Orbel and Maldera

FEDERAL CIRCUIT COURT OF AUSTRALIA

ORBEL & MALDERA

[2014] FCCA 949

Catchwords:
FAMILY LAW – Parenting – child aged 12 – application by the father for the child to live with him – child has lived with the maternal grandmother since he was about four years old – maternal grandmother opposes a change of residence.

Legislation:

Family Law Act1975, ss.60B, 60CC

Aldridge & Keaton (2009) FLC 93-421
D & F [2001] FamCA 382
Mazorski & Albright (2007) 37 Fam LR 518
Rice & Asplund (1979) FLC 90-725
Rice & Miller (1993) FLC 92-415

Applicant:

MR ORBEL

Respondent:

MS MALDERA

File Number:

NCC 1281 of 2007

Judgment of:

Judge Terry

Hearing date:

7 & 8 April 2014

Date of Last Submission:

8 April 2014

Delivered at:

Tamworth

Delivered on:

9 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Boyd

Solicitors for the Applicant:

A W Simpson & Co

Counsel for the Respondent:

Mr Tregilgas

Solicitors for the Respondent:

R J O’Halloran & Co

ORDERS

The orders of 1 June 2009 insofar as they relate to the child [X] born [in] 2002 are discharged.
The father shall have sole parental responsibility for the child subject to Order 3.
The father is restrained and an injunction is granted restraining him from enrolling the child in any school other than [S] Primary School and [T] High School without first having obtained the consent of the maternal grandmother in writing or an order of the court.
The child shall commence living with the father at 5.00pm on Sunday 4 May 2014.
The child shall spend time with the maternal grandmother as follows:
(a)each alternate week in school terms from the conclusion of school on Friday to the commencement of school on Monday or the commencement of school on Tuesday if Monday is a non-school day.
(b)for the first half of all school holiday periods in odd numbered years and second half of all school holidays periods in even numbered years.
(c)at such additional or alternate times as may be agreed between the parties.
Changeovers which do not take place at school shall take place at [omitted] McDonalds.
Neither party will consume alcohol to excess or use illicit drugs when child is in their care.
Both parties are restrained and an injunction is granted restraining them from denigrating the other party or the other parties spouse to or in the presence of the child and neither party will allow a third party to do so.
Each party may obtain from the child’s school copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend events at the children’s school normally attended by parents.
Each party shall advise the other as soon as reasonably practicable in the event that the child while in their care is involved in an accident or medical emergency requiring treatment at hospital or is diagnosed with a serious illness.
Each party shall advise the other of their current mobile telephone number and current address and advise the other party of a change of address or contact telephone number within forty-eight (48) hours of a change occurring.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT TAMWORTH

NCC 1281 of 2007

MR ORBEL

Applicant

And

MS MALDERA

Respondent

REASONS FOR JUDGMENT

AS CORRECTED

INTRODUCTION

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I have before me an application for parenting orders in relation to [X], who was born in [omitted] 2002 and who has just turned 12. [X] has lived with his maternal grandmother since he was about four years old.
The father has applied for an order that [X] live with him. He says that he can provide [X] with a good home and he wants [X] to be with his father and his three young siblings.
The maternal grandmother wants the current situation to remain in place. She does not accept that [X] is expressing any wish to change residence and says that [X] is doing very well in her care and that there is no reason to change his residence and no certainty that the change would work out for him.
[X]’s mother, Ms S, was named as a party to these proceedings but she has not been served. She had a serious drug problem in the past and she has not been a part of [X]’s life in any meaningful way. There was reference in the material to her last having seen [X] in December 2012 and the maternal grandmother said that she last telephoned him about six months ago.
It has been a long time since [X] has seen his mother and I am not troubled by the fact that she has not been located and served with the documents.
There are court orders in place concerning [X]. They are final orders which were made in 2009 and they provide for [X] to live with the maternal grandmother and spend time with the father on alternate weekends and for half of the school holidays.
When final orders are in place the Court always has to consider – and it is called the rule in Rice & Asplund[1] – whether it should entertain another set of proceedings about the child or whether it should say “enough is enough” and tell the parties that they cannot come back to Court again about the child.
[1] Rice & Asplund (1979) FLC 90-725
I addressed this briefly with the maternal grandmother’s counsel at the beginning of the hearing and I am of the view in this case, as I expressed to him, that it was appropriate to conduct a hearing and to reconsider the arrangements for [X]’s care.
What the Court has to look at when a fresh application is brought are what the previous orders are, the reasons why they were made and whether there has been any change of circumstances which warrants reconsidering them.
In this particular case five years have passed since the orders were made. They were not made after a hearing; they were made in the absence of most of the parties to the proceedings, so there were no reasons given and no consideration by a judicial officer of the issue of where [X] should live.
There has been a change of circumstance since the orders were made in that [X]’s two older sisters have left the maternal grandmother’s care, and another change of circumstances is that the father, who did not take part in the earlier proceedings, now wants to be considered as a potential person who should look after [X]. So I am satisfied that it is appropriate to reconsider the arrangements for [X]’s care.

The evidence

The father relied on his application filed on 7 May 2013, his affidavit filed on 28 February 2014 and the affidavits of his wife Ms H and the paternal grandmother Ms O filed on 28 February 2014.
The maternal grandmother relied on her amended response filed on 22 October 2013 and her affidavit filed on 3 February 2014.
There was an 11F memorandum prepared by a family consultant,

Mr C. He spoke to [X] and he provided some information about [X]’s views concerning where he should live.
No family report was ordered, and the maternal grandmother’s counsel mentioned this several times as a possible deficiency in the proceedings.
Whether it is a deficiency needs to be considered against this background. The father commenced these proceedings in May 2013. The maternal grandmother filed a response and I ordered that a child inclusive child dispute conference take place. [X] told Mr C at this conference that he had no concerns about either household and did not want to express a view about where he should live.
Neither party ran a case that the other party currently had problems with drug use, mental health issues, alcohol abuse or serious parenting capacity deficiencies which meant that they should not be considered as a carer for the child.
The maternal grandmother alleged that the father had historically used drugs but her solicitors did not seek an order for drug testing and the maternal grandmother’s solicitors issued no subpoenas.
The father’s solicitor issued subpoenas to the Department of Family and Children Services and NSW Police but nothing was tendered from the subpoenaed material during the hearing. The only allegation the father made against the maternal grandmother was that [X] had complained about being smacked a couple of years ago and said that he did not like it.
I am not critical of the solicitors for not asking for drug testing and not issuing subpoenas, I want to make that clear, but what it says to me is that from where the parties were sitting they did not have too many concerns about the other party. That is what that says to me, and I think that is a valid conclusion to draw because there are no external signs that [X] is getting into any difficulty in his life.
[X] is not in trouble at school. He is not in trouble in his peer relationships. He is not self-harming. He is a child everyone is proud to have as their relative, their grandson or son as the case may be. He has obviously been well brought up. He is living with the maternal grandmother. He is spending frequent time with the father. He told

Mr C he did not have any problems in either household. So in those circumstances the solicitors not issuing subpoenas or requiring drug testing as the case may be indicates to me an acceptance by them that nothing adverse would have been found if they had gone on a fishing expedition.
The maternal grandmother hinted at some problems but the Court can only act on evidence, not on hints and innuendos and it is not open to me to be concerned because the maternal grandmother indicated that she had some misgivings. There is nothing there for me to do anything with.
The fact that this is a case where there really are not too many underlying issues about the parties is also demonstrated by the trial affidavits the parties filed. They were really brief for a hearing of this kind. The father’s affidavit consisted of four pages and the maternal grandmother’s of eight, counting the pages where material things appeared and not cover sheets. Four pages from the father, two from his partner, one from the paternal grandmother and eight from the maternal grandmother most of which contained historical information.
That also suggests to me that there actually are not any underlying issues in this case about the parties, and when no issues are raised by the parties in their material and where there is no suggestion of abuse of the child from the family consultant in the 11F memorandum in my view it is entirely appropriate to proceed without worrying about getting a family report.

Background

[X] is the youngest of Ms S’s three children. He has two older sisters, [A] and [B], and they each have different fathers.
From his birth in 2002 until about 2005 – there was a little bit of discrepancy about these dates – [X] lived either with his mother or with the father and mother together. He may also have spent some time during this period with the maternal grandmother. She said that he did. That issue was not really explored and nothing much turns on it.
In 2007 the maternal grandmother commenced proceedings in the Family Court seeking an order that [X] and his sisters live with her. The father and the two other fathers were parties to those proceedings and interim orders were made for [X] to live with the maternal grandmother and spend time with the father on alternate weekends and for half of the holidays.
A family report was prepared in 2009. The father apparently did not attend the report interviews in person. He did not file any material in the proceedings. He did not attend court on 1 June 2009 when the matter was before Fowler J for the hearing and neither did the mother. Orders about [X] were made that day as sought by the maternal grandmother.
The orders provided for [X] and [B] to live with the maternal grandmother and for the maternal grandmother to have sole parental responsibility for them and for [A] was to live with her father and the maternal grandmother week about and for the maternal grandmother and [A]’s father to have shared parental responsibility for [A]. Orders were made for [X] to spend time with the father in the same terms as the interim orders.
The father was aware of the proceedings. He decided not to oppose that happening and he said that this was because he could see an advantage to [X] in living with his siblings.
The father had commenced living with Ms H in 2007 and by the time the Family Court proceedings were listed for hearing in 2009 their son [Y] had been born and Ms H she was expecting [Z], so the father had his own family to think about at that stage, his emerging new family, and he acquiesced in orders being made about [X] as sought by the maternal grandmother.
As it turned out [A] and [B] did not remain with the maternal grandmother for long. The orders were made in 2009. [A] left in 2010 and [B] in 2011 and since 2011 only [X] has been with the maternal grandmother.
The maternal grandmother did not tell the father about [B] and [A] leaving her care and the father’s counsel was critical of her for that but I am not to any great degree. The relationship between the father and the maternal grandmother is poor now and it was very likely poor then. There was no evidence that the maternal grandmother knew about the father’s reason for agreeing to [X] remaining with her and I cannot impute any bad motive to the maternal grandmother in not telling the father that [B] and [A] had left her home. I am not critical of her for that.
Since the orders were made in 2009, that is, nearly five years ago, [X] has spent time with the father in accordance with the orders.
There have been one or two little hiccups. There was a particular hiccup in July 2012 when the father retained [X] and a few days later the maternal grandmother obtained an ex parte recovery order but time then resumed uneventfully.
In May 2013 the father commenced these proceedings seeking an order that [X] live with him and shortly after the maternal grandmother filed a response seeking that his application be dismissed.

The parties circumstances

The father is 37. He lives in [T] with his wife Ms H and their three young children: [Y], who is almost six, [Z], who is a little bit over four and a half; and [W], who is 21 months.
The father lives in rented accommodation. He said he was quite hopeful he could get a four bedroom house if I made an order that [X] joined the household and he was not challenged about that.
The father is a [occupation omitted]. He has not worked for wages for the past 12 months although he is apparently doing three days a week Work for the Dole at a [omitted].
Ms H told me that she was 27. I think the father said she was 26 but she told me she was 27, and she is engaged in home duties, not surprisingly when she has three little children to look after.
The maternal grandmother is 57. She also lives in [T] and she lives with her partner or husband who is [X]’s step-grandfather. He did not give evidence in the proceedings. I accept the maternal grandmother’s evidence that she lives in a pleasant house in a very pleasant neighbourhood which provides a very good standard of living for [X].
[X] is in year 6 at school, his last year of primary school. He attends [S] Primary School and the father said that he would continue this if [X] lived with him. He said that he would also arrange for [Y], his eldest son, to attend the same school, which would make it a lot easier in terms of logistics for dropping off and picking up.
[X] is due to go to high school next year and there seemed to be general agreement that [T] High School would be a suitable school for him to attend.

The parenthood factor

Before I turn to the issue of [X]’s best interests I want to refer to the factor of parenthood because it is a relevant factor in this matter.
The Court has the power to make a parenting order in favour of the maternal grandmother, it has already done so in fact, but the decided cases make it clear that the fact of parenthood is a relevant consideration when it comes to determining what is in a child’s best interests.
The father’s counsel referred to a quote from a case of D & F in which the court said as follows:
There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child's welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.[2]
[2] D & F [2001] FamCA 382
The Full Court has repeatedly emphasised however that notwithstanding the amendments to the Family Law Act in 2006 the fact of parenthood does not create a presumption in favour of a parent and the legislation requires that all decisions about parenting must be determined by treating the best interests of the child as the paramount consideration.
In Aldridge & Keaton the Full Court said as follows:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
·     the unaltered provision dealing with best interests (s.60CA) and the positioning of the section in the Act;
·     the recognition in s.65D(1) that ultimately a court should make such parenting order as it thinks proper; and
·     that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
Experience and common sense demonstrates that the vast majority of applications for parenting orders will be brought by one of a child’s biological parents, with the other parent the respondent to the application. But there are also situations where one or both parents are deceased or otherwise unavailable or unsuitable to fulfil the duties of parenthood. Often in the latter circumstances a relative of the child will appropriately seek parenting orders.[3]
[3] Aldridge v Keaton (2009) FLC 93-421
In Aldridge & Keaton the Full Court referred with approval to the following passage from Rice & Miller which involved a dispute between a father and grandmother:
… We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question[4].
[4] Rice & Miller (1993) FLC 92-415

[X]’s best interests

The fact of parenthood is important but any decision I make about [X] has to be a decision made by treating his best interests as a paramount consideration and in order to determine [X]’s best interests I must have regard to the matters in s.60CC(2) and (3) of the Family Law Act.
The primary considerations in s.60CC(2) 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.

S.60CC (2A) provides that in applying the considerations in s.60CC (2) the court must give greater weight to the consideration set out in s.60CC (2)(b).
In this particular case there are no allegations that [X] is likely to be exposed to abuse, neglect or family violence in the care of either of the parties. The fact that he might have been smacked on occasion and didn’t like it does not mean he has been abused or subjected to violence.
In terms of a meaningful relationship with his parents, sadly for [X] the mother has abdicated from his life and [X] cannot have a meaningful relationship with her. He can have one with the father and he has one with the father at the moment.
A meaningful relationship simply means a relationship which is significant, important and valuable to the child[5] and [X] has such a relationship with the father at the moment and will continue to have it no matter what orders I make in this case.
[5] Mazorski & Albright (2007) 37 Fam LR 518
So the primary considerations in that respect do not help me to determine what I should do for [X].
The first of the additional considerations in s.60CC (3) is any views of the child and the weight I should give to those views.
The father and the paternal grandmother both said that [X] had consistently expressed a wish to live with his father. The maternal grandmother said [X] had not said anything like that to her.
All of the parties in the case said that [X] was a kind hearted boy who didn’t want to hurt anyone and I cannot place weight on what the father and the maternal grandmother said about what [X] had said or not said as the case may be, because [X] just may not want to hurt anyone’s feelings or may be saying things to please.
Mr C said that [X], when asked about the two options, said that either option was okay with him. Mr C said that [X] seemed to have a mild preference but did not say what it was and no amount of cross-examination of Mr C would have advanced that. So I have a situation where [X] said that either option was okay, he might have a mild preference but I will never know what it was, and Mr C said it was a mild preference. That is the extent of the findings I can make about [X]’s views.
The next additional consideration is the nature of the child’s relationship with each of his parents and any other relevant persons including grandparents of the child.
I am satisfied that [X] has a good relationship with all of the adults he sees regularly who are important to him; with his father and his paternal grandmother and his stepmother, with his maternal grandmother and maternal step-grandfather.
I am also satisfied he has a good relationship with his three young siblings. The father said that was so as did Ms H. It is highly likely to be true and I accept that it is true. The father was not challenged about that evidence.
There was no evidence about the relationship [X] currently had with his older sisters. I know that they are going on a cruise with him shortly but there was no evidence about how often he saw them or how he got on with them so I cannot make any findings about that.
I must consider the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, or to communicate with the child.
There is no question that the mother has let [X] down. She has abandoned him, in effect, which is cruel, but it has happened. Nothing I do can change that.
The father has taken every opportunity to spend time with [X] since the orders were made in 2009 and in that regard he has demonstrated a strong interest in [X], a strong desire to be part of his life. I am going to comment later on about the fact that the father did not take part in the earlier proceedings but I won’t go there now.
I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child.
The father is not paying child support but there was no evidence that he was assessed to pay. There was no evidence that an application had been made. He has three small children at home, he is on Centrelink benefits and it is unlikely that the maternal grandmother would get much if she applied for an assessment but there was no evidence that she had applied for one.
I can’t really find the father has failed to fulfil an obligation if nobody has thought to impose an obligation on him. Nevertheless the reality is that the maternal grandmother has largely been responsible for [X]’s financial support for very many years and that’s enormously to her credit. [X] is very lucky.
I must have regard to the likely effect of any change in the child’s circumstances, including the likely effect of separation from either of their parents or any other child or person, including a grandparent or relative of the child, with whom the child has been living.
This was a big point in the maternal grandmother’s case. It was her case that [X] was doing well in her care, that it was impossible to predict whether he would cope with the change to his father’s care, that it would be a leap into the unknown, and that therefore a change shouldn’t be made.
Basically the maternal grandmother’s case was if it’s not broken why fix it, and I will have to consider later on, after I make findings about the rest of the s.60CC (3) factors, what assessment I can make about the likely effect of any change in [X]’s circumstances.
I must have regard to the practical difficulty and expense of the child spending time with a parent but that is not an issue in this case.
The father lives in [T], and if for a moment I consider this also in relation to the maternal grandmother – although she’s not a parent – there is no practical difficulty and expense in [X] spending time with either of the parties in this case.
I must consider the capacity of each of the child’s parents and any other person to provide for the needs of the child, including his emotional and intellectual needs.
The maternal grandmother is doing a very good job looking after [X] day to day. There is absolutely no question about that. You only have to look at him, at his appearance, at the fact that everyone is glad to have him around, that he is having no problems at school, that he has friends who like him, to see that the maternal grandmother is doing a good job.
But the father is part of that as well; [X] spends each alternate weekend and half of the holidays with his father, so the father is also obviously having a very positive input into [X]’s life. It is certainly not a case in which there was any suggestion that there had been any involvement by the Department or that anybody had failed to look after [X] since the matter first went to the Family Court in 2007.
There was an allegation that the father had used drugs in the past. He asserted that this was not a current issue for him. No drug testing was requested, which rather suggests to me – and I think it’s fair for me to find – that nothing has come back to the maternal grandmother to suggest there is a problem there, because if it had her solicitor would undoubtedly have requested drug testing and an order would have been made for it because the allegation was raised and the father admitted past drug use.
The father has an assault conviction, apparently for assaulting a subsequent partner of the mother’s. I have no idea what that entailed. It was not explored in cross-examination. The maternal grandmother and the father both mentioned it but neither of them provided any detail about it. It wasn’t the maternal grandmother’s case that the father was a generally violent person or likely to assault anyone else so that allegation and that conviction doesn’t take me anywhere at all.
One of the things I have to consider is the capacity of the parties to provide for [X]’s emotional needs and in my view both of the parties have a diminished capacity in that regard.
As far as the maternal grandmother is concerned it’s a little bit concerning that she has been unwilling to entertain [X] spending any more time with the father than he is at the moment. She made a belated offer during submissions to increase the time during school terms but there was no evidence that she had ever put herself in [X]’s shoes and thought about whether it might benefit him, now a 12 year old boy, to spend more time with his dad.
My concern about the father is his attitude to the maternal grandmother and if there is a major deficiency in the father’s case it is that. It reflects very poorly on him.
The father needs to understand that the way the evidence presents itself the maternal grandmother did not steal [X] from him. Nothing could be further from the truth. She was there for [X] and his sisters. She made an application to the Court, she took on their care, and she supported [X] financially. The father let all this happen between 2007 and 2009. He didn’t fight for [X] then. He didn’t file any documents in those proceedings. He didn’t attend the family report interviews in person. He acquiesced in [X] living with the maternal grandmother.
It must have been something which suited him at the time, and it is a deficiency in his capacity to provide for [X]’s emotional needs that he simply cannot see that he is responsible for the outcome of [X] being brought up by the maternal grandmother. He was part of that, and the fact that he cannot see it, that he talks about [X] having been stolen from him, and that he shows no appreciation of the good job the maternal grandmother has done for [X] indicates that he has a blunted capacity to provide for [X]’s emotional needs, and that concerns me.
I must consider [X]’s maturity, sex, lifestyle and background.
The only thing I would say here is that he is 12. He is apparently an easy-going child, an adaptable child and I cannot say anything more under this subheading than that.
I have to consider the attitude of each of the child’s parents to the child and the responsibility of parenthood.
The comment I made a moment ago about the fact that the father, for reasons of his own, chose not to fight for [X] in 2009 and then from that point on appears to have persuaded himself that somehow the maternal grandmother has taken [X] from him, in my view indicates that his attitude to [X] and the responsibilities of parenthood is not so great.
I must consider any family violence involving the child or a member of the child’s family.
I do not consider that relevant. I am not going to go down the tortuous path of trying to work out if Mr S, who was assaulted, was in a relationship with the mother at the time of the assault and that therefore there was family violence. I do not have enough evidence to find that. I am satisfied that there is no evidence which would allow me to make a finding that there has been any family violence.
There are no family violence orders.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
This is always a difficult one because further proceedings can arise for any number of reasons.
If I make the orders the father wants and [X] does not settle, or the father does not comply with the spend time with orders, the matter could end up back in Court.
If I make the orders the maternal grandmother wants we might have a period of peace and then [X] might actually start to express a view to her and we might end up back in Court anyway.
I must consider any other relevant matter and I return here to the fact of parenthood.
It is particularly relevant in this case because [X] has been let down by one of his parents, his mother, and he has a father who, whatever he might have done five years ago or seven years ago, or between five and seven years ago, now wants to step up to his responsibilities and assume [X]’s care. The fact of parenthood is relevant, but another relevant matter which I am going to have to take into account is the father’s attitude to the maternal grandmother.
I will explain in more detail why that issue worries me so much. [X] has a mother who has let him down, who is not interested in him. The father does not get on with the maternal grandmother and he does not get on with [A] or [B]. He does not get on with any member of the maternal family. [X]’s only link to the maternal family is through the maternal grandmother.
If I place [X] with the father and then the father is difficult about [X] spending time with the maternal grandmother, not only will [X] being cut off from her but he will be cut off from any opportunity to have a link with any of his maternal family, and that is why the father’s attitude to the maternal grandmother and his attitude to whether [X] should spend time with her causes me concern.
My concern is probably slightly increased by the fact that the paternal grandmother also does not have a particularly good view of the maternal grandmother and has apparently bought into the father’s world view that [X] was taken away from him, and Ms H supports the father in that.

Parental Responsibility

I must consider the issue of parental responsibility.
There is an existing order that the maternal grandmother has sole parental responsibility for [X] but I will need to reconsider it for a couple of reasons.
If [X] remains with the maternal grandmother I need to consider whether, given the father’s wish now to be a greater part of [X]’s life, I should include him in the parental responsibility aspect of things.
His relationship with the maternal grandmother is poor but that is not always the be all and end all of it. Sometimes people can learn to speak to each other respectfully occasionally, and this is not a case where a lot of big decisions will need to be made.
If I make an order that [X] live with the father I am going to have to consider it from a different perspective. If that were to occur then it would almost inevitably follows that the father would need to have parental responsibility for [X].
Whether he should share it with the maternal grandmother is something I will have to consider, but I am going to consider that after I make a decision about where [X] should live.

Conclusion

I want to say this to the parties at the outset. Each of the parties in my view has come to Court about this matter in absolute good faith. Each of them honestly believes that the outcome that they are seeking is the right outcome for [X].
I absolutely accept that and I absolutely accept that they love [X]. They only want the best for him. They are absolutely genuine in their positions. But I have to make a decision. That is the job I am paid to do. I am going to make one of the parties unhappy and there is nothing I can do about that. I am sorry, always, to make people unhappy but I have to make a decision.
This is a very difficult matter because [X] has lived with the maternal grandmother effectively given that he is 12 for the majority of his life.
The maternal grandmother has done a good job bringing him up, and the interesting thing about [X] is that not only do people seem to love him, they actually seem to like him, and in some ways that is more important than loving him. They seem to like him. He is a likeable boy, and that means that someone has done a very good job of bringing him up, and the maternal grandmother deserves a great deal of credit for the child that [X] is today. I do not accept for a moment that she stole him from the father – not for a single moment.
There was nothing to prevent the father taking part in the Court proceedings between 2007 and 2009 if he had chosen to do so. He was content for the maternal grandmother to take on the role of [X]’s substitute carer.
Of course his attitude is different now. He wants to be a parent to [X] and to fulfil his role as a parent to [X] on a day to day basis. The maternal grandmother effectively says to me that it is too late. [X] has been with her for five years since the final orders were made. He is going well. Why should I change something that is working so well for [X]?
The maternal grandmother is very concerned that [X] will not settle if I make an order that there be a change in his residence.
I have to bear in mind that although [X] did not express a preference to Mr C it is possible that he might find the reality of living with the father different to what he imagines and it would be very unfortunate if he were unsettled if I made the change and made an order that he live with the father.
The maternal grandmother urged me to take no risks, to make no change, to leave things as they are. She said that if in a couple of years when [X] was about 14 he expressed a wish then she would let him go.
I am not entirely sure that the maternal grandmother would let [X] go that easily and one of the issues I have to bear in mind is that if I make an order that [X] lives with the father it will better meet the objects and principles in s.60B of the Family Law Act.
Most of the principals and objects of the Family Law Act refer to the benefit to a child of having a meaningful relationship with both of his parents, of being cared for by both of his parents to the maximum extent possible.
S.60B provides as follows:
(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.

(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).

The mother is not there for [X]. The father wants to do the things the Act says a parent should do for a child, the things the Act says children have an entitlement to, because under the Family Law Act parents do not have rights. Grandparents do not have rights. Children have rights, and what the Act says is that children have a right to know and be cared for by both of their parents
If I make the orders the father seeks I will be better meeting the objects and principles in s.60B.
I also cannot refuse to make the orders the father is seeking simply because there is some risk that the change might not work.
Change is a fact of life. Change has to happen. It happens to everyone in life and sometimes some risks have to be taken, and what I have to consider in this case is whether there is a high risk that this change might not work for [X] and what the benefits would be to him if it did work.
What I know about the father is that he has been uneventfully caring for [X] on weekends and during the school holidays. I cannot make any adverse findings about his parenting capacity except for the issue of his attitude to the grandmother.

There is no issue in relation to his care of his three younger children. This is not a case where there has been any departmental involvement. Ms H impressed as a caring person and she obviously cares for [X].
There would be real benefits to [X] in circumstances where his mother has let him down in knowing that he has a father who cares enough about him to take him into his home and provide for him through thick and thin in the difficult times and the easy times, and in my view the maternal grandmother and the step-grandfather being there for [X] cannot really substitute for that.
[X] is a 12 year old boy. If the change is to occur, yes there is some risk that it might not work, but in my view the risk is fairly limited given what I know about [X]’s views, what I know about him as a boy, what I know about the father’s capacity in relation to his other three children, what I know about Ms H. In my view the risk of the change not working is fairly limited.
If a change is to be made now is probably a good time to make it rather than in a couple of years because [X] is in his last year of primary school. Next year he will be starting high school. That is a big change for a child. To make this change before he has to have the other change has a certain advantage for [X], so he can settle into that before he has to settle into high school.
[X] clearly understood when he spoke to Mr C what the alternative proposals were. He did not express a view one way or the other. He said he could cope with any outcome. Mr C commented that:
He appeared to be a resilient child who had learned to accept his circumstances. He had observed many changes in his family’s situation and had merely accepted that this was how it was. He continued to adopt that view regarding the current family law matter.
Mr C certainly did not suggest that [X] would not cope with a change.
I am going to order, distressing as it is going to be for the maternal grandmother, that [X] commence living with the father but I want to say that I do not do it without some reservations, and the reason for my reservations is mainly because of my concern about the father’s attitude to the maternal grandmother.
[X] is a child who is very reluctant to rock the boat. He wants to please people. The father has a blunted capacity to provide for [X]’s emotional needs and I am concerned that [X] might not be willing to press to see his maternal grandmother or his siblings if he knows that the father does not want that to happen or does not support it or does not like these people.
My preference in this matter, as I think I indicated at the outset, might have been to make interim orders, to trial a change, but the parties did not agree to take that up and I have now conducted a final hearing and I consider it appropriate to make final orders.
I want to point out that decisions like this are always difficult for someone like me to make. I worry about whether the outcome is going to work for [X], I really do. The father has to comply with the orders I make about [X] spending time with the maternal grandmother, but he has to do more than that. He has to assure [X] that it is fine with him if [X] has a good relationship with his maternal grandmother – he owes that to [X] – and to make it clear to [X] that he supports and encourages that relationship, because damage will be done to [X],

Mr Orbel, if you do not do that.
Although the maternal grandmother will be very distressed about this decision it would be an ideal outcome for [X] if she could somehow bring herself to support it and to tell [X] that this was all right and that she was all right, because that would make the whole situation easier for [X] as well.
I then have to consider the issue of parental responsibility. Obviously if [X] is to go to live with the father he needs to have parental responsibility for the child, and the issue then is whether that should be shared with the maternal grandmother.
I am somewhat reluctant to deprive the maternal grandmother not only of [X] on a day to day basis but of parental responsibility for him. I am reluctant to do it, but in my view, given the fact that [X] will be living with the father and that the relationship between the father and the maternal grandmother is poor, and that the maternal grandmother is a grandmother, not the other parent, the appropriate order for me to make, given that I am going to put [X] with the father is that he have sole parental responsibility for him. I cannot envisage that harming [X].
I am going to make some orders for time and the father will have to comply with them. Sole parental responsibility does not mean that he does not need to do that. And no other big decisions are likely to be required for [X]. I am going to make an order that [X] attend [S] Public School and [T] High School unless agreed otherwise between the father and maternal grandmother because that is agreed. Apart from that, I am going to make the order for sole parental responsibility. It simply makes sense if I am going to change the residence.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Associate:

Date: 12 May 2014

As Corrected:

Paragraph 130 at the end of the first sentence the word “are” has been corrected to read “were”.

[2014] FCCA 949

9 April 2014

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Remedies

Jurisdiction

Costs

Appeal