MURPHY and ADAMS

[2020] FCWA 224

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: MURPHY and ADAMS [2020] FCWA 224

CORAM: DUNCANSON J

HEARD: 22, 23 SEPTEMBER 2020

DELIVERED : 21 DECEMBER 2020

FILE NO/S: PTW 2175 of 2017

BETWEEN: MS MURPHY

Applicant

AND

MS ADAMS

Respondent

Catchwords:

CHILDREN – Where the child lives with the mother – Where the father of the child is deceased – Application by the paternal grandmother for orders that the child spend time with her – Impact of orders upon the mother – Best interests of the child

Legislation:

Family Court Act 1997 (WA) s 66C, s 70A
Family Law Act 1975 (Cth) s 60CC

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr F Robertson
Respondent	:	Ms T

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Bannerman Solicitors

Case(s) referred to in decision(s):

Donnell & Dovey (2010) FLC 93-428

Yamada & Cain [2013] FamCAFC 64

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murphy & Adams has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1[G] is just four years of age. G lives with the mother, [Ms Adams]. The father, [Mr A] tragically died before G was born. G's paternal grandmother [Ms Murphy] (to whom I shall refer as "the grandmother"), wants G to spend time with her.

2The primary issue in dispute between the parties is the amount of time G should spend with the grandmother.

THE ORDERS SOUGHT

3The orders sought by the grandmother are contained in a minute within her papers for the judge filed 17 September 2020. The grandmother seeks orders providing that G spends time with her on the last Sunday of each even month from 9.00 am to 5.00 pm and the last weekend of each odd month from 9.00 am Saturday until 5.00 pm Sunday.

4The grandmother seeks orders providing that G spends time with her on special occasions. The grandmother proposes that commencing January 2021, G spends overnight time with her on a gradually increasing basis such that by 2024 she spends up to six nights with her in the summer holidays.

5The grandmother proposes that handover occur either at the mother's home or at each party's home with travel shared.

6The grandmother proposes orders for electronic communication, the provision of information, a non-denigration order and she seeks permission to attend G's schooling, extracurricular and sporting events.

7The orders sought by the mother are contained in a minute of proposed final orders filed 7 September 2020. The mother proposes that G lives with her. She proposes that G spends time with the grandmother on the last Sunday of each month from 9.00 am to 12.00 noon, with handover to occur at the mother's home, unless otherwise agreed. The mother proposes that 14 days' notice be given in the event a change is required to this arrangement except in the case of emergency, and the parties use their reasonable endeavours to agree a further visit in place of the missed contact. She proposes that the grandmother be permitted to attend events in G's life that a grandparent would usually be permitted to attend provided she gives seven days' notice of her intention to attend.

8The mother makes proposals for electronic communication via WhatsApp. She seeks various restraints including a non-denigration order and an order restraining the grandmother from smoking cigarettes while G is in her care.

FAMILY BACKGROUND

9The grandmother was born [in] 1963 and is 57 years of age. She is a [receptionist]. The grandmother lives in [Suburb A], south of [Suburb A]. The paternal grandfather, [Mr B] is her former husband.

10The mother was born [in] 1986. She is 34 years of age. She is a [hairdresser]. The mother lives in [Suburb K] with G.

11Mr A was 29 years of age when he passed away [in] 2016.

12The mother and father had commenced their relationship in 2008. At the time of the father's passing the mother was about four months pregnant.

13G was born [in] 2016.

THE SHORT HISTORY

14Prior to the father's death, the mother and grandmother enjoyed a good relationship. After the father's death the mother sought privacy and deposed she "needed space". She found the grandmother to be intrusive. The grandmother tried to maintain a relationship with the mother and deposed she respected the mother's feelings. Both parties mourned the loss of the father.

15When G was born the mother did not wish extended family or friends to visit the hospital. The grandmother attended the hospital, upset that others were able to see G and she was not.

16On 3 December 2016 the grandmother, her son and daughter-in-law attended the mother's home unannounced. The mother's brother told them they were not welcome at the mother's home. The parties disagree as to whether that included the grandmother or was directed only to the father's brother and sister-in-law.

17The grandmother subsequently commenced proceedings and filed her initiating application on 30 March 2017. The mother was angry and upset about this.

18On 15 June 2017, the parties were ordered to attend a case assessment conference which took place on 18 August 2017. The family consultant reported that no risk issues were identified and considered mediation to be appropriate.

19The parties disagree about the circumstances of an opportunity given to the grandmother to spend time with G immediately after the case assessment conference.

20In October 2017, the mother arranged for a friend to take G to visit the father's [relative] [Ms C], who was in hospital and whose death was imminent. The mother did not inform the grandmother about this. The grandmother deposed she had no idea who the lady and the baby were until the mother's friend introduced herself and G. The grandmother was shocked but delighted that G was able to meet Ms C. The mother deposed that her friend told her that G's mother and the grandmother swore at the friend and said they did not want them there. The grandmother denied this and deposed that they embraced G's presence.

21The parties communicated by text message in late 2017 with attempts to arrange occasions upon which G would spend time with the grandmother. Their correspondence was difficult. The mother was anxious and concerned about the emotional and financial impact of the court proceedings. The grandmother felt no progress was being made in relation to the visits.

22The mother had a birthday party for G with her family, although the paternal grandfather was invited. One of the father's friends provided the mother with a [social media] post which the grandmother had made [in late] 2017 which referred to G's first birthday and read as follows:

[omitted]

23The post upset the mother who felt it was a direct criticism of and threat to her. The mother was seeing a psychologist to deal with her grief, but her sessions subsequently included discussion about the court proceedings and the anxiety she was feeling about that.

24The mother deposed she had made attempts to organise contact between G and the grandmother. The mother did not want defined orders. The grandmother did.

25On 8 December 2017, it was ordered that G spend time with the grandmother for two hours on 16 and 24 December 2017 in Perth and on the last Sunday of every month from 3.30 pm until 5.30 pm in Suburb A, at a public neutral venue. It was also ordered that time be spent as agreed between the parties. The parties were at liberty to vary the orders provided the variations were agreed in writing.

26G spent time with the grandmother once a month pursuant to the orders. The grandmother deposed that the visits went well and she described happy times. The grandmother deposed that she and the mother were able to be civil and pleasant to each other. For the most part the mother's evidence was that there were few difficulties.

27G was to spend time with the grandmother on 29 April 2018, but the mother was going away with G and proposed that G spend time with her on 8 April 2018 instead. The grandmother's solicitor wrote to the mother declining the alternative date and requested evidence of G's travel dates which the mother did not provide as she did not consider it necessary to do so. The mother travelled overseas with G.

28With respect to the missed April visit, the grandmother filed a contravention application on 25 June 2018. The parties were to attend a case assessment conference in respect of the contravention on 16 October 2018, but by consent the conference was vacated and the application was resolved.

29G continued to spend time with the grandmother. The mother had some concerns, for example that the grandmother did not tell her when she would be accompanied to the visits by someone else. The mother became anxious when G and the grandmother wandered away from her. However the mother deposed that overall the visits progressed well and G had become comfortable with the grandmother and seemed to enjoy her time with her. The mother also deposed she found the grandmother's demands for time with G and her refusal to be flexible with the arrangements to be stressful.

30The mother deposed that in August 2018 she agreed in principle to the grandmother's proposal to attend family therapy. However it was her understanding that after the grandmother had filed her trial documents she no longer wanted to attend. In April 2019, when the grandmother proposed family therapy, the mother then refused.

31G continued to spend time with the grandmother between September 2018 and November 2019. The arrangements were not without difficulties. The parties communicated by text message. The grandmother deposed it had been difficult to communicate with the mother and there were times when she would not reply or took a long time to reply.

32In [late] 2018 the grandmother had a birthday party for G about which the mother was not aware. About 30 people attended. The mother deposed to feeling like an outsider at her own daughter's birthday. The mother took G home when she became tired. She deposed that when she did so the grandmother's sister told her she was making G cry and that she was unfair and made no effort. The mother did not take G's presents with her as she did not have room in her car to take them all, including a bicycle. The grandmother's sister deposed that G was excited at the party and with her gifts, including the bike. She deposed the mother refused to take the gifts and that the few hours had been spoiled by the sound of G being distraught as she left her toys. The mother deposed to feeling very "downtrodden" after this incident.

33The mother sent a text message to the grandmother at 9.43 am on 21 April 2019 inviting her to the family barbeque at 3.00 pm that day and she asked the grandmother to let her know if she could make it. In evidence the mother said she did not get a response by noon and she did not check her phone again. G went to sleep that evening and the mother said she did not see the grandmother's message until the following morning.

34The grandmother had replied at 1.22 pm saying she would leave Suburb A then and should be there by 3.00 pm. At 3.37 pm the grandmother again messaged the mother saying that she had been waiting for 40 minutes, but the mother was nowhere to be seen. She asked what was going on and if everything was okay. The following morning she again messaged the mother and asked if everything was okay.

35The mother then replied saying everything was fine, and that when she did not hear back from the grandmother the morning before she did not think she would make it. In her message the mother said this was an honest mistake and asked if they would meet the following Sunday.

36The proceedings were listed for trial on 25 June 2019. On 26 June 2019 the parties attended a child dispute conference, which was a late intervention mediation to assist them in reaching agreement.

37The grandmother was of the view that G was of an age where she could spend longer periods of time with her away from her mother. She referred to her hope that G spends time with her at her home where she can manage activities and promote relationships with extended family which she is unable to do while G spends time with her in Perth in the presence of the mother.

38The mother was of the view that she promotes G spending time with the grandmother, however she considered G's age and developmental factors need to be observed in reaching an agreement which meets her ongoing needs. The mother was of the view that an arrangement whereby G spends time alone with the grandmother was a significant shift for her and that the then current arrangements should remain in place before extending time in order for trust and communication to develop between the parties and to reflect G's development.

39Orders by consent were made on 26 June 2019 providing that G spend time with the grandmother on the last Sunday of each month from 9.00 am to 12.00 noon with the first three visits in June, July and September being in Perth and subsequently the visits on an alternating basis between Suburb A and Perth. It was also agreed G would spend time with the grandmother from 9.00 am until 12.00 noon [for two visits in late 2019] [in] Suburb A in place of the usual time.

40The orders provided that when time occurred in Perth, the grandmother was to travel to Perth and collect and return G to and from the mother's residence and when the time occurred in Suburb A the mother was to deliver and collect G to and from the grandmother's residence.

41The parties were ordered to attend a further mediation conference on 4 December 2019 and a finalisation order was made to take effect if the parties had not relisted the proceedings by 31 January 2020.

42G spent time with the grandmother in the second half of 2019, but the arrangements were not without difficulty.

43In July 2019 the mother cancelled the September visit informing the grandmother that she would be away for the September long weekend and she offered makeup time on 5 October 2019. The grandmother responded requesting a Sunday visit in September as three months or ten weeks between visits was too long. The parties' respective solicitors corresponded and the parties communicated by text message. The mother invited the grandmother for dinner, but she was unable to attend. She looked forward to seeing G on the Sunday. The mother replied that she and G would be out bush on the Sunday. The grandmother replied urging her to reconsider as it had been so long since she had seen G. The visit did not occur on the Sunday, but instead G spent one hour with the grandmother on 13 October at [Location A].

44The mother deposed the messages upset her. She deposed she felt like a bad mother with no freedom to make decisions and do what she wanted with her daughter. The grandmother deposed to the small amount of time she had been able to spend with G.

45[In late] 2019 G spent time with the grandmother who arranged to have guests in her home to celebrate G's birthday the following day. The mother deposed no one spoke to her when she was there settling G.

46The mother cancelled the late December visits as she was to be overseas. G spent time with the grandmother on 15 December but no makeup time was given for a later visit.

47The mother deposed she felt bullied and anxious. The grandmother deposed they communicated well at handover.

48In March 2020 the mother informed the grandmother that she was self-isolating with G due to COVID-19 and therefore G would not be available to spend time with her, but she proposed a makeup Skype video call. In April 2020 the grandmother's solicitors wrote to the mother’ solicitors requesting that future contact occur as planned and requesting a progression of G's time with her from 9.00 am to 5.00 pm on the last Sunday of every month. The mother was extremely frustrated to receive this letter. This was a difficult time for the mother who described the decision that she made on her own to take G out of school as "horrible".

49G did not spend time with the grandmother in person between 16 February and 28 June 2020. The grandmother referred to the mother's lack of communication. The mother referred to finding the messages upsetting and distressing. She deposed she felt bullied and sometimes did not message back.

50Since June 2020 G has continued to spend time with the grandmother pursuant to the orders.

51In cross-examination the mother was asked if G would spend time with the grandmother pursuant to the orders on the last Sunday of September, which was the long weekend after the conclusion of the trial. The mother said she would not as she had booked a holiday to [Town B] with G, leaving Sunday morning. The mother conceded she had not provided makeup time.

52The mother suggested the grandmother could attend the [Suburb D] show with G and their friends on the Saturday afternoon, however the grandmother wanted to spend one on one time with G. The mother said she would return from [Town B] on Saturday 3 October, but G could not spend time with the grandmother the following Sunday as she had planned to go away again to [Town C] that day. She would not delay her departure until the Monday.

THE PARTIES AND THEIR WITNESSES

The grandmother

53I consider the grandmother gave truthful evidence which was reliable. For the most part her correspondence with the mother either directly or indirectly has been careful and moderate. It was not on the occasion of her social media post, but I consider that arose out of frustration and disappointment at G not spending time with her.

54The mother's position was that the grandmother commenced proceedings very quickly after G's birth, although the grandmother deposed that it was for her a very emotional decision to put the matter in the Family Court. The grandmother's position is that the visits with G have gone well, G has enjoyed them and is openly affectionate towards her. The grandmother is admittedly frustrated when she is not able to see G and she explained that was the reason she lodged a contravention application.

55The grandmother acknowledged that she is aware the mother does not wish to be bound by court orders and it would be ideal to have an unrestrained working relationship. She deposed that a flexible approach has not worked in the past and she believes if no structure is in place the mother would not make time for G to see her.

56The grandmother deposed that the mother is and always will be G's primary carer and she merely wishes to spend regular time with G. She is of the view her relationship with the mother is at the heart of the problem. She deposed to being stonewalled and unable to be part of G's life and hurt by the mother's actions.

57The grandmother deposed she is respectful of the mother's lifestyle choices and would like to be of assistance to the mother. However she also said agreements with the mother have not been followed and she would therefore follow through with the Family Court.

58The grandmother said she has a wonderful relationship with G who is a wonderful little girl who likes spending time with her. She also said she is very proud of the mother and the job she is doing with G.

59I accept that the grandmother was sincere when she said the court proceedings had also had an impact on her and that they were regrettable. If there had been better communication between the parties she said things would not have got to this point.

60The grandmother said, understandably in my view, that she became concerned when she did not get replies to text messages from the mother. She said the mother was a good mother, but their relationship is estranged and that these court proceedings have not helped. She said it would be "absolutely fantastic" if they could work together without court. G is her only granddaughter and she said she has a lot to offer her.

The mother

61The mother also gave truthful evidence which was mostly reliable. The only exception to that was her evidence in relation to the sale of her property in Suburb A in respect of which I found her to be rather evasive.

62The mother’s position in relation to G spending time with the grandmother at the long weekend in September was somewhat unsatisfactory. The mother had cancelled the visit and when pressed to try and make alternative arrangements appeared to make little effort to accommodate them.

63I accept that the mother was angry and upset when the court proceedings commenced and particularly upset when she read the social media post, which she said was a direct criticism of her and a threat to her. The court proceedings, the text messages and correspondence between lawyers have made the mother extremely anxious. She was receiving counselling after the father’s death, but the counselling was extended to providing help in connection with her anxiety arising from the proceedings.

64The mother's position is that in the past she has travelled extensively and she wants to retain that freedom to travel when she wishes with G.

65The mother has been diagnosed with traumatic stress and symptoms of depression and anxiety. She is severely anxious when she thinks of G spending time away from her. The mother perceives the grandmother's requests for time as demands and she deposed the court proceedings cause her to question and undermine her own abilities as a mother.

66The mother deposed she wants the grandmother to have a strong relationship with G and is of the view that this can be achieved by G spending time once a month as proposed by her. In her recent evidence, the mother's position is that the travel is onerous, she remains anxious about G and she feels awkward and uncomfortable at handovers.

67The mother deposed she continues to find communication with the grandmother extremely difficult and mentally draining. She deposed that when the grandmother asks if she is okay, she sees this as the grandmother saying she cannot properly look after G and she feels bullied by the text messages and exhausted. The mother deposed it impacts on her work, her sleep and the time she spends with G.

68These court proceedings have caused the mother to lose trust in the grandmother. She is worried about the expense and the effect on her mental health of ongoing proceedings.

69In answer to my questions the mother showed insight. She said G's relationship with the grandmother is very beneficial to G and she enjoys the time. The mother explained the proceedings have been totally consuming for her and it will take time. The mother also explained she is alone in making decisions for G. She feels she has provided well for G so far and believes she can continue to make the right choices for her.

Ms D

70[Ms D] is a psychologist. She has 27 years experience and focuses on providing psychological services to clients and families, specialising in a range of mental health concerns and developmental and educational psychology. The mother was referred to her for psychological counselling in November 2016. The mother has attended on Ms D for face to face appointments and they have had phone consultations and text message communication. Ms D said they have spoken once or twice in 2019 and have engaged in text messages and phone contact this year.

71In her sworn evidence dated November 2018 Ms D deposed she had diagnosed the mother with traumatic shock and symptoms of depression and anxiety in line with complicated grief which occurs when the grieving process is more difficult and is taking longer to resolve. She deposed that alongside normal grief reactions, the mother exhibited symptoms of heightened anxiety and panic which are associated with traumatic grief.

72Ms D deposed she witnessed the Court proceedings exacerbating the mother's distress at times. Ms D deposed the mother's anxiety and stress was well managed and described the mother as:

"a strong, independent and private person with high resilience who is coping with the traumatic loss of her partner and the birth of her daughter shortly afterwards with dignity and strength.…".

73Ms D deposed that as primary caregiver and parent the mother would naturally prefer to have full control over who sees G and when they visit her. She deposed that forcing any separation of G from her mother will increase the mother's anxiety and levels of distress when she is already coping with a huge sense of loss and adjustment.

74In her oral evidence Ms D said the mother was moving through her grief steadily, but it will go on for the rest of her life and she is making adjustments and moving forward the best she can.

75Ms D was satisfied the mother gave her accurate information, sufficient for her to establish that the mother was feeling very threatened and extremely distressed including at any time there was mention that G might have to leave her care.

76Ms D's contact with the mother in the last two years has been minimal, nevertheless her evidence is not inconsistent with the mother's own description of her feelings and her psychological wellbeing.

Mr B

77Mr B deposed to having a good relationship with the mother, stating "she is a daughter to me and always will be". He deposed to organising time to catch up between themselves and described his time with G as wonderful.

78In oral evidence Mr B said he last saw G about a month earlier when the mother brought G to his property for lunch and a visit. He usually sees G and the mother once every three months and they call and text message in between visits. He said the visits last approximately four to five hours at a time mutually agreed between them.

Ms E

79[Ms E] is the grandmother's sister. She deposed to witnessing visits between G and the grandmother which she described as full of playing and laughter. Ms E deposed that the mother was not very interactive during the visits.

80Ms E deposed as to the events on G's second birthday and the arrangements made by the grandmother for family members to attend her visit in the park. Ms E described a happy birthday celebration but that the mother would not wait to gather all of G's presents when they had to leave. She deposed that a few joyous hours were spoilt when G was distraught over the toys left behind.

81Ms E deposed she had tried to encourage communication with the mother but has not had a response. In her oral evidence Ms E said G and the grandmother definitely have a strong bond.

THE LAW

82These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act").

83In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.

84In deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary considerations and the additional considerations respectively.

85In Yamada & Cain [2013] FamCAFC 64 the Full Court acknowledged that the fact of parenthood is centrally important in a decision about a child's best interests and that the primary considerations under s 60CC of the Family Law Act 1975 (Cth) do not apply to non-parents. However, the Full Court did not conclude that this gives primacy to being a parent. The Full Court approved the reasoning in Donnell & Dovey (2010) FLC 93-428, wherein the Full Court said:

101.In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a "parent". This is so because the paragraph refers only to "parents", and there is no extended definition of that word – save for the one incorporating adoptive parents (and query the potential application of s 60H). However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a "parent" to ensure that clearly relevant matters are given appropriate weight.

102.We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a "primary consideration" does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].

86The Full Court in Yamada & Cain went on to say:

26.Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Consideration:

It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …

And more broadly, at [75]:

While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …

87The Full Court concluded:

27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

PARENTAL RESPONSIBILITY

88Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption applies as between parents. By reason of the father's death, the mother has parental responsibility for G.

THE PRIMARY CONSIDERATIONS

the benefit to the child of having a meaningful relationship with both of the child's parents

89G has a meaningful relationship with the mother and that is to G's benefit.

the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

90There is a not a need to protect G from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence. She is loved and well cared for by both parties.

THE ADDITIONAL CONSIDERATIONS

any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

91G is four years of age. She is too young to express a meaningful view. It is not in dispute that G enjoys spending time with the grandmother.

the nature of the relationship of the child with -

(i)each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child)

92G has a close and loving relationship with the mother with whom she has lived since her birth. G has a close relationship with her extended family on the maternal side and a good relationship with the paternal grandfather.

93G has a good relationship with the grandmother, which her counsel described as "growing". The grandmother described her relationship with G as "wonderful". The mother acknowledged it is a relationship which is beneficial to G. The grandmother deposed that G has a good relationship with her son [Mr F], her sisters and her parents.

the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child

the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

94The mother has made decisions about major long-term issues in relation to G and has maintained her.

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

95The relevance of this consideration is primarily the orders sought by the grandmother that G spends overnight time with her and the effect that it is likely to have on G indirectly by reason of the impact it is likely to have on the mother.

96The grandmother seeks orders which include overnight time on the last weekend of every odd month from Saturday to Sunday and two consecutive overnights each Western Australia Day long weekend. Commencing 2021 she seeks orders that G spends time with her gradually increasing from one night at a time in that year, to two consecutive nights in 2022, four consecutive nights in 2023 and six consecutive nights in 2024. The orders she seeks appear to be carefully crafted and the gradual increase suggests a sensitive approach by the grandmother.

97The mother is unable to contemplate G spending a night away from her. The mother deposed G has not spent a night away from her since her birth. The mother becomes anxious when she is away from G, even when G is cared for by the maternal grandmother. The mother deposed the maternal grandmother constantly messages her about G when she is looking after her, as the maternal grandmother knows this makes the mother feel less anxious.

98The mother deposed:

[G] has still not spent an overnight away from me. This is not something I am comfortable with. The thought of her being away from me overnight causes me to experience extreme anxiety.

99The mother's evidence was supported by her psychologist, Ms D albeit her report was dated 2018.

100The mother perceives communication from the grandmother to be bullying and it causes her anxiety. She does not trust the grandmother because she commenced these proceedings. The mother was unable to say when she thought G would be at a suitable age for sleepovers.

101I accept the mother's evidence as to her anxiety and fear. I consider that orders which provide for G to be separated from the mother, for even one overnight at this time would have deleterious effect upon the mother, which is likely to impact upon her parenting of G.

102The mother's anxiety and fear must be taken account of when orders are made providing for G to spend time with the grandmother.

103I accept that G is separated from the grandmother except for the short periods they spend time together. This does not have an effect on G who is accustomed to spending short periods of time with her.

104The family consultant referred to the "evident stress the mother is encountering" in the context of overnight time and I refer further to the family consultant's report in this respect below.

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

105This consideration refers to parents. There is however practical difficulty and expense of G spending time with the grandmother to which I refer below.

the capacity of -

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs

106The mother is a capable and committed parent to G who provides well for her needs on all levels.

107The grandmother deposed that she believes the mother is a wonderful mother and that her late son would be proud of them. She also deposed that the mother is very capable of providing for G's needs on a day-to-day basis.

108I have discussed the mother's anxiety and the stress caused to her by these proceedings and by the communication between her and the grandmother. It has not impacted on G at this time. I consider however that I should take into account the impact of any orders I make upon G's primary carer.

109The mother deposed to being diagnosed with traumatic stress and anxiety, which initially was associated with the father's death, and she is now dealing with severe anxiety at the thought of G spending time away from her and not being in her care. The mother is learning to deal with feeling out of control and techniques to deal with stress. She deposed to G sensing her mood when she is feeling anxious and at times she finds it hard to parent and distances herself from G. Notwithstanding this, it is not in dispute that the mother is providing well for G's needs. Once these proceedings are concluded it is likely the mother's mental health will improve.

110The mother deposed she loves to travel with G. The mother chooses to live a flexible lifestyle and enjoys this freedom whilst G is still young. Consequently, she does not want to commit to time for G to spend with the grandmother. The mother deposed, "I do not want [G] to grow up in a manner that will be deficient of the life [Mr A] and I would have given her together…". On the other hand, the mother wants G to have a relationship with the grandmother. She deposed she does her best to have G catch up with all of her grandparents, aunties, uncles, cousins, friends of both her and [Mr A's] and all of their families, as well as spending time just the two of them, and still being able to travel.

111The mother deposed the grandmother's approach to commencing Court proceedings so quickly after "the biggest most unthinkable tragedy" in her life has her questioning and undermining her own abilities as a mother.

112The grandmother is a kind and loving grandmother to G. She offers G a connection to the father and a happy and enjoyable experience during her visits.

113The grandmother said she has a lot to offer G going forward, including telling G about her father and what he was like as a little boy and whether they share any particular quirks or interests growing up.

114I accept the grandmother is capable of providing for the needs of G when she is in her care. The mother had some criticism of the grandmother including her smoking, giving G chocolate when asked not to and taking her out on a boat while not wearing a life jacket.

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

115G is just four years of age. Travel is important to the mother who described it as meditation to her. G and the mother have travelled extensively since G's birth to maintain the mother's confidence and strengthen the bond between them.

if the child is an Aboriginal child or a Torres Strait Islander child -

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

116This consideration is not relevant.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

117The mother has a responsible attitude to G and to the responsibilities of parenthood. She is committed to G's wellbeing and wants "nothing but for [G] to be surrounded by a large, loving family, which she no doubt has".

118The grandmother's case is that the mother's attitude to the responsibilities of parenthood, insofar as it relates to promoting a relationship between G and the grandmother, "has been left wanting".

119I am not convinced the mother has always readily facilitated G's time with the grandmother. At times she has made little effort to provide makeup time after cancelling visits. I accept however that the mother feels this to be a significant imposition on her freedom to make decisions for her child. This is important to her because she is acutely aware that she is alone in bringing up G.

120In her oral evidence the mother said she was willing to comply with any orders made in the future. When asked what her ideal arrangement going forward would be, she said she would prefer to go around to the grandmother's house for a cup of tea and more impromptu gatherings.

any family violence involving the child or a member of the child's family

121This consideration is not relevant.

if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter

122This consideration is not relevant.

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

123It would be desirable to make orders which are least likely to lead to the institution of further proceedings in relation to G.

124I am conscious of the impact these proceedings have had on the mother. The mother explained the Court proceedings have been "totally consuming" for her and she is hopeful that once the proceedings are over, the parties will have time to reflect and they can get to a place where their relationship is a lot better and it will become easier to agree time.

125It is necessary to balance the mother's wish for flexibility and the grandmother's request for defined orders. The grandmother's concern is that if there are no orders for specific times for G to spend with her, that time would not occur.

126On balance I consider it appropriate to make orders for G to spend time with the grandmother, but to incorporate in those orders some flexibility which the mother desires. It is to be hoped that with that flexibility the mother will comply with the orders and there will not be further proceedings by way of a contravention application.

any other fact or circumstance that the court thinks is relevant

127The grandmother has taken every opportunity she can to spend time and communicate with G. At times opportunities given to her to spend time with G have been difficult for her to accommodate, for example if she was not available due to other commitments. Her commitment to G is not in doubt.

128There is practical difficulty and expense of G spending time with the grandmother. The grandmother lives in Suburb F, south of Suburb A and G lives in Suburb K with the mother. The mother deposed that on the weekends G visits the grandmother in Suburb A she travels for three hours in the car that day. There is distance and travel time to take account of, and that has some bearing on the frequency and duration of the visits.

DISCUSSION AND CONCLUSIONS

129I have considered the evidence in the context of the primary and additional considerations.

130At times the mother's attitude to the orders has been somewhat cavalier in that she has cancelled time but been slow to provide makeup time. At first glance this does not reflect well on her.

131The mother is suffering the grief from the tragic loss of her partner. The court proceedings have had a significant impact upon her and have caused her to be stressed and anxious. She is anxious about the cost both emotionally and financially of the proceedings. She finds communication with the grandmother difficult and at times perceives it as the grandmother questioning her ability to properly care for G. She is very anxious about G being away from her. She feels controlled and not able to travel when she wants. She feels she must be answerable to the grandmother about her movements, about her plans and about her parenting of G. She is not prepared to do this.

132The grandmother genuinely and sincerely wants a relationship with G and feels she has a lot to offer her. She too is suffering grief having lost her son. G is her connection to him and she wants G to benefit from that connection. It is also very important to her to develop and maintain a relationship with G.

133G's connection to her father is important to her identity. G has that connection through the paternal grandfather, but she should also have the opportunity to enjoy a relationship with the grandmother.

134G is the grandmother's only grandchild. She wants to be able to spend time with her, very much like other grandparents do and she wants G to have a relationship with her extended family.

135I consider it would be in the best interests of G to put in place arrangements which will support the mother. This requires orders which provide for time to progress gradually. I am supported in this view by the family consultant who reported:

It is considered given the evident stress the mother is encountering, consideration of overnight time will disrupt any constructive negotiations towards the increased daytime and should be re-considered through external mediation at a later time, and failing any agreement, after the 9am to 5pm each month, has been in place for a period of 12 months.

(As per the original)

136Similarly the mother's psychologist deposed (albeit in 2018) that a suitable arrangement for the mother moving forward is a minimal set level of contact predetermined but the actual times to be flexible.

137If extensive orders are made for G to spend time with the grandmother then this will impact on the mother. The mother is likely to be resentful about having to comply with orders to which she did not agree. This could lead to further litigation.

138The mother must provide for G psychologically. It follows she must maintain her own psychological health. The ability of the mother to function as a parent to G is imperative to G's continued development and progress. I do not intend to place an unbearable strain upon the mother's ability to do that.

139I intend to make orders which I consider firstly will enable the mother to be the best mother she can be to G. Secondly the orders are those which will enable G's important relationships to be developed and maintained without causing stress and anxiety to the mother. Thirdly the orders are intended to reduce conflict and will bring an end to these proceedings.

The spend time arrangements

140Both parties seek orders that G spends time with the grandmother on a monthly basis. I consider that frequency is appropriate. I intend to order that G spends time with the grandmother on the last Sunday of every month. To make the visits worthwhile and meaningful to G, I consider that the time she spends with the grandmother should be from 9.00 am to 3.00 pm, a period of six hours. I am mindful that it is not in dispute that G enjoys her time with the grandmother. I consider this is an arrangement that G can cope with developmentally. It is also one which I consider the mother will be able to accept as there will be no orders for overnight time, at this time. I also take into account the distance and travel time between the parties' homes in concluding that a six hour period is in the best interests of G.

141Although this time is less than that sought by the grandmother, she should be assured that is no reflection upon her. On the contrary, I accept her position that if no defined orders for time were made, the time might not occur or there would be difficulties associated with it.

142I understand the mother's desire to travel and the benefits that flow to both G and her from their travel together. For that reason the mother must have the opportunity of making changes to the arrangements provided that makeup time is also given. It is appropriate the mother gives not less than 14 days’ notice in the event of a proposed change to the arrangement except in the case of emergency. In my view it is not sufficient to leave that makeup time to be agreed between the parties. This could lead to protracted correspondence between them and further conflict.

143I consider an appropriate order in these circumstances is one which provides that the mother shall provide makeup time on either the first or second Sunday after her return from travel, that is within 14 days of her return. This makeup time is to be in addition to the ordered monthly time.

144I consider these orders should remain in place for a period of not less than 24 months. If after that time a party seeks to change the arrangements, the parties should attend mediation with a view to agreeing such a change.

Communication

145It would be in the best interests of G to have electronic communication with the grandmother. G is still young and this maintains contact between them. This electronic communication should occur on one occasion each month. I will hear from the parties as to a convenient day and time, although I note the grandmother seeks such communication on a Wednesday between 5.15 pm and 5.45 pm. I therefore propose to order electronic communication on the second Wednesday of every month unless the mother is travelling with G and such communication is not practicable.

Handover

146I consider it appropriate that the handover take place at the parties' homes. I further consider it appropriate that the travel be shared and that the grandmother should collect G from the mother's home at the commencement of G's time with her and the mother should collect G from the grandmother's home at the conclusion of the time.

Other orders

147The proceedings primarily concern the time G will spend with the grandmother. I shall order that the mother have parental responsibility for G and that G lives with her. These are orders sought by the mother in her response and there is no opposition to them.

148As to the injunction sought by the mother regarding the grandmother smoking cigarettes, the mother deposed that she could smell stale cigarette smoke in the grandmother's car and that G returned from a visit smelling of cigarette smoke.

149I shall make an order that the grandmother be restrained from smoking cigarettes in the presence of G as I consider this to be an order that is in G's best interests.

150For the purposes of handover and communication, it is appropriate that the parties each keep the other informed of their addresses and mobile telephone numbers and promptly notify the other of any change thereto.

151As to the grandmother's involvement in G's life I consider in broad terms, the order proposed by the mother to be reasonable and it is also one with which the mother is likely to comply. I also consider it appropriate that the mother inform the grandmother if G suffers any medical emergency.

THE PROPOSED FINAL ORDERS

152Subject to hearing from counsel, the orders I propose to make are as follows:

1All previous parenting orders be discharged.

Parental responsibility

2The respondent mother, [MS ADAMS] have parental responsibility for the child, [G] born [in] 2016.

Live with

3The child live with the respondent.

Spend Time

4The child spend time with the applicant grandmother, [MS MURPHY] from 9.00 am to 3.00 pm on the last Sunday of every month.

5The respondent be at liberty to vary the spend time arrangement in order 4 above on the condition that she:

(a)provides the applicant with not less than 14 days' notice in the event of a proposed change to the arrangement, except in the case of an emergency or illness when notice is to be given as soon as reasonably practicable; and

(b)provides makeup time on the first or second available Sunday, which makeup time is in addition to the time to be spent as set out in order 4 above.

5The parties be at liberty to further vary these orders provided such variations are agreed in writing.

6The respondent shall promptly inform the applicant of events in the child's life that the respondent considers a grandparent would usually attend, including but not limited to, school assemblies where the child is receiving an award or performing and sports events, and the applicant is permitted to attend those events provided she gives the respondent seven days written notice of her intention to do so.

Handover

7Unless as otherwise agreed between the parties in writing;

(a)the applicant shall collect the child from the respondent's home at the commencement of the time; and

(b)the respondent shall collect the child from the applicant's home at the conclusion of the time.

Electronic communication

8The child shall have telephone or electronic communication (including via FaceTime or video call via Skype or WhatsApp or similar App) with the applicant on the second Wednesday of every month between 5.15 pm and 5.45pm.

9The applicant shall initiate the call to the Respondent's mobile phone.

Provision of Information

10The parties shall communicate via the "WhatsApp" App or other agreed electronic medium in relation to the spend time arrangements and other matters that may arise from time to time in relation to the child.

11The parties shall each keep the other informed of their address, mobile telephone number and "WhatsApp" username and promptly inform the other of any change thereto.

12The respondent shall inform the applicant in the event of a medical emergency involving the child.

Injunctions

13On a without admission as to need basis, the parties be restrained by injunction from:

(a)denigrating or maligning the other or any member of the others family in the presence of the child;

(b)speaking to or in the presence of the child in relation to Court proceedings and/or spend time arrangements; and

(c)behaving in an abusive or intimidating manner towards the other.

14The applicant be restrained and an injunction be granted restraining her from smoking cigarettes while the child is in her presence.

Procedural orders

15All extant applications be and are hereby dismissed.

16All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

17In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;

(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.

18In the event of an appeal being lodged prior to the expiration period of 42 days, orders 16 and 17 above do not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

21 DECEMBER 2020