PJL & anor and TNB & Anor
[2006] FMCAfam 280
•13 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PJL & anor and TNB & ANOR | [2006] FMCAfam 280 |
| FAMILY LAW – Parenting – grandparents seeking contact with two children – existing orders between mother and father not working – allegations of alienation by mother against paternal family. |
| Family Law Act 1975 |
| First Applicant: | PJL |
| Second Applicant: | JEL |
| First Respondent: | TNB |
| Second Respondent: | DEL |
| File Number: | PAM 1236 of 2006 |
| Judgment of: | Sexton FM |
| Hearing date: | 26 May 2006 |
| Date of Last Submission: | 26 May 2006 |
| Delivered at: | Orange |
| Delivered on: | 13 June 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Berry |
| Solicitors for the Applicants: | Blomfields |
Counsel for the First Respondent: | Mr D Day |
| Solicitors for the First Respondent: | Western Aboriginal Legal Services |
| Solicitors for the Second Respondent: | Self represented |
THE COURT ORDERS THAT:
The Orders made by the Family Court of Australia at Dubbo on 23 November 1999 be discharged.
The children, Paul (not his real name) born 30 March 1993 and Mary (not her real name) born 7 August 1995 live with the mother.
Paul and Mary have contact with the father as follows:
(a)For a period of up to 3 hours on 2 occasions at the home of the paternal grandparents in the presence of the paternal grandparents or either of them during contact periods in 2006;
(b)For a period of up to 6 hours on 2 occasions during the Christmas school holiday contact period with the grandparents, such contact to occur in the presence of at least one of the paternal grandparents;
(c)For two days during contact periods with the paternal grandparents in 2007 by arrangement with the paternal grandparents and in the presence of one of the paternal grandparents if his/her presence is requested by either child;
(d)Thereafter during any part of the children’s contact periods with the paternal grandparents by arrangement with the paternal grandparents provided that one of the paternal grandparents remains with the children if requested to do so by either child; and
(e)The children not to have contact with the father in far western NSW without the prior agreement of the mother.
The mother to ensure the children are given, without negative comment and upon arrival, any gifts, cards or letters sent to them or either of them by the father or paternal grandparents.
Paul and Mary have contact with the paternal grandparents as follows:
(a)During the NSW school holidays at the end of Terms 2 and 3 in 2006 and Terms 1 and 3 in 2007 and each year thereafter, from the first Monday of the school holidays at a time to be agreed, but failing agreement at 9.00a.m until the Saturday before school recommences at a time to be agreed but failing agreement, at 5.00p.m;
(b)During the NSW December-January school holidays for a period of three weeks on the basis that the children spend Christmas Day each alternate year with the paternal grandparents commencing in 2006. In the years when the children spend Christmas Day with their paternal grandparents, contact shall commence on 21 December for three weeks at 9 a.m. if not otherwise agreed. In the years when the children spend Christmas with the mother, contact with the paternal grandparents shall commence on 28 December for three weeks at 9 a.m. if not otherwise agreed;
(c)From 2007 and each year thereafter, for one weekend in each of Terms 2 and 3, being the 8th weekend in Term 2 and the 2nd weekend in Term 3 unless otherwise agreed, from after school Friday until before school Monday, such contact to take place in the region of far western NSW/Mudgee (not the real location) unless otherwise agreed between the mother and the paternal grandparents;
(d)At any time in far western NSW to attend a school event for either child at the request of either child or the mother;
(e)At any other or alternate times as agreed between the parties;
(f)By way of telephone contact each Wednesday evening, unless another evening is agreed between the mother and paternal grandparents, and on each of the children’s birthdays between 7.00p.m and 7.30p.m such contact to commence on the first Wednesday following the making of these Orders;
(g)Neither child to have a mobile phone with them during contact periods with the paternal grandparents during 2006 and 2007; and
(h)The children to have telephone contact with the mother no more than every 5 days during contact visits in 2006 and 2007, except in an emergency.
(i)For the purposes of contact changeover the mother to deliver the children to Mudgee airport at the commencement of contact periods which occur away from far western NSW and the paternal grandparents to arrange the children’s transport at their cost from Mudgee and back to far western NSW at the conclusion of contact periods.
Each party to have responsibility for the children’s day to day care welfare and development whilst in that party’s care.
By no later than 31 January each year, the mother forward copies or originals of all the children’s school reports for the whole of the previous year to the paternal grandparents provided that if originals are sent, the paternal grandparents copy the reports at their own expense within 14 days and return the originals to the mother.
In the event either child is involved in an accident the party with care of the child, to notify the other parties as soon as practicable but within 48 hours details of the child’s condition and the name of the hospital, if applicable, in which the child has been admitted.
The mother to notify the grandparents within 7 days:
(a)
In the event of any change to her residential address, currently
in far western NSW or change in telephone contact details including any change in her landline number currently 1234 5678 (not the real number); and
(b)In the event the children are leaving far western NSW for a period longer than 7 days and will therefore be unavailable for telephone contact.
The paternal grandparents to keep the mother informed of any change to their contact details and of their contact details at any destination they propose to take the children for more than 2 nights during contact periods.
All parties be restrained from making any negative comment about any other party in the presence or hearing of the children or either or them.
Pursuant to section 62F(2) of the Family Law Act 1975 the Respondent mother must within 7 days contact Interrelate Mudgee on 1300 123 456 (not the real location or number) to arrange an appointment as soon as practicable for a post-separation parenting assessment and it be recommended that Mr Michael Burns (not his real name) conduct such assessment, if possible.
The Respondent mother must attend the appointment at any reasonable location nominated by Interrelate and complete the assessment.
The Respondent mother must attend (as Interrelate directs) as soon as practicable any course, counselling or mediation programme, and it be recommended that Mr Michael Burns conduct any such course, counselling, or mediation programme, if possible.
The Respondent mother shall facilitate the attendance of the children or either of them, if such attendance is requested by Interrelate.
The Applicant paternal grandparents and the Respondent father shall attend any counselling, mediation or program as requested by Interrelate.
The solicitors for the Applicant paternal grandparents forthwith forward a copy of these Orders and Reasons to Interrelate in Mudgee to be given to the counsellor who undertakes the Respondent mother’s assessment.
Pursuant to 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 Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ORANGE |
PAM 1236 of 2006
| PJL |
First Applicant
| JEL |
Second Applicant
And
| TNB |
First Respondent
| DEL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns Paul, 13 and Mary, 10. There is a dispute between the mother, the paternal grandparents and the father as to contact. The children live in far western NSW with their mother, their step-father Matthew Lloyd (not his real name) and half-siblings Jane (not her real name) 7 and Peter (not his real name) 5. All parties propose that arrangement continues. The paternal grandparents want the children to have regular contact with them. The father supported his parents’ application at hearing, but during the hearing asked that the children have some contact with him as well, if necessary supervised by his parents. The mother opposed the children having any contact with the father or paternal grandparents. The mother has no communication with the father and says she has always had a poor relationship with his parents. She told the family reporter that she wanted “whatever the children want” but was confident the children do not want any contact with either the father or his parents. Paul conceded at the family report interview that his mother did not get on with his paternal grandparents and this made things difficult for him. In final submissions, Mr Day for the mother submitted the mother would agree to the children having 2 weeks holiday with the paternal grandparents during the Christmas school holidays and one other week a year as agreed or in far western NSW. She remained opposed to the children having any contact with the father.
Background
The mother and father separated after an 8 year relationship in May 1998. The paternal grandmother says she and her husband mostly lived close to the parties prior to the parties’ separation and developed a close and loving relationship with Paul and Mary. The father now lives in Wodonga (not the real location).
Following the parental separation, final parenting orders were made on 23 November 1999 between the mother and the father providing for the children to live with the mother and have contact with the father during school holidays, on special days and by telephone. The father was to transport the children to and from far western NSW for all contact periods. A further order required the father to take medication as prescribed by his doctor and to remain under the care of his doctor during contact periods. The paternal grandparents used to see the children during their contact periods with the father. The contact between the children and the father stopped in 2002 which meant the children’s contact with the paternal grandparents also stopped. In 2004, after mediation, the children again spent time with the paternal grandparents and resumed telephone contact. The mother says the paternal grandparents give the children gifts and money and given the minimal financial support she receives from the father, she thought contact with PJL and JEL was a good thing. The children spent a week with the paternal grandparents in December 2004 and Mary had 3 weeks with them in January 2005. In July 2005 all contact between the children and their paternal grandparents stopped again when the mother discovered the father had arrived at the grandparents’ home during contact and the grandparents had refused to make him leave. The mother removed the children from the grandparents’ care. The paternal grandparents told the family reporter that they have had ongoing problems arranging contact with their grandchildren since the parties first separated. However, PJL and JEL believe the children have always enjoyed their time with them and were enjoying themselves during their contact period in July 2005. PJL and JEL want regular time with their grandchildren and will agree to supervise contact between the children and the father, if the court so decides.
Mr Bruce Waddell, family and child counsellor, prepared a family report. He says there is a wealth of evidence to support the view that it is important long term for children to have relationships with both their parents and their extended family. He says research shows that if children are denied a relationship with one parent, they will suffer long term emotional and psychological harm. In his oral evidence at hearing, Mr Waddell said he does not support any delay in contact being re-established between the children and both their father and their paternal grandparents, though he believes there are real difficulties for the children while the mother’s attitude remains unchanged.
The paternal grandmother, PJL is 58, the paternal grandfather, JEL is 60. PJL and JEL have both retired. During their working lives, they have operated a number of businesses including building, school buses, bee-keeping, opal mining, retail jewellery and industrial engraving. They have rural properties in the south coast of NSW region. PJL and JEL have other grandchildren aged 14, 8 and 6 with whom they spend a lot of time.
The mother is 32 and the father 33. Paul was born on 30 March 1993 and Mary on 7 August 1995. The children live in far western NSW, an 11-12 hour drive from the paternal grandparents’ home near the south coast of NSW.
The mother tells the court she is illiterate. She deposed to working as a cleaner. The father is a disability pensioner who ceased employment in 2003. He pays $21.70 a month in child support. The Court did not have the benefit of medical evidence to enable it to assess the impact of the father’s condition on his parenting capacity. The father says he suffered head injuries in an accident at aged 14 and has been under medical care since. He says he was diagnosed with bi-polar disorder in 1999 and rheumatoid arthritis in early 2003, for which he takes medication. He consults a mental health team in Wodonga. He was last admitted to hospital in relation to mental health issues in September 2004. He plans to move from Wodonga to a housing commission home in Kingston (not the real location) as soon as housing is available to take advantage of the services offered in Canberra.
Issues concerning parenting
The court must decide what parenting orders are in the best interests of the children which in this case requires consideration of these questions:
a)What are the children’s wishes and how much importance should the court give those wishes?
b)What is the nature of the relationship between the children and each parent, the paternal grandparents and the other people in the children’s lives?
c)Are there practical difficulties that might arise with respect to contact arrangements?
d)What is the capacity of each party to provide for the needs of the children?
e)Any issues arising from the children’s maturity, sex and background?
f)Do the children need to be protected from physical or psychological harm?
g)What attitude has each party shown to the responsibilities of being a parent/ grandparent?
h)What parenting arrangements would minimise the risk of there being further court proceedings about the children?
What are the children’s wishes and how much importance should the court give those wishes?
Mr Waddell said in his report:
Paul firmly expressed the wish not to have any contact with either his father or his paternal grandparents. Mary’s wishes were unable to be ascertained as she was too distressed to be interviewed. Both children declined (or effectively declined) to be seen with their paternal grandparents or with their father.
Mr Waddell said Paul presented as highly anxious and showed signs of considerable distress before and during the interview. Mr Waddell observed him to be more upset by the context of the interview, that is having to attend and be interviewed, than the content of the interview. When asked about his last contact visit with his grandparents in July 2005, Paul told Mr Waddell he was having fun until his father arrived. He said his father is “an idiot”, that he “don’t act like my father” and that his father had tried to “con” him into living with him. In relation to his grandparents he said “I don’t want to see them”. Paul refused to interact with his paternal grandparents or father at interview and was unable to articulate his reasons.
Mr Waddell is not convinced that whatever upset the children in July 2005 had anything to do with the paternal grandparents or the father. Mr Waddell noted the mother had many phone conversations with the children once she discovered the father was present. The grandfather told Mr Waddell that Paul “was physically shaking” following telephone calls from his mother and said to him “Pop I just wish Mum would leave us alone.” Mary was in such a highly distressed and emotional state when it was her turn for interview with Mr Waddell, she declined to be interviewed and “clung to her mother with tears streaming down her face, and then buried her head in her mother’s shoulder.”
In Mr Waddell’s view, Paul’s expressed wishes were inconsistent with his alleged experience of either his father or his grandparents. In Mr Waddell’s view the children’s extreme reactions were disproportionate to the allegations Paul and his mother made about the father or the grandparents. Mr Waddell said the children are fearful, in fact paralysed about doing or saying anything contrary to their mother’s wishes. In his view, the only explanation for the children’s extreme reactions is that the mother has manipulated the children.
In Mr Waddell’s opinion, the children second guess what the mother wants and behave in accordance with their perception of the mother’s wishes. Mr Waddell says Paul’s wishes were delivered shortly after he saw his mother come out of the interview room “in a highly agitated manner, and speaking loudly and angrily (and after she had been specifically requested not to do so)”. Some of Paul’s criticisms of his father and paternal grandparents were almost identical to those expressed by the mother. Mr Waddell concludes that there is a real possibility the mother has ‘alienated’ the children from the father and his family to ensure the ‘new’ family takes their place.
The mother says she regularly asks the children whether or not they want to see their paternal grandparents and/or their father and they always say “No, I’m not going” or “I won’t go.” She says “we talk about it all the time”. She says she showed the children the grandparents’ application for contact and talked about the proceedings “maybe every second day last week.” She says “they are terrified, they don’t want to go.”
On the basis of Mr Waddell’s opinion and having regard to the whole of the evidence, I accept Mr Waddell’s view, that even though Paul is 12 years of age, the Court should give no weight to his expressed wishes in determining whether it is in his interests for contact to occur. On the basis of Mr Waddell’s opinion as to the mother’s role in the breakdown of the children’s relationship with their father and paternal grandparents. I give no weight to the mother’s evidence that Mary has said that she does not want any contact.
What is the nature of the relationship between the child and each parent and other people in the child’s life?
The children live in far western NSW with the mother, her partner Mr Matthew Lloyd and their half siblings Jane 7, and Peter 5. There was little evidence adduced about the far western NSW situation apart from a few statements from the mother. Firstly, that she has extended family in the area. Secondly that she has a poor relationship with her partner’s family and that there have been criminal and apprehended violence proceedings between the two families. Thirdly, that the children have chosen to call Mr Lloyd ‘Dad’. I am unable to make findings as to the strength or otherwise of the children’s attachments to Mr Lloyd, their half-siblings or to any other relations in the far western NSW area. Mr Waddell describes the children’s relationship with the mother as being one of fear and manipulation, at least concerning the subject of their father. This is the most important aspect of the mother’s relationship with the children for the purposes of this case. The mother does not appear to understand the potential damage she is causing. She shows no insight into the long term needs of her children for their father and their paternal grandparents to be part of their lives. As Mr Waddell notes, the mother, by her extreme negativity towards the father and the paternal grandparents has created fear and anxiety in the children.
PJL deposed to a close and loving relationship with the children in their very early years before they moved to far western NSW. The children saw less of their paternal grandparents after they moved to far western NSW but enjoyed regular holiday contact with them, filled with a myriad of experiences and activities until July 2002. Contact with the father then stopped, hence contact with the grandparents stopped. During the July 2002 holidays, PJL and the father collected the children from far western NSW and together with JEL spent the holidays in Wodonga with the children. PJL and the father said the children were distressed to say goodbye to them on return to far western NSW. This was followed shortly afterwards by the children in a phone call from far western NSW saying they no longer wanted to see either their father or their grandparents. The father says he could hear the mother in the background coaching the children on the phone. Despite efforts by PJL and JEL to re-establish contact as provided for in the 1999 orders, including travelling to far western NSW again in the September 2002 holidays, the mother was adamant the children would not be going again. In October 2002 Paul told his father that his mother will not let him see him. The father says the mother withheld the children’s Christmas money sent to them in Christmas 2002 and anything he sent after that was returned to him unopened. The mother’s phone was then disconnected and they had no way of finding the mother’s new address. Neither PJL and JEL nor the father could explain the children’s apparent change of heart.
The mother proffers this explanation: after the contact period in July 2002 the children complained to her that the father walked around the house naked and walked in on Mary in the bath; Mary complained she was in trouble for wetting her bed and was left outside at night. The children therefore refused to have anything further to do with the father or the grandparents. The children had no contact with them until November 2004 when the children re-established contact with the grandparents only. PJL described the children’s excitement when she and her husband went to far western NSW in December 2004, having not seen the children for over 2 years to attend the children’s end of year activities before spending a few days together in the south coast of NSW. Mary then returned for 2 weeks after Christmas.
PJL and JEL described contact as very successful until July 2005 when the mother discovered the father was present. The contact visit came to an abrupt end when the mother drove from far western NSW to collect the children at midnight. The children have not seen the father or their grandparents since.
The mother concedes the children are aware their paternal grandparents love them. I accept Mr Waddell’s opinion that the paternal grandparents are significant people in Paul and Mary’s lives. I give significant weight to this factor in reaching my decision.
It is not possible on the evidence before me to assess the strength of the children’s relationship with the father. Unfortunately, the children refused to interact with the father at all for the purpose of the family report. The father says the children enjoyed a very good relationship with him until contact stopped in July 2002. He says the children warmed to him quickly when he saw them again in July 2005. The father says both children told him they had wanted to see him again.
Are there practical difficulties that may arise with respect to contact arrangements?
The children live 11-12 hours drive from their grandparents and even further from the father. The grandparents have offered to fund the majority of the travel for the children between far western NSW and the south coast of NSW and I find their offer overcomes any practical difficulties which might otherwise have arisen. The grandparents and the father agree that they will facilitate all contact between the children and the father.
What is the capacity of each party to provide for the needs of the child?
It was not disputed that the mother and the paternal grandparents have the capacity to provide for the children’s day to day physical needs. However, there is no evidence as to whether or not the father has such capacity. Since orders were made in 1999, the paternal grandparents have always shared the father’s contact time with him. As I do not know who performed particular day to day tasks I am not satisfied as to the father’s capacity on this issue. I take this factor into account in reaching my decision.
I am not satisfied the mother has the capacity to meet the children’s emotional or intellectual needs. As already noted, the mother shows no insight into the importance of the children’s relationship with the father and his extended family to the children’s long term welfare. She has taken few steps to ensure the children maintain a relationship with them. She has never discussed the father’s health problems with them or attempted to explain his condition. The mother says she did not mention the father to the children “for 5 years”. She says the children are in no way affected by her refusal to speak to their father. In my view, the mother places no value at all on the relationship between the children and the father and has no understanding of the potential harm she is causing her children by adopting this position. She says in her affidavit “Their [the children’s] needs are met by [Matthew] and myself.” She made it clear to Mr Waddell that the children have a new family now implying they do not need any contact with their old one.
The mother concedes and Mr Waddell notes that the children know that the mother has “a negative relationship” with the father and she does not want them to see him. Yet the mother says “I have not influenced them”. She says the children are frightened of the father because they saw him naked during the 2002 holidays. Even assuming this to be true, I find the mother’s response to the problem to be inadequate. Rather than assisting the children to resolve any concerns they might have had, she denied them any opportunity to discuss it. She said simply “from aged 6 or 7 the children should not see their father naked.” She did nothing to promote the children’s relationship with the father. In fact, she actively discouraged it. By her decision to sever ties with the father, the mother severed the children’s connection with their grandparents without any regard to the impact of this loss on the children. Mr Waddell said in his report:
What TNB appears unable to recognise is that the children’s needs are structurally separate to, and different from, her own. Furthermore, her emphasis on the children’s right to choose ignores the fundamental dimension of power… no child can freely express their actual wishes in the context of a highly conflictual environment, especially if those wishes are contrary to the strongly held-and expressed-feelings of the parent with whom they are residing. To consider that they can is just ludicrous. Rather, it is suspected that TNB does appreciate the very great influence that she exerts over the children, and uses this position of power to achieve contact outcomes that are consistent with her own desires, rather than those of the children.
There is also an issue as to how adequately the mother can meet the children’s intellectual needs. The mother told PJL Paul has dyslexia. The mother adduced no evidence as to the extent of his problem or how she is managing Paul’s special needs. The mother says she is illiterate and relies on others to read to her.
It is clear to me that the PJL and JEL have a great deal to offer their grandchildren, financially, intellectually and emotionally. JEL has a wide range of interests and skills which he is keen to share with the children. During his life, he has worked in farming and forestry, in concreting and bridge building, in bee-keeping and the jewellery industry. He loves to fish. He has steam engines, a boat and enjoys making things. JEL says Paul also loves mechanical things and to “discover”. Paul spent many hours in December 2004 working on his meccano set, given to him by his grandparents for Christmas. PJL has had a career in business and impressed me as an active, able and hands-on grandmother. She wants to expose her grandchildren to opportunities and experiences she and her husband have the resources and interest to provide. They have been prepared to spend many many hours driving to and from far western NSW to ensure they spend time with the grandchildren. During contact at the south coast of NSW in December 2004, PJL said they did “all their favourite things”. The grandparents purchase clothing, shoes, optical glasses and gifts for the children and describe a wide range of activities they share with them including educational visits to Canberra, fishing, horse-riding, outings to museums, trips to the beach, the bush, cooking and boating. The grandparents ensure the children spend time with their extended paternal family including their cousins. PJL and JEL impressed me as committed and loving grandparents who will do all they can to promote the welfare of their grandchildren. It is regrettable that the children have had such limited opportunities to enjoy all their grandparents have to offer.
I have outlined earlier the limited evidence relating to the father’s physical and mental health. Mr Waddell says the question of whether or not the children should be supervised when with the father will depend on the state of his health. Mr Waddell says he was aware of the father having some psychiatric history when preparing his report. After hearing evidence as to more specific details of the father’s illness, Mr Waddell did not change his views as expressed in his report. On the limited evidence before me, I am unable to make findings on the father’s capacity to care for the children.
Any issues arising from the child’s maturity, sex and background?
The children are of Aboriginal descent. The mother and Mr Lloyd are of Aboriginal descent. There was no suggestion put that the children will not continue to reside with the mother. I am satisfied the children will continue to enjoy a strong connection with their aboriginal heritage.
Do the children need to be protected from physical or psychological harm?
The mother says the children are frightened of the father as result of events which occurred during contact in July 2002. I have already referred to those events: firstly that the father walked around the house naked in front of the children including walking in on Mary on the bath, and secondly that Mary was in trouble for wetting her bed and was sent outside at night. PJL and JEL and the father were together during the contact period and deny those events occurred. In fact, they say the children made no complaints to them during the contact visit and did not want to say goodbye when the contact period ended. However, the mother says from that point on, the children did not want to go on contact again. It is difficult to reconcile these events with the unchallenged evidence of PJL that the children were very excited to see their grandparents when contact resumed in December 2004. The children’s reaction to their father was not tested until July 2005, when the children were staying with their grandparents again. The father said when he arrived at his parents’ home unexpectedly “it was a shock to see the kids” but that both children reacted warmly to his arrival. He says his health was improved and he played soccer with a very happy Mary in the garden. He deposed to both children telling him they had seen Orders which prevented him from having contact, but they wanted to see him.
The mother’s evidence about telephone communication with the children and with the paternal grandfather when the father was present on contact is very different from JEL’s evidence. The mother concedes she made many calls to the children on their mobile phones. She says the children were asking her to call by sending text messages. The mother was angry and distressed about the father being there, called the police and asked JEL to remove him. JEL says he declined the mother’s request firstly because the children appeared to be enjoying seeing their father, secondly because there were Court Orders in place providing for the children to have holiday contact with the father and thirdly because he could see no reason for the father to be forced to leave his home at the mother’s whim. When the grandparents refused to send their son away, the mother travelled from far western NSW to collect the children from the south coast of NSW at around midnight.
On this traumatic day the children last saw their father and their paternal grandparents.
I find the children are likely to suffer further psychological harm if they are again confronted by such a high level of conflict between their mother and their paternal family.
What attitude has each party shown to the responsibilities of being a parent/grandparent?
DEL has suffered bi-polar disorder and has had other health problems since his accident as a teenager. He had his last admission to hospital less than 2 years ago. DEL says he was unable to enforce the orders for contact after 2002 because he was seriously ill in early 2003 and then felt unable to do so. He has paid minimal child support because he relies for his support on a government disability support pension. The mother expressed anger at the father’s failure to support the children either emotionally or financially and regards him as irresponsible. There is no medical or other evidence before me to enable me to make findings on this question in relation to the father.
I find PJL and JEL have generally shown a proper attitude to the responsibilities of their role as grandparents. They have maximised their opportunities for contact with the children, despite considerable resistance from the mother and at considerable emotional and financial cost to themselves. They have exposed the children to a range of interesting experiences and activities. They have supported their son in his efforts to maintain contact with the children. They have more than once travelled 12 hours to far western NSW to leave again without seeing the children an example being when they received an anonymous call in August 2004 warning that the children may not be safe as the mother had been charged with assault. PJL and JEL left home at 6 a.m. the following morning to drive to far western NSW to check on the children. Had they been told the children were not safe, I am satisfied the grandparents would have cared for the children until circumstances changed.
The grandparents say they do not want to diminish the importance of the mother’s role in the children’s lives. I find this of fundamental importance. PJL says “it is fine for the kids to live in [far western NSW]; we just want holidays with them to broaden their horizons.” She says the mother is a good mother. I note Paul complained to Mr Waddell that his grandparents have “put my Mum down”. If this has occurred, I urge PJL and JEL to ensure they are always affirming of the mother in the children’s eyes. PJL does not understand why the mother is so vehemently opposed to the children seeing the father, but says she will supervise the children when they see the father to provide reassurance to the mother. Both grandparents say they will respect the children’s wishes if Paul or Mary do not want to see the father.
I have already canvassed the evidence in relation to the mother’s failure to promote the children’s relationships with the father and the paternal grandparents. The mother’s failure to facilitate these significant relationships reflects poorly on her attitude as a parent. One of the fundamental principles underlying the objects of the parenting provisions of the Family Law Act 1975 is set out in section 60B(2)(b):
Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
When asked how she might promote the contact between the children and their grandparents the mother said “I’ll tell the kids you’ve got to go because I’ve been to court.” She later said “I’ll pack their bags and try to encourage them”. I agree with Mr Waddell’s view that the mother is presently incapable of fostering contact between the children and the father or their paternal grandparents. I asked the mother at hearing to make immediate contact with Interrelate for an assessment for counselling.
What parenting arrangements would minimise the risk of there being further court proceedings about the child?
If the mother is able to change her attitude to the children maintaining contact with their father and paternal grandparents, I find it likely further proceedings can be avoided. The mother agreed during the hearing that she would accept advice from Interrelate in relation to concerns raised by Mr Waddell as to her attitude and the consequent potential harm to the children. Mr Waddell says there are excellent services offered by Interrelate in the Mudgee region and west of Mudgee and the mother would benefit from attending that service. He suggested courses run by Mr Michael Burns would be very helpful. He recommended the mother attend initially alone and the other parties and/or the children attend if recommended by the counsellor.
Conclusion
Mr Waddell heard much of the evidence given by the parties during the hearing. In his oral evidence, which followed, Mr Waddell said that despite the contrary conclusion in his report, he had now formed the view that it was well worth taking all possible steps to reinstate contact between the children and their paternal grandparents. Mr Waddell also strongly supports the children spending time with the father. I agree with him.
The father accepts that he will have contact when the children are with his parents, although he asks that the children spend two days with him at his home in Wodonga, not including overnight contact, during those contact periods. He will accept supervision by his parents. Mr Waddell sees benefits to the children spending time with their grandparents in every school holiday period and the children seeing their father at the same time, as long as the children have some holiday time in far western NSW. However, given the lack of continuity in the children’s contact with the grandparents in recent years, I have decided to limit the children’s contact with the father during the first few contact periods which will occur in the presence of the grandparents. The paternal grandparents will be required to have regard to the children’s wishes in relation to arrangements for such contact.
Mr Day for the mother asks the court to question how realistic it is to make orders for contact in favour of the father and grandparents in the face of such vehement opposition from the children. This is the fundamental problem in this case. However, as I have already said, I accept Mr Waddell’s view that the children have aligned with the mother and their expressed views should be disregarded. I agree with Mr Waddell that the children must be given every possible chance to re-establish their relationships with their grandparents and their father and to gain their mother’s permission to enjoy those relationships.
Mr Waddell says it is essential the mother dramatically changes her attitude and encourages the children to spend time with their paternal family. He says the mother must learn to make only positive remarks about them. She must show the children she supports their contact. He recommends restricted telephone contact between the children and the mother during holiday periods and that the children be denied their mobile phones. Given the problems which occurred in the children’s last contact period with the grandparents, I will adopt Mr Waddell’s recommendations.
Mr Berry for the paternal grandparents, proposes the mother take the children to Mudgee and the grandparents make the children’s arrangements from there. The grandparents will meet the costs of the children’s travel whether by car or by plane. Mr Berry proposes the grandparents then return the children to far western NSW at the conclusion of contact periods. Mr Waddell believes it important for the children to spend some holiday time in far western NSW. Mr Berry submits that given the distance involved, the children should spend most of their holidays with the grandparents. He contends half the holidays, given the time taken in travel, would be counter-productive. I agree with him. However I am not persuaded it is in the children’s best interests not to see their grandparents for 5 months which would result from the children remaining in far western NSW for one of the term holiday periods. Although Mr Waddell expressed concerns about any contact taking place in far western NSW, on balance I have decided there should be some limited contact in far western NSW from 2007 to ensure contact between holiday visits. It would be ideal if the grandparents could attend one of the children’s school functions and perhaps organise a weekend away with the children in the far western NSW region from time to time.
I am satisfied the Orders set out at the commencement of these Reasons are in the best interests of the children.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 13 June 2006
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