P and C
[2002] FMCAfam 88
•30 January 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & C | [2002] FMCAfam88 |
FAMILY LAW – Contact – application by paternal grandmother for contact – overnight contact – best interests of the child – conduct and relationship of significant adults.
Family Law Act 1975 ss.60B, 65E, 68F(2).
| Applicant: | B P |
| First Respondent: | D C |
| Second Respondent | T P |
| File No: | ZP1754 of 2001 |
| Delivered on: | 30 January 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 30 January 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | The applicant grandmother appeared in person |
| Solicitors for the First Respondent: | Mr Mansour solicitor, Legal Aid Commission DX8293 Parramatta |
| Solicitor for the Second Respondent | No Appearance |
ORDERS
The applicant paternal grandmother is to have contact with the child,
J M M, also known as J M C, born 28 February 1992, as follows:(a)For a period of two hours on the child's birthday;
(b)For a period of two hours on the first Wednesday of each school term; and
(c)For such other times during the periods of contact exercised by the second respondent father pursuant to orders made by the Family Court of Australia at Sydney on 1 September 1997, such times as the applicant and the second respondent shall agree.
For the purpose of exercising contact as set out in 1(a) and (b) above the applicant shall collect the said child from school at the commencement of contact and return her to the respondent mother's residence at the conclusion of contact.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP1754 of 2001
| B P |
Applicant
And
| D C |
First Respondent
T P
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the paternal grandmother of the child, J M M, also known as C, for contact with that child. The child, J, was born on 28 February 1992. As such she is less than a month off her tenth birthday. The child resides with her mother who is the first respondent to these proceedings.
The child's father has been named as the second respondent to these proceedings. A copy of the application and affidavit in support filed on 21 May 2001 was served on the respondent father on 4 July 2001. He acknowledged receipt of the documents and identified himself as the person named in them. The father has elected to take no part in these proceedings whatsoever. The applicant has not sought to call him to give evidence on her behalf in these proceedings and has told the Court that her relationship with her son is a good one.
The respondent father has contact prescribed by orders made by the Family Court of Australia at Sydney on 1 September 1997 such orders having been modified by orders made by consent in the Family Court of Australia at Parramatta on 9 June 2000. It is the applicant's evidence that not all of that contact is being exercised.
The applicant originally sought far more substantial orders for contact than she has advised the Court that she seeks today. Originally she sought an order that there should be overnight contact, one night per week. Her application for overnight contact has been varied so as to provide that there should not be overnight contact. Her application is for weekly contact with the child being returned to the mother on that night. The application sought there should be one week during each school holiday. The applicant indicated that that was incorrect. What she sought was not a week but a day. The application is opposed by the respondent mother.
It should be made quite clear that the principles which a Court exercising jurisdiction under the Family Court Act must apply. The Court must be mindful in matters involving children of the object and principles set out in section 60(B) of the Family Law Act. Subsection (1) says:
The object of this part is to ensure that children receive adequate and proper parenting to help them achieve their full potential. To ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Subsection (2) sets out a number of principles, including in paragraph (b):
Children have a right of contact on a regular basis with both parents and with other people significant to their care welfare and development.
The overriding principle of course is that set out in section 65(E) of the Family Law Act which states:
In deciding whether to make a parenting order in relation to the child the Court must regard the best interests of the child as the paramount consideration.
Section 68F(2) sets out a variety of matters the Court must consider when determining what is in the child's best interests. Those matters include any wishes expressed by the child and any factors such as the child's maturity or level of understanding that the Court thinks is relevant to the weight it should give to the child's wishes.
The Court ordered that a family report be prepared by a Court counsellor. There had previously been confidential counselling. No resolution was achieved. The parties interviewed were the applicant, the respondent mother and the child, J. The father was not interviewed and, as I said earlier, despite having been served with copies of the originating process he elected to take no part in the proceedings at all.
The counsellor made it quite clear that there was a degree of hostility between the applicant and the respondent mother and indeed the evidence before the Court today made that clear. The counsellor I would comment was also of the view that the applicant sought contact with the child one day a week during the school holiday periods. The counsellor reported, on page 8, that the applicant had said:
I am alleging that J was living among a lot of deceit and lies that were going on in the family.
She initially explained that the deceit and the lies were to do with her son, J's father. Later however she intimated by using the phrase "deceit and lies" she was referring to her suspicions that the mother was defrauding the Department of Social Security. The applicant denied making any statement of that nature to the counsellor.
The applicant had made it clear that she attends dog shows which the child, J, used to attend with her and that the child, J, had also been involved with dancing classes. She made it clear to the counsellor and indeed today that because of her involvement with dog shows during the weekends weekend contact was not of a great deal of assistance with her. She denied the relationship with her son was strained as set-out by the counsellor on page 9 of the report. The counsellor described her as evasive in describing her own relationship with J's father.
The wishes of the child of course depending on the age and maturity of the child are matters to be considered and a family report is a way in which the child's wishes could be ascertained on an independent basis. The applicant is of the view that the child was influenced to express certain views and interestingly enough the counsellor, at the second paragraph at page 11 of the report refers to this possibility when he uses the words:
Seemingly primed by her mother J remarked that she is prepared to see her grandmother 'only in my dad's time".
Recalling that at one stage she had been spending some of Saturday with the Applicant during contact with the father but she spoke positively of some of her experiences with the Applicant. The counsellor observed grand-daughter and grandmother together and observed positive aspects of the interaction between them. It was clear however that the child has expressed a wish not to spend one night or even one afternoon a week with the applicant. Nor does she wish to continue with the dancing. Again, the counsellor acknowledged the fact that the child's view was not entirely independent. At page 12 at the second last paragraph he uses the words:
J although seemingly influenced by her mother has expressed the wish not to spend one night or even one afternoon a week with Mrs P.
The counsellor's conclusion is that in the light of tension between the applicant and the respondent, the cost to J of having an order that she has to spend some time each week with her grandmother far outweighs the benefit. The counsellor raises the question as to why the applicant could not spend some time with her grand-daughter during the time she spends with her father. The explanation given by the applicant for this is that the father, despite his apparently good relationship with her, opposes any significant amount of his contact time being spent with the applicant.
As I said, the father played no part in these proceedings at all. Whereas, in the ordinary course of things, one would expect that he would have been supportive of the application. Applying the principle of Jones v Dunkel I can only form the inference that the father's evidence had there been any evidence on affidavit, or had he attended Court – although I am aware that he is overseas at the moment – would not have taken the applicant's case any further.
The applicant devoted a considerable amount of her evidence in an endeavour to prove to the Court the respondent has been dishonest in her dealings with the Department of Social Security and other authorities and has given dishonest evidence in Court. At the same time, however, a letter was put to the applicant in cross-examination being what appears to be an anonymous letter accusing the respondent of getting benefits by deception, saying “I believe she is being investigated by the Department of Social Security”.
The applicant said, when she was giving evidence on oath, "I did not write the letter". It was then put to her and she was then asked if she knew who had written the letter. At one stage she said the letter was not written it was printed but leaving aside that quibble she was asked if she knew the identity of the person who had written the letter she said, "I may do". She then went on to say, "All right, I did write that letter". I would comment that the writing of the anonymous letter shows the applicant in a very poor light. Her telling untruths, on her oath, in this Court today showed her also in an extremely poor light.
Her amateurish attempt to disguise an obvious lie leading to an admission seems to have completely escaped her as to their significance. At the conclusion of the evidence she again sought advice from the Court as to how she could obtain information from the Department of Social Security about benefits allegedly being received by the respondent. It is the best interests of the child that the Court must consider and it is difficult to see how the child's interests can be benefited where the grandmother seeking contact with her wishes to continue with a vendetta against the mother in an attempt to prove that she is a perpetrator of some fraud.
At the same time in hearing the respondent mother's evidence it is clear that there has been hostility – a considerable degree of hostility – for some period of time. Why this should be so has not been made clear but it is quite obvious that there can be no reasonable negotiation between the grandmother and the mother while this state of hostility continues to exist. It is hardly surprising that the child, J, finds herself in a tug-of-war situation.
Certainly on the evidence before me that the grandmother's idea of the child attending dancing classes on a weekly basis is something the child just doesn't want to be involved in. Indeed, seeing the grandmother on a weekly basis does not appear to be something that the child wishes to be involved in at all. It may well be that when she was younger the child enjoyed attending dog shows. It is also clear the applicant elects to attend dog shows rather than visiting her son on alternate weekends when contact should be exercised, although she says it has not been.
I was less than satisfied with the applicant's evidence. I am certainly not of the belief that the applicant's evidence – on oath today – that the relationship with her son is a good one is something that the Court can accept. As I said the respondent father has taken no part in these proceedings whatsoever. Which is surprising in the circumstances. Does that mean that there should be no contact between grandmother and grandchild? I am not satisfied from the family report that that would be in the child's interest, if there were no contact whatsoever.
The counsellor reported a positive interaction between the two and I am mindful of the provisions of section 60B of the Family Law Act:
Children's right to contact with other people significant to their care, welfare and development.
It may well be that the maternal grandmother, who did not play a part in these proceedings, but who was referred to on numerous occasions may disagree with the applicant having any contact with this child, but no evidence has been put before me as to why that should be so. I am of the view that there would only be limited contact between grandmother and child if the grandmother were to rely on her own son. It is unclear at this stage just how much contact he is exercising or chooses to exercise.
I am not of the view that the door should be slammed completely and it may well be that if the grandmother and grandchild can build up their own relationship without pressure, without being involved in this family hostility, that a positive relationship may develop. If the grandmother, the applicant, continues in her campaign to prove the dishonesty or otherwise of the child's mother well then she may well find that the child is not happy to continue to associate with her.
I am satisfied that the only way there can be any contact or any reliable contact between grandmother and grandchild is for this Court to make some orders but they will not be nearly as substantial as the applicant seeks. It is noteworthy that the applicant does work at the child's school and it would be unthinkable for her to be working at the child's school in the knowledge that her grandchild was there and she could not see her at all. There should be some contact and I propose to make the following orders.
I certify that the preceding in twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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