Maxwell and Finney - [2012] FMCAfam 872

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAXWELL & FINNEY

[2012] FMCAfam 872

FAMILY LAW – Interim arrangements for care of child aged nine – child has lived with maternal grandmother for majority of his life to date – child has had limited relationship with father – child’s mother recently deceased – father seeks final orders child live with him – any change in child’s living arrangements vigorously opposed by grandmother – poor and mistrustful relationship between parties – child report to be anxious at prospect of a change in living arrangements – best interests – nature of interim hearing – meaningful relationship with parent.

Family Law Act 1975, ss.60B, 60CC

Applicant:

MR MAXWELL

Respondent:

MS FINNEY

File Number:

ADC 5035 of 2009

Judgment of:

Brown FM

Hearing date:

5 June 2012

Date of Last Submission:

5 June 2012

Delivered at:

Adelaide

Delivered on:

5 June 2012

REPRESENTATION

Counsel for the Applicant:

Ms Kovaks

Solicitors for the Applicant:

Radin Legal

Counsel for the Respondent:

Ms Tinning

Solicitors for the Respondent:

Barnes Brinsley Shaw Lawyers

ORDERS

The matter is fixed for final hearing before Federal Magistrate Brown on 24, 25 and 26 October 2012 at 10:00am NOTING 3 days allowed.
On or before 10 October 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 26 September 2012.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 10 October 2012.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The respondent grandmother authorise the [T] School to provide to the father a copy of the child [X] born [in] 2002 (hereinafter called “the child”) mid-term report provided if there is any expense in respect to the report the father pay such expense and thereafter the same provisions apply to each subsequent school report for the child.
The father be at liberty to make an appointment with the principal of the child’s school to discuss the progress and any issues pertaining to his education provided that there be not more than one such appointment per term.
The father spend time with the child as follows:
(a)on alternate Saturday’s commencing 9 June 2012 from 1:00pm to 4:00pm with the time to increase from 1:00pm to 5:00pm from 15 September onwards;
(b)on alternate Mondays commencing 18 June 2102 from 4:00pm until 6.30pm for the purposes of the father and child having an evening meal together at the father’s home.
The father is to collect and return the child on each Saturday at the [O] car park and on each Monday from the grandmother’s home.
The father be restrained and an injunction granted restraining him and any other person in his presence or hearing from discussing these proceedings with the child or from discussing the future living and care arrangements of the child, with the child.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ACD 5035 of 2009

MR MAXWELL

Applicant

And

MS FINNEY

Respondent

REASONS FOR JUDGMENT

These reasons for judgement were delivered orally, immediately following the interim hearing. Given the controversy of the matter, the reasons have been transcribed. In these circumstances, the transcript has been edited. Errors of grammar and syntax have been corrected and an attempt made to make the orally delivered reasons amenable to being read.
This afternoon I have to deal with the matter of Maxwell and Finney. It is an interim parenting matter. The parties to the proceedings are

Mr Maxwell and Ms Finney. Mr Maxwell, to whom I will refer as the father, commenced these proceedings on 14 July 2010.
Ms Finney, to whom I will refer as the grandmother, responded to the application, in a formal sense, on 12 November 2010. Having said that, it will be obvious to all concerned that these proceedings have been on foot for a period approaching two years.
That is a long time for anyone to be involved in court proceedings, particularly when the interests of a young child are concerned. These proceedings are about arrangements for a young boy, [X], who was born [in] 2002.
One of the reasons these proceedings have taken such a long time to come to this point and one of the ironies in this case is that, up to this stage, I have not had to make any decision about [X] whatsoever. At each stage, the parties have agreed on arrangements for his care on an interim or provisional behaviour.
As such it had been hoped that these arrangement could develop in a natural or organic way at a pace suitable for [X] and without the need for difficult and adversarial proceedings to take place between the parties themselves. As will become clear, as these reasons for judgement develop, the father and grandmother do not have an easy relationship with one another.
The rationale for this incremental approach and why the case has been on foot for such a significant period is that [X]’s life has not been without its difficulties and its sadnesses. [X]’s mother passed away on [date omitted] 2009. I understand she was suffering from cancer. For anyone to lose a parent in that fashion is very difficult but for a child, it must be very, very difficult indeed.
It is also clear, I think, from the affidavit material that Mr Maxwell was not involved in [X]’s care for the first years of his life. There was a poor relationship between him and [X]’s late mother. After Mr Maxwell and [X]’s mother separated, in what seem to have acrimonious circumstances, [X]’s mother and [X] moved in with

Ms Finney and [X] continued to live with his mother and grandmother until his mother’s death and thereafter he has stayed in Ms Finney’s care.
Mr Maxwell began these proceedings not long after [X]’s mother had died. In his application, on a final basis, he seeks orders that the child live with him and spend time with his grandmother at times to be agreed between the parties.
The grandmother, I am told by her counsel, Ms Tinning, was upset by the application and regards it as being somewhat insensitive, both in its timing and its implication that [X] should be subject to a very significant change in arrangements for his care, at a vulnerable stage of his life. Anyway, the difficulties between the maternal and paternal aspects of [X]’s family, which were evident both before and after his parents separated, have continued up until this stage.
Given this background, it is common ground between the parties and those associated with them that the paternal and maternal aspects of [X]’s family do not communicate well with one another and view the other with a certain level of suspicion and mistrust. In these circumstances and without ascribing any fault at this stage, there is no doubt that [X] did not have any relationship whatsoever with his father for a very significant period of time.
So given all those features, it is self apparent that this is a very difficult matter, which is unlikely to be easily resolved consensually. It is also likely to be the case that [X] himself is a vulnerable child, given the loss in his life and the level of division within his family.
Given these difficult circumstances, the parties have sensibly agreed to engage an expert to be involved in these proceedings to give them advice about what is the best thing for [X] and to get some input from that expert as to how best to proceed with developing a relationship between [X] and his father.
The expert is Ms J. Ms J has met with [X] and the parties on two occasions and prepared detailed reports. Orders have been made on several occasions, with the consent of each of the parties concerned, in the light of what she has recommended.
Ms J first saw [X] in February of 2011. She regarded [X] as being a vulnerable child for a number of reasons. Firstly, he did not have a relationship at all with his father at that stage and, as such, had lost an appropriate male role model. Secondly he was obviously coming to terms with the loss of his mother. Thirdly, it was apparent to Ms J that there was a high level of family conflict in his life.
Into this difficult situation was introduced the possibility that [X] might be required to live with his father. This after all was the substance of Mr Maxwell’s application. I think no matter how remote that possibility may or may not be, that must complicate this difficult matter and add to the tension implicit in it.
In addition, Ms J, at the time of her first report, after having considered [X]’s age, thought that he was at a developmentally vulnerable age. Accordingly, Ms J was of the view that a gradual or incremental approach should be taken in terms of introducing [X] to his father.
Ms J also noted in her first report that the process she was in favour of was not to be regarded as one leading to a reunification between [X] and his father in the sense that [X] would ultimately end up living with his father. On that basis, she recommended that [X] should see his father one hour per fortnight on a Saturday or Sunday afternoon and, after about nine months, there should be some review.
Since that time there have been a number of such reviews and the arrangements by which the father has been spending time with [X] have changed from time to time. Ms J has met again with [X] and the parties and provided a further report. However, there is now a deadlock between the parties and they are currently incapable of moving forward consensually.
From the father’s point of view the process has been too slow. From the grandmother’s point of view it has been too fast. Accordingly the court must now step in and make a decision. In that context I will attempt to explain the legal principles which I have to apply to make that decision.
In deciding this case, I have to do what I think is likely to be in [X]’s best interests. Of course, as is well known and self explanatory, [X]’s best interests are the paramount or most important consideration in this case.
In deciding what is the outcome which is likely to be in [X]’s best interests, I have to look at a long list of matters in the Family Law Act. If you are interested, you can look them up for yourselves. They are set out in section 60CC of the Family Law Act. These considerations are set out in two categories – primary considerations and additional consideration.
There are two primary considerations. Firstly the need to ensure that the child concerned has a meaningful relationship with both his parents. Secondly the need to ensure the child is protected from harm, both physical and psychological harm, which may arise if he is exposed to any kind of abuse or neglect, including family violence.
In this sad case, [X] only has one living parent. As I have explained he is a parent who has, for reasons into which I am not specifically enquiring today, played no significant role in [X]’s life for a very lengthy period of time. But I am not in a position today and nor does the law permit me to disregard the importance that a parental relationship can potentially have for a child.
I say that in this context. As I observed when this case began today, Ms Finney is a person in her mid seventies. In this day and age, that is not to be regarded as an advanced age. Although I have received no evidence about Ms Finney’s health, I think she has deposed that she is hale and hearty and so she looks from my observations of her in court. I wish her, of course, long and good health.
But [X] is still quite a little boy. He is not yet ten and so some years away from his majority. His grandmother will be in her eighties when he becomes an adult. Parental relationships remain important for individuals not only as children but also as they grow into adulthood and onto middle age. Clearly the probability is that Mr Maxwell will out live Ms Finney. This adds significance to the benefits [X] is likely to derive from having a relationship with his father as he matures.
Clearly [X] has not had a strongly attached relationship with his father up to this stage. In tragic circumstances he has lost his mother. Given this situation, it seems likely to be of significance to him, as he gets older, that he knows that he has a father and has some level of relationship with him, particularly if his father loves him. As we all get older, we benefit from having a parent who loves and cares about us.
So, in my view, this case is about a significant matter in any longer term view of [X]’s life and development. As I observed to Ms Tinning earlier, I cannot do anything about the past. It is done and dusted. I can only look to the future and put in place the orders which I think will advance [X]’s best interests into the future.
I have to decide this case within the framework of the law, which says that a child, provided it is in the child’s best interests, has an entitlement to know and benefit from having a relationship with a parent. Sadly, in this case, [X] only has one surviving parent and he is many years from being an adult.
The section speaks of a child benefitting from having a meaningful level of relationship with a parent. In this difficult case, [X] has not known his father at all until fairly recently. As such, the relationship has been far from a meaningful one. To the contrary, it has been somewhat artificial. The circumstances surrounding it have been far from conducive to allowing it to develop in a natural or organic way.
However a child’s parents are a very likely source of unconditional love and approval for the child concerned. In addition parents provide children with knowledge and information about their wider family and forebears. Parents endow their children with warmth and approval and, as such, children feel a sense that they are unique and special to their parents. For these central and self apparent reasons, children benefit from having a meaningful relationship with both their parents.
It is, I think, in these senses that the father has the potential to be an important person in [X]’s life and as such [X] in turn has the potential to benefit from knowing and spending time with his father. One of the principles underpinning the part of the Family Law Act dealing with children speaks of a child’s right to know a parent regardless of other circumstances pertaining to the relationship between his mother and father [section 60B(2)(a)].
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
Every child is different. Every child’s circumstances are different. Orders have to be made which respond to the individual circumstances of the child concerned so that the child’s best interests are achieved. So there is no automatic assumption that fathers or mothers get weekend time or holiday time or any other kind of time.
The fundamental requirement is that the orders be in the best interests of the child concerned. For the reasons which I have outlined and about which Ms J has gone into in some detail, [X] is not a run of the mill child. No child is run of the mill. But undoubtedly [X] is not without his difficulties.
I am well aware – I am very well aware – of the artificiality of me making decisions about a child whom I have never met, in these very formal circumstances. But necessarily, because there is a dispute between the two of you, I have to make such a decision. That is one of the fundamental functions of the court – to resolve disputes between citizens.
However that does not reduce the artificiality of the decision making process, particularly at the interim stage. At this stage, I know only what I have read about each of you in your respective affidavits. I have not seen or heard either of you in the witness box, perhaps being asked to answer questions you may find difficult to answer. I have not seen either of you under pressure.
As such, it is difficult for me to ascertain what are your respective motives in this matter but there will be a time – and I hope it will not too far away – when there can be an extensive hearing, which will include cross-examination and which will allow me to make any necessary findings of fact required in the matter. At the final hearing stage, a lot of time will be put aside for determining the case and importantly for me to hear directly from Ms J and for her recommendations in the case to be more thoroughly tested.
As I said to Ms Tinning, Ms J does not decide the case. That is the responsibility which I have. At this stage, I have to determine what extension should be made to the time [X] is spending with his father. At the end of the day, what the precise difference or significance between three hours or four hours a fortnight or a month for this boy, or a longer period is unclear, other than I accept that he is a vulnerable child and, as such, I have to be cautious in making changes to the current regime.
Relationships are not created overnight. Necessarily they take time to develop. I think if Ms J was here and I asked her, she would say that to develop a relationship, it needs both quantity of time and quality of time for a relationship to develop. The ideal outcome being a situation where [X] is just comfortable being with those who love him, including his father and this situation is not one which has been artificially stimulated, nor one which has been artificially forced along and nor importantly is it one which has been artificially confined.
In an ideal world, the two of you would have some capacity to empathise with the other, to think what it is like to be in the other’s shoes, and also, most importantly of all, to think what it is like to be [X], what it is like to be him. As such the two of you would be able to focus on his needs. As I say, he is a child who is not without his difficulties. However given your history with one another empathy is a quality which is in short supply in this case.
Anyway, some orders were made at an early stage that from 15 April 2011, [X] would meet Mr Maxwell at the [O], which is fairly close to where each of the parties live, and spend time with him there for an hour. To oversee this process the school chaplain from [X]’s school [T], a Mr H, was going to be present, to ease things in from [X]’s point of view. Mr Maxwell was to come to the [O] on his own and father and child were to interact together in this neutral setting for what is obviously a brief period of time.
The parties agreed to those arrangements and I made an order to that effect. Later, the order was continued in July, August and September of 2011. In October of 2011, the time was consensually increased to an hour and a half each visit, which remained approximately fortnightly, I think.
There were some arrangements for Mr Maxwell to spend time with [X] on Christmas Day. Overtime the pastor from the [omitted] School has dropped out of the picture but the visits have continued at the [O], which is a location with which [X] is apparently familiar. The arrangement of [X] spending approximately one hour per fortnight with his father was in line with the recommendation contained in Ms J’s first report dated 11 February 2011.
Ms J was also asked to revisit her first report to provide some assistance to the parties as to what should be the next step. Ms J saw [X] again in March of 2012 and wrote a second report on 3 April. By this time, [X] had been seeing his father at the [O] fortnightly for a period approaching a year. Mr Maxwell’s position is that it is now time to move on.

In her second report, Ms J has reiterated her view that [X] remains a vulnerable child and therefore it is important, from [X]’s point of view that the process through which he is currently spending time with Mr Maxwell is not viewed by [X] as a precursor to him moving to live with his father. Obviously this will be a question of perception on the child’s part. I suspect that this perception will be influenced by each of the parties and the tension between them.
However, notwithstanding Ms J’s recommendations, at the present time, Mr Maxwell maintains the application he began in July of 2010 that, ultimately, on a final basis, [X] should live with him. Clearly that is not an outcome which is supported by Ms J and is one which is opposed strongly by Ms Finney.
I am concerned that there is a possibility that unless I step in to prevent it, the proceedings will move in a protracted series of incremental hearings following which [X] will gradually spent more and more time in his father’s care, with each such increment being vehemently opposed by his grandmother. The protracted nature of such a process will exhaust the parties financially and emotionally and the lack of closure will be detrimental to all concerned, including [X].
I think there has to be a final hearing and if that hearing involves the adjudication of the live-with issue, well, so be it. The issue needs to be resolved. But Mr Maxwell, through his lawyer Ms Kovaks, has told me that he has considered what Ms J has had to say about the matter and he will be talking with his solicitor about it and it may well be that he will reconsider this aspect of his case.
If that occurs, there is, I think, a good prospect that there will be a thawing of relations between the parties. Certainly, there is, I think, a prospect that there will be a lessening of the mistrust between them. That, I think, is likely to be important from [X]’s point of view, because it will perhaps ease any pressure which he feels he is under.
I am told by Ms Finney and it is confirmed by the report of Ms J, that [X] is doing quite well at school, but is not 100 per cent happy at the moment because he is being picked on or bullied at school. Why that is so is not completely clear to me, but it may have something to do with his familial circumstances. [X] is clearly a child who is perhaps more susceptible to being bullied or picked on than other children, and as I have already said, he is a child who is subject to all manner of pressures.
Today, after the regime of spending one and a half hours with [X] every fortnight, it is the father’s position that there should be a change to that comparatively long standing arrangement. In this regard, he proposes that for term 2, which is underway, [X] should spend each Friday from after school until 7.30 pm and each alternate Saturday from 10 am until 5 pm, with his father.
Thereafter he proposes that this arrangement should be increased again from the start of term 3 to overnight on Friday and overnight on alternate Wednesdays. Ms Finney is critical of what she sees as being a dramatic increase in time, which is not in keeping, either, with [X]’s vulnerabilities or with what Ms J has recommended in her second report. She is particularly concerned about overnight time.
Ms J has recommended that there should be a gradual increase in the time [X] spends with the father. She speaks of an increase of an hour per term. Ms J also speaks of the opportunity being given for [X] to have a meal at his father’s house each week. I should point out that Mr Maxwell has re-partnered and his partner has had some involvement in the time with [X].
Ms J has noted in her report her view, and it is as yet a view untested through the court process, that Mr Maxwell and his partner, Mrs M, perhaps have what Ms J has described as unreal expectations of what is the likely outcome of these proceedings, given [X]’s needs and the past history of his care.
But her report is also positive about the Maxwells in the sense that she reports that [X] has clearly enjoyed the enthusiasm of their visits with him and the visits seem to have gone well. [X] has reported to Ms J that he enjoyed spending time with his father, and in doing that, he described the games they played together. He also thought that it was fine with him for Mrs M to be present during the visits.
He is, however, according to Ms J, very clear and firm that he wants to live with his grandmother. I think that this is a significant factor in this case. From her observations of them, [X] was seen to be settled and playful with Mr and Mrs M by Ms J.
The tone of Ms J’ report is that the parties themselves have lots of different views and different expectations about [X] and they are currently a long way away from trusting one another. Clearly, [X] must be well aware of that. I would think it inevitable that he must pick up on this state of affairs. In this regard, I have to bear in mind that, at his age, he is not intellectually insightful and so is not likely to be able to put that in perspective and work through it intellectually.
So on that basis, Ms J recommends additional time between [X] and his father with Mrs M free to be involved in the process, but on the basis that it is about [X] visiting and getting to know his father, not for the purposes of reunification. That is the most significant thing, I think, at this stage.
It is also, I think, likely to be the factor that is the most significant one in determining the timeframe and how rapidly and extensively the time is increased, because I suspect [X] is not an unintelligent boy. He is certainly a vulnerable boy.
If I put in place a process which he thinks is going to lead to him moving away from living with his granny, even if that is a mistaken view, that is likely to make him anxious, and that is not going to be in his best interests, because, as I say, he is a vulnerable child.
The important thing about this case is that I have to do what I think is idiosyncratically appropriate for [X]. The best thing for this little boy would be for there to be a better relationship between those who love him so that such fears do not arise for him. However, in the current conflicted circumstances of the parties that does not seem immediately probable.
Anyway, currently there is this conflictual relationship between the parties and it centres on where [X] is to live in the long term. So [X] is likely to view everything through that particular prism. Anyway, apart from saying what I have, there is not much else I can do about this state of affairs between the parties.
I remark however that [X] is not something to be awarded to one of the parties. He is not a thing – he is a little boy. So whatever I do today, I have to approach the case through how [X] is likely to perceive it. Given his perceptions and vulnerabilities, necessarily I have to be slow and gradual in whatever I do. That has been the parties approach to date.
Inevitably in these types of cases, one party says, “Go very, very slowly,” whilst the other party says, “Go much faster”. The difficulty, of course, is that I cannot move things along at a pace which will be acceptable to both parties. Rather I have to do things at a pace which I think is best for [X].
Having carefully read Ms J’s latest report, I have come to the view that there is some benefit, I think, from attempting to normalise relations between [X] and his father, in the sense that it will not be a normal or meaningful relationship if [X] can only see his father at [omitted] for one and a half hours a fortnight.
At some stage, [X] needs to see where his father and Mrs M live so that they have that in common. They need to do that most human of activities, which is sit around a table and eat a meal together and exchange the pleasantries of the table. Mr Maxwell needs to know what are the things that are important in [X]’s life, including what he does at school and how he is going at school, and what he likes and what he does not like, so that the relationship can become a more meaningful one.
But the other side of the coin is, given this child’s idiosyncratic susceptibilities, I do not think the relationship can be hot-housed, in the sense that it can be artificially forced along at too fast a pace. I do not think that would serve [X]’s best interests.
So for those reasons, I have taken up Ms Finney’s indication that she is open to there being an evening meal after school until about 6.30, and also that there be some more time on Saturday, and that this time can be moved away from the [O]. This seems to me to be a more natural and comfortable arrangement for all concerned, particularly bearing in mind we are coming into the winter months.
For these reasons, I propose the father spend time with [X] on alternate Saturdays from 1.00 pm until 4.00 pm initially with the time to be increased a little from mid September leading up to the final hearing. I will also make provision for an evening meal on alternate Mondays.
I bear in mind that the hearing will be in October. Whatever is the outcome of that hearing, one thing will be certain, there will be more material available to the decision-maker concerned as to how to move the matter forward. I also hope that the issue of where [X] is going to live can be resolved. It is an issue which needs to be resolved, I think.
I have come to the view that what I propose is not too dramatic a change. Importantly it is not likely to signal to the child that his care arrangements are going to be dramatically changed in the short term but will give some prospect of the relationship between the father and child being extended.
It is, I think, important to [X]’s long-term well being that he does have a viable relationship with his father as he moves into adolescence. I think what I propose strikes a balance between his particular vulnerabilities and that need and the periods concerned are in each case relatively brief. It is not anticipated that the Saturday visits take place at the [O]. There is no requirement to that effect but and Mr Maxwell is able to take the child where he wishes.
In order to assist in the development of a meaningful relationship between [X] and his father, it would be helpful if Mr Maxwell had more information about what [X] does at school – his academic strengths and weakness; what he likes and what he is good at.
I will make orders which will enable the father to receive a copy of [X]’s school reports. I will also make an order enabling him to discuss how he is progressing at school with the relevant school authorities.
I had considered whether there should be a communication book about those Saturday visits but I have decided not to do that. I think that is an unnecessary complexity and I have also come to the view that I should not dictate who should be at the Monday evening meals but for obvious reasons it would be prudent of Mr Maxwell to be circumspect in that regard.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of Brown FM.

Associate:

Date: 5 June 2012