Ridley and Whittle and Anor
[2011] FMCAfam 985
•16 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RIDLEY & WHITTLE & ANOR | [2011] FMCAfam 985 |
| FAMILY LAW – Parenting orders – seven year old child – application by maternal step-grandmother – grandmother has been primary carer – mother did not participate in proceedings – issues of father’s capacity – religious differences between the parties. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65C |
| B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 Connor & Bourke & Anor [2008] FMCAfam 69 “Re Evelyn” (1998) FLC ¶92-807 Rice v Miller (1993) FLC ¶92-415 Dennett & Norman [2007] FamCA 57 McCall & Clark [2009] FamCAFC 92 Mazorski & Albright [2007] FamCA 520 G & C [2006] FamCA 994 Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MS G RIDLEY |
| First Respondent: | MR WHITTLE |
| Second Respondent: | MS K RIDLEY |
| File number: | DGC 893 of 2010 |
| Judgment of: | McGuire FM |
| Hearing dates: | 18, 19 & 20 July and 2 August 2011 |
| Date of last submission: | 2 August 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 16 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Kent-Hughes |
| Solicitors for the Applicant: | Robert Halliday & Associates |
| Counsel for the First Respondent: | Ms C Jenkins |
| Solicitors for the First Respondent: | Christopher Woods & Associates |
| The Second Respondent: | No appearance |
| Counsel for the Independent Children’s Lawyer: | Mr P O’Connell |
| Independent Children’s Lawyer: | Ms B Jenkins, Victoria Legal Aid |
ORDERS
That the child [X] born [in] 2004 (“[X]”) live with the applicant maternal grandmother.
That the applicant maternal grandmother and the father equally share parenting responsibility for [X].
That [X] spend time with the father as follows:
(a)
each second weekend from after school Thursday until the start
of school on Monday (extending to the start of school on Tuesday in the event of a long weekend) with the father to be responsible for collecting [X] from her school and returning her to her school accordingly;
(b)on each second Monday from after school until 8.00 pm with the father to collect [X] from school and return her to the maternal grandparents’ residence accordingly;
(c)for one half of [X]’s term school holidays as agreed between the maternal grandmother and the father but failing agreement then for the first half of such holidays;
(d)for one half of [X]’s summer school holidays being the first half of the holidays commencing in odd-numbered years and the second half in holidays commencing in even-numbered years;
(e)such other times as may be agreed between the maternal grandmother and the father.
That the time in paragraphs 3(a) and 3(b) hereof be suspended during school holidays.
That in any event [X] spend time with the father each year from 5.00 pm on 24 December until 5.00 pm on 26 December and from 5.00 pm Easter Thursday until 5.00 pm Easter Monday (should term school holidays coincide with Easter it being intended that [X]’s holiday times with the father take in the Easter period).
That in any event [X] shall spend time with the maternal grandparents from 4.00 pm on the day that Eid commences until 9.00 am on the day following Eid in each year.
That the father be and is hereby restrained from using any illicit drug during any period that [X] is in his care and for 12 hours prior to [X] coming into his care.
That for the purposes of the father’s time with [X] pursuant to these orders, all changeovers that do not take place at [X]’s school will occur with the father collecting [X] from the maternal grandmother’s home and returning [X] to that home.
That the mother spend time with [X] only with the agreement of the maternal grandmother and only under the direct supervision of the maternal grandmother or her delegate.
That [X] continue her education at [M] School unless agreed otherwise between the maternal grandmother and the father in writing.
NOTATION:
(A)Paragraph 1 of these orders allows the father to such full involvement in [X]’s education as would normally be permitted a parent including but not limited to the provision by the school of all relevant information and notices and being able to attend at all school events and meetings usually attended by parents.
IT IS NOTED that publication of this judgment under the pseudonym Ridley & Whittle & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 893 of 2010
| MS G RIDLEY |
Applicant
And
| MR WHITTLE |
First Respondent
| MS K RIDLEY |
Second Respondent
REASONS FOR JUDGMENT
These are proceedings concerning the living arrangements of one child, [X] born [in] 2004 (aged seven years).
The applicant is [X]’s maternal step-grandmother, Ms G Ridley. She is married to Mr R who is the father of the second-named respondent in these proceedings, [X]’s mother, Ms K Ridley. Mr R was a witness in the proceedings but not a party. I will refer to the applicant henceforth simply as the maternal grandmother.
The first named respondent is [X]’s father, Mr Whittle. He and the maternal grandmother each seek orders for [X] to live with them.
The mother, Ms K Ridley, did not take part in the proceedings.
[X] is the only child of the union of Mr Whittle and Ms K Ridley. Neither have other children. The parents lived together from 2003 until 2006 therefore separated when [X] was only two years of age.
[X] has lived in the home of the maternal grandparents from April 2006 when she was only one year and 10 months of age. This situation commenced upon the breakdown of the parents’ relationship.
The evidence suggests that the mother moved herself and [X] to her parent’s home at that time.
The mother has, on the evidence, a historical and continuing drug addiction. She has variously moved in and out of her parent’s home and lives something of a transient lifestyle. It is clear that the mother has not accepted responsibility for the care of [X] and effectively delegated this responsibility to the maternal grandmother.
The father appears to have actually or tacitly agreed for this situation
to continue with [X] living with the grandparents.
The grandparents and [X] live in [D]. Also living in that home is the applicant’s son, [Y], who is about 18 years old, and her daughter, [Z], who is about 15 years of age. The maternal grandfather’s sister, Ms D, also lives in that family unit. The maternal grandparents are Ms D’s carers. Ms D is about 45 years of age and suffers from Down Syndrome. [X]’s mother, Ms K Ridley, of course, is also sometimes resident in the home and that is apparently the current situation.
The father lives with his own parents in [H].
The father is 29 years of age. The mother is 26 years old.
The applicant grandmother is 58 years old.
[X]’s parents are first cousins. The paternal grandmother and the maternal grandfather are brother and sister. There has been a high degree of disharmony within various factions of this family for some time for reasons that are unclear but may have to do with religious preferences. It is fair to say that the mother’s pregnancy with [X] was not a cause for universal joy within the family. The relationship between Ms K Ridley and Mr Whittle, as first cousins, had also not received unanimous family approval. Having had the benefit of seeing and hearing the parties, excepting Ms K Ridley, and various family members as witnesses in this matter, it is abundantly clear that the spectre of family dispute has permeated the positions of the two family units and influenced their entrenched views as to where [X] should live.
The major issue which, of course, is the best interests of [X],
is further clouded by religious differences and practices between the two family units. Indeed, after the completion of the evidence, I was left to ponder as to whether there would have been a dispute at all between the father and the grandmother if it had not been for
the divergent religious beliefs of the two sets of grandparents.
For example, a trigger for the father seeking a change in [X]’s residence is his objection to the religious based school which she currently attends.
The maternal grandparents are converts to Islam and embraced that religion some nine years ago. The evidence is that their daughter [Z] is also a convert and is betrothed to an older gentleman of the same faith. [Y] has been raised for the last nine years in the Muslim religion but apparently is now at a stage of considering his own choices in this regard. [X]’s mother, Ms K Ridley, also follows Islam and is herself engaged to a man from the same faith.
[X] attends the [M] School in [omitted]. This is a Muslim school and this is her third year at that school.
The paternal grandparents, with whom Mr Whittle lives, are born-again Christians. They are active members of a fundamentalist offshoot
of the traditional Baptist Church. The father purports to have also adopted his parents’ religion although I suspect on the evidence he does not share the theological commitment of his mother.
The father is unemployed. He continues to live at home with
his parents but volunteered in his evidence that he is in a relationship with a woman by the name of Ms G. Unusually, in my view, Ms G did not give evidence as might be expected if, as the father suggested, the relationship was a committed and permanent one and in all likelihood she would be an adult of some significance in his household should his application for [X] to live with him be successful.
The father also conceded only in cross-examination that he is soon
to appear in the local Magistrates Court to face a charge of driving
a vehicle with a blood alcohol level exceeding .05 to wit .12. The alleged offence occurred in October 2010 and after these proceedings were commenced but was not referred to by the father in his affidavits or his evidence in chief.
An interlocutory order was made in October 2010 that the father attend and complete a recognised post separation parenting course. By the time of the trial in this matter in July 2011 he had not completed
or even enrolled in that course.
It is agreed between the parties that in about early 2007 [X] went back to live with the father who was at that stage also living with his own parents. This was clearly a voluntary arrangement between the maternal grandmother and the father and it seems that it also had the initial consent of the mother. Sadly, that arrangement lasted only some 35 hours whereupon [X] was returned to live with the maternal grandparents. There is some dispute as to who initiated that return although it is not disputed that [X] was showing some distress and anxiety at separation from her home with the maternal grandparents.
When this matter came on for trial it was noteworthy that the maternal grandmother did not adduce evidence from her husband, the biological maternal grandfather of [X]. Similarly, the father did not adduce evidence from his own mother, Ms W, although the tenor of his own evidence was very much that he enjoyed the support and assistance of his mother in the care of [X], if not indeed relied upon the same. This situation was rectified somewhat by an adjournment prior to final addresses and allowing each of the maternal grandmother and the father to re-open their cases to adduce evidence from these two witnesses. As a general comment, a court hearing a parenting case
is usually assisted by seeing and hearing from all of the adults who would be anticipated to be living in the home of a child the subject
of the proceedings.
These proceedings were commenced in March 2010. On 25 October 2010 interim orders were made including the following:
9. THAT:
(a) the child [X] live with the applicant step maternal grandmother;
(b) the father spend time and communicate with [X] as follows:
(i) each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday commencing 6 November 2010;
(ii) each Wednesday from 4.30 pm until 7.30 pm;
(iii) from 12.00 noon Christmas Day until 3.00 pm Boxing Day;
(iv) such further and other times as may be agreed between the father and step maternal grandmother.
10. THAT the mother spend time and communicate with [X] as follows:
(a) each Thursday from the conclusion of school until 7.30 pm;
(b) each alternate Sunday from 10.00 am until 3.00 pm commencing 31 October 2010;
(c) such further and other times as may be agreed between the mother and the step maternal grandmother.
11.THAT all changeovers that do not occur at [X]’s school occur at [D] Police Station.
12. THAT the mother and the father within 14 days hereof enrol in a post separation parenting course and provide the solicitor for the other party and the Independent Children’s Lawyer with a certificate of completion upon receiving same.
13. THAT each party advise the other of any change to their address or phone number within 24 hours of such change occurring.
14. THAT the parties be restrained by injunction from:
(a) denigrating each other within the hearing or in the presence of [X] or allowing any other person to do so;
(b) discussing these court proceedings in the presence of or within the hearing of [X];
(c) from physically disciplining [X] or allowing any other person to do so.
15. THAT each party keep the other informed of any medical illness or injury suffered by [X], and permit the other party to speak with [X]’s treating general medical practitioner and/or specialist.
16. THAT the parties be entitled to receive duplicate copies of all correspondence and information sheets from [X]’s school, including [X]’s school reports, and shall be entitled to attend all school functions to which parents are invited, including information nights, parent teacher interviews, curriculum presentations and excursions.
There are historical and continuing allegations in respect of drug use by both of [X]’s parents. There have been previous orders for them
to provide urine drug screen results.
Maternal grandmother’s proposal
After the completion of the evidence the court was handed
a handwritten aide memoir from the grandmother’s counsel setting
out her then proposal in minute detail as follows:
1.The child [X] live with Ms G Ridley the maternal step grandmother.
2.The maternal step grandmother and father have shared parental responsibility for the child.
3.The father spend time with the child:
(a)until he is licensed to drive, from 5.00 pm Friday to 5.00 pm Sunday each alternate weekend;
(b)when he is licensed to drive, from after school Friday to before school Monday each alternate weekend;
(c)until he is licensed to drive, from 4.30 pm to 7.30 pm each alternate Wednesday;
(d) when he is licensed to drive, from after school each alternate Wednesday to 7.30 pm Wednesday;
(e) from 5.00 pm Christmas Eve to 5.00 pm Christmas Day each year;
(f)each Easter from 10.00 am Saturday to 4.00 pm Sunday;
(g) on Father’s Day from 10.00 am to 4.00 pm;
(h) on the father’s birthday from 10.00 am to 4.00 pm on the Saturday or Sunday closest to his birthday;
(i) on [X]’s birthday, if a week day, from 4.30 pm to 7.30 pm and if on a weekend the child is not in his care from 10.00 am to 4.00 pm;
(j) on the paternal grandfather and grandmother’s birthdays from 10.00 am to 4.00 pm on the Sunday closest to their birthdays;
(k) on the father’s cousins [names omitted] birthday celebration days from 10.00 am to 4.00 pm;
(l) other times as agreed;
(m) during school holidays when the father is on leave for one week of those holidays.
4.(a) For the purpose of changeover when the father is unlicensed at the [D] Police Station.
(b) When the father is licensed at school.
(c)And at any other times at the [D] Police Station.
5.The mother spend time with the child as follows:
(a)twice a week for a period of three hours;
(b) at times to be agreed with the maternal grandparents;
(c)such time to be supervised by both maternal grandparents;
(d)for three hours on her birthday as agreed with the maternal grandparents;
(e)for three hours on Mother’s Day as agreed with the maternal grandparents.
6.(a) That in the event that Eid falls during a period of time [X] is otherwise spending with the father this time is suspended for that period.
(b)The maternal grandparents must give seven days notice to the father of the relevant dates.
(c)That the maternal grandparents provide the father with make up time on the first available weekend following Eid.
7.That during the time the father spends time with [X] to be in substantial attendance.
8.The father be restrained from:
(a)using any illicit substances and or consuming any alcohol for 24 hours prior to spending time or during the time spent with the child;
(b)denigrating the maternal grandparents or any member of the maternal family to or within the hearing of the child or allowing anyone else to do so;
(c)denigrating the maternal step grandmother’s religious beliefs;
(d)changing the child’s place of schooling without the consent of the step maternal grandmother / maternal grandfather / and mother in writing.
9.The maternal step grandmother and father use
a communication book in relation to parenting issues to accompany the child during all periods of time in the father’s care.
10.The father be authorised to be provided with all school reports / documents / correspondence from the school.
11.That the father and maternal step grandmother notify each other as soon as is practicable any serious medical injury or illness suffered by the child whilst in their respective care and provide details of any treatment, including the name and contact phone number of any treating health professional and authorise the other party to receive information from these health professionals if necessary.
12.All parties be restrained from consuming alcohol when conveying the child in a motor vehicle.
Father’s proposal
Similarly, the father’s counsel handed the court an aide memoir
of orders sought at the completion of the evidence as follows:
1. The child [X] live with the father.
2.The maternal step grandmother and father have equal shared parental responsibility for the child.
3.The maternal grandmother spend time with the child:
(a)During school terms from after school Friday to before school Monday each alternate weekend.
(b)During school terms from after school each Wednesday to 7.30 pm.
(c)On the maternal step grandmother’s birthday from 10.00 am to 4.00 pm on the Saturday or Sunday closest to her birthday.
(d)On [X]’s birthday if a week day from 4.30 pm to 7.30 pm and if on a weekend the child is not in her care from 10.00 am to 4.00 pm.
(e)During school holidays for one week of those holidays, not to include Christmas or Easter.
(f)Other times as agreed.
4.For the purpose of changeover occur at school or if a non-school day at the [D] Police Station.
5.The mother spend time with the child as follows:
(a)twice a week for a period of three hours;
(b) at times to be agreed with the maternal grandparents;
(c)such time to be supervised by both maternal grandparents;
(d)for three hours on her birthday as agreed with the maternal grandparents;
(e)for three hours on Mother’s Day as agreed with the maternal grandparents.
6.(a) That in the event that Eid falls during a period of time [X] is otherwise spending with the father this time is suspended for that period.
(b)The maternal grandparents must give seven days notice to the father of the relevant dates.
(c)That the maternal grandparents provide the father with make up time on the first available weekend following Eid.
7.That during the time the father spends time with [X] to be in substantial attendance.
8.Without admitting the necessity the father be restrained from:
(a)using any illicit substances and or consuming any alcohol for 24 hours prior to spending time or during the time spent with the child;
(b)denigrating the maternal grandparents or any member of the maternal family to or within the hearing of the child or allowing anyone else to do so;
(c)denigrating the maternal step grandmother’s religious beliefs;
(d)changing the child’s place of schooling without the consent of the step maternal grandmother / maternal grandfather / and mother in writing.
9.The maternal step grandmother and father use
a communication book in relation to parenting issues
to accompany the child during all periods of time in the father’s care.
10.Each party be authorised to be provided with all school reports / documents / correspondence from the school and be permitted to attend any school event or extra curricular activity normally attended by a parent or grandparent.
11.That the father and maternal step grandmother notify each other as soon as is practicable any serious medical injury or illness suffered by the child whilst in their respective care and provide details of any treatment, including the name and contact phone number of any treating health professional and authorise the other party to receive information from these health professionals if necessary.
Independent Children’s Lawyer’s proposal
At the commencement of the trial counsel for the Independent Children’s Lawyer was asked whether he had any preliminary view
as to [X]’s living arrangements on the untested evidence and, if so, whether that view had been conveyed to the parties. At that stage the Independent Children’s Lawyer’s view was that [X] should move
to the primary care of the father but to continue to spend time with and communicate with the maternal grandmother and vicariously with the mother.
The Independent Children’s Lawyer’s position had moved by the conclusion of the evidence and likewise I was provided with an aide memoir of the orders sought as follows:
1. The father and the maternal step grandmother share parental responsibility for the child [X] including [X]’s religion.
2.[X] live with the father as follows:
(a)(i) from after school Friday until the commencement of school Monday each alternate weekend in Term 3 2011 commencing 12 August 2011;
(ii) each alternate Wednesday from after school until 8.00 pm;
(b)(i) from after school Thursday until the commencement of school Tuesday each alternate week commencing Term 4 2011;
(ii) each alternate Wednesday from after school until 8.00 pm;
(c)for the first half of all school term holidays;
(d)for one half of the Christmas holidays being the first half in the holidays commencing in odd numbered years and the second half in holidays commencing in even numbered years;
(e)from 5.00 pm Christmas Eve to 5.00 pm Boxing Day in each year;
(f)as agreed between the father and the maternal step grandmother.
3.[X] live with the maternal step grandmother at all times other than those referred to in paragraph 2 hereof and for the duration of Eid in each year.
4.Each of the father and the maternal step grandmother shall be restrained from:
(a)denigrating the other and the other’s religious beliefs in the hearing of [X];
(b)allowing or permitting any other person to engage in the denigration referred to paragraph 4(a) hereof in the hearing of [X].
5.The maternal step grandmother shall ensure that [X] is not subjected to any abusive or drug or alcohol affected behaviour on the part of the mother or allow [X] to be in the presence of the mother without a responsible adult also being in attendance.
6.[X] shall continue her education at [M] School unless the father and the maternal step grandmother agree in writing to an alternative school.
The issues
The fundamental issue for the court is to determine the parenting
and living arrangements for [X] which are in her best interests.
This is my paramount consideration. However, such a bland statement does not do justice to the numerous and complex issues that traverse this matter. With reference to the mandatory considerations that
I am to make in determining [X]’s best interests, those issues of fact and credit include:
·
What orders are the Court to make which will assist [X]
in having the benefit of a meaningful relationship with each
of her parents, if appropriate, and given the background of this matter and the peculiar circumstances of each of her parents?
·What are [X]’s views and preferences in respect of her living arrangements? Are they being expressed in an informed, mature and rational way?
·How important in respect of [X]’s best interests and my determination are the entrenched religious views and differences between the significant adults in this matter and how can the Court structure orders within such a climate of philosophical dispute that would permit [X] a continuing relationship with those important adults?
·What is the historical and current nature of [X]’s relationship with each of her parents and each set of grandparents?
·Are the adults, whatever [X]’s primary living arrangements, given their own personal views and prejudices, able to facilitate and encourage [X]’s relationship with the other important adults in her life?
·
What weight does the Court give to the status quo in the sense
of [X] being settled into a home and lifestyle of order and routine as against the changes proposed for her by the father
and again within the context of strong but diverse religious views and practices between the two competing households?
·What is the capacity of the father to be the primary carer of his daughter and attend to her physical, emotional and moral needs? Is the father’s capacity necessarily conditional upon him receiving assistance from his own mother or others?
·Within an historical context, what does the Court make of the various attitudes of the grandparents in each household, the father and the mother in respect of their responsibilities towards the care and parenting of [X]?
·What weight does the Court put on the allegations of family violence, including violence directed towards [X]?
·
Ultimately, what orders is the Court to make which are least likely to lead to further litigation for these parties in respect
of [X]?
·Is this a matter in which parental responsibility for [X] should be shared between the parties and, if so, which of them?
·
Is this a circumstance in which [X]’s best interests are served
by orders that provide for either equal time or substantial and significant time?
The law
The emphasis is that I am to have [X]’s best interests as my paramount consideration.[1]
[1] Section 60CA of the Family Law Act 1975 (“the Act”).
Part VII of the Family Law Act 1975 (“the Act”) provides for orders
in respect of children. Section 60B of the Act set out the objects and principles underlying that foundation and framework for the process
I am to take. Section 60B(1) sets out the objects of the legislation in the following terms:
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.
Section 60B(2) of the Act states the principles underlying the above objects being 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). [My emphasis]
The Full Court of the Family Court in the well known decision of
B and B: Family Law Reform Act 1995[2] notes at [84,214]:9.6 Section 60B(1) provides an optimum set of values for children of separated parents and is the goal to which the parents, society and the courts should aim, namely, that children receive “adequate and proper parenting to help them achieve their full potential” and that parents “fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children”.
[2] (1997) FLC ¶92-755.
The Full Court elaborated at [84,220]:
9.54 Section 60B is important in this exercise as it represents
a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E [now s.60CA]. Nor does
it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication
of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in s 68F(2) [now s.60CC(2), (3) and (4)] and to the overall requirement of [s.60CA]. The matters
in [s.60CC(2), (3) and (4)] are to be considered in the context
of the matters in s 60B which are relevant in that case.
But [s.60CA] defines the essential issue.The practicalities of the process are summed up by the Full Court
in that case at [84,220] as:9.55 Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests
of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise
to be clouded by procedural or semantic issues.Against this legislative framework, I am to determine [X]’s best interests by mandatory reference to the considerations set out in s.60CC(2), (3) and (4) of the Act with regard to the probative evidence before me and the proposals of the parties. Those considerations are divided into “primary” and “additional” categories. I am, however, obliged to reference each and every one of them. Some considerations will be more relevant than others. Those considerations are set out and referenced in detail below and in respect of the evidence before me.
Whilst setting out the process for consideration above, it is relevant
to emphasise that the active parties in this dispute are a parent and
a grandparent. The mother is not a participant.My colleague Federal Magistrate Altobelli in Connor & Bourke
& Anor[3] entered into a detailed dissection and consideration of the relevant legislation where there is a contest between a grandparent and a parent. His Honour noted that some of the sub-sections in s.60B
and s.60CC specifically reference parents only. There are othersub-sections which do reference grandparents. For example, his Honour observed at [22] and [23]:[3] [2008] FMCAfam 69.
Section 60B sets out the objects and principles underlying Part VII. The objects in s.60B(1) do not refer directly to grandparents or indirectly to other persons who might have an interest in children. This sub-section is focussed exclusively on children and their parents. The principles in s.60B(2) however contain
a reference to grandparents and other relatives. Thus s.60B(2)(b) states:
2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(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);The context of s.60B(2)(b) is quite clear – it is about children having the right to spend time and communicate with other people significant to their care, including grandparents. There is no reference to children living with their grandparents.
Similarly, his Honour correctly observed at [25] and [26] that:
The primary considerations in s.60CC(2) are, like s.60B(1), focussed exclusively on children and their parents. There is no reference to grandparents or other persons significant in the lives of children.
However, the additional considerations set out in s.60CC(3) are broader in their focus and encompass persons other than parents. Thus, e.g. paragraph (b) expressly refers to the nature of the child’s relationships with other persons including grandparents. Paragraph (d) requires a consideration of the likely effect of changes in the child’s circumstances including separation from any grandparent. Paragraph (f) requires a consideration of the capacity of a grandparent to provide for the needs of the child…
Federal Magistrate Altobelli pondered that the legislation in its current form might contemplate the general importance of grandparents in the lives of children and specifically references the children “spending time with and communicating with grandparents” but sends out “mixed signals” in respect of the option of children living with grandparents.
Nevertheless, s.65C of the Act expressly provides for a grandparent
to make an application for a parenting order. Under the heading “Who may apply for a parenting order” s.65C states:
A parenting order in relation to a child may be applied for by:
(a)either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Further, a long line of authority makes it clear that the courts have
not presumed any special status or favour for a biological parent
over any other party seeking primary care of a child. The Full Court
in “Re Evelyn”[4] at [85,106] adopting an earlier Full Court decision in Rice v Miller[5] stated:In Rice v Miller (1993) FLC ¶92-415 the Full Court adopted the reasoning of Lindenmayer J in Re Hodak; Newman; Hodak (1993) FLC ¶ 92-421 that while the fact of parenthood is an important and significant factor in considering which of the proposals best advance a child's welfare, the fact of parenthood does not establish a presumption in favour of a natural parent nor generate a preferential position in favour of that parent from which the Court commences the decision making process.
Their Honours stressed that each case must be decided on its own particular facts with the welfare, (now best interests) of the child being the paramount consideration.
[4] (1998) FLC ¶92-807.
[5] (1993) FLC ¶92-415.
I respectfully suggest such a statement of principle is both common sense and logical if one remembers that the fundamental task of the Court is to make orders with the child’s best interests being the paramount consideration.
In summary, therefore, and whilst I respectfully agree with Federal Magistrate Altobelli’s view as to “mixed signals” emanating from
a close reading of the most recent legislation, the authorities do not appear to have moved from the position that no preference is afforded
a biological parent over any other party. In 2007 which is post the most recent significant amendments to the Act, the Full Court
in Dennett & Norman[6] continued the Court’s consistent approach
at [59] and [60] as follows:[6] [2007] FamCA 57.
The Court also referred counsel to D & F (unreported) [2001] FamCA 382 where the grandmother was seeking residence of
a young child and the mother was the respondent. In paragraph 56 the Court said:‘56. 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.’In our view, the trial Judge correctly applied settled principles in the present case. Whilst it might seem that he preferred the grandparents he did so because of the evidence before him including balancing the potential parenting capacities of each party and in our view based on the expert evidence it was entirely clear that he should do so…
The evidence
The family reporter – Dr H
Dr H is a clinical psychologist in private practice and well experienced in providing reports in family law matters. The interviews in this matter took place on 20 September 2010. The report is dated
8 October 2010. There is a small addendum report from February 2011 simply noting the non-participation of Ms K Ridley.Dr H noted the issues between the parties at paragraphs 8 and
9 of his report. Firstly he reported Mr Whittle’s concern that [X] was being brought up as a Muslim child in the grandmother’s household and that he wanted her raised in “mainstream Australian society”.
He noted Mr Whittle’s concerns that [X] may be:…married off as a fourteen year old to a much older overseas man as he claims he believes that [Ms. G Ridley]’s daughter has been.
Dr H reported the grandmother raising:
the issue of Mr. Whittle being a drug user claiming that he was sometimes quite glazed when collecting [X] and she was concerned that [X] might be exposed to bad influences if left in his care for long periods.
Each of the parties raised the above as apparently important issues for them during the hearing. However, the reality is that there are many more, and often more subtle, issues between them in this matter such
as those set out above in these reasons.Dr H observed [X] as a quiet and shy child[7] and one who does not tend to be assertive.[8] However, Dr H also proffered at paragraph 22:
[X] may be quiet when she chooses to be but she can have a very determined look in her eye when it suits her.
[7] Family report, paragraph 20.
[8] Family report, paragraph 21.
Dr H concluded:[9]
It seems very clear that [X] is not in a position to articulate her ideas about which home she prefers as she spoke positively about both life at her step-grandmother’s home and at her paternal grandmother’s home where there is not only her father but her two grandparents. She could not think of anything about either home that she thought she did not like. That [X] thinks highly of her [paternal] grandmother was evident in that when was with her father she drew her a personal picture and on her way out came into the writer’s office to give Mr. Whittle the pictures she had drawn…
[9] Family report, paragraph 22.
Counsel for the mother and the Independent Children’s Lawyer in their submissions each raised the issue of whether Dr H may have
a predisposed view as to the “right” of a biological parent over any other interested party. The jurisprudence of this issue has been dealt with above. At paragraph 31 of his report Dr H states:The writer is of the opinion that [X]’s primary parents are the ones who carry the responsibility for making and implementing the major long-term issues about the child and decisions about enrolment at a primary school is [sic] a very major decision to be made for a child of [X]’s age… In the writer’s opinion the wishes of the child’s father take precedence over those of the grandparents’ especially in the present circumstance where the father has consistently and continuously sought out his daughter’s welfare.
Counsel suggested that Dr H’s conclusions may have been influenced by his own predetermined view as to a preference of a biological parent over another party. That conclusion which follows in paragraph 32 of the report is:
… It is the view of this writer that, contingent on there being no circumstance not presently known to the writer or proven by the Court that would mitigate against his view, [X]’s best interests will be more assured if she is residing primarily with her father and spending time with her mother when and if she should come back to her life again…
Although Dr H goes on in the next paragraph to note “that there
is a clear bond between [X] and the maternal step-grandmother”, the tenor of the family report and the use of terms such as “primary parent” do lend weight to this criticism. The simple fact is that the primary parental figure in [X]’s life has been the step-grandmother.At paragraph 29 of his report Dr H makes the bald statement:
The present arrangements do not allow [X] to develop
a meaningful relationship with her father.He does not elaborate as to whether he speaks in terms of quantity
or quality of the time that [X] has been spending with her father.
At that time [X] was spending time with her father each Wednesday for three hours, each alternate Saturday for eight hours and each alternate Sunday for eight hours.When cross-examined on his report Dr H made an assertive statement as to his own views in respect of a dispute between a parent and a non-parent when he said:
Mostly I work on the principle of “each generation looks after their own offspring.
Arguably this presumptive viewpoint is further evidenced in Dr H’s use of a double-negative when questioned about the father’s capacity:
I have no reason to believe that the father cannot look after the child…
And later in his evidence:
I didn’t see any reason to believe that he could not take over the care of [X]…
This of course is not the test. Rather, I am to consider the proposals
of each of the parties against the evidence and in respect of the mandatory considerations in s.60CC of the Act.Dr H described the father as “being sincere”, “caring about
his child”, “of average intelligence” and gained the impression that
“he is responsible” and thought “he was a bit intimidated by the maternal grandparents”.In respect of the maternal grandmother, Dr H was of the view that:
…nothing stood out terribly bad. I believe that she loves the child. I don’t question her motives. I have no sense
of generational confusion in the child.As to his observations of the father as a responsible person, Dr H was provided with the facts which only came out in evidence being that the father had not complied with a court order to attend a post-separation parenting course and had during the course of proceedings been charged with exceed .05 to wit .12 in an incident which involved an accident and the use of alcohol and thereby putting himself
in a position where he was likely to lose his driver’s licence and further did not disclose this information in his affidavit material. This information did not cause Dr H to change his final recommendations although he did concede that it may cause him to reconsider his view as to the father’s general sense of responsibility.Generally speaking Dr H’s observations of [X] and the parties has been of great assistance in my determination. Nevertheless, for reasons that are set out above, I retain some concern that the final recommendations might be coloured by Dr H’s personal opinions as to a priority of a biological parent over a non-parent.
The applicant step-grandmother
Ms G Ridley gave her evidence in a strong and confident manner. She has quite clearly accepted the responsibility for the care of [X] generally and within her own household. Her love, devotion and altruism towards the child could not be doubted.
Ms G Ridley is a person of strong religious conviction. She converted to Islam some nine years ago together with the other members of her family unit. In her evidence she was assertive in defending the tenets of her own religion but did not to the stage of zealotry. Rather, she gave the impression generally of religious tolerance.
After considering Ms G Ridley’s affidavit evidence and seeing and hearing her cross-examined, I am satisfied that she took on the role
of carer for [X] only out of necessity at a time when the biological parents were either unable or unwilling to do so. As such, I do not detect any ambiguity for Ms G Ridley in her understanding of her role. For instance, all of the evidence suggests that [X] knows Mr Whittle and Ms K Ridley as her parents and Ms G Ridley as her grandmother. There is no evidence of any generational confusion for [X]. In my view this is very much to Ms G Ridley’s credit.The thrust of the grandmother’s case is her doubting that the father
is “ready” to assume primary responsibility for the care of [X].
The term “ready” was much used in this matter by the parties and their witnesses on both sides.The grandmother in her evidence raises issues of the father’s drug taking and irresponsible use of alcohol. I gained the impression, however, that these were not so much fundamental to her case but rather collateral examples of what she saw as him being immature, irresponsible and “not ready”. She highlighted the father’s motor vehicle accident and likely conviction of exceed .05 as an example.
Ms G Ridley described her clear frustration with the lifestyle choices of [X]’s mother Ms K Ridley. It is clear, however, that despite her anti-social and unpredictable behaviour, the grandmother and grandfather continue to provide support for Ms K Ridley and accommodation for her when required. This is consistent with Ms G Ridley’s disposition generally. They took [X] into their home when she was an infant and at a time of need. They are the carers for Mr R’s disabled adult sister. I have no hesitation in finding that the grandparents together provide [X] with a loving and attentive home environment.
Ms G Ridley was challenged as to what appears to be the primary concern of the father that [X] would be actively influenced towards the Islamic religion should she stay in the grandparents’ household. The grandmother was direct and believable in her response that she would leave choices of religion to the child herself. She gave the example of [Y] who at 18 years of age seems to have drifted from commitment to Islam but has not on the evidence been excluded from the household. Save that [X] attends a Muslim school, and was initially enrolled there with the consent of the father, there is no evidence before me to suggest that there is any active policy in the Ridley household to ensure that [X] embraces Islam. Whether or not that would happen as a matter of course is, of course, another consideration.
Witness – Mr R
Mr R is the maternal grandfather and husband of the applicant. He is the uncle of the respondent father. Mr R was not originally a witness in these proceedings but became so upon leave to re-open being afforded the applicant. Mr R had been interviewed by Dr H who, when cross-examined, noted the important role played by Mr R within his household.
Mr R’s evidence essentially echoed that of his wife. He was concerned as to the maturity of the father and as to whether or not
he was ready to accept the responsibility of being a full time parent. He expressed his own deep commitment to Islam but did not give
the impression that he was intent on forcing his religion on [X] or any other person.Despite the obvious animosity between branches of the extended families in this matter, there was a defining moment in the case during addresses. Mr Whittle, the father, became distressed and teary during one address. Mr R, who had been sitting some distance from
Mr Whittle, moved to place his arm around Mr Whittle’s shoulders and comfort the younger man. I viewed this incident and saw it as spontaneous and empathetic. This was consistent with my view of
Mr R’s evidence and demeanour generally and, like his wife, I am satisfied that they are generous and altruistic grandparents who have taken on the care of their granddaughter out of need rather than desire. I am satisfied that neither maternal grandparent seeks any “possessory right” in respect of [X] but subjectively consider Mr Whittle “not ready” to assume primary care of the child. My task is in part to consider this in an objective sense.
Witness – Ms S
Ms S provided an affidavit in support of the grandmother.
She was not cross-examined. She is a former workmate of Ms K Ridley and posed in general terms her observations of a close relationship between [X] and the grandmother. She has not met the father.
The respondent father
Mr Whittle is now 29 years of age. His evidence is that he remains living at home with his parents although he says that he is in
a committed relationship with a woman by the name of Ms G.
He readily conceded that he was not academically gifted at school.
He has substantially been employed since leaving school but is currently unemployed.The tenor of Mr Whittle’s evidence is that he loves his daughter and
is now ready to assume primary care of her. When asked why he was now at court seeking care of [X], Mr Whittle responded after some consideration as follows:I love [X].
I believe that I am ready to look after her full time.
Because I am her dad.
Mr Whittle properly and graciously volunteered that the grandmother had done an “amazing job” in caring for his daughter although he then hesitated when further asked whether he had ever conveyed those sentiments to the grandmother. Overall, I did not gain the impression that Mr Whittle was personally antagonistic towards the maternal grandparents. He did not seem to be involved in the difficult family dynamics and, like his personality generally, he seemed ambivalent
to the feud between the family factions.Mr Whittle expressed his concern that [X] was attending the Muslim school. However, his understanding and reasons for his negative attitude were naïve. When challenged as to his alleged concerns,
Mr Whittle could only cite examples of [X] not being able to eat ham, potentially having to wear a veil, and a fear than she would be party
to an arranged marriage whilst still a child. It is noteworthy that
he originally agreed for [X] to be enrolled at the [M] School
and I suspect that his opposition is more a simple echoing of his mother’s views rather than any personal philosophical or theological stance. After seeing and hearing Mr Whittle give his evidence I agree with Dr H’s assessment that his personality is such that he would be likely to agree to any regime for his daughter so long as he was satisfied that [X] was happy and cared for.Parts of Mr Whittle’s evidence were unsatisfactory. He had been ordered in October 2010 to attend a post-separation parenting course. He had not done so by the time of the trial. His excuses along the lines
of waiting for advice from the Court or his lawyers were unconvincing and unsatisfactory. This reflects poorly on his attitude given that the crux of the matter before me was to determine whether or not the father had achieved a degree of maturity and responsibility so as to be able
to care for [X]. Similarly, the fact of Mr Whittle being involved
in an alcohol-related car accident, exceeding .05, and likely to lose
his licence for a lengthy period and all occurring during the course
of these proceedings, does not augur well for him having achieved that level of responsibility.Having had the benefit of seeing and hearing Mr Whittle in the witness box, I was given an indication of his lifestyle and priorities. To his credit, he readily conceded that he occasionally still consumes cannabis when offered the opportunity at parties. He enjoys a few beers with his mates whilst watching football. He currently has no immediate prospects of employment and there was no evidence of him actively seeking any. He seems content living at home with his parents
and, whilst he claims commitment in his three year relationship with Ms G, she did not give evidence and I did not glean any immediate prospects of them setting up a family unit such that could accommodate [X]. Rather, Mr Whittle candidly volunteered from
the witness box that his ability to assume care for [X] would
be dependent upon the support of his own mother. Every indication and implication from the remainder of his evidence and that of his own mother was that this would be very much the case.Overall, Mr Whittle impressed me as a likeable person who does very much love his daughter and cares for her welfare. I have little doubt that [X] would also enjoy her father’s company. He shows an uncomplicated and spontaneous personality. He enjoys fitness and social lifestyle but perhaps one currently without commitment and direction. Neither did he demonstrate a level of commitment and understanding of the role of a parent or, more particularly, the sometimes arduous of a sole parent. His protestations as to the Islamic religion were unconvincing and naïve. Similarly, he was not convincing in his evidence in respect of the few issues of credit between himself and the maternal grandmother. For instance,
Mr Whittle suggested that there was an “agreement” that [X] would be returned to him when she was to start full time school. Ms G Ridley said there was no such agreement. Her evidence was clear and unambiguous. The father was more hesitant and vague in his responses. Otherwise throughout his evidence the father espoused the theme that [X] was with the grandmother because he was “not ready” to be her primary carer with the implication being that an inevitable transfer of the child to him would occur at some indeterminate time and upon his assertion that he be “ready”.
Witness – Ms W
Ms W is the paternal grandmother. Like the paternal grandfather, she had not filed an affidavit in these proceedings when the trial began. The father’s evidence in the witness box was clear that, at least for the immediate future he proposed living with [X] in his parents’ home. Further, he explicitly volunteered that he would enlist the assistance of his mother in caring for [X]. The clear impression given by him was that he would seek and require her support at least in the short term. Having said this, he didn’t really disclose any plans or even ambitions for a future life independently or even with Ms G. Consequently, and given that Ms W would be potentially such an important adult in [X]’s life and her care, leave was given for the father to re-open his case and adduce evidence from Ms W.
Ms W shared the father’s views on the Muslim religion. She herself is a born-again fundamentalist Christian and enthusiastically voiced her opinion that the tenets of her own beliefs do not sit comfortably with those of Islam. She too cited examples such as arranged marriages for teenage girls and the wearing of a veil as her philosophical objections. When it was put to Ms W in cross-examination that she might consider familiarising and educating herself as to the ways of Islam and given the fact that her granddaughter [X] had been living in the maternal grandparents’ home, she answered with the following telling response:
Why should I educate myself when I’ve got the truth?
Ms W gave evidence that she had not supported the relationship between [X]’s parents given that they were first cousins.
Ms W does not work and said that she is therefore available
to assist her son with the care of [X]. Nevertheless, I did not get
the impression of there having been complete delegation by the father to Ms W thus far for [X]’s care when she has been with them. Rather, I have found Ms W in many ways to be an impressive witness who understood her role and position within the household as a grandmother rather than a form of substitute parent. If [X] was to be placed with the father then I am confident that Ms W would give her full support without in any way confusing [X] as to the family hierarchy or usurping the father’s primary role as parent.Ms W gave a version of the events of early 2007 when [X] had been returned to the father albeit only for a period of 35 hours. Whereas the father indicated that [X] had become uncontrollably upset and that he had voluntarily returned her to Ms G Ridley because he was “not ready” and “could not cope”, Ms W deflected the initiative for the return to the maternal step-grandmother she agreed that [X] was upset but said that “we were going to cope”. She said Ms G Ridley knocked at the door and said how much she was missing [X] and effectively demanded the child’s return. This version is at odds with that given by her son and the maternal step-grandmother. Having heard and seen the various witnesses in court, I prefer the version of that event as given by Ms G Ridley and the father, Mr Whittle.
When asked as to her understanding of why Mr Whittle has now applied for an order for [X] to live with him, she responded:
I think he is ready. He is more mature. He is acting responsibly but he still makes mistakes.
Overall, I gained the impression of Ms W as being a good person devoted to both her son and her granddaughter. By reason of her general naivety, she is concerned as to the influence of the Islamic faith on her granddaughter. Her response in cross-examination that
she obtained her limited knowledge of Islam from television gives some indication of the level of that understanding. She, of course,
has also been embroiled in the longstanding family dispute given that Mr R is her brother. The fact that Ms K Ridley and Mr Whittle commenced an intimate relationship as first cousins against the background of this dispute has perhaps coloured the evidence of Ms W and some others in this matter.On the important issue as to whether or not Mr Whittle is “ready”,
Ms W was understandably supportive of her son but not convincing in doing so. She espoused her son’s gains in maturity and responsibility but without any particularity whilst being evasive when confronted with his recent drink-driving exploits.
Section 60CC factors
Primary considerations
Section 60CC(2)(a) – the benefit to [X] of having a meaningful relationship with both of her parents
Significantly this mandatory consideration refers only to parents.
In the matter before me the contest for primary carer of [X]
is between one parent and a grandparent. Nevertheless, it remains relevant on the factual platform before me that I consider orders which will assist [X]’s meaningful and beneficial relationship with each
of her parents.The Full Court
in McCall & Clark[10] considered the notion
[10] [2009] FamCAFC 92.
of “meaningful relationship” and referred and approved in particular two decisions at first instance. Brown J in Mazorski & Albright[11]
at [26] saw the term “meaningful” as being synonymous with “significant”, “important”, “of consequence” and “valuable to the child”. Her Honour further considered the crucial adjective “meaningful” to be properly and pragmatically consideredin qualitative rather than quantitative terms. That is, it is and has always been a truism that the “meaningfulness” of a relationship between parent and child is not indicated simply by the quantity
of days, hours and minutes that they are together. Rather, it is the quality of such a relationship which is the real and proper consideration for the courts and in many cases has little to do with the counting
of time.
[11] [2007] FamCA 520.
Secondly, Bennett J in G & C[12] saw the consideration in s.60CC(2)(a) as being a “prospective” enquiry. That is, we must look at the evidence as it currently stands but with a view to making orders which will most benefit a child into the future.
[12] [2006] FamCA 994.
Section 60CC(2)(a) is considered a “primary” consideration.
It is important, however, not to afford it any special status simply because of its particular reference to “parents”. That is, it is not
the obligation of the court to simply focus on making orders that are most likely to ensure a child has a “meaningful relationship” with
both parents. To do so would inevitably in some matters lead
to a conflict with the fundamental task of the court being to make orders that are ultimately in a child’s best interests. In Champness
& Hanson[13] at [103] the Full Court made this clear when stating:The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had
a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court
to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefitis established, it must still be weighed along with all of the other relevant factors…[13] [2009] FamCAFC 96.
It is difficult to consider any form or regime of orders which will benefit [X] in having a meaningful relationship with her mother. Quite clearly, Ms K Ridley’s priorities are more directed towards herself than her daughter. She delegated responsibility for [X]’s care when the child was an infant. She has been a fleeting presence in [X]’s life ever since and has shown no inclination to accept any of the responsibilities of parenthood. Unless the mother’s attitude changes dramatically, [X]’s relationship with her mother is likely to continue in this vein.
Mr Whittle also delegated the day-to-day caring responsibilities for [X] to the maternal grandmother when [X] was an infant. However, and to his credit, he has maintained a presence in [X]’s life and a relationship with her. The evidence of both Mr Whittle himself and the maternal grandmother is of a bond between father and daughter. Indeed, the grandmother claims, and rightly so, that she has had a part to play in the successful establishment and continuing relationship between [X] and her father. The grandmother’s argument in this matter rests squarely on her view that the father does not have the capacity, maturity or requisite degree of responsibility to assume primary day-to-day care of [X].
Dr H in his report asserts at paragraph 29:
The present arrangements do not allow [X] to develop
a meaningful relationship with her father.My reading of Dr H’s report does not show that he elaborates
or sets out his reasoning for the statement made above. Similarly, his evidence in court did not address this statement. Again, both the father and the grandmother in their evidence seemed to suggest that the relationship between [X] and the father is a good and mutually beneficial one and that [X] understood Mr Whittle to be her father.
She generally relates well to him and is comfortable in his care. On all of the evidence before me I am satisfied that [X] does have
a meaningful relationship with her father and this is so despite her primary home since she was very young having been with the grandmother. Given that Dr H is the expert in this matter, it is unfortunate that he did not provide clear reasoning for his conclusion in paragraph 29 of his report.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The major issue of violence relates to that perpetrated on [X] by her mother, Ms K Ridley. Both maternal grandparents alluded disturbing events in their household. Whether simply by reason of her temperament or her historical drug use, or both, Ms K Ridley seems to have perpetrated gratuitous acts of violence, indeed cruelty, on her daughter. However, Ms K Ridley did not participate in these proceedings and protective concerns can be addressed by injunctive orders such as [X] not being left alone in the care of Ms K Ridley. I am satisfied on the evidence that both maternal grandparents acknowledge the impropriety of the mother’s behaviour and have and would address the same appropriately.
Additional considerations
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The grandmother in her evidence alludes to [X]’s reluctance to go to her father. In cross-examination she said:
[X] tells me that she doesn’t want to go. She cries. She grabs my neck. Other times she is okay to go particularly if seeing [name omitted] [a cousin].
[X]’s views and preferences were manifested when she was placed back with the father but became upset and returned to the grandmother after 35 hours. However, this occurred in February 2007. The father says that [X] now settles into his household on her visits and shows none of her previous reluctance.
Dr H was cross-examined as to whether or not [X] was able
to articulate any preferences as to her living arrangements. At the time of these interviews [X] was just six years of age. Not surprisingly,
Dr H concluded and answered in cross-examination:She is happy in both homes. She has no clear views or preferences. It is not an issue for her. She has two homes.
Dr H in his report at paragraph 22 observed:
It seems very clear that [X] is not in a position to articulate her ideas about which home she prefers as she spoke positively about both life at her step-grandmother’s home and at her paternal grandmother’s home where there is not only her father but her two grandparents. She could not think of anything about either home that she thought she did not like…
[X] is now just seven years of age. Her living arrangements and influences thus far in her young life have been complex to say the least. It is likely that the reluctance and hesitation observed by her grandmother is a reaction to the uncertainties in her former life rather than any rational statement of her preferences. In summary, I have
no evidence of [X] making any mature and informed statement of her preferences in respect of her living arrangements such that any weight should be given.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
This consideration has essentially be dealt with above in respect
of s.60CC(2)(a). [X] has lived primarily in her maternal grandmother’s home since she was an infant. Not surprisingly, her primary bonding is with Ms G Ridley. However, she has had a regular and frequent relationship with her father. The periods have been of short duration and it is likely that [X] sees them as “visits” as evidenced by her behaviour in February 2007 when a more permanent change of residence was contemplated. [X] knows Mr Whittle as her father and recognises him as such. As mentioned above, there appears to be no indication of any generational confusion with [X] and this is to the credit of all the relevant adults.
[X]’s relationship with her biological mother is problematical.
Ms K Ridley has her own issues involving lifestyle and drug abuse. She has been violent to [X]. There is no indication of any bonding or any preparedness on the part of Ms K Ridley to accept the role of mother. This role has been delegated to and accepted by Ms G Ridley.
Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Insofar as this sub-section relates to “parents” it is not relevant.
On a broader perspective, however, I must look at the willingness
of each of the relevant households to encourage [X]’s relationship with the other. To this end, there sits the spectre of entrenched family dispute and religious differences and intolerances. Despite the resultant air of suspicion and animosity, [X] has enjoyed relatively easy transit between the two households. There have been instances when one or other of the households have asserted their “proprietary right” to [X]. However, for the most part she has lived in the maternal grandmother’s home and regularly visited the father. In the witness box all of the adults acknowledged [X]’s need to maintain a relationship with those in the other household and their willingness to facilitate such a relationship. Whilst the matters of religious dispute and the family dynamics gave cause to a good deal of cross-examination and challenge, the question of the father’s capacity remained at all times at the forefront. Quite simply, the grandmother does not dispute that [X] should have a regular and beneficial relationship with her father. She simply argues that he is not capable of caring for [X] on a primary or full time basis. The father says otherwise. Throughout this litigation [X] has continued to move between the households and, as such, I am confident that, whatever her primary living situation, she will continue to have an ongoing and regular relationship with those in the other household. The grandmother’s proposal was initially limited to [X] spending one night a fortnight with her father and under some onerous conditions. Nevertheless, the insight of Ms G Ridley is evidenced by the fact that by the end of the trial she had moved to the more traditional each second weekend, Wednesday evenings and block periods during school holidays.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents or any other child, or other person (including any grandparent or other relative of the child), with whom they have been living
The maternal grandmother relies on the events of February 2007
to suggest that [X] would react negatively and be unsettled
if removed from her primary care. The evidence suggests otherwise. That event was more than four years ago. [X] is now more socialised in that she has attended school for some time. The evidence is that she now settles easily into her father’s household. Whilst any change
of residence will inevitably have an unsettling impact on a child, there is no evidence or sufficient evidence before me to suggest that [X] would not be able to move successfully to the father’s household
and particularly if she was to retain a regular relationship with
the grandmother. The father proposes a change of school for [X]
if she is to live with him. That change would be from the private Islamic [M] School to the government primary school most local to the father’s home.
There was little exploration in cross-examination as to any effect
on [X] of such a change. It would separate her from her peer friendships and involve a change in educational style. If there is to be an effect on [X], then it is the father’s ambivalence and lack of insight which raises concerns. He gives the impression of being a person who “lives for the day” without necessarily considering the ramifications
of events. His responses in cross-examination as to why he proposed
a change in school for [X] were “my brother and I went there” and
“it is just around the corner”.
Dr H’s impressions of [X] were not of an assertive young girl. Her young life thus far has been highlighted by separation from her parents at a young age. All of the evidence points to her enjoying and thriving at her school. The question remains as to whether the father has even contemplated an effect on [X] of his proposed change
of school and also whether he has the tools and insight to cope with any negative reaction by [X].
Section 60CC(3)(e) – the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis
The parties live in relatively close proximity. The father will experience some practical difficulties when he loses his driver’s licence as is anticipated. The evidence is that he will then rely on his own father to assist with transport. Given, however, that Mr Whittle lives
in his parent’s home, I do not anticipate any difficulties over and above inconvenience.
Section 60CC(3)(f) – the capacity of each of the child’s parents, and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
This consideration is at the crux of the determination I am to make.
The maternal grandmother’s capacity to meet the day-to-day needs
of [X] cannot be impeached. She took on the care of [X] as an infant and when the parents were either unable or unwilling to do so. The father himself has described the grandmother’s care of [X]
as “amazing”. The evidence suggests that he is right.
The maternal grandparents have enrolled [X] and presumably met the costs of her attending the [M] School. In doing so, they have shown a commitment to the child’s intellectual needs. That [X] has been able to continue a relationship with her father and a limited one with her mother is a credit to the maternal grandparents and has served to avoid for [X] what could have been serious emotional disturbance. There is no evidence to suggest that there has been any impact on [X] of the feud between the two adult households or from the religious issues between them.
The questions in respect of the father’s capacity relate to his maturity, insight and responsibility to take on the task of full time carer and as to whether he has the skills and tools to do so. Interestingly, the adults giving evidence all used the same terminology in respect of this issue. The father conceded that until now he had “not been ready to be full time parent of [X]”. He argued that he was “now ready”.
The maternal grandmother argued throughout that the father was “not ready” to take on the care of [X]. The paternal grandmother and
the maternal grandfather used similar terminology. The use of the word “ready” causes me to infer that everyone anticipates that [X] may live primarily with the father at some time. The father says that
it can happen immediately.
With an issue such as this it is fortunate that we enjoy a system whereby the relevant adults are called upon to give evidence and
be cross-examined in a courtroom. To simply have relied on the written affidavits would not have given me the advantages of seeing the demeanour and personality traits of those adults. As such, I am called upon to rely to a large part on my own observations
and assessments of the father’s maturity and sense of responsibility and obligation taken within the context of historical and recent factual evidence.
When [X] was an infant both Mr Whittle and the mother felt unable
to care for her. They delegated this responsibility to the grandmother. The evidence is that there may have been lifestyle issues including drug use which the parents prioritised at that time. To his credit,
Mr Whittle is now less involved with drugs. He candidly admits that
he sometimes uses cannabis. Although his evidence was a little conflicting in this regard, I accept that on the whole he is not
an habitual drug user to such an extent that this alone would compromise his parenting capacity.
After the breakdown of his relationship with Ms K Ridley,
Mr Whittle acquiesced to [X] remaining in the care of the maternal grandmother. His evidence in this regard was again candid and honest. He said that he was “not ready” at that stage to assume the role of what would have been a sole parent.
In February 2007 there was an attempt by all parties to have
Mr Whittle assume the role of parent. At that stage he was living with his parents, as is still the case. The evidence suggests that he may have had some employment around that time. The implication of his evidence is that he may have “felt ready” then to take on the responsibility of primary carer for his young daughter. That experiment lasted for 35 hours. It is clear that [X] reacted negatively to the change and that Mr Whittle was unable or unwilling to deal with her distress. [X] was returned to the grandmother. The inference that I make, and the admission of Mr Whittle, is that he was “not ready” at that time.
In broad terms, and despite some discrete disputes between himself and the grandmother, Mr Whittle has acquiesced to [X] living with
the grandmother again from February 2007 through to the commencement of these proceedings. Again, the only inference open to me is that Mr Whittle did not “feel ready” to assume primary care
of [X] in that intervening period. To put it another way, there
is no evidence that he made any serious attempts during that time
to have [X] come into his full time care.
Mr Whittle says that he is now “ready” to become a primary parent. Whilst there is no positive onus for Mr Whittle to show what has changed so as to bring him to this conclusion, I must consider the impact on [X] of the change in what is a settled arrangement. In short, I have no doubt that Mr Whittle wants [X] living with him on a full time basis. However, it is the benefit for the child that should be the focus of my consideration. Mr Whittle’s personal circumstances have changed little since he considered himself “not ready”. He still remains living at home with his mother. He continues to suggest that his mother would be there to assist him and, more significantly, that he would rely on that assistance. He is now unemployed. Whilst this may have some benefits by way of time available for he and [X], it does not give confidence in any increase in maturity, general responsibility, and commitment in this young man. His attitude was generally ambivalent when questioned about his employment prospects. He is in a relationship with a person known to the court only as Ms G. That relationship is now of some three and a half years’ duration. Ms G was not called to give evidence despite Mr Whittle suggesting the relationship to be a committed one. However, there were no real indications on the evidence of any such personal commitment. Rather, the impression I gleaned was of a young man enjoying the pleasures and fruits of non-commitment. He lives at home with his parents. His financial commitments are few. He showed no real inclination or manifest effort to seek employment. He enjoys the company of his friends, watching sport, having a few drinks and working out in the gym. There was absolutely no indication that, should [X] come to live with Mr Whittle, he would move from his family residence. To the contrary, Mr Whittle based his case very much on the fact that he would be remain living with his parents and have the support of his own mother.
Whilst there have not been any clear indicators of Mr Whittle taking on the usual responsibilities of those approaching their thirties, there are some indications of a lack of responsibility generally. In October 2010 I made an order that Mr Whittle attend a post-separation parenting course. This was a court order. It was not a suggestion or even an invitation. It was made for both his and his daughter’s benefit. The order is made with a view to assisting a parent understand the responsibilities and obligations of parenthood and give them the tools to succeed in what can be an onerous role, particularly as a sole parent. Despite this being a court order, and despite his concession as to previously being “not ready”, Mr Whittle had not attended or even enrolled in the parenting course by the time of the trial. When challenged as to why he had not done so, his attitude again was ambivalent and unconvincing. His claim that he was waiting on further directions from the court or lawyers is unacceptable. Rather, I prefer that this is an example of his lax attitude generally to responsibility. It is difficult to reconcile the facts of a parent who has previously delegated the parental responsibility to another, then claiming that they are ready to accept such responsibility, not complying with a court order which is made ultimately for his benefit.
Further, during the course of these proceedings, and again when espousing his apparent willingness to accept responsibility for
his young daughter’s care and to become the primary adult role model in her life, Mr Whittle chooses to drive his car, have an accident,
and provide a breathalyser reading of .12. Given the minimum penalties under the legislation in Victoria, he will inevitably lose
his driver’s licence. It is not the function of this court to penalise
Mr Whittle or anyone for infringing on a State traffic law. He would not be the first good or otherwise responsible parent to have done so.
The difficulty I have is that he should allow this to occur at a time when he must have understood that he would be called upon to show the requisite degree of maturity to both the maternal grandmother and this court. The fact that he didn’t voluntarily disclose this event to the court demonstrates that even he understands its seriousness in respect of his argument before this court.
Having had the benefit of seeing and hearing Mr Whittle in the witness box, he presents as a likeable but still young man not yet willing
to relinquish the freedom, joys and benefits of youth. Whilst we who are supposedly older and wiser might often ponder the great verse: [14]
[14] A B (Banjo) Patterson, Clancy of the Overflow (1889) (public domain).
And I somehow rather fancy that I’d like to change with Clancy,
Like to take a turn at droving where the seasons come and go,
While he faced the round eternal of the cash-book and the
journal—
But I doubt he’d suit the office, Clancy, of The Overflow.it is for Mr Whittle to show that he has moved on from his previous lack of “readiness” to a stage where the court can be confident that
he is able and willing to be committed to the mundane, the difficult and the trials and tribulations of parenthood. On the evidence before me, I don’t see evidence of the indicators.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
On the face of it the issue of religion looms large in this matter.
After hearing the evidence, I think otherwise. [X] currently lives
in a household who generally practice the Islamic religion. She attends a Muslim school. The maternal grandparents are converts to Islam
and might reasonably be expected to bring the commitment that comes with this status.The paternal family are similarly converts but, in their case,
to a fundamentalist Christian religion. The father’s mother gave evidence and left no doubt as to her commitment to this religion. Nevertheless, the most striking part of the evidence of both Mr Whittle and his mother was their naïvety of and general suspicion of the Muslim religion and those who practice it. Ms W conceded that most of her knowledge came from television. The father, Mr Whittle, also said that he was a practising born-again Christian. I am satisfied, however, that he does not share his mother’s commitment and again epitomises his laissez faire attitude to life generally. I glean the impression that he pays lip service to his criticisms of Islam and
his daughter’s attendance at the Islamic school but does so without conviction. I share Dr H’s observations of a young man whose preferences are simple and include his daughter just being happy.Interestingly, the stated fear of both Mr Whittle and his mother, and with much emphasis, was that [X] would “grow up to be a Muslim” if she continued to live with the maternal grandparents. After hearing the evidence, it would be all but inevitable that [X] would be exposed
to the naïve and negative views as to Islam of the paternal grandmother if she was to live primarily in that home. To the contrary, the maternal grandmother and grandfather showed a more balanced and insightful view of religion generally. Both stated categorically that they
would not set out to imbue [X] with their beliefs. They cited the fact of their teenage son who lives in their home but chooses not
to strenuously practice Islam despite during so during his childhood. There is no evidence of any ramifications within the household for this young man. Generally speaking, the maternal grandparents seemed much more informed, accommodating and tolerant of diverse religious practice.In any event, whatever orders I made, [X] will spend time in each household. She has already done so and will hopefully have
the benefit, rather than alleged detriment, of a learning and understanding of both religions. The hope is, as the maternal grandmother stated, that [X] will then be able to make her own informed choice, if any, as to her own religious preferences.The father and the grandmother stated their dislike and concerns as to the trappings of Islam such as the veil and dietary requirements.
I place no weight on those factors. A wander through any suburb
of any city in Australia will show this to be a religiously diverse and multicultural country and it would not become this court, or be in
a child’s best interests, to make parenting orders based on such overt characteristics of any particular religion. Rather, I prefer that there
is much to offer a young child from learning the philosophy and tenets of both Islam and Christianity. [X] might have this benefit.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has shown outright irresponsibility in respect of [X].
She has on the evidence never accepted either the benefits
or obligations of parenthood.The father’s attitude is both a benefit and detriment to his case and
to [X] generally. [X] will benefit by being with her father. She will experience his likeable and spontaneous personality. He has many interests such as cars, football, and the gym. He seems to have many friends and acquaintances with whom he enjoys these interests.
In many senses his attitude to his daughter has been proper. He did not see himself as being able to accept the obligations of caring for a young child. I have no doubt that in [X]’s best interests, rather than any selfish motives, he thought it best that he delegate those responsibilities to the grandmother. This is to his credit. His attitude in respect
of [X] is not the issue here. He has maintained contact with the child and has certainly shown more commitment than the mother. It is his capacity and insight which are at issue here rather than his attitude. The fact remains however that he has in many ways reaped the benefit of parenthood without taking on the obligations. A lack of actual
and regular involvement in [X]’s schooling is a prime example.
His participation has been limited and there is no suggestion on the evidence that the maternal grandparents have worked to exclude him.
Section 60CC(3)(j) – any family violence involving the children or
a member of the children’s family; and Section 60CC(3)(k) – any family violence order that applies to the children or a member of the children’s family
This issue has been dealt with above.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
A consideration here is the implication in the evidence of virtually all adults in this matter that [X] may eventually return to the father’s care. This implication comes from the emphasis on the “readiness”
of the father. If I make orders now for [X] to live with the maternal grandmother, will this effectively be only an outcome or arrangement inviting the father to again argue that he is “ready”? It is trite to sat that protracted or regular litigation would not be in [X]’s best interests. Nevertheless, it would not be doing justice to the child
to place her now with the father if he is not “ready” simply to avoid litigation. To do so might in itself invite more litigation.
Discussion and conclusions
After addressing the evidence with reference to the mandatory considerations in the Act, I am able to find that [X] currently has
a beneficial and meaningful relationship with her father.
The relationship with her mother is transitory at best. She recognises and understands Mr Whittle as her father. That relationship has formed and flourished against a background of fairly limited actual time
for them together. That time, however, has been regular and frequent albeit if for short durations. The proposals of both parties now allow for much more actual time for [X] with the father. Inevitably
the current quality of the time will continue and hence the relationship will develop even further.
I am satisfied that each of the maternal grandmother and the father will encourage and facilitate [X]’s relationship with the other and their households. [X] is fortunate in this respect as the inter-family feud and religious differences could have stalled this occurring. It is a credit to both Mr Whittle and Ms G Ridley that they have not allowed these extraneous factors to distract them from their priority being [X]’s best interests and her broad relationships.
The father’s drug use, both historically and currently, does not in the end assume great importance in my determination. Mr Whittle was candid in his admissions in court. He may be a social user of cannabis but there is no evidence to suggest that he uses the drug when [X]
is with him or that his use compromises his parenting. Rather, I expect that his occasional use of cannabis is more a reflection of his general immaturity. Similarly, the maternal grandmother’s stated concerns
as to alcohol use by Mr Whittle were not prominent in the evidence.
His actions in crashing his car and exceeding .05 also reflect his immaturity but there is no evidence to suggest that he has a difficulty with alcohol that would negatively impact on his parenting. In any event, these are matters which can be dealt with by injunctive orders. There is some evidence to suggest that this would be appropriate.
Issues of violence are limited to the mother. Her violence to [X] seems unjustified and gratuitous. She however was not a participant in these proceedings. It is not anticipated by either the father or the grandmother that Ms K Ridley will have unsupervised or extended time with [X]. I am satisfied that the maternal grandparents acknowledge the impropriety of their daughter’s behaviour and will take all necessary steps to protect [X].
[X]’s views have been canvassed by Dr H. She is comfortable in both homes. She otherwise does not show a preference for either residence and a mature and informed viewpoint would not be expected from a child of her age.
The attitudes of the father and the maternal grandmother are unimpeachable. The same, of course, cannot be said of the mother. She has chosen to prioritise her own hedonistic pursuits over her relationship with her daughter. The loss is hers. Mr Whittle has many good and positive traits and, whatever the configuration of time
he spends with his daughter, [X] will benefit from her ongoing relationship with him. He has been consistent in spending time with her. He has previously admitted his limitations as a parent and I do not criticise him for admitting that he was unable to be a sole parent
for [X] when she was an infant and therefore handing her over to the care of the maternal grandmother. He has been able to acknowledge the role played by Ms G Ridley in raising his daughter.
The real issue here is not Mr Whittle’s attitude but rather his capacity
to attend to [X]’s physical, intellectual and emotional needs and to weigh that capacity, and any potential benefit to [X], against the disruption of what has been clearly a successful status quo.
I am assisted in assessing the father’s capacity by his own candid acknowledgments of his past. He said often that he was not then “ready” to be a sole parent. He says that he now is “ready”. It follows that I should therefore be able to consider what has changed in him. His physical situation is much the same. He is single, although he
is in a relationship. On the evidence before me I cannot be satisfied
as to the commitment and tenure of that relationship and particularly not having had the benefit of seeing and hearing from his friend Ms G. He still lives at home with his parents. He is now unemployed whereas the evidence suggests that he previously had employment. The strong implication is that he will seek the support of and rely on his mother for assistance in caring for [X]. Overall, his ability to cater for [X]’s physical needs do not appear to have altered. Certainly, I cannot
be satisfied that he would be able to support and care for [X] actually and financially without the assistance of his parents.
I must look also at his level of maturity and sense of responsibility and insight into the obligations of parenthood. He presented in the witness box as an open, fit, healthy and very likeable young man. However, his evidence does not give confidence that he has achieved a high degree of maturity and sense of obligation. The exceed .05 charge and the failure to attend a post separation parenting course are consistent with my observations of him as a person who prefers to live his life
on a day-to-day basis, acting spontaneously, and avoiding commitment. Similarly, his lack of regular involvement in [X]’s education leads
me to these conclusions. The bald statement that he would simply move [X] from her current school to a government school in his neighbourhood seemed to me to be made without any insight as to the likely effects on [X]. He was dismissive of his own education, calling himself the “class clown”. On the evidence before me I could not anticipate that he would have the same understanding, involvement and commitment to [X]’s education as has been demonstrated by the maternal grandmother. I must take into account the successful status quo. The father concedes that the grandmother an “amazing job”.
All of the evidence points to a settled and achieving young girl who has a perhaps surprisingly successful relationship with her broad extended family despite their own internal feuds and religious frictions. I am not yet satisfied that a change of school would benefit [X].
Considering the evidence as a whole and on balance, I am not satisfied that [X]’s best interests are served by Mr Whittle assuming the role of primary parent. He ran his case on the basis of being “ready”. However, little has changed since [X] was an infant and the experiment of 2007 when he concedes he was “not ready”. The only significant change in my view is that [X] is obviously now some years older and is socialised in the sense that she attends school. She is, however, still a young child and the capacity of a parent, particularly a sole parent, remains an important consideration.
It might be that sometime in the future, and when she is able
to articulate rational and informed views, [X] may drift more towards her father. However, at this time I am of the view that the current successful arrangement should continue and is in [X]’s best interests.
There is no doubt that there has been an improvement and regularity
in [X]’s relationship with her father. The best evidence is that she now settles better on visits to him. As such, I have considered whether the matter before me comes within the realm of the comment of the Full Court in Dennett & Norman (supra) in that the capabilities of the parties are so approximate that consideration of the biological relationship between father and daughter should cause me to favour his proposal. On reflection, I am satisfied that this is not the case.
I must still consider what time [X] spends with her father. That time to date has been limited. The grandmother, however, had shown more generosity in her proposals by the end of the evidence. I take into account the evidence set out above as to [X]’s age, her attachments, the attitudes and capacities of the parties. The Independent Children’s Lawyer proffers a proposal which would eventually have [X] living in a shared care arrangement living with the father each alternate week from Thursday after school until the commencement of school
on Tuesdays together with the other Wednesday from after school until 8.00 pm. I calculate this to be a block period of five nights together with the Wednesday evening. For all intents and purposes it is a shared care arrangement and as such I would need to be satisfied as to the capacity of the father to discharge these obligations. In summary,
he has not satisfied me that he has the capacity to attend to the
physical and intellectual needs of his daughter as primary carer.
The same concerns exist in respect of a shared care regime. The task
is to establish regime that assists the establishment and maintenance
of a meaningful relationship whilst addressing the concerns I have
in respect of the father’s capacity. I am concerned also that [X]
is able to maintain the certainty and security of the successful home base that she has enjoyed with her grandmother. I prefer that
[X] spend each second weekend with her father from after school
on Thursday until Monday at the start of school. I agree with the Independent Children’s Lawyer that an evening meal so as to break
the gap in visits is appropriate. He suggests every second Wednesday. However, so as to minimise those gaps, I propose that [X] spend from after school until 8.00 pm with her father on the Monday following
the weekend when she is not with him. I am satisfied that [X] should spend half of school holiday periods with her father. My orders will allow Mr Whittle to have some involvement in [X]’s schooling in that he will need to take her to school on two mornings each fortnight
and collect her on two evenings. His circumstances and personality
are such, however, that [X] will be able to enjoy a real benefit
by being with him for block periods during school holidays. I will make orders sought in respect of special religious days.The grandmother asks for changeovers not occurring at school to take place at a police station. Prima facie this is undesirable. Both participating parties express the desire to cooperate in their care of [X]. On such occasions I am of the view that the father should accept the responsibility of collecting and returning [X] from the grandparents’ home. This will hopefully send a message to [X] as to her father’s commitment and the adults’ cooperation.
There remains for me to determine the issue of parenting responsibility. I have no hesitation in excluding the mother from this role.
Both participating parties seek orders for “equal shared parental responsibility” for [X]. One of them is obviously not a parent. However, in the sense of competent adults being required to make
the long term and important decisions for [X], I am of the view that her best interests are served by the maternal grandmother and the father sharing this role. They have been the regular influences in [X]’s life. I am satisfied that their relationship is civil and can be communicative to be able to fulfil these obligations. I stress that neither Mr Whittle nor Ms G Ridley appear to have been unduly affected by the family disharmony and religious differences. In their own ways, and to their credit, they have each protected [X] from these issues.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 14 September 2011
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