Mg and MJ and Anor
[2003] FMCAfam 457
•30 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MG & MJ & ANOR | [2003] FMCAfam 457 |
| FAMILY LAW – CHILDREN – residence – best interests of children – application by the grandmother – children aged 3 years and 8 months. Family Law Act 1975, ss.60B, 65E, 68F(2) Rice v Miller (1993) FLC 92-415 |
| Applicant: | G M |
| First Respondent: | J M |
| Second Respondent: | M F |
| File No: | PAM 1793 of 2001 |
| Delivered on: | 30 September 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 14 & 15 August, 18 & 19 September 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | J.M Rushton & Co |
| The First Respondent appeared on his own behalf. |
| Solicitor for the Second Respondent: | Mr White |
| Solicitors for the Respondent: | Peter White & Associates |
ORDERS
All earlier parenting orders are discharged.
The children T I F born 4 September 2000 and C F born 15 January 2003 are to live with the First Respondent father and the Second Respondent mother.
The Applicant grandmother is to have contact with the said children as follows:
(a)from 10.00 am to 5.00 pm each alternate Saturday, commencing on Saturday 11 October 2003, until the child C attains the age of two years; and
(b)thereafter, each alternate weekend from 10.00 am on the Saturday until 4.00 pm on the Sunday, extending to 4.00pm on the Monday if the Monday is a public holiday.
The parties are to have the responsibility for the day to day care welfare and development of the children at all times when the children are in their respective care.
Contact changeover is to take place at the Central West Contact Service at H P and the parties are to contact the said Contact Service to make all necessary arrangements for regular contact changeover within seven (7) days.
All documents produced on subpoena may be returned after the expiry of one (1) month from the date of these Orders.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1793of 2001
| G M |
Applicant
And
| J M |
First Respondent
And
| M F |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application by the grandmother of two children seeking orders that the children reside with her. The two children concerned are a little girl called T I F, born on 4 September 2000 and a boy called C D F, born on 9 January 2003. The children's father is the applicant's son who is the first respondent in these proceedings. The children's mother, the second respondent in these proceedings, is the first respondent's de facto partner. The first and second respondents live together.
The applicant filed an Amended Application on the 30th July 2003 setting out the Orders which she seeks. These are:
a)the children should live with her;
b)the children should have contact with the two parents each Saturday;
c)that contact changeover take place initially at the Central West Contact Centre and then after a current apprehended violence order expires on 9 September 2004 at the M D Police Station.
The respondents oppose the application. The mother filed a Response on 12 August 2003 in which she sought an order that the grandmother should have supervised contact with the children one day a fortnight. In the course of the proceedings the mother made it clear that her preference would be that the grandmother have no contact with the children at all. The mother was legally represented in these proceedings the father was not.
Background
The mother and the father commenced their relationship in about November 1999 but did not commence to live together until January 2001. The father has been somewhat alienated from the applicant for a number of years having left home in his mid teens. He has a criminal history and has spent time in prison serving a nine (9) month's sentence that expired in early 2001.
The mother has three children by two prior relationships. She has a daughter S L F, born on 25 October 1990. This child lives with the mother and has no contact with her natural father whose whereabouts are not known. The mother has two other children by her relationship with one S B, namely B F B, born on 26 November 1997 and S F B, born on17 October 1998. Those two children reside with their father as a result of orders made in early 2002.
The mother has disclosed in these proceedings that she is now pregnant again to the first respondent and expects their third child next April. The applicant is 68 years of age. She has a border residing with her, Mr K K who is 41 years of age. Mr K gave evidence in these proceedings. Both the applicant and Mr K deny that the relationship between them is other than one of friendship.
The relationship between the two respondents has been a turbulent one. The evidence is indicative of there having been a number of instances where the police were called to the residence of the respondents as a result of disputes between them. They separated in May 2001 and the father went to live with the applicant for about three months until mid-August 2001. The father took the child T with him and she lived with the applicant and the father during that time.
The father and the mother have since resumed their relationship together. There is a considerable amount of animosity between the applicant and the mother. As a result of this animosity there has been no contact between the applicant and T for nearly a year and no contact between the applicant and C at all.
Evidence
The applicant gave evidence and was cross-examined by Mr White, solicitor for the mother. She gave evidence as to the relationship between herself and the first respondent, her son. She also gave evidence as to her own situation in response to Mr White’s questions.
In cross examination, Mr White raised issues with the applicant as to her health and her ability to raise two young children should her application be successful. She responded with assertive confidence of her capacity and capability to care for these children, and stated that whilst she had some health problems that they were not of a serious nature and would not preclude her from raising and caring for the children.
Mr K also gave evidence. He confirmed that he resided with the applicant as a border. His is currently employed in the pest control industry, and has indicated that he was available to assist the applicant in the care of the children, and emphasised that he had a commitment to the child T.
Both the mother and the father gave oral and written evidence. The mother also called her own mother and her cousin to give evidence on her behalf. The mother's evidence made it clear that her animosity towards the applicant was severe. The mother has expressed a preference that there be no contact between the applicant and either of the applicant's grandchildren. If that application on her behalf was unsuccessful she would reluctantly agree to supervised contact, although the evidence as to why supervision was considered necessary was not made immediately clear.
The father was cross-examined. He attempted to steer a fine line between his loyalty to his partner and his relationship with his mother. He conveyed his concern as to the difficulty the applicant would encounter if she were to undertake the full-time care of the two children, citing her health problems as the cause of that challenge.
Despite the history of some estrangement between mother and son it was noteworthy that the son did not succumb to the temptation to engage in untoward criticism of the applicant.
The second respondent called her mother to give evidence. She gave evidence of the fact that the first and second respondents had resided at her residence for a period of time. She was reluctant to give evidence as to the existence of any domestic violence between the first and second respondents. This was manifested in her response to a question posed by Mr Dura, counsel for the applicant, when he inquired if there had been incidents when the police had been called because of disputes between the two respondents, to which she replied, “not for ages, over two months now”.
The mother called her cousin to give evidence. In his affidavit, he described the situation where mother and her other children resided with him for a period of time in early 2000. He spoke positively of the mother's qualities as a parent and how well she looked after the children. As his evidence-in-chief was largely directed towards the period of time before either of the children, who are the subject of this application, were born, it is fair to say that his evidence did not take the case a great deal further.
Family Report
A Family Report was prepared for the proceedings and the counsellor who prepared the report, Ms V S, was cross-examined. This report was prepared pursuant to section 62G of the Family Law Act, and was made available for the proceedings.
Ms S, the family and child counsellor, interviewed the applicant and both the respondents. She also spoke to the child T and observed her in the company of both of her parents, then in the company of the applicant and Mr K. It was noteworthy that the counsellor observed a positive interaction between T and the applicant and for that matter Mr K, despite the length of time that had elapsed since their last meeting. Based on the observations of the interaction between the child and the applicant and Mr K, Ms S concluded that the child must have established a strong and positive attachment to them both prior to August 2002.
The counsellor noted T's attachment to the mother. She commented that the child’s attachment to the mother, although positive, was somewhat detached and insecure. The child’s attachment to her father appeared slightly stronger and was also positive. Ms S raised concerns about the mother's alcohol and drug use and to a lesser extent that of the father. She made this recommendation at page 10 of the report:
“It would appear imperative for T to re-establish regular contact with Mrs M. Mrs M would offer T a secure and positive emotional attachment together with one on one attention, physical affection and a stable household.”
The counsellor also noted that T was clearly attached to C and considered it to be of benefit for him to be involved in at least part of T's contact with the applicant.
Applicable principles
When dealing with cases involving the residence of a child, Courts exercising jurisdiction under the Family Law Act must be mindful of the object Part VII of the Act and the principles underlying that object. The object and the principles are set out in section 60B. The relevant principles in this case are that, except when it would be contrary to the child's best interests:
a)children have the right to know and be cared for by both their parents and;
b)children have a right of contact on a regular basis with both their parents and other significant people.
The Court must regard the best interests of the child as the paramount consideration as is set out in section 65E of the Family Law Act. Section 68F sets out matters that the Court must consider in determining what is in the child's best interests. A list of relevant matters is set out in subsection 68F(2).
Case law
There are numerous cases before Courts exercising jurisdiction under the Family Law Act where grandparents seek orders that children should reside with them. In the case of Rice v Miller (1993) FLC 92-415, a father of a four year old child appealed against the Family Court Order for a child’s maternal grandmother to have custody of the child. In the determination of this case, the Full Court of the Family Court adopted the conclusion and reasoning of Lindenmayer J in Re Hodak; Newman; Hodak (1993) FLC 92-421 that:
“It is incorrect in a custody dispute –(to use the old terminology)- between a parent and a non parent to state that the role of the natural parent is to be preferred or to have recourse to a presumption that the welfare of a child will best be served by an order in favour of the natural parent; and
The fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not however establish a presumption in favour of the natural parent nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process.”
There are a number of cases where grandparents seek orders for contact with their grandchildren without seeking residence of the children on a full-time basis. In Stevens v Lee (1991) FLC 92-201, Kay J considered the question of contact between a grandmother and the grandchild where the relationship between the mother of the child and the grandmother was somewhat hostile and acrimonious. In that case, his Honour had to weigh and consider the benefits that the child would gain from the contact with the grandmother against the strain and distress that may otherwise be caused should the child have that contact due to the mother’s complete loathing sentiments towards the grandmother. His Honour concluded, bearing in mind that the best interests of the child are the paramount consideration for the Courts to determine, that:
“the benefits that the child would get from direct contact with his grandmother would not outweigh the trauma and difficulties which would be brought about by the mother's attitude.”
The same issue was considered by Treyvaud J, in Bright and Brightv Bright and Mackley (1995) FLC 92-570. This was a case where paternal grandparents sought contact to their grandchild. The child's parents opposed this application on two grounds:
(i)that the child might fret for her mother ;and
(ii)that she (the child) should not be caught up in a dispute between her parents and her grandparents.
His Honour referred to the decision in Stevens v Lee saying, at page 81,658:
“It is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.”
His Honour noted that there had been contact between the child and the grandparents to the extent that there was a close bond between them. He was critical of any attempts to involve a child in a dispute between adults.
Subsection 68F(2) factors
The relevant matters for the Court to consider in determining what is in children's best interests are set out in subsection 68F(2). The children are too young, at the ages of three years and eight months respectively, for their wishes to be ascertained. Nevertheless the counsellor reported that T was reluctant to part with her grandmother at the end of the observation session. That is taken from page 9 of the Family Report.
Subsection 68F(2) paragraph (b) requires the Court to consider the nature of the relationship of the child with each parent and with other persons. The counsellor observed that T showed a strong and positive attachment to the applicant and to Mr K. The child's attachment to the mother was seen as positive but “somewhat detached and insecure”1. Her attachment to her father appeared to be “Slightly stronger and was also positive”2.
1 Family Report, dated 7 August 2003, at page 10.
2 Ibid
Subsection 68F(2) paragraph (c) requires the Court to consider the likely effect of any changes in the child's circumstances including the likely effect on the children of any separation from:
a)either of the children's parents; or
b)any other child or any other person with whom he or she has been living.
If both children were to reside with the applicant they would be separated from both of their parents for most of the time and from their eldest sister, S. There appears to be very little contact with their other half siblings S and B and the mother has advanced the explanation that the father of those children has been having problems, seems unconvincing. If the children were to live with the applicant they would also be separated from their new baby sibling who is due to be born next April.
Subsection 68F(2)(d) requires the Court to consider the practicality and expense of a child having contact with a parent and whether that difficulty or expenses will substantially effect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
The main difficulty here is the mutual antipathy between the mother and the grandmother. Whilst the relationship between the father and his mother, the applicant, is strained, the father was at pains not to completely close off the communication between the two of them.
Subsection 68F(2) paragraph (e) requires the Court to have regard to the capacity of each parent or of any other person to provide for the needs of the children including their emotional and intellectual needs.
The applicant is most critical of the parenting skills of both parents. She adverts to their turbulent relationship, the intervention by both police and the Department of Community Services and the parents history of drug and alcohol abuse. She says that she can provide a stable home life for the children and keep them safe. It is noteworthy that the counsellor referred at pages 8 and 9 of the Family Report to the apparent delay in the speech of the child T which neither parent seemed to notice. The mother in her evidence maintained that she could understand her child.
Against this the parents are residing together and wish to continue their relationship. They are expecting another child and the father gave evidence of his happiness and excitement at this development. The father is in employment and works four days a week. The mother has enrolled the child, T, in a pre-school which she will initially attend one day each week.
The father is dubious of the applicant's physical capacity to deal with young children. She is 68 years old and has difficulty bending and stooping. She also suffers from diabetes which is controlled by medication. He submits that the applicant might find the full-time care of two young children, one a baby whom she has never met, to be more than she could manage.
Subsection 68F(2) paragraph (f) requires the Court to consider the children's maturity, sex and background and any other characteristics of the children that the Court thinks are relevant.
The children are a little girl ages three years and a little boy who is still only a baby at the age of eight months. The counsellor expresses a concern about a delay in T's speech and describes her as:
“An engaging and friendly child who has not yet reached all developmental milestones expected for her age.”3
This is a cause for concern and there appears to be a need for her speech to be assessed by a qualified speech therapist before she starts school.
3 Ibid, at page 9.
Subsection 68F(2) paragraphs (g), (i) and (j) requires the Court to consider harm, violence and abuse issues. There is an apprehended violence order currently in force against the father naming Mr K as the protected person. This order remains in force until September 2004. The applicant also expresses concerns for the children's safety and welfare due to the parent's history of drug and alcohol abuse and the parent's history of domestic violence.
Subsection 68F(2) paragraph (h) the Court looks at the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents
The applicant is critical of both parents. The father has demonstrated a capacity to obtain and maintain his employment so that he contributes to the support of the family. He has displayed a concern for T's welfare in the past. He demonstrates happiness and excitement at the thought of becoming a father again next year.
The mother has a history of drug and alcohol abuse as does the father, and instability which has led to intervention by the Department of Community Services.
Subsection 68F(2) paragraph (k) requires the Court to consider the order least likely to lead to the institution of further proceedings in relation to the children. There is no presumption that further proceedings are necessarily undesirable, they may be unavoidable. It has been held it is not in the interests of a child that there should be repeated applications to vary custody orders and I refer to the decision of McEnearney and McEnearney (1980) FLC 90-866. The Full Court held in Archbold and Archbold (1984) FLC 91-532 that finality cannot always be achieved and should not be a decisive consideration where the risk factors outweigh the benefits to the parties and the children in the final decision.
In this case there is a possibility that the circumstances of the parties could change. It would be highly relevant if the parents were to separate again. If that were to occur, for example, there would be a need to review the appropriateness of the orders that I intend to make. The Court must also consider any other relevant fact or circumstances set out in paragraph (l) of subsection 68F(2).
I have previously referred to the fact that these proceedings involve a contest between the paternal grandmother on the one hand and the parents on the other. In this case the parents are united in their opposition to the grandmother's application. I have considered the possibility that the parents may again separate in paragraph (43), above, but I note that at this stage it is their clear intention to remain together as a family unit. Taking all those matters into consideration I must stress that the best interests of the children are the paramount consideration. The best interests of the children require stability and an environment where they are able to be together as children and to spend time with other important members of their family as is earlier set out in section 60B of the Family Law Act.
Whilst the respondent parents have had a turbulent history which has at times seen their separation, they are currently residing together and intend to continue to reside together. It is their intention to reside in rented accommodation which they currently share and to bring up their family as a family unit. It would be a drastic step to remove the two children from the care of their parents and the Court would be reluctant to do so unless satisfied that the best interests of the children required such an option.
I am mindful of the fact that there has been no contact between the applicant and the younger child, C, although there has also been no contact between the applicant and the child T, but the strength of that relationship seems to have survived that separation. At this stage however, C has had no opportunity to form any sort of a bond with the applicant as she has had no contact with him.
I am also concerned that an order that the children should reside with the applicant would involve splitting siblings and the family. I am mindful of the fact that the children B and S, who are the half siblings of these two children, already reside with their father and there seems to be less contact than one would expect. This is unavoidable and it is not something that this Court can do anything about in these proceedings.
I am mindful of the fact that if I were to make an Order for the children were to reside with the applicant, such an Order would involve their separation from their older half sister S. I am mindful of the fact that this would not necessarily be in the children's best interests. It is also significant that the mother is expecting a further child and that the two children, the subject of this application, would be separated from their new sibling even before that child was born.
Contact
I turn now however to the question of contact. It is the respondent mother's view that there should either be no contact with the applicant, or that if there is contact that it should be supervised. As was earlier indicated, the Court must consider what is in the best interests of the children, and whether that is served by the children having contact with the applicant in these proceedings.
The Family Report makes it clear and the oral evidence of the counsellor reinforces the positive gains to be made to the child T in resuming her relationship with her grandmother. The report speaks unequivocally of the strong bond between grandmother and grandchild and to some extent with Mr K, notwithstanding the nearly eleven (11) month period that had elapsed since they had seen each other. That is a significant length of time in the short life of the child T.
I am also persuaded that the relationship between T and her little brother C is a positive one and that the counsellor's recommendation that C should be involved at least in some of the contact between T and the grandmother should be given favourable consideration.
The counsellor was of the view, notwithstanding the fact that at the time the parties were interviewed there was no specific application relating to C, that it would be in C's interest to spend time with his sister and grandmother together.
I must consider whether those benefits to be gained, having in mind the decisions in Stevens v Lee (supra) and Bright and Bright and Bright v Mackley (supra), would outweigh the hostility between the mother and the grandmother. I am convinced that they would and I am persuaded that the strong bond that exists between T and her grandmother is of such strength and has survived such separation that it clearly indicates that the grandmother is an important figure in this child's life.
Conclusions
I am mindful of the grandmother's motivation in seeking to play a role in these children's lives and that the grandmother is not a person who would let their welfare slip. She has the opportunity to spend regular time with her grandchildren and would be able to act in a positive way. I am convinced that the benefits that the children will derive from contact with their grandmother will outweigh the disadvantage of the hostility that exists between the applicant and the second respondent.
I am also mindful of the fact that the mother has another child on the way and that pregnancy can be tiring and the care of a young baby can be demanding. If there were a regular contact arrangement between the applicant and the children C and T it could provide some respite for the mother and enable the mother to spend more time with the care of the baby. She will have some assistance from the father but at the same time it would enable both parents to spend more time with the new baby, confident that notwithstanding the mother's animosity to the grandmother, that the children during that period of contact would be in safe hands.
It is for those reasons that I am persuaded that there should be a regular contact arrangement between the children and their grandmother. I am convinced that as the child C gets older the contact should increase so that it would go to overnight contact.
I am not of a view that there is any need for supervision of that contact. There is no evidence to suggest that such supervision is required. The animosity between the mother and the grandmother is such that it is important that contact changeover should take place in a neutral venue. The Central West Contact Service has been the proposed changeover point and I am persuaded that the suggested venue is an appropriate location for changeover to occur. I shall adopt that option.
I am not persuaded that an eventual change to the Police Station at M D is going to be to the benefit of the children. I would not be making an order for Police Station changeover down the line.
It is for these reasons that I make the Orders set out at the commencement of this judgement.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 9 September 2003
0
0
0