Minett and Anor and Branson
[2014] FCCA 2462
•28 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MINETT & ANOR & BRANSON | [2014] FCCA 2462 |
| Catchwords: FAMILY LAW – Parenting – dispute between Maternal Grandparents and Father – Mother deceased – need to protect Child’s relationship with all parties – geographical distance between the parties – Child to remain living with Maternal Grandparents. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65DAA, 65DAC |
| Cases cited: Aldridge & Keaton [2009] FamCAFC 229 Burton & Churchin & Anor [2013] FamCAFC 180 Donnell & Dovey [2010] FamCAFC 15 H v W (1995) FLC 92-598 at 81,947-8 |
| First Applicant: | MR MINETT |
| Second Applicant: | MS MINETT |
| Respondent: | MR BRANSON |
| File Number: | SYC 7336 of 2012 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 11, 12, 13 and 26 August 2014 |
| Date of Last Submission: | 26 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steward |
| Solicitors for the Applicant: | Jason Li Lawyers |
| Counsel for the Respondent: | Ms Kennedy |
| Solicitors for the Respondent: | Brazel Moore Lawyers |
| Advocate for the Independent Children’s Lawyer: | Ms Karagiannis |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission NSW |
THE COURT ORDERS THAT:
All previous parenting orders relating to the Child [X] born (omitted) 2004 be discharged.
The Maternal Grandparents and the Father have equal shared parental responsibility for [X].
[X] live with the Maternal Grandparents.
[X] spend time with the Father during school terms as follows:
(a)From Friday at 5.00p.m. until Sunday at 6.00p.m. (or Monday at 5.00p.m. if a long weekend or pupil free day) on the first two of every three weekends in every 3 week cycle, commencing on the first weekend after these Orders are made and on the first weekend of each school term.
(b)The Father ensure [X] attends his sporting commitments on Saturday morning and be at liberty to advise the Maternal Grandparents in advance of any contact weekend that he will collect [X] after sport on Saturday morning rather than on Friday evening at 5.00p.m, when changeover will occur at the sports venue unless otherwise agreed.
(c)For 2 hours (or longer if agreed) following any sporting event involving [X] on the Saturday morning of the third weekend (the non-contact weekend) upon the Father giving the Maternal Grandparents at least 3 days notice of his intention to exercise such contact, with such contact to occur in the vicinity of [X]’s home (or the sports venue) in Sydney.
(d)On [X]’s birthday, if a non-contact period, for at least 3 hours in Sydney, precise times by arrangement with the Maternal Grandparents.
(e)On the Father’s birthday, if a non-contact period, for at least 3 hours in Sydney, precise times by arrangement with the Maternal Grandparents.
(f)In the event Mother’s Day falls on one of the Father’s contact weekends, that weekend be substituted for the preceding or the following weekend so that [X] spends the Mother’s Day weekend with the Maternal Grandparents.
(g)In the event Father’s Day falls on one of the Maternal Grandparents’ contact weekends, that weekend be substituted for the preceding or the following weekend so that [X] spends the Father’s Day weekend with the Father.
(h)At other times as agreed.
[X] spend time with the Father during school holidays at the end of Terms 1, 2 and 3 as follows:
(a)During 8 nights of the holiday period from the first Saturday at 10.00a.m. until the middle Sunday at 5.00p.m.
(b)Such time in (a) be extended by 2 nights in any school holiday period in which the Father proposes to take [X] away from his home on a holiday.
(c)The Father give the Maternal Grandparents notice of any such proposed holiday in (b) at least 14 days before the end of the relevant school term.
[X] spend time with the Father during Christmas school holidays as follows:
(a)From Christmas Eve 2014 at 5 p.m. (or 10.00a.m. Christmas Eve if the Father is not working) until midday on 12 January 2015.
(b)For a period of 21 nights from 27 December at 10.00a.m. in 2015 and in all odd numbered years thereafter, and from 5.00p.m. Christmas Eve (or 10.00a.m if the Father is not working on that day) in 2016 and in all even numbered years thereafter.
(c)Should he wish to do so, the Father be at liberty to spend time with [X] for 2 hours on Christmas morning in the vicinity of [X]’s home when [X] is spending Christmas Day with the Maternal Grandparents, and in default of agreement as to time, from 10.00a.m. until midday on Christmas Day.
(d)In the event the Father wishes to spend time with [X] in accordance with (c) above, the Father give the Maternal Grandparents at least 7 days’ notice of his intention.
(e)Should the parties all prefer a changeover on Christmas Day afternoon, they are at liberty to make this change from Christmas Day 2015.
These Orders do not prevent [X] spending additional time with the Father by agreement with the Maternal Grandparents at their home or at any other agreed location.
Except as otherwise provided or otherwise agreed, changeover occur at (omitted) overflow carpark, but in the event either party is travelling closer to the other’s residence at the time of changeover, that party advise the other in advance to arrange a more convenient changeover venue.
Subject to Order (10), the Father retain [X]’s passport and keep his passport current.
The parties be at liberty to take [X] overseas during that party’s allocated time in school holidays, unless other times are agreed, on condition that the party proposing to travel with [X]:
(a)Provides the other party at least 8 weeks’ notice of the intention to travel and provides full details of the proposed itinerary, accommodation and contact details of each travel destination.
(b)Facilitates telephone/electronic communication between [X] and the non-travelling party at least twice a week during the period of travel.
(c)The Father provides [X]’s passport to the Maternal Grandparents at least 6 weeks in advance of any proposed overseas travel and the Maternal Grandparents return [X]’s passport to the Father within 14 days of their return to Australia, or as otherwise agreed.
[X] have telephone communication (or Skype or Facetime or any other form of electronic communication) with the Father at any reasonable time, but the Maternal Grandparents ensure [X] telephones the Father at least twice a week during each school week, and during all holiday periods [X] is in their care, between 7 and 8 p.m. on Mondays and Thursdays, and on Christmas Day when [X] is in their care, or as otherwise agreed.
The Father ensure [X] telephones the Maternal Grandparents on Christmas Day when [X] is in his care and at least once a week when [X] is in the Father’s care during school holidays.
The Father be at liberty to attend all sports and other extra-curricular events involving [X] to which parents are invited, whether at [X]’s school or outside the school.
The Father be at liberty to attend all concerts, speech days, parent-teacher nights, award ceremonies or any other event involving [X] at his school or in relation to his extra-curricular activities.
The Maternal Grandparents notify the Father as soon as they become aware of an event or activity involving [X] whether or not the school may have issued a separate invitation to the Father.
The Maternal Grandparents provide [X]’s school with the authority required for the school to provide the Father with copies of [X]’s school reports or any other information relating to discipline, or his progress or welfare generally.
The parties advise each other immediately, or as soon as practicable, of any medical or other emergency involving [X].
The Maternal Grandparents email the Father at least once a week during each school term to advise the Father about [X]’s activities, and his welfare generally, to ensure the Father is kept informed about all issues of importance involving [X].
The Maternal Grandparents and the Father be restrained from discussing with [X] any aspect of these proceedings or from showing [X] any document relating to the proceedings and shall use their best endeavours to ensure that no other person does so, except to briefly explain this decision.
The Maternal Grandparents and the Father be restrained from disclosing anything about these proceedings on social media.
The Maternal Grandparents and the Father be restrained from making any negative comment about the other or any member of the other’s family within the hearing of [X] and ensure no other person does so.
Within 4 weeks of these Orders, each of the Maternal Grandparents make an appointment for counselling with a psychologist or family therapist, to attend either jointly or individually to address the issues raised in the Family Report, including the importance of their ongoing support of [X]’s relationship with the Father in the short and long term.
The Maternal Grandparents provide details of their psychologist/therapist to the Independent Children’s Lawyer and the Father’s solicitor as soon as identified, and within 6 months provide verification of their attendance on at least 6 occasions.
The Maternal Grandparents continue in counselling for a minimum of six sessions and thereafter continue for as long as recommended by their psychologist/therapist.
The Maternal Grandparents provide a copy of these Orders and Reasons for Judgment, and a copy of the Family Consultant’s report to their psychologist(s)/therapists and provide verification of their compliance with Order (22) to the Independent Children’s Lawyer within 6 weeks, and provide verification of their compliance with Order (23) to the Independent Children’s Lawyer within 6 months.
The Independent Children’s Lawyer remain in the matter until she has received notification in accordance with Order 25, and have liberty to relist this matter within that period.
The parties keep each other advised of any change in their residential address, landline and mobile telephone numbers, immediately any change occurs.
In the event the parties are unable to reach agreement about the terms or operation of these orders or about any major decision concerning [X] for which they are equally responsible, the parties engage in mediation at Relationships Australia, Unifam, Interrelate or other similar Agency or with a Family Dispute Resolution Practitioner in a genuine attempt to resolve the issue, before resorting to further litigation.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Sexton delivered this day will for all publication and reporting purposes be referred to as Minett & Anor & Branson.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7336 of 2012
| MR MINETT |
First Applicant
| MS MINETT |
Second Applicant
And
| MR BRANSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This complex case concerns [X], who has just had his 10th birthday. [X]'s Maternal Grandparents, Mr Minett and Ms Minett, and his Father, Mr Branson, are in dispute about [X]’s future parenting arrangements.
[X]’s parents started living together in 2003. [X] was born on (omitted) 2004 and the parties married in March 2005 at approximately the time [X]’s mother was diagnosed with rheumatoid arthritis. They separated in May 2008 when [X] was 3 years of age and divorced in July 2010. The Father lived with his sister after separation in Western Sydney, and in October 2010 moved to his own accommodation in (omitted). At separation, the Father and [X]’s mother, Ms Branson, agreed that [X] would live with his mother and spend the majority of weekends with the Father, as well as time in school holidays.
[X]’s mother became ill in late 2009 with chronic complications related to medication prescribed for (omitted). She had many visits to hospital from that time on. With the Father’s agreement, [X] lived with the Maternal Grandparents during much of the period his mother was ill, and continued to spend time with the Father on weekends. In late 2011 the mother underwent a major operation to (omitted) when she was in hospital for 6 weeks and [X] lived with the Maternal Grandparents. In the last two years of her life, [X]’s mother required regular blood transfusions and visits to hospital. She died on (omitted) 2012, aged 31 years.
Since he was a baby, because his parents were both working, [X] has spent a lot of time with the Maternal Grandparents including regular overnight time. He has lived with his Maternal Grandparents (his ‘Nan’ and ‘Pop’) since his mother’s death, and during much of the period his mother was ill, particularly in the two years prior to her death. [X]'s Uncle [Mr J], aged 27 years, his Aunt [Ms K], aged 20 years and until recently, his Aunt [Ms J] aged 25 years, also lived in the Maternal Grandparents’ household. Ms J now lives with her partner approximately 10 minutes from her parents.
Background
The Maternal Grandparents married on (omitted) 1991. Ms Minett, aged 49 years, was employed in (occupation omitted) until December 2013 when she left her employment to care full time for [X]. Mr Minett, aged 48 years, is self-employed as a (occupation omitted) on a full time contract. Mr J and Ms J are (occupation omitted)s and Ms K is a child care worker. They live in (omitted) in (omitted) Sydney.
The Maternal Grandmother is the biological mother of Mr J, Ms K and Ms J. The Maternal Grandfather is the biological father of Ms K and Ms J and the step-father of Mr J. Ms Branson was the biological daughter of Ms Minett and the step-daughter of Mr Minett. [X] is Mr Minett’s step-grandson. The Court expert, Ms S, describes Mr Minett as Ms Branson’s “psychological father” and [X]’s “psychological maternal grandfather.”[1] Ms S says that Ms Branson and Mr J’s biological father (and biological maternal grandfather to [X]) lives in South Australia, and Ms Branson and Mr J did not spend time with him, but the Maternal Grandmother was not cross-examined on this issue and there is no other evidence before me.
[1] At paragraph 13 of Exhibit 1
In June 2012, the Father, aged 35 years, took up a position as a (occupation omitted) based in (omitted), on the (location omitted), with his then employer, when he moved from Sydney to the (location omitted) to live with the paternal grandparents, Mr B Branson and Ms C Branson. They live on a 2.5 acre property at (omitted) on the (location omitted), not far from the beach. The paternal grandfather, aged 63, is a retired (occupation omitted) and the paternal grandmother, aged 63 years is a retired (occupation omitted). The Father told Ms S that he had family support on the (location omitted), preferred the lifestyle the (location omitted) could offer, and could not now afford to return to live in Sydney.[2] He is employed full time on day shifts, working Monday to Friday from between 3a.m. and 5 a.m. until between 3p.m. and 5p.m, approximately 50 hours a week. The Father has not re-partnered.
[2] At paragraph 24 of Exhibit 1
[X] began pre-school at (pre-school omitted) after his parents separated. He is currently in Year 4 at [School A], where he commenced his schooling in Kindergarten in 2010.
Short Litigation history
These proceedings were commenced by the Maternal Grandparents on 6 December 2012, a few weeks after [X]’s mother’s death. When the Father retained [X] in his care on the (location omitted) for longer than the arranged time, the Maternal Grandparents filed an application for a recovery order on 21 December 2012. This litigation followed.
On 29 January 2013, this Court made interim orders for [X] to remain living with the Maternal Grandparents and to spend weekend time with the Father. The parties and [X] were referred to a Child Inclusive Conference with Ms R, Family Consultant. In her memorandum dated 20 March 2013, Ms R says:
To the credit of Mr Branson, whilst he wants [X] to live with him and to have the opportunity to parent his son, he indicated that he is willing to agree to the current arrangement continuing for the remainder of 2013, so as to try to minimise any further stress to [X] of significant disruption to his education, social and other activities. Such a concession by Mr Branson would not have been easy. Mr Branson and the grandparents anticipate reviewing [X]’s situation in Oct/Nov 2013 to discuss [X]’s progress and to revisit the question of [X]’s living arrangements.
Ms R recommended that all the adults engage in counselling to develop ways to work cooperatively together to care for and support [X], and to receive assistance with their feelings of grief and loss. She referred in particular to the Maternal Grandparents’ need for counselling, particularly as they had lost a son of similar age to [X] in tragic circumstances 20 years earlier.
On 28 March 2013, further interim orders were made by consent providing for [X] to spend 3 out of 4 weekends with the Father and half school holidays, with changeovers to occur at a carpark in (omitted).
On 17 September 2013, the parties attended a Child Dispute Conference with Ms S, Family Consultant, who noted that the parties’ respective positions were entrenched, that none of the adults had sought counselling as recommended by Ms R, and [X] had only seen his school counsellor minimally since the March 2013 assessment.
On 15 October 2013, the Court appointed an Independent Children’s Lawyer and listed the matter for this final hearing.
On 18 December 2013, the matter was again before the Court because the parties were unable to agree on [X]’s arrangements during that Christmas period. The issue in dispute was resolved by agreement at Court on that day.
During the course of the hearing, the Maternal Grandparents sought the Father’s consent to taking [X] to (omitted) in January 2015. An order was made by consent to this effect on 26 August 2014.
Orders sought by Maternal Grandparents
In their Initiating Application, the Maternal Grandparents were seeking to reduce [X]’s time with the Father from 3 out of 4 weekends to alternate weekends. They were seeking equal shared parental responsibility with the Father and that [X] live with them. At hearing, they sought orders for equal shared parental responsibility with the Father, with specific provision for certain information to be shared, for [X] to live with them and for [X] to spend 3 out of 4 weekends with the Father from Friday afternoon until Sunday afternoon, with the Father to remain in Sydney for [X]’s sport on Saturday mornings and for changeover to occur at (omitted) on Friday evenings and (omitted) on Sunday evenings. The Maternal Grandparents propose that [X] spend alternate Christmas mornings with each party, but otherwise the majority of the first and third term school holidays, the whole of the Easter four day holiday, and the first half of other school holiday periods with the Father, as well as time with him on special days including but not limited to Father’s Day, the Father’s birthday and [X]’s birthday. They propose that [X] spend some time with them on Mother’s Day and each of the Maternal Grandparents’ birthdays and [X]’s birthday.
The Maternal Grandparents believe that [X] is stable and settled. They believe he should remain living with them because he is used to it, is happy, well-adjusted and doing well at school and with friendships, and it is enough for him to adjust to life without his mother, without imposing further changes.
Orders sought by Father
In his Response filed in January 2013, the Father was seeking orders for sole parental responsibility, for [X] to live with him and to spend one weekend a month with the Maternal Grandparents, one week each January, 2 days after Christmas Day each year (but not including Christmas Day) and weekly telephone contact.[3] At hearing, the Father sought orders for sole parental responsibility, for [X] to live with him on the (location omitted), and to spend time with the Maternal Grandparents on the last weekend of each month from Friday at 5 p.m. until Sunday at 5 p.m, for at least 7 days in each short school holiday period and for 14 days in the Christmas school holiday period. At the end of the hearing, the Father agreed with the Independent Children Lawyer’s proposal that [X] spend every third weekend with the Maternal Grandparents, after spending alternate weekends with them in first term 2015. On Christmas Day each year, the Father proposed that the Maternal Grandparents collect [X] at 3.00p.m. on Christmas Day from (omitted) and return him at 5.00p.m. on Boxing Day. The Father sought an order that the Maternal Grandparents ensure that [X] attended all extra-curricular and/or sporting activities in which he is enrolled, and that they give him notice if they plan to take [X] outside the Sydney Metropolitan area.
[3] Response filed on 14 January 2013
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer supported the substance of the Father’s proposal.[4] That is, that the Father have sole responsibility for [X], that [X] live with the Father from the end of the 2014 school year, that [X] spend time with the Maternal Grandparents each third weekend during school terms from 5.00p.m. Friday or from after sport on Saturdays until Sundays at 6 p.m. (but alternate weekends in Term 1, 2015). The Independent Children’s Lawyer proposed that [X] spend two weeks with the Maternal Grandparents in the January 2015 school holidays (when he should be permitted to travel to the (country omitted)) and thereafter for 2 weeks in Christmas school holidays, alternate Christmas Days, one week in each short term school holiday period and for a few hours on special days including [X]’s birthday and Mother’s Day. The Independent Children’s Lawyer proposed telephone communication between [X] and the Maternal Grandparents on 3 occasions each week, various orders in relation to the exchange of information and for the Father to engage [X] in appropriate counselling.
[4] Exhibit 6
Expert opinion and recommendations
Ms S interviewed the parties on two occasions, once in September 2013 and at the Family Report interviews on 25 March 2014, 6 months before hearing. Ms S observed and interviewed [X] during the Family Report interviews in March 2014. She interviewed [X]’s mother’s siblings, Mr J, Ms K and Ms J, as well as the paternal grandparents. Ms S recommends that [X] live with the Father, spend time with the Maternal Grandparents and that the Father have sole parental responsibility for him.
The core issue for Ms S is [X]’s relationship with his Father. She does not want to see [X]’s relationship with the Father, as his sole surviving parent, compromised. She says it is a “prime relationship”[5] and must be prioritised and protected. Ms S does not believe [X] is spending enough time with the Father presently and in her view, if [X] remains living with his Maternal Grandparents, orders cannot be made “to provide as full a relationship with his Father as I would like to see.”[6] If the present arrangements continue, she believes that [X]’s relationship with the Father may “become thinner”[7] even to the point of estrangement. Ms S predicted that as [X] gets older, he will engage more with his peers and become increasingly oriented towards his school and his local community. Given the distance from the Father’s home, [X] may not want to continue to travel regularly to the (location omitted) to spend time with his Father and there is a risk the Father will not sustain his commitment to [X].[8] If his presently solid relationship with the Father is diminished or lost, she says that [X] will be at significant risk of both short and long term psychological harm, including anxiety and depression. Ms S says there is a window now while [X] is still at primary school before he is an adolescent and seeking out his peers, to settle him into a new environment.
[5] At page 52 of 11 August 2014 transcript of proceedings
[6] Ibid at page 63
[7] Ibid at page 48
[8] Ibid at page 64
Ms S said it was likely that at the time of his parents’ separation, [X] had an attachment to both his parents.[9] And even though the emotional attachment to the Father has so far been maintained, there remains a risk that [X]’s relationship will not be sustained, particularly given the acrimony between the families and her assessment of the lack of goodwill from the Maternal Grandparents towards the Father. Ms S formed the view that the Maternal Grandparents will not adequately support [X]’s relationship with the Father into the future. She was concerned that the older children of the Maternal Grandmother have not had contact with their biological father, and wants to ensure that situation does not arise for [X].[10] This issue was not explored in cross-examination.
[9] Ibid at page 28
[10] Ibid at page 56
While Ms S said it is also important for [X]’s maternal relationships to be protected and preserved, in her view these relationships should be reinforced at other times of the year, particularly holiday time and when the Maternal Grandparents attend [X]’s sporting activities on the (location omitted).
Ms S was cross-examined over almost a day. Deciding on the final course of action to recommend to the Court had clearly been very difficult, and to her credit she frankly admitted her dilemma. She said “this isn’t an easy call”[11]; “I have spent a lot of time with my colleagues discussing [this]…”[12]; “it’s not an easy one and I know that there will be lots of other information that the court will need to take into account when thinking about this”[13]; “it’s a tough call”[14]; “it’s a big call”[15]; “it’s a really tough case Your Honour”;[16] “on balance in this very difficult matter..”[17] However, Ms S did not modify her recommendation as set out in her report, that [X] should live primarily with the Father, and spend time with the Maternal Grandparents in school holidays and three weekly or monthly during school terms.
[11] Ibid at page 40
[12] Ibid at page 40
[13] Ibid at page 40
[14] Ibid at page 42
[15] Ibid at page 42
[16] Ibid at page 47
[17] Ibid at page 58
In Ms S’s view, [X] would find the adjustment to moving to the Father on the (location omitted) very difficult if he were not well supported by the Maternal Grandparents and extended maternal family.[18] She strongly recommended that [X] engage in counselling to help him manage the move including a change of school. She also recommended that the Maternal Grandparents and the Father access individual counselling in relation to the death of [X]’s mother and [X]’s move to the Father. With the right support, Ms S believes that [X] is sufficiently robust to make the transition successfully over time.
[18] Ibid at page 50
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975 as amended. Section 60CA provides that the Court must regard the best interests of the Child as the paramount consideration. To determine the Child’s best interests the Court must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations, when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination. Some of these factors specifically refer to “parents” but the Full Court has stated that the Court would be expected to consider all the factors (to the extent they are relevant), whether under those provisions or under s.60CC (3)(m) when, as in this case, a non-parent is involved.[19] The Full Court states that the factors in s. 60CC are a “means to an end” [20] and are matters to be considered and applied in a manner “consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.”[21]
[19] Malcolm & Monroe (2011) FLC 93-460 approved by the Full Court in Valentine & Lacerra & Anor [2013] FamCAFC 53 at paragraph 52
[20] At paragraph 53 of Valentine & Lacerra & Anor [2013] FamCAFC 53
[21] Per May and Thackray JJ in Mulvany & Lane (2009) FLC 93-404 at paragraphs 76 and 77 – cited with approval at paragraph 53 of Valentine & Lacerra & Anor [2013] FamCAFC 53
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard. However, the legislation does not require that a meaningful relationship with a parent is the only consideration going to a child’s best interests.[22]
[22] Burton & Churchin & Anor [2013] FamCAFC 180 at paragraph 63
Section 60CC(2A) requires the Court, in applying the primary considerations, to give greater weight to the consideration set out in section 60CC(2)(b).
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of child are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Though the first, third and fourth objects in section 60B(1) have no application to non-parents. (KRITS CASE at para 78).
There is no presumption in favour of a natural parent “or any entitlement of a parent to a preferential position from which the decision making process commences”[23] when considering a child’s best interests, although the fact of parenthood is an important and significant factor[24]. The Full Court held [25] that “an application for a parenting order 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 the paramount consideration.”
[23] At paragraph 53 of Valentine & Lacerra & Anor [2013] FamCAFC 53
[24] Rice & Miller (1993) 16 Fam LR 970 at 977
[25] At paragraph 43 of Valentine & Lacerra & Anor [2013] FamCAFC 53
[X]’s care history
[X] lived with both his parents until they separated when he was 3 years and 8 months of age. Both parents were employed, the Father on night shifts (employed as a (occupation omitted) by the Maternal Grandfather) and the mother on day shifts. The Father told Ms S that he was therefore a very “hands on Dad” as he actively assisted in [X]’s care when he was not working, and routinely cared for [X] by himself when the mother returned to part time work in the mornings.
From the time he was born, the Maternal Grandparents told Ms S that [X] spent a lot of time in their care when his parents were working these opposite shifts. They lived close by and [X] regularly slept at their place from the time he was a baby, up to 2 or 3 times a week.
According to the Father, [X] attended preschool 2 days a week in 2006, (in 2007 according to the Maternal Grandparents when [X]’s aunt Ms J was no longer able to care for him) increasing to 5 days a week at the time of the parties’ separation. The Father said he would take [X] to day-care and look after him in the mornings if [X] was at home. The Father said that he and [X]’s mother had assistance from the Maternal Grandparents with [X]’s care and from [X]’s aunt Ms J. According to the Maternal Grandparents, [X] started pre-school at the age of 4 years, but stayed only a few months because he found it difficult to separate from the Maternal Grandmother. She and [X]'s Aunt [Ms J] therefore looked after [X] until he started school. The Father acknowledged that Ms J used to look after [X] for a few hours after school.
The Maternal Grandmother told Ms S that she has taken [X] to school since he commenced his schooling when his mother would deliver him to her home at 8 a.m each morning. The Maternal Grandmother attended his assemblies and award ceremonies. [X]’s mother was usually able to care for [X] after school though he sometimes attended after school care.
After separation, the Father said that he and the mother agreed that [X] would live with his mother and spend 3 out of 4 weekends with him. At that time, the Father was living in Sydney, relatively close to where [X] was living with his mother.
[X] lived with the Maternal Grandparents for extended periods of up to several weeks after his mother became ill in late 2009. [X] spent regular weekends with the Father, but not during the week.
During the last 2 years of his mother’s life, [X] lived with his mother for the most part in the home of the Maternal Grandparents, and in the absence of the mother whenever she was in hospital.
Since his mother’s death, [X] has lived with the Maternal Grandparents and spent time with the Father on most weekends, as well as for half the school holidays. The Maternal Grandmother takes [X] to school each day, and until the end of 2013 the Maternal Grandfather collected him from after school care. The Maternal Grandmother resigned her position as a child care worker at the end of 2013, and since then she has cared for [X] both before and after school.
Since the Father has lived on the (location omitted) from June 2012, he has lived with his parents, who also see [X] when he is with the Father. [X] spends time with the Father’s sister and her children, including staying overnight with her during school holidays when the Father is working.
During summer, when [X] is with the Father, the maternal grandparents have travelled to the (location omitted) to watch [X] do (omitted) on occasions. During the (omitted) season, particularly since 2013, the Father has frequently travelled to Sydney to watch [X] play (omitted) on Saturday mornings before returning with [X] to the (location omitted).
Relationship between the Maternal Grandparents and the Father
Prior to [X]’s mother’s death, the Maternal Grandparents told Ms S that they were on “good terms” with the Father who was “distraught” about the end of the marriage and sought support from them. The Maternal Grandmother said “we used to have a very good relationship.”[26] The Father told Ms S we “used to have coffee and talk”. Regrettably for [X], after the death of his mother, the relationships between the Maternal Grandparents and the Father broke down. This seems to have been caused, at least in part, by the events which followed [X]’s mother’s death which led to this litigation, to which I later refer.
[26] At page 77 of 12 August 2014 transcript of proceedings
The parties now rarely speak to each other directly and restrict their communication to text messaging or solicitors’ letters about matters concerning [X]. When present at the same event, they avoid each other. So poor is the state of their communication, the Maternal Grandparents did not know, until it was raised at the hearing, the residential address of the Father or his landline telephone number. The Maternal Grandmother deposed to occasions when changeover took place at (omitted), and the Father drove another 25 minutes towards the Maternal Grandparents home causing them unnecessary travel,[27] and to the Father not calling in to see [X] when he has been to [X]’s school, 5 minutes from [X]’s home.[28]
[27] Annexure B to Maternal Grandmother’s affidavit sworn on 17 July 2014
[28] Annexure B to Maternal Grandmother’s affidavit sworn on 17 July 2014 – 5 and 22 August 2013
The affidavit evidence filed on behalf of the Maternal Grandparents is critical of the Father. The Maternal Grandmother and [X]'s Aunt [Ms J] kept diary notes from the commencement of the litigation of issues/events/reports from [X] which highlighted the Father’s shortcomings as a parent from their point of view. The Maternal Grandparents told Ms S that the Father would not support [X]’s relationship with them if [X] was living on the (location omitted), and [X]’s time with the Maternal Grandparents would be severely limited in those circumstances.[29] The affidavit evidence of the Father also contains criticisms of the maternal family, including [X]’s deceased mother. The Father said that he has been unable to communicate with the Maternal Grandparents in the last 18 months. They have withheld important information from him, and he fears that if [X] remains living with the Maternal Grandparents he will not be kept informed about [X]’s welfare.
[29] At paragraph 21 of Exhibit 1
The paternal grandparents told Ms S they got on well with [X]’s mother, and although not close to the Maternal Grandparents, felt positive about them.[30] This did not accord with the evidence of the Maternal Grandparents and the Paternal Grandfather in cross examination. The Maternal Grandparents denied that the paternal grandparents got on well with Ms Branson, and were critical of the paternal grandparents’ absence from all [X]’s school events, with the exception of the grandfather occasionally watching him play (omitted). The paternal grandfather confirmed this level of involvement. The paternal grandfather said in cross examination that he would be prepared to meet the Maternal Grandparents on “neutral territory” but “not in my house” and said that they would “be as welcome in my house as I would be in theirs.”[31]
[30] At paragraph 35 of Exhibit 1
[31] At page 82 of 26 August 2014 transcript of proceedings
I accept Ms S’s opinion that the conflict between the families is impacting badly on [X] who is a sensitive child, and this breakdown is not healthy for [X] wherever he lives in the future. [X] needs his loved ones to behave respectfully, “empathetically and peacefully towards each other”[32] and to know that the adults in his life have a sense of goodwill towards each other rather than a vying for his time.
[32] At paragraph 59 of Exhibit 1
All the parties expressed sadness about the breakdown of their relationships. They agreed it is essential for [X] that they make more effort to relate cooperatively, as they used to. Neither the Maternal Grandparents nor the Father wanted [X] to feel burdened by the rift between the two sides of his family, and were troubled by his comment to Ms S that he wished “everyone can be friends again.” The Maternal Grandparents said the Father is a good Dad, and loves [X]. The Maternal Grandmother did not expect to keep a logbook after these proceedings have been finalised. She wanted to be able to talk to the Father. The Maternal Grandfather said that they will try to repair the relationship by communicating better.[33] He agreed that at a sporting event, he would now go over to the Father and invite him to join them, recognising that he should have approached the Father at [X]’s athletics day in July. The Father said that the Maternal Grandparents are generous, warm and caring people and that [X]'s Aunt [Ms J] is “strong and warm”.[34] He would like to improve their relationships. Ms S believed that all the parties may benefit from professional assistance towards dealing with their losses and communicating better into the future.[35]
[33] At page 116 of 12 August 2014 transcript of proceedings
[34] At page 68 of 26 August 2014 transcript of proceedings
[35] At paragraph 59 of Exhibit 1
I am satisfied that the end of this litigation is likely to see a slow healing of the broken relationship between the Father and the Maternal Grandparents.
Events leading up to this litigation
The Father had told the Maternal Grandparents in late 2011, before [X]’s mother’s underwent life threatening surgery, that if anything happened to Ms Branson, he wanted [X] to remain living with them, because he was not in a position, either emotionally or financially, to care for [X] full time.
These proceedings started less than 3 weeks after [X]’s mother’s death. It must have been an awful time for all those who loved [X]’s mother, particularly her parents, her siblings and her only child [X], but also the Father.
I include here details of what happened in that 3 week period after [X]’s mother’s death because these events, (as already noted) at least to some extent, explain the sudden loss of trust between the Father and the maternal family and the unwillingness/inability of the parties to resolve this dispute for [X]’s sake. The following facts were substantially agreed:
a)On the Sunday following her death, the Father told [X] his mother had died, in the presence of the maternal family, at their home. The Father then told the Maternal Grandfather that [X] could stay with them “for now” and see him on weekends until the end of the 2012 school year; he would then move to the (location omitted) to live with him. The Maternal Grandfather reminded the Father of their conversation in late 2011. The Father said that his circumstances had changed and he could now care for [X] with the assistance of his parents. When the Maternal Grandfather asked whether this was “up for negotiation”, the Father said “No, that’s just the way it’s going to be.”[36] While the Father claimed not to recall making that comment, I accept the Maternal Grandfather’s recollection that it was said.
[36] At page 115 of 12 August 2014 transcript of proceedings
b)At [X]’s mother’s funeral on 21 November 2012, the Father spent limited time with [X] and became intoxicated with friends and members of his family in the licensed area of the premises, to which [X] did not have access. The Father said that the maternal family did not make him feel welcome and kept [X] away from him for much of the day.
c)On 22 November 2012, the Father tried to arrange for [X] to be included on his Medicare card and to enrol him in [School B]and [School C] on the (location omitted), but did not have [X]’s birth certificate.
d)On 23 November 2012, when driving [X] to his home on the (location omitted), [X] told the Father that his “Nan” had told him he would be living with them, and the Father corrected [X] and told him that he would be living with him. The Father asked the Maternal Grandfather for [X]’s papers including his birth certificate, passport and immunisation records but was told they had not yet been located.
e)On 24 November 2012, the Father obtained a certified copy of his birth certificate, had [X]’s name included on his Medicare card and took [X] to buy a new bed.
f)On 25 November 2012 at changeover, the Father asked the Maternal Grandfather how best to move [X]’s things to the (location omitted) and again asked for [X]’s paperwork.
g)On 26 November 2012, the Father’s mother enrolled [X] in the (school B omitted) near the Father’s home and [X] was accepted to start Year 3 in 2013.
h)[X] spent the weekend of 1-2 December 2012 with the Father.
i)On 5 December 2012, the Father received a call from the Maternal Grandparents’ solicitor advising of their intention to seek orders for [X] to live with them and spend time with the Father on weekends, and to keep [X] in their care on the weekend of 8-9 December 2012.
j)On 6 December 2012, the Maternal Grandfather advised the Father that [X] would remain with them that weekend. On that day, they filed an application seeking orders for equal shared parental responsibility, for [X] to live with them and to spend time with the Father. They did not propose mediation. The Maternal Grandfather said this was because the Father had said his decision for [X] to live with him was not negotiable.
k)On 12 December 2012, the Father telephoned the Maternal Grandparents’ home, spoke to Ms J and asked about collection of [X]’s things and for [X]’s “paperwork”. Ms J said she did not want to get involved.
l)On 14 December 2012 the Father collected [X] from his Maternal Grandfather and Aunt [Ms J] and told her he would return [X] on 17 rather than the 16 December so [X] could attend orientation at his new school. The Maternal Grandparents’ solicitor advised the Father to return [X] on Sunday 16 December so [X] could go to school on Monday for the last week of the school term. The Father did not return [X]. [X] attended orientation at the (school B omitted)B] and remained in the care of the Father. The Maternal Grandparents could not make contact with [X].
m)On 19 December 2012, the Maternal Grandparents spoke to [X] by phone but did not see him in person until 26 December. The Maternal Grandmother resigned from her position as a child care worker to care for [X] full time.
n)On 21 December 2012, the Maternal Grandparents filed an Application in a Case for a recovery order.
o)[X] had no telephone or face to face contact with any member of his maternal family on Christmas Day.
p)On 26 December 2012, the Father returned [X] to the Maternal Grandparents.
q)On 22 January 2013, interim consent orders were made by the Court in relation to [X]’s time with each party during the 2012/2013 school holidays.
Maternal Grandparents’ proposal
On the Maternal Grandparents’ proposal, [X] would remain living with them in the home he has lived in for the last two years and most of the last 4 years. [X] would spend his day to day week with his Maternal Grandparents, his Aunt and Uncle who live in that home, and spend time with his Aunt [Ms J] who lives nearby. He would be cared for before and after school by his Maternal Grandmother. [X] would remain at the only school he has known and would have his familiar friendships. He would continue to spend time with his Father on the majority of weekends and during school holidays and would see his Father in Sydney at other times. [X] would continue to engage in extracurricular activities as he does now including martial arts and sport.
Father’s proposal
On the Father’s proposal, [X] would live with his Father and his paternal grandparents in a home he has been living in on most weekends and during holidays for the past 2 and a half years. He would spend time with his paternal aunt and uncle and cousins of his age. He would spend time with his Maternal Grandparents every third weekend and during school holidays and would see them on the (location omitted) as often as they could travel there to watch his sport.
The Father had not finally decided where [X] would go to school but thought it most likely that he would attend the [School D], which is small and close to the Father’s home. [X] would need to make new friends as he would not have frequent contact with his Sydney friends. He would participate in extracurricular activities on the (location omitted), as organised by the school and the Father.
[X] would be cared for before school each day by his paternal grandparents who would take him to school and collect him when the Father was working. The paternal grandfather gave evidence and said that he and his wife have retired and would enjoy having [X] in their home. He acknowledged that he and his wife have not had regular involvement in [X]’s life in Sydney but the grandfather has watched (omitted) from time to time and enjoyed activities with [X] on weekends. The paternal grandmother did not give evidence, but at interview with Ms S said she played a support role in the home, including doing the cooking and washing.
The Father said he hoped to live independently of his parents in time, (perhaps 2-3 years) but first needed to pay off his debts to his parents and save for a deposit for his own home. The Father said that while he is presently working from early morning until mid to late afternoon each weekday, and does not want to increase his hours in any significant way, it is possible he will work more to increase his income and it is possible he will be required by his employer to work longer hours. The Father currently has an hour at the gym after work 3-4 days a week, arriving home after 6.00p.m and was not clear as to how often he would attend the gym if [X] lived with him. He thought 3 times a week would be reasonable, though perhaps not possible.
[X]
[X] presented to the Family Consultant as “articulate, bright and sensitive to the feelings of others” “active, intelligent, buoyant”. In cross-examination, she said that [X] is “very clearly spoken, good vocabulary, able to express himself.” He appeared “at ease during the observations” and loved engaging with the parade of family members who joined him during the day with the activities provided[37] in the childcare room.
[37] At paragraph 43 of Exhibit 1
[X] told Ms S that he liked his teacher, his friends and enjoys (omitted) in Sydney and (omitted) on the (location omitted).[38] He appeared to Ms S to have thought a lot about the consequences of possibly changing residences.[39] He expressed particular concern about the prospect of having to change schools. He said if he lived with his Father “I would have no friends and would hardly have any invitations to parties and I would really miss (omitted).” He thought he would see very little of his “Nan and Pop” only “once a month”. [X] also appeared to Ms S to be “overburdened by the emotional strain and uncertainty of where he might live and go to school in the future.” He said he loves his grandparents and the Father equally, was caught in the middle of the dispute and “I just want to keep everyone happy again.”[40]
[38] Ibid at paragraph 37
[39] Ibid at paragraph 38
[40] Ibid at paragraph 39
[X] told Ms S that he misses his mother very much. The Father also told her that [X] talks about his mother sometimes and seemed to miss her very much.[41] [X] said that his “Nan and Pop miss her so much too that if I go to live with Dad they’ll really miss me.” … “they’ll never get used to it.” He says they are “still crying about Mum dying” and would not cope with him leaving. He said, “I think Dad’ll be okay” if the Judge decides he should stay living with the Maternal Grandparents.[42] The Father believed that [X] would adjust reasonably well to a move to living with him and changing schools as long as he believed the maternal side of the family would manage.[43]
[41] Ibid at paragraph 25
[42] Ibid at paragraph 42
[43] Ibid at paragraph 30
The Maternal Grandparents told Ms S that when [X] first started living with them, he had a nervous twitch of eye blinking which now only resurfaces when he is nervous. The parties agreed that [X] is now settled and happy at his school, enjoys good friendships, is progressing well academically and enjoys a range of extracurricular activities particularly in sport.
[X] was referred to his school counsellor in December 2012[44], shortly after his mother died to help him express his feelings about his loss. He met the counsellor on 20 February 2013 when [X] reported “not feeling as sad”. The counsellor, Mr B, told [X] he did not need to talk about his mother at that stage, as it was better for them to get to know each other. He played chess with him at [X]’s request. On 5 March 2013, [X] was asked to rate different aspects of his life. He rated school 10/10, friends 10/10 home (with his Maternal Grandparents) 10/10 and Dad 5-6/10. When his “Dad” rating was further explored the counsellor records “[X]’s answer indicated he was unsure re some of his father’s behaviour”. On 17 December 2013, the counsellor reported [X] being happy to spend the first 3 weeks of the Christmas holidays with the Father and the rest with the Maternal Grandparents. He said he liked his current living arrangements but would prefer fortnightly visits with the Father. [X] was aware of the Court proceedings and his Father’s wishes and “not worried by this.” [X] presented in a good mood with “lots of smiling/laughter”. The counsellor’s notes for the appointment in February 2014[45] record [X] enjoying his time with the Father during the school holidays and being happy to be back at school. In May 2014, the counsellor records that [X] reports that “school life good” and “home life good” and noted that [X] will call in to see the counsellor if he feels the need. The Maternal Grandparents took [X] to see a psychologist once, but as he was seeing the school counsellor, further appointments were considered “doubling up.”
PRIMARY CONSIDERATIONS
[44] Exhibit 4
[45] Ibid
The benefit to the child of having a meaningful relationship with both the child’s parents
This factor has no application to the Maternal Grandparents because they are not “parents”[46] but does apply to the Father, as [X]’s surviving parent.
[46] Burton & Churchin & Anor [2013] FamCAFC 180 at paragraph 51
[X] lived with both his parents until he was three and half years of age when his parents separated. He lived with his mother from that time until her death in November 2012, but spent regular weekend and holiday time with the Father. [X] was 8 years and (omitted) of age when his mother died. Since then, [X] has continued to spend regular weekend and holiday time with the Father. I accept Ms S’s assessment that [X] and the Father have a “solid” relationship, which would have been well established prior to his parents’ separation, and further developed by the regular time they have spent together since. In her observations of [X] with the Father, they interacted “easily and happily” around games using the blackboard. They shared jokes and stories in a reciprocal and spontaneous manner. Ms S observed an affectionate and warm relationship between them.[47]
[47] At paragraph 44 of Exhibit 1
I am satisfied that [X] has always had the benefit of a meaningful relationship with his Father, and continues to do so.
The question raised by Ms S is whether the current strength of [X]’s relationship with his Father will be put at risk if [X] remains in the primary care of his Maternal Grandparents. As already noted, Ms S is concerned that the relationship will “thin” perhaps to the extent of “estrangement”[48], unless [X] lives with the Father on the (location omitted) because:
a)As [X] gets older, he is likely to be focussed on his peer relationships and activities in his local community and may be less inclined to undertake the travel to the (location omitted); and
b)The Father may not sustain his commitment to [X] over time if they are not living together; and
c)The Maternal Grandparents (and maternal family generally) are unlikely to prioritise and actively and enthusiastically promote [X]’s relationship with his Father as they must if [X]’s relationship with the Father is to remain strong, given their lack of goodwill towards the Father and his parents.
[48] At page 56 of 11 August 2014 transcript of proceedings
Ms S predicts that [X] is likely to be very distressed if required to relocate to the (location omitted) because he loves his Maternal Grandparents and extended maternal family, and is happy and settled at school and at home. She says he would need the strong positive support of his Maternal Grandparents and extended maternal family to manage a transition to his Father’s home, and without that support, [X] would find such a move very difficult. Ms S does not address, and was not asked about, any possible impact on [X]’s relationship with the Father if [X] is required to relocate and does not adjust to the change.
If orders are complied with, [X] should continue to benefit from a meaningful relationship with his Father. On the Father’s proposal, assuming he adjusts well to a move to the Father, [X]’s relationship with the Father should remain strong. On the Maternal Grandparents’ proposal, assuming the Court makes orders along the lines proposed, and the Maternal Grandparents comply with those orders, [X]’s relationship with the Father should also remain strong. Ms S’s concerns are based largely on speculation as to how things may unfold as time passes. I address those matters later in these Reasons.
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 issues of abuse, neglect or family violence in this case.
ADDITIONAL CONSIDERATIONS
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views
The evidence discloses that [X] has expressed his wish to remain living with the Maternal Grandparents and at his present school many times, including to the Maternal Grandparents, his aunt Ms J, his Father, his school counsellor and the Family Consultant. He has not expressed a different view.
On 26 December 2012, [X] told the Maternal Grandparents and his Aunt [Ms J], on his return from time with the Father, that his Father told him he was living with him now, and that [X] said “but I don’t want to.”[49]
[49] Annexure A to affidavit of Ms J sworn on 17 July 2014
On 15 February 2013, the Maternal Grandmother wrote in her logbook that [X] said at changeover: “Nan, why can’t we just do what Mum used to do and go to Dad’s on Saturday instead of Friday and not every weekend.”[50]
[50] Annexure B to affidavit of Maternal Grandmother sworn on 17 July 2014
On 17 February 2013, [X] told the Maternal Grandparents that the Father had asked him whether he wanted to live with him on the (location omitted) and that [X] said “no thanks, he said if I change my mind I can but I said no thanks.” [51]
[51] Ibid
On 28 February 2013, [X] was crying when he said to his Maternal Grandmother “why do I have to go on Fridays, my mum said only Saturday and Sundays.”…“Mum and Dad used to fight and I choose Mum now dad fights with you and I chose you he is mean and I only want to see him one weekend can you call him and tell him”.[52]
[52] Ibid
On 15 September 2013, [X] arrived home from time with the Father and said, “I spent the weekend at (omitted) (his aunt) because dad works on Saturdays. I don’t want to go on Fridays anymore, I just want to stay in my own bed here.”[53]
[53] Ibid
On 30 November 2013, [X] said to the Maternal Grandmother “I tell dad when he asked me where I want to live, I just say ‘there’ so he stops asking me, he always talks about a new school and new friends but I don’t want to leave I like my school and my friends.”[54]
[54] Ibid
At the end of 2013, [X] told the school counsellor that he “likes current living arrangements with grandparents” and “would prefer fortnightly visits with dad.”[55]
[55] Exhibit 4
In March 2014, [X] tells the Family Consultant that his Maternal Grandparents’ proposal was “fairer” and that he did not want to change his school. In line with their proposal, he said he wanted less time with the Father on weekends so he could have more weekend time with the Maternal Grandparents.[56]
[56] At paragraph 38 of Exhibit 1
On 27 June 2014, [X] said to his aunt Ms J, “Dad asked me every weekend where do I want to live? I want to live here and just see dad on the weekend and I’m scared to tell him that.”[57] He has told his Aunt 2-3 times, “I don’t want to live with Dad, please don’t make me, I want to live at home I don’t want to start all over again.”[58] His Aunt says that [X] has repeated that many times, probably once a week over the last 12 months.[59]
[57] Annexure A to affidavit of Ms J sworn on 17 July 2014
[58] Annexure A to affidavit of Ms J sworn on 17 July 2014
[59] At pages 13 to 14 of 26 August 2014 transcript of proceedings
On 4 July 2014, [X] says to the Father “Oh Dad I’ve been thinking about where I want to live. Is it alright if I stay with nan and pop and spend 2 weekends with you and one weekend with them. If I move up here I’ll miss nan and pop, my aunties and uncles and my friends and my dogs.” The Father says he cannot recall what he said in response.
On 6 July 2014, [X] said at his home in front of his Aunt [Ms J] “When do I get to just live here, because I told Dad this week?”…”Dad asked me do you know where you want to live and I said yeah at Nan and Pop’s place and he said ‘that’s OK if that’s what you want’, so I can stay here then?”[60]
[60] Annexure A to affidavit of Ms J sworn on 17 July 2014
[X]'s Aunt [Ms J] deposed to [X] talking about his future plans which always involve him living with his Maternal Grandparents, attending high school with his friend [J], and for him and [J] to live in the Maternal Grandparents’ home. [X] has told her a number of times that he wants to live with her parents, his Nan and Pop.
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child.
…including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.
The Father says he puts some weight on [X]’s views and believes he should have regard to [X]’s views when choosing a school for him on the (location omitted). However, he also says that the outcome [X] wants may not be the best for him. The Maternal Grandparents and [X]'s Aunt [Ms J] believe [X] has made his views clear, and does not understand why he is not being heard. They formed the view that [X] believed the matter was resolved as he hoped when, in July 2014, he told his Grandparents that his Father had agreed to him staying with them.
In March 2013[61], Ms R says that it would be difficult to place any weight on [X]’s stated views, given it was so soon after his mother’s death, and he was trying to cope with the huge adjustment of losing his mother. Ms R says:
[X] is not of an age or state of emotional maturity where he is developmentally or emotionally capable of understanding the (long term) consequences (for him) of the decision his grandparents and his father have asked the Court for assistance with. [PAGE 2]…
Grief and loss are distressing and challenging experiences for all children and their coping and adjusting is dependent upon the support that all significant adults in their life provide. Care needs to be taken that [X] does not find himself in a loyalty bind and that he does not become triangulated between his only surviving parent, his father and his maternal family.
[61] Memorandum of Ms R dated 20 March 2013
At hearing, Ms S says that [X]’s views are “authentic views” but in part shaped by the environment he is living in. Ms S says some weight should be given to [X]’s expressed wishes because they clearly reflect the warm loving care he receives in the Maternal Grandparents’ household. However, his views must also be put in context. He is influenced by the fact that he is living with the Maternal Grandparents and is very happy there, and that his Aunt [Ms J] has a room for him at her home. He also knows how important he is to them all and feels their home is where he should be. They are also the link to his mother. Nevertheless, Ms S believes that [X]’s view should be considered in its context because it rests in part on the Maternal Grandparents having exposed [X] to a negative appraisal of the Father and his parents, drawing [X] into a loyalty conflict.
Ms S describes [X] as an intelligent, articulate and sensitive child. [X]’s expressed views have been consistent since his mother died nearly two years ago. I find it noteworthy that he has not only told the trusted adults in his life what he wants, but also his school counsellor and the independent expert. While I accept Ms S’s view that because [X] feels so loved and supported in his Maternal Grandparents’ home, so loyal to them, and so comfortable at his school, it is almost inevitable that he would express a wish to stay with the Maternal Grandparents, I am nevertheless satisfied that [X]’s expressed views should be given considerable weight.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
[X] has a close and loving relationship with his Father. The Father was observed to be child focussed and attentive to [X]’s conversation during the Report interviews. They enjoy a diverse range of activities together including (omitted). They enjoy spending time with the Father’s sister and her children. It is noteworthy that [X] has maintained this strong relationship with his Father despite his parents’ separation when he was 3 years old, his parents’ divorce, his Father’s move to the (location omitted), his mother’s death, and this litigation.
Ms S observes comfortable positive interactions between [X] and the Father’s parents. The paternal grandfather deposes to [X] relating well to him and his wife, when with them on weekends. Although the paternal grandparents have other grandchildren and have found regular travel to Sydney difficult to attend [X]’s sports and other events, the paternal grandfather has attended a number of [X]’s (omitted) and accompanied the Father and [X] on a number of special outings. Ms S observes that the paternal grandmother sees herself in a supporting domestic role rather than engaging in activities with [X]. I find it noteworthy that the paternal grandparents were not in the habit of calling [X] for his birthday or on special occasions, nor calling to check on [X]’s welfare during his mother’s illness.
[X] spends considerable time with the Father’s sister, Mel, and her family when with the Father during holidays and weekends. While the Maternal Grandmother says [X] complains about his cousins, I find it likely that [X] has a familiar, comfortable relationship with the members of that family.
As already noted, [X]'s Maternal Grandparents have had a great deal of input into [X]’s life from the time he was a baby, and they love him dearly. The Maternal Grandmother has taken [X] to school every day since he started school, and continues to do so. He has strong, close and loving relationships with each of his Maternal Grandparents. He trusts them and relies on them for his day to day support. Ms S observes them as attentive and child focussed in their easy and happy interactions with [X], who was laughing, chatty and excited when seen with them.[62] Ms S assesses the Maternal Grandparents as “devoted to the care and well-being of [X].” She says that their “care and love… contains an extra dimension and depth as a result of Ms Branson’s death.”[63]
[62] At paragraph 46 of Exhibit 1
[63] At paragraph 50 of Exhibit 1
[X] has a particularly close bond with his maternal aunt Ms J, his mother’s younger sister, who cared for him in the afternoons for 2 years when he was a baby, when his Father had to sleep for his night shift and when [X]’s mother was at work. Ms J then regularly collected [X] from pre-school after his parents separated and attended many of his special functions at pre-school and school. In November 2013, Ms J reports [X] being extremely distressed that she was moving out of the family home to live 10 minutes away with her partner, Mr D. [X] said “don’t leave me [Ms J] like my Mum.” Both Ms J and Mr D often watch [X] play sport. [X] sleeps overnight at Ms J and Mr D’s home on the weekends he spends with the Maternal Grandparents, and has his own room there. Ms J is due to have her first baby at the end of the year, and says [X] is very excited.
I am satisfied that [X] has close relationships with his mother’s other siblings, his Uncle [Mr J] and Auntie [Ms K] who live with the Maternal Grandparents. Ms S observes their “warm and encouraging” approach to [X] during observations. [64]
[64] Exhibit 1
I accept the Maternal Grandmother’s evidence that [X] has a special friendship with a boy in his class called [J], a child who has also lost his mother and is being brought up by his grandmother. [X]’s school recognises and fosters this friendship.
I have regard to these findings in reaching my decision.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child; to spend time with the child; and to communicate with the child.
This factor relates only to the Father and not to the Maternal Grandparents. [X] has spent regular time with his Father since his parents separated in 2008. While the Father has had limited involvement in [X]’s pre-school and school, he has taken an interest in [X]’s (omitted), enrolled him in (omitted), and engaged with [X] in a range of activities.
However, I am not satisfied that the Father maximised his opportunities to assist [X] when [X]’s mother was seriously ill. While he says he moved to (omitted) to be close by, the Father maintained his routine of spending time with [X] on weekends when his work permitted, not at additional times. This was a time when [X] would have needed his Father, yet the Maternal Grandparents say that the Father did not make himself available to assist with [X] during this difficult period. While the Father was working and may not have been always comfortable increasing his involvement with [X] at such a stressful time for the Minett family, I am not satisfied the Father had much insight into [X]’s emotional needs at that time. I also find it difficult to reconcile the Father’s commitment to [X], with his decision to move out of Sydney to improve his lifestyle only 5 months before [X]’s mother’s death.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
No issues arise under this factor.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child 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 child) with whom he has been living.
[X] has lived most of his life since the age of 5 years in the Minett household as a result of his mother’s long illness and subsequent death. [X] is settled and happy in the care of his Maternal Grandparents. Ms S says [X] would face a significant adjustment if he were to move to live with the Father and his paternal grandparents on the (location omitted). He would have to leave the school he has attended since Kindergarten; he would have to leave the day to day support of his special friends, including [J]. He would have to stop his current extracurricular activities to start again on the (location omitted). He would see considerably less of his maternal family, most particularly his Aunt [Ms J] and his Maternal Grandparents. While Ms S says [X] is robust, is much loved and has a lot going for him,[65] she also says the sense of loss, grieving and distress would be acute for [X] if he were removed from the life he has with the Maternal Grandparents. While she recommends the move, Ms S also believes there are risks with a move away from his present situation.[66]
[65] At page 27 of 11 August 2014 transcript of proceedings
[66] A page 42 of 11 August 2014 transcript of proceedings
The Maternal Grandmother and maternal Aunt [Ms J] believe [X] would be devastated if forced to live on the (location omitted). As already noted, [X] found it very hard to face his Aunt [Ms J] moving ten minutes away fearing she was leaving him, as his mother did. The Maternal Grandparents say that [X] counts the days until he is coming home when staying with his Father for school holidays.
The Maternal Grandmother says they have worked hard to keep [X]’s life “the same” as possible after the trauma of losing his mother, and he now seems settled and more emotionally secure with them. When he started living with them, he had a nervous twitch of eye blinking which now only resurfaces when he is nervous. He loves his school, talks about running for school captain in Year 6, is achieving well academically and socially. [X] has played (omitted) since the age of 6, and has twice weekly training. He does (omitted) close to the Maternal Grandparents’ home. He has his (omitted) matches on Saturdays and his uncles and aunts and the Maternal Grandparents watch him play. The Maternal Grandfather has been involved in [X]’s (omitted) training, games days and in sponsoring the team.
[X] sometimes needs to talk about his mother, and the Maternal Grandparents and his mother’s siblings facilitate him doing so. While the Maternal Grandmother makes it clear she would support [X] if he had to make the move, and would hate to burden him with the responsibility of looking after her feelings, she fears (as does [X]’s aunt Ms J) that a major change for [X] now would significantly disrupt his excellent progress since his mother’s death, and seriously unsettle him.
Ms S agrees that it is highly likely that [X] will be very distressed if the Court orders him to live with his Father[67] and that there are real risks facing him if he moves away from his present situation.[68] In her view, he should be told about the move in a counselling environment with all family members involved, and says he would need ongoing counselling to adjust. Ms S says [X] would need the fulsome support of the maternal family to cope with the change and without their support, he would probably not cope emotionally. She says “it is imperative that [X] believes that his grandparents will cope emotionally with him leaving.”[69] The Father agreed with Ms S that the greatest obstacle to [X] adjusting to living with him would be his concerns about how the maternal side of the family would cope without him.[70] [X]’s aunt Ms J and aunt Ms K could not see how the household would function without [X].[71]
[67] At page 8 of 11 August 2014 transcript of proceedings
[68] At page 42 of the 11 August 2014 transcript of proceedings
[69] At page 58 of Exhibit 1
[70] At paragraph 30 of Exhibit 1
[71] At paragraph 33 of Exhibit 1
I am not persuaded that Ms S’s opinion that the maternal family would not support [X] moving to the (location omitted) is supported by the evidence. I interpret the comments made by Ms J and Ms K as a reflection of how much [X] is loved and wanted, and how much focus there has been on his well-being since his mother’s death. In my view, the Maternal Grandparents would do for [X] whatever they are called upon to do, however heartbreaking for them personally, to maximise [X]’s well-being.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This factor applies to parents only, but I find it convenient to address these practical difficulties here, rather than under section 60CC(3)(m).
I agree with Ms S that the distance between the Father’s home on the (location omitted) and the Maternal Grandparents’ home in Sydney, poses considerable logistical and practical difficulties for [X]. Given the geographical distance of approximately 2 hours, [X] cannot share his time between them, enjoy his friends from both homes, and participate in team sports week to week supported by his Father and his maternal family.
These are matters to which I have regard.
The capacity of each of the child’s parents and any other person (including grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
[X] has regularly spent time with the Father since his parents separated, initially in Sydney and later on the (location omitted) after the Father’s move there in mid-2012. The Father engages [X] in a range of activities on the (location omitted) including (omitted), and playing with his cousins. [X] enjoys sport and the Father enrolled him in (omitted) in November 2013. The Father has travelled to Sydney regularly to watch [X] play (omitted), particularly since [X]’s mother’s death. He has taken [X] on holidays. The Father impressed Ms S as “articulate, cooperative and concerned that [X] is not living with him” and she assesses him as a man of “strong mental health and character”, “an intelligent father who has made decisions and some personal sacrifice in the interests of [X]’s emotional well-being”.[72] The Father’s parents told Ms S that he is an excellent father and empathic towards [X] given the loss of his mother. While the Maternal Grandparents are critical of the Father in some respects, they also acknowledge that he loves [X] and looks after him well when he is in his care.
[72] At paragraph 51 of Exhibit 1
However, questions were raised by the Maternal Grandparents about the Father’s capacity to support [X]’s relationships with them if [X] relocated to the (location omitted), and also questioned his capacity to meet [X]’s emotional needs. In relation to the latter, I have regard to the following:
a)On the morning of [X]’s mother’s death, the Maternal Grandfather rang the Father from the hospital at 6.30a.m to tell him [X]’s mother was “not good” and they had turned off her life support. The Father was therefore aware that [X]’s mother was dying and time was of the essence. The Father chose not to wake [X] to speak to his mother as requested by Mr Minett, because [X] had been very late to bed and had been very upset. An hour later, Mr Minett called again and this time the Father did wake [X] and he spoke to his mother for the last time. She died within the hour. A few days later, the Father attended Ms Branson’s funeral and spent much of the wake in an area [X] could not access. The Father was intoxicated by the time he left, and saw very little of [X] at his mother’s wake.
b)On the Father’s evidence, [X] was very distressed at the time of his mother’s death. The Father was aware that [X] had been spending substantial time in the care of his Maternal Grandparents from the time his mother became ill in late 2009, and that [X] had been living with them almost full time (with his mother) in the two years prior to his mother’s death. The Father was aware that [X]’s home at that time was the home of his Maternal Grandparents. Within 3 weeks of his mother’s death, and without the opportunity for discussion with his Maternal Grandparents, the Father told [X] he was moving to the (location omitted), kept him away from his familiar teachers and friends in the last few days of his school year, took him to an orientation day for a new school and arranged no time or contact for him with his maternal family on Christmas Day. The Maternal Grandparents and Ms J say that the Father’s decision to keep [X] away from his home for many days after the agreed return date in December 2012 caused [X] to lose confidence in going with his Father, fearing he would not be returned. Their evidence is corroborated by the notes of [X]’s school counsellor in March 2013 which state that [X] was having difficulties with some of his Father’s behaviours.
I find that these facts highlight the Father’s lack of insight into [X]’s emotional needs at the time of and in the period following his mother’s death. However, to his credit, the Father acknowledged he was wrong once given advice early in the new year, and then supported [X] remaining with his Maternal Grandparents in 2013, which I accept would have been hard for him, as Ms R suggests. I find that the Father’s gift to [X] of a framed collage of photographs of himself and his mother to hang in his room demonstrated sensitivity to [X], and that he recognises [X]’s ongoing need to talk about his mother from time to time. I find the Father’s agreement during the hearing to permit [X] to travel overseas to (omitted) for 14 days with the Maternal Grandparents during the coming Christmas school holidays to be a child focussed decision. I also accept Ms S’s evidence that it was significant that [X] felt able to tell his Father that he wanted to live with his grandparents. While I find the Father has shown poor parenting judgment at times, I do not conclude that the Father lacks the capacity to meet [X]’s emotional needs.
Ms S said [X]’s adjustment to the change would require the full support of his Maternal Grandparents because if he sensed they were upset, he would not manage the change. She believes the Maternal Grandparents would experience [X] living with the Father “as further loss and an enormous emotional challenge.”[93] While I agree with this opinion, I have not concluded that the maternal family would not support [X] moving to the (location omitted) if that is what this Court ordered. I have found that their focus is very much on [X]’s happiness and wellbeing and they would do all they could to help him adjust to such a transition. I accepted the Maternal Grandmother’s clear direct evidence that she would support [X] and help her family support [X] if the Court determined [X] should relocate.
[93] At paragraph 50 of Exhibit 1
[X]’s life is stable, settled and happy in his Maternal Grandparents’ home. He has excellent quality care and is surrounded by a loving family, who have successfully supported him to adjust to a life without his mother, by keeping his day to day routine as similar as possible to the life he led before his mother’s death. If [X] remains there, he will continue to enjoy strong loving relationships with emotionally attuned, warm and capable carers surrounded by his mother’s siblings, including Ms J to whom [X] has a special bond, with a strong sense of his mother around him. He will attend the school he has always attended, continue to enjoy the same friendships, including his special friend [J], and engage in the same (omitted) activities he enjoys. The Maternal Grandmother will be available to care for him before and after school and will continue her involvement in the school community. He will have regular weekend and holiday time with the Father, as he has done since he was 3 years of age when his parents separated.
The Father offers [X] a life on the (location omitted) in which he would have ready access to the beach and spend time with his Father day to day. He would have the benefit of his Father in his life to a greater extent than presently and over a broader range of activities. [X] would attend a new school, probably a small Christian school close to the Father’s home. His paternal grandparents would wake him in the mornings, prepare him for school and take him to school each day. They would also collect him from school and look after him until his Father was home from work, or take him to any after school activities. The Father’s return home would depend on his working hours on any particular day, and whether or not he was going to the gym. He may sometimes be able to collect [X] from school. The Father would, potentially, have greater involvement in [X]’s schooling day to day, his extra-curricular activities and with his friends, with the limitations his working hours impose.
I agree with Ms S that [X]’s relationship with the Father is critical to his healthy development both short and long term. Given that Ms S’s key proposition is that [X] is at risk of losing his relationship with his Father over time if he remains in the care of his Maternal Grandparents, I have carefully considered the evidence to support this proposition. I have found that [X] has a solid loving relationship with the Father with whom he has spent regular time all his life. This relationship has survived his parents’ separation when he was 3 years old, his parents’ divorce, his mother’s long illness, his mother’s death, his Father’s move to the (location omitted), a breakdown in the relationship between his Father and his Grandparents and this litigation. I find no sign of deterioration in the relationship. In fact, as highlighted by Ms S, [X] was able to tell his Father shortly before this hearing, that he had thought about where he wanted to live and had decided he would stay with his Maternal Grandparents, an indication of the strength of his relationship with the Father. I agree with Ms S that [X]’s needs and priorities are likely to change during adolescence, but I find no basis in the evidence for Ms S’s prediction that the Father may not sustain his motivation to maintain the relationship into the future, or for her prediction that [X] will choose his friends over his Father and lose his motivation to spend time with him, given the travel involved.
While I agree that [X]’s relationship with the Father must be protected, I do not accept Ms S’s proposition that [X]’s relationship with the Father should necessarily be prioritised over his relationship with his Maternal Grandparents, despite its significance to his future welfare. The Court must determine [X]’s best interests by weighing its findings in reference to the factors set out in the statute and there is nothing in the statute which provides for a child’s relationship with a parent to be prioritised. In Yamada & Cain[94], the Full Court rejected an argument by the Mother that the trial judge erred in not giving the fact of parenthood primacy in making an Order for the Child to live with the paternal great aunt, and held that[95]:
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of [the Child] but parenting – and the quality of that parenting….
[94] [2013] FamCAFC 64
[95] Ibid at paragraph 27
In D & F[96], a case involving competing live with applications between the paternal grandmother and the natural mother, the Full Court, quoting the Trial Judge, said[97]:
... the advantages to the child of living with a parent must be balanced against the advantages of living with a non-parent who is in a better position to provide particular care in relation to existing and possible future emotional problems.
[96] [2001] FamCA 382 (unreported)
[97] At paragraph 2
The Maternal Grandparents have proven parenting capacity, have followed court orders, and have successfully nurtured and supported their grandson over the 2 years since his mother’s death. They have demonstrated their capacity and their commitment to [X] who is now settled and thriving. I agree with their counsel’s submission that they have demonstrated extraordinary strength and resilience in the face of the tragic loss of their daughter. I have not found that the Maternal Grandmother is trying to take over as [X]’s mother, but rather that she has taken on a maternal role in his mother’s absence, a role [X] has needed and will continue to need.
The Father’s counsel highlights the significant risks facing [X] and raised by Ms S if [X] does not relocate to the (location omitted) to live with the Father. In addition to her concerns about the “thinning” of the relationship over time, counsel refers to the Maternal Grandparents’ negative attitude to the Father, and to the probability that they will not actively promote the relationship, as they will need to do, to ensure its continuing strength. As already noted, I do not agree with this submission. I have found that the Maternal Grandparents do recognise the importance to [X] of his Father’s active role in his life, and for that reason they have always complied strictly with the Court’s orders in relation to [X]’s time and communication with him, despite their reservations about some of his actions. The Maternal Grandmother now acknowledges the damage the animosity and tension has been causing [X] and her need to actively engage in resolving their differences. The Maternal Grandfather said “to know your father is a hugely important thing.”[98] He understands that he needs to encourage [X]’s relationship with his Father and never speak ill of him.[99]
[98] At page 119 of 12 August 2014 transcript of proceedings
[99] Ibid at page 120
I agree with counsel for the Maternal Grandparents that the Court is faced with the known risk of removing [X] from his stable secure home, his school and his friends, against the unknown risk of how he will adjust to a permanent move to a new home, new school and new friends. I agree with counsel that Ms S recommends [X]’s relationship with his Father be prioritised on the basis, in part, of assumptions which may or may not come to fruition. Ms S was not aware there is a level of uncertainty about the Father’s longer term plans in relation to his working hours and his living arrangements, which may not be with the paternal grandparents by the time [X] is facing the risks of adolescence.
The Independent Children’s Lawyer did not seriously challenge the expert’s view, though acknowledged that it was a finely balanced case. In submissions, the Independent Children’s Lawyer was critical of aspects of each party’s behaviour but overall submitted there was very little to criticise in any of them. The Independent Children’s Lawyer adopted Ms S’s view that priority should be given to [X]’s relationship with his surviving parent but without identifying how her consideration of all the section 60CC factors leads to that outcome.
The Father has not always held the view that [X] should live with him. He supported the arrangement reached with [X]’s mother after separation; he also supported [X] remaining with the Maternal Grandparents when [X]’s mother became seriously ill (even though he was then living close by); he told the Maternal Grandparents in late 2011 when Ms Branson faced life threatening surgery, that [X] should remain living with them if his mother died. During the Mother’s illness, the Father did not seek additional time with [X], despite the maternal family’s request that he do so. He then relocated to the (location omitted) when [X] needed him close by. I have found that despite his many strengths, the Father has at times demonstrated a poor attitude to his responsibilities as a parent and failed to give priority to [X]’s needs ahead of his own. I know little about the Father’s parents who would play a substantial role in [X]’s care week to week, especially as the paternal grandmother was not a witness in the proceedings. It was of some concern to me that the paternal grandfather expressed reluctance to welcome the maternal grandparents into their home given the maternal grandparents’ importance to [X].
I am not persuaded that Ms S’s report has made a coherent and compelling case for [X] to be relocated. Ms S raises valuable issues in favour of relocating [X] including the possible “thinning” of his relationship with the Father over time, his ease and happiness with both the Father and the paternal grandparents and his sporting activity with (omitted) on the (location omitted). Ms S also raises important issues relating to the maintenance of the status quo: these include [X]’s sensitivity to the happiness and well-being of the Maternal Grandparents and [X]’s reported assessment that his Father would be okay with this situation, but the Maternal Grandparents would not.
Coming to my decision, I have at all times put [X]’s needs above all others. The happiness or otherwise of various parties is only important in as far as it affects [X]’s emotional welfare. The issue of the grief in the Minett family highlighted in Ms S’s report is only relevant in an assessment of [X]’s sense of obligation towards the Minett’s. In rejecting Ms S’s primary recommendations I have drawn on a wider framework than was available to Ms S. This included the tested evidence of all the parties, with the absence of the paternal grandmother. My overview following this gave me broader perspective to Ms S’s evaluation.
I agree with Ms S and the Maternal Grandmother[100] that [X] would find a move at this stage extremely distressing. [X] has expressed a view repeatedly and consistently to his Grandparents, his Aunt [Ms J], his counsellor, Ms S and his Father that he wants to stay with his “Nan and Pop” and at his present school. As already noted, I have given his views considerable weight.
[100] At page 84 of the 12 August 2014 transcript of proceedings
On a weighing of all my findings, I have decided it is in [X]’s best interests to remain with his Maternal Grandparents. Given I am satisfied the Maternal Grandparents will from now on ensure proper consultation with the Father on all matters significant to his welfare, the parties will have equal shared responsibility for all major decisions concerning [X]. However, as proposed by the Independent Children’s Lawyer, I have also made specific orders in relation to the sharing of information about [X]’s education and health. The Maternal Grandparents will provide the Father with regular updates on his welfare as the Father has wanted in the past. The Maternal Grandparents will be required to email the Father each week about [X]’s activities and general well-being so the Father is not reliant on reports from [X].
However, that does not mean the situation will not change in the future. It is imperative for [X]’s well-being that all the parties remain alive to the possibility that [X] might want a change in his living arrangements when he is older and his needs change. I am in no doubt that all the parties in this case are committed to what is best for [X]. It is therefore imperative that the parties work through their differences to achieve a return to the more amicable relationship they enjoyed before [X]’s mother’s death. I am persuaded that these parties, having read and heard the evidence of Ms S, now recognise the emotional burden this ongoing acrimony between them is imposing on [X], and that they are all genuinely motivated to improve their relationships and lift this burden. I am satisfied that the Maternal Grandparents will actively promote [X]’s ongoing relationship with his Father which is essential to his future well-being.
However, it is unlikely anything will change dramatically overnight. To minimise the risk of further litigation, I therefore agree with the Independent Children’s Lawyer that the orders should be unequivocal as to [X]’s time with each of them. The Court has also made provision for telephone communication, information exchange between the parties, and for specific times for [X] to spend with each party in holidays and on special days.
Given equal time or substantial and significant time between [X] and his Father is not practicable, I have given considerable thought to [X]’s weekend arrangements with the Father and what arrangement will best promote his welfare. The Maternal Grandparents sought an order for [X] to spend three out of every four weekends with the Father as has occurred in the past. The Father said that if [X] were living with the Maternal Grandparents, he would expect the current situation to continue. However, [X] has complained about the number of weekends he travels to the (location omitted) and told Ms S and his school counsellor he would like to reduce the frequency. Ms S has also raised concerns about the sustainability of the travel over the long term. I have decided that [X] will spend two out of three weekends in every 3 week cycle with his Father because I am satisfied such an arrangement will be workable for [X] in the long term. But mindful of [X]’s need for as much time as possible with his Father, I have made orders permitting the Father to spend time with [X] after sport on his non-contact weekend so [X] can spend time with the Father every weekend of the school term if the Father can manage it. The Father will be free to attend all events involving [X] at the school and out of school and the Maternal Grandparents have been ordered to notify the Father of all such events.
In relation to school holidays, the Maternal Grandparents proposed that [X] spend the majority of two short holiday periods as well as half the other short holidays with the Father and 3 weeks in the Christmas holidays. However, the Father has only 4 weeks holiday a year, and said he depends on his sister (who has children of similar age to [X]) to have [X] when he is on holidays and the Father is working. I have therefore decided that [X] will spend 8 nights in each short term school holidays with the Father, including the first two weekends of each holiday period when the Father is not likely to be working, when he can spend the weekdays with his cousins and see the Father after work. In the event the Father wishes to take [X] away on a holiday, he will have the option of extending his holiday time by two nights upon giving notice to the Maternal Grandparents. [X] will have a full 3 weeks over Christmas, the Father’s Day weekend, as well as time on special days with his Father.
[X] will have unlimited telephone communication with the Father.
There was considerable evidence about what should occur on Christmas Day. After [X]’s parents separated, [X] shared Christmas Day with changeover at 3p.m with lunch and dinner with each parent in alternating years. The Father says neither he nor [X]’s mother liked [X] having a changeover on Christmas Day[101], but nevertheless they had agreed to that arrangement and persisted with it. I agree with the Father that Christmas Day should not be a changeover day, and have decided [X] will spend alternate Christmas Days with each family, starting with the Father in 2014 when changeover will occur on Christmas Eve. However, if the parties prefer to have changeover on Christmas Day, it will be open for them to do so. I have also given the Father the option of travelling to Sydney on Christmas morning to spend at least two hours with [X].
[101] At page 32 of 26 August 2014 transcript of proceedings
Changeover will continue to occur at the (omitted) carpark unless otherwise agreed, but in the event either party is travelling closer to the other party’s residence at the time of changeover, the parties will arrange a more convenient changeover venue.
The parties have agreed to orders providing for [X] to travel to (omitted) in January 2015. Each party will be free to travel overseas with [X] upon giving notice to the other party and detailed information in advance of any proposed travel. The Father will hold [X]’s passport once he has returned from the (country omitted) in January 2015 and will thereafter hold [X]’s passport and keep [X]’s passport current.
I have made orders in relation to various restraints as agreed by the parties.
Ms S recommended that the Maternal Grandparents engage in counselling to help them support [X] to move to live with the Father. However, given the Court’s determination, Ms S’s recommendation does not apply. Nevertheless, I have decided that it will benefit [X] for the Maternal Grandparents to engage in counselling to address the issues of concern raised about them by Ms S. They will provide a copy of Ms S’s report and a copy of these Orders and Reasons for Judgment to the counsellor. The Independent Children’s Lawyer will remain in the matter until the Maternal Grandparents have completed at least 6 sessions of counselling and have provided verification that they have done so.
Ms S said that if [X] were relocating to the (location omitted) he would need counselling, but not necessarily if he were living with the Maternal Grandparents. I have decided that if either the Maternal Grandparents or the Father believe [X] would benefit from counselling at any time, they can make those arrangements between them. I am not persuaded an Order at this point is in his best interests.
Given the parties did not attempt to mediate this dispute before proceedings were initiated, I have included an Order to ensure the parties endeavour to mediate any future disputes before resorting to further litigation.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X].
I certify that the preceding one hundred and sixty four (164) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Associate:
Date: 28 October 2014
Key Legal Topics
Areas of Law
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Family Law
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Injunction
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