Pearce & Gough and Ors

[2008] FamCA 879

FAMILY COURT OF AUSTRALIA

PEARCE & GOUGH AND ORS [2008] FamCA 879

FAMILY LAW – CHILDREN – Orders between mother and grandparents – time child spends with grandparents

Family Law Act 1975 (Cth)

APPLICANT: Mr Pearce

RESPONDENT: Ms Gough

INTERVENORS: Mr and Mrs Pearce (Snr)

FILE NUMBER: ADF 1477 of 2005

DATE DELIVERED: 7 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 7 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr J Hicks

SOLICITOR FOR THE RESPONDENT: Alderman Redman Lawyers

COUNSEL FOR THE INTERVENORS: Ms S Roennfeldt

SOLICITOR FOR THE INTERVENORS: Withnalls

ORDER BY CONSENT

1. That the child … spend time and communicate with the paternal grandparents Mr and Mrs Pearce (Snr) at all reasonable times by agreement between the mother and the paternal grandparents but in default of an agreement as follows:

   (a)by mobile telephone between 4:00pm and 5:00pm on Friday 8 August 2008 and each alternate week thereafter;

   (b)by written and electronic communication as is reasonable and such communication includes the exchange of letters, photographs, postcards, presents and emails:

   (i)the mother will encourage and facilitate the child to communicate with the paternal grandparents;

   (ii)the paternal grandparents are to be responsible for initiating any telephone calls to the said child and the paternal grandparents will provide to the mother a pre-paid mobile telephone which the child can use for any telephone calls with the paternal grandparents.  The mother is to ensure that the child’s pre-paid mobile telephone is charged and switched on for the purposes of the telephone communication;

   (iii)NOT BY CONSENT the mother will provide a post office box and email address which the paternal grandparents can use for written and electronic communication with the child PROVIDED THAT the paternal grandparents pay the costs of the post office box for the period of 12 months from the date of this order and in each alternate 12 month period thereafter, and the mother pay the costs of the post office box for the intervening 12 month period and each alternate 12 month period thereafter;

   (c)after a reasonable period of time to be agreed between the mother and the paternal grandparents or in default of agreement six [6] months from the date of these orders the mother and the paternal grandparents will discuss the child having an introduction meeting with the paternal grandparents with the details of the meeting including the date, time and place to be agreed between the mother and the paternal grandparents;

   (d)after the introduction meeting pursuant to paragraph 1(c) above the mother and the paternal grandparents will discuss and agree on any subsequent meetings or time spent with the child;

   (e)the mother will encourage and facilitate the child to attend the introduction meeting and any subsequent meetings and/or time spent with the paternal grandparents.

2. That unless otherwise agreed the paternal grandparents are to be responsible for all costs associated with their communication and time spent with the said child pursuant to these orders.

3. NOT BY CONSENT that the mother and the paternal grandparents will keep each other informed of any changes forthwith upon any change occurring to their telephone numbers, email address and postal address.

4. That the mother and the paternal grandparents each be restrained and an injunction be granted restraining the mother and the paternal grandparents from denigrating the other and from permitting any other person to do so in the presence of the child.

5. NOT BY CONSENT that the paternal grandparents each be restrained and an injunction be granted restraining them from advising the father as to the child’s mobile telephone number, email address, postal address and residential address and from providing any photographs of the said child to the father or providing access to any photographs of the said child to the father.

6. That the paternal grandparents be at liberty to discuss and/or provide any information about the said child to the father as follows:

   (a)general information about how the said child is doing at school PROVIDED THAT such information does not include the location of where the child attends school;

   (b)general information about the child’s health and wellbeing PROVIDED THAT the information does not include the locations or details of medical providers that the said child has or does attend upon and/or the child’s contact details including the child’s postal address and residential address;

   (c)any correspondence from the child PROVIDED THAT such correspondent does not include the child’s contact details including the said child’s mobile telephone number, email address and postal address and residential address.

7. That the paternal grandparents each be restrained and an injunction be granted restraining them from enquiring or questioning the said child on matters concerning the said child’s contact details, including the said child’s home telephone number, residential address and email address.

8. That the Application in a Case filed by the paternal grandparents on 29 January 2008 and paragraphs 8 to 15 inclusive of the Response filed by the mother on 20 June 2008 be dismissed and removed from the active pending cases list.

9. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1477 of 2005

MR PEARCE

Applicant

And

MS GOUGH

Respondent

MR AND MRS PEARCE (SNR)

Interveners

EX TEMPORE REASONS

1. In this matter I have before me competing applications for orders relating to the child, a daughter.  The dispute before me today is between the paternal grandparents and the mother.  There have been and there are still proceedings on foot between the father and the mother but I do not need to concern myself with those today.

2. The paternal grandparents commenced these proceedings earlier this year by filing an Application on 29 January 2008 seeking various orders in relation to the child.  The aim of those orders was for them to establish a relationship with the child and to spend time with the child in some way, whether that was by face‑to‑face contact or by telephone communication.  They then filed an Amended Application on 10 April 2008. 

3. On 20 June 2008 the mother filed a Response to that Amended Application.

4. I am pleased to say that almost all issues in dispute between the paternal grandparents and the mother have been able to be resolved, and I have before me proposed consent minutes.  However, unfortunately and surprisingly, not all issues were able to be agreed.  In terms of resolving those issues in dispute, both parties were content to have that heard on a final basis on the papers with submissions being made.

5. That has happened.  The parties have filed their respective affidavits as to the issues, and I have heard submissions today as to the issues in dispute. 

6. Dealing with each of them in turn, the first issue in dispute was whether the mother should be obliged to provide photographs of the child to the paternal grandparents, effectively on an ongoing basis from now, or on the basis of a first photograph within four months of the date of any orders made and thereafter a photograph at least every six months. 

7. In my view there is no basis for a delay in the provision of photographs.  It is an exercise to establish a relationship between the child and her grandparents. 

8. The complicating factor has been, and continues to be, the presence of the father.  As I say, there are separate proceedings involving the father and the mother.  They are unfortunate and sad proceedings in that, at the moment, the father is not having any time with his daughter, and that is justifiable on the evidence that has been before me to date.

9. Obviously that issue clouds and impacts upon any agreement that can be made between the grandparents and the mother.  For example, as was put to me by Mr Hicks, the issue in terms of photographs was to ensure that from his client's point of view, those photographs were not made available to the father.  That is a separate issue to how frequently photographs are provided to the grandparents.  But obviously it is a related issue, because I would expect that the mother, if she thought about it, really could have no objection to providing photographs of her daughter to the grandparents as an aid in establishing a relationship which she, I take it, concedes and agrees is a relationship which should be fostered.

10. I have no difficulty in making an order which provides for photographs to be made available on an ongoing basis.  However, I am not prepared to allow those photographs to be provided to the father, for the reasons I expressed earlier, namely, the issue as I see it, between the grandparents and the mother, is to establish a relationship between grandparents and child.  The father has his own proceedings.  If he wants to pursue obtaining photographs of the child, that is a matter for him; it is not a matter that the grandparents should be promoting or pursuing.  They should be wholly and solely concerned with establishing their relationship with the child and photographs of the child will undoubtedly aid in that process.

11. That led to another issue which is whether there should be a restriction on not only the father being provided with photographs but him having access to the photographs.  In light of my decision as to the father not being provided with photographs, it seems that everyone is agreed that there should also be a limitation on the father having access to the photographs.  Thus I will make an appropriate order in a moment about that.

12. The next issue related to the notice that the mother should provide of alternate contact points in the event of, for example, her hospitalisation.

13. The dispute was whether the mother should be required to provide that detail forthwith, upon the circumstance arising or within 24 hours.  In my view, given the orders that will be put in place and the importance of communication continuing on a regular and frequent basis, it is appropriate to require any change to the arrangements be advised forthwith, meaning as soon as practicable.

14. That led to another issue, which was not apparent when the hearing started today.  That is, that the previous order made in this case as well as the proposed consent minutes provided for the mother to provide a post office box for use by the paternal grandparents.  The mother now says that she cannot afford to provide that.  I am somewhat bemused as to why she then consented to an order to that effect on 22 April and why she proposes to consent to an order to that effect today.  I suppose I am pleased though that the issue has been raised, rather than being raised later and then enforcement proceedings needing to be addressed.

15. The mother says she cannot afford the cost of $80 per year.  The grandparents have suggested that it be a cost shared between the two of them; namely $40 each.  The mother says her difficulty is not so much it being $80 or $40 but her having to find, in one payment, at the present time, an amount of $80, given her financial circumstances. 

16. A number of options were canvassed, to overcome that.  At the end of the day, what I propose to do is to require the parties to pay that on alternate-year basis and to start off with the grandparents meeting the cost.  That will carry it through for a year, enable the mother to save up $80 for when it is due for renewal and for her to then pay it in that next year. 

17. That deals with the issues in dispute and I will now look at incorporating them in the orders that I am being asked to make today. 

18. I should also record that there is agreement between the parties about three variations to paragraph (1)(a).  Firstly, that on 8 August - tomorrow - the time frame not be 4:00pm to 5:00pm but be 4:45pm to 5:45pm.  Secondly, the communication will not occur on 22 August but will now occur on 23 August.  The time frame will be the same on that day, that is 4:00pm to 5:00pm.  Thirdly, on 5 September, the time frame will change; it will be 4:45pm to 5:45pm instead of 4:00pm to 5:00pm. 

I certify that the preceding 18 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 7 August 2008.

Associate