Maynard and Marchand and Anor
[2018] FCCA 2954
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAYNARD & MARCHAND & ANOR | [2018] FCCA 2954 |
| Catchwords: FAMILY LAW – Parenting – high conflict between the maternal grandmother and the mother – co-operative parental alliance between separated parents – seven year old child with Autism Spectrum Disorder – whether maternal grandmother should have time with child. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC |
| Cases cited: Aldridge v Keaton (2009) 235 FLR 450 |
| Applicant: | MS MAYNARD |
| First Respondent: | MS MARCHAND |
| Second Respondent: | MR MARCHAND |
| File Number: | HBC 588 of 2017 |
| Judgment of: | Judge Baker |
| Hearing dates: | 3-4 October 2018 |
| Date of Last Submission: | 4 October 2018 |
| Delivered at: | Hobart |
| Delivered on: | 19 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Applicant: | N/A |
| Counsel for the First Respondent: | Mr Trezise of Counsel |
| Solicitors for the First Respondent: | AC Family Legals |
| Counsel for the Second Respondent: | Self-Represented |
| Solicitors for the Second Respondent: | N/A |
| Counsel for the Independent Children's Lawyer: | Mr Turnbull |
| Solicitors for the Independent Children's Lawyer: | Ogilvie Jennings |
ORDERS
Ms Marchand (‘the mother’) and Mr Marchand (‘the father’) have equal shared parental responsibility for the child [X] (‘[X]’) born 2011.
[X] live with the mother.
[X] spend time with the father at times agreed with the mother.
Ms Maynard (‘the grandmother’) be at liberty to send [X] a Christmas Card and a birthday card each calendar year provided such card(s) is child focused, does not in any way denigrate the mother or father, does not seek to influence [X] with any of the grandmother’s views regarding time [X] should spend with the grandmother, or the grandmother’s religious or political views.
The grandmother shall forward cards to the father’s address and the father shall use his reasonable discretion to determine if the cards are provided to [X].
The father shall retain for [X] all cards and the letters which have been sent by the grandmother and shall retain for [X] all cards that will be sent to him by the grandmother.
The father and grandmother shall keep each other advised of their postal addresses.
The mother and the father shall not denigrate the grandmother in the presence or within the hearing of [X].
IT IS NOTED that publication of this judgment under the pseudonym Maynard & Marchand & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 588 of 2017
| MS MAYNARD |
Applicant
And
| MS MARCHAND |
First Respondent
And
| MR MARCHAND |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The separated parents of a seven year old autistic child, [X] born 2011 (‘[X]’), oppose the maternal grandmother’s application to spend time with [X]. The parents have a co-operative parental alliance. They have agreed about his living arrangements since they separated in November 2014.
The grandmother and her daughter have an acrimonious relationship. The grandmother has admitted that she physically and emotionally abused her daughter during her childhood. The mother has no desire to reconnect or establish a relationship with her mother.
The mother ceased all contact with the grandmother in May 2015, due to increasing arguments about the mother’s parenting and their religious differences. The grandmother has not spent any significant time with [X] since then.
In December 2017, the parties agreed that the grandmother could provide [X] with presents and cards on Christmas Day and his birthday, and a letter once per month, to be reviewed in early 2018. The parents ceased this arrangement in June 2018.
Both parents of [X] are opposed to the grandmother having a relationship with him.
The grandmother is self-represented. She was focused on the rights of [X] to have a relationship with her. In her affidavits, she referred to the Convention on the Rights of the Child. She asserted that the respondents have discriminated against her and [X] by denying them time, ‘because of unfair and illegal prejudice against cultural lifestyle choices.’ She deposed that:
the legal system has thus far, failed to hold [X]’s parents accountable and responsible in providing the responsibilities that the Family Law Act, the Convention on the Rights of the Child, and the Human Rights Act, have clearly stated, in regards to the child’s right, to spend time with family members.
The issue for determination is whether it is in [X]’s best interests to spend any time with his grandmother.
Proposals
The grandmother essentially sought time with [X] each week for four hours and on special days such as each birthday, Easter Day and Christmas Day. She sought letter, card, gift, telephone and Skype communication. She sought other orders as set out in paragraphs 73-94 of her case outline.
The mother and the father opposed any time. During the hearing they agreed to an order that the grandmother be at liberty to send [X] a Christmas card and a birthday card each calendar year in accordance with the proposal of the Independent Children’s Lawyer (the ‘ICL’). The father indicated that he agreed to read the cards to [X] and pass them on to the mother. He agreed that he will retain a copy of them for [X].
The ICL proposed that the grandmother be at liberty to send [X] a Christmas card and a birthday card each calendar year provided such card(s) is child focused, does not in any way denigrate the mother or father, does not seek to influence the child with any of the grandmother’s views regarding the time the child should spend with the grandmother, or the grandmother’s religious or political views. It was proposed that the cards be forwarded by the grandmother to the father’s address and the father will use his reasonable discretion to determine if the cards are provided to [X]. It was also proposed that the father retain the cards for [X].
The ICL also sought an injunctive order that none of the parties denigrate one another in the presence or hearing of [X].
Circumstances of the maternal grandmother
The grandmother is 50 years of age. She lives alone in a one bedroom unit in Suburb A. She is unemployed and is in receipt of Centrelink benefits. She has a (qualifications omitted).
She deposed that she has learned (religion omitted) beliefs. She chooses to live in a spiritual and universal way.
Circumstances of the Mother
The mother is 31 years of age and is a full-time parent. She has been [X]’s primary carer since his birth. She lives with [X] in a three bedroom home in Suburb B. She has a partner who lives in (country omitted) and they conduct their relationship by telecommunication.
The mother home schools [X]. She has worked with children since she was 17 years of age. She has been a foster carer.
The mother gave evidence that through the National Disability Insurance Scheme (‘NDIS’), she can access a speech pathologist, an occupational therapist and a psychologist for [X]. She received a letter dated 17 September 2018 from the relevant agency confirming that [X]’s plan has been approved.[1]
[1] Exhibit M1.
Circumstances of the Father
The father is 34 years of age. He is an (occupation omitted). He is employed at (employer omitted).
He lives in a three bedroom home in Suburb C. He has a new partner and a baby son, who is around seven months old.
[X] spends time with the father each weekend. The parents have a flexible approach to parenting [X].
The Parties
I consider the grandmother was an unimpressive witness. Although I do not consider she was untruthful, I consider she exaggerated at times. One example was the amount of time she has spent with [X] and the extent of her relationship with him. She presented as self-focused and intent on achieving her aim to spend time with [X]. She made numerous allegations about the parents about their care of [X], even though she was not seeking a residence order and has not had contact with the mother since 2015, and little contact with the father and [X] over the past few years.
The grandmother asserted that the parents have manipulated and repressed [X] through unreasonably distancing him from her. She believes that she has ‘unfairly and unduly experienced the lack of an expediently fair process type justice system, through not holding [X]’s parents to account for their mental corruptions against themselves, [X] and myself.’
During the proceedings, the grandmother had little regard for the views of the parents. She was harsh in her views about the mother. She told the Family Consultant that [X] was disadvantaged in having the mother as his parent. She said several times during the hearing that ‘the parents have got away with it.’ She explained that they have misled the court throughout the affidavits and their accusations. When she was asked how it would help [X] for the Court to make a finding that his mother tried ‘to get away with it’, or is neglectful of [X] or a self-interested person, she answered that it would bring about self-reflection about what she has done, for example, foster caring and caring for [X] at the same time.
The mother was an impressive and credible witness, who remained calm and restrained throughout the proceedings. She was cross-examined by the grandmother and although this must have been very difficult and emotional for her, she remained civil and answered questions calmly. She did this notwithstanding comments made by the grandmother during the mother’s evidence. One example was when the grandmother asked her whether the father had been required to take [X] from her presence because of her melt-down. She answered that at times she has asked the father to take over because parenting, especially of a child who screams non-stop and barely sleeps for more than 45 minutes at a time, was stressful. The grandmother said, ‘yes I know, that is exactly how my daughter Ms Marchand behaved.’ The mother was frank when questioned about her views about [X]’s time with the grandmother.
I agree with the Family Consultant’s description of the father as a thoughtful, measured and quietly spoken man. I consider that he was an impressive and credible witness. He was respectful to the grandmother and was calm and unemotional throughout the proceedings. This was notwithstanding that he did not want to be involved in a dispute in court proceedings about his son, in a situation when he and the mother have a very co-operative parental alliance.
The father made it clear during cross-examination that he is an independent person, who has been separated from the mother for a number of years. He said that it was an insult to him that the grandmother asserted that the mother controls him. He can make up his own mind.
I prefer the evidence of the parents in respect of the extent of [X]’s time with the grandmother and the extent of his relationship with her.
Background of [X]’s time with the grandmother
The chronology in the outline of case of the ICL identified the following:
·December 2010 - The parents relocate to Tasmania from Canberra (the grandmother is living in the (country omitted)).
·09/07/2011 - [X] born in Town D.
·2011 -The grandmother moves to Town D.
·2012 - The parents and [X] relocate to Adelaide.
·2013 – The grandmother relocates to the NSW.
·2014 – The grandmother relocates to Adelaide.
·2014 – The grandmother moves to (country omitted).
·November 2014 – The parents separate.
·2015 – The parents and [X] relocate back to Tasmania.
·May 2015 – The mother stopped communicating with the grandmother.
·2016 – The grandmother asserted that she has visits with [X] at the father’s home.
·14/01/2017- The grandmother asserted that the father denied her access to [X].
·06/07/2017 - The grandmother files her application.
The grandmother’s evidence was as follows:
·In [X]’s first 11 months of life, she met the parents and [X] for lunches, dinners, shopping and in local parks and other outings.
·For 11 months in 2013, when she lived in NSW, she skyped with the mother and [X] on more than several occasions.
·In early 2014, she visited the parents in Adelaide for two weeks. In May 2014, she moved to Adelaide, where she lived with the parents for five weeks.
·In 2014 the parents visited her in NSW.
·In 2014 she left for (country omitted).
·In December 2015, corrected during evidence to December 2014, she stayed with the mother for three days. She made regular visits to her home for about two months.
·While shopping, she saw the father with [X] on a few occasions.
·In 2016 and 2017, the father allowed her to visit his home on a few occasions.
The mother gave evidence that [X] and the grandmother do not have a strong relationship, and [X] has very little recollection of visits from her. She has not spent prolonged or significant time with him. She was not present for the majority of [X]’s life, as she was constantly moving. She did not care for [X] when she visited. She has never been left alone with him, except on one occasion when he was asleep and the parents went for a short walk. The visits were not routine or regular.
The father gave evidence that the grandmother has never been a significant part of [X]’s life:
She had knocked on my door unannounced a couple of times over the past two and a half years. Never did she spend time with [X], but rather a short conversation at the door between myself and the applicant would take place and would involve the applicant bearing a random gift such as a kite or some beans.
Family Consultant Ms S described the relationship between [X] and the grandmother as not constituting a meaningful or even superficial relationship.
Recommendation of the Family Consultant
Family Consultant Ms S prepared a Child Dispute Memorandum dated 6 November 2017 and a Family Report dated 13 August 2018.
In respect of [X]’s time with the grandmother, she recommended in the Family Report that [X] not spend time with her, or otherwise have contact with her either directly or indirectly. She was of the opinion that [X], who is prone to anxiety and sensitive to stress, will be negatively affected by any attempt by the grandmother to have any contact with him.
During her oral evidence, she was told by the ICL that the parents would agree for [X] to receive a birthday card and a Christmas card from the grandmother. She said that if the parents could manage the receipt of cards, with the father facilitating this, she would support cards being sent. She had not recommended this because she believed that the parents could not manage. She did not support any further communication. She was of the view that gifts would create curiosity in a child, which may cause further friction. She did not recommend face-to face-time or Skype communication.
The Family Consultant was of the opinion that the letters, which the grandmother sent to [X] as a result of the parties’ agreement in December 2017, were too long for a child with his difficulties, and were not developmentally appropriate, with too many topics. She preferred cards rather than letters to be sent to [X].
She said that [X] would inevitably feel a level of stress as a result of being in the middle of the acrimony between the mother and the grandmother.
I consider that the Family Consultant gave clear and convincing evidence and recommendations. Her opinions were not seriously questioned during cross-examination. I place weight on her evidence.
Relevant Law
Section 60B sets out the objects of Part VII, and the principles which underlie those objects. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(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
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)…
(3)…
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Counsel for the mother relied on the decision of Church & Overton and Another,[2] in which Benjamin J noted:
[2] [2008] FamCA 965.
[57] Section 60B(2) of the Act provides the principles underlying the objects in parenting proceedings which are expressed in ss60B(2)(a) to (e). These are expressed in the negative in that they apply “except when it is contrary to the child’s best interests” (emphasis added). This means that parents ought to be left to parent their children according to those objects unless it is established that it is not otherwise in the best interests of a child.
…
[60] If a court is satisfied that an approach to the upbringing of a child by a parent or parents in whatever way is contrary to that child’s best interests, then the court should interfere by putting in place appropriate orders. In the absence of substantive issues as to the child’s best interests, it is not the role of a court to peer over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all.
[61] That is not to say that a parent who acts capriciously in isolating a child from a grandparent with whom the child had a meaningful relationship ought not be the subject of orders, nor should this derogate from the role of the many grandparents and relatives who have taken up the care of children in circumstances where the parents were unable or unwilling to care for them.
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 a grandparent, when it is not contrary to their best interests.
Section 60CA of the Family Law Act 1975 (Cth) (‘the Act’) provides that when a court is determining whether to make a particular parenting order in respect of a child, the child’s best interests is the paramount consideration. The family dynamics between the parents of a child and grandparents is relevant when considering a child’s best interests.
In respect of applications involving a grandparent who is seeking parenting orders, in Aldridge v Keaton,[3] the Full Court noted:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
· the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
· the recognition in s65D(1) that ultimately a court should make such parenting order as it thinks proper; and
· that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
[3] (2009) 235 FLR 450 [75].
In determining orders which are in a child’s best interests, a court is required to consider the relevant factors in s.60CC of the Act.
Primary considerations
Section 60CC(2)(a)
the benefit to the child of having a meaningful relationship with both of the child’s parents.
I am of the view that there is benefit to [X] of having a meaningful relationship with both his parents.
I consider that the mother, who has been his primary carer all his life, has provided for all his needs. The parents have separated, but the father has continued to spend time with [X] and provided for all his needs. The parents have a flexible parenting arrangement and have not required any orders after separation. They work together to ensure that [X]’s special needs are met.
Section 60CC(2)(b)
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In s.4(1) of the Act, abuse, in relation to a child, means:
…c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Section 4AB of the Act provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)…
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Section 60CC(2A) of the Act provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The grandmother made numerous allegations against the parents.
In her case outline, she wrote:
psychological abuse has occurred due to [X] been witness to many arguments and individual conversations between both respondents and between their friends and family about each other and about other family members, especially the maternal grandmother on a level inappropriate for [X] to have been exposed to. Family violence is the mental and verbal warfare between the Respondents personal wishes and the constraints each respondent struggles with, and keeping a healthy relationship intact between each other, as per their legal responsibilities for their son.
The grandmother also alleged psychological damage has been caused to [X] by the parents in their failings to nurture and care for him in depriving the love of his grandmother. She sought accountability to both parents for this lack of responsibility in nurturing this relationship.
The grandmother told the Family Consultant that that she believes that the mother is neglectful of [X], as she is a self-interested person and is unable to focus on [X]’s needs.
In cross-examination, the grandmother agreed that she had been critical of the mother and noticed that this was a flaw of hers. She agreed that telling the Family Consultant that [X] is disadvantaged by having the mother as his mother was offensive. She said that ‘if you believe there is some sort of abuse taking place, I do not have the words to describe this in a way that cannot be offensive.’ She was frightened that the mother’s anxiety would not be acknowledged, and that help would not be sought for [X].
She said she believes that both parents are putting [X] at risk of harm and she wants to spend time with [X] to protect him. She explained that the mother was playing a lot of computer games or she was unable to give as much focus upon [X] as what she felt he needed. She alleged mental instability of the mother with anxiety and angry outbursts, and that she put [X] at risk by foster caring children. She believes that ‘a watchdog’ is needed for [X], although she trusts the father to do the right thing. She requested that anger management therapy be mandated for both parents.
The mother denied that she and the father argue in front of [X]. She and the father agreed when [X] was very young that [X] got too upset if they became cross with each other. She quickly learned that [X] was sensitive to any disagreements and was quick to pick up tension in the room. She denied that her foster caring children put [X] at risk. The father has no concerns about the mother’s parenting of [X].
There is no evidence that the mother is mentally unstable. She gave evidence that she is not addicted to gaming. There is no evidence to persuade me that the mother has been or is likely to be neglectful of [X]. There is no evidence to persuade me that family violence has occurred between the parents or in their households.
[X] is a much loved child, whose needs are being provided for by both his parents. [X] was diagnosed with Autism Spectrum Disorder in 2016 after being referred to (omitted) by his parents, ‘for concerns relating to lack of social development, lack of clarity in speech and social anxiety in all formal settings.’[4]
[4] See Diagnostic Assessment dated 14 November 2016.
Since around 3 May 2017, [X] has received speech therapy once per week at home and has attended a play group every Wednesday. The mother is looking for an occupational therapist as well as a family psychologist to support his development. She home schools him.
There is no evidence that persuades me that [X] is at risk of psychological or emotional abuse or being exposed to family violence in the care of the mother or the father.
The mother became estranged from the grandmother in late childhood. She has endured many years of emotional difficulties related to her mother and has no desire to reconnect or establish a relationship with her.
She deposed that she has been fearful and traumatised about the verbal, physical and emotional abuse she endured as a child. Her mother regularly hit her with a leather strap and was critical of her. The memories of her childhood have meant her relationship with her mother has been dysfunctional. She wants to protect [X] and allow him to grow to his full potential as a child with Autism, without the likely risk of exposure to verbal abuse, conflicting religious views and the derogatory and undermining behaviours of the grandmother.
During cross-examination, the mother explained that every time she and the grandmother interact, they end up arguing. It was always tense, and every time the grandmother left her company she was relieved.
The mother gave evidence that she cannot trust the grandmother with [X]. She said that she would be angry if orders were made for face-to-face time for [X] with the grandmother. She does not believe that he would cope in that situation and believes he would be distressed, as he would be with a stranger. Even if she encouraged him, she believes that [X] would know that she did not want this time to occur. The mother said that she would prefer no contact between [X] and the grandmother, but she reluctantly agreed to a Christmas card and birthday card each year.
The grandmother has admitted being abusive of the mother during her childhood. She acknowledged to the Family Consultant her role in her relationship with the mother having failed. She attributed the failure to the mother needing a lot of attention as a child, and she did not provide her with the attention she needed. She sent the mother to (country omitted) when she was around 10 years of age to live with the mother’s paternal grandmother for two years.
The grandmother said that the significant hostility between her and the mother is the mother’s choice and she could change this. However, the grandmother’s hostility towards the mother was evident throughout her evidence and during her cross-examination of her.
The grandmother said that her abuse of the mother physically and psychologically could be carried forward by the mother. Nevertheless, she believes that the mother chooses to continue with unresolved problems between them. She said that her ability to have a relationship with [X] is affected by the mother’s difficulties, only if the mother does not accept how she has behaved.
During cross-examination by the grandmother, the father gave oral evidence that he believed that the letters she sent [X] were not conducive to making a happy environment for him. He said that he knows from spending time with the grandmother that she manipulates situations to benefit herself in the future. This is why he will not agree to gifts or letters. He said he does not feel comfortable or see the benefit to [X] of gifts or letters. He believes this will cause confusion to [X].
The father said that he observed the grandmother’s relationship with the mother over eight years. He was concerned about how this may affect [X], due to more negatives than positives. He said that the grandmother has tried to drive a wedge between him and the mother, and he knows that she could say negative things to [X] about the mother. He said that it would be destructive for the whole family unit to have the grandmother in the picture. He does not want to have overbearing negative influences on [X]’s life, such as the grandmother. He said ‘your intentions are to create division and you interfere…’ He said that she attempts to input in ways that are not asked for, such as encouraging him to apply for sole custody for [X].
Both parents want to protect [X] from emotional harm by being exposed to the grandmother, whom they believe will undermine and damage [X]’s relationship with his mother.
Whilst I am not persuaded that [X] is at risk of harm from being subjected to, or exposed to, abuse, neglect or family violence by the grandmother, I consider that he needs to be protected from a risk of psychological harm from exposure to conflict between the mother and grandmother.
I turn now to a consideration of each of the relevant s.60CC(3) factors.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The grandmother believes that [X] would want to see her.
[X] was not interviewed by the Family Consultant, ‘due to the interview process being potentially unduly stressful and because of [X]’s diagnosis of autism.’
The mother gave evidence that [X] has very little recollection of past visits from the grandmother. She deposed that he does not ask to see her.
The father gave evidence that [X] has never expressed a desire to see the grandmother.
I consider that [X] is too young for any weight to be placed on any view expressed by him.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The Family Consultant described the relationship between the mother and [X] as remote/distant. She wrote that the mother appeared to have a disconnected parenting style, but noted that the dynamics observed may be the product of [X]’s autism and the stress of the observation.
The Family Consultant wrote that the father demonstrated a child focused approach. She wrote that for much of the observation [X] made loud and somewhat aggressive comments that seemed not to make sense. She noted again that [X]’s presentation may reflect aspects of autism.
[X] was described by the mother as being very content when both or either of his parents are present. They have amicably co-parented and shared parenting decisions for him during their three years of marriage and since separation. They have worked hard to understand his special needs and have continued to communicate responsibly to support his growth and development.
I consider that both parents are devoted to [X]’s care and development. The evidence of both parents indicates that [X] has a close relationship with both of them.
This is not a matter where there has been a close association between [X] and the grandmother. She has spent spasmodic time with him since his birth and such time she has spent with him has not been significant. Since mid-2015, she has only seen him in public places with the father or for short periods at his home.
In December 2017, the parties agreed that [X] should know his grandmother and that she could provide presents, cards and letters to him. She sent [X] a number of letters, cards and photographs. On 13 June 2018, the parents no longer agreed to accept presents, letters and cards to be passed on to [X].
The Family Consultant did not observe [X] with the grandmother, as she believed that such an observation would most likely constitute a reunion, and given the issues and complexities of this matter, she judged that the family report process was not an appropriate context in which such an occasion should occur.
The Family Consultant described the relationship between [X] and the grandmother as not constituting a meaningful or even superficial relationship. She noted that the grandmother did not seem to accept that [X] would not connect with her if they had an opportunity to see each other beyond her being a friendly stranger. She also noted that the grandmother did not take into account his diagnosis of autism and that developing relationships is an issue for [X].
She was of the view that [X] has no foundational relationship with the grandmother on which to reconnect or build into the future. Having regard to the evidence, I accept this view of the Family Consultant.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Both parents have taken the opportunity to participate in making decisions about major long-term issues in relation to [X] and to spend time and communicate with him.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The parents have fulfilled their obligations to maintain [X].
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother deposed that [X] gets upset if she leaves the room. If she stays in the room and does an activity beside him he is very settled. He gets upset when she gets upset, and if he is unhappy he lets the mother know. She has strategies to soothe him and he is generally quick to respond to her nurture. She said that [X] is fine with small groups of people if either she or the father are present. When [X] believes that they are not around, he becomes anxious and distressed.
The mother has had a traumatic childhood due to the abuse of her by her mother and she has a dysfunctional relationship with her. The mother fears the impact that her mother’s involvement with [X] would have on her relationship with him and how she and the father co-parent.
The father believes that due to the dysfunction of the grandmother’s behaviour towards the mother, it is not possible for [X] to have a positive relationship with the grandmother. He believes that face-to-face time would put stress on the mother and affect her parenting. He believes that such time would be disruptive to [X]’s routine. He agreed to read cards from the grandmother to [X] and to retain them for [X]. He acknowledged that it is important for [X] to understand his identity and heritage.
I accept the Family Consultant’s view that [X] having a relationship with the grandmother would most likely place him at the epicentre of the difficulties between the mother and the grandmother, and possibly undermine the co-parenting relationship and [X]’s relationship with his mother. She was of the view that such consequences would be emotionally damaging to [X].
She believes that:
[X] would not at present experience not spending time with Ms Maynard as a loss. He will most likely experience the loss of the role of grandmother, which is significant. [X]’s diagnosis of autism will also impact on how he perceives the loss of having a grandmother in his life which may need to be carefully managed in the future.
Section 60CC(3)(e)
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This sub-paragraph is not relevant.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The Family Consultant raised a concern about [X]’s recent regression in his toilet training described to her by the parents. He is awaiting treatment from a paediatrician. The mother reported that [X] speaks about suicide and can be impulsive in his behaviour. She is concerned that he may harm himself one day, although she believes that he has improved somewhat in understanding feelings. She also reported that he suffers from separation anxiety.
The Family Consultant pointed out that parenting of autistic children is stressful. Parents benefit from as much social, emotional and practical support as possible, with professional therapy and services. The mother is accessing services through the NDIS for [X]. She attends a playgroup each week with [X] and this provides her with essential support and strategies to parent a child with autism. She also has a friend, who has an autistic child, and who provides her with support.
The mother deposed that [X] is sensitive to any disagreements and is quick to pick up on tension in the room. She and the father talk with calm and respectful voices around him. They have always reached a peaceful resolution between themselves. They consciously parent to create a calm and caring environment for [X], which helps him remain calm and responsive.
I consider that the mother has the capacity to provide for all [X]’s needs and has done so since his birth. I consider that the father also has the capacity to provide for all of [X]’s needs.
The father believes that due to [X] not having a prior relationship with the grandmother and having never been to her residence, it would be extremely upsetting for him to be placed in this environment. He believes that forcing [X] to spend time at three different residences each week would be disruptive for his routine and likely further trigger his anxiety.
The grandmother has spent little time alone with [X] to care for him. The mother agreed that on one occasion when [X] was asleep, the parents left him with her when they went for a short walk. The mother believes that she does not have the capacity to provide for the needs of an autistic child. She believes that she will cause [X] emotional harm by exposing him to her derogatory views of his parents if she spends time alone with him.
The mother also believes that the grandmother will expose [X] to her religious beliefs if there is face-to-face time. She deposed that when he was younger, she talked about her view of the world to [X]. He became confused and upset when he could not understand the cultural concepts of her religion or when his parents could not explain the differences. She deposed that on one occasion the grandmother brought a photograph of her religious leader and gave it to [X]. The mother researched the leader, and due to his extreme religious views, she refused to allow [X] to have the photograph in his room. On other occasions the grandmother behaved in an overly religious manner in [X]’s presence. She said that the grandmother ignored her when she asked her to stop discussing her religious views.
The mother stopped speaking with the grandmother, due to the stress her derogatory comments about her parenting of [X], her lack of trust of her capacity to care for him as a child with autism, and her increasing pressure to influence religious education. The mother deposed that she felt a loss of confidence every time her mother denigrated her as a parent. She got upset when she told her she was unfit to parent [X]. If [X] gets upset, this creates difficulty in managing his emotions.
The father has misgivings about the negative influence the grandmother may have on [X]. He said he saw it first-hand over a number of years. He said that [X] is not immune to his surroundings. He believes that it will have a negative effect upon [X] if the mother becomes stressed as a result of his contact with the grandmother. He said that the grandmother has been a major stress in their relationship and in maintaining a happy environment. He said that bringing it back in these proceedings after all these years has been a negative factor.
The father gave evidence that the grandmother tried to drive a wedge between him and the mother, making comments about the mother’s weight, and trying to micro-manage them as parents. He said he found it detrimental to their happy marriage. After separation, he felt that the grandmother was trying to sway him to seek sole custody of [X]. She wanted to take [X] away and live at an (location omitted).
The grandmother has little insight of the impact of these proceedings on the parents and the consequent impact on [X]. She has little insight of the impact of her attitude towards the mother on her and on the father. I am not persuaded that she has the capacity to provide for [X]’s emotional needs or physical needs.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
[X] has been diagnosed with Autism Spectrum Disorder. The mother gave evidence that he does not like being questioned about his feelings. He is also prone to irritable bowel syndrome when stressed. He becomes stressed and irritable if separated from the mother or father.
The Family Consultant wrote that children with autism such as [X] are prone to anxiety and sensitive to levels of stress. ‘[X] requires stable, secure, predictable, loving relationships in which he has confidence. His carers need to be able to work as a team to attend to his specific needs consistently.’
An example of the parents working as a team was when the father told the Family Consultant that [X] is adjusting to having a new baby brother and has not wanted to come to his house on occasions recently. In order to make it easier on [X], the father sometimes visits him at the mother’s home.
The Family Consultant gave evidence that ‘parenting of autistic children is stressful and parents benefit from as much social, emotional and practical support as possible, along with professional therapy and services. It is difficult to imagine Ms Maynard’s introduction into [X]’s life as being anything other than stressful given Ms Marchand and Mr Marchand’s negativity towards her.’
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This sub-paragraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have demonstrated a responsible attitude to [X] and the responsibilities of parenthood. They have ensured that [X] is very happy and settled in his routine. They have maintained this since separation.
The mother home schools [X] and ensures that his special needs are provided for.
The parents’ views about [X] not spending time with the grandmother are consistent. I agree with the Family Consultant’s view that it is in [X]’s best interests if they continue to support each other in parenting him.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Throughout the mother’s childhood and adolescence, the grandmother was verbally and emotionally abusive to her, making derogatory remarks to her about her weight and sexuality. She hit her with a leather strap.
The grandmother blamed the mother for their difficulties. During cross-examination, she admitted that she used a leather strap to hit the mother, and caused her physical pain. She acknowledged to the Family Consultant that she may have played a significant role in contributing to the mother’s opinion of her.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I consider it would be preferable to make an order that will least likely lead to the institution of further proceedings in relation to [X]. The proceedings have been stressful for the parents and this is not in [X]’s best interests. I am concerned that if an order were made that [X] spend time with the grandmother, this may lead to further proceedings.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
I am of the opinion that there is no benefit to [X] having a meaningful relationship with grandmother, having regard to the effect this is likely to have on the parents, in particular the mother, and the consequential effect on [X].
The parents do not have the willingness to facilitate or promote a relationship between [X] and the grandmother, other than to facilitate the receipt of two cards per annum from her. Neither parent support [X] having a relationship with the grandmother. The relationship between the grandmother and the mother is so dysfunctional that the mother cannot support [X]’s having a relationship with her. She believes that her mother would bring emotional harm to [X], as she did to her as a child.
I consider that the attitude of the parents to the grandmother is understandable, having regard to the history of the difficulties between them. The grandmother has a negative attitude to both of them and is highly critical of their parenting. I accept their evidence that she has been interfering in their parenting. I am not persuaded that if the grandmother were to spend time with [X]’s, that she would be able to refrain from being negative about the parents in his presence, in particular about the mother. This will have the potential to affect their parenting of [X].
Parental Responsibility
I consider that the presumption of equal shared responsibility applies in this matter, as there are no reasonable grounds to believe that the parents have engaged in abuse of [X] or family violence. The parents agree that an order for equal shared responsibility should be made. I consider it is in [X]’s best interests that this order be made.
Live With and Spend Time Arrangements
I consider that it is in [X]’s best interests to live with the mother, which is agreed by the parents. It is not in [X]’s best interests for an equal time arrangement and this is not reasonably practicable. I am not persuaded that it is currently in [X]’s best interests for him to spend substantial and significant time with the father, or that it is reasonably practicable. The mother has been [X]’s primary carer since his birth and [X] needs to adjust to the father’s current circumstances. The parents agree that [X] should spend such time as agreed with the father.
I consider that it is in [X]’s best interests that he not spend face-to-face time with the grandmother, not have Skype and telephone communication, and not receive gifts or letters from her. I consider that it is in [X]’s best interests that the grandmother be entitled to send him two cards per annum, on his birthday and at Christmas.
I consider that any further contact will impact the mother and her ability to care for [X]. I consider it will also impact the father in his care of [X] and impact the parental alliance, which currently ensures that [X] is in a happy and stable living arrangement.
I consider that an injunctive order that the parents not denigrate the grandmother in the presence of [X] should be made. [X] will be receiving cards from her. If there is any discussion with him about the grandmother, it is in his best interests that she not be denigrated.
I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 19 October 2018
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