Oldfield and Anor and Oldfield and Anor

[2012] FMCAfam 22

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OLDFIELD & ANOR & OLDFIELD & ANOR [2012] FMCAfam 22

FAMILY LAW – Parenting – grandparents’ application for time to be spent with them – dispute between parents and grandparents – where parents consider children at risk in grandparents’ care – family report indicates loving attachment between children and grandparents – consideration of the principles established in Rice & Miller (1993) 16 FLR 970 – whether amendments to Part VII of the Family Law Act 1975 elevate parents above other applicants – consideration of the direction contained within section 43 of the Family Law Act 1975 – consideration of ongoing psychological effects upon children if relationship to continue – consideration of various order options – determination that no order is appropriate.

Family Law Act 1975, ss.4, 43(1)(a)-(d), 60B, 60B(1)-(3), 60CA, 60CC, 61B, 61DA, 65C, 65D, 65DAA

Rice & Miller (1993) 16 Fam LR 970
Cole & Collier and Collier [2010] FMCAfam 1112
Potts & Bims and Ors [2007] FamCA 394
Donnell v Dovey (2010) 42 Fam LR 559
Ni & Zang [2008] FamCA 1100
Russell & Russell & Anor [2009] FamCA 28
In the Marriage of Drew; Lovett(Interveners) (1993) 16 Fam LR 536; [1993] FLC 92-360
Allen v Allen; Hargreaves(Intervener) (1984) 9 Fam LR 440; [1984] FLC 91-531
Pearn and Appleby [1977] FLC 90-231, Fam LR 447; FLC 79,300
Logie v The Department of Community Services of Victoria (unreported, 29 August 1991)
Re K (a minor) [1990] 3 All ER 795
Re K D (a minor) (ward: termination of access) [1988] 1 All ER 577
Re O'Hara (1900) 2 Irish Reports 232
Braithwaite and Braithwaite and Stocks (unreported, 19 December 1991)
F v Wirral Metropolitan Borough Council [1991] 2 WLR 1132
Smith and Swain [1978] FLC 90 -400
Overton v Martinez (1978) 3 Fam LN 79; [1978] FLC 90-406
In the Marriage of E (No. 2) (1979) 5 Fam LR 244; [1979] FLC 90-645
S v M (1980) 6 Fam LN 10
McGuire v Tull (1981) 7 Fam LR 195 and 326
Jarman v LLoyd (1982) 8 Fam LR 878
Beck v Phillips (1981) 6 Fam LR 837
C v T (1985) 10 Fam LR 458
Marriage of Robertson (1977) 2 Fam LR 11,699
Marriage of Steadman (1977) 3 Fam LN 68
Byrne v George (1980) 6 Fam LR 902
Werth v Rowe (1981) 7 Fam LN 16
Matthews v Chapman (1981) 7 Fam LR 982
C v Director General of Department of Youth (1982) 7 Fam LR 816
Stollery v Clarke (1978) 4 Fam LR 573
J v J (1982) 8 Fam LR 551
In the Marriage of E (1978) 4 Fam LR 1
Dodd and Dodd v Stuart (1976) 1 Fam LR 11,540
Nolan v Gardiner (1983) 3 Fam LN 1
C v Q (1981) 7 Fam LN 1
Sullivan v Read-Bloomfield (1983) 9 Fam LR 187
Stambe v Inzitari (1977) 2 Fam LR 11,607
Storie v Storie (1949) 80 CLR 597 at 603
Powell v Anderson (1977) 1 Fam LN 38; [1977] FLC 90-235
Overton v Martinez (1978) 3 Fam LN 79; [1978] FLC 90 – 406
Gronow v Gronow (1979) 144 CLR 513; 5 Fam LR 719; [1979] FLC 90-716
Lovell v Lovell (1950) 81 CLR 513
Kades v Kades (1961) ALJR 251
In the Marriage of Jurss (1976) 1 Fam LR 11,203; [1976] FLC 90-041
In the Marriage of Raby (1976) 2 Fam LR 11,348; [1976] FLC 90 -104
In the Marriage of Hobbs (1976) 2 Fam LR 11,380; [1976] FLC 90 -119
In the Marriage of Mulligan (1976) 1 Fam LR 11,599; [1976]  FLC 90 -080
Dennet and Norman [2007] FamCA 57
Connor & Bourke & Anor [2008] FMCAfam 69
Davis v Davis & Anor (2007) 38 Fam LR 671
Kay& Jasper and Green [2007] FamCA 1646
West and Anor and West [2007] FamCA 546
Re Evelyn (1998) FLC 92-807
D & F [2001] Fam CA 382
B v B: Family Law Reform Act (1997) FLC 92-755
Aldridge v Keaton (2009) 42 Fam LR 369

Applicants:

MR W OLDFIELD

MS J OLDFIELD

Respondents:

MR J OLDFIELD

MS MURPHY

File Number: TVC 58 of 2010

Judgment of: Coker FM

Hearing dates: 28 & 29 June 2011

Date of Last Submission: 29 June 2011

Delivered at: Townsville

Delivered on: 13 January 2012

REPRESENTATION

Counsel for the Applicants: Mr Betts

Solicitors for the Applicants: Ruddy Tomlins & Baxter

Counsel for the Respondents: Mr Honchin

Solicitors for the Respondents: Hinschen Lawyers

ORDERS

1. That all applications filed by the paternal grandparents be dismissed.

2. That should either party seek to make any application for orders in relation to costs, written submissions be filed within 28 days of today and the matter be determined in chambers, unless otherwise requested in writing by either party.

IT IS NOTED that publication of this judgment under the pseudonym Oldfield & Anor & Oldfield & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

TVC 58 of 2010

MR W OLDFIELD

MS J OLDFIELD

Applicants

And

MR J OLDFIELD

MS MURPHY

Respondents

REASONS FOR JUDGMENT

1. These proceedings are a little unusual and, I must say, also somewhat tragic. They involve proceedings between Mr W Oldfield and

   
   

   Ms J Oldfield whom I shall refer to jointly as the grandparents, and

   
   

   Mr J Oldfield and Ms Murphy whom I shall refer to as the parents.

2. The father, Mr J Oldfield, is the biological child of the applicant grandparents, and in his relationship with the mother, Ms Murphy, is the father of two boys [X], born [in] 2001 and, therefore, 10 years of age, and [Y], born [in] 2005 and, therefore, 6 years of age.

3. The relationship between the grandparents, and the parents, and through them, between the grandparents and grandchildren, was, until more recent times, very positive.  Since the birth of the younger of the two boys, [Y], however, there has been a deterioration in the relationship certainly between the grandparents and the parents which led, unfortunately, to the institution of proceedings by the grandparents on 20 January 2010 where they sought orders on both an interim and final basis in relation to the parenting of the children.  Interestingly, the orders that they sought included those types of arrangements which, to all intents and purposes, already existed.  By that I mean that they proposed that the parents should have equal shared parental responsibility, for decisions to be made with regard to the children, and proposed that the children should live with the parents.

4. What they specifically sought, however, were orders with regard to their opportunity to spend time with, and communicate with, the children at times as may be agreed and then went on to detail what might be proposed if the arrangements were not agreed.  The specific orders were as follows:

   1.The parents have equal shared parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2005.

   2.That the children live with the parents and spend time with and communicate with their grandparents at all such times and places as may be agreed between the parties and failing agreement with the grandparents every fourth Friday after school commencing the 1^st January 2010 to Sunday at 5.00pm.

   3.Unless otherwise agreed between the parents and the grandparents the parent whose period of residence of the children are ending shall ensure that the children are delivered to the other parents at the time agreed upon or failing agreement in accordance of paragraph two of these orders.

   4.That the children communicate with and have contact the grandparents or parents at all times that the children express a desire to and the parents whose period of residence shall make every endeavour to ensure that the child is able to communicate with that parent in a quiet environment in which interruptions are unlikely to occur.

   5.That the each party shall keep the other informed as to their respective addresses and telephone numbers and shall notify the other party of any changes within seven days of the event occurring.

   6.In the event of the children becoming ill or seriously injured whilst in the care of one of the parents, that parent will notify the other as soon as practicable.

   SCHOOL HOLIDAYS

   7.For up to one week of the annual gazetted school holiday periods as agreed between the parties on the giving of one month’s notice by the grandparents excluding the annual gazetted Easter holiday period.

   8.Failing agreement for the first half of the annual gazetted school holiday periods in even numbered years and for the second half of each school holiday period in odd numbered years excluding the Christmas holiday period of which the grandparents will have the first week of the Christmas holiday period in even numbered years and the last week of the Christmas holiday period in odd numbered years.

   CHILDREN’S BIRTHDAYS

   9.On each of the children’s birthdays both children will attend with the grandparents if on a school day for two hours at a time agreed and failing agreement from after school 3.00pm until 5.00pm.

   10.If not on a school day, for 4 hours at a time agreed and failing agreement form 1.00pm to 5.00pm.

   CHRISTMAS DAY

   11.For the Christmas period in even years, from 3.00pm Christmas Eve until 3.00pm Christmas day and in odd numbered years from 3.00pm Christmas day until 3.00pm Boxing day.

5. The parents responded to that application in the initial response filed on the 2 March 2010.  They sought orders with regard to the children living with them but did propose that the grandparents should spend time with the boys, at times agreed between the parties and at places as agreed between the parties.  The proposal was, however, that any time that they were to spend with the children was to be of a supervised nature.  Additionally, they proposed that the grandparents communicate with the children by telephone at all reasonable times.

6. On 10 August 2010 however, they amended their response in relation to this matter proposing, rather, that the orders should be of the simplest nature one could imagine.  They were as follows:

   1.  The Initiating Application filed the 20 January 2010 be struck out.

   2.  The applicant’s pay the First and Second Respondent’s costs.

7. Unfortunately, that position in relation to the matter remained unchanged, though, from the perspective of the grandparents there was some variation in the exact terms of the orders that they sought.  The final orders that were outlined in the outline of case tendered to the court at the commencement of the proceedings were in these terms:

   1.  That the children spend time with and communicate with their grandparents at all such times and places as may be agreed between the parties and failing agreement:

   (a)For up to one week of the annual gazetted school holiday periods as agreed between the parties on the giving of one month’s notice by the grandparents.

   (b)Failing agreement in relation to school holiday periods:

   (i)the first half of the annual gazetted school holiday periods in even numbered years and for the second half of each school holiday period in odd numbered years excluding the Christmas and Easter holiday periods;

   (ii)for the first week of the Christmas holiday period in even numbered years and the last week of the Christmas holiday period in odd numbered years;

   (iii)for the Easter gazetted school holidays in each year from 9.00am on the Tuesday following Easter Monday to Friday at 5.00pm

   (c)Unless otherwise agreed between the parents and the grandparents, the parents drop off the children to the grandparents residence in [C] at the commencement of each period when they are to spend time with the children and the grandparents are to return the children at the conclusion of each period the children spend with the grandparents to the parents at the [omitted] Service Station.

   2.  That the children communicate with the grandparents or parents by telephone at all times that the children express a desire to and the parents or grandparents whose period of residence it is shall make every endeavour to ensure that the child are able to communicate with that parent or grandparent in a quiet environment, not on speaker phone, in which interruptions are unlikely to occur.

   3.  At all times when the children are residing with the parents, that the grandparents communicate with the children at all reasonable times as agreed between the parties and failing agreement:

   (a)Each Wednesday between 7.00 pm and 7.30 pm, with such calls to be initiated by the grandparents; and

   (b)On each of the children’s birthdays both children will contact the grandparents by telephone at a reasonable time as agreed between the parties and failing agreement between 7.00 pm and 7.30 pm; and

   (c)On Christmas day both children will contact the grandparents by telephone at a reasonable time as agreed between the parties and failing agreement between 7.00 pm and 7.30 pm.

   (d)during such times when the children are spending time with the grandparents, that the parents communicate with the children each Wednesday between 7.00pm and 7.30 pm, with such calls to be initiated by the parents.

   4.  That each party shall keep the other informed as to their respective addresses and telephone numbers and shall notify the other party of any changes within seven (7) days of the event occurring.

   5.  In the event of the children becoming ill or seriously injured whilst in the care of one of the parents, that parent will notify the other as soon as practicable.

8. There were, during the course of proceedings over a period of some 18 months or so, various orders that were made in relation to the grandparents’ opportunity to spend time with the boys.  There were also orders made with regard to the preparation of two family reports, and I shall turn to the matters raised in those reports, as well as issues that fell during cross-examination of the report writer, a little later in these reasons. 

9. However, what is important to note in relation to the matter is that the parties’ relationship, unfortunately, continued to deteriorate which meant that for a significant period now there has been no time whatsoever spent by the children with the grandparents notwithstanding that orders had been made in relation to this matter.  Some exchanges and meetings have occurred, but they were much more of a cursory nature, such as brief meetings at rodeos and other encounters of that nature.

10. At the time of hearing, the parties agreed that the only persons who would be required for the purposes of cross-examination would be the grandmother and grandfather, and the mother and father, as well as the report writer, Ms S. Each, however, did seek to rely upon other evidence that was contained within affidavits that had been filed.  In particular, on the part of the grandparents there were affidavits filed by Mr B Oldfield and Ms S Oldfield. 

11. Again, the tragedy in relation to this case is evident when it is clear that Mr B Oldfield is the brother of the first respondent, the father

    
    

    Mr J Oldfield, and that having become, at least to some degree, enmeshed in the proceedings between the grandparents and the parents there has been a deterioration in the relationship between the two adult brothers.

12. In the affidavit filed by Mr B Oldfield on 27 May 2011 the deponent makes a comment at paragraph 14 which is telling in a number of respects.  He says:

    I am disappointed that I no longer have contact with [X] and [Y] and I know that my daughters are extremely disappointed that they do not get to play with their cousins any more.

13. It is telling because it clearly shows the breakdown in the family relationships and the consequential or flow-on effects that have arisen in that regard, in that the cousins who were apparently quite close have now started to draw apart.  More particularly, however, it is clear that the breakdown in the relationship between the two adult brothers has also had some effect, and perhaps by inference, it can be noted that whilst the disappointment is expressed by Mr B Oldfield in relation to no longer having the opportunity for contact with his two nephews, there is no reference to the breakdown of the relationship and any distress at the breakdown in the relationship between the two brothers and, of course, the sisters-in-law.

14. For what it is worth I accept the details provided by Mr B Oldfield in relation to this particular matter and note, of course, the apparent continued close relationship between he and his mother and father, the paternal grandparents in these proceedings. He notes also the continued involvement of the grandparents in the care of his daughters [names omitted] and I have no reason to doubt that that accurately reflects their relationship.

15. Ms S Oldfield is the wife of Mr B Oldfield, and the daughter-in-law of the applicant grandparents.  She is also, of course, the sister-in-law of the parents in relation to these proceedings.  She similarly comments about the positive relationship that continues to exist between she and her husband and the paternal grandparents and notes the continued involvement of the paternal grandparents in the care of their two daughters.  She also goes on to speak about the trust that she places in the paternal grandparents in relation to the care of the children and again, as the evidence is unchallenged I accept the positive nature of that relationship and of the genuine respect that is held by Ms S Oldfield for her parents-in-law.

16. Similarly, a number of affidavits were filed in support of the position taken by the mother and the father, in relation to these proceedings.  They included affidavits by Ms L, Ms C, Ms J, Ms R and Ms D.  None of those deponents were called in relation to the matter and all spoke of their observations of the relationship that the parents have with the children, and also commented about what they had observed on various occasions about the interaction between the parents and the grandparents, and the grandparents and the children.

17. Ms L speaks of observations that she made particularly with regard to the paternal grandmother’s interaction with her two grandsons and what she describes as the distinctions that were drawn in relation to them.  She speaks, in particular, of an attendance at the child [Y]’s first birthday party which was, of course, in 2006 and of the fact that there was, from her observation, a distinct difference between the interaction between the paternal grandmother and the older of the two boys [X], and the younger boy, [Y].  In particular in paragraph 5 Ms L refers to the paternal grandmother making a statement to the effect:

    I can’t bond with the other one, he’s too much like his mother.

    Ms L was not required for cross-examination and I accept her evidence in relation to this matter.

18. Additionally, Ms C filed an affidavit in which she speaks of various observations made by her in relation to interactions between the mother and the paternal grandmother as well as interactions involving the two boys and the paternal grandmother.  Ms C refers to an incident that she observed in 2009 where she says that the paternal grandmother ignored the child [Y] despite his calls to her and also an incident in the latter part of 2009 when both boys spoke to their paternal grandmother at an [omitted] shopping centre in [C] but that the paternal grandmother only responded to the older of the two boys, [X].  Generally Ms C indicated that there were a number of occasions where she noted a distinction between the reaction of the paternal grandmother to the two boys and of the concern that that caused her.

19. Affidavits were also filed on 10 August 2010 by Ms J, Ms R and Ms D.  It should be noted, of course, that Ms Murphy and Ms R are the sisters of the mother in these proceedings and Ms D is the maternal grandmother of the two children.

20. It is noteworthy that none of those deponents were required in relation to the matter and, of course, it may be that their evidence are only small snapshots of the entirety of the interactions and relations between the parents and the paternal grandparents, however, they do make comments about their observations of, again, a distinction to be drawn between the relationship as observed, particularly with the paternal grandmother and the child [X], as opposed to the paternal grandmother and the child [Y]. 

1. Again, whilst not being taken terribly far in relation to this matter it is noteworthy, and I accept, that their evidence is unchallenged as to their observations with regard to the relations between the parents and the grandparents and, of course, more particularly the distinctions that they saw in relation to the paternal grandparents’ relationship with each of the boys.  In particular Ms D comments under the heading Different Treatment of Boys by Paternal Grandparents at paragraph 20 and 21 as follows: 

   When Mr J Oldfield and Ms Murphy lived in [C] and I telephoned and [Y] answered the telephone, I heard [X] say “who is that [Y]”.  I heard [Y] reply “it’s my Nanny, not your Nanny.  Your Nanny is over there”.  When I have visited [C], [Y] has often referred to me as his Nanny and referred to Ms J Oldfield as [X]’s Nanny.  When [Y] has made these remarks Mr J Oldfield and Ms Murphy have pulled him up and corrected him, telling him that I am both their “Nanny”, as Ms J Oldfield is also both their “Nanny”.

   I have been present when Ms J Oldfield and Mr W Oldfield have been around.  I have observed from their body language and the way they speak to the children that they are more interested in [X] than [Y].

2. Whilst I did not have the opportunity of seeing these various witnesses in the witness box, I accept as best I can, the evidence that they give, in relation to these proceedings.

3. As indicated, I did have the opportunity to see both of the paternal grandparents and the mother and father in the witness box and I must say that I was more assisted in relation to these proceedings with having the opportunity to observe them giving evidence and being the subject of cross-examination, in relation to these proceedings than I was when considering the written material.  It is perhaps trite to say but it is accurate, that a picture does speak a thousand words and the opportunity to see each of the deponents and to hear their evidence in relation to this matter, was of particular assistance.

4. I should note at the commencement of these comments that I have no doubt as to the love that both of the paternal grandparents have for these two little boys, however, that is not to say that there could not have been better arrangements put in place and less conflictual stances taken, in relation to the proceedings.

5. I do not intend to spend a great deal of time criticising any of these four witnesses but rather to address specifically some of the small matters that have been influential in relation to the determination.

6. Turning first, then, to the evidence of the applicant grandmother,

   
   

   Ms J Oldfield.  I noted particularly that there was a reluctance on the part of the paternal grandmother to acknowledge that there may have been some fault, or at least a contribution on her part, to the difficulties that had arisen in relation to this matter. In particular when

   
   

   Mrs Oldfield was asked whether she accepted that the breakdown in the relationship between she and the mother, and that does seem to have been the catalyst for much of the problems that now exist, had occurred because of some comment she had made at a hairdressers in [C], which was then recounted back to the mother, she acknowledged that that had occurred.  She was asked whether, when she became aware of the mother’s distress at an unpleasant comment perhaps having been made she had apologised to the mother.  She indicated that she could not recall whether or not she had apologised. 

7. Unfortunately, the impression was that that was a rather safe answer to give in relation to this matter, and I must say that I would be far more inclined to the view that Mrs Oldfield had not apologised for whatever the sleight might have been that was passed on to the mother and that that has been the catalyst for the continued deterioration in the relationship.

8. What is also troubling in that respect, is that whilst there may have only been some small matter that led to this very large difficulty now experienced within this family unit, the fact is that the impression I gain is that the paternal grandmother has minimised any responsibility that she had for the difficulties that now exist and rather seems to attribute the difficulties in the relationship between the paternal grandparents and the parents, to an unreasonable stance taken on the part of the mother.  There seemed to be a certain hypocrisy in the stance that the paternal grandmother took in relation to this matter therefore.

9. Unfortunately, I also gained the impression that there was a certain self-centred attitude to the position taken by the paternal grandmother, in relation to this matter.  She was asked, for example, whether the bringing of this application and pressing through to court would help in any way to foster a relationship between her and the parents, and her response was to simply indicate that if she had time with the grandchildren then that would help, and when asked whether an order would be able to foster this relationship she rather flippantly thought that it would do so and could not see that it would not be helpful without, I think, really considering the difficulties that might arise with regard to the expense and emotional hurt that the parents felt, as a result of the proceedings being brought.

10. Again, the impression was that only when the point was stressed to the paternal grandmother about the existing family unit involving the mother and the father and [X] and [Y] did she consider that there might be consequences for her actions being taken, in relation to the proceedings brought by she and the paternal grandfather. She acknowledged, I think rather grudgingly, that any harm to that specific family unit would be hurtful to the boys and I think that there was a reluctance on her part to actually acknowledge that there was any possible harm that might come, as a result of the proceedings that were brought in relation to this matter.

11. Quite simply, I gained the impression, and I will comment upon it a little later in these reasons when speaking of the mother, that the benefits to these two boys of a positive relationship with their paternal grandparents had become secondary to particularly the position of the paternal grandmother and the mother wishing to win, or to beat each other in these proceedings. 

12. I also gained the impression that both the paternal grandmother and the mother were, to a significant degree, more inclined to view their “rights to a relationship”, or “right to determine with whom the children have a relationship”, over and above the best interests and the benefits of the children. 

13. As I said earlier, whilst I have no doubt as to the paternal grandparents’ love for these boys I am unfortunately of the view that, particularly with regard to the paternal grandmother, the benefits of a relationship with the two boys had become secondary to a determination to win the fight.

14. Insofar as the paternal grandfather was concerned I felt that he was more a passenger in relation to these proceedings, and though it was clear that he would wish to have some relationship with his grandsons, it was much more a situation of him following and supporting the paternal grandmother, than being a driver of the application himself. 

15. I noted, however, that the paternal grandfather was somewhat non-committal in relation to what his responsibilities might be in that regard.  When asked, for example, about his relationship with the mother and father, he acknowledged that it had broken down and that there was little, if any, communication between the mother and the father and he.  In particular, however, he was asked whether he had made in recent times, contact with the father and he had acknowledged that he had not, but that his door remained open.  Of course, he failed to realise that an open door is not necessarily an invitation to enter and there is more required than simply suggesting, as is the case here, that the parents need to come to him. 

16. More particularly, I was enormously troubled by the lack of thought or any appreciation of the consequences of the sign being put on the fence which was to the effect, “Mr J Oldfield is not welcome here”. The grandfather’s comments in relation to that were telling and I think troubling.

17. When asked whether either of the boys had seen it, and in particular, whether the older of the two boys [X] had seen it, the grandfather’s response was to indicate that he may have, but that [X] had not said anything to him about it.  It entirely lacked an appreciation of the hurt that was no doubt caused to this little boy as a result of seeing his father, to whom he must obviously have one of his primary attachments, being the subject of criticism by a grandfather purporting to love the child and not wish to hurt the child. 

18. I was troubled by that and also by the lack of appreciation, that I thought existed on the part of the grandfather, failing to recognise that when approached by the father in relation to the inappropriateness of the sign, there seemed to be little acknowledgement on the part of the paternal grandfather that he had acted in a most inappropriate way and in a manner that could only lead to a deterioration in the relationship between the paternal grandparents and the parents and then seemed somewhat bemused, that there would be an effect upon the grandchildren as well.

19. As I said, the impression that I received in relation to this matter is that the paternal grandfather was a follower in relation to the proceedings rather than a driver in respect of them and again, whilst I would emphasise that I have no doubt as to his love for his grandchildren, I gained, unfortunately, the impression that there was little appreciation on his part of how his actions could and have been detrimental to the best interests and welfare of these two boys.

20. I turn, then, to the evidence of the parents, and firstly, to the evidence of Ms Murphy, the mother of the children.  The comments that I made a little earlier with regard to the paternal grandmother in relation to this matter also, I think, are apposite in respect of the mother.  Again, the impression was that the catalyst for the breakdown in the relationship was perhaps the inappropriate comment made by the grandmother at the hairdressers some time in the past and the failure by the paternal grandmother to apologise to the mother for whatever hurt might have been caused. 

21. But thereafter, there appears definitely to have been a stance taken by the mother, where she would use the boys to exact some form of victory over the paternal grandparents, so as to reinforce to the paternal grandmother in particular, that she was the person who made the decisions in relation to the children and with whom the children were to interact.  Of course, in acting in such a manner, which is perfectly within the power of the mother, it failed to take into consideration the hurt that would be caused, not only to the paternal grandparents but far more significantly in relation to the determination of this matter, to the boys, because in particular with regard to [X], there was an acknowledged close relationship between he and his paternal grandparents and that has been, in more recent times, to all intents and purposes, brought to a close.

22. I gained the real impression that the mother was, at least to some extent, attempting to manipulate the father’s position in relation to this matter, in that it was clear that she had suggested that if there was to be arrangements made, either with the consent of the father, or by order of a court, that facilitated a continued more extensive relationship than she was prepared to agree to between the paternal grandparents and the children, then she would act in a manner which would break down the family unit, and that that would have enormous consequences for the boys as well as, of course, for the father. 

23. I gained the impression that she was not adverse to using that particular threat as a means of achieving what she sought in relation to this matter, and it troubled me because in the end, it showed that the mother was, I thought, more inclined to achieve her own wishes and wants in relation to this matter, than to more specifically address issues with regard to the best interests of the children.

24. Notwithstanding that, however, I also found myself generally impressed with the mother.  In particular, I noted what I thought was a very proper assessment in relation to the matters raised in the family report, including specifically, issues with regard to respect particularly, by the parents of the paternal grandparents and by the paternal grandparents of the parents.  The mother acknowledged that she did not feel that the paternal grandparents were respectful of her and had acknowledged that to the report writer when indicating that she did not respect the paternal grandparents.  She acknowledged, having said that, but noted, and I believe it to be true, that whilst she did not respect them she was respectful of them, and a proper distinction was drawn in that regard.

25. The mother was quick to find fault in relation to the behaviours of the grandparents and particularly to find fault where, for example, they may have asked [X] to accompany them to some function or other, whilst not asking [Y], though the ridiculousness of that stance become clear when it was obvious that certain requests were made for [X] who is, of course, some four years older than [Y] to spend time with the grandparents and the mother became distressed that [Y] was not asked, though on one occasion he was only 20 months of age and she acknowledged that she would, in all likelihood, have not agreed to him attending with his paternal grandparents at a function that might have been quite appropriate for a six year old, but not for a child of 20 months.

26. Quite clearly, the elements of trust and respect have broken down to a very significant degree between the paternal grandparents and the mother and it was an issue which continued to give rise to concerns in respect of the likelihood of being able to foster a relationship, particularly a relationship through orders being made.

27. Whilst, as I say, therefore, I had a certain degree of concern about the mother, there were also aspects of the mother’s behaviours which I thought were positive and in particular, that she had taken certain steps, as she indicated would be the case in the future, to give opportunities for the paternal grandparents to see the boys and to spend time with the boys.  It was, if you like, a reflection of that distinction to which I previously referred, where she spoke of the difference between respect and being respectful.

28. I turn, then, finally to the children’s father Mr J Oldfield.  Without hesitation I must say, that I found him by far the most impressive of the four witnesses called in relation to this matter, excluding, the report writer.  I thought that the father was caught between, “a rock and a hard place”.  He had to try and balance the need to maintain his relationship with the children’s mother and to ensure that there were no difficulties arising in respect of that relationship because, of course, there would be catastrophic effects upon the children if that family unit were affected. 

29. It was also clear, however, that the father had tried, as best he could and perhaps sometimes in less than the most appropriate manner, to facilitate a continued relationship between he and the paternal grandparents and, between the boys and the paternal grandparents.  I would note, of course, that he must have been enormously hurt by the ill-considered sign placed on the fence by the paternal grandfather, which was obviously seen by the boys and particularly seen by young [X], who was of an age where he would clearly have been able to read the sign and certainly gather the impact of such a statement having been made.

30. The father had, notwithstanding that and the other difficulties that he witnessed, attempted to facilitate relationships.  He had not always acted in the most appropriate manner and, that’s evidenced by the fact that at Christmas of 2009, when apparently the paternal grandparents had purchased Christmas gifts for the boys, the presents were not collected and then subsequently there was criticism of the paternal grandparents for not having provided gifts for the boys. 

31. In the end, however, I gained an overwhelming impression that the father was a man of his word and that whilst he would not, either because of his own concerns, or perhaps more because of an adoption of the concerns expressed by the mother, agree to orders being made, he would not simply then seek to entirely exclude the paternal grandparents from the children’s lives, but would rather work towards developing an opportunity for the relationship to occur and for there to be continued communication between the paternal grandparents and the boys. 

32. I thought that the father was most sincere when he spoke of the children being “his world”, and that without trust in the paternal grandparents being able to treat each of the boys equal and the same then there was a need for him to act in a protective manner, though he recognised and wished to foster a relationship between the boys and their paternal grandparents.

33. I felt that the father was sincere in his concerns for his family unit and whilst, as I said, I had some concern that the mother may, at least, have been acting in a way which was somewhat manipulative in suggesting that there was a real risk of the family unit being broken up, the father was absolutely sincere in his determination for that not to occur and to put perhaps his wishes for a comfortable and happy existence to one side so as to ensure that his relationship with the mother was fully fostered and developed, because that was in the best interests of the boys. 

34. In, I must say, almost every respect I felt that the father was a man of genuine compassion and care for his sons, his wife, and to a lesser degree, for his parents, though that love and respect was still there.  I found the father to be an enormously genuine and impressive witness

35. I turn, now, to the evidence of the report writer, Ms S.  Ms S has prepared two reports in relation to these proceedings.  The first is a report released on 10 June 2010, which report is dated 7 June 2010 and the second is a report released on 10 December 2010, again dated a few days prior to that, 8 December 2010.  I was most assisted by the reports that were prepared in relation to this matter, though perhaps more particularly was assisted by the oral evidence that was given by Ms S in relation to this matter. 

36. In her first report, that of 7 June 2010, Ms S recommended, that as the first step in relation to dealing with the issues as between the parents and the grandparents, that they, the adults, should avail themselves of the opportunity to participate in the post-separation cooperative parenting program offered by Lifeline. Additionally, Ms S recommended that both of the children spend regular time with the paternal grandparents and that this should occur during school holidays and not fall on days that the father was working. 

37. There was no specific suggestion by Ms S for any orders to be made in relation to this matter.  Ms S’s first report was comprehensive and dealt with many of the issues in relation to the breakdown of the relationship between the adults, and the consequences that flowed from that in relation to the children and to the limitations or complete cessation of any relationship with their grandparents.

38. Ms S commented about the history of the relationship between the parents and the grandparents and noted that there was a distinction drawn between the paternal grandmother and the paternal grandfather’s relationship with the mother.  At paragraph 1.11 Ms S reports:

    Ms J Oldfield said that she had a good relationship with Ms Murphy, however, Mr W Oldfield said that he had never really clicked with Ms Murphy or liked her.

1. In paragraph 1.12, Ms S says:

   Ms Murphy said that the relationship between her and Ms J Oldfield started to (sic) deteriorate before [Y] was born when she was not able to do things with Ms J Oldfield due to her pregnancy.  She said that she had also confronted Ms J Oldfield about comments she had made at the hairdressers which were “putting me down” and that this happened just after [Y] was born.  Ms Murphy said that as things started getting worse, she tried to sit down and talk it through but this didn’t work.

2. It is noteworthy, therefore, that the relationship is one that has, unfortunately, been the subject of deterioration for a very considerable period of time.  It would appear that as [Y] was born in February of 2005 and these assessments were being done in 2010, there had been a lengthy period for the hurts involving the parents to fester and that that has led to the continuing difficulties.

3. As I commented in relation to the evidence of the father, I found him to be a generally reliable witness and one who found himself in an almost impossible situation.  In the first report at paragraph 1.14 Ms S makes similar observations.  She notes:

   Mr J Oldfield said that he hasn’t just had a fight with his parents and then told them that they cannot see the boys.  He said that what has happened has occurred over a period of time.  Mr J Oldfield said that things got to the point where he received a message on the phone from his father that if his parents couldn’t see [X] on his own, then Mr J Oldfield was out of the family.

4. It is a tragic situation that has been thrust upon all and one where, at least to a certain degree, there is responsibility that rests with all.  I shall comment upon that particular aspect of the matter a little later when speaking of issues with regard to the law and to how the circumstances that currently exist are to be determined, but it seems to me that if there had been, perhaps as suggested by Ms S, a more determined attempt on the part of all of the adults over a year ago now to participate in the post-separation cooperative parenting program offered by Lifeline, or in respect of some similar form of assistance, then it may be that the tragic circumstances that now exist, would not be continuing.

5. It is noteworthy that Ms S also, in the first report, commented upon the effect of the court process and the circumstances generally that exist upon the relationship between the mother and the father. At paragraph 5.2 she reports:

   Mr J Oldfield and Ms Murphy said that the current court process is impacting on them individually and as a couple.  They said that they have “had little snipes at each other” and that there is a lot of stress for them related to going to court, which is both emotional and financial.  They said that it stresses them out having to let the children go and spend time with their grandparents.  Ms Murphy said that she had been going to her doctor because she was suffering from panic attacks but she is working through this.  She said that her ability to work or care for the children is not affected, she just feels sad.

6. Ms S goes on at paragraph 5.3 to say:

   Mr J Oldfield said that it was hard when he has a weekend off work and the boys have to go away.  He said that in the past they have never had to have a weekend “without our boys and it is hurting us big time.”  Mr J Oldfield and Ms Murphy spoke about the difficulty they feel in being told they have to let their boys go to Ms J Oldfield and Mr W Oldfield when they know that [Y] is being neglected and [X] might be told things he shouldn’t hear.  Ms Murphy said that Ms J Oldfield and Mr W Oldfield used to “run me down” to [X] when he was at their house and he would do the same when he came home, which made her feel like she had to try and impress her own son.

7. The tragedy here is that a year ago, effects were being felt by the parents in relation to their relationship and, therefore, by extension their capacity to parent these children.  It is a significant matter and one which was emphasised by both parents in the evidence that was given, particularly the evidence of the mother and it is, of course, a relevant consideration.

8. At paragraph 5.7 the parents are reported to have told the boys:

   …that there is a court process happening and that they have told [X] he wouldn’t be going to see his grandparents by himself.  They said they have told [X] the court process is about how Nanny and Poppy treat [Y] and that [X] then commented that his grandparents don’t like [Y].  Mr J Oldfield and Ms Murphy said that they have also told the boys that they are seeing some people and a man about this because they don’t think it’s fair.

9. I make reference to that particular aspect of the matter because, of course, the troubling issue is that there has been discussion with both of the children, but particularly the older boy, [X], in relation to the Court proceedings and the application that has been brought by the grandparents.  It is, of course, an issue beyond the grasp of what [X] can fully appreciate, except to know that, as he reports in the second report to the report writer, that his parents and his grandparents do not like each other and that they say unpleasant things about each other.

10. It is a tragic situation and one where both the parents and the grandparents should be mindful of the great hurt that has already been perpetrated upon these two children and I would think, specifically, upon the older of the two boys, [X]. 

11. It is an important consideration to note here that the grandparents, at paragraph 5.18 noted that they:

    …don’t have any concerns regarding Mr J Oldfield and

    
    

    Ms Murphy as parents.  Ms J Oldfield says she thinks they might favour [Y] a bit more than [X].  Mr W Oldfield then said that he has some concerns as they used to give [X] “hidings” and if Ms J Oldfield and Mr W Oldfield said anything they were told they were interfering. 

    The fact is that it is, if you like, a reversal or a mirror image of the concerns that the parents express in relation to the grandparents favouring [X] over [Y] and treating the two children differently.

12. The first report involved discussions by Ms S with the boys.  She emphasised in her oral evidence that she did not question the boys, but rather interacted with them and I think that is reflected in the terms of the report.  Under the heading Interviews with Children Ms S says at paragraphs 6.4 and 6.5, the following:

    6.4  [X] spoke about his extended family and said that he has a lot of people in his family.  He talked about his parents, describing his mother as a good mum because she “does a lot of things with us and tries to make us happy.”  [X] said that his mum is always busy at work, doing housework and sometimes on the computer.  [X] said that his father has to go away for work for four nights, that he is a fun dad, they do lots of stuff and his father helps him with his motorbike.  [X] also spoke about [Y], describing him as annoying sometimes “like little brothers are” and that he is fun.

    6.5   I asked [X] to tell me about his Nanny and Poppy, asking him to start with Poppy.  [X] sat and thought for a while and then said “what is it” before telling me “Nanny and Poppy are always mean to [Y] and nice to me” and that this is “unfair to him, because he’s part of their family too.”  When I asked [X] about Nanny, he said she is “the same, she doesn’t like [Y] but she likes him a bit more than Poppy.”  I asked [X] how he knows this and he said that his grandparents tell him and that they tell him it’s because he was born first.

13. It is indeed troubling, that such comments should be made and it is also noteworthy that whilst the grandparents emphasise repeatedly that the children are being influenced by the parents to make statements of a negative nature in respect of their differing behaviours or interaction with each of the boys, [X] and [Y], it is noteworthy that, it is [X] who reports that his observations are of the behaviours of the grandparents and of statements made direct to him.

14. At paragraph 6.8, when responding to an inquiry about how the people in his family get along, [X] is noted to have made comments about the relationship between his parents and grandparents.  Ms S says:

    [X] told me that his parents and grandparents don’t get along, that he doesn’t know why and that he think (sic) they haven’t really ever got along.

15. She goes on, however, to note at paragraph 6.9:

    [X] told me that his grandparents lied to the court and that he knows this because his parents told him.  I asked [X] what he knows about the court and he said that it is run by the police to get people happy again.  [X] said that his parents told him about the court, that his parents have to go to the court sometimes when he is at school and “that’s all I know about that.”

16. [Y], being younger, was less communicative, but is reported by Ms S to have noted that he had “a good family” and that his mum was a good mum, because she gives them food and that dad plays with them on the trampoline. When specifically asked to comment about his grandparents, Ms S reports as follows:

    I asked [Y] to tell me about his grandparents and he initially spoke about his maternal grandparents, telling me that he sleeps over at their house.  I then asked about his paternal grandparents and [Y] told me that they are not very nice to him, that Poppy said an “f word at me because I couldn’t get my seatbelt on.”  [Y] told me that his grandparents don’t let him have sleepovers and I asked whether he was staying with them that night.  [Y] said he was but not in [C].

17. Neither of the boys speak in the most positive of ways about their relationship with their grandparents, but it is noteworthy that the observations of Ms S, when commenting about the boys’ interaction with the relevant parties, their parents and the paternal grandparents, noted that the boys appeared to be comfortable in the presence of both their grandparents and their parents and, more specifically, in relation to observations relating to the children with both sets of adversaries in these proceedings, noted:

    I have no concerns regarding my observation of the boys interacting with their parents/grandparents.

18. Under the heading Evaluation it is noteworthy that in the first report Ms S noted that:

    ..it appears that the relationship between the parents and the grandparents has broken down to the point that there is effectively no communication.

19. She observed that when the four adults were in the waiting room of her rooms, that they seemed “uncomfortable and focused their attention on the boys.”  She noted that the parents, in their interviews with her, spoke about the boys’ interests, but went on to opine:

    … their capacity to focus on the boys’ needs is impacted on by issues relating to their current poor relationship with Ms J Oldfield and Mr W Oldfield.

20. She also noted at paragraph 8.3:

    The parents and the grandparents presented as being resigned to the fact that their relationship with each other has broken down irreconcilably and when asked directly if they thought it could be repaired they were not optimistic that this could occur.  The adults appear to be focused on issues and events that have occurred in the past which have led to the relationship breaking down, with limited insight being demonstrated regarding the impact for the children.

21. Notwithstanding this, however, Ms S’s observations in June of 2010 were that the boys “seemed happy and comfortable when observed with their grandparents.”  It was these observations and in particular the notation of the apparent comfort that both boys had in their interaction with their grandparents, notwithstanding the difficulties in the relationship between the parents and the grandparents, which led to the recommendation with regard to the boys spending regular time with their grandparents and that there should be opportunities for that to occur, which is agreed between the parents and the grandparents, at the commencement of each year.

22. A follow up report was done, as I have indicated and, unfortunately, little, if anything, seems to have changed or improved in relation to the matter.  In the recommendations at part 11 of the second report, Ms S recommends still that the boys spend time with their grandparents for a period of two weeks each year, one week in the June/July school holidays and one week during the Christmas school holidays and that it should, perhaps, be an alternating arrangement at either the first or second half of the holiday periods.

23. She also suggests that telephone communication occur between the children and their grandparents fortnightly and again recommends:

    ..that the parents and the grandparents utilise support of agencies, such as Lifeline and Relationships Australia to assist them to develop knowledge about the impact of their conflictual relationship on the children and to also develop positive ways to communicate that are in the best interests of the children.”

24. It appears, unfortunately, that despite two recommendations having been made for this therapeutic intervention in June and December of 2010, that no such steps have been taken and, again, the conflictual nature of the relationship is such that each of the parties, the parents or the grandparents, lay the blame for any lack of such steps being taken at the feet of the other.  Tragically, and perhaps most significantly of all, in addition to the recommendations which are, to a large extent, repetitive of those which were made in the first report, Ms S at paragraph 11.3, makes the following recommendation:

    I recommend that consideration be given to [X] being provided some therapeutic support to assist him to deal with the conflict between his parents and grandparents.

25. Obviously the impact of the breakdown in the relationship between the parents and the grandparents, has started to have a direct effect on [X] and that is a matter of very great concern.

26. The determined nature of both the mother and the paternal grandmother is reflected in a number of the comments that are made by Ms S under the heading, “Current Relationship Between Parents and Paternal Grandparents”.  In paragraph 3.1, Ms S notes that the paternal grandparents, when asked to describe their current relationship with the parents said:

    … it is worse now than back in May when they were interviewed for the previous family report.

27. At paragraph 3.2, Ms S notes:

    Ms J Oldfield and Mr W Oldfield said that they would like Mr J Oldfield to come home and have the same relationship they had before.  They both believe that the breakdown in their relationship can be worked out over time.  When talking about Ms Murphy, Ms J Oldfield spoke about not being able to forgive Ms Murphy for some of the comments she has made which are racist and that she also believes Ms Murphy is threatening to leave Mr J Oldfield if he has anything to do with them.  Ms J Oldfield said that she would not ignore Ms Murphy if she came up and talked to her.  Mr W Oldfield said that he doesn’t think he can ever be friends with Ms Murphy and they don’t need to get along but he should be able to have a relationship with his son and grandchildren.

28. At paragraph 3.3, Ms S says:

    Ms J Oldfield said she asks the children whether she and Mr W Oldfield can be friends with their mum and dad yet and [X] says no.  She said [Y] tells her, ‘mummy hates you nanny’.  Ms J Oldfield said she never says anything to the children about their parents or court. 

29. It is interesting, of course, that a different perspective entirely is taken by the parents in relation to who might or might not be communicating negative issues through the children and particularly [X], but as noted from the recommendation made by Ms S, the very real concern here is that there is now a very significant and detrimental effect upon this child.  Ms S interviewed the children.  She says in paragraph 4.1 of her report that the boys were interviewed separately for this report and it is noteworthy that that occurred, because it does not appear that that was clearly the position taken by Ms S on the last occasion.

30. Ms S obviously interacted with the boys and in particular indicated to them that she was seeking their “views/wishes”, regarding contact with their grandparents.  She noted that [Y] just wanted to play and that he was not really that communicative.  He repeated, however, his previous statement about the grandparents being mean to him and is reported by Ms S, in paragraph 4.4, as saying:

    “sometimes they are mean to me, say F word”.

31. In paragraph 4.6 [Y], in obviously a childlike manner, reports what is clearly the case here.  The parents and the grandparents do not talk to each other and they are mean to each other.  [Y], however, notes that “poppy says naughty words to dad and mum.”  [X], however, was more communicative and Ms S describes him in the report as quite articulate.  That is reflected in the comments that she makes at paragraphs 4.10 and 4.11, where she says:

    4.10[X] said that his parents and grandparents are not friends and that his grandparents say they hate his parents.  He said they say this to each other and not to him but he hears them in the background when he is on the phone.  [X] said this makes him angry.  Later in his interview [X] said that is (sic) grandparents have told him that they hate his parents.

    4.11I asked [X] directly what he wants in regards to contact with his grandparents.  He said that he doesn’t want to see them every month but maybe every second month.  [X] said that he wants to spend time with his grandparents “now and again in school holidays”.  He said that he doesn’t want to spend time with them every holidays as he might want to spend time with his friends.

32. Again, however, the words were not matched by the actions.  By that I mean that under the heading, “Observations of interaction between the boys and their paternal grandparents”, it appears clear that there was easy and comfortable interaction between the children and all of the adults.  In particular, Ms S noted at 6.1:

    The boys appeared to be genuinely happy to see their grandparents when they arrived.

    She notes at paragraph 6.2:

    The boys played games with their grandparents, one boy would play a game with Ms J Oldfield whilst the other played with Mr W Oldfield. Later the boys swapped over.

    6.3:

    The children interacted naturally with both of their grandparents in the hour I spent with them.  They both appeared at ease and relaxed, there was a lot of conversation and laughter.

    And at paragraph 6.7:

    [X] and [Y] gave both of their grandparents a hug and kiss when leaving.  This was not asked for by the grandparents.

33. As I noted, in the first report Ms S did make reference to the effects of the dispute upon the relationship between the mother and the father.  The circumstances continue.  At paragraph 9.1, Ms S notes:

    Mr J Oldfield and Ms Murphy asked to speak to me separately for this report.  They each spoke with me about the strain on their relationship due to the court process.  Mr J Oldfield said he believes his relationship with Ms Murphy will end if the orders his parents are seeking are made.  He also said that they might be forced to move to Western Australia to protect the children from his parents.  Ms Murphy also spoke about the impact on her relationship with Mr J Oldfield and said they are on shaky ground.

34. Most importantly and, again, I think, reflective of the impossible situation that the father finds himself in is the comment made by Ms S, in paragraph 9.3:

    Mr J Oldfield said that if he and Ms Murphy break up he will not be able to forgive his parents and that he thinks it will be hard for him to mend the relationship with his parents.  Mr J Oldfield said that he is still willing to let his parents come and visit the children and that whilst Ms Murphy won’t want to be there she is willing to let them come to her house.  I asked Mr J Oldfield if he would abide by a court order directing the children to have contact with his parents if it was made and he said that he wouldn’t.  Mr J Oldfield indicated that he doesn’t have a choice as the alternative is for him to be single and not to see his children.

1. A similar indication was given by Ms S of the outcome of discussions with the mother.  At paragraph 9.5, she says:

   Ms Murphy said that she and Mr J Oldfield are having a hard time and are thinking of taking the children away.  She said that she has had enough of Ms J Oldfield and Mr W Oldfield dictating their lives, that she thinks Ms J Oldfield and Mr W Oldfield want to be in control and the court is letting them.

2. Most significantly, however, in the final sentence at paragraph 9.5,

   
   

   Ms S reports the mother saying:

   Ms Murphy said that she didn’t think counselling would help, that she and Mr J Oldfield do talk to each other and that there is a feeling for her where she blames Mr J Oldfield for what is going on.

3. It is a most important consideration in relation to this matter, as there is obviously a direct effect upon the family unit and that is a matter which is of very great significance, in relation to the determination of this matter.  Under the heading “Evaluation”, Ms S states what could, perhaps, only be described as the obvious.  At 10.2, she says:

   Both parties present as being immovable in terms of their proposals, however it should be noted that since the last family report was prepared the grandparents have altered their proposal to one which they believe allows for the boys to have more family time with their parents.  Ms Murphy and Mr J Oldfield have also altered their proposals to one where the children do not have any contact with their grandparents.  In my opinion this does not take into account the views and wishes of the children or the relationship that currently exists between the children and their grandparents.

4. Ms S, in paragraph 10.8 of the second report, opined:

   …I am of the opinion that their views may be affected by the views of their parents.  [Y] spoke about Mr W Oldfield swearing at him when he couldn’t put on his seatbelt which Mr J Oldfield also referred to.  When I asked Mr J Oldfield when this had occurred he conceded that it was more than likely the incident which was referred to when the first family report was undertaken.  [Y] also spoke about his poppy saying naughty words to his parents but didn’t provide examples of what they were.

5. Finally, at paragraph 10.11, Ms S says:

   Given the breakdown in communication any order relating to contact between the children and their grandparents would need to be quite specific in regards to when such contact would occur given the current poor relationship between the parents and grandparents.  Ideally the adults should be able to discuss when any contact would occur but given communication at present only occurs via solicitors, I am of the opinion that any order made would need to stipulate specifically when the children would have contact with their grandparents.

6. I note that there is reference there to specific orders being made and that that is somewhat different to the first report, which did not necessarily recommend specific orders.  I have detailed at length the issues that have been spoken of and noted by Ms S.  I thought it important that I do so, because of the obvious need to bring into context the dreadfully troubled situation that these two young boys find themselves in.  I was assisted by clarification that was provided by Ms S in her oral evidence, arising from the cross‑examination directed to her by counsel for both the grandparents and the parents.

7. Each, of course, approached their cross‑examination of Ms S from the perspective of the wishes of their client.  I must say I felt a certain sympathy for Ms S in that good counsel, as were involved in this matter, were able to ask questions which, to a significant degree, allowed only a response that was reflective of their client’s position, in relation to this matter.  For example, counsel for the grandparents directed a question to Ms S to the effect:

   With the parents the burning issue is the grandparents not wanting time with [Y].

   The answer was, “Yes.”  It was then easily understood that counsel for the grandparents then flowed into the next question which was to the effect:

   So the parents are very focused on the past hurts rather than the current situation.

8. The answer and, of course, it was the only possible answer, in light of previous questions was, “Yes.”  Ms S responded that that was the case and then in further questions, was able to elaborate upon the existing good relationship between the grandparents and the children and the emphasis clearly was to the effect that the parents were at fault, in focusing upon past issues. 

9. Such questioning in relation to this matter was understandable and, obviously, was designed to emphasise the fact that the issues of the parents with the grandparents were very different to the relationship and the interaction between the children and the grandparents.

10. It was an important line of questioning and one that I thought Ms S dealt with most appropriately.  She was able to comment upon the significant and positive nature of the relationship between both children, but particularly [X] and the grandparents and the need, if it were possible, for that to be encouraged and fostered.  She was also positive about the children being able to focus on their relationship with their grandparents, rather than to focus on the parents and grandparents’ negative attitudes toward each other and the fact that whilst there appeared, if anything, to be a further deterioration between the preparation of the first report and the second report, in the relationship between the parents and the grandparents, it was still the case that the children had a relationship of a very positive nature with their grandparents.

11. Having made those comments in relation to the cross‑examination of the report writer, by counsel for the grandparents, a similar very effective line of cross‑examination was directed to Ms S, by counsel for the parents.  For example, very early in the cross‑examination Ms S was asked about her observations of the family unit and noted that the boys were very close to their parents and that the parents were very involved in the children’s lives.  She was asked whether they were proud of their children and she acknowledged that the parents were very proud of them, and wished to protect the children.

12. Having made those comments about the positive nature of the relationship that the children had with their parents and the parents had with the children, a line of questions which I thought was most effective then followed.  For example, Ms S was asked whether she had discussed with the parents how these proceedings had impacted on the children’s home life and she indicated that she had not spoken about that, but rather had asked how the proceedings were impacting on the parents.

13. She then conceded, quite properly, that she had not, therefore, directed questions to the parents about their observations of the impact of these proceedings on the children and acknowledged that it was an important aspect of what might be in the best interests of the children and that it was a line of questioning that could, perhaps, have been more thoroughly considered, if not at least touched upon, in relation to the preparation of the report.

14. The next question, of course, had only one possible answer.  Counsel for the parents asked a question to the effect:

    If there is a deterioration in the home life with the parents fighting then that’s not good for the children, is it?

    Of course, the only possible answer and one that had to be given was that that was correct and that there needed to be a recognition of the importance of that particular aspect of the matter.  It was a line of questioning that was effective, because although there were a number of other issues addressed, it continued to be returned to and the last two questions directed to Ms S centred directly on the effect upon the relationship between the parents of this continued litigation and its obviously flow on effect, upon the children.  Counsel for the parents inquired of Ms S:

    What’s the lesser of two evils, the maintenance of the relationship between the children and the grandparents, and is that more important than the relationship between the parents in respect of its impact upon the children?

15. Ms S was caught between a rock and a hard place and answered that it was hard to answer or draw a distinction, and that each was important.  The last question, however, was the most telling.  It was direct and to the point and was to this effect:

    If the parents’ relationship was to end if time with the grandparents was to be ordered, what is the benefit to the children?

    Ms S had nowhere to go and, of course, quite properly answered in a professional manner when she said:

    None.  The relationship with the parents is far more important.

16. I was assisted in many respects by the reports prepared by Ms S and also by her oral evidence in relation to this matter.  I gained the distinct impression that she acknowledged the importance of the relationship between these two children and their grandparents, not only from the perspective of the grandparents wishing to have a relationship with the children, but also from the perspective of the children’s own relationship with the grandparents. 

17. But, it was noteworthy and, I think, quite proper and professional of Ms S, to recognise that there was a distinction to be drawn between the relationship between the children and their grandparents and the effect of any breakdown in the relationship between the parents and its obvious effects upon the children.  Ms S’s evidence was of particular assistance in relation to this matter.

18. I turn now to matters relating to the law and to the facts of this matter, as applied to it. Whilst it is, interestingly enough, a children’s matter and, therefore, one, of course, that arises under the provisions of Part VII the Family Law Act which is headed “Children”, it is not, in my view, the starting point in relation to any determination. Rather the starting point must be in this instance where the parents remain together, the provisions of section 43 of the Family Law Act. Section 43 is in these terms:

    PRINCIPLES TO BE APPLIED BY COURTS

    43(1)  The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:

    (a)the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

    (b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;

    (c)the need to protect the rights of children and to promote their welfare;

    (ca)   the need to ensure safety from family violence; and

    (d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.

19. I make reference specifically to that particular aspect of the matter, because section 43 is directive insofar as any court exercising jurisdiction under the Act is concerned and in its approach. Section 43 notes that the court shall, in the exercise of its jurisdiction, have regard to the need to preserve and protect the institution of marriage as the union of a man and a woman, to the exclusion of all others and, additionally, to have regard to the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society and, specifically:

    …particularly while it is responsible for the care and education of dependent children.

20. It is noteworthy that there is reference to the term, “family”, and in section 4 of the Act there is no specific definition of what constitutes a family. However, the term is defined in the Macquarie Oxford Dictionary as:

    1.  parents and their children, whether dwelling together or not.  2.  one’s children collectively.

    3.  any group of persons closely related by blood, as parents, children, uncles, aunts and cousins.

    4.  all those persons descended from a common progenitor.
    5.  descent, esp. good or noble descent: young men of family.

    6.  the group of persons who form a household under one head, including parents, children, servant, etc.

    7.  the staff, or body of assistance of an official - - - –

21. I make reference specifically to this aspect of the matter, because the reference to the family unit (what is sometimes described as the nuclear family) is, in my assessment, the unit of society comprised of a man and a woman and the children of that relationship, whether they be adoptive children or the biological children of the parties.

22. It is important that that notation and acknowledgement be recognised here, because when one then turns to Part VII of the Family Law Act, relating to the court’s powers and the orders to be made, there are a number of distinct references to the differences that exist, within a family unit. To commence with, section 60B, the objects of the Part and the principles underlying it, are in these terms:

    OBJECTS OF PART AND PRINCIPLES UNDERLYING IT

    60B(1) The objects of this Part are to ensure that the best interests of children are met by:

    (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

    (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d) parents should agree about the future parenting of their children; and

    (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

    60B(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

    (a) to maintain a connection with that culture; and

    (b) to have the support, opportunity and encouragement necessary:

    (i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

    (ii)to develop a positive appreciation of that culture.

23. Section 60B(1), the objects of the part, does not in any way make reference to specific individuals, other than the parents of children. Parent is not to any real extent defined in section 4 of the Act, other than to note:

    When used in part VII in relation to a child who has been adopted, means an adoptive parent of the child.

24. There cannot be, I would think, any other interpretation of the term “parent”, other than that it refers specifically to, the biological parents of the child or in certain circumstances, the adoptive parents of a child.  Reference to other persons significant in relation to a child’s life, including particularly grandparents and other relatives, are first referred to in the principles which underlie the objects. 

25. There may be some semantic debate that can be entered into, in relation to whether the principles underlying the objects should take priority, but I am not of that view and would be more inclined to the recognition of the fact that, the objects are the guidance that is provided in relation to this matter and the principles are more specifically an “aide-memoire”, in relation to the determination of such proceedings.  In any event, this issue is further considered in consideration of relevant case law.

26. It is noteworthy that under the heading, “Objects of Part and Principles Underlying It”, there is also reference specifically to the right of Aboriginal children or Torres Strait Islander children to enjoy their culture and in this matter it holds some significance, because it is suggested that it would be the paternal grandmother who would provide that guidance. 

27. There does not appear to be any acknowledgement on the part of the paternal grandparents that the father also has an Aboriginal heritage and that first and foremost the objects, particularly that arising pursuant to section 60B(1)(d), would mean that it would be the parents, and particularly the father, who would be required to meet the responsibilities concerning the care, welfare and development of the child and the support and provision of opportunity and encouragement with regard to the child’s understanding of his or her Aboriginal culture.

28. Section 60CC, headed “How to Determine What is in a Child’s Best Interests”, is also relevant and is in these terms:

    HOW A COURT DETERMINES WHAT IS IN A CHILD'S BEST INTERESTS

    Determining child's best interests

    60CC(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

    Primary considerations

    60CC(2) The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

    Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    Additional considerations

    60CC(3) Additional considerations are:

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

    (b)the nature of the relationship of the child with:

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

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

    (c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

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

    (i)     either of his or her parents; or

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

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

    (f)the capacity of:

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

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

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

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

    (h)if the child is an Aboriginal child or a Torres Strait Islander child:

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

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

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

    (j)any family violence involving the child or a member of the child's family;

    (k)any family violence order that applies to the child or a member of the child's family, if:

    (i)the order is a final order; or

    (ii)the making of the order was contested by a person;

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

    (m)any other fact or circumstance that the court thinks is relevant.

    60CC(4)    Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

    (a)     has taken, or failed to take, the opportunity:

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

    (ii)to spend time with the child; and

    (iii)to communicate with the child; and

    (b)     has facilitated, or failed to facilitate, the other parent:

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

    (ii)spending time with the child; and

    (iii)communicating with the child; and

    (c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

    60CC(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

    Consent orders

    60CC(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

    Right to enjoy Aboriginal or Torres Strait Islander culture

    60CC(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

    (a)     to maintain a connection with that culture; and

    (b)to have the support, opportunity and encouragement necessary:

    (i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

    (ii)to develop a positive appreciation of that culture.

1. It is relevant also that the note which follows section 61DA(1) is in these terms:

   Note:  The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

2. Section 61B, headed Meaning of Parental Responsibility, is as follows:

   Meaning of parental responsibility

   In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

3. There is, generally, if you like, an ongoing flavour in respect of much of the Act, which relates to the applicability of the Act in relation to circumstances where the parents are separated, but that is not the case here and it is a relevant consideration.  Thought was given to that particular aspect of the matter by Lapthorn FM, in Cole & Collier and Collier [2010] FMCAfam 1112 (8 October 2010), where at paragraph 23, after considering an application by an estranged grandmother to have a relationship with her grandchildren, Lapthorn FM said:

   The parents have made a decision in the exercise of their parental responsibility for the child that she will not have a relationship with her grandmother.  In the absence of any evidence to suggest that the parents’ ability to make decisions for the benefit of the child are in any way compromised, they should not have to justify their decision making through litigation.

4. If that were to be an accurate statement of the position in relation to this matter, then there is an obligation which falls upon the applicant grandparents in this case, to show that the decision making by the parents in relation to whether there should or should not be a relationship between the children and the grandparents, is one that has been made in a way that it could be found that the decision of the parents has been compromised.

5. I am very much of the view that that is an appropriate statement of the specific considerations that must be looked at in relation to an intact family unit and there must obviously be a consideration of an all‑encompassing nature, in relation to decisions being made about the family, the children’s relationship with others, whomever they might be, and the effect upon the family unit as a whole. 

6. As I referred to previously, there is an obligation upon a court, but one would also think it is imposed upon a parents in an intact family unit, to ensure that the decisions that are made by them, in relation to their family unit, are ones which protect that family unit as the, “natural and fundamental group unit of society.”

7. It was strongly emphasised to me, by counsel for the parents, that the fact that the relationship between the parents and the grandparents has broken down, is not a factor which would, necessarily of itself, suggest that any decision made by the parents to preclude further interaction between the children and the grandparents, is one that has been compromised. 

8. There is no suggestion that could properly be made here, other than ones of an emotive nature, that the decision that has been made is a compromised decision, simply because the relationship between the parents and the grandparents is one which no longer is on a sound or solid footing.

9. It was submitted strongly that the court should not seek to “socially engineer relationships”, which are contrary to an exercise of a parental discretion and that parental responsibility, in relation to decisions as to with whom the children relate or interact, is a matter to be left to the parents and unless there is evidence of the fact that that decision is not appropriately made, then it should not be one that is interfered with by the courts or, in fact, by society as a whole.

10. Counsel for the grandparents took up many of these issues in relation to whether a parental decision had been made, which was of a compromised nature.  Interestingly, and I think properly, counsel for the grandparents noted that there was no suggestion whatsoever that the parents should not have the right to make appropriate and proper decisions in relation to the parenting of the children. 

11. What was emphasised, however, was that there had to be a line over which a decision in relation to the parenting of the children could not be crossed and that there is a power vested in the court, specifically to make orders with regard to arrangements, in relation to parenting of children, even in circumstances where the family unit is one that remains in tact and effective, nurturing and caring for the children of that family unit.

12. In particular, I was referred to decisions of the court in Potts & Bims and Ors [2007] FamCA 394, Donnell v Dovey (2010) 42 Fam LR 559 and Ni & Zang [2008] FamCA 1100. It was also noteworthy that it was emphasised to me that the statements made by Lapthorn FM, in Cole & Collier and Collier (supra), were clearly statements which were able to be distinguished from this particular fact situation, because the evidence was to the effect that the child, the subject of the application by the grandmother, in that case, was not in any way in a relationship with the child and that there was, therefore, no significance that could be placed upon the relationship which is, of course, very different to what the grandparents suggest is appropriate here.

13. What was emphasised by counsel for the grandparents, in relation to this matter, was that the grandparents did not draw a distinction between the two children, but rather it was the parents who sought to suggest that there was a difference in the way that they treated [X] and [Y]. It was strongly emphasised, and understandably so, that the grandparents love both of the children and they just want the opportunity for a relationship with them. 

14. A modest order, it was said, could work, with a modicum of goodwill on the part of the parties and that if an order was made, there would be a limited relationship and, of course, it would only be limited, then it would be, as counsel for the grandparents put it, “a start,” which may lead to improvement, but that if no order was made then the matter, “may never get anywhere.”

15. It was suggested that the making of orders, even of the most limited of compass, would provide an opportunity to move forward and if an order were not made and reliance was placed upon the suggestions of both the mother and the father that they would facilitate some form of relationship, then there was a far greater risk that there would be, in fact, no relationship and that that would, in the long term, have a far more detrimental effect upon the children than would be the case of even an order of a limited nature, which provided for some opportunity for interaction.

16. I must say that I have agonised over the decision to be made in relation to this matter and to how to balance the issue of parental responsibility with the children’s right to a relationship with persons significant in their lives. 

17. I am mindful of the discussions that have been conducted in relation to parental responsibility and to the distinctions clearly to be drawn between the decisions made within an intact family unit, and those that might be made by one parent or the other, following the breakdown of a relationship.  It is unfortunately not uncommon for there to be actions taken by one parent or the other, following the breakdown in a relationship, which specifically seek to exclude the extended members of a former partner’s family.

18. As was emphasised by counsel for both the parents and the grandparents in this matter, however, there are different considerations that arise as a result of this family unit remaining intact.  The dispute could perhaps most easily be summarised by saying that one party, the parents, consider that they are making a responsible parental decision in relation to their two sons, whilst the grandparents say that such a decision is compromised and that therefore there should be the intervention of the court.

19. Justice Moore in Potts & Bims and Ors (supra), spoke of the more limited considerations that arise in such a situation as exists here.  At paragraph 8, under the heading “Legal principles”, her Honour said:

    The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind.  For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)’.  With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent.  Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i). However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.

20. I note that in that regard the judges comprising the Full Court in Donnell & Dovey (supra) acknowledged Justice Moore’s discussion of the statutory provisions in the context of a case involving both the parents and grandparents and said at paragraph 121 the following:

    Her Honour concluded that to the extend the matters in ss 60CC(2) and (3) might be relevant, they could only be considered by reference to those factors that do not refer to parents, and in particular the catch-all provision of s 60CC(3)(m).

21. This Full Court accepted Justice Moore’s assessment of the relevant principles and noted further that in, Aldridge v Keaton (2009) 42 Fam LR 369, that that Full Court quoted the passage from Potts & Bims and Ors and said at paragraph 122 that it:

    “accurately encapsulates the relevant legal principles to be applied when determining a parenting application which involves a non-parent/s”.

22. I have obviously in these lengthy reasons, addressed many, if not all, of those matters which Moore J noted as still being applicable for consideration when determining arrangements with regard to the parenting of children between parents and non-parents.  Clearly, one of those factors that remains relevant is that which relates to protecting these boys from physical or psychological harm. 

23. As noted earlier, [X] at least, is already showing some indicators of psychological harm as a result of the situation that exists between his parents and grandparents and that is a factor which must be considered so as to ensure that such harm ceases and that any counselling, as suggested by the report writer, is instigated.  It is a significant factor in relation to the determination of this matter because many of the options, particularly those suggested by the grandparents, continues this psychological harm to the child, though I would accept unconditionally, that it is not an outcome in any way sought by the grandparents.

24. Similarly, there remains live the consideration of the children’s right to spend time on a regular basis and to communicate on a regular basis with the grandparents. It must, however, be considered in the context of whether to make such orders would be, contrary to the children’s best interests. The ongoing dispute between the parents and the grandparents, and their apparent inability to preclude both boys, but particularly [X], from direct psychological harm, would indicate that orders of that nature would be contrary to the children’s best interests.

25. I am mindful also of those considerations which arise pursuant to the provisions of section 60CC(2) and (3) and of those subsections, especially contained within the Additional Considerations set out in section 60CC(3) which would need to be considered. Obviously, such considerations as the children’s current relationship with significant others, including of course the grandparents, is relevant and would appear, from the indicators given within the report, to be positive, but it must of course be balanced against the possibility of harm arising from the actions and reactions of the adults within these proceedings.

26. A balance of all those relevant considerations must be met and in the end, a determination made which reflects the paramountcy principle contained within section 60CA.

27. Moore J in Potts & Bims and Ors (supra) then appropriately followed a process of considering those matters that arose pursuant to the provisions of section 60CC, which remained relevant in relation to a determination. Her Honour, following that consideration, came at paragraph 69 of her reasons to the decision to be made in relation to the children in that case spending time with their grandparents. She said:

    Ideally, of course, the children should have an active relationship with their grandparents without any need for the intervention of court orders.  It would certainly set a positive example to these children if the rifts could be healed, but that is not the case at this point and so alternatives for them have to be considered.  One option is to make an order prohibiting time with the grandparents.  However, that tends to shut out opportunities to improve relationships as time goes on.  It would be just too pessimistic to conclude there will never, never be any change in attitude and so this option can be discarded with relative ease.  Another option is to make an order for the children to spend time with their grandparents if they wish to do so.  But in my view that sort of arrangement has the potential to burden children and may cause children to experience feelings of guilt and responsibility for disappointments about decisions they make whenever the occasion arises.  It too can be discarded.  A further option is to make an order for periodic visits, such as those contemplated by the parents in their initial application.  Yet this has difficulties which are presently seemingly insurmountable – namely, their grandparents fixed views about their need to be rescued – and that is likely to expose the children to more of what have been their experiences to date, as set out in the recent report.  A continuation of that is contrary to their best interests, as noted earlier.  The remaining option is the one proposed by the independent children’s lawyer; namely, to give to each parent the responsibility for the decision about what time, if any, the children spend with their grandparents and what communication there is between the children and their grandparents.  This would require liaison between the grandparents and the parent in whose care the child would be at the given time, and quite possibly both parents having regard to the children’s flexible arrangements.  The absence of a specific order runs the risk this will not come about, but it is the least detrimental option for the children of others proposed and considered.

28. The options that were open to Justice Moore in Potts & Bims and Ors (supra), are those which are open to the court in this case.  The issue could be removed absolutely as one to be dealt with by making an order which prohibits any time with the grandparents.  That does, however, shut out future opportunities, should the relationship between the parents and grandparents improve. 

29. Another alternative is for there to be an order for the boys to spend time and communicate with the grandparents, if they wish to do so, but that places, in my assessment, both undue burden and responsibility upon the children and is neither child-focused, nor in the best interests of the children.

30. The third option, as identified by her Honour, is to make an order for periodic visits, but that has already occurred and has been simply a recipe for further dispute between the parties. To continue such an arrangement, certainly at the present time, is a recipe for disaster and in fact flies directly in the face of that arrangement arising, particularly in relation to section 60CC(3)(l), to make orders which are least likely to lead to further litigation.

31. The option that was finally taken up by Justice Moore is that which, in my assessment, is appropriate in this case.  It is to give the parents the responsibility to decide about what time, if any, the children are to spend with their grandparents.  It requires liaison between the parents and the grandparents, as well as a recognition of the need for communication between the parents and the grandparents and perhaps, most importantly of all, an acknowledgement by the grandparents that whilst they have a significant and substantial role to play in the lives of their grandchildren, the mother and the father have the primary role and responsibility and it is not one that should be usurped by an order of the court.

32. The parents’ decision in this matter is not one which has been compromised, rather it is one that has arisen as a result of the situation that currently exists between the parents and the grandparents.  It arises therefore as a result of adult issues, rather than decisions relating to the children, but it would be a nonsense to suggest that they are not related or significant factors to be looked at, in relation to any arrangements. 

33. The father, and perhaps to a lesser extent, the mother, do not consider that there is no possibility of a future relationship between the grandparents and the children, but rather that it should be a relationship built upon the terms that they consider appropriate.  I take the parents at their word in this consideration.

34. It may be that the absence of an order does, as noted by Moore J, “run the risk” that no relationship will come about but it is, in my assessment the least detrimental option in relation to these children and their future as part of the family unit comprised of the mother, the father, [X] and [Y].

35. Accordingly, the orders that I intend to make in this matter are as follows:

    (1)That all applications filed by the paternal grandparents be dismissed.

    (2)That should either party seek to make any application for orders in relation to costs, written submissions be filed within 28 days of today and the matter be determined in chambers, unless otherwise requested in writing by either party.

I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Coker FM

Date:  13 January 2012