Medhurst and Royden and Ors
[2019] FCWA 188
•28 AUGUST 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MEDHURST and ROYDEN and ORS [2019] FCWA 188
CORAM: TYSON J
HEARD: 13 and 14 AUGUST 2019
DELIVERED : 28 AUGUST 2019
FILE NO/S: PTW 452 of 2018
BETWEEN: MR MEDHURST
First Applicant
AND
MS MEDHURST
Second Applicant
AND
MS ROYDEN
First Respondent
AND
MR ROYDEN
Second Respondent
Catchwords:
FAMILY LAW – CHILDREN - Application by grandparents to spend time with grandchildren – Application opposed by the parents of the children – No risk issues - Where the parents are in an intact family unit - Where the children are 7 and 5 years old – Where the children have not had any contact with the grandparents for 2 ½ years – Where there is a high level of conflict and no relationship between the parents and the grandparents – Consideration of children’s best interests – Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| First Applicant | : | Self Represented Litigant |
| Second Applicant | : | Self Represented Litigant |
| First Respondent | : | Mr Phillips |
| Second Respondent | : | Mr Phillips |
Solicitors:
| First Applicant | : | Self Represented Litigant |
| Second Applicant | : | Self Represented Litigant |
| First Respondent | : | SV Phillips & Co |
| Second Respondent | : | S V Phillips & Co |
Case(s) referred to in decision(s):
Banks & Banks (2015) FLC 93-637
Church & Overton and Anor [2008] FamCA 965
In re LC (Children) [2014] UKSC 1
McCall & Clark (2009) FLC 93-405
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re C & D (1998) FLC 92-815
Sedgley & Sedgley (1995) FLC 92-623
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
TYSON J:
1Before the Court is the application of the maternal grandparents [Mr and Mrs Medhurst] [“the grandparents”], to spend time with [Child A] who is seven and [Child B] who is five. The application is opposed by the children’s parents, [Mr and Mrs Royden] [“the parents”].
2The grandparents last saw the children on 23 April 2017, which they say was 841 days ago. The parents are implacably opposed to the children having any contact with their grandparents.
3Prior to 2017, the grandparents and parents enjoyed a reasonable relationship. That relationship has since fractured, as has the relationship within the maternal family. The grandparents are now estranged from each of their adult daughters, including Mrs Royden, and all of their grandchildren. This is a sad dispute.
WHAT ARE THE BACKGROUND FACTS
4The maternal grandmother was born [in] 1958. She is 60 years of age and works as a [business owner]. The maternal grandfather was born [in] 1953. He is 65 years of age.
5The mother was born [in] 1987. She is 32 years of age and is employed on a casual basis. She is otherwise a homemaker and parent. The father was born [in] 1985. He is 33 years of age and is [an] [electrician].
6The parents commenced living together in 2005 and married in 2011. The parents [lived] [interstate] until November 2011. From late 2011 until May 2012 the parents lived with the maternal grandparents.
7Child A was born [in] 2012. Child B was born [in] 2013.
8From May 2012 the parties remained on largely positive terms. The grandparents continued to see and spend time with the children, including taking them to activities, going to events at the children’s school and enjoying a short holiday with Child A in their campervan. The grandparents also babysat the children when requested.
9There is a dispute about the precise level of contact in that period. The parents say after obtaining their own accommodation, they would spend time with the grandparents on special occasions and on average from one to two times a fortnight. The children would sleep at their grandparents’ home between three to four times a year. The grandparents consider that the contact was much more frequent, between three to four times each week.
10Having heard the evidence, I consider that in the period from 2013 to 2016, the children regularly saw and spent time with the grandparents, which at times was up to three times each week. That was often in the mother’s presence, or when the grandmother accompanied the mother to events, and other family celebrations including extended family holidays. The grandfather was not always present, due to his work commitments. At times, one or both boys slept at the grandparents’ home.
11In 2015 the parents asked and the grandparents agreed, albeit reluctantly, to provide a personal guarantee, to facilitate the purchase of a property subject to a mortgage. It appears this, and other events, put a strain on their relationship. The fact the guarantee remains in place, is clearly the source of ongoing angst and anger for the grandparents.
12Between late 2016 in January 2017 the parties began seeing less of each other. Their relationship soured. The family held a birthday party for Child A [in early] 2017, which the maternal grandparents attended. The parents consider the maternal grandmother was “standoffish” and did not interact with the family.
13[A few days later] the mother and the children were at the grandparents’ home. The grandmother argued with her neighbours, including shouting and yelling, with the neighbours throwing nuts at the grandmother’s dogs and vehicles. Both the grandmother and her neighbour proceeded to play loud music.
14[The following month] the mother and children attended the grandmother’s workplace. The mother says she attended, as she had in the past, to check on her mother’s well-being because she was concerned about her previous behaviour. The grandmother says it was unusual for the mother to attend her work place. She says the mother was abrupt.
15Later that year the mother sent a message to the grandmother, from herself and from the boys to wish her a happy Mother’s Day. The grandmother replied asking her to give her grandsons a kiss.[1]
[1] Exhibit 8.
16In [mid] 2017 it was the mother’s 30th birthday. Invitations were sent to both sides of her family to attend a celebration. The mother ultimately cancelled the party due to concerns there may be some conflict and unpleasantness with her parents. This event was significant to the mother, who presented as upset and distressed when recalling the occasion.
17The grandmother sent a lengthy six page email dated 9 June 2017, which is annexure 6 to her affidavit. The mother found the letter distressing and upsetting, considering it contained numerous untruths and hate, which reinforced her and the father’s decision to stop all contact. The letter included comments such as:
•“we are ashamed” … “the last few months have been a shit fest of causing trouble yet again”.
•“…we are both telling you all now, the annual Grandchildrens holiday will never EVER be held again…we are still taking our holiday and will so every year but it will be alone as you all do not deserve our time and effort or our undying love and commitment to you all”.
•“You cruel and disgustingy lying children”.
•The mother has “time on her hands to be vindictive in a callous way and it is hurtful and she knows it”. The mother’s birthday “was just another example of the rude ness and lies that go on constantly between you all”...”I DONT CARE THAT THEY ARE YOUR INLAWS AND I DON’T CARE IF THEY ARE INVITED TO EVENTS BUT I DON’T HAVE TO BE HAPPY ABOUT SPENDING EVERY EVENT WITH THEM JUST AS EVERYONE ELSE ISNT IF THEY ARE HONEST”.
•The mother “uses words and posts as vengeance and she knows it”.
•Until the mother apologised, with the father present, “…I do not want to talk to you at all”.
•“Where have you girls been for both Dad and I?? NO WHERE. It is always a one sided relationship with you all, except for [Ms A] who does her best from where she is…”
•“This family is broken and it is not because of dad or I, it is because of you girls and your greed, selfishness, snooping, commando crawls in the middle of the night, backstabbing lying, lack of respect, praying into other people’s private lives and then accusing us of being in the wrong… You are also ungrateful for your lives and utterly disrespectful for what you have been given… In essence, you have chosen the wrong road to go down after giving me a percentage rating as a grandmother and it will never be forgiven, nor will the blatant lies you have all told… I will not be threatened with our grandchildren, nor will they be kept away from us for a few months…[dad] is appalled by you all and the things you say and do just as I am…you are all so ungrateful for your lives and utterly disrespectful for what you have been given…”
18Relations deteriorated. The extended family’s planned holiday to [Regional Town A] in July 2017 was cancelled, although the grandparents went to Regional Town A separate to the parents and other daughters.
19[In mid] 2017 the mother invited the grandparents to attend Child B’s birthday,[2] which she hoped would be an olive branch. The grandparents bought gifts and tickets to the event where Child B’s party was being held, on the basis they planned to attend. The mother says and I accept that the grandparents did not respond to her invitation.
[2] Exhibit 9.
20Relations soured further around Father’s Day. I do not consider it helpful to delve into the details of what transpired. It is suffice to say, the mother considered that she reached out to her father and received no response. The grandmother posted a message on Facebook which the mother interpreted as a criticism of her and her siblings. The grandfather says he was out of range on Father’s Day and was unable to respond to the messages.
21The outcome of these events, was that the mother then withdrew the invitation for the grandparents to attend Child B’s birthday.
22In January 2018 the grandparents commenced the current proceedings, following the parents declining to participate in family dispute resolution. In their Form 1 they sought the children live with their parents “who are competent loving caring and fantastic parents except they will not allow contact with us”.
23After they were served, [the maternal aunt, Ms A] took a screen shot of the grandparents’ Initiating Application. She was in Perth at the time and her husband was in Regional Town A. Ms A told the father she wanted to show her husband, as he would not believe it.
24Ms A then posted onto a fake Facebook account, the front two pages, which she sent to a number of the grandmother’s work colleagues, with comments claiming she was mentally unstable.[3] That reflected poorly on Ms A.
[3] Exhibit 12.
25While the grandparents consider Ms A was acting on concert with the parents, I accept Ms A was acting alone. Ms A admitted to her parents she had posted the documents.[4] Each of the parents were upset and angry at Ms A for her actions, which have not assisted the level of acrimony that now exists.[5]
[4] Exhibit 13.
[5] Exhibit 10.
26In March 2018 the parents filed their Response, seeking the application be dismissed.
27In May 2018 the family were on a train, after attending a football game. The grandparents were standing on the platform. They allege the father made a rude hand gesture at them, which he denies. The mother says the children referred to the grandparents, but not by name.
28The grandparents now seek orders in terms of their minute filed 22 August 2018. They wish to spend time with the children for four hours each alternate Sunday, for three nights during each of the school term holidays, for one week during the summer school holidays, in addition to time at Christmas, Easter and on each of the children’s birthdays. They seek weekly telephone contact and orders to require the parents to keep them notified about significant issues concerning the children’s health and education. They want permission to attend the children’s school and access to the school newsletters, reports and school photographs. They also seek the parents be restrained by injunction from denigrating them or their family to or in the presence or hearing of the children.
29The parents continue to seek the application be dismissed.
WHAT IS THE EVIDENCE RELIED UPON?
30The grandparents rely upon the affidavit of the grandmother and grandfather each filed 22 August 2018 and their son [Mr J] filed 22 August 2018. They subpoenaed the paternal grandmother, [Ms L] to give evidence.
31The parents rely upon their affidavits both filed 10 September 2018, the affidavit of [Ms T] filed 10 September 2018 and Ms A filed 9 August 2019. I have read all of the affidavits and had the benefit of observing the parties and their witnesses during the trial.
32The grandparents were self-represented litigants. I explained the trial procedure to them, they had the Self-Represented Litigant Handbook and their attention was drawn to the relevant sections of the Act. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings. I am comfortable that the trial was fair and they were able to fully participate.
PARENTING
33The Court is bound by the provisions of the Family Law Act 1975 (Cth). The objects of the Act relating to the children are to ensure that their best interests are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the extent consistent with the best interests of the child; and
(b)protecting the 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 the children.
34The principles underlying those objects are, that except when it would be contrary to a child’s best interest:
(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).
35Each parent has parental responsibility for the children. Section 61DA provides that a Court must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility.
36Section 65D of the Act provides that the Court may make such parenting order as it thinks proper. In determining what orders the Court should make, it must regard the children’s best interests as the paramount consideration. The factors which the Court must take into account in determining what is in the children’s best interests are set out in section 60CC of the Act:
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)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).
Additional considerations
(3)Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(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;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
37Given the parameters of the dispute, many of the factors listed in s 60CC are of little or no relevance to the issues for determination. It is not necessary, therefore, to traverse them in detail in these Reasons; it is sufficient to note that I have turned my mind to each of the considerations listed in the section and will address them in detail to the extent they are relevant.
38The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment where the factor in question has no sufficient relevance in the particular circumstances of the individual case to displace the determinative significance of factors specifically discussed.[6]
[6] Banks & Banks (2015) FLC 93-637.
39In determining what orders are in the children’s best interests, the parents do not, merely by virtue of biological parentage, “stand in any preferred position”.[7] That said, it is well established that the Court may properly consider the potential impact of proposed orders on the parent, who has primary care for a child. The Court must recognise the potential effect on the children of the consequences of that impact.
[7] Re C & D (1998) FLC 92-815, [10.10].
40The Court is required to consider the nature of the children’s relationship with each of their parents and any other persons, including any grandparent or other relative. There is no presumption that a particular relationship will be “meaningful” nor that it will be to the benefit of the children.[8]
[8] McCall & Clark (2009) FLC 93-405.
41The Act places parents in a special position in relation to their children, which is highlighted in both the objects and principles. It acknowledges that children have a right to spend time on a regular basis and communicate with their parents and others significant to their care, such as grandparents. The Act empowers a grandparent to seek a parenting order.[9] The Act sets out principles that parents are expected to share duties and responsibilities for the care, welfare and development of their children.[10] It provides that parents should agree about the future parenting of their children.[11]
[9] Section 64B of the Act.
[10] Section 60B(2)(c).
[11] Section 60B(2)(d).
42In Church & Overton and Anor [2008] FamCA 965 Justice Benjamin considered an application by the children’s grandfather to have contact with his grandchildren, which was opposed by the parents. His Honour stated:
44.Where parents jointly (or if a sole parent, solely) have a strong view in relation to the parenting of their children, courts should be cautious about interfering with that exercise of parental responsibility. In general, parents best know their children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of the children. This does not mean that courts take over the role of parents.
45.There are limits on the ability of parents to make decisions regarding their children. The most obvious example is their ability to consent to certain medical procedures (most notably, sterilisation) in the absence of a court order made by this Court. But the defining tenor of the Family Law Act is to empower parents to take responsibility for making decisions regarding their children free from arbitrary or unwarranted interference.
46.Australia ratified the International Covenant on Civil and Political Rights on 13 August 1980. Article 18.4 of that Covenant states:
4.The State parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
…
48.Article 23 of that Convention states:
23.The family is the natural and fundamental group unit of society and is entitled to protection by society and this State.
43His Honour affirmed the law entitles parents to parent their children. If there is an assertion that parenting duties should be usurped, it is the obligation of the party asserting that fact to establish that the parents are not carrying out those duties in the best interests of the children.[12] If the Court is satisfied that the manner in which a child is being parented, is contrary to the best interests, then the Court should interfere by making appropriate orders.
[12] Refer to Church & Overton and Anor (supra) at [58].
44In the absence of substantive issues as to the children’s best interests, Justice Benjamin stated:
..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.[13]
FINDINGS AS TO THE WITNESSES AND THEIR EVIDENCE
[13] Refer to Church & Overton and Anor (supra) at [60].
45Baroness Hale in the matter of In re LC (Children) [2014] UKSC 1 at [67] said:
Almost every witness engages in a certain amount of (conscious or unconscious) manipulation of their recollection of past events to meet their present interests.
46In my view, those comments are relevant in the current case. There is very little that is factually agreed between the parties. While I consider each of the parties were generally open and honest in their evidence, the events leading up to 2017 and since have clearly been difficult for each of them. In fairness to the parties, and their witnesses, many events which were raised, including how the grandparents parented their own children, occurred many years ago. For example, there were allegations that the police were called to the grandparents’ home on multiple occasions, as a result of violence between the grandparents, as well as abusive behaviour towards the mother and her siblings. That is categorically denied by the grandparents. No police documents were produced to assist me in determining that issue.
47It is common for honest people to present differing accounts of the same events, so long after they occurred. Whilst it may not be that a party has deliberately given false evidence, at least one of them must be mistaken about various matters they now claim to remember.
48The maternal grandmother attempted to give her evidence truthfully, however I find this was the truth as seen through her eyes. She had difficulty answering questions directly and preferred to provide lengthy statements, about matters she felt were important. She repeatedly emphasised that the mother and her other daughters had lied; she needed to point out their lies and hold them accountable. She presented as a determined person, who was rigid and steadfast in her views.
49I had concerns as to the grandmother’s insight. For example, she did not consider that her email was abusive, instead describing it as abrupt. She was either unable or unwilling to accept the contents were upsetting and distressing to the mother. She did not acknowledge the proceedings had put either parent under pressure. While she accepted she no longer had a relationship with either parent, she continued to blame them for the situation. She did not consider the lack of any relationship was relevant to her proposals. She refused to accept that the orders she proposed, could impact on the parents.
50There were some aspects of the grandmother’s evidence I did not accept. She deposed that the mother had blocked her on Facebook. That was untrue. It was the grandmother who blocked the mother.
51The grandmother described the parents as “brilliant parents, just not good people to us”. She regularly took opportunities to criticise and denigrate each of them. She accused the father of stealing a tablecloth from her. She said the mother told lies and the parents were selfish and spiteful. She perceives she has been badly treated by them. I did not consider her to be balanced or measured in her evidence.
52The maternal grandfather gave his evidence in a direct and forthright manner. Like his wife, he too, repeatedly stated that the mother and his daughters had lied and was anxious to bring this to the Court’s attention. The grandfather wrote to the mother on 12 October 2017 which included the following (verbatim): [14]
“you’s girls have been causing trouble since about April this year. You’s have spoiled all of our holidays etc. And now you think you can keep the children from seeing us. We gave you the benefit of doubt to do the right thing as a mother? But obviously you don’t care what your children think about there grandparents, so my next question is to you and [Mr Royden], how much time and money do you want to waste on someone else to make the decision for you’s. Because I’ve gone and got legal advice and I know I am entitled to have visiting rights at our home. I don’t care what it takes or who has to be brought into it, it will be done as you as a mother can’t do it”.
[14] Exhibit 2.
53He did not view the letter as threatening or upsetting to the mother. I consider he also lacked insight and was focused on attributing blame. He described the mother as vengeful, spiteful and ungrateful. He referred to his rights as a grandparent.
54He made some concessions against self-interest. He admitted he had been angry and frustrated, he had sworn at the mother and said things he should not have. He accepted his memory was poor and he had difficulty recalling dates. I consider that he minimised the extent to which he had been verbally abusive towards the mother, in light of the evidence. He did not accept that his actions, or that of his wife, had contributed to the current difficulties. He was unable to name anything he could do to improve their relationship. The maternal grandfather’s dislike of the father was apparent.
55The paternal grandmother was subpoenaed. She was a reluctant witness. Having said that, I found her to be frank and candid. She confirmed when she and her husband separated, her relationship with the father was strained and they had no contact for a number of years. She met Child A when he was three months of age. Since that time, her relationship with the father and his family has grown and improved. She now has a warm and loving relationship with both parents, and her grandchildren. I found her to be an honest witness.
56Mr J lives with the grandparents and is strongly supportive of them. I consider that he was direct in his evidence. He presented as more measured than his parents. He was plain describing the regular time that he and his parents had spent with the mother and the boys up until 2016 and the previously good relationship they shared. Like his parents, he dislikes the father. He also considers that his sisters are responsible for the breakdown of the family’s relationship.
57I consider the mother gave her evidence honestly. She readily admitted the support her parents had provided, and that Child A and Child B had previously enjoyed a great relationship with the grandparents. She described previously enjoying a positive relationship with her parents.
58The mother was emotional at times while giving evidence. She described having no relationship with either of her parents. She presented as genuinely upset and distressed at the concept of her parents spending time with the children. She was frank in explaining her stress, difficulty sleeping, her worries and anxiety about these proceedings. She said she felt upset and angry at times, which was not how she wanted to be around the children.
59I consider the father was direct and frank in his evidence. He presented as strongly protective of the mother and the children. He acknowledged, without hesitation, the support the grandparents had provided in terms of the guarantee and explained the efforts he had unsuccessfully made, to try and have it removed. He accepted the grandparents had cared for the children; he had argued with the grandmother when they lived together and he was disinterested in trying to repair their relationship.
60The father described his relationship with the grandparents as terrible. He is vehemently opposed to the grandparents’ proposals, explaining that would involve them spending more time with his children than he does, and more than his family.
61Ms T is the mother’s sister. She is supportive of the parents. Her evidence was not significantly challenged. I consider she was a truthful witness.
62Ms A is the mother’s sister. She is strongly supportive of the parents. Her poor view of the grandparents was obvious. To her credit, she made concessions against self-interest, acknowledging that she had, at times, shared a close relationship with her parents and that her mother had been a source of support for her in difficult times. That relationship has now ended. She was candid in her admissions about posting documents onto Facebook. Much of Ms A’s evidence was of little assistance.
63The mother and her siblings were each upset and uncomfortable being cross examined by their father. Ms A described it as not normal. The mother was visibly distressed at times during cross-examination.
What is the Grandparents’ Case?
64Until 2017 they enjoyed a close and loving relationship with Child A and Child B. It is in the children’s best interests to maintain that relationship. The grandparents dislike the father. They have raised multiple criticisms about him in their evidence. The grandmother considers the father’s influence on the mother has led to them being excluded from the mother and the children’s life. The grandmother says she is unaware why Ms T and Ms A have also pushed them away, but considers they may be worried about being cut off from Child A and Child B also.
65The grandmother acknowledges that she obtained a Violence Restraining Order against her neighbour in June 2017. It was resolved by way of a Misconduct Restraining Order. She denies that she and her husband physically or verbally abused any of their own children. The mother denies making threats of suicide. Her evidence in this regard was not challenged.
66The grandmother says the mother promised their guarantee would be discharged after a year. When the grandmother said they were reluctant to provide the guarantee, the mother threatened they would not see the grandchildren again. The mother subsequently apologised and said she was stressed about the purchase of the property.
67Mr J dislikes the father, calling him “a bit arrogant and rude”.[15] He first became aware of issues between his sisters and parents in May 2017. He subsequently had an argument with his sisters and no longer has any contact with them. Mr J denies that his parents were physically violent to one another or abusive to them during their childhood. His evidence in this regard was not challenged. He alleges the father is quick to anger and has been aggressive and threatening towards him including in the presence of the children.
What is the Parents’ Case?
[15] Paragraph 11 of Mr J’s affidavit filed 22 August 2018.
68It is their decision to determine with whom the children are to have a relationship. They do not consider it is in the children’s best interest to have any contact with their grandparents. The children enjoy relationships with many other members of their extended family including the paternal grandparents, the maternal aunts and others. The parents remain happily married and the children enjoy a close and loving relationship with each of them. The children are safe and secure in their care.
69The children are happy, healthy and doing well. Child A is in year 2, where he is part of the gifted and talented program. Child B is in pre-primary. The boys play [a variety of sports]. They live busy active lives. The father coaches [one of] the boys’ [sports] teams.
70The parents consider the maternal grandparents are highly conflictual, aggressive and emotionally manipulative. They do not want the children exposed to such conduct. The father says during the time they lived with the maternal grandparents, he became aware of a number of disputes with their neighbour, where cars and property were damaged. The parents allege the conflict escalated to the neighbours throwing things over the fence, making it unsafe for the children to play outside. The grandparents installed security cameras, due to concerns about the neighbours’ behaviour.
71Ms T deposes the dispute included threats by the neighbours to burn down the grandparents’ home.[16] She asserts the maternal grandparents have threatened to take her to Court and her father has made abusive telephone calls to her.
[16] Paragraph 8 of Ms T’s affidavit a filed 10 September 2018.
72Ms T says growing up there was violence between her parents, which required the police to be called. She claims her mother slapped her. She described the commencement of these proceedings, as the “nail in the coffin” of her relationship with her parents.
73Ms A describes her mother’s behaviour as “threatening, harassing and disruptive” in addition to being physically abusive.[17] During her pregnancy in 2018, the grandmother threatened to take her to Court, causing her significant stress. She and her partner have jointly decided their children will not have contact with their parents. She does not consider her parents are capable of providing a safe or stable environment. She says she was exposed to her parents physically fighting and growing cannabis, which they sold and supplied.
[17] Paragraphs 7 and 15 of Ms A’s affidavit filed 9 August 2019.
74Ms A says she moved to Regional Town A, both to be with her partner and to escape her mother’s abusive behaviour, for which she has required professional assistance. She has given a number of examples of what she considers are untruths and lies told by the grandmother, her propensity to enter into disputes, her verbal threats and abuse.
75The mother says she had concerns about Mr J bringing “random males of all ages in and out of the house at “obscene” hours of the night”. Ms T, who was living in the home, claimed items were being stolen and she felt unsafe. The parents raised with the maternal grandmother their concerns about these matters in late 2016, which they considered was the catalyst to the deterioration in their relationship. The parents said that if the grandmother did not put an end to Mr J’s behaviour they would no longer allow the children to sleep at their home, due to safety concerns.
76The father alleges the grandmother threatened self-harm to claim insurance. He has concerns about her mental health and emotional well-being.
77The mother says the maternal grandmother claimed Child A had Attention Deficit Hyperactivity Disorder, and Autism, both of which are untrue. The grandmother made negative comments in the presence of the children about the boys’ maternal aunts.
78The parents consider the grandparents’ application is spiteful and they are utilising proceedings to hurt them. Any contact between the grandparents and their children, would be personally distressing for them. The proposals would intrude on their lives and routines as a family. The father works full-time and says they treasure their time together. The father deposed the proposals were:
impractical and unworkable. We do not want the boys exposed to conflict, to the negative views and behaviours… Display(ed) towards us and I cannot see how that would not occur even if we were dropping the boys often collecting them without remaining at the home of the Applicants.[18]
DISCUSSION AND CONSIDERATION
[18] Paragraph 73 of the father’s trial affidavit.
79It is well established, through a long line of authorities, that in considering whether it is in the children’s best interests to spend time or have contact with a person, for the Court to take into account the impact such contact would have upon the primary carer. If the Court concludes that such an order would adversely impact upon the custodial parent, to the extent it will impair their ability to provide emotional and physical support, then the Court must take that into account in considering whether contact is ultimately for the benefit of the child.
80The Full Court in Sedgley & Sedgley (1995) FLC 92-623, observed that while it may be in a child’s best interests to have some continuity of contact, “the need for peace and tranquillity in the custody or parent’s household may be a more compelling need for the child”.[19]
[19] At 82,259.
81I accept the grandparents love their grandchildren and are deeply disappointed that they are no longer part of their lives. They desperately wish to reconnect with them and play an active role, as grandparents. That position is supported by their son.
82I accept the parents, in agreement, are deeply opposed to the children having any contact with their maternal grandparents. That position is supported by the mother’s two sisters, who are also estranged from the grandparents.
83Sadly, the maternal extended family appeared to have enjoyed a close relationship until late 2016. Various events up to and in 2017 and each party’s perception of those events, have resulted in the family splintering. Each of the parties feels strongly that they have been poorly treated by others. There is now a high degree of animosity and conflict between them. I do not consider it to be either helpful, nor necessary, to make findings as to why the relationships broke down. The simple fact is, that it has.
84The grandmother’s email, while designed to express her perspective about matters, was in my view, abusive and unhelpful. How she thought the contents would repair her relationship with the mother, is difficult to understand.
85This litigation has, unsurprisingly, not assisted in repairing the relationship between the parents and grandparents. These proceedings, the contents of the various affidavits and the trial itself, has likely further entrenched the level of animosity, conflict and hostility between the parties. There is simply no relationship now between the maternal grandparents and the parents.
86In considering what is in the children’s best interests, I must consider the nature of the children’s relationship with their parents and with other persons, including grandparents, and the capacity of the parents to provide for the children’s needs.
87The parents are in an intact marriage. The grandparents made no serious challenge to their parenting, apart from their refusal to facilitate contact.
88The evidence is that the mother and father are loving parents. The boys are both doing well at school, participating in various activities and achieving their developmental milestones.
89The parents’ attitude towards their children and the responsibilities of parenthood were not in question, save for their joint parental decision not to cultivate a relationship between the children and the maternal grandparents.
90There is no evidence that the children are at risk of harm or that the parents have failed in their obligations to provide a safe and nurturing environment. I am not satisfied the grandchildren are at risk of harm by the grandparents, as supported by the time they previously cared for them. In my view, the risk to the children is the level of conflict and animosity between their parents and grandparents. Given the strength of the grandparents’ views, where each of them have communicated in an abusive manner to the mother, the parents hold genuine concerns that the children would be exposed to their poor relationship and potential conflict.
91The Court had no evidence as to what the children’s views are. I considered whether there was any benefit in having the views of the children ascertained, but concluded the advantage of doing so would be significantly outweighed by the detriment the children would suffer, having to contemplate contact with their grandparents, in circumstances where it is so opposed by their parents. In any event, given the ages of the children, and their likely maturity, I did not consider that weight would likely attach to their views.
92The children’s sense of identity and where they fit in their extended family, is important.
93The children have now not had any contact with their maternal grandparents for over 2 ½ years. Child A last saw his grandparents when he was 5, while Child B was 3 years old. Given the ages of the children, that represents a significant period in their lives. I am satisfied that prior to 2017, the children enjoyed a good relationship with their grandparents. Despite various complaints raised I do not consider that the children are at risk of harm in their grandparents’ care.
94Regrettably, the breakdown in the relationship between the parents and grandparents has eroded any previous goodwill that existed between them. The relationships within the extended maternal family have fractured such that neither of the mother’s sisters, nor their children, have any relationship with the maternal grandparents. As a consequence, the children are missing out on the relationships they previously enjoyed with their maternal grandparents. Those relationships potentially offer the children additional insight into who they are, who comprises of their family and their heritage.
95After careful consideration, I am not satisfied that it is in the children’s best interests to spend time or communicate with the maternal grandparents, in terms sought by them. I have reached that decision taking into account the following:
(a)The children currently have no relationship with their grandparents. They have not seen them for over 2 ½ years, which represents a significant period of time given their ages.
(b)The parents are implacably opposed to any contact between the children and their grandparents. They have genuine concerns that the grandparents may not shield and protect the children from their feelings and attitudes towards themselves.
(c)The parents and maternal grandparents have no relationship and have not had a relationship for over 2 ½ years. The parents do not wish to have any relationship. The grandparents lacked insight into these matters. Their evidence was simply, if orders were made as they proposed, that the difficulties would resolve themselves and the parents would need to communicate. Sadly, the chronology of events does not support their view. Further their focus of attention to point out the perceived wrongs, without any self-reflection as to their contribution towards the conflict and poor relationship, did not bode well for any future relationship and co-operation.
(d)The parents, in exercising their parental responsibility, have determined it is not in the children’s best interests to have a relationship with their grandparents. They made that decision a number of years ago and that remains their joint position.
(e)The grandparents’ proposals are likely to cause ongoing tension and hostility. It also interferes with the arrangements which the parents, as an intact unit, wish to make about the children’s routines and arrangements.
(f)Having had the benefit of hearing the evidence, I consider that granting the grandparents’ application would increase the likelihood of future litigation between the families. That cannot be in the children’s best interests.
(g)While there is a benefit to the children having a relationship with their grandparents, in terms of having a fuller understanding of their identity and sense of self, the risk of ongoing conflict and hostility between their parents and grandparents does not support orders in terms proposed by them.
(h)I accept that any contact between the grandparents and children will cause the mother, in particular, distress and anxiety. As the children’s primary carer, that cannot be appropriate or in their best interests.
(i)I hold concerns about the grandparents’ capacity to provide for the children’s emotional needs, in the context of the estrangement between the families.
96I considered carefully whether the grandparents should be able to send cards, small gifts at Christmas and on each child’s birthday, subject to the parents’ right to vet them.
97That potentially may assist the children in terms of any interest they may have about their maternal grandparents. In the future, the children may want to know about them. Either child may choose to seek them out, in circumstances where they are old enough to make that decision and the parents are confident of their safety in doing so.
98However, I have determined that is not in the children’s best interests in circumstances where both parents are resolutely opposed to any contact. Each expressed concerns about receipt of items, in terms of then explaining to the children who the gifts were from and their absence.
99For these Reasons, I decline to make any orders. The application will be dismissed.
Proposed Orders
100I propose to pronounce orders as follows:
1.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
2.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties.
3.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 2 and 3 above do not apply.
4.The Application and Response be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary28 AUGUST 2019
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