs (exhibit 1) corroborate that involvement. I note in passing that one of the photographs in exhibit 1 is of the paternal uncle and B at the hospital at the time of B’s birth. This does not sit easily with the statement made by the maternal grandmother that “neither of them [referring to the paternal uncle and aunt] was present at the births of either of the children which took place at [P Hospital] and I cannot recall seeing them visit [Ms G] prior to her discharge as I was ever present”.
Another significant matter to consider is the children’s relationship with their cousin, M. Both children consider M their brother. He was born into their household six months after the death of their parents and has been a constant member of their household since that time. In these proceedings I am only able to focus upon what is in the best interests of B and C and not on what is in the best interests of M. I therefore am not able to place a great deal of weight on the paternal uncle’s comment about how M is affected when the other two children are away from the household. I do however take into account the fact that B and C have developed a close and loving relationship with M which is a stronger and more important relationship to them than the relationship that they have with any of their other cousins. The family consultant expressed concern that a change in situation would not be beneficial as against the integrity of the children’s relationship with M which needs to be respected.
In relation to the maternal aunts, the family consultant indicated that their level of hostility was not good for the children to be exposed to. She said there was a general negativity in the interviews she had with the aunts. The family consultant said she gained a sense that the aunt’s had feelings of being absolutely offended that the children had not lived with the maternal grandparents after the accident because of the level of involvement they had prior to the accident. The family consultant indicated that the negativity displayed by the maternal aunts was one of the considerations that led her to not support an equal time arrangement.

Willingness and ability of each of the children’s families to facilitate and encourage a close and continuing relationship between the children and the other family

Counsel for the paternal uncle and aunt asserts that nowhere in the maternal grandparents’ material is there a hint that they acknowledge that the children have a loving long standing relationship with the paternal uncle and aunt. It is asserted that the first time that acknowledgement is made is in solicitors for the maternal grandparents’ case outline.
There is a cordial level of communication between the paternal aunt and the maternal grandmother in particular. Comments made by the maternal grandmother during oral evidence would indicate that her views about the value of the paternal aunt were thawing. The paternal aunt ensures that when the children go to the maternal grandparents’ home on a Friday for alternate weekend time, she packs relevant school or sports uniforms for when the maternal grandmother prepares the children for school on Monday morning. The paternal aunt reported that she and the maternal grandmother have been able to launder the children’s clothes and return them to one another without any difficulty.
Counsel for the maternal grandparents submitted that because the paternal uncle and aunt had not sought a non-denigration order, I would find that there had been no denigration by the maternal grandparents. With respect, there is no logical connection between those two things. There is no doubt that the maternal aunties did involve themselves in denigration of the applications during their interview with the family consultant and I accept the family consultant’s evidence that those attitudes (perhaps to a lesser extent) were shared by the maternal grandparents.
Other examples of denigration by Ms D are contained in conversations (which I accept took place) that occurred between Ms D and the children. For example, in her affidavit filed 5 December 2013 the paternal aunt sets out a conversation between her and B where B tells her that Ms D deleted photos of the paternal aunt and uncle off B’s iPod and “she said they were S.H.I.T”. Further B told the paternal aunt that Ms D told the children that “…you and [the paternal uncle] lied to the special man and the special man doesn’t understand why you won’t tell the truth” and “Nanny doesn’t like you and [the paternal uncle]. She doesn’t want us living here”. Further she states that on more than one occasion the children have said words to the effect of “Nanny and [Ms D] say that you and [the paternal uncle] are stupid. You and [the paternal uncle] are idiots and you and [the paternal uncle] lie.”
Also on 16 July 2012 B and the paternal aunt had a conversation where B stated “[Ms D] told me that it didn’t matter what the special man said, they were going to keep going until he said yes for us to live with Nan and Pop”.

Likely effect of any change in the children’s circumstances

Both children were orphaned overnight. There could be no more profound change in their lives. In the time that has transpired since the tragic accident, they have settled into a routine in which they seem to be flourishing.
Both parties agreed in oral evidence that the children were settled and progressing well at school. The thrust of the evidence in exhibit 2 (the children’s school reports from semester 1 2014) gives the impression of children thriving. B is performing at an overall ‘sound’ level and has an average effort rating of 3/5. He participated in his athletics carnival, cross country carnival, SISA and swimming carnival. He also was involved in life education. His teacher commented that B is a “friendly class member who is popular amongst his peers” and as an ability to “gel our class together and provides comfort and friendship to all of his peers”. Further “he has shown steady progress in reading this year”. There are areas of improvement and development indicated, however it is noted that he is improving across all areas of his schooling and when on task he can do most work confidently. C is performing at an overall ‘basic’ to ‘sound’ level and has an effort rating of 3/5 overall. She participated in many school activities including a creative and practical arts program, responsible pet program, soul drumming and life education. Her teacher comments that “[C] is a friendly, enthusiastic student who enjoys the social aspects of school” however it is also noted that “[C] can be disengaged and unmotivated if she is not interested in the topic being taught”. C is said to thrive “on being given responsibility within the classroom” and “participates enthusiastically in class discussions and is starting to make meaningful connections with others in the class”.
The conflict between the two families has been long standing and deep-seated in grief. Whilst counsel for the maternal grandparents during the presentation of the case attempted to focus on the future, the past cannot be entirely ignored. The grief has not abated. It is a risk to elevate hope too much over experience. There is a real risk of changing what is working at the moment, the risk being that it will not be an improvement for the children.
Counsel for the maternal grandparents submitted that the risks associated with change were not unacceptable risks given the potential upside for the children in having the solid support of both sides of their family as they grow up.
On the other hand, there is little risk that the children will not have the solid support of both sides of their family as they grow up, if things are substantially left as they are.

Practical difficulties and expense of the children spending time and communicating with the other family

Counsel for the maternal grandparents sought to rely upon concessions by the paternal uncle and aunt in cross examination that there was no practical difficulty or economic barrier to the child spending time with them. Counsel for the maternal grandparents however did not explore with the paternal uncle and aunt in cross examination what it might cost them to maintain the children for at least another decade.
Neither party provided evidence as to their current financial circumstances. The paternal uncle and aunt are both in full time employment in seemingly secure jobs. The maternal grandmother has retired and the maternal grandfather runs his own business with no current thought of retirement. When he does retire however, he indicated that he and his wife would need the assistance of Commonwealth benefits. Looking at the long term, the paternal uncle and aunt have a greater financial capacity to support the children. The parties who primarily have the children with them will also be able to draw upon the trust monies to assist them with the costs of the children.

The capacity of each of the parties to provide for the needs of the children, including emotional and intellectual needs

Counsel for the maternal grandparents correctly made the point that the maternal grandparents have successfully raised four children to adulthood. There can be no doubt that the maternal grandmother in particular can capably attend to the children’s physical and intellectual needs. Counsel for the maternal grandparents relied upon the fact that the maternal grandparents had successfully raised four children in support of a proposition that there should be an order for equal shared parental responsibility.
Counsel for the maternal grandparents pointed to the concessions obtained during cross examination from both the paternal uncle and aunt that in their view the maternal grandparents were able to provide for the children’s emotional needs. Whilst a concession in those general terms was made by the paternal uncle and aunt, I find that the provision of the children’s emotional needs are not currently being optimally met because of the chasm that presently exists between the two families charged with looking after the children’s emotional needs. Whilst they each individually can do so, the provision of those emotional needs would be best met if the understandings between the two families could be significantly improved.
I accept the evidence from the paternal aunt that she is the person primarily involved in organising the children’s school week (the children do not currently have homework to do on weekends with all homework being given at the commencement of the week and due by the end of the week).
Although both the paternal uncle and aunt are working, the paternal aunt and uncle have adjusted their lives around the children’s needs.
As mentioned above, the maternal grandfather has had health problems. He has high blood pressure for which he takes medication. The maternal grandfather was first diagnosed with Lymphocytic Leukaemia in 2009 after a routine medical check with the NSW Ministry of Transport in relation to his accreditation to hold a license to perform bus charters. Since then he has been treated by his regular doctor, Dr Q from R Medical Centre, and also Clinical Associate Professor S. Annexure A to the maternal grandfather’s affidavit is a letter from A/P S dated 19 June 2014. She refers to the maternal grandfather’s condition as “low risk, early stage chronic lymphocytic leukaemia”. She states “this is a subclinical diagnosis with no lymphadenopathy, organomegaly or systematic symptoms” and that the maternal grandfather is expected to have a life expectancy of aged-matched controls and indeed there is strong likelihood that he will never require any therapy for this disorder. Further, she indicated that should therapy be required, there are quite suitable options with expected prolonged survival. A/P S decreased the frequency of the maternal grandfather’s monitoring to every 9-12 months.
Counsel for the paternal uncle and aunt submitted that little weight could be placed upon that letter from A/P S given that she was not available for cross examination. I accept there is some force in that submission. Given the lack of initial disclosure and the way the information in relation to his diagnosis has been presented to the court, I do have some doubts about the maternal grandfather’s health. I do however proceed on the basis that the maternal grandfather currently has no health difficulty in the short term apart from blood pressure for which he takes medication.
Counsel for the maternal grandparents rightly points out that the paternal uncle and aunt’s own proposals (that the children spend significant amounts of time with the maternal family over the next ten years) mitigate against any serious submission made based upon the maternal grandfather’s health.
As indicated earlier, the maternal grandfather is currently self employed. Evidence was not given with any particularity in relation to what hours he worked. He said it was not 40 hours a week but he was unable to estimate how many hours it was. He did indicate that in some weeks he could work for a number of hours on each day of the week. The maternal grandmother sought to minimise the effect of the maternal grandfather’s employment by asserting that he usually did not work when the children were in their care. The maternal grandfather also stated that he hired other people on Wednesdays so he could be home when the children spent time with him and the maternal grandmother. I had some disquiet about accepting the assertions by the maternal grandparents on their face that would indicate that the maternal grandfather is ordinarily present in the household when the children are there. I do not think that is in fact what is happening. It is most likely that the maternal grandmother is the person who shoulders the primary parenting role during periods of time when the children are in the maternal grandparents’ household, together with some assistance from her daughters.
I do not have a great deal of evidence about how or whether any financial support is paid by one family to the other. Neither party however asserted that the other was not fulfilling obligations that they had to maintain the children. Counsel for the maternal grandparents submitted that the court would not find that an extension of three nights a fortnight to seven nights a fortnight would create an economic impost upon the maternal grandparents which would be a tipping point. Certainly I find that in the short to medium term the maternal grandparents would have the financial capacity to support the children on the week about basis proposed by them.

The maturity, sex, background and lifestyle of the children and the parties

I cannot ignore the age of the maternal grandparents as a fact in this case. The maternal grandmother is currently 66 years of age and the maternal grandfather is 63 years of age. The maternal grandparents are a generation older than the paternal uncle and aunt. The paternal uncle and aunt are of a similar age to the children’s deceased parents. Whilst I accept that the maternal grandmother does not see a difficulty with the fact that she will be 76 years of age when C is 16 years of age, the paternal uncle and aunt certainly have youth and life expectancy on their side.

If the children are Aboriginal or Torres Strait Islander

Not applicable.

The attitude to the children and the responsibilities of parenthood demonstrated by each of the applicants and respondents

Previous attitudes held by the maternal grandparents are changing. The final phase of the hearing did provide an occasion of focus for the maternal grandparents and for some potential longer term changes. The maternal grandfather said that he had reached the view that it was time to look forward and move on. He indicated that it was time to agree to go to therapeutic counselling. I am of the view that his change of heart was genuine. The maternal grandmother in her evidence indicated that she now understood what she had not previously understood about some of the things that had or had not happened for the children in the home of the paternal uncle and aunt.
As set out earlier, the family consultant was of the view that the maternal grandparents and the maternal aunties all had similar attitudes and views.

Any family violence involving the children or a member of the children’s family

Not applicable.

Likelihood of order leading to further proceedings

Overall, the family consultant gained the sense that the whole of the maternal family was struggling with the enormity of their loss and that negativity towards the paternal uncle and aunt is connected to grief. She conceded with counsel for the maternal grandparents that this case is defined by a lack of prior familiarity, mutual grief and a mutual concern over the arrangements for the children. She agreed that it was an unusual way that the parties had to start and maintain a relationship and she was of the view that the effect of final orders could result in the relationship no longer being defined by litigation.
The two families have a meticulous track record in relation to complying with court orders and I take that factor heavily into account. I don’t think future litigation is particularly likely once final orders are made.
The parties have agreed, at last, to involve themselves together in some therapeutic counselling. I did give some consideration to adjourning the matter part heard to allow that counselling to take place, however given the length of time that the parties have been involved in litigation and the benefits I believe will flow to both sides of the family if the litigation is brought to an end, it is time to make final orders. As I made clear to the parties at the end of the hearing and as I mention below, the orders I make can be varied by the parties in writing in the event that they all agree to do so.

Other relevant matters – the Trust fund

A significant fund of money was donated as a result of public appeal following the accident and other monies were available from the superannuation funds of one or both the deceased parents. This money to date has been frozen and held by the manager of IMB in P Town.
At exhibit 6 is a letter from the paternal uncle and aunt’s solicitors dated 27 May 2013 which is as follows:
We refer to previous correspondence in relation to the above matter and note that the parties had previously agreed to establish a trust for the children in which representatives from both parties were appointed trustees with an independent third party to be appointed to assist the parties in the event of any disagreements.
Our office has been provided with a draft Trust Deed however, we note the omission of the proposed independent third trustee.
Our clients would favour proceeding with an independent third trustee and we ask that your clients provide you with suggestions for suitable persons…
The maternal grandparents solicitors replied on 24 June 2014 effectively stating:
…We are instructed that the Respondents have sought advice from the respective financial institutions and at this stage will hold off on establishing a trust where representatives from both parties are appointed as trustees and an independent third party is to be appointed also as a trustee.
Once we have further instructions from the Respondents we will advise you accordingly.
In both their affidavits, filed 5 December 2013, the paternal aunt and uncle indicate that their firm belief is that the money should be placed into a trust account for the children in which a mutual third party controls the money. If a mutual third party cannot be agreed, then they believe it should be placed with the Public Trustee.
Although the paternal uncle and aunt indicate in those affidavits that because the maternal family had not wanted to try and work with them to resolve the issue, their view was that neither party should be involved with the trust, at the final hearing the parties seemed to agree that two or three members of each the paternal family and maternal family should be appointed as trustee’s together with an independent third party trustee. There was no proposal as to who that person should be.
As set out above, an assertion was made by Ms E Merrill to the family consultant that the paternal uncle was motivated to maintain the application in relation to the children by money. During her oral evidence, Ms E Merrill indicated that although she had made that statement to the family consultant, it was occasioned by grief. It is probable that at some point in time there existed within the maternal family that notion that the paternal uncle was motivated by money. I accept however that the maternal grandparents currently do not hold that view. For one thing, the responsibility the paternal uncle and aunt have taken on is until each of the children reaches the age of 18 and is unlikely to be compensated for by the amount of money that is available.
Suggestions were made by counsel for the paternal uncle and aunt that in fact it was the maternal grandparents who were motivated by money. This arose out of notations 7 and 8 made 19 September 2013 to the following effect:
7. Leave granted to the respondents to issue subpoenas to Suncorp, IMB, Metro Mines and any [Country T] club or organization that raised funds for the children and any other person or entity who raised funds for the children.
8. I note that the lawyer for the respondents has indicated to the court that the control of those monies may be dependent upon my determination in respect of parental responsibility.
Counsel for the paternal uncle and aunt’s suggestion was that, because the maternal grandparents are applying for sole parental responsibility, they are doing so for the purposes of being able to control the trust fund for the children. Whilst counsel for the paternal uncle and aunt put that proposition to both the maternal grandparents, they did not accept that proposition, nor do I

Other relevant matters – future therapy

In her Child Responsive Program Memorandum, the family consultant strongly suggested that the families seek assistance within a grief counselling setting to clear the way for them to help each other to raise the children. In their interviews for the family report one year later, the paternal uncle and aunt indicated that they requested to have joint counselling with the maternal grandparents, but received a letter in return declining that request because of the level of mistrust between the families. The maternal grandparents confirmed in their interview for the family report that they had declined to attend counselling at this point in time. Exhibit 6 includes a letter from the paternal uncle and aunt’s solicitors dated 27 May 2013 inviting the maternal grandparents’ to participate in joint counselling sessions. The response received from the maternal grandparents’ solicitors on 24 June 2013 stated “…the Respondents have given due consideration to counselling but do not think that at this stage of the proceedings, any benefit will arise from such action considering the mistrust that continued to exist between the parties.”

The maternal grandfather during the hearing indicated that he had been thinking for some time about the need to focus on the future, for the sake of the children. He had accepted that it was time to agree to be involved with the paternal uncle and aunt with the assistance of a therapist. The maternal grandmother indicated that she had come to the same view whilst adding that she never would be able to get over the loss of her daughter.
The family consultant recommended that both sides of the family involve themselves in family therapy to attempt to deal with issues, particularly of grief. She suggested certain therapists.
At the conclusion of the hearing, I made orders by consent that the parties forthwith involve themselves in therapy.

CONCLUSION ABOUT TIME

The children are currently seeing their maternal grandparents for a substantial and significant time each week. The maternal grandmother actually sees C on nine days a fortnight given that in addition to the five scheduled periods of time, the maternal grandmother on average goes to the school four times a fortnight and involves herself in C’s reading class (which includes at least five minutes of reading to C herself).
The paternal uncle and aunt’s primary proposal is that the current arrangements in relation to time remain in place.
Further, the paternal uncle and aunt proposed that if I was to make orders for four nights per fortnight, the Wednesday should be extended to overnight, in the week not leading up to the overnight weekend time with the maternal grandparents
The maternal grandparents continued to propose an equal time arrangement between the parties.
Counsel for the maternal grandparents submitted that given the parties were agreeing the children could spend time week about and even up to two weeks during Term 4 school holidays if the parties wanted to go away for a holiday, then there should be no difficulty with week about during school term. The paternal aunt disagreed with that proposition saying that there was a clear distinction to be drawn between term time and school holiday time. The paternal aunt suggested that holidays are different (to term time) as you go to the movies, the beach, spend time at aunties’ houses seeing cousins, and school term is school term. She stated that it is “like business and pleasure”. This evidence is consistent with the opinion of the family consultant on this topic.
I am cognisant that the family consultant opined that the best arrangement for the children would be for the children to spend five nights a fortnight with the maternal grandparents whilst maintaining the current Wednesday afternoons. The family consultant’s rationale for her proposal is that it maximises the children’s time with and their chances to be embedded in the maternal family whilst at the same time maintaining a stable base with the paternal uncle and aunt. The family consultant conceded that her recommendations were a leap of hope against the background of experience over the last three years.
I am being asked to make a final call in this matter prior to therapeutic counselling taking place. It is appropriate that I end the litigation. I am heavily influenced by the fact that the current arrangements for the children on all normal indices are working well for them. I am reluctant at this point to change things very much.
There is, in my view, some advantage to the children being taken to school by their maternal grandmother on an additional day during a fortnight. This will give the maternal grandparents some ability to be involved in the children’s homework and more involved in the children’s school life. I acknowledge that it will mean that in all probability the paternal aunt and the maternal grandmother will have to cooperate in relation to school uniforms, but as I have commented elsewhere, they do not seem to have had any difficulty in doing so in the past. This proposal will provide a more stable routine for the children during the school week. Accordingly, the only change that I intend to make to the children’s time with their maternal grandparents during school term is to extend the Wednesday afternoon, which immediately follows the weekend when the children are with their maternal grandparents, to an overnight occasion. I have chosen not to do so on the following Wednesday given that the Family Consultant warned against the disruption for the children in sleeping in different households on three consecutive nights during a school week.

PARENTAL RESPONSIBILITY

The maternal grandparents’ position in relation to parental responsibility is slightly difficult to understand. Although they are seeking an equal time order, they are seeking an order which would give them ultimate decision making on any major long term issue in respect of the children. In terms of parental responsibility, that seems to be an acknowledgment that at the current time, an order for equal shared parental responsibility would be problematic.
Counsel for the paternal uncle and aunt also points to the fact the maternal grandparents’ case outline when discussing s 60CC(3)(l) matters, refers at that point to the paternal uncle and aunt’s proposal for consultation in the following terms:
Considering the longstanding level of mistrust between the parties, the Respondents are of the view that the Applicant’s Orders creates a mechanism for the Applicants to deem that a difference of opinion and/or dispute has arisen and that they have the final say. This pseudo consultative mechanism could trigger further proceedings in relation to the children in the event that the parties cannot reach agreement concerning matters of parental responsibility.
The paternal uncle was optimistic that his proposal, that he and his wife have parental responsibility on the basis that there be genuine consultation, might be able to operate in practice. He said that he hoped that it would be able to work. He was however far more pessimistic if a mirror reverse order was made. He held the view that even recent events would indicate that proper consultation may not take place if the maternal grandparents had the right to make the final decision about major long term issues. He specifically referred to the fact that B had given a victim impact statement to the Victorian Police without either he or his wife knowing about the fact that it had happened and the 2013 Christmas letters. (In relation to the victim impact statements and the 2013 Christmas letters, as I have indicated, their real significance is as an indicator of the lack of communication that currently exists between the two families.)
There are some positive indicators in terms of making an order for equal shared parental responsibility. They arise out of the history over the last three years of the parties being able to arrange the transition of the children from one household to the other without any incident whatsoever. All parties report that in terms of the children’s time with both families, there has been total compliance with court orders (in fact the only breach of court orders seems to be the lack of consultation in joint decision making in relation to B’s victim impact statement being given). It was clear that nobody in the maternal family gave a thought to whether or not there was any responsibility under the existing shared responsibility order to consult and seek a joint decision with the paternal uncle and aunt in respect of the victim impact statements.
The maternal grandparents came to agree on a position during the trial that there would be consultation in relation to major long term issues prior to the maternal grandparent’s making any final decision, but that was not their starting position at the commencement of the hearing. I do not have total confidence in the maternal grandparents consulting with the paternal uncle and aunt at this point in time. The maternal grandfather showed little insight in oral evidence as to what might be expected if an order for parental responsibility was made with a provision that there be consultation.
Given the history of the families working in isolation from each other, there has been no real testing of consultation and joint decision making. If an order for equal shared parental responsibility was made, at the current time, there still is an appreciable risk that the parties will not be able to reach a joint decision and in those circumstances the parties will have to come back to court. That is not a desirable outcome for the children.
Ultimately and reluctantly at this point in time I conclude that an order for equal shared parental responsibility would be problematic and it is a safer course in the best interests of the children to give to one of the parties the sole ability to make the final decision in relation to any major long term issue affecting the children. Given that the children will primarily live with the paternal uncle and aunt, it is appropriate that that order be made in favour of the paternal uncle and aunt.
Hopefully the order will not assume any great relevance given that it will be accompanied by a serious obligation on the paternal uncle and aunt to consult with the maternal grandparents on any major long term issue. The hope is that, with the help of therapy, both families will involve themselves with one another in the lives of the children in a less fractured way than has happened to date. If that happens, it is likely that there will be mutual decisions without the need for the paternal uncle and aunt to exercise the right that this order gives them to make a final decision against the wishes of the maternal family.

PROPOSED ORDERS

I am mindful that an order has been made that the parties attend therapeutic counselling. It may well be as a result of that process the parties reach a decision that a different arrangement in relation to the children spending time with the maternal grandparents is in their best interests.
Division 4 Part VII of the Act allows parents from time to time to enter into a parenting plan which may have the effect of varying or revoking an order of a court. If at some future point in time the paternal uncle and aunt formed the view, that it was in the children’s best interests to increase or reconfigure the children’s time with the maternal grandparents, the orders I make could be varied by a parenting plan.

The Trust funds

All parties indicated there was agreement in respect of trust funds. The agreement is that a trust will be established with one or two members of each family as trustees and an independent third party as a trustee in case the two families cannot agree upon an appropriate use of funds for the children. Given that all parties were asserting that there was in fact no impediment to implementing the suggested arrangement, I would expect arrangements be finalised as soon as possible so that monies might be available for the children should the need arise.

I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 8 August 2014.

Associate:

Date: 8 August 2014

SCHEDULE 1

CHRISTMAS EVE AND CHRISTMAS DAY

That the children are to spend time with the maternal grandparents from 10am Christmas Day until 4pm Boxing Day in each odd numbered year and from 4pm Christmas Eve until 10 am Christmas Day in each even numbered year.
That the children otherwise live with Mr and Ms Mateus from 10am Christmas Eve until 4pm Boxing Day.

CHRISTMAS SCHOOL HOLIDAYS

That the parties are to spend time with the children for one half of the Christmas school holidays as agreed or if failing agreement on a week about basis commencing at 9.00am the Monday immediately after the conclusion of school with the children to spend the first week with whichever party they spent time with the weekend immediately following the conclusion of school and thereafter change over is to occur at 10.00am each Saturday.
That in the event that either parties wishes to take the children on a holiday exceeding one (1) week during the Christmas School Holidays the following provisions are the apply;
4.1That the party wishing to take the children on the holiday provide the other party with two (2) months notice of their intention to take the children for longer than one (1) week;
4.2That the holiday not exceed two (2) weeks;
4.3That the other party be permitted to have the children for two (2) weeks either immediately prior to or immediately following the intended two week holiday; and
4.4That the changeover remains 10am Saturday;
That the Order concerning Christmas School Holidays be suspended to enable the parties to spend time with the children pursuant to the above Orders concerning Christmas Eve, Christmas Day and Boxing Day.
That the Orders concerning the time the Children spend with the respective parties during school term be suspended to enable the Orders concerning Christmas School Holidays, Christmas Eve, Christmas Day and Boxing Day to occur.

ALL MID YEAR SCHOOL HOLIDAYS

That the parties are to spend time with the children for one half of all mid year school holidays as agreed or if failing agreement on a week about basis commencing at 9.00am the Monday immediately after the conclusion of school with the children to spend the first week with whichever party they spent time with the weekend immediately following the conclusion of school and thereafter change over is to occur at 10.00am each Saturday.
That the Orders concerning the time the Children spend with the respective parties during school term be suspended to enable the Order concerning mid year School Holidays to occur.

EASTER

That the children are to spend time with the maternal grandparents from 7pm Easter Saturday until 7pm Easter Monday in each odd numbered year and from 7pm the Thursday immediately prior to Good Friday until 7pm Easter Saturday in each even numbered year;
That the children otherwise live with Mr and Ms Mateus from 7pm the Thursday immediately before Good Friday until 7pm Easter Monday.

10(a) That in the event that the children are due to attend school on the Tuesday immediately following Easter Monday, then the time they spend with either party on the Easter Monday be extended to before school on the Tuesday.

That the Orders concerning the time the Children spend with the respective parties during school term be suspended to enable the Orders concerning the period from 7pm Good Friday to 7pm Easter Monday to occur.
That the Orders concerning the time the Children spend with the respective parties during mid year school holidays be suspended to enable the Orders concerning the period from 7pm Good Friday to 7pm Easter Monday to occur.

MOTHER’S DAY

That, in the event that the children are not otherwise spending time with the maternal grandparents on Mother’s Day pursuant to these Orders, the children are to spend time with the maternal grandparents from 10am to 4pm Mother’s Day.
That, in the event that the children are not otherwise spending time with Mr and Ms Mateus on Mother’s Day pursuant to these Orders, the children are to spend time with Mr and Ms Mateus from 10am to 2pm Mother’s Day.

FATHER’S DAY

That, in the event that the children are not otherwise spending time with the maternal grandparents on Father’s Day pursuant to these Orders, the children are to spend time with the maternal grandparents from 10am to 2pm Father’s Day.
That, in the event that the children are not otherwise spending time with Mr and Ms Mateus on Father’s Day pursuant to these Orders, the children are to spend time with Mr and Ms Mateus from 10am to 4pm Father’s Day.

MS G MERRILL’S BIRTHDAY

That the children spend time with the maternal grandparents on Ms G’s Birthday (22 May) from 10.00am until 9.00am the following day (or before school if a school day);

MR J MATEUS’S BIRTHDAY

That the children spend time with Mr and Ms Mateus on Mr J’s Birthday from 10.00am until 9.00am the following day (or before school if a school day);

THE MATERNAL GRANDMOTHER’S BIRTHDAY AND M’S BIRTHDAY

That the party not already spending time with the children on 18 February be permitted to spend time with the children from 10.00am to 2.00pm if a non-school day or from after school until 6.00pm if a school day.

BIRTHDAY’S OF ANY SUBSEQUENT CHILDREN OF MR AND MS MATEUS

That in the event that Mr and Ms Mateus have further children, that the children spend time with Mr and Ms Mateus from 10.00am on the date of that child’s birthday until 9.00am the following day (or before school if a school day).

THE CHILDREN’S BIRTHDAYS

That the party not already spending time with the children on the children’s birthdays, being 25 April and 9 February, be permitted to spend time with the children from 10.00am to 2.00pm if a non-school day or from after school until 6.00pm if a school day.

OTHER BIRTHDAYS

That, in the event that the children are not otherwise spending time with the maternal grandparents on the First Respondent Mr Merrill's birthday, the Maternal Aunt, Ms E's birthday or the Maternal Aunt, Ms D's birthday, pursuant to these Orders, they are to spend time with the maternal grandparents from 10.00am until 2.00pm if a non-school day or from after school until 6.00pm if a school day.
That, in the event that the children are not otherwise spending time with Mr and Ms Mateus on the First Applicant Mr Mateus’ birthday, the Second Applicant Ms Merrills's birthday, the Paternal Grandmother's birthday or the Paternal Grandfather's birthday, pursuant to these Orders, they are to spend time with Mr and Ms Mateus from 10.00am until 2.00pm if a non-school day or from after school until 6.00pm if a school day.

COUNSELLING

That forthwith the parties attend upon a suitable counsellor for therapeutic purposes in relation to;
a)grief;
b)improving the relationship between the Applicants and Respondents,
as soon as practicable with the costs of same to be shared jointly between the parties. In the event that the parties can not agree as to the appropriate counsellor then the parties are to attend upon either Ms U or Mr V, whoever is available at the earliest time.

SCHEDULE 2

Applicant Paternal Aunt and Uncle:

Initiating Application filed 27 March 2012
Affidavit of Ms Mateus filed 19 June 2014
Affidavit of Mr Mateus filed 19 June 2014
Affidavit of Ms Mateus filed 5 December 2013
Affidavit of Mr Mateus filed 5 December 2013
Affidavit of Ms H Mateus filed 5 December 2013
Affidavit of Mr I filed 5 December 2013
Affidavit of Ms L filed 5 December 2013
Parenting Questionnaire by Ms Mateus filed 19 March 2013
Parenting Questionnaire by Mr Mateus filed 19 March 2013

Respondent Maternal Grandparent’s:

Response filed 11 May 2012
Affidavit of Ms Merrill filed 17 July 2014
Affidavit of Mr Merrill filed 17 July 2014
Affidavit of Ms E Merrill filed 17 July 2014
Affidavit of Ms F Merrill filed 17 July 2014
Affidavit of Ms D Merrill filed 17 July 2014
Parenting Questionnaire by Maternal Grandparents filed 15 March 2013

Both parties relied upon:

Family Report by Ms W dated 20 August 2013
Child Responsive Program Memorandum by Ms W dated 24 August 2012

[2014] FamCA 643

8 August 2014

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts