McCarthy and Lambert and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCARTHY & LAMBERT & ANOR

[2016] FCCA 641

Catchwords:
FAMILY LAW – Application by paternal grandmother to spend time with her grandchildren – parents have been separated for years but have cooperative arrangement in place without any formal orders in place – grandmother’s relationship with her son and the mother have completely broken down.

Legislation:

Family Law Act 1975, ss.60CA, 60B, 65C, 60CC

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Cases cited:
Church v Overton & Anor (2008) 40 Fam LR 357

Applicant:

MS MCCARTHY

First Respondent:

MS LAMBERT

Second Respondent:

MR MCCARTHY

File Number:

DGC 2184 of 2013

Judgment of:

Judge Harland

Hearing date:

21 March 2016

Date of Last Submission:

21 March 2016

Delivered at:

Dandenong

Delivered on:

24 March 2016

REPRESENTATION

The Applicant:

Self-represented

The First Respondent:

Self-represented

The Second Respondent:

Self-represented

ORDERS

The mother and the father are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010 (“the children”).
That the applicant Ms McCarthy, spend time with the children from 10:00am to 4:00pm on the last Sunday of March, June and October each year.
The handover location will take place as agreed and failing agreement as nominated by the mother.
That until Y turns 7 years old, the maternal grandmother Ms H shall be in substantial attendance (if she is available). If the maternal grandmother is not available the visit will still take place.
All extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2184 of 2013

MS MCCARTHY

Applicant

And

MS LAMBERT

First Respondent

And

MR MCCARTHY

Second Respondent

REASONS FOR JUDGMENT

These proceedings concern X, born on (omitted) 2009, aged 6 and Y born (omitted) 2010 aged 5.
The paternal grandmother commenced proceedings on 7 August 2013. The first and second respondents are the children’s parents.
The parents have been separated since 2011. They have a cooperative relationship and have never needed any formal agreement. The father sees the children on alternate weekends, half the school holidays and half of the special days. The parents are united in their opposition to the paternal grandmother spending any increased time with the children than she already does.
The relationship between the grandmother on the one side and the parents on the other has completely broken down. The parents view the grandmother’s application as intrusive and controlling and place an emphasis on the fact that the grandmother also took her daughter to court to seek spend time orders with respect to her daughter’s children. Each side describes the other as inflexible and unwilling to compromise.
The father said that his mother abused him as a child and that he does not want anything to do with her. He says he has not seen his sister for years and has nothing to do with his sister’s children. The paternal grandmother says that her former husband was abusive, not her. The father says that he has attempted to give evidence to support his allegations but that the records from his childhood no longer exist. I do not need to determine, nor can I on the evidence, the origins of the breakdown of the father’s and his mother’s relationship.
All three parties appeared for themselves before me today for the final hearing. Neither parent had filed any recent material, complaining about the costs they incurred in filing any initiating material. The grandmother has filed updated material including an amended application.
Two family reports have been prepared in this matter by Ms C. The paternal grandmother takes issue with parts of Ms C’s reports. She did not put Ms C on notice that she wished to cross-examine her. After standing the matter down for some time to enquire as to Ms C’s availability, the grandmother indicated that she did not want to cross-examine with Ms C. I explained to her that that would mean that her reports would be admitted into evidence unchallenged and that if she wanted to challenge them, she would have to put the allegations that she makes in her affidavits to Ms C and give her the opportunity to respond to these allegations. She confirmed that she did not want to cross-examine Ms C.
I canvassed with each of the parties how they wished the hearing to proceed. None of the parties wished to cross-examine the other party but wished for me to determine the issues based on the material filed with the Court, the family reports and the oral submissions each made today before me. In my view, that was a sensible decision as nothing could be gained by cross-examination in this matter. The parties’ respective positions are clear.
Both parents proposed that the current orders be made final. They oppose any increase to the grandmother’s time and also oppose the removal of a supervision requirement.
Unfortunately the maternal grandmother who has been supervising the paternal grandmother’s time was not available to be interviewed for the second report as she was overseas at that time. She has not filed a recent affidavit in these proceedings and is not in court today. I indicated to the parents that I might come to the view that supervision is not practical or appropriate on a long-term basis. They indicated they understood that. They are worried about the paternal grandmother being manipulative and saying things to the children that undermine them if her time is unsupervised.
Both parents concede that the children enjoy the time with the paternal grandmother but it was apparent that they find the idea of the grandmother having ongoing regular involvement with the children difficult.
The paternal grandmother’s approach to this matter has undoubtedly added to the parents’ feelings. The grandmother’s application was unrealistic as was her amended application which she relied on at the final hearing.
In her initiating application filed on 7 August 2013, the paternal grandmother sought orders on a final and interim basis which provided for her to have alternate weekends with the children from Friday after day care and kindergarten until 4:00pm Sunday, telephone contact three times a week and times on other special occasions and for days during school holidays. She also sought an order that the mother do all acts and things to authorise the school and kindergarten to send to the paternal grandmother at her expense notices of events, school photographs needed, newsletters and other documents.
The grandmother says she received legal advice and was advised to seek the time sought in those documents. She says she sought that time understanding that she might not receive all that she sought. It is not enough to simply say that the lawyer has advised the amount of time that she sought. It should have been obvious that the increased time would be likely to increase the tension amongst the parties. It is suggestive of a lack of insight and sensitivity. Whilst the paternal grandmother changed her position at the hearing, my impression is that was only because of my comments about the inappropriateness of what she was seeking in the context of these proceedings. The grandmother’s approach to this is all the more concerning given the content of the two family reports.
The father filed a response on 22 January 2014 seeking orders on a final and interim basis that the paternal grandmother spend time with and communicate with the children at such times as determined by the mother and father.
The mother filed a response on 5 February 2014 seeking final orders that the paternal grandmother spend time and communicate with the children at times determined by the father and mother and that on an interim basis, she spend time with the children from 10:00am to 12:00pm on every fourth Sunday at (omitted) play centre. The visits were to take place substantially in the presence of the father. The paternal grandmother says these visits were difficult because the father interfered and he was resentful.
The amount of time the applicant spent with the children prior to filing her application is a major issue in dispute. The applicant says that she was significantly and regularly involved in the children’s care until February 2013 when the mother cut off contact. She says the parents had an on and off relationship and that her son would frequently bring the children to her place and she would assist him to care for them including overnights.
The father says in his affidavit filed with his response that when the paternal grandmother was attending their home to visit X, she would not listen to the parents when they asked her to give them some space. He says because of his mother’s refusal to listen to their concerns, they stopped her time. He denies the extent of his mother’s claims of involvement with the care of the children when he had the children at her place and says that when he and the mother visited her she would argue with the mother. He says the paternal grandmother would pick fights with the mother.
He says that the children do not have any contact with his sister or their cousins. He says that throughout his childhood until now, he has had to deal with the applicant’s difficult behaviour. He does not believe that it would be in the children’s interests to have an ongoing relationship with her. He referred to the mother having concerns about the grandmother’s mental health. He says that throughout his life, the grandmother has put him down and made him feel worthless and he does not want the same to happen to his children. He says he has tried to forge a good relationship with her but has been unable to. He also complains that she continually interferes with how the children should be brought up.
The mother says in her affidavit filed with her response that during the early stages of her relationship and when she was pregnant with X, that the paternal grandmother had very little to do with them. She says she recalls one occasion when the paternal grandmother and the father had an argument because the paternal grandmother was smoking in front of them whilst the mother was pregnant.
The mother describes the paternal grandmother’s and father’s relationship with each other as toxic and as tumultuous. She says she did not want the grandmother to spend much time with them as she was interfering. Due to this the mother asked the paternal grandmother to stay out of the birthing suite when X was born. She says that the paternal grandmother did not respect her wishes.
The mother complains that the paternal grandmother would call or text almost daily and that this became overbearing particularly as she was adjusting to being a new parent. She describes visits with the grandmother including a Christmas lunch at the grandmother’s home as being fraught with arguments. The mother says they saw less of the paternal grandmother after that. She says that after Y was born and in early 2011, they had an argument with the paternal grandmother when she refused to stop smoking in front of children. The mother says that the paternal grandmother had no contact with the children from March 2011 until September 2011. She says she never smoked in front of the children.
The mother says that after that she and the father separated in September 2011, the father moved in with the paternal grandmother. She describes ongoing difficulties with the paternal grandmother. She says the last time the paternal grandmother saw the children was before court proceedings in February 2013.
The mother expresses fears that the paternal grandmother will negatively influence the children. She says the paternal grandmother regularly picked fights with the parents and regularly made verbal putdowns to the father. It is clear that the mother has found the paternal grandmother to be interfering and disrespectful of her role as the children’s mother and disrespectful of the parents’ parenting style.
The grandmother responded to the allegations made by the parents in their affidavits paragraph by paragraph. She included allegations about alleged disputes between the parents at various times which were not relevant to the issues in dispute. The grandmother denies these allegations.
There are many factual disputes between them. As the matter proceeded on the basis of the written material and oral submissions, I cannot determine the disputed issues of fact and given the issues in this case, it is not necessary.
In addition to her own affidavits, the grandmother relied on affidavits by her daughter and by Ms B. These affidavits do not advance matters.

Section 11F report

A section 11F report and two family reports have been prepared in this matter. Ms O, family consultant, prepared the section 11F report dated 29 May 2014. She observed that the paternal grandmother was focused on her own needs above the children’s. She was proposing fortnightly time and seemed to consider her relationship with the children as equal to the parents.
Ms O observed that whilst grandparents can play an important and supportive role, she was concerned that the paternal grandmother had limited capacity to be child focused. She did not recommend overnight time when the parents had little confidence in the paternal grandmother. She recommended that the paternal grandmother spend time with the children every six to eight weeks for three to four hours at a time.
The parties entered into interim consent orders on 2 June 2014 that provided for the paternal grandmother to spend time with the children every eight weeks supervised by the maternal grandmother.

First family report

Ms C, family consultant prepared both family reports. In the first report released on 10 April 2015, she noted that the paternal grandmother was evasive as to what her proposal was but that she stated a visit every eight weeks was not enough. She said she did not want to be supervised and wanted overnight time. She said she missed the children terribly.
The mother proposed that the paternal grandmother’s time be less often than every eight weeks. She said the children were missing out on activities such as friends’ birthday parties and family events and that it was also imposing on the father’s time. She proposed that the paternal grandmother have a longer period of time during the day but less often.
Ms C was of the view that the paternal grandmother was somewhat concrete in her views and dismissive of the parents’ concerns. The paternal grandmother says she was distressed at the interview as she had recently discovered that her sister was murdered by her brother. Ms C found the paternal grandmother to be a poor historian.
Ms C recorded that the father was also a poor historian and was distressed at times during the interview as he felt that his efforts to impress upon people his mother’s ability to manipulate people was not being heard. He described his father’s violence towards him as a child. He says his mother was also violent towards him.
The father is seeing a psychiatrist, Dr C for treatment of depression and trauma. He says his mental health improves when he does not have any contact with his family. He has not had any contact with his sister or her children for years.
The mother said that she and the father were in a relationship for about six years and separated because the father had anger issues related to his mother. She also says that the paternal grandmother’s interference and intrusiveness contributed to the stress and breakdown of their relationship.
Both parents were worried about the court proceedings and the fact that they might drag on as they understood that had been the case when the paternal grandmother took her daughter to court in order to spend time with her children.
The mother has another young child with her current partner. She expressed concerns about all the activities and commitments the children had including with her partner’s family and the time with their father.
The maternal grandmother was also interviewed for the first family report. She had been supervising contact the paternal grandmother’s time and believed that it had been progressing well. She said she thought the paternal grandmother managed the children quite well together and said she would be happy for the paternal grandmother to have six hours of unsupervised time with children. She referred to the frequency of time being difficult for the children because of having other activities such as karate and socialising with friends for birthday parties.
Ms C also interviewed the father’s partner, Ms R who observed that the father seems irritable following contact with his mother and he appears to have difficulty knowing the children are with his mother.
The mother impressed Ms C as being the most child focused of the adults. She said that the father was also child focused but was less articulate and more reactive to the paternal grandmother. Ms C found that the paternal grandmother was not able to focus on the best interests of the children “in a manner which was discriminating of their needs and stages of development”. She went on to say:
“while it can be true that relationship with grandparents can be supportive for children, and can in some cases contribute to children’s resilience, most children’s relationships with grandparents and extended family are mediated by the parents. When families are separated and the children live with one parent the majority of the time, it is common for those children to have stronger connection to that parent’s extended family, usually because of assistance at providing childminding and other resources.”
Ms C expressed concern that there may be possible mental health issues for the paternal grandmother and that due to the children’s developmental stages they may not be able to report issues of risk. She referred to the children being unlikely to be able to report issues of risk until they reach seven years of age.
Ms C observed and noted that it was consistent with Ms O’s observations at the child inclusive conference that the parents have a cooperative parenting relationship. She expressed concern that an increase in the frequency of time with the paternal grandmother could place this relationship at risk. She also referred to the father’s symptoms and that his recovery may require that he have significantly reduced or no contact with his mother. She expressed some concern that the children may pick up on their parents’ distress and start to associate that with spending time with their paternal grandmother which would not be in their best interests. She recommended that the paternal grandmother spend three hours with the grandchildren, supervised, every 10 weeks. She recommended that they not spend time with the paternal grandmother unsupervised until they are seven years old. She also recommended that a supplementary report be prepared once information has been obtained from the Department of Health and Human Services (“DHHS”).
No relevant information was provided by DHHS.

Second family report

The second family report was released on 28 January 2016. The maternal grandmother was not able to be interviewed as she on a pre-arranged cruise which she had booked prior to the interview date being arranged.
Ms C observed that the paternal grandmother stated it was in the children’s best interests to spend more time with her but was not able to identify how that would enhance the children’s well-being when both their parents are against it. That is consistent with the paternal grandmother’s own material and to her presentation before me.
In addition to more regular time with the paternal grandmother or similar time on special days, the parents oppose this as they feel that it will not be possible to have any negotiation with the paternal grandmother. She also wanted telephone contact with the children.

The mother proposed that the children continue to spend time with the paternal grandmother in accordance with the current interim orders. She said that the children’s family life involved various commitments and activities as well as children’s friendships.
The mother expressed concern about the ongoing proceedings and felt that the paternal grandmother was “gratuitously oppositional” and quite undermining of hers and the father’s parenting. She again referred to the proceedings between the paternal grandmother and her daughter and said that the paternal grandmother’s daughter’s children were older and more able to identify any inappropriate behaviour by the paternal grandmother.
The father also proposed that the current time arrangements remain in place. He said he had agreed to the paternal grandmother spending time with the children against his better judgement. He felt pressured to agree even though he experienced her as a parent causing him significant harm and he does not feel that she has changed her behaviour.
When discussing the proposals with the paternal grandmother, Ms C again observed that the paternal grandmother was unable to express how the best interests of children would be served by her proposals. She seemed either unwilling or unable to acknowledge that the parents have a high degree of cooperation with each other and that the main source of conflict is between her and her son.
Ms C found the paternal grandmother to be dismissive of the fact that the children’s time with their parents is reduced when they spent time with her and would be further reduced if she had more time with the children. She was also dismissive of the parents’ distress about their relationship with her. Ms C again felt that the paternal grandmother struggled to place the children’s needs above her own. She sought overnight unsupervised time and refused to accept that the parents’ proposal for the children to spend time with her needed to be strongly considered because if their proposal was accepted, it was likely that the conflict would be reduced. A reduction in the conflict would reduce any distress to the children. She pointed out that even if the children do not see or hear the conflict directly, they are aware of it and affected by it.
Ms C observed again that the father was distressed during the interview. He had recently started a new job which he enjoyed and was worried about taking time off work to attend court. He expressed distress at having to deal with his mother and the fact that she would not accept their offers. He expressed concern that the paternal grandmother would keep going and would wear them down.
Ms C made the following observation:
“Mr McCarthy’s level of distress would be consistent with traumatic injury and with a therapeutic stage of recovery from such injury, when a person may need to maintain distance from the perpetrator while they undertake intensive therapeutic work. It therefore seemed unusual for him to respond with such distress about his mother, when she reported she was protective of him and that it was his father who had been abusive and he reported he had not seen his father for well over 20 years. Sometimes the young person who has been abused by one parent maintains anger towards the other parent, because they were not protective and sometimes even because that parent was vulnerable and ineffectual.”
I find this observation of the father significant. It was clear that when he appeared in court before me he found it difficult to contain his distress and relied on the mother to support him. The parents sat together at the bar table and whilst the mother took the lead, the father also made his own points.
Ms C also observed that the father did not present as being someone with an intellectual disability (which is an allegation the paternal grandmother made repeatedly) but that he may have struggled academically because the ability to concentrate and memory are often affected negatively by children who have suffered significant trauma.
The mother expressed concern that although professionals, including family consultants, described her as child focused, she perceived that the paternal grandmother was still able to use court time and resources to argue to spend more time with the children than she and the father thought was reasonable. She was frustrated that the paternal grandmother seemed to ignore the parents’ good and cooperative relationship and the decisions that they made with respect to the children. She also expressed concern that the paternal grandmother was driving the children with treats and presents every time she saw them.
Ms C concluded that the paternal grandmother had shown at interview that she was not interested in negotiating with the parents and that she appeared to lack flexibility and the ability to build a relationship with her grandchildren in a manner that was less likely to inflame the high conflict between her and her son. She did not demonstrate an ability to be reflective and tended to blame others.
Ms C said that whilst the paternal grandmother may be spending more frequent time with her other grandchildren, those children were nine and seven and old enough to report any ill-treatment whereas X and Y are not. I do not know what the current state of the paternal grandmother’s relationship is with her daughter. Presumably it is more positive than the relationship with her son. My focus is on what is in the best interests of X and Y.
It is apparent from Ms C’s updated report that in her view, it would have been preferable for the Court to have more information which could verify if the father’s allegations about his childhood and about the mental health and functioning of the paternal grandmother. As all parties are unrepresented, this has not occurred and would not occur unless an Independent Children’s Lawyer was appointed. In my view, this would not be in the children’s interests as the proceedings would necessarily be further delayed and for the sake of everyone involved, this matter needs to be finalised.
The paternal grandmother took issue with much of Ms C’s reports. In her affidavit filed on 9 March 2016, the paternal grandmother responded to Ms C’s second family report paragraph by paragraph. Many of her answers serve to reinforce Ms C’s observations of her. For example, the paternal grandmother complains that the current orders only allow her to see the children five times a year for 15 hours total. She says this is not enough time and seeks more time with the children including time during special occasions such as Christmas, Easter and birthdays. She says the increased time spent will show that they are part of a much wider family than “just the respondents”. This is significant as it ignores completely the extended family that the parents have referred to. The mother has re-partnered and has a child with her partner and the children spend time with his extended family. The father has also re-partnered.
The paternal grandmother says that she wants the children to feel like they are growing up in a supportive wider family. The grandmother also completely ignores the fact that the father does not have a relationship with his sister or her children and ignores the parents’ feelings and in particular, the father’s feelings about his family. It is not for her to override the parents’ wishes that she does not agree with.
The paternal grandmother also compares the time that she has with her other grandchildren and the fact that she has telephone contact with those children. Her arrangements with her daughter are not relevant to these proceedings. The court has no information about her relationship with her daughter and the arrangements have been determined by another court.
The paternal grandmother talks about being able to pass down family history, values and traditions as well as emotional and physical support but entirely ignores the fact that the children’s parents may not support her version of family history and values etc.
Again the paternal grandmother denies causing harm to the father as a child and says this was caused by the paternal grandfather. She denies and minimises the father’s feelings about this issue and goes on to complain about the father being verbally and physically abusive towards her. Regardless of the rights or wrongs, the feelings of the parents are strongly held and there is nothing to suggest that they are not genuinely held.
The paternal grandmother says she accepts that the conflict has primarily been between her and her son but blames him for this because of his abuse and that the allegations against her are not substantiated. She repeatedly says that she was not the abusive parent. She repeatedly refers to the father being abusive towards her. This indicates that she cannot accept that the father feels the way he does regardless of whether she agrees that is reasonable or not and that she does not take any responsibility for the conflict despite the fact that it would be obvious to anyone that the conflict would only worsen with court proceedings being on foot.
The paternal grandmother says she supports the respondents as parents but her actions and her own evidence belie this. The orders that she sought both in her initiating application and her amended application prepared shortly before the final hearing were completely disproportionate to her being a supportive grandmother supporting the parents’ role as parents.
The paternal grandmother says that she accepts that the cooperative relationship between the parents contributes to the children’s well-being but goes on to state that their relationship has not always been cooperative and it ended because they were abusive to each other. She completely denied the parents views. It is also plain to see that the paternal grandmother cannot take a step back and see that continuing to say things like this about the parents cannot assist her cause and to the contrary, is only likely to elevate the parents’ concerns that she will disrespect their views and undermine them.

The law

In cases about children under Part VII of the Family Law Act 1975 (Cth) the Court must regard the best interests of the child as the paramount consideration: s.60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.
There are objects set out in s.60B that help to clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objects: s.60B(2).
The paternal grandmother is entitled to bring these proceedings as a person interested in the children’s care, welfare and development; s.65C.
The concept of best interests is explained in s.60CC. The primary considerations are set out in s.60CC(2) and include the benefit to the child of having a meaningful relationship with both parents and protecting the child from harm arising from abuse, neglect or family violence.
There are additional considerations set out in s.60CC(3). Grandparents are referred to specifically as people who can be significant to children’s welfare. The legislature introduced these specific references as part of the reform introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). There was recognition of the importance of extended family including grandparents prior to these reforms but the amendments made it explicit.
The amendments do not place grandparents in any special position above parents. Benjamin J discussed this in Church v Overton & Anor (2008) 40 Fam LR 357. He observed at paragraphs 43 and 61 the following:
“The Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interests. However, any determination of the best interests of a child or children should be informed by the family dynamics between the children’s parent/s and grandparent/s. In that regard, the views of the parents are significant but not necessarily determinative.
The law is that parents are entitled to parent children. If there is an assertion that parenting duties ought to be usurped it is for the person asserting that fact to establish that parents are not carrying out those duties in the best interests of the child”
Section 60CC(2)(a) refers to the benefit to the child of having a meaningful relationship with both parents. There is no reference to grandparents. I will now consider the relevant 60CC(3) factors.
The children are young and have not expressed a view about the time they spend with their paternal grandmother.
It is apparent particularly from the second family report that the children enjoy spending time with the paternal grandmother and the parents agree with that.
There is some concern about the paternal grandmother’s ability to provide for the children’s emotional wellbeing given her lack of insight and regard for the parents’ role as parents. This risk is mitigated by the fact that the time is limited to day time only and occurs three times a year. As the children have a good relationship with the paternal grandmother and the parents concede there should be some time, I will order face to face time. However, the biggest concern I have in this matter is the impact on both parents but particularly the father if the parents have to deal with the grandmother more than a few times a year. It would be different if the parties had a mutual respect and confidence in one another but they do not. This is unlikely to change.
The strength of emotions of all three parties was palpable in the court room. The role of the mother and father as parents needs to be protected. They have been able to work together cooperatively for years.
The orders I am going to make will be the least likely to lead to further proceedings. Three times a year will be sufficient time for the children to maintain their relationship with the paternal grandmother whilst reducing the stress on the parents. Ordering the time to occur on the last Sunday of the month in March, June and October avoids mother’s day and father’s day. It also avoids the children’s birthdays and the parent’s birthdays. It avoids the need for the parties to negotiate with one another. Requiring the maternal grandmother to be substantially present until Y turns 7 also addresses the concerns raised by the family consultant and will provide some comfort to the parents. If the maternal grandmother is unable to attend, the risk is not so great that the visit should be cancelled.

Conclusion

If it were not for the parents both proposing that the paternal grandmother spend some time with the children and acknowledging that the children enjoy seeing the paternal grandmother, there would need to be serious consideration given to whether or not there should be any face to face time between the paternal grandmother and the children. Whatever her relationship with the children has been in the past and there is a significant dispute about this, it is apparent that she now has developed a relationship with the children and as Ms C said in both reports, it is not necessary for the children to have the frequent time that the paternal grandmother proposes in order for the children to benefit from a grandparent relationship with the grandmother. The role of the grandparent is different to that of a parent.
I have real concerns about the impact on both parents but particularly on the father if the paternal grandmother has more frequent time with the children. This is because of the distress and worry it causes to the parent and the impact that could have on the children. The paternal grandmother says that Ms C said that the children were not aware of the conflict. That misrepresents what Ms C said above.
Having considered the material, including the grandmother’s own affidavit, I have real concerns that the grandmother lacks insight and did not appreciate the impact on the parents of these proceedings and the involvement that she seeks to have with the children over their objections and concerns.
I do not find that it is in the children’s interests to have overnight time with the paternal grandmother as this is likely to cause enormous distress to both the mother and father. They would be worried about the children whilst in the paternal grandmother’s care and it is unlikely that they would be able to completely shield the children from their concerns. This is not to suggest that they would discuss their concerns with the children but simply that when a parent is stressed and concerned, children pick up on the distress despite parents best efforts to keep it from them. Children are far more perceptive of their parents’ feelings than most adults give them credit for. Children pick up on non-verbal cues as well as verbal ones.
In my view, rather than the paternal grandmother’s time being increased, it should be reduced. I am aware that this is not in accordance with the recommendation of the family report and that it is less than the parents were prepared to accept. I have real concerns about the negative impact on the parents if the paternal grandmother was to have more time with the children and if that time was to extend overnight. As Ms C noted in her report, the parents’ cooperative relationships and the parents’ views need to be given significant weight. She also recommended that if the grandmother does not accept the recommendation, that the spend time arrangements be discontinued altogether.
The grandmother complained that she was not having telephone contact with the children. Her amended orders sought telephone contact every alternate Wednesday from 4:30pm or a time agreed by the mother. I do not think that would be beneficial to the children and it is likely to be disruptive and stressful for the mother and father.
Given the state of the paternal grandmother’s relationship with both parents, it is unrealistic for her to think that her relationship provides support for the children. In fact, her relationship causes the parents distress. Despite this, they remain child focussed. It will be incumbent upon the grandmother moving forward that she does nothing to add to the parent’s stress, such as seeking to spend more time with the children than the orders provide and bringing the children into contact with extended family members who the parents have decided not to introduce the children to. In this regard, I am referring to the father’s sister and her children. It would be completely undermining of both parents but particularly the father’s authority.
When they were legally represented, the parents sought an order that they have equal shared parental responsibility for the children. They did not seek any other parenting orders as between the two of them. Understandably, they made no submissions about this order as they were unrepresented. The parents confirmed to me that the informal arrangements between them worked well and they did not seek any orders between themselves.
Having considered this issue, I find it is in the children’s best interests to make an order for the parents to share parental responsibility. This formalises what they are already doing. It may also send a message to the paternal grandmother that it is the children’s parents who are responsible for making major decisions for the children’s care, welfare and development. I am also satisfied that the parents will continue to make arrangements between themselves to benefit their children. I am satisfied that the parents are able to provide for the children’s physical, emotional and intellectual needs. I do not need to further consider the issues as between the parents.
If the parties’ relationship improves then they may agree to variations to this arrangement.
I am satisfied that in all the circumstances of this case, these orders are in the children’s best interests.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 24 March 2016

[2016] FCCA 641

24 March 2016

Key Legal Topics

Areas of Law

Family Law