Newton and Whiteman (Limited Issues) (No.3)

[2016] FCCA 2222

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWTON & WHITEMAN (Limited Issues) (No.3) [2016] FCCA 2222

Catchwords:
FAMILY LAW – Parenting orders in long-running contest between Father and maternal Grandmother – best interests considerations for child including issues of travel and practicability between Sydney and country New South Wales, views of child and separation from step-siblings and their activities – maternal Grandmother and Father at least agree on the need to end the litigation – very mature 12 year old girl – significant weight afforded to the views of the child – difficulty for Grandmother to prioritise the child’s best interests over her own needs and views.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 61C(2), 60CC(2), 60CC(3), 64(1)(b)

Cases cited:

Aldridge & Keaton (2009) 42 Fam LR 369

Church v Overton (2009) 40 Fam LR 357

Crestin v Crestin (2008) 39 Fam LR 420
Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113
Mulvaney & Lane (2009) 41 Fam LR 418
Harrison and Woollard (1995) 18 Fam LR 788
Jacks v Samson (2008) 221 FLR 307; (2008) FLC¶93-387

In the Marriage of Mazur (1976) 2 Fam LR 11,311; (1976) FLC ¶90-132

Newton & Whiteman [2013] FCCA 754
Newton & Whiteman (No.2) [2014] FCCA 180
Valentine v Lacerra (2014) 49 Fam LR 255
Vigano v Desmond (2013) 47 Fam LR 552
Whiteman & Newton [2013] Fam CAFC 127

Applicant: MR NEWTON

Respondent: MS WHITEMAN

File Number: CAC 715 of 2013

Judgment of: Judge Neville

Hearing date: 10 June 2016

Date of Last Submission: 10 June 2016

Delivered at: Canberra

Delivered on: 9 September 2016

REPRESENTATION

Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Self-represented
Solicitors for the Independent Children's Lawyer:	Barker & Barker

ORDERS

1. X may spend as much time with her Maternal Grandmother as she wishes but she should spend at least two periods of time with her Grandmother each year for a duration of her choosing.  The timing of when these periods occur should also be in accordance with X’s views.

2. X is to give her Father and the Maternal Grandmother as much notice as possible of her chosen times to spend with her Grandmother but must notify both her Father and her Grandmother no less than two weeks prior to the decided travel dates so that appropriate travel arrangements can be organised.

3. A copy of these Orders is to be provided to X.

4. Neither the Father, the Maternal Grandmother nor any other family members are to discuss the Court proceedings generally or any of the written reasons with X or in her presence.

5. The Independent Children’s Lawyer be discharged.

6. The Father’s Application in a Case filed on 18 May 2016 be dismissed.

7. Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

8. Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Fact Sheet attached hereto and these particulars are included in these orders.

9. All extant Applications be dismissed and the matter is now finalised and will be removed immediately from the docket.  

THE COURT NOTES THAT:

A.There should be no impediment to Ms Whiteman attending any sporting or school function involving X, provided she give no less than seven days’ notice via SMS or email to X or Mr Newton.

IT IS NOTED that publication of this judgment under the pseudonym Newton & Whiteman (Limited Issues) (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 715 of 2013

MR NEWTON

Applicant

And

MS WHITEMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. In the family law realm where the trials, tribulations, vagaries and tragedies of life are regularly seen, often with an acute rawness that is matched perhaps only in criminal law, courts frequently struggle to describe accurately the particular struggles, foibles and heartbreaks that beset the particular families that are before the Court in the specific matter at hand.

2. This is very much the case with the present and on-going matter.  From its inception it has been fraught with tragedy and anguish following the grief-stricken death of the Mother.  The history of the matter procedurally, substantively and otherwise, is set out in earlier judgments of this Court and in a judgment of the Full Court.[1]  I will not and need not repeat the background, findings and such matters in those judgments.  However, to the degree necessary, those judgments should be regarded as necessary touchstones and general reference points for what appears to be a final issue of disputation between the maternal Grandmother and the Father of now almost 12 year old X.

   [1] In this Court, see Newton & Whiteman [2013] FCCA 754; Newton & Whiteman (No.2) [2014] FCCA 180. Before the Full Court, see Whiteman & Newton [2013] Fam CAFC 127.

3. Following brief submissions by each of the parties and by the Independent Children’s Lawyer (“the ICL”), on 10^th June 2016, it was agreed that the following issue would be determined on the basis of the material filed and the submissions made by the parties, thus:

   … the child’s time with the maternal Grandmother: whether this would be in accordance with the child’s views/wishes, or for two occasions, each of two weeks per year during school holidays, and such other time in accordance with the child’s wishes.

4. The Grandmother seeks to have two defined periods of time with X each year, plus anything else that X may seek; the Father simply seeks that the child’s time with her Grandmother be in accordance with her wishes/views.  The ICL largely supports the Grandmother’s position.

5. By Application in a Case, filed 18^th May 2016, the Father sought the discharge of the ICL.  The Orders made on 10^th June record that, upon determination of the single outstanding parenting matter, the ICL would be discharged as a matter of course, thereby rendering moot the Application in a Case.  The Father was content with this indication.

The “Wishes Report” of April 2016

1. In addition to various reports prepared earlier in these proceedings, there is a recent “wishes report”, prepared by Ms C, dated 12^th April 2016.  It became Exhibit A 2016, there having been earlier reports and exhibits.

2. As noted in that Report, X lives with her Father, his Wife and their three children, X’s half siblings, in (omitted).  The two older siblings, A and B, are quite close in age to X.  Because the detail in the “wishes report” is extensive and in my view critical, I propose setting out very significant sections of it – with no apology for the length that such a course adds to these reasons.

3. First, in relation to the family consultant’s discussion and interview with X, the following was noted (pars.5 – 31) (emphasis added):

   [5] X told me that she understood that she was to see me about what she wanted to do about seeing her grandmother.  During the last three years since I had seen her, X told me she had been living with her father and seeing her grandmother every four weeks.  She went to Sydney to see her grandmother.  Regarding the handover arrangements, X told me that her father would take her to (omitted) and her grandmother would pick her up there.  During term time, X told me she went to her grandmother’s on the Friday afternoon and would return about 4:30 on the Sunday.  During the holidays she would sometimes go to her grandmother’s for a week and sometimes for two weeks.  X said this would occur unless she had something else on.

   [6] X told me that the current arrangements were going well and went on to say “I love going up to see her”.

   [7] X told me that she was currently a prefect at school.  She was currently in Year 6 and was due to commence at (omitted) High School next year.  X chatted about this.  She told me that she had really wanted to go to (omitted) School a private school, but that (omitted) High School was across the road from where they lived.  X chatted about her stepsiblings.  She referred to her stepmother Ms S as Ms S.  X told me that her father and Ms S had a son C, now aged two.

   [8] X was unsure what her grandmother wanted now.  X thought that her grandmother “kind of” wanted her to live with her.  However she went on “I think the big thing for her is the visits”.

   [9] When I asked X if there had been any problems over the visits, she told me that this weekend she was to go to her grandmother’s after the interview and had anticipated going back to Sydney with her.  Because her grandmother was not coming to the interview, she was unable to do this.  X said that her father told her that it would be a five-hour round trip for them to firstly go back home to return the younger children there and then to go to (omitted) from Canberra.  X said that her father had said that he would be happy to take her to (omitted) to meet her grandmother but did not want to go the extra half an hour to (omitted). 

   [10] X had been keen to go to the Easter Show with her grandmother.  X said her grandmother had advised that she did not want to drive further from (omitted) and so now she understood she could not go to the show.  X said her grandmother had cited personal reasons for this decision and said that, although she could understand why her grandmother did not want to drive further, she was disappointed by this.  X said she and her father were still going to (omitted) anyway because they had to go there to get dinner.  When they got there, she said she and her father proposed sending her grandmother a message to say that they were in (omitted) if she wished to come to collect her from there.  X understood that her grandmother usually had to travel about an hour to (omitted) and that to go to (omitted) would be an extra half an hour.

   [11] If she did not go to see her grandmother the weekend following her interview with me, X anticipated she would not see her grandmother for another month.  She told me that she was not prepared to go to her grandmother’s at Easter because her baby brother would be excited about getting his Easter eggs and she wanted to be there for this.  X emphasised that she did not want to miss her brother’s first couple of Easters.  X said that she hated having to choose but commented “That is the way it is”.

   [12] X told me that she had written a few things in her sketchbook that she wanted to tell me, but decided not to do so when I could not assure her that what she might tell me would be confidential.  X did go on to tell me that she wanted to share with me that she was uncomfortable with her father making her grandmother drive to (omitted) to collect her and her grandmother making her father drive to Sydney.  She said neither of these two scenarios had actually happened.

   [13] X assured me that no one had advised her what she should say to me.  She said the only thing she had been told was to tell me whatever she wanted to do.  X told me that she wanted to see her grandmother and that she wanted changeovers to be at (omitted).  In the event that changeovers at (omitted) were really inconvenient, such as on the day of interview, X suggested that perhaps her father could nominate meeting at (omitted) or her grandmother could nominate another point on the highway.

   [14] X went on to say that she wanted to see her “Nana” whenever she wanted to do so, rather than on prescribed weekends.  She said sometimes having to go to see her grandmother got in the way of other activities that she might want to engage in.  X proposed that the orders include a minimum number of visits of twice a year.  X anticipated that she would get busy and busier the next two years at school.

   [15] In terms of extra-curricular activities, X told me that she played (omitted).  She said that she was also part of the (omitted) and went to camps sometimes for this.  X did not want to have to talk to her grandmother on the telephone twice a week.  She said that she did not want to talk to her grandmother at prescribed times but rather that she wanted to talk to her whenever she chose to.  X said that it was pointless having to call her grandmother if she had nothing to tell her about.

   [16] A further concern of X’s was in relation to special occasions such as Christmas.  X said that every second year for Christmas she had to spend six hours at her grandmother’s.  X said she would rather just go to her grandmother’s for Christmas without having so much traveling back and forwards.  She said that currently there was too much travelling involved merely to be there for six hours.  X explained that she would rather go to her grandmother’s for longer or not at all.  X proposed that if she was to spend Christmas with her grandmother, that she should go on Christmas Eve, spend Christmas Day with her grandmother, returning to her father’s on Christmas Day because her stepmother’s family had a big party that she wanted to go to on Boxing Day.  Currently on Christmas Day, X said her father had driven her up and waited around to take her home again.

   [17] X went on to say that her preference was that there were not any court orders governing how much time she should spend with her grandmother.  She acknowledged that there should be something in place as “kind of a safety net for me”.  As she got older, X said that, of course, she would be able to make her own travelling arrangements to see her grandmother.

   [18] Referring to her list of concerns, X next told me that another issue for her was presentation nights.  She said that for events such as when she was awarded her prefect’s badge last year, if it was convenient for her grandmother, she certainly did not object to her coming down.  X told me she had two other things on her list that she could not tell me about now that she understood that what she told me was not confidential.

   [19] X went on to comment that sometimes when there was special events on such as the Easter Show and her grandmother did not want to come further to collect her, this really disappointed her.  X commented that this was hard for her.  X commented that her father and her grandmother both tried to put their own feelings about each other aside.  However, she considered that “sometimes it gets the better of them”.  X said that of course it was difficult to deal with someone she did not like and cited examples from school.

   [20] In response to my query, X told me that she did not want to live with her grandmother.  She said that she liked (omitted) and liked her school.  X did not want to leave her half-brother, C.  She went on to say that she would not do so.  If anything happened to either of her parents, X said she would want to care for C.

   [21] In terms of her mental health status now, X told me she had no further problems.  She said that when she had been living in Sydney with her mother, she had always been going to doctors.  Nowadays X said she very rarely went to the doctor.  Indeed, she said she had only been to the doctor once in three-and-a-half years when she had been vomiting for several days.  When she lived with her mother, X said she had been taken to the doctor almost weekly.  X said she was not on any medication at the time of interview. 

   [22] X told me she continued to see her psychologist, Mr A.  She estimated that she saw him once or twice a month and said that she felt very safe talking to Mr A and liked to do so.  X said that her mother died three years ago in the coming May and said that she was coping better with this now.  X told me that she got on very well with her stepmother who she often referred to as “Mum”. 

   [23] Last year, X said she had engaged in some self-harming behaviour.  She told me she had deliberately scratched herself because she had felt caught up in everything.  On one occasion when she was out at the time, her grandmother was scheduled to ring her.  X said her grandmother called 42 times.  X said that she had told her close friends that both her father and grandmother had times when they lashed out and when the situation got the better of them.  She volunteered that her father did not get upset in front of her but said that both her father and grandmother had told her that there was a lot of stuff that they did not tell her about.  X said that this got on her nerves.  X considered that in the long run, it would be better for her if they did not tell her everything regarding their arguments about her visits.  Loyally, X went on “I know they are both good people”.

   [24] When she went to her grandmother’s, X said that she liked to see her best friend.  She said that she also saw her aunt and added that they did all sorts of fun things.  X said that she used to go to the Easter Show with her mother and said that she had been most years since her mother died.  X said “But now she is not driving the extra half hour to pick me up for”.  X said that she went last year and described the show as great fun.

   [25] X said people forgot that this dispute was affecting other people than her.  She said that her sister, D, had been crying the previous night because she was worrying about what was going to happen to her.  X said that D did not like Court at all because previously, X did not get to see her father and his family while she was living with her grandmother.  X said that D had been upset by the events just after her mother died and said that her stepsister became worried and very anxious whenever she went to her grandmother’s.  X said that D would tell her that she did not want her to go to her grandmother’s because she feared she might not see her anymore. 

   [26] X said she and D did not squabble and said that they were very, very close.  X told me that D was two years younger than her.  X said that she had known D since she was three because her mother and her stepmother had been friends.  X told me that her other stepsister, A was only eight, a month younger than her.  However she was closer to her younger stepsister.

   [27] X went on to say that at this point in time, all the conversations at home were about Court.  She said now and previously the matter of Court would come up nearly every day.  X said she would never forget the phrase “as per the Orders”, because it came up all the time.

   [28] In response to my query, X told me that she was her grandmother’s only grandchild.  She said her grandmother had three children, her mother who had died almost three years ago, her uncle M who died in infancy and her aunt Ms S who has not yet had any children.  X said her grandmother was in a relationship but she had not met the man involved.  X explained that her grandmother had been married twice and that her maternal grandfather had died.  She said her grandmother had then re-married but was now divorced from Ms S’s father.  X said that she had considered her step grandfather to be her grandfather and said she still saw this man because he was friends with her father.  X chatted about her extended family on both sides.

   [29] In the event that she had to go to live with her maternal grandmother, X said that she would not be upset but would rather be confused.  X said that both her grandmother and her father had told her that they would abide by her wishes. 

   [30] X went on to repeat how disappointed she was that she was not going to Sydney the weekend after her interview.  She said she had really wanted to go the show.  X said it would be nice if there was a sudden change and her grandmother turned up at (omitted).  X said she could understand where her father was coming from but could not really understand her grandmother’s position.  X went on “Dad has been silly before but this time it is just Nana being caught out”.  X said she was a bit upset that her grandmother had not come to the interview.  X pointed out that she had a fun day planned at school but had to come to Canberra “to do Court stuff”.

   [31] When farewelling me, X commented that I would now have seen what she had to put up with.  She was quite stressed at the end of the session and cuddled her stepmother.  Her sympathies regarding the travel issue lay with her father.  X considered that her grandmother should have given in and been willing to have driven the extra distance.  X argued that her aunt had actually had all day to sleep after her night duty.  X argued that even Ms S’s partner could have assisted her grandmother with the driving.

1. In relation to the adults and their respective accounts relevant to X, as reported to and by Ms C, it is sufficient to note the following.

2. Mr Newton confirmed that after a certain encounter between X and her Grandmother, X had self-harmed.  I need not recount the details.  He also said to Ms C that X had been advised by her regular counsellor/psychologist (Mr A) not to continue to see her Grandmother.  The ICL had requested Mr A to forward a report to Ms C.  It appears that this did not happen.

3. At pars.38 – 47, Mr Newton (a) recounted various difficulties in relation to the inability to negotiate with the Grandmother, (b) confirmed that he was happy for X to see her Grandmother, (c) said that he was concerned that X’s time with her Grandmother was “destabilising” for the child, (d) contended that the Grandmother was constantly trying to undermine X’s relationship with her Father, (e) outlined difficulties for X obtaining her Mother’s photographs from the Grandmother, and (f) pointed out the logistical problems for X to commit to being in sporting teams due to her being required to spend weekend time with her Grandmother.  There was, he said, no impediment to the Grandmother coming to watch X play any of her sports ((omitted)).

4. At pars.48 – 56, Ms C outlined comments from Ms Whiteman.  In large measure the report oscillated around the discussion in which Ms Whiteman wished to have the certainty of the current Orders remain in place, while Ms C reported X’s wish to have greater flexibility in when and how she spent time with her Grandmother.

5. To this latter comment Ms Whiteman said that X had adopted this perspective – of seeing her twice per year and other times as she wished – because she had been encouraged in this way by her Father.  At par.50, Ms C recorded the following:

   In terms of this dispute, Ms Whiteman said that she was now at the point when she could not keep fighting and went on to say that all she wanted was to see her granddaughter on a regular basis so “I can keep her close to her mother’s family”.  Without fixed arrangements, Ms Whiteman said that she would not be able to plan anything.  Ms Whiteman said that her daughter and sister would try to take at least one day off work when X was to visit her so that they could all have a big get together.

6. In relation to Ms Whiteman attending events in (omitted), or presumably (omitted) also, she said, at par.51:

   I also advised Ms Whiteman that X wanted her to attend special occasions should she wish to do so.  Ms Whiteman said she had avoided going to (omitted) for special occasions, because on a couple of times when she had done so, Mr Newton had made allegations that she had done something wrong.  Ms Whiteman said she had considered that it would be better for her not to go there. Ms Whiteman said she had not wanted to antagonise Mr Newton.  Ms Whiteman went on to say that she would be happy to attend any event that her granddaughter wanted her to attend.

7. In response to questions about how she thought X was, Ms Whiteman said that she got “mixed messages” from her.  It is as well to set out in full pars.52 – 56 from Ms C's Report:

   [52] At the time of interview, Ms Whiteman estimated that she had seen X three weekends previously.  When I asked Ms Whiteman how she thought her granddaughter was, she responded that she received mixed messages from her.  She said sometimes she thought X was okay and said that other times she had noted that she was very distressed.  Ms Whiteman said she never quizzed X about what was happening, beyond asking her what she was doing at school.  Ms Whiteman commented that X came to her to have a rest. 

   [53] Ms Whiteman agreed with X’s proposal that she should come longer on Christmas Day.  Ms Whiteman said that she would be happy with whatever X wanted to do at Christmas.  Rather than have X travel so far for a minimal amount of time on Christmas Day, Ms Whiteman said that she would rather give up having that particular Christmas with X.  However she feared that if she did do, Mr Newton would conclude that she was not interested.

   [54] Reiterating that she wanted to stick to the current orders, Ms Whiteman commented that she did not see her granddaughter very often each term anyway.  She pointed out that X had a best friend at her place who she saw when she came to visit.

   [55] I advised Ms Whiteman that X was upset that she was not going to her place for the forthcoming weekend after the interviews, particularly because she wanted to go to the Easter Show.  Ms Whiteman detailed the medical condition that would not allow her to travel the extra half an hour.  She explained that while she was willing to put up with the pain of travelling for an hour-and-a half to collect X, she was not willing to travel the extra half an hour Mr Newton wanted her to.  Ms Whiteman explained that her daughter, Ms S had done night shift the previous night and so could not function as an alternative driver.  Ms Whiteman recognised that X loved the Easter Show.  She had not wanted to propose taking X the following weekend, which was Easter, in case her father was upset.  I advised Ms Whiteman that X did not want to go at Easter anyway.  Ms Whiteman said that it was difficult for her to advise me that she was not prepared to drive the extra distance.

   [56] Towards the end of her brief interview, Ms Whiteman told me that she had lost her daughter and was fighting to see her granddaughter.  She said that emotionally she could not allow Mr Newton to bully her and to order her around regarding when she could see her granddaughter.  When I again told Ms Whiteman that X wanted flexible arrangements, she responded “Of course that is what has been drummed into her”.

8. It is important to record, in full, the “Evaluation” (pars.57 – 65) and recommendation sections of Ms C's April 2016 Report, thus (emphasis added):

   [57] X’s wishes were clear and in my opinion, age-appropriate.  She was obviously fond of her maternal grandmother but also now strongly bonded to her father, stepmother, stepsiblings and half-brother.  As a preadolescent, and even more so when she reaches adolescence, X’s focus should be on her peers, schooling and extracurricular activities and hopefully her bonds to extended family such as grandparents will be sufficiently established to be maintained during these years.

   [58] X’s wish to see her grandmother but for neither telephone nor face-to-face contact to continue to be so prescribed, appeared entirely normal.  Indeed most children’s time with grandparents by X’s age and especially as she gets older, would rely on established bonds and a wish to see each other.  Ms Whiteman needs to recognise this and in my opinion, should no longer rely on her granddaughter to compensate for the loss of her daughter.

   [59] X has clearly benefited from the stable life offered to her by her father and stepmother and from the assistance provided by her psychologist, Mr A, whom she trusts.  Not surprisingly, her previous self-harm is no longer a concern.  As with any psychological symptom, it is difficult to attribute X’s self-harm to any particular cause, but it would appear that the tension and anxiety that resulted in such a symptom has significantly reduced and that X has learned more appropriate strategies to manage any psychological discomfort experienced.

   [60] The distance between the parties in this matter has contributed to this dispute being maintained in that X is reliant on her father and grandmother to transport her between them.  She cannot readily access her grandmother herself.  The transport difficulties were graphically demonstrated at the time of interview because of the issue about where the handover should be, following my interviews with the parties and X.  Ms Whiteman’s obdurate approach was difficult to understand if she really wanted to see her granddaughter and take her to the Easter Show.  While I am not medically qualified, it was challenging to sympathise with Ms Whiteman’s assertion that an extra hour’s travel was beyond her and not to view her approach as reflecting a power struggle with Mr Newton.  Ms Whiteman might have been better to have reflected on the damage her stance was doing to her relationship with X.  X’s sympathies were clearly with her father and she was bitterly disappointed about the Easter Show.

   [61] Pryor and Rodgers (2001) note “Extended family members, especially grandparents, are vital sources of support for children (p119)”.  Ms Whiteman might have to be more flexible if she wants to assume such a role with her granddaughter.  In insisting on a fixed schedule, Ms Whiteman is looking at the situation from her perspective and needs rather than from her granddaughter’s.  She risks losing her granddaughter’s affection if she maintains such a rigid stance particularly as X gets older and increasingly has her own preferences about how she wants to spend her time.  X will have her own weekend activities and priorities which may or may not include seeing her grandmother. 

   [62] Despite his intense dislike of his ex-mother-in-law, as far as I am aware, Mr Newton has thus far complied with the contact orders but understandably was taking a stance on the day of the interviews.  He has three other children and his wife to consider as well as X.

   [63] I did not consider that there was any point trying to mediate between Mr Newton and Ms Whiteman, particularly over the telephone.  However, X wanted to talk to her grandmother so, as noted above, I facilitated this. While I saw no point in mediating between the parties regarding the key issue of Ms Whiteman’s contact, I proposed that we hold a narrow discussion merely about the transport arrangements for the forthcoming weekend in an effort to arrange for X to go to her grandmother’s and to be able to go the Easter Show. 

   [64] After I explained to Mr Newton that Ms Whiteman did not consider that she could drive any further than (omitted) and that she was alternatively proposing that X just go to her for just one night the following Easter weekend, Mr Newton responded “absolutely not”.  Mr Newton angrily asked Ms Whiteman what her problem was and Ms Whiteman advised him that it was not any of his business.  Mr Newton then angrily commented to Ms Whiteman that, even though she had not driven to Canberra for the interview for X’s sake, that she now expected him and his family to drive further.  Mr Newton became angry and quite heated. 

   [65] While I was talking to Mr Newton and Ms Whiteman, X knocked on the door to propose that perhaps her aunt could drive her grandmother the extra distance.  I advised her that I had already been told that Ms S could not do this because she had been doing night duty.  Mr Newton angrily began to raise past issues.  Other than letting him continue, I suggested we terminate the joint session.  It was evident that not only could the parties not agree to the forthcoming weekend, they certainly could not agree to the ongoing arrangements.  Mr Newton heatedly said that Ms Whiteman had provided no medical evidence to support her claim that she could not drive the extra distance.  Ms Whiteman made it clear that she did not want to argue with Mr Newton.  Ms Whiteman said that she definitely could not drive as far as (omitted) and Mr Newton refused to drive to (omitted).

   RECOMMENDATIONS

   [66] In my opinion, X’s wish for more flexible arrangements should be granted.  It might be better for X to be required to go to her grandmother’s for a minimum of two separate weeks a year and to elect to go for more than this should she wish to do so.  Hopefully phone calls between X and her grandmother can occur on a spontaneous basis if and when either of them wants to talk to the other.  X proposed that she should give her grandmother two weeks’ notice of when she wanted to go to see her.  This seemed reasonable.

Other Evidence & Submissions

1. For current purposes, it is sufficient simply to note that (a) both parties seek to finalise the remaining issue of the time that X spends with her Grandmother, and (b) in Court on 10^th June 2016, Ms Whiteman filed two affidavits (both affirmed on 10^th June 2016), together with a series of emails between herself and X in April this year.

2. One of these affidavits provided a critique of Ms C’s report.  That critique included doubts upon the time allowed for Ms C’s discussion with Ms Whiteman and also whether Ms C was “ethically capable” of coming to the conclusions in her Report.  She considered it to be a Report “full of contradiction and not focussing on the main issues.”  Ms Whiteman also noted at the end of this affidavit that it was her intention to “step back from this [litigious] process for 2016.”  She also commented that she did not think it was in X’s best interests to be exposed “or made to go through any more Court proceedings at this moment.”

3. Ms Whiteman’s second affidavit provided a response to various claims made by Mr Newton.  In my view, given the attenuated nature of the proceeding now and its very long and doleful history, in my view it is unnecessary to outline these further contentions and or to comment on them.

4. In a similar vein, it is unnecessary to outline the complaints made by Mr Newton in relation to what he says (in my words) was a litany of occasions and circumstances where the ICL [allegedly] refused to speak with X when she had specifically requested to speak with the ICL.  It assists no one to venture in to this further field of disputation, especially where the Court can make no formal finding in relation to the claims.  That said, the Court may simply note that the ICL and the Father appeared to have a rather strained relationship and less than favourable view of each other.  Indeed, the ICL seemed to have a rather negative view of the Father, which was somewhat at odds with Ms C’s observations, I stress, over the years of litigation.

Consideration & Disposition

1. First, in terms of the Court’s approach to the proper disposition of the matter, it is clear that even in matters of very narrow compass, which is the case here, it remains imperative to consider those matters prescribed by Part VII of the Family Law Act 1975 (“the Act”) that are directly relevant.  In this regard, I note the following comments by the Full Court in Valentine v Lacerra.[2]  At [41] – [43], the Full Court said:

   [2] Valentine v Lacerra (2014) 49 Fam LR 255. There are a number of cases that deal relevantly with Applications by Grandparents, in addition to the decision of Benjamin J in Church v Overton (2009) 40 Fam LR 357 that was considered in an earlier judgment in this matter. Otherwise, see the discussions in Crestin v Crestin (2008) 39 Fam LR 420, Jacks v Samson (2008) 221 FLR 307; (2008) FLC¶93-387, In the Marriage of Mazur (1976) 2 Fam LR 11,311; (1976) FLC ¶90-132, and Harrison and Woollard (1995) 18 Fam LR 788.

   [41]... The fact that one party has sole parental responsibility does not create primacy in relation to the making of other parenting orders; certainly, that person has the duties, powers, responsibilities and authority set out in the definition, but it does not dictate what other orders might be made in accordance with what is in the best interests of that child. Indeed, it can be argued that the Act provides the opposite; the parental responsibility that a parent has is always subject to any other parenting order
   (s.61C(2)) and pursuant to s.61D(2)

   A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):

   (a) expressly provided for in the order; or

   (b) necessary to give effect to the order.

   [42] As to authority, senior counsel for the father relies heavily on the single judge decision of Benjamin J in Church & S Overton (2008) 40 Fam LR 357, but that reliance is misguided. In that case, Benjamin J was faced with an argument by the applicant grandfather that a grandparent has a “special position” under the legislation which entitles him or her to spend time and communicate with grandchildren. That is clearly not correct, but it seems that in dispelling that notion his Honour went too far the other way and in effect accepted the submission of the parents that it was their role to determine with whom their children should have a relationship, and that should shape whatever order is made. His Honour’s comments that tend to suggest that the commencement of the decision-making process is a presumption that a parent knows best, and the onus is on a non-parent to persuade the Court that the role of the parent should be usurped and their views disregarded, are not supported by authority, and indeed depart from Full Court authority. For example, in Aldridge & Keaton (2009) 42 Fam LR 369, the Full Court, in considering whether the 2006 amendments to the Act alter the principle that applied previously, said this:

   [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. Our reasons for upholding this view include the following matters:

   ·   the unaltered provision dealing with best interests (s.60CA) and the positioning of the section in the Act;

   ·   the recognition in s.65D(1) that ultimately a court should make such parenting order as it thinks proper; and

   ·   that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.

   ...

   [79] In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.

   [43] The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and 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: s.60CA of the Act). That is not altered by the parent having sole parental responsibility.

2. Then, at [53], the Full Court also noted:

   [53] It is also important to keep in mind that the paragraphs in s.60CC(2) -(3) of the Act are in reality only a means to an end, namely to ascertain where the best interests of the child or children might lie. This was the thrust of the joint judgment of May and Thackray JJ in Mulvany & Lane (2009) 41 Fam LR 418 at paragraphs 76 and 77 where their Honours said this:

   [76] It is important to recognise that the miscellany of “considerations” contained in s.60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.

   [77] It needs also to be remembered that the importance of each s.60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s.60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.

3. The following additional observations are, in my view, important given the history and the central role that must be played by X’s views as communicated to Ms C.  At this juncture I should record that notwithstanding the comments and critique provided by Ms Whiteman, I accept and endorse the observations and report of Ms C.  Put another way, there is nothing independent provided to the Court that would require me to do anything other than to accept the Report of Ms C in its entirety, which I do.

1. In the early decision of In the Marriage of Mazur, a case where a 10 year old boy refused to see his Father, Wood J said that the boy:[3]

   … should not be compelled to have contact with his Father because I am firmly of the view that the disadvantages of the coercive situation that would have to be set up to administer this would totally outweigh the prospect of any advantage which such contact may offer.

   [3] In the Marriage of Mazur (1976) 2 Fam LR 11,311 at p.11,320.

2. In the important Full Court decision in Harrison and Woollard, it was said (Fogarty & Kay JJ) (emphasis added):[4]

   …the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, 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. That is so because the legislation says so and also because long before specific legislation the practice of the court in its parens patriae jurisdiction established that view.

   [4] Harrison and Woollard (1995) 18 Fam LR 788 at p.800.

3. In the same case, Baker J said:[5]

   In my opinion, a child's wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial judge. Furthermore, if the trial judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given particularly if, as in this case, the separate representative submits that the court should give effect to such wishes.

   The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in each individual case. Such an exercise will require a consideration of both the child's level of maturity and understanding.

   I am not advocating that a trial judge should automatically act upon the wishes of children, since the court's duty is to act in the best interests of the child. Rather, the goal is to take the wishes of children seriously by giving them careful, detailed consideration. To merely regard the wishes of children in a token manner, or to be dismissive of them, does not accord with the findings of psychologists as to the competence of children to express soundly based wishes and ignores the statutory requirement of s 64(1)(b) of the Act.

   [5] Ibid at p.825.

4. Respectfully, such a view remains consonant with the prescriptions and considerations in Part VII of the Act. Indeed, the comments in Harrison and Woollard have been cited approvingly in recent decisions of the Full Court.[6]

   [6] See, for example, Vigano v Desmond (2013) 47 Fam LR 552 at [95].

5. In my view, the considerations specifically relevant to this matter, by reference to s.60CC(3) of the Act, are the following.

6. Section 60CC(3)(a) and (g), are both relevant and relevantly intertwined, particularly having regard to X’s clearly expressed “views” as noted by Ms C and also having regard to her “maturity”.

7. Her “views” and her maturity, as assessed by Ms C (Report, par.57) “were clear and in my opinion, age-appropriate.”  The basal views expressed by X, giving every allowance for what Ms Whiteman described as “mixed messages”, were that she did not want to be tied to a fixed and essentially regimented (my word) amount of time with her Grandmother.  Rather, X emphasised her desire for “flexibility” in arrangements for spending time with her Grandmother.  I accept X’s views in this regard.  Indeed, based on her comments to Ms C, she was and remains not only acutely aware of the fraught relationship between her Father and her Grandmother but she is equally astute in her assessment of those issues, the causes of them and possible and or likely solutions.

8. One of many and on-going tragedies in this matter is that X clearly loves her Father and her Grandmother.  She does not need to be ordered to manifest her love, which unfortunately, seems in many respects at least the object and or consequence of the Grandmother’s litigious pursuit over the years.  X has and will continue to show her love and affection obviously in her unique way, in her own time.  To force someone as astute and sensitive as X to do otherwise will, as it now has transpired, be counter-productive.  In her own good time and in her own good way, X will continue her good and close relationship with her Grandmother.  But it needs to be on her own terms, not terms dictated by others, including the Court.  As most know, love is, ultimately, sacrificial; it is not possessive.  Love seeks only the best for “the other”, in this case X.

9. It may be that the Grandmother, who has experienced much loss in her life is fearful and apprehensive of “losing” X.  But that is not going to happen.  Their relationship is a good and close one.  It needs to be gently nurtured, not smothered or strained by illusory or false fears.  The love between them needs to be gentle, patient and kind; it should never be possessive.

10. As is well known, X has been very involved in and conscious of the ongoing litigation since it began in 2013.  Based on Ms C’s most recent Report she impresses as an emotionally mature young lady, who possesses great insight into these proceedings and the respective positions of the protagonists to them.  Her views expressed to the family consultant, as already observed, were considered to be reasonable, responsible and entirely appropriately aligned with her best interests.

11. In accordance with the authorities to which I have referred, in my view, very significant weight should be given to X’s views about the need for flexibility in the time she spends with her Grandmother.

12. As emphasised by Ms C, X has expressed a view that her Father and her Grandmother both play important roles in her life, albeit very different ones.  She has a good and close relationship with both (as I have already noted).  The Court can be and is confident that X’s mature approach to these relationships would mean that by making Orders which provide for greater flexibility for X will allow, for example, the relationship with her Grandmother to grow but in a more natural way without unnecessary constraints.  It is of course most unfortunate that real impediments to the relationship are actually ones of logistics related to travel and the facilitation of arrangements between the adults responsible for it.  “Flexibility” as sought by X and “restraint” should be the bywords for the future for all involved in X’s life.  Certainly “rigidity” and “as per the Orders” should no longer be de rigeur.  Such things are completely counter-productive of human flourishing; they stultify and smother.  X has long-recognised this.  Like a butterfly, she seeks to be liberated from her claustrophobic cocoon that has been manufactured by various Orders over the years and by the conduct, at times, by some of the crucial adults in her life.

13. In a somewhat similar vein is the fact noted by Ms C, that X’s focus (at her age) should be on friends and other interests especially on the weekends.  Also, it is much more likely than not that X’s range of interests will impose (happily so) more, not less, demands on her non-school time.  This too will impact on her capacity to accommodate time with her Grandmother.

14. Other matters related to X’s views include her comments about the relationship with her siblings, not least her young brother C.  Of course, such matters come within the considerations set out in s.60CC(3)(d).  X’s clearly stated critical relationships with her siblings, not least her baby brother C, are critical.  Those relationships too should be allowed to flourish.  Critically, X should not be forced to choose which family members she will spend time with.  This has often been the case.  It should never be a contest, for example, between spending time with her Grandmother or with her siblings or friends and sporting colleagues.  All have their proper place, in time, not in competition.

15. Issues of practicality and difficulty, as set out in s.60CC(3)(e), are particularly pertinent here given the Grandmother lives in Sydney and X and her family live in (omitted).

16. There are no issues in relation to the Father and his household providing for all of X’s needs.  Indeed, X’s account to Ms C is that since she has been living with her Father her attendance upon medical and health professionals has pretty much finished in contrast to her account of going almost weekly when she lived with her Mother and Grandmother.[7]

    [7] See s.60CC(3)(ca) and (f).

17. It serves little purpose to accent the comments already noted earlier in these reasons in relation to (a) the extremely strained relationship between Mr Newton and Ms Whiteman, or (b) the comments in relation to Ms Whiteman regarding X [allegedly] spending time with the Grandmother so that she could “have a rest” and that X’s views had been “drummed into her” by her Father.

18. More tellingly, in my view, are the remarks by Ms C (at par.58):

    X’s wish to see her grandmother but for neither telephone nor face-to-face contact to continue to be so prescribed, appeared entirely normal.  Indeed most children’s time with grandparents by X’s age and especially as she gets older, would rely on established bonds and a wish to see each other.  Ms Whiteman needs to recognise this and in my opinion, should no longer rely on her granddaughter to compensate for the loss of her daughter.

19. It is important, as Ms Whiteman recognised in her affidavit that critiqued Ms C's Report, namely that she would now step back from the litigation.  It is possible, however, to read that critique as suggesting that it would only be a temporary respite because of the reference only to “2016” rather than to stepping back from litigation in the future.  I take some comfort from the fact that in her comments in Court on 10^th June, Ms Whiteman, like Mr Newton, wished to end the litigation.  It is certainly a tragedy, as reported by Ms C, that X has regularly heard that “such and such” must occur (or not occur) “as per the Orders.”

20. I simply repeat that I accept the evaluation and recommendations of Ms C.  The litigation needs to end for the sake of the parties and especially for X’s sake.  I would be surprised that, if this occurred and the ongoing pressure that X has felt for a significant number of years in her still young life was relieved, X in time ended up spending not only regular but significant time with her Grandmother.  But all of this has to come from X because to continue to force her to do things that interfere with all of her other interests and demands will continue to be counter-productive.

21. X has experienced more sadness and grief in her short life than many people will experience in a lifetime.  She needs both her Father and her Grandmother in her life.  In an ideal world, there would be no issue with such a proposition.  But X’s world has been less than ideal for quite some time.  She has been caught, as part of her grief, in an incessant war between these two critical adults in her life.  Having previously begged, cajoled and much else besides in earlier judgments, I can only state plainly that the warring adults need to live as if each of them does not exist; a form of “avoidance therapy” if you will.  X needs to be able to live her life with her family, her siblings, school, friends, sport and all such things.  And in her own time, liberated from litigation and all extraneous pressures, X will continue to flourish and continue to bring joy to all including her Grandmother.  It is imperative that the focus of Ms Whiteman be on the quality of the relationship with X, not the quantity of time spent with her.  Quality and quantity are irreconcilable, particularly in the circumstances that confront everyone here.

22. In my view, X’s mature focus is on the quality of the relationship with her Grandmother.  That must also be Ms Whiteman’s focus.  In my view, it is in X’s best interests that she enjoy her youth while she can, in the fullest way possible and also enjoy all familial relationships as much as possible in the most relaxed, natural and flexible way possible.

23. In my view, X should spend at least two periods of time with her Grandmother each year for a duration of her choosing.  The timing of when these periods occur should also be in accordance with X’s views, having regard to the other demands upon her time, especially her school, sporting and other commitments.

24. There should be no impediment to Ms Whiteman attending any sporting or school function involving X provided she give no less than seven days’ notice via SMS or email to X or Mr Newton.  It is not an Order but I would respectfully suggest that, if at all possible, the parties should keep a respectful distance from each other and keep their communication always civil and brief, focussed only on X and her views.

25. To the degree that it is necessary, neither party is to speak ill or unkindly of the other party in front of X and they are to use their best endeavours to ensure that no such talk occurs by others also.

26. Because the ICL will now be discharged, there is no need for any consideration of the Father’s Application in a Case, filed 18^th May 2016, other than to dismiss it.

27. As stated often, indeed essentially entreated in earlier judgments and by the family consultant: it is imperative for all that this caustic and dysfunctional litigation end, especially for X’s sake.

28. I conclude yet another judgment in this matter with a quote that is often used by me in perennial litigation but unfortunately regularly ignored.  I urge the parties to consider the following admonition or instruction by the Full Court which is particularly apt in the current matter.  In Cullen, Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[8]

    There are few greater evils in family law than recurring litigation about custody and access.  It is detrimental to the child, particularly so if he is old enough to appreciate that his parents are in legal conflict.  It saps the mental, emotional and financial resources of the parties.  It taxes the resources of the court and of the community.

    [8] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.

29. The Court agrees (respectfully) and makes the Orders indicated which are, in my view, clearly in X’s best interests.  May she and everyone be relieved of the litigation and take a good long rest - and get on with the rest of their lives.  X loves her Father and her Grandmother – but differently.  “Difference” does not have to lead to “contest”.  Equally, “difference” does not equate to “competition.”  The contest must end.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:         9^th September 2016