Newton and Whiteman (No.2)

[2014] FCCA 180

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWTON & WHITEMAN (No.2) [2014] FCCA 180

Catchwords:
FAMILY LAW – Further parenting orders sought by maternal Grandmother following death of child’s Mother – child now well settled with her Father and her young siblings – Grandmother seeking some orders that are more akin to parenting rather than a role usually and properly sought by a grandparent – matter had been appealed unsuccessfully by Grandmother.

Legislation:

Family Law Act 1975, s.60CA

Church v Overton (2009) 40 Fam LR 357

P. Foot, Natural Goodness, (Oxford: Clarendon Press, 2001)
W. Jaeger, Paideia: The Ideals of Greek Culture, (Three Volumes) (New York: Oxford University Press, 1945)
A. MacIntyre, After Virtue: A Study in Moral Theory, (Second Edition) (Notre Dame: University of Notre Dame Press, 1984)
M. Nussbaum, The fragility of goodness: Luck and ethics in Greek tragedy and philosophy, (New York: Cambridge University Press, 1986 [reprint 1995])

Applicant: MR NEWTON

Respondent: MS WHITEMAN

File Number: CAC 715 of 2013

Judgment of: Judge Neville

Hearing date: 15 October 2013

Date of Last Submission: 15 November 2013

Delivered at: Canberra

Delivered on: 14 February 2014

REPRESENTATION

Solicitors for the Applicant: Self-Represented

Solicitor/Advocate for the Respondent: Mr Iuliano

Solicitors for the Respondent: Watts McCray (Sydney)

Solicitor/Advocate for the Independent Children’s Lawyer: Mr Ridge

Solicitors for the Independent Children’s Lawyer: Barker & Barker (Canberra)

ORDERS

1. All previous parenting Orders in respect of the child X born (omitted) 2004 (“X”) be discharged.

2. Subject to Order 3 herein, the Applicant Father shall have sole parental responsibility for X.

3. Notwithstanding order 2 herein:

   (a)The Applicant Father shall advise the Respondent Maternal Grandmother of any treatment that X receives for any significant or ongoing illness and supply any medication that X requires for each period of time that X spends with the Respondent Maternal Grandmother;

   (b)The Respondent Maternal Grandmother shall advise the Applicant Father about any urgent treatment required by X while she is spending time with the Respondent Maternal Grandmother.

4. X shall live with the Applicant Father at all times and spend time with the Respondent Maternal Grandmother pursuant to these Orders.

5. X shall spend time with the Respondent Maternal Grandmother as follows:

   During School Term Time

   (a)For two weekends per school term, as agreed between the parties, but failing agreement to be the third and eighth weekends of each school term from 5.30pm on Friday until 4.30pm on Sunday, extending to 4.30pm on Monday if that weekend is a long weekend.

   During School Holiday Periods

   (b)X shall spend time with the Respondent maternal Grandmother for one half of the school holiday periods at the end of terms 1 and 3 in 2014 and each year thereafter, precise dates to be agreed between the parties no later than 21 days prior to each such school holiday period and failing agreement, to be the first half of each such school holiday period in even numbered years commencing in 2014 and the second half of each such school holiday period in odd numbered years commencing in 2015.

   (c)X shall spend time with the Respondent Maternal Grandmother for 10 consecutive days during each period of summer holidays, precise dates to be agreed between the parties and failing such agreement to be from 10.00am on the second Saturday in January until 4.30pm on the following Monday.

6. During periods when X is living with either party during school terms and/or school holiday periods, the party with whom X is not living at the time shall be at liberty to communicate with X by telephone each Tuesday and Thursday evening (at some time between 6.00pm and 7.00pm) with the party with whom X is living at that time to ensure that X is available to take the call on those occasions and to encourage X to participate in the phone call.

7. In the event that X should at any time whilst in the care of either party express a wish or desire to telephone the other party, then each party shall allow X to do so and shall provide such assistance to X as she may require to enable X to engage in telephone contact with the relevant party.

Special Occasions
Christmas

1. Notwithstanding any other order herein, X shall spend time with the Respondent Maternal Grandmother for not less than six hours on either Christmas Day or Boxing Day every alternate year commencing in 2013.

Father’s Day

1. Notwithstanding any other order herein, X shall spend the Father’s Day weekend with the Applicant Father.  If X is otherwise due to spend that weekend with the Respondent Maternal Grandmother pursuant to these Orders, then X shall spend the weekend following Father’s Day with the Respondent Maternal Grandmother instead.

Changeovers

1. Changeovers for the purposes of these Orders shall take place at an agreed location and failing agreement, all changeovers shall take place at the McDonalds Family Restaurant located on the (omitted) at (omitted).

2. For the purposes of changeovers, both the Applicant Father and the Respondent Maternal Grandmother shall be permitted to nominate another person to take X to and from the changeover location, provided that:

   (a)The nominated person is a person who is well known to X, and

   (b)The other party is advised by text message of who that nominated person will be, no less than 4 hours prior to changeover.

3. Mr M is restrained from taking part in any changeover in any capacity.

Other matters

1. If the Respondent Maternal Grandmother proposes to take X away for holidays, then the Respondent Maternal Grandmother shall provide the Applicant Father with the address and telephone number for the proposed holiday location, not less than 7 days prior to departure.

2. The Respondent Maternal Grandmother shall notify the Applicant Father if the Respondent Maternal Grandmother intends to take X outside the Sydney Metropolitan Area to a location within the Commonwealth of Australia during the period the child is in the Respondent Maternal Grandmother’s care at least 24 hours prior to departure.

3. Both parties be and are hereby restrained from:

   (a)denigrating the other party or their family in the presence or hearing of X or permitting any other person to do so; and

   (b)discussing these proceedings in the presence or hearing of X or permitting any other person to do so; and

   (c)intimidating, denigrating, harassing or molesting the other party at changeovers.

4. The parties shall notify each other within 24 hours of any change of address, email or telephone number (including mobile phone number).

5. Save for circumstances when the parties are able to communicate with each other by telephone for emergency or urgent situations, the parties shall communicate with each other in relation to X by use of SMS text messaging or other written means.

6. Both parties are at liberty to attend any of X’s significant school events, and any of X’s significant extracurricular or sporting events.

IT IS NOTED that publication of this judgment under the pseudonym Newton & Whiteman (No.2) 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. On 9^th July 2013, I provided detailed reasons for parenting orders that were pronounced on 31^st May 2013 in relation to nine year old X.[1]

   [1] Newton & Whiteman [2013] FCCA 754.

2. Those orders were the subject of an appeal by the Respondent maternal Grandmother.  That appeal was unsuccessful.[2]

   [2] Whiteman & Newton [2013] FamCAFC 127.

3. In the course of a Family Report dated 24^th August 2013,[3] at par.85 the family consultant recorded: “… Ms Whiteman [the Grandmother] intimated that she would withdraw from this dispute if I considered X would be best placed with her Father.”  This is indeed what the family consultant recommended (at par.94).  Unfortunately, the intimation given to the family consultant did not materialise and the Grandmother has continued to pursue orders in relation to X, albeit that they are not as extensive as she originally sought – although they remain very significant in volume and the scope of issues addressed.

   [3] The Report was released to the parties on 2^nd September 2013, and became Exhibit A.

4. Following the determination of the appeal, on 15^th October 2013 procedural orders were made, inter alia, for the filing of submissions following which it was agreed that the Court would determine final orders “on the papers.”

5. In accordance with those orders, the Father subsequently confirmed to the Court that he would not pursue the contravention applications he had filed on 8^th July and 3^rd October against the Grandmother.  Given the Father’s withdrawal of the contraventions, presumably as something of an ‘olive branch’, it makes the Grandmother’s continued prosecution of the litigation even more awkward and unfortunate.

6. The background to and traumatic circumstances of the interim parenting orders made last year, most of which to some degree still apply or are otherwise relevant to the making of final orders, are set out in detail in my original judgment and more summarily in the Full Court’s decision to which I have already referred.  In such circumstances, including the significant treatment of the legislative pathway from Part VII of the Family Law Act1975 (“the Act”) that was previously undertaken, it is not necessary or particularly useful to rehearse factual and other matters previously and thoroughly there treated. Further, unless otherwise required for the purposes of these reasons, the earlier interim judgment and the reasons from the Full Court should be taken as the primary factual and jurisprudential treatment of matters prescribed by Part VII of the Act.

7. Moreover, given that the submissions of the parties and the Independent Children’s Lawyer (“ICL”) do not refer to any part of that pathway (I do not say this critically) but rely essentially on either the Family Report and/or submissions more generally, unless otherwise indicated or required, the earlier comments regarding the legislative pathway should be taken to remain relevant to and be considered the primary point of reference for, the current reasons. This is also to say that given what has been said previously by this Court and the Full Court, I propose only to consider and to determine the limited matters now before the Court solely on the basis of the written submissions provided. All of that said of course, in accordance with s.60CA of the Act, I am required to make orders that the Court considers to be in X’s best interests and that her interests must be the paramount consideration.

8. For the reasons that follow, the orders which the Court considers to be in X’s best interests are those proposed by the ICL, albeit slightly amended, such as a direction to the Grandmother to ensure that Mr M does not attend any changeover for X.

9. These reasons proceed as follows: (a) the orders sought; (b) ‘evaluation and recommendation’ sections of the Family Report; (c) submissions of the parties & ICL; (d) consideration & resolution.

Orders Sought

1. The Orders sought by the Applicant Father are as follows:

   1.The Father to have Sole Parental Responsibility.

   2.The child is to live with the Father.

   3.The child is to spend time with the Maternal Grandmother as agreed  between the parties, but in the absence of an agreement, as follows:

   a)The child is to spend no less than 14 nights per year with the Grandmother on no fewer than 4 separate occasions.

   4.Changeovers to occur at an agreed location but in the absence of an agreement, (omitted) McDonalds.

   5.For the purposes of changeover, both the Father and Maternal Grandmother shall be permitted to nominate another person to take the child to and from the changeover location PROVIDED THAT:

   5.1The nominated person is well-known to the child;

   5.2The other party is advised by text message of who the nominated person will be no less than four (4) hours prior to the changeover;

   5.3Mr M is restrained from taking part in ANY changeover;

   6.All access visits to be finalised via email not less than seven (7) days prior to the changeover occurring, with the exception of point 5.2 above.

   7.Any additional visits requested by the Maternal Grandmother to be finalised not less than seven (7) days prior to changeover, unless otherwise agreed between the parties.

   8.That if the Maternal Grandmother proposes to spend time with the child overnight anywhere other than the Grandmother’s residence, then the Maternal Grandmother must seek permission from the Father not less than seven (7) days prior to the changeover for that period. The Maternal Grandmother must provide the name and contact details for the location she seeks to attend.

   9.That in the event the child, whilst spending time with either party, expresses a wish or desire to telephone the other party then each party shall allow the child to do so and shall provide assistance to the child as she may require to engage in telephone contact with the relevant party.

   10.All parties MUST ensure contact details for the other party are current and notify the other party of any change.

   11.Each party shall advise the other as soon as reasonably practical of:

   11.1 any significant illness, accident or injury suffered by the child

   11.2 any medication the child is to take whilst the child is in the other’s care, including the dosage

   12.That the parties shall use their best endeavours to foster the child’s relationship with the other party.

2. The Orders sought by the Respondent Grandmother are as follows:

   1.All previous parenting Orders in respect of the child X born (omitted) 2004 ("X") be discharged.

   2.Subject to Order 3 herein, the Applicant Father shall have sole parental responsibility for X. 

   3.Notwithstanding Order 2 herein:

   3.1The Applicant Father will authorise and direct any medical practitioner or health professional to whom X is taken or with whom she consults to make available to the Respondent Maternal Grandmother any details of the treatment that X has received or any diagnosis or any result of the consultation;

   3.2The Applicant Father will authorise and direct X's school, vacation care, and other care providers to provide all information and documents about X including, but not limited to X's progress, newsletters, reports, photographs and details of any school activities;

   3.3The Applicant Father will ensure that he advises the Respondent Maternal Grandmother of any treatment that X is receiving, and supply any medication that is necessary for the period that X is with the Respondent Maternal Grandmother;

   3.4The Applicant Father and the Respondent Maternal Grandmother will keep the other informed of any medical event or injury occasioned to X while she is with him or her;

   3.5The Applicant Father and the Respondent Maternal Grandmother will advise the other promptly about any emergency treatment or urgent treatment undertaken for X, while she is with him or her;

   3.6That subject to Orders 15 and 16 herein, the Respondent Maternal Grandmother is authorised to apply for an Australian Passport for X.

   4.X shall live with the Applicant Father at all times that she is not otherwise spending time with the Respondent Maternal Grandmother pursuant to these Orders.

   5.X shall spend time with the Respondent Maternal Grandmother as follows:

   During School Term Time

   5.1For one (1) weekend per month, as agreed between the parties, but failing agreement to be the second weekend of each month from 5.30pm on Friday until 4.30pm on Sunday, extending to 4.30pm on Monday if that weekend is a long weekend, except for the month of September when the Maternal Grandmother shall spend time with X on the first weekend of that month, from 5.30pm on Friday until 4.30pm on Sunday;

   During School Holiday Periods

   5.2X shall spend time with the Respondent Maternal Grandmother for one half of the school holiday periods at the end of terms 1, 2 and 3 in 2014 and each year thereafter, precise dates to be agreed between the parties no later that twenty-one (21) days prior to each school holiday period, and failing such agreement, to be the first half of each school holiday period in even numbered years commencing in 2014 and the second half of each school holiday period in odd numbered years commencing in 2015;

   5.3X shall spend time with the Respondent Maternal Grandmother for two block periods of fourteen (14) days duration in the December 2013/January 2014 school holiday period, precise dates to be agreed between the parties, and failing such agreement to be nominated by the Respondent Maternal Grandmother and the Respondent Maternal Grandmother shall provide written notice to the Applicant Father of the nominated period no later than twenty-one (21) days prior to the December 2013/January 2014 school holiday period;

   5.4X shall spend time with the Respondent Maternal Grandmother for one half of each of the December/January school holiday periods from December 2015/January 2016 and each year thereafter, precise dates to be agreed between the parties no later than twenty-one (21) days prior to the December/January school holiday period each year, and failing such agreement to be the second half of the December/January school holiday in odd years commencing in 2013 and for the first half of the December/January school holiday in even years commencing in 2014. 

   6.That for the purposes of calculating school holiday periods:

   6.1School holiday periods commence after school on the final day of the school term and end at the commencement of school on the first day of school in the next term;

   6.2The midpoint is defined as the midpoint day between the first day and the last day of the defined school holiday period; and

   6.3In the event that there are two (2) midpoint days, then the midpoint day is declared to be the latter of the two (2) days.

Special Occasions

Christmas

7.That notwithstanding any other Order herein, X shall spend time with the parties over Christmas as follows:

7.1From 11.00am on 24 December to 5.00pm on 27 December with the Applicant Father in odd numbered years commencing in 2013;

7.2From 11.00am on 24 December to 5.00pm on 27 December with the Respondent Maternal Grandmother in even numbered years commencing in 2014.

Easter

8.That, notwithstanding any other Order herein, X shall spend time with the parties over Easter as follows:

8.1from 5.00pm on Easter Thursday to 5.00pm on Easter Monday with the Applicant Father in even numbered years commencing in 2014; and

8.2from 5.00pm on Easter Thursday to 5.00pm on Easter Monday with the Respondent Maternal Grandmother in odd numbered years commencing in 2015.

Birthdays

9.That, notwithstanding any other Order herein, X shall spend time with the Respondent Maternal Grandmother on the first weekend after 20 May (being the Respondent Maternal Grandmother's birthday) each year from 5.30pm on Friday to 4.30pm the following Sunday. 

Mother's Day

10.That, notwithstanding any other Order herein, X shall spend time with the Respondent Maternal Grandmother on the Mother's Day weekend from 5.30pm on Friday to 4.30pm the following Sunday.

11.That changeover for the purposes of these Orders shall take place at an agreed location, and failing agreement all changeovers shall take place at McDonalds located on the (omitted) at (omitted).

12.That for the purposes of changeover, both the Applicant Father and the Respondent Maternal Grandmother shall be permitted to nominate another person to take X to and from the changeover location, PROVIDED THAT:

12.1The nominated person is a person who is well-known to X; and

12.2The other party is advised by text message of who that nominated person will be, no less than four (4) hours prior to changeover.

13.That if the Respondent Maternal Grandmother proposes to take X away for holidays, then the Respondent Maternal Grandmother shall provide the Applicant Father with the address and telephone number for the proposed holiday location, not less seven (7) days prior to departure.

14.That the Respondent Maternal Grandmother shall notify the Applicant Father if the Respondent Maternal Grandmother intends to take X outside the Sydney Metropolitan Area to a location within the Commonwealth of Australia during the period the child is in the Respondent Maternal Grandmother's care at least twenty-four (24) hours prior to departure.

15.The Applicant Father shall do all things and sign all documents necessary to provide his consent to X obtaining an Australian Passport and/or renewing an Australian Passport within fourteen (14) days of a request from the Respondent Maternal Grandmother to do so. 

16.The Applicant Father shall retain possession of the child's Passport for safekeeping, and if the Respondent Maternal Grandmother is travelling overseas with X in accordance with Order 17 herein, then the Applicant Father shall deliver X's Passport to the Respondent Maternal Grandmother not less than four (4) weeks prior to the date of intended departure, and that the Respondent Maternal Grandmother shall return X's Passport to the Applicant Father within seventy-two (72) hours of return from any overseas holiday.

17.That either the Applicant Father or Respondent Maternal Grandmother is hereby permitted to travel overseas for a holiday with X, provided that:

17.1the proposed period of travel falls within a school holiday period in which X would be living with that party pursuant to these Orders, unless otherwise agreed expressly in writing between the parties, and failing agreement by Order of the Court;

17.2any destination is a country which has acceded to the Convention on the Civil Aspects of International Child Abduction, and is a convention country under Regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986 or any such relevant regulation as may be enacted from time to time;

17.3the party with whom X will be travelling travels with X for the entire period during which X is travelling;

17.4that the party who is proposing to travel provides the other party with:

17.4.1not less than four (4) weeks prior to the intended departure date, a detailed written itinerary of the proposed trip, including the date of departure and return, flight details and times, all locations and destinations of travel, and details of accommodation for the entire period of travel (including, if applicable, the name of the accommodation venue, address and telephone and email contact details);

17.4.2not less than one (1) week prior to the intended departure, a certified copy of the booked tickets in the relevant party's and X's names (either the hard copy tickets or a written confirmation of the tickets from a travel agent or airline) for the departure and return flights; and

17.4.3not less than seventy-two (72) hours prior to the intended departure, details of an email address and telephone number at which X and the relevant party can be contacted during the trip.  

18.That if the party is travelling overseas with X, that party must arrange for X to telephone the other party in Australia, within four (4) hours of arrival at the intended destination (not any flight stop-overs), and on each alternate day during the period of the trip, and within four (4) hours of arrival back in Australia.

19.Both parties be and are hereby restrained from:

19.1Denigrating the other party or their family in the presence or hearing of X or permitting any other person to do so; and

19.2Discussing these proceedings in the presence or hearing of X or permitting any other person to do so; and

19.3Intimidating, denigrating, harassing or molesting the other party at changeovers.

20.That during periods when X is living with either party during school terms and/or school holiday periods, the party with whom X is not living at the time shall be at liberty to communicate with X by telephone each Tuesday and Thursday evening (at some time between 6.00pm and 7.00pm), with the party with whom X is living at that time to ensure that X is available to take the call on those occasions, and to encourage X to answer the phone call.

21.That in addition to the preceding Orders, in the event that X should at any time whilst in the care of either party express a wish or desire to telephone the other party, then each party shall allow X to do so and shall provide such assistance to X as she may require to enable X to engage in telephone contact with the relevant party.

22.That the parties notify each other within twenty-four (24) hours of any change of address, email or telephone number (including mobile phone number).

23.Save for the preceding Orders when the parties are to communicate with each other by telephone for emergency or urgent situations, the parties are to communicate with each other in relation to X by use of SMS text messaging. 

24.That both parties be at liberty to attend any significant (such as end of year, semester or term) school events, and any significant extracurricular or sporting events.

25.That the Applicant Father be restrained from changing X's place of residence without first having obtained the prior written consent of the Respondent Maternal Grandmother, or an Order of the Court.

26.That the parties shall use their best endeavours to foster X's relationship with the other party.

1. The Orders recommended by the Independent Children’s Lawyer are as follows:

   1.All previous parenting Orders in respect of the child X born (omitted) 2004 (“X”) be discharged.

   2.Subject to Order 3 herein, the Applicant Father shall have sole parental responsibility for X.

   3.Notwithstanding order 2 herein:

   3.1 The Applicant Father shall advise the Respondent Maternal Grandmother of any treatment that X receives for any significant or ongoing illness, and supply any medication that X requires for each period of time that X spends with the Respondent Maternal Grandmother;

   3.2 The Applicant Father and the Respondent Maternal Grandmother shall keep each other informed of any medical event or injury occasioned to X while she is with him or her;

   3.3 The Respondent Maternal Grandmother shall advise the Applicant Father about any urgent treatment required by X while she is spending time with the Respondent Maternal Grandmother

   4.X shall live with the Applicant Father at all times and spend time with the Respondent Maternal Grandmother pursuant to these Orders.

   5.X shall spend time with the Respondent Maternal Grandmother as follows:

   During School Term Time

   5.1    For two weekends per school term, as agreed between the parties, but failing agreement to be the third and eighth weekends of each school term from 5.30pm on Friday until 4.30pm on Sunday, extending to 4.30pm on Monday if that weekend is a long weekend.

   During School Holiday Periods

   5.2    X shall spend time with the Respondent maternal Grandmother for one half of the school holiday periods at the end of terms 1 and 3 in 2014 and each year thereafter, precise dates to be agreed between the parties no later than 21 days prior to each such school holiday period, and failing agreement, to be the first half of each such school holiday period in even numbered years commencing in 2014 and the second half of each such school holiday period in odd numbered years commencing in 2015.

   5.3    X shall spend time with the Respondent Maternal Grandmother for 10 consecutive days during each period of summer holidays, precise dates to be agreed between the parties, and failing such agreement to be from 10.00am on the second Saturday in January until 4.30pm on the following Monday.

   6.During periods when X is living with either party during school terms and/or school holiday periods, the party with whom X is not living at the time shall be at liberty to communicate with X by telephone each Tuesday and Thursday evening (at some time between 6.00pm and 7.00pm), with the party with whom X is living at that time to ensure that X is available to take the call on those occasions, and to encourage X to participate in the phone call.

   7.In the event that X should at any time whilst in the care of either party express a wish or desire to telephone the other party, then each party shall allow X to do so and shall provide such assistance to X as she may require to enable X to engage in telephone contact with the relevant party.

Special Occasions

Christmas

8.Notwithstanding any other order herein, X shall spend time with the Respondent Maternal Grandmother for not less than 6 hours on either Christmas Day or Boxing Day every alternate year commencing in 2013.

Father’s Day

9.Notwithstanding any other order herein, X shall spend the Father’s Day weekend with the Applicant Father.  If X is otherwise due to spend that weekend with the Respondent Maternal Grandmother pursuant to these Orders then X shall spend the weekend following Father’s Day with the Respondent Maternal Grandmother instead.

Changeovers

10.Changeovers for the purposes of these Orders shall take place at an agreed location, and failing agreement all changeovers shall take place at the McDonalds Family Restaurant located on the (omitted) at (omitted).

11.For the purposes of changeovers, both the Applicant Father and the Respondent Maternal Grandmother shall be permitted to nominate another person to take X to and from the changeover location, provided that;

11.1The nominated person is a person who is well known to X, and

11.2The other party is advised by text message of who that nominated person will be, no less than 4 hours prior to changeover.

Other matters

12.If the Respondent Maternal Grandmother proposes to take X away for holidays, then the Respondent Maternal Grandmother shall provide the Applicant Father with the address and telephone number for the proposed holiday location, not less than 7 days prior to departure.

13.The Respondent Maternal Grandmother shall notify the Applicant Father if the Respondent Maternal Grandmother intends to take X outside the Sydney Metropolitan Area to a location within the Commonwealth of Australia during the period the child is in the Respondent Maternal Grandmother’s care at least 24 hours prior to departure.

14.Both parties be and are hereby restrained from:

14.1denigrating the other party or their family in the presence or hearing of X or permitting any other person to do so; and

14.2discussing these proceedings in the presence or hearing of X or permitting any other person to do so; and

14.3intimidating, denigrating, harassing or molesting the other party at changeovers.

15.The parties shall notify each other within 24 hours of any change of address, email or telephone number (including mobile phone number).

16.Save for circumstances when the parties are able to communicate with each other by telephone for emergency or urgent situations, the parties shall communicate with each other in relation to X by use of SMS text messaging or other written means.

17.Both parties are at liberty to attend any of X’s significant school events, and any of X’s significant extracurricular or sporting events.

Comments from the Family Report

1. Because the parties relied upon and referred to the Family Report (in some instances at some length), it is apposite to set out in full the ‘evaluation and recommendations’ section of it.  Beginning at par.85 of the Family Report (Exhibit A), Ms C said:

   [85] It is unfortunate that the parties in this matter have not been able to reach a mutually satisfactory solution given they both love X and both have much to offer her.  Obviously emotions were running high around the time of Mr M’s untimely death and encouragingly it now appeared that everyone concerned was more settled and more likely to be able to accept any decision made.  Indeed Ms Whiteman intimated that she would withdraw from this dispute if I considered X would be best placed with her father.

   [86] Mr Newton and Ms Whiteman’s relationship had been poor for many years.  Incidents such as him inadvertently reading a newspaper article asking who would care for his daughter after her mother’s anticipated demise certainly did not help and such actions were at best thoughtless.  At the time Mr Newton had joint guardianship and saw his daughter regularly.  There were many other concerned adults in X’s life including her paternal grandparents.  The events around the time of Mr M’s death are probably best put aside and viewed as indicative of everyone’s distress at the death of such a young woman.  The arguments about the money raised for X reflect the lack of trust between her father and grandmother.  Despite Ms Whiteman’s doubts, Mr Newton did highlight the importance of her having a continuing role in X’s life and even though problems arose, Mr Newton did take X back to her grandmother’s as soon as her mother died.

   [87] Mr Newton argued that even prior to his ex-wife’s diagnosis his former mother-in-law, Ms Whiteman tried to control their lives.  Ms Whiteman’s tendency to try to get her own way was evident on the morning of the interviews with me when she attended some two hours early in an attempt to spend extra time with her granddaughter.  Ms Whiteman had apparently been advised the day before that X would not be made available to her at this time.  She should have been well aware that the morning had not been scheduled for contact purposes but rather for this assessment.

   [88] It is perhaps more concerning in terms of any future cooperation that Ms Whiteman did not abide by the arrangements proposed for this assessment and in a manipulative manner tried to get her own way.  Such actions can only heighten X’s anxiety as demonstrated during her time with her grandmother when X anxiously urged Ms Whiteman not to ask her to seek to “be the messenger” about a possible change in contact times. 

   [89] Much has been made of X’s previous mental health issues and possible diagnosis of Asperger’s Disorder.  Most of the reports however were from some years ago.  Hypotheses about the aetiology of earlier problems include genetics in terms of family history, living with an anxious mother, living with parents who were unhappy together, and later living with a terminally ill mother.  The effects of her parents’ separation and the subsequent untimely death of her mother cannot be minimised.  X’s current presentation is of greater relevance than her past presentation and the focus should be on the management of any symptoms regardless of any actual diagnosis.  In my opinion, X could best be described as having some anxiety, insufficient to merit any formal diagnosis at all.

   [90] X presented as a delightful girl who impressed as older than her stated age.  Her maturity might be expected given what she had been through and the adult attention she would have received.  X was well spoken and polite.  She demonstrated social interest and a keenness to learn.  Any anxiety evident on the day of interview was no more than might have been expected given she had to meet a stranger in the company of her father and grandmother who she well knew were in dispute about her care.  Encouragingly, X has settled well into her new school.

   [91] X clearly wanted the opportunity to be a normal child in a normal family.  She was also adamant that she wanted to maintain her relationship with her beloved grandmother.  X poignantly highlighted how she had disliked being pitied in regard to her mother’s illness and death. 

   [92] Both Mr Newton and Ms Whiteman appeared to be sensitive to X’s needs and feelings and any residual anxiety should settle if stable arrangements are put in place and she is allowed to settle into life with her father and his family.  Ms Whiteman should adopt a usual grandmotherly role and is well able to provide X with happy weekends and holidays.  It would be unfortunate if X was required to move again now. 

   [93] Contact arrangements will necessarily have to consider the distance involved as well as the need for X to engage in family and extracurricular activities in (omitted).  Despite X’s request, in my opinion, contact should not be suspended after the baby is born.  X will have plenty of time to interact with the baby at other times.

   RECOMMENDATIONS

   [94] I recommend that X resides with her father and has contact once a month with her grandmother as well as for half of the shorter school holiday periods.  Christmas holiday contact might be better to be in two separate week blocks for the next two years.

   [95] That Mr Newton and Ms Whiteman resolve any issues via mediation rather than by litigation.

2. I turn next to consider each of the sets of submissions – sometimes with occasional comment.

The Father’s Submissions

1. Summarily stated, the Father noted the following in his brief written submissions in support of his relatively brief orders sought.

2. He confirmed that (a) he is able to provide for his family of six, which includes X’s “only biological sibling”, her baby brother Y, and (b) X has settled back into life at (omitted) “extremely well.”[4]

   [4] This is confirmed, albeit now some little time ago, and essentially in relation to school, in the Family Report of Ms C, at par.90.

3. Mr Newton submitted that, among other things, because of the large geographical distance between the parties, there was no need for the Grandmother to have an order, as he described it, as ‘parental responsibility’ in her favour.  As I note later in these reasons, this is not what the Grandmother sought.

4. Mr Newton noted that he had put a ‘without prejudice’ proposal to the Grandmother with a view to putting a “joint submission” to the Court regarding the Grandmother’s time with X.  The Father said that this approach was ignored.

5. The Father also submitted that the Grandmother’s proposal that X visit her every four weeks was/is “highly unusual” and placed a significant burden on his family.  He took this view, among other things, because the Respondent (a) is a Grandparent and (b) X has three different sets of biological Grandparents.[5]  He argued that to grant the orders sought by the Grandmother would (in my words) unfairly prejudice the other Grandparents “all of whom have contact with and support X.”

   [5] This too was noted in the Family Report, at par.86.

6. If the Grandmother’s orders sought were to be granted, he said it would mean that X would be travelling to Sydney three out of every four weeks.  Such a circumstance and regime, the Father submitted, was impractical. 

7. The Father also seeks an order in relation to changeover that would prevent Mr M (X's Mother's Husband) from attending any such event.  The Father says that Mr M’s presence and behaviour is intimidating and, in the past, it has caused anxiety for X.

8. Finally, the Father also seeks an order regarding notification to him in the event that the Grandmother proposes to spend time with X not at her residence.

The Grandmother’s Submissions

1. Again summarily stated, the Grandmother’s submissions refer extensively to the Family Report, including the testing that is annexed to it. 

1. The Court may reasonably and properly infer that the recommendations take account of any testing that is attached to the Report.  This is to say that the testing was/is part of the material that informed the ultimate evaluation and recommendations and should not, without specific reference by the report writer to it otherwise, be considered separately; it certainly should not be treated or considered apart or separate from the evaluation and recommendations.  The testing has no independent existence or relevance.  Put shortly, any psychological testing that is part of a report, including by way of an appendix to it, carries no weight or value that is separate or independent from the evaluation and recommendations in the report proper.

2. The introductory five paragraphs of the Grandmother’s submissions refer to or reference pars.37, 38, 77, 82, 92 and 94 of Ms C's Report.  These paragraphs support, among other things, it was submitted, X’s desire to maintain a close relationship with her Grandmother, and to live a normal life with a normal family.  The Grandmother submits that it is through X’s relationship with her that X will now experience and maintain valuable and enduring contact with X's Mother’s family.

3. The submissions then move to a detailed consideration of each of the following: the Grandmother’s time with X during school term, then in relation to Christmas holidays, Easter, Mother’s and Father’s Day, overseas travel, parental responsibility, SMS communication and changeover.  I will not traverse each of these matters because, in my view, the ICL’s submissions more than adequately address them.  To a significant degree, I agree with and adopt the ICL’s submissions.  In such circumstances, it is sufficient to note the following.

4. The Grandmother supports the recommendations of the family consultant regarding X spending time with her Grandmother each month.

5. The Grandmother then refers (par.8) to matters that she reported to the family consultant (Report: par.62) to support a submission that, at this stage, X may be more comfortable speaking with her Grandmother about certain matters (e.g. pubertal development) but not yet with her ‘new family.’

6. Leaving aside that the Father is qualified and works as a (occupation omitted), I simply observe that X will always have her Grandmother (and her Aunt) to speak with about matters of her choosing and at a time of her choosing.  It should not be the case that any [generally unspecified] matters that the Grandmother reported to the family consultant should now form the basis for Court orders that could have the effect of consolidating a central and directing role of the Grandmother in X’s life.  It has been remarked many times in earlier reasons that the Grandmother is a significant figure in X’s life.  It should be for X to determine and in keeping with her Father’s proper role and the family with whom she permanently resides, when and how she speaks with her Grandmother and on what subject.  The Grandmother’s role should be supportive and never directive or controlling of (or remotely intrusive to) X. 

7. All of this is to say that what X speaks to her Grandmother about is a matter for X.  Even if it could, the Court will not give any direction to her in this regard.  It should follow from this that the Grandmother should not seek to pry into X’s life, or to give her any suggested life direction.  Her role should very much be that of an encourager and someone who nurtures; such a person should not and must not (as I have previously said), direct or control.

8. In the circumstances, I need not traverse the Grandmother’s extensive submissions regarding Christmas holidays, again because I agree with the comments of the ICL (noted below).  Similarly, I need not canvass the submissions regarding the Grandmother’s time sought with X at Easter because, as she says, she repeats the earlier submissions regarding Christmas holidays.

9. In any event, in relation to both holiday periods in my view, the Grandmother’s proposals again seek to intrude too much into and impact too directly and frequently on X’s life with her family in (omitted).  The submissions do not, in my view sufficiently take into account, among other things, the very significant distance between Sydney and (omitted).  The constant travel between the two centres will necessarily take its toll on all concerned, not least young X and those responsible for travelling with her.  As well, as she grows and her school responsibilities correspondingly increase, those demands will also likely impact on X’s capacity and ability to spend time with her Grandmother.  Flexibility and understanding will invariably benefit everyone better and X in particular rather than prescriptive orders regarding time and very significant travel between (omitted) and Sydney, even if the travel is shared.

10. Regarding Mother’s Day and Father’s Day, the Grandmother seeks particular orders essentially to enable there to be some commemoration of X’s [deceased] Mother.  As understandable as this is, as a regular occurrence, in my view it is something that can properly be addressed according to the comments made and orders sought, by the ICL.

11. The submissions regarding overseas travel are in my view, on one level, too vague and imprecise as to warrant any orders and at another level they are too dogmatic and prescriptive.  Such matters fall in my view, directly in the control of the parent – the Father - who has sole responsibility for X.  It is not for the Grandmother to seek such detailed orders regarding overseas travel.  Moreover, as the ICL notes, there is no proposal for overseas travel before the Court in any event.

12. The orders the Grandmother seeks regarding “parental responsibility” relate to imposing on the Father what is described as a positive obligation to provide the Grandmother with medical and educational information.

13. Respectfully, in addition to the ICL’s submissions, the orders sought by the Grandmother in this regard again transgress significantly into the role of a parent - which she is not.  She may properly inquire of X about either her health (in general terms) or how she is going at school.  One of a number of risks the orders sought here pose is that, in a worst case scenario – particularly given the highly litigious history and general acrimony between the parties - they could well be used as a weapon by the Grandmother against the Father.  All such possibilities – remote or otherwise – should be avoided.  The Grandmother must not intrude into areas that should remain the preserve of the Father’s basic parental role.  General inquiry by the Grandmother of X – yes; prescription/direction – no.

14. The order sought regarding communication between the parties is unobjectionable.

15. The Grandmother confirmed that changeover is no longer an issue.

The ICL’s Submissions

1. By way of preamble to his substantive submissions, the ICL noted the ongoing hostility and lack of trust between the parties which leads him to conclude that he has little confidence that they will be able to find a way to work co-operatively in making arrangements for X.  With comments I endorse, he states further:

   Therefore the orders that the Court should make need to be more prescriptive than would be ideal and leave as little room as is practical for the Applicant and the Respondent to have to negotiate or agree.

2. In relation to the orders sought regarding parental responsibility, the nub of the ICL’s submission is that the orders sought by the Grandmother “go beyond those which would usually be given to a grandparent adopting a “grandmothering role.””  He observes further that there is “no basis for the Court to be concerned that the Applicant will not attend properly to ensuring that X’s medical and educational needs are met.”  I agree with and accept the ICL’s submissions in this regard.

3. The ICL does not support the Grandmother’s orders sought in pars.3.1 and 3.2, but proposes that the Father provide relevant information regarding X’s health to the Grandmother.

4. The ICL does not support the Grandmother’s orders sought regarding the parental role in obtaining a passport for X.  Moreover, as the ICL notes, there is no proposal before the Court regarding international travel and otherwise the Court should not get involved in such a level of micro-management.

5. Regarding “time with” arrangements, the ICL notes the comment in the Family Report about the Grandmother adopting a “Grandmotherly role”, albeit that that term is not defined.

6. Having regard to the distance between Sydney and (omitted), the ICL notes the importance and need for planning and co-ordination.  In this regard, the ICL recommends that it is best for X to look at time with her Grandmother by reference to school terms and school holidays rather than by reference to calendar months.  Respectfully, I agree.  To take this approach is practical, is patently in the child’s best interests and otherwise allows reasonable and regular time for X to spend with her Grandmother

7. The ICL recommends that “time on weekends occur twice during each school term and nominates the third and eighth weekends as the default position.”  Again for the reasons given by the ICL, I agree.

8. The ICL further submitted that X’s involvement with her family in (omitted) also needs to be taken into account, not least the capacity for disruption and time away in Sydney as sought by the Grandmother as being “unnecessarily intrusive” and not in keeping with a “grandmotherly role.”  The ICL suggests that the time during the first and third school holidays, as he proposes, will meet the issues regarding Easter holidays.

9. Regarding Christmas holidays, the ICL submitted that a single block of 10 days would properly accord with the Grandmother’s role and also meet or address more appropriately the [likely/possible] impact on X.  In my view, it would also address matters already highlighted about disruption to her family in the country and being away from her young siblings in (omitted).

10. The time proposed by the ICL he notes is in fact more than would usually or normally be accorded between a child and a grandparent.  Again, respectfully I agree with the ICL’s observations.

11. I also agree with his comments regarding Skype and telephone time for X.  In time it is more likely than not that X will self-regulate such matters.

12. Regarding arrangements for Christmas, after noting that X now lives in a blended family which the Court needs to take account of, the ICL submitted that it is “inappropriate to impose a prioritisation of the Maternal Grandmother over other extended family and step family.”  He then proposes that the Father facilitate time on either Christmas or Boxing Day each alternate year which “strikes a balance between the competing calls that will be faced by X in her blended family.”  Again, respectfully I agree.

13. The ICL sees no need for reasons he outlines for there to be a specific order for X to spend time with her Grandmother on X’s birthday.  He opines that such celebrations can be accommodated within the usual term 3 holidays.

14. Similarly, the ICL sees no need for there to be a specific order as sought by the Grandmother for X to spend time with her on the Grandmother’s birthday.  He submitted that he “does not see this as an issue central to X’s best interests, but as something that is more of a priority of the Respondent [Grandmother].”  Again, I agree.

15. The ICL continued in his submissions about the importance to acknowledge the anniversary of X's Mother’s death.  He suggests a course as to when this might best be accommodated in the course of time that would be occurring between X and the Grandmother in any event.  I accept his submissions in this regard.

Consideration & Resolution

1. Again I note that I will not (and need not) repeat what was said in my lengthy earlier reasons.  Nor will I repeat any of the comments from the Full Court’s judgment which dismissed the Grandmother’s appeal.  As I have already said, these judgments should be considered as the primary background to and touchstones (factually and legally) for the current reasons.

2. However, I will remark – again – that I would hate to think what this on-going contest has cost the parties (emotionally, financially, in time and energy expended, etc.) and what might have been the case if all those resources had been spent on more constructive pursuits, such as on X herself rather than fighting over her.  Likewise, I pause to ask rhetorically about the likely or possibly prodigious “cost” this litigation might have on X herself either immediately or in the longer term.

3. The level of discord between the parties has already been noted.  Something of a cameo of and some insight into the reasons for its on-going nature and depth is in my view, reflected in (a) the comments of Ms C that are set out earlier in these reasons, and (b) the submissions of the parties (as well as the ICL noting the depth of contest between the parties).

4. Regarding the former, I simply note the following from Ms C’s report regarding the attempt by the Grandmother to secure some personal or strategic advantage over either the Father or X, even in the delicate circumstance of meeting or attending upon the family consultant.  Ms C observed at paragraphs 87 and 88 of her Report (noted earlier in these reasons):

   [87] … Ms Whiteman’s tendency to try to get her own way was evident on the morning of the interviews with me when she attended some two hours early in an attempt to spend extra time with her granddaughter.  Ms Whiteman had apparently been advised the day before that X would not be made available to her at this time.  She should have been well aware that the morning had not been scheduled for contact purposes but rather for this assessment.

   [88] It is perhaps more concerning in terms of any future cooperation that Ms Whiteman did not abide by the arrangements proposed for this assessment and in a manipulative manner tried to get her own way.  Such actions can only heighten X’s anxiety as demonstrated during her time with her grandmother when X anxiously urged Ms Whiteman not to ask her to seek to “be the messenger” about a possible change in contact times.

5. The matters noted by Ms C bespeak a surprising and concerning lack of insight by the Grandmother, as well as a certain inability to let go of either X and or the litigious process to secure her own ends.  I make no formal finding of course in relation to such matters.  I simply note them as factors to be considered in making orders that are in X’s best interests in the light of the expert comments from a highly experienced family consultant.

6. In relation to the latter concern, or import evident from the submissions in my view, it is impossible to ignore the nature and depth of the acrimony made plain by comparison of the submissions and orders sought of the parties.

7. For example, and all by way of observation only, the self-represented Father provided his submissions in a summary form and clearly set them out in accordance with the Rules of this Court (Rule 2.01), double-spaced and in a font size of no less than 12 point.  The importance of such matters had been brought to the Father’s attention quite early in the proceedings following the receipt of some of his documents which were in a very small font and thereby difficult to read.  When this was raised with Mr Newton, the Grandmother’s lawyers’ agent was of course present in Court.  The Father’s orders sought (as is evident from being set out earlier in these reasons) are relatively modest, being only 12 in number.

8. In comparison and unfortunately contrary to the Rules of this Court, the Grandmother’s submissions from her highly experienced lawyers are single spaced and in an obviously smaller font.  The density of the typed script of the submissions makes it significantly more difficult to follow the arguments.  The High Court has commented often (and with concern) and regularly enough (Hayne J in particular) when Counsel provide submissions that seek to maximise their length for example, by using a smaller than prescribed font size, length being presumed to add to their weight or force.  While a common enough and understandable practice (even among university students to test page limits) to squeeze every possible submission into the prescribed page limit, plainly such a course (a) does not comply with the rules of court and (b) risks hindering (or even aggravating) rather than assisting the court in the consideration of the submissions.  I do not say this was the case here, but simply to remark how much more difficult it is to read and to digest submissions that do not conform to the Rules of Court.  Such Rules are prescribed for particular reasons; they are not legal persiflage or decoration.

9. Further, ignoring the multiple internal divisions of particular orders sought, the Grandmother seeks 26 orders which range from reference to travel only to countries that are signatories to the Family Law (Child Abduction Convention) Regulations 1986, to the Grandmother being able by Court orders to require the Father to obtain a passport “within fourteen (14) days of a request from the Respondent Grandmother to do so.”

10. The simple and straight-forward approach of the Father and the much more complex, directive and in limited respects intrusive approach of the Grandmother, in my respectful view, is plainly evident in this simple comparative example.

11. Submissions are intended (a) to assist the Court and (b) to persuade it in the light of relevant material.  For my part, (i) the extensive if not intrusive orders sought and (ii) the density of her submissions unfortunately perpetuate the concerns that were expressed in the original judgment regarding the blurring of the Grandmotherly and parental roles and those expressed by the Family Consultant (e.g. at pars. 87 & 88 of the Report).

12. Further, given the very difficult and fraught history of the matter, one would have hoped that there would have been some appreciation that it is not in X’s best interests, or of the parties themselves, for the litigation to be pursued and notwithstanding the many comments in the principal judgment and in the Family Report about the importance (for all) that litigious hostilities cease, the devotion to the litigation has continued apace.

13. It is apposite to note the following further matters from the Family Report, albeit in the most summary fashion.

14. First, as earlier noted, X is described as ‘well settled at school’ (par.90).

15. Secondly, the family consultant recommends (par.92) that the Grandmother “should adopt” (the language is more mandatory than hortatory) a “usual Grandmotherly role.”

16. Thirdly, the family consultant noted (par.93) the importance and significance of the distance between (omitted) and Sydney, as well as X being able to engage [readily or easily] in “extracurricular activities in (omitted).”

17. As was stated not infrequently in the principal judgment at first instance, more obliquely in the Family Report of Ms C, and also in the submissions of the ICL, regularly there has been and continues to be an attempted involvement by the Grandmother in X’s life (doubtless well-intentioned) but which in my view, is not in the child’s best interests.  On the past evidence and in the light of the orders sought, submissions and contentions made on the basis of material in the Family Report in my view, it remains unfortunately clear that the Grandmother does not (or does not wish to) yet fully distinguish or appreciate the distinction between her properly Grandmotherly role in X’s life and a more intrusive (well-intentioned to be sure) and directive quasi-parental role (even in limited respects) she seeks but which belongs appropriately and solely to X's Father.

18. It is also clear as the ICL submitted often, that X is part of a blended family.  The task of juggling the many competing interests and time of all parts of X’s family – immediate (with a not insignificant number of young siblings including baby Y) and wider – falls formally to X's Father (and his Wife).  It should not be a competition either for X’s affection or time between the senior members of her wider family.  In my view, the extensive nature and volume of orders sought by the Grandmother extend well beyond her proper role as X's Grandmother and are overtly more directive and intrusive than should be the case.

1. If it be needed, my view about the nature and limited (but still important) role of Grandparents is assisted and confirmed by the extensive comments of Benjamin J in Church v Overton.[6]

   [6] Church v Overton (2009) 40 Fam LR 357.

2. His Honour said at [30] (emphasis added):

   … the amended Act does not invest grandparents with a special category of rights or position over and above other people who might be significant to a child’s care, welfare and development.  The only people in such a special category are parents.

3. Then at [41] and [43], Benjamin J said (emphasis added):

   [41] It is clear that the Act has been specifically amended to refer to grandparents at various points. The legislative intent is that interested grandparents should be specifically considered and recognised when determining which orders to make in the best interests of a child.

   [43] The Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interests.  However, any determination of the best interests of a child or children should be informed by the family dynamics between the children’s parent/s and grandparent/s.  In that regard, the views of the parents are significant but not necessarily determinative.

4. Finally, at [47], his Honour said (emphasis added):

   Where parents jointly (or if a sole parent, solely) have a strong view in relation to the parenting of their children, courts should be cautious about interfering with that exercise of parental responsibility.  In general, parents best know their own children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of children. This does not mean that courts take over the role of parents.

5. Respectfully, I am assisted by his Honour’s comments, not least the observations that (a) ‘in general, parents best know their own children and the dynamics of the family in which the children live’ and (b) any determination of the best interests of a child or children should be informed by the family dynamics between the children’s parent/s and grandparent/s.  Benjamin J’s further comment about the Court not taking over the role of parents is also apposite. 

6. I would add to these comments and in conformity with this last observation, it is not for other [extended] family members likewise to intrude into the parenting role that rests properly with the sole parent – here X's Father (aided of course by his Wife, the Mother of X’s baby brother Y).  The orders sought by the Grandmother in this case in my view, to a significant and inappropriate degree, would have the effect (I make no comment on the intention) of intruding into the parenting role of X's Father.  Such would not be in X’s best interests.

7. For the sake of completeness, I note that in the case before Benjamin J, the Applicant Grandfather was denied any face to face time or permission to communicate with the children other than as agreed with the Mother and as agreed at the hearing as not being in their best interests.  The Grandfather was permitted to send three letters or cards in each calendar year to his grandchildren.

8. Such drastic orders are not of course, warranted in the current matter.

9. Here the Grandmother has been and will remain, a significant person in X’s life.  This has been stated often.  X should spend regular time with her.  It is really a question of balance (and discretion) as to the regularity of that time having regard to all the competing matters, not least (a) the large blended family in which X now lives (significantly and doubtless wonderfully with a small tribe of young siblings), (b) the very large distance and travel time between (omitted) and Sydney, (c) the still very significant acrimony between the parties and (d) the other extended family members who also (like the Grandmother) seek to spend regular time with X.

10. A concluding observation: in the course of these reasons there has often been reference to the importance of the Grandmother adopting a ‘grandmotherly role’ rather than a parental role.  In this regard, I venture to suggest the following given that such a title, description or role is never defined.

11. First, to be a ‘grandparent’ for the purposes of the law is defined more by what it is “not” rather than by what it “is.”  This is to say that to be a ‘grandparent’ means by definition that such a person is not a parent with all of the authority and responsibilities which that role encompasses, both on a daily and a long-term basis.  Just so here: the Grandmother does not (and now does not seek – except in certain defined respects) daily responsibility for decisions and the like for X.  As I have indicated and formally ruled in my earlier judgment, she should not have any such responsibility.

12. Secondly, classically a Grandmotherly role might more properly be seen in terms of aiding in the cultural and other educational aspects of a child’s life, not by daily involvement but rather by example and encouragement.  Typically according to Plato and Aristotle, this is by conducting one’s life in “virtue”, which such classical scholars understood as one involving a life of self-control, rather than the control of others.[7]

    [7] There is abundant literature on such understanding, such as the following very small, representative sample: P. Foot, Natural Goodness, (Oxford: Clarendon Press, 2001); W. Jaeger, Paideia: The Ideals of Greek Culture, (Three Volumes) (New York: Oxford University Press, 1945); A. MacIntyre, After Virtue: A Study in Moral Theory, (Second Edition) (Notre Dame: University of Notre Dame Press, 1984); M. Nussbaum, The fragility of goodness: Luck and ethics in Greek tragedy and philosophy, (New York: Cambridge University Press, 1986 [reprint 1995]).

13. According to this classical tradition, the object of life is “happiness” which comes from a life of virtue.  Such virtue is not only to be developed in one’s own life but also to be encouraged in the lives of others – especially family – with whom we come into contact.  Part of such a life as just mentioned includes the “encouragement” of virtue and the support necessary in it.

14. Thus so here: the Grandmother is clearly a well-educated woman of significant life experience.  All her educational, cultural and life experience is now best served by stepping back from a directorial role in X’s life and properly assuming the ‘grandmotherly’ role of encouraging X (and others) to develop a life of virtue.  Aid, comfort, succour, encourage, nurture, even blithely enjoy – but never direct or control.

15. All the family (on all sides) has endured much ‘character-building’ during and after the tragic circumstances of the death of X's Mother.  I suspect that the rawness of that death remains acute – and will likely do so for some time.  Much healing of emotions and much else remains.  The study by Nussbaum to which I have referred in these reasons and by Dr R noted in the earlier reasons, deal (in different ways) with life’s means to cope with tragedy.

16. The Grandmother’s role in my view, should be that of mentor of X (when sought) and a support and encourager in X’s life.  The day to day (and medium and long-term) decisions must properly reside and remain solely with X's Father.

17. It is for these two important people in X’s life – her Father and her Grandmother (as well as other senior members of X’s wide family on all sides) – in the midst of all the hustle and bustle of every-day life, to appreciate what each can and should bring to her life without the difficulties that have characterised recent times.

18. In all the circumstances noted (a) in the earlier judgment (including the jurisprudence and legislative framework there considered), (b) the judgment of the Full Court and (c) in these reasons in my view, the best interests of X in accordance with s.60CA of the Act, are paramountly served by the orders proposed by the ICL (as slightly amended in relation to changeovers and the non-attendance of Mr M). One can only hope most earnestly that this third round of litigation will end the exorbitantly expensive and damaging cycle of contest between the parties – for their sakes and especially for X’s. We shall see.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:       26 February 2014