O & M - [2006] FMCAfam 11

FEDERAL MAGISTRATES COURT OF AUSTRALIA

O & M

[2006] FMCAfam 11

FAMILY LAW – Parenting orders – applicant not a biological parent of the child – significant other person – threshold test – concern for the care, welfare or development of the child – best interests of child – child’s wishes – section 68F(2) factors.

Family Law Act 1975 (Cth), ss.60B, 64C, 65C, 65E, 68F(2)

B and B; Re Family Law Reform Act (1997) FLC 92-755
KAM v MJR & Anor (1998) 24 Fam LR 656
Stevens and Lee (1990) FLC 92-201
Re C and D (1998) 23 Fam LR 375

Applicant:

KSO

Respondent:

LMM

File Number:

CAM 513 of 2004

Judgment of:

Mowbray FM

Hearing dates:

17 & 18 November 2004

Delivered at:

Canberra

Delivered on:

18 January 2006

REPRESENTATION

Counsel for the Applicant:

Ms A Tonkin

Solicitors for the Applicant:

Julie Dobinson & Associates

Counsel for the Respondent:

Ms M Burgess

Solicitors for the Respondent:

Legal Aid Office ACT

ORDERS

The child NHM born May 1998 reside with the respondent mother.
The respondent have the responsibility for the long term care, welfare and development of the child.
Each party have responsibility for the day to day care, welfare and development of the child during such times as she is in their respective care.
The child have contact with the applicant as follows:
(a)During Australian Capital Territory school terms on the first weekend of each month from after school on Friday until the commencement of school on the following Monday;
(b)For the first two weeks of the Australian Capital Territory Christmas school holidays in years ending in an even number and for the second two weeks of the Australian Capital Territory Christmas school holidays in years ending in an odd number;
(c)For the first half of all other Australian Capital Territory school holidays in years ending in an even number and for the second half of all other Australian Capital Territory school holidays in years ending in an odd number;
(d)For a total period of three hours on the applicant’s birthday as agreed between the parties or failing agreement from 4.00pm until 7.00pm;
(e)For a total period of three hours on the child’s birthday as agreed between the parties or failing agreement from 4.00pm until 7.00pm;
(f)From 9.00am on Christmas Eve until 9.00am on Christmas Day in years ending in an odd number and from 9.00am on Christmas Day until 9.00am on Boxing Day in years ending in an even number; and
(g)At such other times as agreed between the parties.
Contact between the applicant and the child be suspended as follows:
(a)For a total period of three hours on the respondent mother’s birthday as agreed between the parties or failing agreement from 4.00pm until 7.00pm;
(b)For a total period of three hours on the child’s birthday as agreed between the parties or failing agreement from 4.00pm until 7.00pm;
(c)From 9.00am on Christmas Eve until 9.00am on Christmas Day in years ending in an even number and from 9.00am on Christmas Day until 9.00am on Boxing Day in years ending in an odd number; and
(d)In the event that Mother's Day falls on a contact weekend, the child be returned to the mother at 9.00 am on Mother's Day.
The child have telephone contact with the applicant each Thursday between 6 pm and 7 pm and at all other reasonable times as agreed.
Unless otherwise agreed between the parties the applicant will collect the child from the respondent’s home or the child’s school at the commencement of contact and return the child to the respondent’s home or the child’s school at the conclusion of contact.
The applicant be restrained from consuming alcohol for 12 hours prior to and during any period of contact with the child as provided for in these orders.
The applicant be restrained from smoking marijuana for 12 hours prior to and during any period of contact with the child as provided for in these orders.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and of the consequences that may follow if a person contravenes these orders be attached to these orders.
AND THE COURT NOTES
The undertaking of the applicant that she will not refer to the child as her daughter.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 513 of 2004

KSO

Applicant

And

LMM

Respondent

REASONS FOR JUDGMENT

The applicant seeks contact with the child, NHM, born May 1998. The respondent mother wants that application filed on 31 March 2004 dismissed.
The applicant, KSO, was born June 1981 and is thus 24 years of age.
According to the chronologies filed in this matter the respondent, LMM, was born August 1980 and is thus 25 years of age. In oral evidence LMM said her birthday was in September.
By occupation the applicant is a child care worker. The respondent is a nursing student at the University in Canberra.
The parties met in 1996 at High School.

The issues

The principal issue in this case is whether it is in the best interests of NHM to have contact with the applicant who is not a parent but a person with whom, the applicant asserts, the child has had a significant relationship since birth. This raises two questions:
·whether the applicant is a significant other person for NHM – a person of significance to her care, welfare or development
·if so, what contact arrangements are in NHM’s best interests.

The evidence

KSO

The applicant, KSO, filed her application on 31 March 2004 following a decision of the respondent to cease contact. On 25 May 2004 interim orders were made by Federal Magistrate Brewster. Those orders provided that the applicant have alternate weekend contact with the child.
The applicant says that she first met the respondent in 1996 when they were both in year 10 at high school. The applicant contends that the parties had a close relationship which became stronger during the respondent’s pregnancy with NHM. The applicant contends that the parties had a sexual relationship in 1997 which lasted for about 3 months. Although the applicant was shocked to learn of the respondent’s pregnancy she agreed to support her and help her raise the baby.
During the respondent’s pregnancy she stayed at the applicant’s parents’ home with the applicant on at least two or three nights per week and they saw each other regularly. The applicant contends that during the pregnancy she supported the respondent with her medical appointments, shopping for baby clothes and equipment and that she played a significant role in choosing a name for the baby.
The applicant says that the parties agreed that when the baby was born the applicant would be referred to as Daddy and the respondent as Mummy and that this was encouraged by the respondent. In September 2000 she received a Father’s Day card which was made by NHM at Childcare. The applicant contends that NHM referred to her as Daddy up until she was about 2 years old. The applicant, however, says she was concerned that NHM would be stigmatised at day care if this continued and encouraged NHM to call her K. She would also undertake not to make any public statement that NHM was her daughter.
The applicant had a role at NHM’s birth. She cut her umbilical cord and recalls holding her when she was only a few seconds old. Following her birth she spent considerable time with her each day.
After the respondent was discharged from hospital the respondent moved in with her grandmother. The applicant says that she stayed with the respondent three nights each week and the remaining nights they stayed at the applicant’s parents. During this period the applicant assisted the respondent at night with changing the baby and passing her to the applicant to be fed.
At this point in time the applicant was a student in Canberra and attended classes on weekdays. But when she was not in attendance she assisted the respondent to care for NHM. This continued for 3 months.
When NHM was 3 months old she was weaned. NHM stayed at the applicant’s home one night each week without the respondent. Both the child and the respondent spent each weekend with the applicant until about May 1999.
The applicant accompanied NHM on a number of occasions to her medical appointments because the respondent was too tired. The applicant contends that she organised NHM’s medical prescriptions to be filled and assisted in the administration of any medicines. The applicant also assisted the applicant and NHM financially by purchasing clothes, nappies, paying for medical appointments and medications and groceries and other incidentals.
In about May 1999 the respondent was having difficulties coping with caring for NHM. On the applicant’s evidence the respondent stated:
I’m having trouble coping with her, I can’t look after her.
The respondent stopped staying at the applicant’s home but NHM continued to stay over at least three nights per week and each weekend which continued until about July 2001. The applicant contends that on some occasions NHM would be in her care for up to 14 days without any contact with the respondent.
In July 2001 when NHM was just over three years old the parties entered into a foster agreement organised through Barnardos. The respondent indicated to the applicant that she was unable to care for NHM. The agreement provided that the applicant would be NHM’s full time carer and that the respondent would provide all Centrelink benefits received for NHM. During the tenure of the agreement the respondent had weekend and telephone contact with NHM. The agreement remained in force for about three months. In the first month of the agreement the applicant worked full time and NHM attended Day Care. The applicant claimed that she resigned from her job to care full time for NHM.
In September 2001 the respondent contacted the applicant and stated that she was feeling better and wanted NHM to come and live with her. The applicant continued to see NHM each weekend and each year she holidayed with the applicant and her parents for up to a week.
In late 2002 the respondent ended NHM’s contact visits with her when she telephoned and stated:
I don’t think that it is a good idea if NHM comes and sees you anymore. She isn’t going to see you anymore.
In late October or early November 2002 the respondent told the applicant’s father that NHM was upset and that the respondent wanted to reinstate contact with the applicant during the day, a couple of times during the week. That arrangement continued until January 2003.
Around October 2002 the applicant’s father showed the applicant a letter written by the respondent:
I’ve thought about your letter, and these are my thoughts. I’m writing them down because it’s clearer that way, and anyway, I would find it awkward and intense to talk about this on the phone.
Firstly I want to acknowledge that you, FO, and KSO have, if not legal, moral rights to be in NHMs life. To take these rights away, as I was planning to do to KSO not long ago, would require serious justification, I’ve realised that it just isn’t justifiable to do that in this case. NHM misses KSO very much, and you and FM. Also, you and FM were being torn away from NHM for no reason. KSO would have to be an axe wielding maniac to justify all that.
But things have changed. If you want to know where I stand concerning NHM’s relationship to the O household I’ll put it bluntly. I no longer want KSO to play the same role in NHM’s life as she once did. This is for various reasons building up over the last four and half years culminating in what happened on my birthday last month. I don’t care who’s right or wrong in our personal dispute. I don’t care what you or anyone else thinks of my decision to cut KSO’s role, it still stands. So far she has been a parent to NHM to a great extent. When I was sick she was a parent to a greater extent than I was.
However, although I may not be the best parent, I’ve come to the conclusion that KSO would be even worse in the long term, and that’s that.
You and FM are lovely grandparents to NHM and so long as you’re happy to continue being so, then I don’t want to change that. So as grandparents I think it’s perfectly appropriate that you see NHM on the weekends to play with her. I don’t see any need for NHM to stay two days in a row. If you only see her for one day, you would be seeing her no less than my parents or DG do. In fact you would be seeing her more than my parents do. NHM has a bedroom at DG’s house although she very rarely sleeps there. However she feels just the same sense of belonging in his house as she does in yours, and she loves him just the way she loves all of you.
KSO can still have a relationship with NHM, and so can you and FM. If you play with NHM and give her a lot of attention for the time she is there, I don’t see how your relationship will suffer. However, obviously KSO will not be such a big part of NHM’s life. She will no longer be like a parent. I realise this is going to affect KSO deeply, and probably all of you, but I think that if NHM knows that she goes to your house to visit for the day and not to stay for a long time she will adapt and be quite happy with the situation. She is happy and comfortable in her relationships with DG, and with my parents, so she should be quite comfortable in the same sort of relationship with the O family.
If you want to talk to me more I will listen but I don’t see me changing my mind. For NHM’s stability in the long run I think it’s for the best.
In late 2002 or early 2003 the applicant contends that NHM would become extremely upset at the conclusion of contact and would become quiet when she knew it was time to go home. When the respondent arrived to collect her NHM would throw herself on the floor and kick and scream and say I want to stay here. I won’t go.
From January 2003 to February 2004 NHM stayed with the applicant on Friday night and during the day on Saturday. This was following a request from the respondent. NHM also twice went camping with the applicant and her family. The respondent stopped contact from

1 February 2004.
In oral evidence the applicant agreed that she was a recreational user of marijuana, but denied that she was a heavy consumer of alcohol. She would consent to orders that she abstain from marijuana and alcohol use while NHM was in her care.
The applicant contends that NHM has a close relationship with her and her family. She contends that NHM seeks comfort from her when she is hurt and relies on her for her day to day needs. During contact visits the applicant attends to her meals, bathing and day to day care.

LMM

The respondent, LMM, regarded the applicant as a former school friend of hers. She denies that they were ever in a sexual relationship.
NHM does not know her biological father and he has never had any involvement with her. However, the respondent’s ex-partner, DG, fulfills the role of father for NHM. The applicant and DG lived with each other from June 2000 to February 2002. Their relationship continued until December 2003 and they remain close friends. NHM spends each Wednesday after school until before school on Thursday mornings with DG. He takes NHM to her swimming lessons on Wednesday afternoons.
When the respondent was pregnant with NHM she regarded the applicant as her closest friend. They had both belonged to a larger group of friends but as the others moved on she and the applicant remained best friends.
As NHM’s father was not around the respondent relied heavily on the applicant’s support during the pregnancy, birth and early months with NHM. But she was not financially or physically dependent on the applicant in any way.
The respondent contends that she never introduced the applicant as the baby’s other parent. This was an idea of the applicant’s which she found to be extremely embarrassing. She referred to her as her birthing partner. It was only the applicant who decided to have NHM call her ‘daddy’. She says that she went along with it to avoid upsetting the applicant.
She says that the applicant was constantly thinking something was wrong with NHM. The applicant believed NHM had behavioural problems and suffered from anxiety. As a consequence the applicant did take NHM to medical practitioners.
The respondent’s major concern with the applicant was the role model she provided for NHM. As teenagers both parties smoked excessive quantities of marijuana but she stopped using when she became pregnant and never took it up again. On the other hand the applicant was a heavy smoker and up until the end of 2001 she used a stick a night. The applicant’s marijuana usage reduced when she started drinking Jim Beam and Coke. The respondent says that during the second half of 1999 the applicant would drink a six-pack of Jim Beam every night.
The respondent was aware that the applicant’s drinking habits continued until January 2004. On a number of occasions when she had telephoned the applicant she was incoherent and would swear and yell. The respondent also had concerns about the applicant drinking and driving. However, in more recent times the respondent has not seen any signs of intoxication.
Although the respondent concedes that she and the applicant were close as teenagers she found the applicant’s social behaviour increasingly embarrassing. The respondent felt uncomfortable when the applicant would pretend they were lesbians and to grope her in public. The respondent admits that at first she found it amusing but later found it embarrassing. Eventually she became so aggrieved by it she stopped going out with the applicant socially.
The respondent alleges that the applicant is an aggressive woman and recalls nights when they were out when the applicant would pick fights with other people and behave in a very loud way. In particular, the respondent recalls an incident in September 2002 where the applicant jumped on her and put her hands around her throat and accused her of sleeping with her boyfriend at the time while she was pregnant.
The respondent contends she found a business card of the applicant’s father amongst NHM’s possessions. PO’s telephone number was on the card and was given to NHM for her to call him if she needed to. The respondent says that NHM told her that she was told by PO to keep the card a secret. When she confronted PO about it the applicant started to yell and scream at her in the presence of NHM.
Following the interim orders made by Federal Magistrate Brewster on 20 May 2004 the respondent was concerned that the applicant and her family were saying inappropriate things to NHM. In particular, the respondent says that the applicant’s father has told NHM that the respondent is a bad mother and the applicant says NHM can go and live with her. The respondent deposes that in October 2004 there were two occasions where NHM was crying and said you don’t love me, you love NE and that KSO said you love NE more than you love me and I can go and live with her.
In 2004 the respondent commenced living with NE and later they became more intimate but share separate rooms.
The respondent does not deny that NHM has had a close relationship with the applicant. She acknowledges that NHM is always happy to see the applicant and that she appears to be physically affectionate towards her. She does not however accept that NHM sees the applicant as a parent.
She accepts that in the early years, during pregnancy and the first 12 to 18 months of NHM’s life, the applicant was her best friend. But the respondent was the primary care giver, undertaking 90 percent of the various tasks. The applicant did assist, but her involvement was no more than the maternal grandmother.
In the respondent’s view the applicant considerably overstated the contact she had had with NHM. There was no joint parenting. The applicant and NHM spent very little time alone in the first 12 – 18 months. After that apart from the two or so months when NHM lived with the applicant when the respondent was ill with chronic fatigue syndrome, NHM’s contact with the applicant was much less than suggested by the applicant and her father.

The respondent did not see the applicant as having any ongoing role. Indeed she asserted that it was in NHM’s best interests to cease to have contact with the applicant. Once contact ceased NHM would grieve, but would get over it.

PO is the father of the applicant. He met the respondent in 1996. As a father he was concerned with the applicant’s decision to take on the role of parent to NHM because of her young age and was concerned that she did not understand the implications of her decision. Nevertheless he supported the parties and welcomed the respondent and NHM into his home.
PO has observed the relationship between the applicant and NHM. His evidence is that it is a close relationship. He too has developed a significant relationship with NHM. NHM refers to him as Pop and he accepts that his role is that of a grandfather.
PO confirmed his daughter’s evidence on her role, relationship with and contact with NHM. This was particularly important at various times when the respondent was having difficulties coping or was suffering tiredness or illness.

FM is the mother of the applicant. She met the respondent in 1996. Like her husband she has developed a relationship with NHM. During contact visits she assists NHM with craft, artistic development and literacy skills. Both she and NHM enjoy singing and cooking.
She attests to both NHM and LMM having been an important part of her family. She too supports the evidence of her daughter.
FM regards both NHM and the respondent as an important part of her family.

DG is the former partner of the respondent. Their relationship commenced in January 2000 and they lived together until February 2002 when he went overseas. On his return in May 2002 they resumed with him sleeping at the respondent’s house four or five times a week until they separated in about December 2003. They have remained good friends.
DG perceives himself as a father figure for NHM. He contends that he plays a significant part in her life. He has contact with her each Wednesday evening and returns her to school on Thursday mornings. He organises her swimming and knows the parents at her school. Towards the end of their relationship in December 2003, he and NHM would have special “DG days” on Friday afternoons after pre-school.
DG asserted that the applicant’s contact with NHM was not as extensive as she suggested. However his oral evidence on this and his own contact was somewhat confusing.
DG witnessed the applicant shouting at the respondent regarding NHM’s health and on another occasion DG contends that the applicant appeared drunk when she arrived at the respondent’s house yelling and then grabbed the respondent by the throat and accused her of sleeping with her former boyfriend.

Family reports

There have been two family reports prepared in this matter. The first is a report of Ms Wendy Styles, a Child and Family Counsellor, and the second is a report of Sue O’Connor, a Registered Psychologist, from Family Dispute Resolution Specialists. Only Ms Styles gave oral evidence.
Ms Styles concluded:
6.1    There was no doubt in anyone’s mind that NHM enjoyed her visits with KSO and wanted them to continue. The question was rather whether it was in her best interests for the contact to be maintained or indeed increased, as KSO was proposing.
6.2    I did not ask LMM, as I might have, to tell me how she thought NHM would react if contact ceased. From KSO’s account it seemed that previously NHM had been upset and asking to see her. I would predict the same reaction again if contact were to cease now. KSO was satisfied that NHM would always know she loved her, whatever the outcome and was preparing herself for the worst.
6.3    LMM’s position seemed to be that she had become more mature and assertive in recent years and that she now saw KSO’s behaviour – her drinking and her not conforming to social norms – as inappropriate, and regarded her attachment to NHM as “obsessive”. She did not want the influence of KSO or her family in NHM’s life, claiming that NHM’s interactions after contact were “aggressive”. In her view, KSO’s attachment to NHM was “unhealthy”, with an element of “obsession” and a wish for NHM to “fill in her life”.
6.4    LMM believed that the contact was potentially damaging to her relationship with NHM, particularly the aggressive style of interaction between KSO, her sister and their mother. In my limited observations, I did not see any indication that contact with KSO would be harmful.
6.5    The question still remains, however, as to whether in the long term, it was in NHM’s interests to have Orders specifying her contact with KSO into the future. The initial cooperation between LMM and KSO had dissolved, and their relationship was now marked by antipathy. This situation, if it continued, would make it difficult for NHM to have a rewarding and uncomplicated relationship with KSO and her family.   I don’t believe either LMM or KSO would deliberately speak ill of the other in front of NHM, and I saw no indication that NHM was aware of the hostility between them, although she knew they had nothing to do with each other.
6.6    In my opinion, NHM’s phone contact to KSO ought not to be restricted. KSO could be allowed to call once a week, or to return any missed calls from NHM. If face to face contact were to be ordered, KSO’s proposal for alternate weekend contact from conclusion of school on Friday to start of school on Monday would have the advantage of minimising the potential for any conflict between the two women. It would also allow LMM to enjoy an entire weekend with her daughter and give her an opportunity to have a child-free weekend. As NHM grows older, her social life will undoubtedly mean that staying over at KSO’s will be less relevant than spending time with her peers. I thought KSO would be understanding of this.
A number of further points emerged from Ms Styles’ written and oral evidence:
·the applicant was a key figure in NHM’s life
·the applicant showed a strong commitment to NHM’s wellbeing and was focussed on her best interests
·Ms Styles was unable to reach a firm view about a contact regime
·if the Court were to order face to face contact, the present arrangements would be appropriate
·as NiHM had commenced school, ending contact would possibly not have a significant impact on her development. But Ms Styles could not be sure about this
·NHM would be mystified and sad if this occurred
·ceasing contact when she was older would be less distressing than an abrupt end now
·however, NHM was a well adjusted little child who could handle such setbacks
·any phasing out of contact would be better handled when she was eight or nine and “into a much more social phase of her life”.
The more significant points from Ms Connor’s report were:
·infants with more than one carer will attach to secondary figures when the primary carer is not available. This appeared to be the case with NHM and the applicant
·NHM’s own wish to see the applicant as often as every weekend indicated she viewed her as a key figure in her life and was indicative of a strong attachment
·NHM was attached to KSO’s parents as de facto grandparents
·NHM’s future psychological wellbeing depends on her current emotional adjustment being maintained and not disrupted
·children allowed to maintain their attachments after separation fare better than those not allowed to do so
·loss of key relationships by separation involves a grieving process. For children this is expressed behaviourally
·it was not until above the age of nine that the grief reactions of the adult type begin to appear in children
·there will be a developmental progression in NHM’s relationships with both KSO and KSO’s parents if these relationships are allowed to take their natural course
·“such an approach would be far less distressing to NNHM than an abrupt loss now”.

Consideration

Some principles

Residence, contact and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. They are subject to s.65E which provides that in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle. In B and B; Re Family Law Reform Act (1997) FLC 92-755 the Full Court of the Family Court said:
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII [of the Act] of the type to which we have referred, starts from that essential premise and it remains the final determinant.
This case is unusual in that the application is made by a person other than a biological or other parent or family member in the traditional sense. Indeed the applicant accepts that she has not played a parenting role and that she has not been the primary care-giver, but a co-carer.
Section 60B(2)(b) provides that one of the principles underlying that part of the Act that deals with children is that, except where it would be contrary to a child’s best interests, children have a right of contact, on a regular basis, with both parents and with other people “significant to their care, welfare and development”. Further s.64C allows a parenting order to be made in favour of a parent “or some other person” and s.65C enables “any other person concerned with the care, welfare or development of the child” to apply for a parenting order.
Section 65E requires the Court to “regard the best interests of the child as the paramount consideration” when deciding whether to make a particular parenting order. Section 68F(2) sets out the matters that the Court must consider to the extent that each is relevant when determining what is in a child’s best interests.
In KAM v MJR & Anor (1998) 24 Fam LR 656 Burr J considered the principles which should apply in cases such as this. He concluded:
5.1.3 In order to proceed beyond the mere making of the application, the applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.
5.1.4 That the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case. For example, as mentioned earlier in my reasons, it may be appropriate for a complete stranger, say in the form of an aunt who resides overseas, to be granted a parenting order by this Court in the event of the death or incapacitation of the child’s parents. The nature and degree of her concern with the care, welfare or development of the child in that case, would be defined and determined by entirely different circumstances than those which exist in this matter. I do not find the authority to which Ms Vanstone referred me to be of benefit or assistance in the context of Part VII of this Act where the Court must regard the best interests of the child as the paramount consideration (s 65E). There may well be circumstances in this court where a mere “interest in” or “concern about” the child in question is sufficient to satisfy the threshold test. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child, as would be the nature and form of any such order.
5.1.5 The specific wording of s 65C(c) appears to require demonstration of a concern with only one of the issues of care, welfare or development.
Ms Burgess for the respondent directed me to Stevens and Lee (1990) FLC 92-201, a case decided prior to the current Part VII provisions, where Kay J said at 78,384:
There then comes a second stage, if I may place matters in degree of appropriateness, where a child has a long and well-established relationship with a person other than the parent. This can be a grandparent; it can be a cousin; it can be a godparent; it can be the next door neighbour; it can be the babysitter; or it can be a step-parent. In those cases, if the Court is satisfied that the relationship is of significance to the child, that a bond exists and that the child will suffer detriment if the bond is severed, the degree of suffering then has to be weighed against the degree of hostility which exists in the custodial parent.
In those circumstances, if the Court is satisfied that the welfare of the child will be best served by continuing the association the child has with the person the parent does not desire the child to associate with any longer, the Court will not hesitate but to continue the relationship. However, it starts from a different premise than it does with non-custodial parents, that is, when it starts dealing with people who are not natural parents, the Court does not necessarily commence from the assumption that access is going to be good for the child.
In Re C and D (1998) 23 Fam LR 375 Nicholson CJ and Baker J said at [4.3]:
… Hannon J held on the evidence … correctly observing that …:
Persons significant to the life of a child are not confined to those who are biologically related to the child, in the same way that the existence of a family is not determined by biological considerations.

Significant other person

The applicant, KSO, strongly asserted that she was a person concerned with the care, welfare or development of NHM. In support she pointed to:
·a relationship since NHM’s birth and with NHM’s mother during pregnancy
·a contact regime extending back to birth, although there was dispute on some of the detail
·co-carer for the first 18 months
·NHM’s significant emotional attachment to the applicant
·an acknowledgement of that role in a letter from the respondent in October 2002, although the respondent tried to resile from this under cross examination
·a quasi-parenting role when the respondent was in ill health or distress, including over two months as a foster parent at the respondent’s request
·the applicant’s parents having been de facto grandparents to NHM, especially PO
·in a drawing for Ms Styles NHM having included the applicant and PO as part of her family group
·the applicant having been “a stable influence in NHM’s life and has continued to be a stable influence in NHM’s life”.
The respondent just as strongly contested this:
·the applicant significantly overstated her degree of involvement
·there was nothing approaching a parental bond
·the respondent had made all the parental decisions
·although the applicant had provided support and had regular contact she has not been part of the family
·the applicant had played no more important a role than the maternal grandmother.
I am comfortably satisfied that the applicant has played a significant part in NHM’s care and welfare, and probably development. There is some dispute about how extensive that role has been. However, even on the respondent’s evidence, I am satisfied that the applicant meets the test. To the extent that there is a dispute I am inclined to prefer the evidence of the applicant and PO.
I find that the applicant has played a co-carer but not a parental role for a significant part of NHM’s life. An important bond exists between NHM and the applicant, and also with the applicant’s family, particularly PO. I have reached these conclusions essentially for the reasons submitted by the applicant set out above.
In my view Stevens and Lee is not relevant to this threshold test. It was decided prior to enactment of the current Part VII. Burr J considered it in KAM v MJR without incorporating it in his principles. He simply noted that it provided a simple illustration of the vast number of people other than parents who may have cause to make application.
As I have indicated above I am more than satisfied that the applicant passes the threshold test for a significant other person.

The best interests of NHM : section 68F(2)

The test is what contact arrangements are in the best interests of NHM. For this I am bound to consider the matters set out in s.68F(2) of the Act insofar as they are relevant.
Paragraph (a) requires me to consider any wishes of a child. NHM is only seven years old. Neither party sought to rely on NHM’s wishes alone as a basis for the orders sought by them. NHM however told Ms Styles that she would like to spend more time with the applicant. She wished to spend every weekend there and said she became very excited and enthusiastic at the prospect.
Paragraph (b) concerns the relationships a child has with parents and other persons. I have considered this issue to some extent earlier in these reasons. It is without question that NHM’s relationships with the parties and the applicant’s family are strong. NHM regards the applicant and PO as the second and third most special people in her life after her mother. NE, the respondent’s partner, and FM are not so close. NHM has a strong emotional attachment to the applicant and PO. Ms Connor confirmed the strength of attachment.
Paragraph (c) requires me to examine the likely effect of any changes in a child’s circumstances, including the likely separation from any relevant persons. NHM has developed a strong relationship with the applicant and her family. Ms Styles reported that the applicant had told her that when she had previously been cut off NHM had been upset and had asked to see her. Ms Styles predicted the same reaction if contact now ceased again.
Under cross examination Ms Styles said that NHM would be mystified and probably sad. It would “possibly not” have any significant impact on her development. NHM was well adjusted and could handle such set backs. But my impression was that Ms Styles was somewhat ambivalent and uncertain. This is clear from her oral evidence.
Ms Connor did not see the parties nor NHM but relied on Ms Styles’ report. She said that separation would result in a grieving process expressed behaviourally. If the developmental progression in NHM’s relationships were to take their natural course as NHM grew older, it would be far less distressing than an abrupt cessation now.
Although Ms Burgess suggested some minor practical difficulties of contact with the applicant (paragraph (d)), in my view they are relatively inconsequential.
The evidence indicates that both the respondent and the applicant have demonstrated a capacity to care for NHM and meet her emotional and intellectual needs (paragraph (e)). In particular, the applicant has been responsible for meeting NHM’s day to day needs when in her care during contact. She provided care and support when the respondent was staying at the O house. Furthermore for a short period she cared full time for NHM. I will discuss the respondent’s concerns about certain aspects of the applicant’s behaviour below.
I am conscious of the requirements of paragraph (f) to have regard to the child’s level of maturity, sex and background.
There is nothing in my view which suggests that NHM may be at risk with either the applicant or the respondent (paragraph (g)). There was no evidence that either party exposed NHM to any form of physical or psychological harm. Ms Styles expressly stated that she did not see any indication that contact with the applicant would be harmful.

However, the respondent’s major concern with the applicant is her lifestyle and what type of role model she may be (see paragraph (h)). The respondent testifies that the applicant is a heavy drinker and user of marijuana. This would affect her capacity to care properly for NHM. The applicant also performs unacceptable acts and does not conform to social norms. This is all strongly contested by the applicant.
Ms Styles said that her contact with the applicant was limited. But she saw nothing which would suggest she would be a poor role model.
The applicant proposed a consent order that she be restrained from consuming alcohol or using marijuana for a period from 12 hours before to the end of contact.
Both the applicant and the respondent engaged in activities in years past which are unacceptable. They both admitted as much. But that does not appear to be the case today. It may also be that the respondent’s view of the applicant as a role model is coloured by her hostility towards the applicant. As far as the applicant is concerned she has recognised her responsibilities when with NHM. She took NHM in under foster care. Ms Styles reported that the applicant had a strong commitment to NHM’s welfare. She had a genuine concern focussed on NHM’s best interests.
In my view the applicant has demonstrated a positive commitment to NHM and to the responsibilities associated with a contact regime. This is reinforced by the support of the O family.
Paragraph (i) requires me to consider any family violence involving the child or a member of the child’s family. There is only one violent incident between the parties recorded in the evidence. The respondent says she was assaulted by the applicant in September 2002 after which she cut off contact. There is no other evidence of violence and certainly none involving NHM.
Paragraph (k) is directed at achieving finality of proceedings. Ms Burgess raised the possibility that if contact were ordered a time may come when NHM may no longer wish to continue contact with the applicant. Further proceedings may thus be necessary.
It is impossible to predict the future with any certainty. It may well be that as NHM matures she will want less time with the applicant. She may seek more. I am satisfied that the proposed orders will not in themselves lead to further proceedings.
One further matter to which I have given some thought (paragraph (l)) is the respondent’s hostility to the applicant and to the applicant being given contact. Clearly she wants the applicant out of her life and that of NHM. In view of the orders that I propose to make the parties will need to face up to this. Noting the evidence of Ms Styles, however, I am hopeful that both parties will deal with this as responsible adults so as not to adversely affect NHM. Counselling may assist.

Conclusions

NHM is in many respects a fortunate young girl. She has significant people in her life that clearly love and care for her. She has a close and strong relationship with her mother, the applicant and the applicant’s family. Her relationship with her mother’s current partner has not however been painted by NHM in a positive light. That is something the respondent will need to work on in promoting NHM’s interests.
The applicant has played a major role in NHM’s life and from that relationship NHM has developed a close affection for her. NHM is familiar with the applicant and her family and this is the environment she has known since her birth. I have found that the applicant is a significant person in NHM’s life.
Having regard to the evidence and the matters set out in s.68F(2) I am also firmly of the view that NHM’s interests would be best promoted by ongoing contact with the applicant. However, I do not think that such contact should be as extensive as that for a parent. I propose contact on the first weekend of each month, two weeks in the Christmas holidays and one week in each of the other holidays. In addition I propose telephone contact once per week.
I do not think that it would provide a healthy environment for there to be a phasing out contact arrangement. This would be difficult for NHM to cope with given that contact has previously been stopped by the respondent. Both parties recognise that as NHM approaches her teenage years her wishes for regular contact with the applicant may well change. However, for the present her interests are best promoted by ongoing contact with the applicant.
It is apparent that there is some considerable antipathy between the parties. This should be addressed by counselling. I do not propose to order that the parties attend counselling, but to leave this to their good sense, bearing in mind my view that this will help the parties to promote what is best for NHM.
I am satisfied that it is in the best interests of NHM to continue contact with the applicant and to therefore make the orders set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-five paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Natasha Werner

Date: 18 January 2006