MAXWELL & FINNEY
[2013] FMCAfam 131
•21 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAXWELL & FINNEY | [2013] FMCAfam 131 |
| FAMILY LAW – Children – child has lived with maternal grandmother since infancy – mother deceased – father absent from child’s life for 6 years – importance of primary relationship with maternal grandmother. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA |
| Goode & Goode (2006) FamCA 1346 |
| Applicant: | MR MAXWELL |
| Respondent: | MRS FINNEY |
| File Number: | ADC 5035 of 2009 |
| Judgment of: | Kelly FM |
| Hearing dates: | 24, 25, 26 and 29 October 2012 |
| Date of Last Submission: | 29 October 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 21 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Kovacs |
| Solicitors for the Applicant: | Radin Legal |
| Counsel for the Respondent: | Ms H Tinning |
| Solicitors for the Respondent: | BBS Lawyers |
ORDERS
The Respondent maternal grandmother has sole parental responsibility for the child [X] born [in] 2002.
[X] live with the maternal grandmother.
[X] spend time with the father as follows:
(a)until the conclusion of 3rd term 2013 as follows:
(i)from 11.00am until 5.00pm each alternate Saturday, commencing Saturday 2 March 2013;
(ii)from the conclusion of school (or 3.30pm if a non school day) until 7.00pm Monday of each intervening week;
(iii)on the first alternate Saturday that falls during the July 2013 and October school holidays [X]’s time in the father’s care shall continue on and conclude at 5.00pm on the Sunday;
(b)from the conclusion of 3rd term 2013 as follows:
(i)on alternate weekends from 10.00am Saturday until 5.00pm Saturday provided that [X] will remain in his father’s care until 5.00pm Sunday on each fourth weekend;
(ii)from the conclusion of school (or 3.30pm if a non school day) until 7.00pm on alternate Mondays;
(iii)during the December 2013 school holidays [X]’s usual alternate weekend time will all continue on and conclude at 5.00pm Sunday;
(c)as and from the commencement of 1st term 2014 on alternate weekends as follows:
(i)each fourth weekend on Saturday from 10.00am until 6.00pm commencing on the first Saturday of Term 1 each year;
(ii)each fourth weekend from the conclusion of school Friday until 4.00pm Sunday commencing on the third weekend of Term 1 each year;
(iii)from the conclusion of school (or 3.30pm if a non school day) until 7.00pm on alternate Mondays commencing on the second Monday of Term 1 each year.
(d)as and from April school holidays 2014 at such times during school holiday periods as may be agreed between the parties and in default of agreement from 10.00am on the first Saturday that [X] would usually spend time in the father’s care until 5.00pm on the following Tuesday (in addition to any other time that would otherwise fall due).
(e)any communication in relation to varying [X]’s time with the father shall take place directly between the father and the maternal grandmother.
Special occasions
[X] spend time with the father and maternal grandmother on special occasions as agreed between the parties and in default of agreement as follows:
Christmas
(a)in 2013 and each alternate year thereafter:
(i)from 12.00noon on Christmas Eve until 12.00noon on Christmas Day with the maternal grandmother;
(ii)from 12.00noon on Christmas Day until 5.00pm on Boxing Day with the father;
(b)in 2014 and each alternate year thereafter:
(i)from 12.00noon on Christmas Eve until 5.00pm on Christmas Day with the maternal grandmother;
(ii)from 5.00pm on Christmas Day until 5.00pm on Boxing Day with the father;
Easter
(c)in 2013 with the father from 12.00noon until 7.00pm on Easter Friday and from 3.00pm until 8.00pm on Easter Sunday and the remainder of the Easter weekend with the maternal grandmother;
(d)in 2014 and each alternate year thereafter:
(i)with the father from the conclusion of school on Maundy Thursday until 2.00pm on Easter Sunday; and
(ii)with the maternal grandmother from 2.00pm on Easter Sunday until 4.00pm on Easter Monday;
(e)in 2015 and each alternate year thereafter:
(i)with the maternal grandmother from the conclusion of school on Maundy Thursday until 2.00pm on Easter Sunday; and
(ii)with the father from 2.00pm on Easter Sunday until 4.00pm on Easter Monday.
Birthdays
[X] spend time with the father from 10.00am until 2.00pm on [X]’s birthday ([date omitted]) if a non school day and from the conclusion of school until 6.30pm if a school day.
In the event [X] is in the father’s care he shall spend time with the maternal grandmother from 10.00am until 2.00pm on [X]’s birthday if a non school day and from the conclusion of school until 6.30pm if a school day.
In the event the maternal grandmother’s birthday ([date omitted]) falls on a Friday or weekend day when [X] would otherwise be in the father’s care, then [X] shall spend time with the maternal grandmother as follows:
(a)from the conclusion of school until 7.00pm in the event her birthday falls on a Friday; or
(b)from 12.00noon until 7.00pm in the event her birthday falls on a non school day.
In the event the father’s birthday ([omitted]) falls while [X] is in the maternal grandmother’s care then he shall spend time with the father as follows:
(a)from the conclusion of school until 7.00pm in the event the birthday falls on a school day; or
(b)from 12.00noon until 7.00pm in the event the birthday falls on a non school day.
[X] spend time with the maternal grandmother on Mother’s Day each year from 10.00am until 5.00pm.
[X] spend time with the father on Father’s Day each year from 10.00am until 5.00pm.
[X]’s time in the father’s care will be suspended between 22 September and 27 September each year.
Other parenting orders
Handovers take place as follows:
(a)with the father collecting [X] from school whenever a handover occurs at the end of a school day; and
(b)all other handovers to take place with the father collecting [X] from or returning [X] to the maternal grandmother’s residence.
Each party shall:
(a)speak to each other in a polite and respectful tone at handover and at any other time;
(b)speak politely and respectfully about the other party to [X] or when [X] is present;
(c)encourage all other family members to speak politely and respectfully about the other party to [X] or within his presence.
The maternal grandmother is at liberty to travel within Australia with [X] on at least one (1) occasion each year for a period up to four (4) weeks upon providing the father with at least 21 days written notice, such notice to include:
(a)details of the destination and accommodation where [X] will be staying;
(b)a contact telephone number for [X] during the trip; and
(c)[X]’s time in the father’s care is suspended during any such period.
In the event that the father wishes to travel interstate on a holiday with [X], then he shall provide the maternal grandmother with at least 14 days written notice of the travel arrangements, such notice to include:
(a)details of the destination and accommodation where [X] will be staying; and
(b)a contact telephone number for [X] during the trip.
The maternal grandmother facilitate any request from [X] to communicate with the father by telephone, Skype or email.
Both parties shall ensure [X]’s participation in any extracurricular activities that occur while [X] is in their care.
The father is at liberty to attend [X]’s school for functions, activities, school concerts, sports days, parent/teacher interviews and other such activities that parents are normally invited to.
Mrs Finney authorise the [T] School (and any other school that [X] may attend) to provide the father with a copy of [X]’s mid-term and end of year school reports and annual school photographs, provided that the father meet any additional expenses charged by the school.
The father is at liberty to make an appointment with the Principal of [X]’s school to discuss [X]’s progress and any issues pertaining to [X]’s education, limited to no more than two such appointments per term.
In the event of accident, illness or medical emergency involving hospitalisation, the party whose care [X] is in at the time, is to notify the other of the said emergency by telephone within one (1) hour of that party becoming aware of the said emergency.
The parties utilise a Communication Book for the sole purpose of issues pertaining to [X]’s day to day care, welfare and development and for no other purpose.
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 |
ADC 5035 of 2009
| MR MAXWELL |
Applicant
And
| MRS FINNEY |
Respondent
REASONS FOR JUDGMENT
[X] is 10 years old. His mother, Ms F, died in September 2009, when [X] was six years old. At the time [X] and his mother had been living with [X]’s maternal grandmother, Mrs Finney, and [X] has continued living with his grandmother since that time.
The applicant in these proceedings is Mr Maxwell, [X]’s father.
Mr Maxwell commenced these proceedings in July 2010, having not spent any time with [X] since the child was approximately three years old. Mr Maxwell clearly regrets his decision to step away from [X] at that time and is now seeking to resume a more meaningful role in his son’s life.
The parties disagree about the extent of the parenting role that
Mr Maxwell should play in [X]’s life and this issue forms the focus of the dispute before the Court.
Background
This matter has an unusual and complex history. Ms F was involved in a serious motor vehicle accident when she was 15 years old. She was in a coma for approximately five months and suffered extensive injuries and residual brain damage which required ongoing rehabilitation and therapy. With the support of her family, particularly the maternal grandmother, Ms F eventually recovered to the point where she could walk independently, but she continued to suffer ongoing short term memory loss.
Ms F and the father met in 1993. They became engaged approximately 12 months later and married [in] 1995. [X] was born [in] 2002. Both parties filed a great deal of information regarding the parents’ relationship prior to [X]’s birth, but I do not consider it is necessary or helpful to discuss this history in detail. Nor do I intend making formal findings about this period, given that these events occurred over ten years ago. However, the parties’ Affidavit material is instructive and provides some insight into the level of distrust and bitterness that
Mr Maxwell and Mrs Finney hold towards each other.
When [X] was approximately two months old, his parents separated and the mother and [X] moved in to live with the maternal grandmother. The father negotiated with Ms F regarding his time with [X] and would call in after work two or three times per week. The parties disagree about the frequency of the father’s time spent with [X] but I am satisfied that Mr Maxwell made efforts to spend regular time with [X], on an informal basis as negotiated with Ms F.
That arrangement came to an end in approximately January 2006, when [X] was just over three years of age. The maternal grandmother says the father simply stopped making any effort to spend time with [X]; the father says that Ms F and the maternal grandmother refused to allow him to spend time with [X]. In those circumstances, the father concedes that he then withdrew and spent no further time with [X], nor made any attempt to spend time with [X] for the next three years.
In 2009 Ms F was diagnosed with breast cancer and, once again, the maternal grandmother found herself providing intensive support and care for her daughter, as well as for [X], while the mother’s health declined. Tragically, Ms F died on [date omitted] 2009.
The father became aware that Ms F had passed away. He rang the maternal grandmother to pass on his condolences on [date omitted] 2009, the day after Ms F’s funeral. A family member received the father’s condolences and when the father asked to speak to the maternal grandmother, it was suggested that he call back in a couple of weeks.
The father called back five days later and spoke with Mrs Finney, asking to see [X]. The parties disagree about how Mrs Finney responded at that time but I accept that she would have been in no state to be responding to contact from the father, within only a fortnight of her daughter’s death.
A few weeks later the father then instructed his lawyers to write to
Mrs Finney. It is understandable that the tragedy of Ms F’s death may have prompted Mr Maxwell to re-engage with his son at this time. However, his actions showed little respect or understanding for the grief Mrs Finney and [X] would have been experiencing. His decision to pursue this matter so early after Ms F’s death was insensitive and ill advised.
The father attempted family dispute resolution in 2010 but the maternal grandmother initially declined to participate. The father then filed his Application on 14 July 2010, seeking final orders for [X] to live with him.
The proceedings
The father’s Application was first listed on 19 August 2010. The parties were referred to s.11F dispute resolution and it was subsequently agreed that a family assessment report would be appropriate. That order was made by consent on 10 November 2010 and the parties instructed Ms J to undertake the assessment.
Ms J’s first report dated 11 February 2011 recommended a cautious approach to re-introducing the father to [X]. In April 2011 [X] commenced spending time with his father, for one hour per fortnight, in the presence of his School Chaplain. The regime slowly progressed to unsupervised time and an update assessment was ordered in early 2012.
Ms J prepared a second report dated 3 April 2012. That report recommended that [X] remain living in the primary care of the maternal grandmother and spend gradually increasing time in the care of the father. Ms J recommended that this regime be in place for a considerable period of time before any introduction of overnight time.
On 5 June 2012 the Court extended [X]’s time with the father to take place on alternate Saturdays from 1.00pm until 4.00pm and intervening Mondays from 4.00pm until 6.30pm. As the parties remained in dispute, the matter was listed for trial on 24-26 October 2012.
The hearing
The hearing commenced before me on 24 October 2012. The applicant father relied upon the following documents:
a)His Amended Initiating Application filed 5 September 2012;
b)His trial Affidavit filed 28 September 2012;
c)Affidavit of his wife Ms M. filed 28 September 2012;
d)Affidavit of Ms B filed 20 September 2012.
The respondent maternal grandmother relied upon the following documents:
a)Her Amended Response filed 12 October 2012;
b)Her trial Affidavit filed 12 October 2012;
c)Affidavit of her son Mr F filed 12 October 2012;
d)Affidavit of Dr G filed 12 October 2012.
Ms B's Affidavit did not take the matter any further. The father did not seek to cross examine Mr F or Dr G and their evidence comes before me uncontested, but has not weighed heavily in my determinations.
The father’s wife Ms M was cross examined in the course of the hearing, as were both parties. I am satisfied the parties and Ms M. endeavoured to give their evidence honestly and to the best of their recollection. However, as with many witnesses in family law proceedings, the parties tended to recall historical matters in such a way that cast themselves in the best possible light and cast the other party in the worst possible light.
Both Mr Maxwell and Mrs Finney struggled with abstract concepts when considering their interpersonal relationship. Neither party demonstrated any great capacity to “walk in the other party’s shoes”. To their credit, however, both parties were prepared to acknowledge that their interpretation of past incidents could be incorrect. For example, Mrs Finney agreed that the father’s description of the “duckling” incident was plausible, even though it was in apparent conflict with the description given to her by [X].
Ms J was called as the Court’s witness. Ms J relied upon her two reports prepared in these proceedings and was cross examined by both parties. Her evidence was clear and consistent and greatly assisted my determinations.
Legal principles
In accordance with s.65D of the Family Law Act 1975 the Court is empowered to make such parenting order as it thinks proper, subject to the limitations set out in that section.
When making a parenting order, the best interests of the child is the paramount consideration the Court must consider (s.60CA). Section 60B of the Family Law Act sets out the objects and principles which govern the Court’s decision making responsibilities. This section focuses on the importance of parents having a meaningful involvement in children’s lives, upon the need to protect children from harm, and upon parents fulfilling their parenting duties.
Insofar as this and other sections of the Family Law Act refer to “parents” or “a parent”, it is important to remember that Mrs Finney is not [X]’s biological parent. To that extent the usual factors considered pursuant to s.60CC, s.61DA and s.65DAA do not apply to Mrs Finney, in a strict legal sense. Nonetheless, it is clear that the Court’s determination about [X]’s best interests should be guided by a consideration of these legislative provisions.
Section 60CC sets out the factors the Court applies when determining the child’s best interests. In Goode & Goode[1] the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance as to the legislative pathway the Court should follow in any parenting case and the comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1346
Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents (or caregiver, in the case of Mrs Finney); and
b)the need to protect the child from the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are thirteen additional considerations in s.60CC(3) to be taken into account and the Court must consider the extent to which each party has fulfilled, or failed to fulfil, their parental or caregiver responsibilities (s.60CC(4), (4a)). Again these provisions provide a useful guide to consider [X]’s best interests.
Section 61DA requires the Court to presume it will be in a child’s best interests for his or her parents to share parental responsibility equally. While that presumption cannot apply in a strict legal sense in this matter, there is still scope for the Court to consider the extent to which it may be in [X]’s best interest for his primary caregiver, Mrs Finney and his father, Mr Maxwell, to jointly participate in parental responsibility and decision making regarding [X] and his future care.
I do not consider s.65DAA applies in this matter, as the Court cannot make an order for equal shared parental responsibility between [X]’s parents. However, the father’s application is for [X] to eventually spend substantial and significant time in his care and to that extent the factors listed in s.65DAA provide a useful checklist to consider whether such an outcome may be in [X]’s longer term best interests.
The parties’ parenting proposals
The maternal grandmother filed an Amended Response on 12 October 2012, just prior to the trial. In the course of the hearing and following on from Ms J’s evidence, the maternal grandmother forwarded an alternative proposal to the father and it is that document which sets out her final position.[2]
[2] Exhibit MG1
She proposes that [X] slowly increases his time in the father’s care to the point of monthly overnight visits, commencing in October 2013. She proposes [X] continue to enjoy an evening meal with his father in all other weeks. Mrs Finney also proposes that [X] spend time with his father on special occasions, together with limited additional school holiday time. She also consents to various orders proposed by the father regarding communication with respect to [X]’s health, education and so on.
Mrs Finney seeks an order for sole parental responsibility, arguing the father has never previously exercised parental responsibility and the interpersonal relationship between the two of them is not sufficiently respectful or co-operative to make a shared parental responsibility regime workable.
Despite the clear recommendations from Ms J, the father did not chose to change his position regarding primary care of [X] until filing his Amended Application on 5 September 2012, some 18 months after
Ms C’s first report recommended that [X] remain living with his grandmother. Mr Maxwell now concedes that [X] should remain living with Mrs Finney. He also acknowledges that a gradual increase in [X]’s time in his care is appropriate but seeks a much more extensive role in the child’s life than proposed by Mrs Finney (or indeed Ms J).
His proposed orders are set out in the Outline of Case document provided by Counsel and includes a regime where [X] commences spending overnight time in his care within four weeks or so, progressing to [X] spending time in his care from Friday until Sunday on alternate weekends commencing in February 2013, extending to the commencement of school on Monday in March 2013.
Mr Maxwell then proposes that [X]’s overnight time in his care slowly increase to include overnight time in the intervening weeks, such that [X] would be spending five nights per fortnight in his care by mid 2013.
The father also seeks orders that [X] spend time with him for one half of each school holiday period as well as arrangements in relation to special occasions together with telephone or Skype communication each week.
Discussion
As noted above, while the language within Part VII of the Family Law Act 1975 does not specifically relate to a situation such as this, where [X]’s primary caregiver is not one of his parents, it nonetheless provides a useful checklist of relevant considerations and I will structure this judgment accordingly.
Section 60CC(2) – primary considerations
There are no allegations of family violence or abuse in these proceedings. [X] has enjoyed the devoted and loving care of his maternal grandmother and maternal family since his birth and is coming to appreciate a developing relationship with his father.
I am confident [X] will benefit from continuing to develop a meaningful relationship with his father as he grows up. However, as Ms J noted, it is essential to [X]’s emotional development that
Mr Maxwell support Mrs Finney’s role as [X]’s primary caregiver and does not seek to undermine her. [X] should be able to develop a sense that his developing relationship with his father will add to his emotional landscape, rather than disrupt it.
It is also important that Mr Maxwell’s role as [X]’s father is acknowledged and respected by Mrs Finney and the extended family, despite Mr Maxwell’s lengthy absence from [X]’s life.
Section 60CC(3) – additional considerations
(a) any views expressed by the child [X]
The Court has considerable insight into [X]’s views. Both parties have conveyed occasional comments or concerns they say [X] has expressed to them and, more importantly, Ms J has interviewed [X] on two separate occasions.
At the time of Ms J’s first interview with [X] in January 2011, she described [X] as “a gentle child”. When discussing his father, [X] “appeared nervous during these times” but expressed some interest at the prospect of meeting his father at some stage.[3]
[3] Family assessment report dated 11 February 2011, Annexure AP1 to the Affidavit of Ms P filed 23 February 2011, at p.4
By the time of Ms J’s second report twelve months later, [X] was reported as “enjoying the time he spends with his father”. Ms J noted that [X] was very clear that he wants to live with his grandmother. In discussing the possibility of future overnight stays, Ms J noted that “[X] would clarify that we were only discussing visits”.[4]
[4] Ms J's Report dated 3 April 2012, Annexure B to the Affidavit of Ms Z filed 26 February 2012, at p.8
Mr Maxwell described numerous conversations where [X] has expressed interest in staying overnight in his care, so that they could enjoy activities such as fishing trips and the like. By contrast,
Mrs Finney said that [X] was often reluctant to spend time with his father. However she also acknowledged that [X] enjoyed some of their time together.
In cross examination Ms J suggested that the parties and the Court should be cautious in placing any weight upon [X]’s views. She repeated her view that [X] was a young, somewhat naïve child who may be uncomfortable about expressing his own feelings about any situation, whether those feelings be positive, negative, or ambivalent.
Ms J suggested that [X] may use his grandmother as an excuse behind whom he could hide his own internal ambivalence when talking about overnight stays with his father. Equally, she commented that [X] would be unlikely to resist adult expectations generally. She noted that Mrs Finney was a very forceful personality and [X] may simply fall in line with his grandmother’s views.
Ms J also noted that [X] may continue to give contradictory reports to his father and his maternal grandmother. She suggested that the adults in his life needed to rise above any inconsistencies and not overreact or interpret any such comments as proof that [X] is either happy, or unhappy, in any particular situation or in either household.
(b) the nature of [X]’s relationship with his maternal grandmother and his father
Mrs Finney has effectively been in the role of primary carer for [X] since he was an infant. She shared this responsibility with her daughter until Ms F’s death in 2009 and since then has been [X]’s sole parental figure.
Ms J noted that “Mrs Finney is the only adult with whom [X] has to date had an experience of permanent care – that a relationship can be relied upon to be permanent, safe and supportive”.[5] The strength of [X]’s relationship with his maternal grandmother is clear from the observed interaction conducted by Ms J.
[5] Ms J's Report dated 11 February 2011, at pp.7, 8
By contrast, Mr Maxwell was absent from [X]’s life for approximately six years. In her first report Ms J noted:
“…this constitutes a developmental vulnerability for [X]. Children whose fathers are absent do not have a male role model to assist them in the development of social skills, emotional regulation and positive self-worth – areas of development in which a father’s presence has been found to be significant and essential”.[6]
Ms J went on to comment in cross examination that it is impossible to recreate the attachment relationships that are formed between children and their primary caregivers in infancy and early childhood. That opportunity is lost to Mr Maxwell.
[6] Ms J's Report dated 11 February 2011, Affidavit of Affidavit of Ms P filed 23 February 2011, Annexure AP1 at p.7
Nonetheless, [X] is becoming increasingly more comfortable spending time with his father and, indeed, with Mrs M. There is no reason why [X] should not continue to enjoy a positive relationship with his father as time progresses, provided that all of the adults in his life are able to work co-operatively and respectfully – not only in their interaction with [X], but in their interactions with each other.
Mrs Finney enjoys the support of her other children and the maternal family provides a strong and secure extended family network for [X]. [X]’s maternal uncles have provided him with significant male support and guidance during his early years. Mr F has been a significant adult role model in this regard. [X] has also enjoyed spending time with his other extended family members, including his various cousins.
Ms J placed considerable emphasis on the importance of [X]’s sense of belonging within his maternal family, not just in his relationship with his maternal grandmother. Ms J commented to the effect that [X]’s developing relationship with his father should not come at the risk of compromising his sense of security within his extended maternal family unit, as the Finney family has provided the whole of his emotional stability in his young life to date.
(c) the willingness and ability of Mr Maxwell and Mrs Finney to facilitate and encourage a close relationship between [X] and the other party
At the time of Ms J’s first report in February 2011, she expressed real concern about the capacity of Mr Maxwell and Mrs Finney to support [X]’s relationship with the other party. Ms J noted “…it was difficult for Mrs Finney to discuss circumstances in which she could facilitate contact between [X] and his father. … her Affidavit material refers to her seeing any contact as being contradictory to [X]’s best interests.”[7]
[7] ibid, at p.5
Likewise, the father felt that Mrs Finney had encouraged the mother to cut off his relationship with [X] and he had no confidence that Mrs Finney would ever support him in resuming his role as [X]’s father.
By the time of the second report, it was reassuring to note that Ms J reported Mrs Finney was more supportive of [X] spending time with Mr Maxwell, albeit Ms J noted the continuing acrimony between
Mrs Finney and Mr Maxwell.
Ms J continued to be concerned regarding the father’s capacity to adapt his hopes and expectations (ie that [X] would eventually live in his full time care), rather than supporting [X]’s primary relationship with his maternal grandmother and developing his own role as a significant, but secondary emotional player in [X]’s life.
The parties present as very fixed in their views of the other. Their memories of the past history surrounding Mr Maxwell’s relationship with Ms F, their subsequent separation and his withdrawal from [X]’s life are at sharp variance. Both Mrs Finney and Mr Maxwell harbour a great deal of hurt, anger and resentment from those early years, despite their respective efforts to convey a different, more accepting position in their recent Affidavits and in the trial.
Mr F and [X]’s extended maternal family no doubt hold a similar critical view of Mr Maxwell, just as Mrs M clearly supports her husband’s account of past events. These past hostilities are still present in the adult interactions today and this is a significant issue to take into account.
(d) the likely effect of any changes in [X]’s circumstances
This is, perhaps, the most significant factor in my assessment of [X]’s future best interests. Ms J noted that [X] has suffered a number of challenges in his young life, particularly the tragic death of his mother in 2009. Prior to that his father had also withdrawn from his life, leading Ms J to reiterate that Mrs Finney is the only adult who has provided [X] with the experience of a relationship that can be relied upon to be permanent, safe and supportive.
Ms J noted that “Repeated disruptions to a child’s attachment relationships can disrupt their social development, impair their capacity to develop appropriate adult relationships and lead to poor mental health outcomes”.[8]
[8] Ibid, at p.8
It is to Mr Maxwell’s credit that he is no longer pursuing primary care of [X]. Frankly, he would have been better advised to have made that decision much earlier in these proceedings. This would have demonstrated his capacity to take a child focussed approach and would potentially have created some goodwill within his relationship with Mrs Finney. However, Mr Maxwell is still pursuing a very significant parenting role in [X]’s life, despite Ms J’s advice that this outcome is not in [X]’s best interests.
Ms J’s evidence was very clear. [X] is a child who has suffered significant loss in his life and what he needs most is stability. She noted that this was not a situation where [X] simply needs the adults in his life to improve their co-parenting relationship. Rather, [X] needs to be able to enjoy the stability provided to him by Mrs Finney and his extended maternal family, with his father to assume a supportive role, but not a primary parenting role.
Ms J commented that children who have experienced any significant loss, such as [X], can sometimes be overly eager to give over trust. She went on to say that children such as [X] need to learn that significant relationships can develop slowly. She agreed that the critical issue for [X] is to develop a trusting relationship with his father that does not in any way undermine the relationships he already enjoys with his maternal family. This will enable [X] to learn that all of these relationships can be relied upon. In particular, he will be reassured by an ongoing experience where his father does not disappear from his life again.
I conclude it would not be in [X]’s best interests to implement any significant changes, which may disrupt his sense of security not only with his maternal grandmother, but within his maternal family as a whole.
(g) maturity, sex, lifestyle and background of [X]
Ms J described [X] as relatively young for his age and somewhat naïve in his overall presentation. She noted that [X] is already a vulnerable child in terms of his emotional and developmental needs, given the tragedy he has experienced with the loss of his mother. Ms J also commented that [X] has experienced some bullying at school and that [X] is experiencing some difficulties in his social functioning.[9]
(f) the capacity of Mrs Finney and Mr Maxwell to provide for [X]’s needs including his emotional and intellectual needs
[9] Ms J's Report dated 3 April 2012, Affidavit of Ms Z filed 26 February 2012, Annexure B, pp.8 and 9
the parties’ attitude to the child and the responsibilities of parenthood
S60CC (4) the extent to which either Mrs Finney or Mr Maxwell have fulfilled or failed to fulfil his or her parenting responsibilities to [X]
I will discuss these considerations together, as they are inter-related.
Mr Maxwell’s day to day parenting capacity remains untested. However, while Mrs Finney raises some minor criticisms, there is no real reason to suggest that he and Mrs M would not be able to provide an appropriate level of day to day care for [X].
The father’s capacity to provide a safe, supportive emotional environment for [X] is less certain. He has already withdrawn from [X]’s life once. To that extent, Mr Maxwell failed to demonstrate any commitment to his responsibilities as [X]’s parent at that time. It is not helpful to attribute blame for how that situation arose, but the reality is Mr Maxwell remained absent from [X]’s life for a number of years.
That history has created a situation where Mr Maxwell now needs to demonstrate his commitment to a long term role in [X]’s life. To that extent, Mr Maxwell’s recent suggestion that he may move interstate was concerning, but I am pleased to see that he is no longer pursuing that option.
Mr and Mrs M need to ensure that they do not place any emotional pressure on [X] (intentional or otherwise) regarding the time he spends in their care. As Ms J says, “Additional time between [X] and his father … is supported, but on the basis that is about [X] visiting and getting to know his father, not for the purpose of reunification”.[10]
[10] Ibid, at p.9
[X] is fortunate indeed that his maternal grandmother was able to provide the stability and emotional security that he needed as a young child, particularly surrounding the tragedy of his mother’s death. [X] has benefitted greatly from the care Mrs Finney provides for him and there can be no criticism of her capacity to meet his day to day and long term needs.
The father raised some concerns about Mrs Finney’s age but I accept that her health issues are properly managed. She also has the ongoing support of her son Mr F and other family members from time to time, as needed. I do not consider Mrs Finney’s health is likely to compromise her capacity to care for [X] in any significant way across the coming years.
It is surprising that Mr Maxwell has not offered to contribute any financial support for [X]’s care over the years. This suggests he has been quite disconnected from any sense of responsibility for [X], whether emotionally or financially, even over the course of these proceedings. It is no real response for the father to say Mrs Finney has not sought any contribution from him.
There is no suggestion that [X] has ever been exposed to overt hostility or antagonism between the parties. This is a credit to each of them and indicates they clearly value the importance of civility and politeness. Mrs Finney and Mr Maxwell agreed that they were able to conduct handovers politely, and with a minimum of fuss.
While it is positive that Mr Maxwell and Mrs Finney are able to behave politely towards each other, their evidence before this Court was littered with examples where they continue to assume the worst of each other, or otherwise behaved in ways which clearly indicate the lack of trust that still exists between them.
The events surrounding the aborted visit between [X] and the father on 30 August 2012 are one such example, as was Mrs Finney’s inability to facilitate a Christmas visit between [X] and the father in 2011.
Mr Maxwell’s subsequent decision to ring the local hospital seeking information about Mrs Finney’s hospitalisation is another example.
Indeed, the only real criticism that can be made of Mrs Finney relates to her attitude towards [X]’s developing relationship with his father. Her evidence in this regard was contradictory. At times she acknowledged that [X] enjoys his time with the father whilst at other times she took no responsibility for supporting [X]’s relationship with his father.
Hopefully with this Court process finalised and Mrs Finney’s role as [X]’s primary caregiver acknowledged, she will be able to relax and support [X] in spending time with his father, confident that
Mr Maxwell will, in turn, support her role as [X]’s primary caregiver. As these arrangements settle down in the future, the parties’ occasional interaction at handover will also become more relaxed. This has the potential to convey an important message to [X] as he sees the adults in his life behave not just politely, but respectfully to one another, despite past difficulties.
Conclusion – parental responsibility
Having considered all of the evidence, particularly the evidence from Ms J, I do not consider an order for equal shared parental responsibility between Mrs Finney and Mr Maxwell is in [X]’s best interests.
In circumstances where the father was absent from [X]’s life, Mrs Finney first supported her daughter Ms F and then assumed effective sole parental responsibility for [X]. She has exercised this parental responsibility properly and fully focused on [X]’s best interests. She had sought support from other adult family members where appropriate, such as her son Mr F and that support has been freely and generously given.
While I do not doubt the father’s commitment towards [X]’s best interests and his desire to make amends for his past absence in [X]’s life, an order for equal shared parental responsibility is not the appropriate way to make those amends.
Currently there is neither the trust nor the respect between Mrs Finney and Mr Maxwell to suggest that an order for equal shared parental responsibility would work productively. On the contrary, I am concerned such an order may serve to create hostility and uncertainty, which would have a negative emotional impact upon [X]’s sense of security within both households.
I conclude that Mrs Finney should be granted sole parental responsibility for [X]. Part of that responsibility now will require
Mrs Finney to keep the father informed and up-to-date regarding [X]’s progress and general welfare, whether by providing Mr Maxwell with copies of [X]’s school reports, keeping him informed of any significant health issues, or passing on details of any extracurricular activities or social events in [X]’s life.
This last point is important at a practical level, in the event such activities fall within [X]’s time with his father. But it is also important that [X] sees his grandmother and his father sharing information about his welfare in the same way, for example, as he knows his grandmother and Uncle [Mr F] do from time to time. This will have the effect of normalising [X]’s relationship with the father within his overall family context.
Mrs Finney may resent these extra expectations, at one level. I note that during her cross examination, she often responded to suggestions of efforts she could make to support or improve the situation by responding “yes, if it’s necessary” or “yes, if [X] is agreeable” or to the effect of “well, that’s up to [X]”. With all due respect to Mrs Finney it is her responsibility to actively support [X]’s relationship with his father, not simply tolerate Mr Maxwell’s presence in their lives.
Parenting arrangements
Ms J considered it was essential to maintain [X]’s sense of security within Mrs Finney’s primary care. She also emphasised the need for [X]’s relationship with his father to develop cautiously so that [X] could learn that significant relationships can grow slowly, without the risk of the relationship being withdrawn, or disappearing.
As already discussed, Ms J supported additional time between [X] and the father on the basis that it is not for the purpose of reunification.[11] During cross examination, Ms J noted that monthly overnight visits would be more appropriate, to ensure [X] maintains his sense of a security within his extended maternal family. She considered that a slow progression to overnight time would also give members of the extended Finney family more time to accept Mr Maxwell’s role in [X]’s life.
[11] ibid
I intend putting in place parenting orders that reflect Ms J’s recommendations and more closely mirror the proposed orders submitted by the maternal grandmother, rather than the father’s proposal. The orders will reflect a gradual progression in [X]’s relationship and amount of time spent with his father, albeit to a slightly different final care arrangement.
Ms J emphasised the importance for [X] of experiencing his father as a consistent and reliable adult presence in his life. She considered a regime where [X] visited his father for an evening meal together each week was one way for Mr Maxwell to demonstrate his consistency, leading eventually to occasional overnight stays. I agree, but consider that continuing the existing pattern of fortnightly weekend time is also appropriate. This is the pattern that [X] has experienced for the past 18 months and I can see real benefits for [X] in maintaining that continuity.
I will continue fortnightly Monday evening visits, together with a regime of time each alternate weekend, which will eventually include an overnight stay each month, or each four weeks. This regime allows [X] to have both his maternal family and his father involved in his weekend activities as he gets older, including any sporting activities, but will not undermine [X]’s stability in his grandmother’s primary care.
I consider overnight time can commence a little earlier, during the mid year school holidays and become a regular occurrence towards the end of 2013. Longer school holiday visits of three or four nights will also be appropriate in subsequent years.
Clearly Mrs Finney should also be able to plan occasional holidays to visit extended family. I do not consider a formal regime of makeup time is necessary, but hope Mrs Finney would ensure that [X] has the opportunity to spend time with his father immediately prior to, or after, any lengthy holiday.
Mrs Finney would like [X] to remain in her care around the anniversary of his mother’s death on [date omitted] each year. I agree that it is appropriate that [X] have the emotional support of his grandmother and maternal family around this anniversary and will suspend [X]’s time with his father for the period 22 September until 27 September each year.
I see no difficulty with [X] sharing special occasions with both his maternal family and his father, but in a way that does not create any conflict for [X]. [X] has always woken up in his grandmother’s home on Christmas morning and that routine should not be disrupted. Hopefully the difficulties that occurred on Christmas Day in 2011 were not repeated in 2012. It will be important for [X] and his father to develop their own family rituals around special occasions such as Christmas but in such a way that [X] does not feel displaced within the Finney family traditions.
For the reasons outlined above, I now make orders as published at the commencement of these Reasons.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Kelly FM
Associate:
Date: 21 February 2013
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