Messner and Anor and Tosto and Anor
[2018] FCCA 827
•12 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MESSNER & ANOR & TOSTO & ANOR | [2018] FCCA 827 |
| Catchwords: FAMILY LAW – Parenting – grandparents seek order for children to spend time with them – parents oppose any time between the grandparents and the children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61C, 61DA, 64C, 65DAA Federal Circuit Court Rules 2001 |
| Cases cited: Re F: Litigants in Person Guidelines [2001] FamCA 348 |
| First Applicant: | MS MESSNER |
| Second Applicant | MR MESSNER |
| First Respondent: | MS TOSTO |
| Second Respondent: | MR TOSTO |
| File Number: | DGC 3267 of 2015 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 8, 9 & 12 February, 20 March 2018 |
| Date of Last Submission: | 20 March 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 12 April 2018 |
REPRESENTATION
| Counsel for the Applicants: | Self represented |
| Solicitors for the Applicants: | Self represented |
| Counsel for the Respondents: | Mr Whitchurch |
| Solicitors for the Respondents: | Hutchinson Legal |
| Counsel for the Independent Children’s Lawyer: | Ms Stavrakakis 9 &12 February 2018 Mr Marchetti 20 March 2018 |
| Solicitors for Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
THE COURT ORDERS
That all previous parenting orders with respect to the children, [X] born …2000, [Y] born …2008, and [Z] born …2010 (“the children”) be discharged.
That the children live with the parents.
That the children [Y] and [Z] communicate with the maternal grandparents by way of letters, cards and gifts forwarded to the children (or either one of them) not more than four (4) times per calendar year), per child.
That for the purposes of communication between the children and the maternal grandparents pursuant to paragraph 3 above.
(a)the parents ensure and provide that such letters, cards and gifts be passed on to the children without delay; and
(b)each of the parents keep the maternal grandparents notified of the address to enable delivery of such letters, cards and gifts.
That the Independent Children’s Lawyer meet with the children to explain to them that their grandparents love and wish them all the very best and that whilst they may not be in a position to see and spend time with the children it does not diminish their care and love for the children. In addition, the Independent Children’s Lawyer may explain to the children that the maternal grandparents may write and forward letters, cards and gifts to them in accordance with orders 3 and 4.
THE COURT ORDERS BY CONSENT:
That without admitting the necessity thereof the parties be restricted from using corporal punishment with any of the children or permitting any other person to do so.
THE COURT ORDERS
That upon compliance with paragraph 5 above the appointment of the Independent Children’s Lawyer be discharged.
That all extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Messner & Anor & Tosto & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3267 of 2015
| MS MESSNER |
First Applicant
MR MESSNER
Second Applicant
And
| MS TOSTO |
First Respondent
| MR TOSTO |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern a dispute over parenting orders, as that term is defined in the Family Law Act 1975 (“the Act”), for [X] born …2000, [Y] born …2008 and [Z] born …2010 (“the children”).
This case concerns the applicant grandparents’ wish to spend time with their grandchildren in the face of the determined opposition of the respondent parents (their daughter and their daughter’s partner, the children’s father.)
The parents were implacable to any orders which would have had the children spending time with the grandparents.
These reasons explain why the grandparents’ wish must defer to what on the evidence is in the childrens’ best interests.
By application filed 20 October 2015, Ms Messner and Mr Messner, (“the grandparents”), sought parenting orders under the Act for Ms A born …1999, [X] born …2000, [Y] born …2008 and [Z] born …2010. In their response filed 28 January 2016, Ms Tosto and Mr Tosto (“the parents”) opposed the parenting orders sought by the grandparents for all the above mentioned children.
The grandparents are 68 and 70 years of age respectively and live in Suburb D, Victoria. The grandmother works as a tradesperson for Employer 1 and the grandfather who had been a tradesperson after arriving in Australia is no longer employed. The parents are 41 and 51 years of age respectively and live in Suburb E, Victoria. The father works in the [employment] industry and the mother is employed in [employment]
When the proceedings came before the Court for trial the eldest child was over 18 years of age and [X] was also on the cusp of adulthood. Ms A was living with the grandparents. Ms A, [Y] and [Z] remained living with the parents and had not spent time with the grandparents since 2014.
Background
The grandparents and the parents were born in the [Country A]. The grandmother worked as a professional and the grandfather as an professional.
The parents were married in 1996 and lived with the grandparents, who also helped care for the eldest child Ms A after she was born in 1999 before the parents migrated with her to Australia in 2000.
Shortly after their arrival the second child [X] was born. The grandparents visited in 2001 and again in 2004 before they too made arrangements (with financial assistance from the parents) to migrate to Australia in 2006.
After the grandparents arrived in Australia, they lived with the parents for almost 2 years and during that time assisted the parents caring for the children and taking them to school.
It appears there were many disagreements between the parties whilst they were living together, though nothing beyond what could be expected when two different generations facing the challenges posed by establishing themselves in a new country disagree on how best to do so. In 2008 the grandparents moved into their own accommodation and the third child ([Y]) was born later that year.
Following this, the grandparents who were assisted by the parents (and in particular the father) to establish themselves in that accommodation and employment, spent regular time with the children by agreement with the parents. The youngest child ([Z]) was born at the beginning of 2010 and time between the grandparents and the children continued until 2014 when the parents stopped the grandparents from seeing the children.
By this time the parents, who had become involved in a Christian church (which was different to the religion the grandparents had traditionally observed), had tired of what they said was the grandparents’ criticism of them and their care of the children to those in the Orthodox church and the Country A immigrant community more generally as well as interfering in their parenting of the children.
In 2015 there were escalating confrontations between Ms A and the parents (and in particular the father) because of what they claimed was her unacceptable behaviour and problems with her mental health. Ms A had been diagnosed as having, inter alia, bi polar disorder and suffering hypomania. There was a report made at Ms A’s school (about the father using physical discipline on her) and this led to the Department of Health and Human Services becoming involved with the family. There was also an intervention order taken out for Ms A’s protection which named the father as the respondent (which has since expired).
The parents believed the grandparents became involved before and after these events with police and other authorities (including Ms A’s school) for their own reasons (rather than out of genuine concerns about the children or any of them) and used the events to attempt to further undermine their reputation generally and their relationship with all the children in particular.
The parents believed the grandparents did not understand the problems that had been caused by, and the challenges they (and the rest of the children had faced) associated with dealing with Ms A’s mental health problems and the attendant problematic behaviour.
Conversely, the grandparents claim they became involved only because they were concerned for the children (and Ms A in particular). The grandmother said that her health was adversely affected by the intra family dispute and her concerns for Ms A.
The grandparents commenced these proceedings in October 2015, the parents filed a response in early 2016 and following the first Court date in February 2016 a child inclusive conference (as a result of an order made under s.11F of the Act) was held and a memorandum released to the Court and the parties in April 2016.
As a result there were interim orders made in May 2016 for, inter alia, family therapy, and the proceedings returned to Court again in December 2016 when an order was made for the appointment of an Independent Children’s Lawyer and a trial was fixed in September 2017.
In early 2017 the relationship between Ms A and the parents deteriorated further because of what the parents claimed was problems with her mental health. Ms A left the family home staying initially in respite care then after a hospital admission (and then upon being discharged) moving to live with the grandparents.
The parents filed an application in a case in March 2017 which was dismissed in May 2017, but as the family therapy that had been ordered had broken down, a family report was ordered pursuant to s.62G(2) of the Act for the trial that had already been fixed for September 2017.
The family report was released in August 2017 following interviews with the parties and the children earlier the same month.
When the proceedings returned to Court in September 2017 for trial none of the parties had filed affidavit material since 2016 and the trial was relisted to begin on 8 February 2018 with orders for the parties to file affidavits for that purpose.
The trial
When the proceedings returned before the Court for trial in 2018 the grandparents appeared in person. The parents were represented by Mr Whitchurch of Counsel and the Independent Childrens Lawyer by Ms Stavrakakis of Counsel.
The trial had been fixed to commence on 8 February 2018. On that day the interpreter who had been booked by the Dandenong Registry to assist the grandparents did not attend. Arrangements were made for the grandparents to have access to an interpreter by phone, and the matter was stood down to allow Counsel for the Independent Children’s Lawyer to have discussions with the parties.
Later that day, the parties returned to Court and advised the matter was unable to be compromised, and once it was confirmed an interpreter would be available at Court to assist the grandparents, the matter was stood over until the following day.
On 9 February 2018, and after the Court was satisfied the grandparents had had the opportunity to get legal advice, understood the process that would be followed at the hearing, and the relevant sections of Part VII of the Act (and consistent with the principles set out by the Full Court in Re F: Litigants in Person Guidelines [2001] FamCA 348) the Court explained to them both the manner in which the trial would proceed, the order of calling of witnesses, and the right to cross-examine witnesses.
The trial then proceeded over the course of 9 February 2018 and 12 February 2018 and was then adjourned part heard (after the conclusion of the evidence from the parties) to hear evidence from the family consultant who had prepared a family report under s.62G(2) of the Act which was released 15 August 2017. When the trial resumed on 20 March 2018, the grandparents again appeared in person with the assistance of an interpreter, Mr Whitchurch appeared on behalf of the parents and Mr Marchetti of Counsel entered an appearance on behalf of the Independent Childrens’ Lawyer.
Material relied upon
At the start of the trial the grandparents told the Court they relied on:
a)Initiating Application filed 20.10.2015;
b)Notice of Risk filed 20.10.2015;
c)Affidavits of Ms Messner filed 20.10.2015, 28.04.2017 & 26.10.2017;
d)S.11F and Family Report 10.05.2016 and 15.08.2017;
e)Certificate Family Dispute Resolution 21.08.2015 and 02.02.2017;
f)Response to Application in a Case;
e)Hospital Discharge Summary – 26.4.2014 and 16.06.2015;
f)Medical Certificate 16.01.2017 – 20.012017.
At the start of the trial Counsel for the parents told the Court his client relied on:
a)Response filed 28.01.2016;
b)Affidavit of Mr Tosto filed 28.01.2016;
c)Notice of Risk filed 28.01.2016;
d)Application in a case filed 10.03.2017;
e)Affidavits of Mr Tosto filed 10.03.2017, 24.05.2017 & 13.09.2017;
f)Affidavit of Ms Tosto filed 30.10.2017.
Counsel for the Independent Children’s Lawyer told the Court her instructor relied on:
a)Section 11F memorandum dated 10 May 2016;
b)Family Report dated 15 August 2017;
Position of the parties
At the beginning of the trial the grandparents told the Court the final orders they sought were:
“1. That the grandchildren live with the parents;
2. That we spend time with the grandchildren each alternate Saturday from 12:00pm am till 4:00pm;
3. That we spend time with the grandchildren during school holidays and over the Christmas period for at least 2 days – between the 20th December and the 20th January. Time will be as agreed by the parents;
4. That we have the ability to call the grandchildren on their birthdays;
5. That we have the ability to call the grandchildren on Thursday nights between 6pm and 7pm;
6. That the grandchildren will be at liberty to call the grandparents if they so desire;
7. That the grandparents be able to attend any schooling events or occasions that grandparents would normally attend;
8. Any other orders that this honourable court deems appropriate in the best interest of the children.”
However, the position of the grandparents changed during the course of the trial. At the close of their evidence and having had an opportunity to get advice in light of the position of the Independent Children’s Lawyer the grandparents told the Court the orders they sought were:
“1. That the children, [Y] and [Z] spend time and associate with the maternal grandparents as follows:
a) On the last Sunday of
i) February;
ii) April;
iii) June;
iv) August;
v) October
vi) December
for a period of two (2) hours from 12 noon until 2pm at the Suburb F Shopping Centre.
b) On each of [Y] and Z’s birthdays for a period of 30 minutes with such time to occur at the Suburb F Shopping Centre on the Sunday immediately following each of the children’s birthday from 12 noon until 12:30pm.”
The parents’ solicitors had filed a case outline, upon which their Counsel relied, that contained a minute of proposed final orders which were:
“1. That the children spend time or communicate with the Applicants at times as agreed between the Applicants and the Respondents;
2. The Independent Children’s Lawyer be discharged.”
However, on the morning of 12 February 2018 Counsel for the parents told the Court his instructions had changed. Counsel for the parents told the Court his clients’ position was that there should be no order for the children to spend time with the grandparents.
At the beginning of the trial Counsel for the Independent Children’s Lawyer told the Court her instructor sought that the Court make the following final orders:
“1. All previous parenting orders be discharged.
2. The mother and the father have equal shared parental responsibility for the children, [X] born …2000, [Y] born …2008 and [Z] born …2010 (“the children”).
2A. The children live with the mother and father.
3. The children, [Y] and [Z] spend time and communicate with the maternal grandparents as follows:
a) on the last Sunday of each March, June, September and December each year from 12 noon until 2pm;
b) As otherwise agreed in writing between the parents.
4. Unless otherwise agreed, changeover should occur at a shopping centre as agreed and failing agreement at [INSERT]
5. The children, [Y] and [Z] be permitted to telephone the maternal grandparents or either of them at any reasonable time, subject to their wishes.
6. For the purposes of the implementation of these Orders the parties attend mediation at first instance to assist them with the said implementations.
7. The maternal grandparents attend upon a Psychologist or Counsellor nominated by the Independent Children’s Lawyer for the purpose of counselling to assist them with their understanding of their role in the children’s lives and the need to protect the children from conflict between adult parties in these proceedings. The applicant’s will comply with the said professional’s recommendations.
8. The maternal grandparents will provide the said professional referred to in Order 7 herein with a copy of the Family Report dated 15 August 2017 and prepared by Family Consultant Mr B.
9. The applicants, respondents their servants and/or agents be restrained by injunction from:
a) denigrating the other party in the presence or hearing of the children;
b) discussing these proceedings in the presence or hearing of the children;
c) providing or otherwise making available to the children any material relating to these proceedings.
10. The parties will promote, encourage and facilitate the children’s relationship with the other parties.
11. The parties be restrained by injunction from using corporeal punishment with any of the children.
12. Upon compliance with Order 7 herein the Order for the appointment of the Independent Children’s Lawyer be discharged.
13. …
IT IS NOTED:
A. [X] will be encouraged by her parents to spend time with the grandparents and [Y] and [Z].”
However, like each of the parties the position of the Independent Childrens Lawyer also changed, albeit only in light of all of the evidence. At the conclusion of the evidence, and for reasons that will become clear presently on 20 March 2018, Counsel for the Independent Childrens Lawyer told the Court the orders sought by his instructor were:
“1. That all previous parenting orders with respect to the children, [X] born …2000, [Y] born …2008, and [Z] born …(sic) 2010 (“the children”) be discharged.
2. That the children live with the parents.
3. That the children [Y] and [Z] communicate with the maternal grandparents by way of letters, cards and gifts forwarded to the children (or either one of them) not more than four (4) times per calendar year), per child.
4. That for the purposes of communication between the children and the maternal grandparents pursuant to paragraph 3 above.
a) the parents ensure and provide that such letters, cards and gifts be passed on to the children without delay; and
b) each of the parents keep the maternal grandparents notified of the address to enable delivery of such letters, cards and gifts.
5. That the Independent Children’s Lawyer meet with the children to explain to them that their grandparents love and wish them all the very and that whilst may not be in a position to see and spend time with the children it does not diminish their care and love the children. In addition, the Independent Children’s Lawyer may explain to the children that the maternal grandparent may write and forward letters, cards and gifts to them.
BY CONSENT:
6. That without admitting the necessity thereof the parties be restricted from using corporal punishment with any of the children or permitting any other person to do so.
7. That upon compliance with paragraph 5 above the appointment of the Independent Children’s Lawyer be discharged.”
Evidence at the trial
Turning then to the evidence led by and of the parties during the trial.
I am satisfied that the grandmother, who had the assistance of an interpreter throughout the trial, was the only witness called on behalf of the grandparents and who made submissions on behalf of herself and her husband, understood all matters in issue and how the Court would determine the dispute over parenting orders under the Act.
The grandmother gave evidence and was cross examined. In her evidence in chief the grandmother adopted her affidavits referred to earlier.
The grandmother told the Court since 2014 she has no relationship “whatsoever” with her daughter and “at the moment” had no relationship with the children.
Poignantly, the grandmother told the Court if there was no order for time spent with the children she would wait if necessary until she died.
The grandmother accepted that as the children had expressed interest in seeing her and her husband to the family consultant (as referred to in the Report) this showed the parents had not involved the children in the intra family dispute.
The grandmother also accepted that her daughter saw her as interfering, but justified her actions (which her daughter criticised her for) as being driven by concerns about her granddaughter (i.e. Ms A).
Sadly, when confronted with the parents’ position during her evidence, the grandmother agreed there was no communication or cooperation with the parents and said they needed to “make the first step” and “make an effort”.
Despite having an opportunity to do so, the grandparents did not seek to lead evidence from the grandfather, who had not filed an affidavit in these proceedings. He sat in the body of the Court throughout the trial and supported the grandmother, who conducted the case and made submissions on behalf of the grandparents.
The grandparents had filed a case outline on 21 September 2017 which identified the material referred to above was what they relied on. The grandparents did not lead any evidence from the grandfather who had not filed an affidavit in these proceedings. The grandparents did not seek to rely on the affidavit that Ms A had filed in May 2017, or call her as a witness.
Both the father and then the mother were called to give evidence and were cross examined. The father and the mother both adopted their affidavits referred to earlier.
The father in his evidence before the Court reiterated the concerns in his affidavits about the grandparents interference when he and his wife were struggling to deal with the problems presented by Ms A’s mental health problems.
The father gave evidence of the efforts he had made, and the lengths he had gone to communicate with the grandparents and intercede between his wife and her parents.
Whilst admitting the children could “theoretically” benefit from a relationship with the grandparents, the father told the Court the grandparents were not willing to change, would not accept our culture (i.e. the Australian culture) and he was concerned his wife could not “function” because of the dispute with her parents.
In answer to questions from the grandmother the father denied he had “turned” Ms A away but made clear he believed he needed to protect the rest of the family from the problems caused by her behaviour.
The mother’s demeanour in the witness box was noteworthy. The evident animus she harbours towards her parents was palpable, and in stark contrast to the flat affect and monosyllabic answers she adopted as she gave the rest of her evidence.
The mother made clear she blamed her parents for the conflict and said from the moment they had arrived it has been “impossible”. Despite denying she was “angry” the mother’s demeanour belied the veracity of that answer. The mother told the Court the grandparents had “abused” her and claimed they had told her she was no longer their daughter.
The mother’s evidence reinforced that given by the father and left the clear impression there was no trust, no prospect of communication or cooperation with the grandparents, or any chance of a change to this in the foreseeable future. The mother’s evidence in response to questions from her own mother (the grandmother) was particularly sad to observe as not only did words fail each of them at times, but I was unable to detect any willingness to accept fault on either side.
The allegations that were made about, inter alia, what the parents did or did not do in parenting and trying to get Ms A help during the period from 2015 to 2017 have led to what appears to be a final estrangement between the mother and her parents. The mother has the unwavering support of the father. It was striking to observe the mother during the trial (sitting matter of a metre or two away) unable to really look at her parents, or for them to show any hint of warmth towards her. This was reciprocated by the grandparents. The mutual antipathy was palpable.
The evidence before the Court from grandmother and her daughter (the mother) revealed some very similar traits, particularly a strong resolve and will; and implacable confidence in the righteousness of their own position. They both appeared to be in a somewhat dominant position on parenting matters within their respective households, such that their partners (the father and the grandfather), deferred to the position that they each took.
What is abundantly clear is that the children are greatly loved and both households want what they believe is best for them. The Court has been placed in the unenviable position of having to make the decision where no compromise has been achieved or is likely.
The material before the Court was sadly replete with numerous allegations one against the other. Regardless of the truth of the competing allegations, sufficient hurt has now been generated over the last number of years that when combined with the different perceptions of the history preceding the institution of proceedings, the family at this time is entrenched in irreconcilable conflict which threatens to adversely affect the parenting of the children.
Family report
Mr M, an experienced Family Consultant, employed at the Family Law Courts in Dandenong (the family consultant) prepared a Family Report pursuant to orders made on 29 May 2017, which was released to the parties in 15 August 2017 (“the Report”).
The Report contained, inter alia, the following:
“EVALUATION
80. This assessment concerns the dispute regarding parenting arrangements for [X] (17 years), [Y] (8 years) and [Z] (7 years). The children’s eldest sister Ms A (sic) (born 1999) was a subject child at the commencement of these proceedings but has now turned 18 years of age and consequently no orders will be made in respect of her.
81. The central issue in this matter concerns the bitter and long-standing dispute between the parents and maternal grandparents and the effect this has had on the children and their relationships with their grandparents.
82. As stated previously in this report there are no mental health, substance abuse or child protection concerns in this matter, although it must be said that the disciplinary measures utilised by the parents with Ms A (sic) have been troubling and inappropriate and in effect constitute emotional and physical abuse. For them to think such measures would be appropriate (let alone effective) with a child of Ms A’s (sic) age indicates either a serious deficit in their parenting capacity or perhaps a cultural approach to parenting that is inappropriate and unlawful in Australia. In this regard Mr Tosto’s statement that he did not know it was not permitted for parents to deal with their children in this manner is noted. For them to seek advice from others (either in their church or otherwise) to assist them to deal with their “troublesome” teen indicates they were desperate and had exhausted their parenting repertoire.
83. According to the subpoenaed police file, the parents described Ms A (sic) as a rebellious and troublesome teen who refused to respect the rules of their home. They were described as “strict Christians” whose rules included a prohibition on Ms A (sic) watching television, having a mobile phone and so on. If this is the case and no compromise was possible between the parents and Ms A (sic) then it would be inevitable that they would clash.
84. To think it was appropriate to accept the advice given by their church friends is further alarming and raises questions as to their ability/willingness to question the basis for their own rule setting and understand what constituted appropriate discipline. It also indicates that their parenting style was based on power and control and shaping their child’s thinking and value system into conformity with their own. It is important for parents to use love and wisdom in determining when circumstances are such that insisting that a child complies with their rules is appropriate, and when leniency and tolerance should be offered. This is not always an easy decision for parents, however resorting to the use of power and authority in every instance will ultimately crush a child’s individualism, confidence and personality and produce a level of anger that results in total rejection of the parent(s) by the child/young person.
85. Corporal punishment of a child is unacceptable and generally an indicator that a parent lacks appropriate disciplinary resources. It is a form of abuse and when used with a teenager is doomed to failure and will almost certainly result in the contrary response to that intended. This parenting strategy by the parents did not take into account the impact of their own behaviour on the emotional and psychological well-being of their child and indicates that they did not have any awareness of the likely prospects of a positive outcome from implementing their inappropriate and abusive parenting measures.
86. A further issue the parents apparently failed to consider is the possibility of Ms A (sic) notifying her school about the treatment she was receiving from them and the resultant consequences once this was referred to DHHS and police. This undoubtedly would have caused them considerable alarm and embarrassment, particularly as an IVO was put into place against Mr Tosto. Additionally, Ms A (sic) was understandably angry towards her parents (she alleged her mother was complicit in this abuse and an equally culpable perpetrator as her father) for her treatment and would have undoubtedly felt no disinclination to advise others about her circumstances such as her grandparents. It was a positive step by her in that it resulted in the abuse ceasing however an unintended consequence is probably that other verbal and emotional forms of abuse increased because physical methods of discipline were no longer possible.
87. It is not surprising that the grandparents were alarmed upon hearing that Ms A (sic) had been repeatedly beaten and her hair forcibly cut short. That they were concerned about how the other children were faring is also understandable. Their response to receiving this information at the time was probably influenced by their perceptions of the parents as being heavily influenced by a religion they did not understand, and regarded them as having treated them unjustly and cruelly by ejecting them from their home in a country they still found strange and alien, and leaving them with a Visa debt they had little capacity to afford.
88. The possibility that Ms Tosto had not enjoyed a strong relationship with her parents historically cannot be dismissed in this assessment, and the parallel of the fraught relationship between her and her parents, and her and Ms A (sic), is noted. She was seen as a strong and influential personality in her marriage relationship, and that she appears to have participated rather than object to the abuse outlined above is significant. Further, her objection towards [X], [Y] and [Z] spending any time with their grandparents and older sister was equally as strong as those of her husband. Mr and Ms Tosto’s insistence that they be taken to the secure room to avoid the three children seeing Mr and Ms Messner and Ms A (sic) during the day was significant. Their attitude towards the grandparents was assessed as more hostile and resentful than was the grandparents’ attitude towards them. This was concerning, particularly in light of Mr Tosto’s comment that the children still love their grandparents. His further statement that there are no emotional links between the children and their grandparents lacks insight and is troubling, particularly given that he could foresee no negative impacts on the children in the event an order is made reserving time.
89. Whilst Mr Tosto’s claim that he terminated Ms A’s (sic) school enrolment in the midst of her year 12 was based on his perceived need to protect the other children from the negativity of their older sister, this action was extreme and likely also influenced by his anger towards Ms A (sic). This latter motivation seems the more likely reason for his refusal to sign documents enabling Ms A (sic) to enrol at School 1 given her siblings did not attend this school and hence could not be influenced by their older sister. These decisions prevented Ms A (sic) from being able to complete her year 12 studies and attend the year 12 Formal with her friends. Ms A’s (sic) desire to complete her High School education is admirable and to be commended, and her anger and resentment towards her parents for thwarting this possibility is understandable.
90. The objections of the parents to the children spending future time with the grandparents seemed entirely based on their fears that the grandparents (and Ms A (sic)) will denigrate them (and possibly their church) to the children. Specifically, their concerns seemed to be in relation to their parenting and the church teaching that has contributed to shaping the parents’ value systems since arriving in Australia and the house rules they have made that impact on the children. It seems that the grandparents are regarded by the parents as representing threats to their spiritual goal of ensuring the children remain true to the faith and values they desire for them. Ms A (sic) was seen as a child who was resistant and rebellious to the parents and challenged their beliefs and rules, and whilst their treatment of her was likely intended to shape her behaviour such that it was more obedient and acceptable to them. It was probably also influenced by anger towards her for rejecting their beliefs, and the influence she had on her siblings so as to discourage them from following the parents’ faith.
91. There were mutual allegations made by the parties concerning the other’s willingness to engage positively with the mediation process at the Family Mediation Centre. In his Affidavit filed 10/03/2017 Mr Tosto expressed concern about the grandparents’ attitude towards the mediation process conducted the Family Mediation Centre. He indicated that he and Ms Tosto agreed to the grandparents’ insistence that the mediation occur at Suburb G instead of Suburb H, and alleged that the grandparents usurped the process by demanding to spend time with the children from the first mediation session. He further alleged that when their demand to see the children immediately was rejected they made no effort to effectively participate in the mediation process. The grandparents alleged the parents had a vested interest in the mediation process failing because this ensured the children would not be able to spend time with them. Mr and Ms Tosto also alleged that Ms A (sic) secretively took [Y] and [Z] to visit their grandparents and were instructed to not tell their parents they had done so. Clearly such behaviour was unacceptable and could only further damage the already poor relationship between the respective parties and further erode the minimal trust between them.
92. It is evident that there is no communication between the parents and grandparents and the likelihood of this improving is minimal. It has already been stated that prospects of further family therapy being successful is poor. This will remain so whilst spend time with the grandparents is contingent on this fractured relationship being mended as it suits the parents’ preferred goal of no time occurring between the parents and grandparents.
93. Whether the children should spend time with their grandparents must be considered in light of their right to do so as outlined in the Family Law Act and balanced with the likelihood of them being exposed to denigration of their parents. As stated previously, there are no other risk factors present. This was put to the parents (and Ms A (sic)) at the end of the interview process and they confirmed their understanding of this and said such behaviour would not be in their interests as they did not want anything to prevent them from spending time with the children. They also denied denigrating the parents in the past. It is possible that the grandparents’ legitimate concerns about the treatment Ms A (sic) was receiving was regarded by the parents as unreasonable criticism of them. In this context it is noted that if time is ordered there remains a possibility of the parents misunderstanding comments from the children, and/or taking exception to something the grandparents do (ie. attend a cultural or community function) with the children because it is inconsistent with their religious beliefs.
94. Significantly, [Y] and [Z] stated clearly that they wished to spend time with their grandparents. This was significant given the period of time since last seeing them. This was particularly so given the language barrier between them. It was assessed that [X] would also like to spend time with her grandparents but was more reticent about saying so, preferring to say she would do so once the relationship between her parents and grandparents had been restored. Her age is a significant factor in this matter and she will soon turn 18 years and be able to make her own decisions. Whilst significant weight would usually be applied to a 17 year old’s views it is proposed that if [X] is given the opportunity to make her own decision about whether to spend time with her grandparents she will not feel able to do so out of guilt and a sense of obligation to her parents, and probably members of her church. For this reason it is proposed that she be included in any Orders made for [Y] and [Z].
95. It is proposed that if the Court is satisfied that the children will not be exposed to negative comments regarding Mr and Ms Tosto, an order is made enabling them to spend time with their grandparents on a daytime basis. Overnight time is not supported at this time because the grandparents live in a two bedroom home and they did not propose overnight time with the children.
96. It is noted that in their Initiating Application the grandparents proposed that parental responsibility should remain with the parents and that the children remain in Mr and Ms Tosto’s care. This assessment would support this arrangement. It must also be said that Mr and Ms Tosto should be restrained from employing corporal punishment with any of the children.”
The Report then contained the following:
“RECOMMENDATIONS
On the basis of this assessment and for the reasons outlined above it is respectfully recommended that:
97. Mr and Ms Tosto retain equal shared parental responsibility for [X], [Y] and [Z]
98. The children live with Mr and Ms Tosto
99. [X], [Y] and [Z] spend time and communicate with Mr and Ms Messner each alternate Saturday for up to six hours including during school holiday periods
In the event the Court is satisfied that the children are likely to be exposed to an unacceptable level of ongoing denigration of their parents by Mr and Ms Messner, and/or the Court is concerned that Ms A (sic) may denigrate the parents whilst the children are spending time with the grandparents, that time be reserved
100. The parties and their agents be restrained by injunction from:
a. Denigrating any other party in the presence and/or hearing of the children
b. Discussing these proceedings in the presence and/or hearing of the children
c. Providing or otherwise making available to the children any material relating to these proceedings
101. The parties promote, encourage and facilitate the children’s relationship with the other parties
102. The parents be restrained by injunction from using corporal punishment with any of the children”
The Report was taken into evidence and the family consultant was cross examined following the conclusion of the evidence called by the parties. The details of the family consultant’s qualifications and experience were annexed to the Report and no one challenged his qualifications or his ability to offer an opinion on what was in the children’s best interests.
The family consultant was appraised of the parties’ latest positions by reference to the relevant exhibits before the Court evidencing same. The family consultant in his evidence before the Court accepted the proposition put to him by Counsel for the Independent Children’s Lawyer there was no history that could provide any confidence that the grandparents would not try to undermine the parents’ relationships with the children if orders were made for them to spend time together.
Given the children [Z] and [Y] were so young in 2014 when the parents stopped the grandparents seeing the children, the family consultant acknowledged that what he may have identified in the Report was an “idealised” not established relationship between the children and the grandparents.
The family consultant also agreed with the proposition put to him by Counsel for the Independent Children’s Lawyer, that in light of the evidence of the parties themselves, there were “obstacles” to time between the children and the grandparents. The family consultant told the Court without “good will” it would be an “uphill battle”.
The family consultant by reference to the most recent positions of the parties before the Court, said there were advantages and disadvantages of limited time with the grandparents for the children. Ultimately his evidence was the latter outweighed the former.
The grandmother questioned the family consultant in his evidence before the Court about why he no longer supported a spend time arrangement between her, her husband and the children. The family consultant’s evidence made plain the recommendations in the Report were advisory, subject to all the evidence and clearly conditional. Importantly, the family consultant’s evidence made clear that in light of the evidence of the parties before the Court, his opinion was that now a more cautious approach was called for and “when so many things are likely to make [time spent] fail” there was little benefit to the children in there being an order for time with the grandparents.
The family consultant accepted in his evidence before the Court that the children could be adversely affected by any time with the grandparents due to the resistant attitude of the parents, the impact of this on the children and their inability to communicate in English with the grandparents.
The family consultant accepted that in light of the evidence of the parties before the Court of the ongoing conflict, hostility and resentment between the grandparents and the parents that this would also stand in the way of any orders for spend time being beneficial to the children let alone such an arrangement being practicable
In Hall & Hall (1979) FLC 90-713 at page 78,713 the Full Court made certain observations of a general nature about the role of family reports and the evidence given by witnesses such as the family consultant in this case. I also bear in mind what the Full Court said in Friscioni & Friscioni [2010] FamCAFC 108 and other decisions have had to say about the role of the Report and the evidence of the family consultant in these sorts of proceedings.[1]
[1] See also D & P [2006] FamCA 170; Gaffney & Gaffney [2012] FamCAFC 140; Gelbvieh & Senepol [2007] FamCA 476; Andrew & Delaine [2009] FamCAFC 182; Harringan & Sorraw [2010] FamCAFC 257; Kennedy & Kennedy [2010] FamCAFC 195; Malak & Mairie [2010] FamCAFC 170; Salvati & Donato [2010] FamCAFC 263; Lindsay & Baker [2012] FamCAFC 189; Muldoon & Carlyle (2012) FLC 95-513; Yates & Yates [2012] FamCAFC 138.
The family consultant’s evidence made plain he had weighed the risks to the children presented by any order for there to be spend time between the children and the grandparents versus the potential for the children to have the opportunity for the chance to have a meaningful relationship with the grandparents at some point in the future, and came to the conclusions he did. The family consultant maintained his view the recommendations he made were in the children’s best interests. All the parties had the opportunity to pursue the family consultant in cross-examination. I have no reason on the material before the Court not to accept the evidence of the family consultant and the recommendations that he made.
Orders sought in final submissions
At the close of the evidence and before making final submissions, the parties had a further opportunity to consider what final orders they wanted the Court to make.
The grandparents told the Court the final orders they sought were in the terms identified at paragraph 34 above.
Counsel for the parents told the Court his client’s “primary” position was now, that in light of the evidence, the Court should make final orders in the terms sought at paragraph 36 above. However, Counsel for the parents told the Court that there was “no great opposition” to the orders sought by the Independent Children’s Lawyer to which I will now turn.
As noted earlier, Counsel for the Independent Children’s Lawyer told the Court that in light of the evidence his instructor could no longer recommend there be an order for time spent between the children and the grandparents.
Counsel for the Independent Children’s Lawyer told the Court in light of the evidence his instructor sought were in the terms identified at paragraph 38 above.
Final submissions
As noted earlier in light of the evidence, and in particular the evidence of the family consultant, Counsel for the Independent Children’s Lawyer told the Court his instructor could not support an order for face to face time between the children and the grandparents. In final submissions the Independent Children’s Lawyer’s position was it was appropriate for there to be orders for limited communication (in the terms of her position at paragraph 38) and she should meet with the children to explain the orders before her appointment was discharged. Counsel for the Independent Children’s Lawyer noted that whilst such an outcome would be difficult for the grandparents, the inescapable conclusion from all the evidence was orders as set out at paragraph 38 were more likely to be in the children’s best interests.
The grandmother told the Court that orders as sought by the Independent Children’s Lawyer would be “denying their (the grandparents) rights.” The grandmother told the Court she believed it was important the children know their “roots and culture” and in their family they are not taught to respect them. The grandmother told the Court as the grandparents hoped to “rebuild ties” and the children play an “important role in reconciliation” the Court should make the orders at paragraph 34.
Finally Counsel for the parents told the Court in light of the final orders sought by the Independent Children’s Lawyer, there was “no strong objection” from his clients to the grandparents being able to send cards and presents in the terms sought. Counsel for the parents told the Court the evidence demonstrated the conflict between the adults was deep-seated, the relationships “irredeemable” and it was not “tenable” for there to be an order for face to face time with the grandparents.
Approach to parenting orders
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
“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).”
Section 64C of the Act provides that a parenting order may be made in favour of a parent of the child or some other person. Section 65C of the Act provides that parenting orders may be applied for by persons other than a child’s parents including in this case the grandparents.[2]
[2] see approach to such an application in Valentine & Lacerra and Anor [2013] FamCA FC 53
Section 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for the child until such time as the child attains the age of 18 years unless the Court makes an order which alters that parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. This is provided by s.65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s.65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable. Section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s.65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonable practicality’.
These principles have been examined in numerous authorities, including the decision of the Full Court in Goode & Goode (2006) FLC 93-286 and the High Court in MRR v GR (2010) 240 CLR 461.[3]
[3] Ibid. see also Starr & Duggan [2009] FamCAFC 115 at [38] and approaches in Crowley & Mendoza (2010) 43 FamLR 463 at [35] to [43] (Murphy J); Heath & Hemming (No.2) [2011] FamCA 749 at [87] (Kent J) and SCVG & KLD [2014] FamCAFC 42 at [68] to [91].
Where the provisions of ss.60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children.[4]
[4] see Aldridge & Keaton (2009) FLC 93-421 at [44]-[48], [65], [74], [109]-[112], [119]; Potts & Bims & Ors [2007] FamCA394 at [8]-[9]). Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Valentine & Lacerra and Anor [2013] FamCAFC 53 at [42-[43]; Aldridge & Keaton at [59]-[61], [75]-[81], [83]; Dennett & Norman [2007] FamCA 57 at [53-[60]).
Although some of the factors prescribed for consideration under s.60CC(3) of the Act refer only to parents, those factors insofar as they concern the grandparents may still be considered under s.60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed.[5]
[5] (see Aldridge & Keaton at [111]-[112], [119]; Malcolm & Monroe & Anor (2011) FLC 93-460 at [94]-[100]; Valentine & Lacerra [2013] FamCAFC 53 at [51]-[53]).
In Valentine & Lacerra and Anor [2013] FamCAFC 53, the Full Court found that an application for parenting orders by a non-parent is to be determined in the same way as an application by a parent; namely, according to its own facts and having regard to the best interests of the child as a paramount consideration.
In this case, the role of the grandparents can be considered in the context of s.60CC(3) factors insofar as they expressly or impliedly refer to a person other than a parent.
I have already set out the parties’ competing proposals which identifies the issues in dispute. Given this, it is now necessary to turn to a consideration of the relevant s.60CC factors, given the evidence in these proceedings in the context of the principles outlined above. In doing so, it’s important to note that I have, of course, considered all of the evidence and the parties’ submissions, all of which, for the sake of brevity, won’t be rehearsed.
Consideration of factors
In determining the best interests of the children, there are two primary considerations and several additional considerations to take into account. I shall then consider the issue of parental responsibility and in light of the foregoing discussion and the principles set out above determine what parenting orders should be made.
The benefit to the children in having a meaningful relationship with both of the children’s parents
The parents are concerned that the children’s relationship with themselves will be at risk in the event that the children spend time with the grandparents. The children have a meaningful relationship with their parents and the grandmother presents as not wanting that relationship to be diminished.
The grandmother does not accept that the children’s relationship with their parents will be adversely altered by them having a relationship with her and her husband. It seems to me that given the strength of feeling by the mother, particularly, but also by the father, that the children should not spend any time with the grandparents for the reasons that they assert, I consider it more probable than not that there will be some effect on the children arising from them being involved in an activity which is completely and vehemently opposed by both of their parents. I consider it is more probable than not that their relationships with their parents will be adversely affected if that were to occur.
Since the grandparents are not the children’s “parents”, the nature of the children’s relationship with them is an additional consideration under s.60CC(3) rather than a primary consideration under s.60CC(2)(a).
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are no current matters as between the parents which place the children at risk of harm through abuse, neglect or family violence.
Regardless of the rights or wrongs the feelings of the parents about the grandparents are strongly held and there is nothing to suggest that they are not genuinely held.
The level of sustained negative comments by the grandparents about the parents and what they had or hadn’t done (including in relation to Ms A) make it difficult for me to accept that if the children were to spend time with the grandparents, that the grandparents would be able to hold back their negative views. This would be a cause for significant psychological harm to the children were they to continue to hear comments about the lack of capacity of their parents, who are their primary carers.
It seems to me, there is evidence that amounts to an identifiable risk of the children being exposed to the harm of their parents struggling with their exposure to and time with the grandparents. I consider that this struggle is real for the mother and for the father. It is contrary to the best interests of the children that their primary carers should be put under such pressure, not only in their parenting of the children, but in terms of the relationship and happiness between their presently intact parents. It would be contrary to the best interests of the children for their parents’ relationship to be placed under this avoidable pressure.
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views
The children are young (except for Ms A) and their wishes would not be determinative. At the time that they saw the family consultant they were reportedly excited. However that excitement is entirely expected and not unusual when young children are told that there is someone interested in them and certainly not indicative of much, if anything, given the sad circumstances created by the breakdown in the intra family relationship.
The nature of the relationship of the children with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the children)
The children’s relationships with their parents are secure and loving.
The children have not had a relationship with the grandparents. It is plain that they have no present relationship with the grandparents beyond the “idealised” one identified by the family consultant. Their parents do not speak about them and they have not had any memories of their support that have been kept alive over the years.
The evidence demonstrated the antipathy between the parents and the grandparents. The mother’s evidence before the Court and her pitiless attitude towards her own parents was particularly noteworthy. The family consultant’s evidence was time spent between the children and the grandparents would require “good will”. Even allowing for the father’s agnostic attitude to that possibility, the animus between the mother and the grandparents, which was clearly apparent during her evidence, tells against such an arrangement.
Extent to which the parents have taken opportunity to participate in decisions – spend time and communicate
It was not suggested this was a relevant factor telling in favour of either parties proposal. That said the grandparents clearly desire and want to spend as much time as possible with the children. An assessment as to whether that is in the children’s best interests can only be arrived at having considered all of the relevant factors.
Extent to which each of the parents has fulfilled obligations to maintain
There is nothing to suggest this is a relevant factor.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from: either of his or her parents; or any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living
It is the real concern of the parents that the grandparents will seek to traduce them to and undermine their relationship with the children (as they allege occurred with Ms A) will indeed be repeated in the event that orders are made as sought by the grandparents. That concern has already manifested itself in the reaction by the mother and as a stressor as between the parents in their adult and parenting relationship that the father gave evidence of.
The effect on the parents in the event that the orders sought by the grandparents are made is likely to be profound and negative. This was evident from the mother and father’s demeanour in the witness box.
Such a strong effect on the primary carers of two young children cannot be in the best interests of the children.
The practical difficulty and expense of children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
Both parties live in the suburbs of Melbourne and the distance between their respective homes is not great. There are however some practical difficulties associated with the grandparents’ capacity to spend time with the children. It was clear from the evidence that the grandmother had not turned her mind to how this would occur and what the experience would be like for the grandchildren. The grandmother also exhibited the clear expectation that the parents would do all the necessary travel and make the practical arrangements.
Whilst I was left with the clear impression the grandmother had a limited understanding of English, the evidence is the children have not spent time with the grandparents for many years and have no facility in or understanding of their grandparents native language. In the circumstances even limited time at a shopping centre would be potentially problematic.
The capacity of: each of the children’s parents; and any other person (including any grandparent or other relative of the children); to provide for the needs of the children, including emotional and intellectual needs.
There is no contest that the children will continue to live with the parents.
The orders sought by the grandparents would not amount to any real requirement for them to be providing for the children’s needs on any large scale. There are issues raised about the capacity of the grandparents to provide for the children’s needs if their time were more expansive but this need not be considered in the context of the parties final proposals.
I do not repeat, but do rely upon, earlier findings in these reasons in relation to this consideration, but also note there would be difficulties about how the children would manage time away from their parents if they were to spend time with the grandparents.
My assessment on all of the evidence is that the parent’s capacity to parent would be improved by some finality to these proceedings, in a manner the Independent Children’s Lawyer proposes, with the resultant relief that the matter is finished and they can devote themselves to the role as parents. On balance, this further supports the Independent Children’s Lawyer’s proposal against the grandparents’ proposal.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.
Save for knowing more about their familial background and not spending even limited time with the grandparents, there are no characteristics of the children which require particular comment given the Independent Children’s Lawyer’s proposal allows for the former but not the latter.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
The grandparents have previously expressed concerns about the father’s parenting, and, at times, his disciplining of the children. These concerns do not amount to current child protection concerns and it seems to me that there is no reason why this Court should be examining in any real detail the parenting of these children from an intact relationship.
The grandparents approach to these proceedings and their attitude generally has undoubtedly added to the parents’ feelings and adversely affected their capacity to parent. Having considered the material before the Court, I have real concerns that the grandparents lack insight and don’t appreciate the impact on the parents and the involvement that they seek to have with the children over their allegations and concerns.
Any family violence involving the children or a member of the children’s family
The intervention order made for Ms A has long since expired. There are no current family violence orders in these children’s family of origin. There was no suggestion family violence was a consideration that told in favour of one parties proposal over the other.
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 children
The orders that should be preferred are those least likely to lead to further proceedings. Ordering time to occur is fraught with the possibility of conflict and would have required the parties to cooperate and negotiate where on the evidence this has not proved possible.
These children are still young. The orders proposed by the Independent Children’s Lawyer provide a mechanism for the children to know of their grandparents at a future time when the parents are satisfied that the children will be competent to make their own decision. Those orders should not lead to the institution of further proceedings.
The grandparents orders are so strenuously opposed by the parents that it is difficult to see that in the event those orders are made the implementation of them will be free from difficulties. In the event that the orders commenced and the parents’ worst fears were realised, it may be expected that further proceedings may ensue. The difficulty then would arise that the children had recommenced a relationship, only to have its continuance further examined.
What parenting orders should be made
The Act does not favour parents over non parents in disputes under Part VII of the Act.
Parental responsibility is automatically conferred upon a child’s parents by the Act which responsibility the parents may exercise jointly or independently. It is unnecessary to debate the issue of who holds parental responsibility for the children in this case as it was not an issue between the parties.
The final position of the Independent Children’s Lawyer made plain she saw the children’s best interests best advanced by allowing the provisions of s.61C to continue to operate. I agree.
Similarly the residence or with whom the children should live was not in issue and by the end of the trial none of the parties sought that the children spend substantial and significant time with them.
The consequence of these proceedings has been to only entrench the wedge between the grandparents and the parents and this has not benefitted the children.
When the fact that the children do not have anything other than an “idealised” relationship with the grandparents is weighed along with the parents opposition to them spending time with the grandparents, which is their joint exercise of parental responsibility, I am satisfied the benefit to the children of having a fuller understanding of their identity and their grandparents can be best met by orders that were sought by the Independent Children’s Lawyer.
Having said that, of course, children are, once they become adults (and for [X] that is very soon), empowered to seek out any family member or relationships they may like to pursue. If the grandparents take advantage of the opportunity to send cards and gifts (which does not appear to have occurred much since these events turned sour in 2014), to the (younger) children then maybe something will flow in time from that effort.
Conclusion
In this case the relationship between the grandparents and the parents has deteriorated to the point where there cannot be any time between the children and the grandparents without a court order.
When these parties came into the Court system it was identified the children were “at the centre of a very complex and emotionally laden dispute” and the dispute had “strong religious and cultural underpinnings”.[6]Unfortunately the dispute has only become more entrenched and under the Act the best interests of the children must be privileged over the wishes of the parties.
[6] see s11F memorandum.
To compel the parents to make their children available to spend time with the grandparents about whom the parents have so many concerns and which they cannot and will not support, will result in a situation where the children are being brought into contact with someone who is not known to them, is unable to communicate with them verbally and about whom the parents have profound concerns. I fail to see on the evidence how that can be in the best interests of the children.
In light of my consideration of the relevant s.60CC factors, final orders as sought by the Independent Children’s Lawyer including for a limited opportunity to receive cards and gifts, and to have the outcome of these proceedings explained to them is more likely to be in the children’s best interests.
For these reasons I will make orders as set out at the beginning of these reasons for decision as I am satisfied in light of all of the evidence and having considered the submissions made by the parties that they are in the children’s best interests.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 12 April 2018
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