S and B

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & B

[2001] FMCA fam 168

FAMILY LAW – Application for contact by de facto step-grandfather – Consideration of s 68F(2) factors – Contact ordered.

Applicant:

C S

Respondent:

L A B

File No:

ZB 3847 of 2000

Delivered on:

27 June 2001

Delivered at:

Brisbane

Hearing Date:

27 June 2001

Judgment of:

Baumann FM

REPRESENTATION

Solicitors for the Applicant:

McAlister & Cartmill,

Solicitors of Coolum beach

Solicitors for the Respondent:

RP McCormick & Co,

Solicitors of Noosa Heads

ORDERS

That the CHILD, R L B born 3 February 1992 live with the maternal grandmother, L A B.
That the MATERNAL GRANDMOTHER have responsibility for the long term care, welfare and development of the CHILD.
That the CHILD shall be entitled to telephone C S whenever she wishes and in particular the MATERNAL GRANDMOTHER shall facilitate the CHILD telephoning C S between 6.00 to 6.30pm each Wednesday. In addition, if the CHILD wishes to write a letter to C S the MATERNAL GRANDMOTHER shall ensure it is posted as soon as possible.
That C S shall purchase a communication book which shall be used for the conveying of messages between the parties at contact times, relating to matters which may relate to the CHILD’S diet, issues of discipline or other matters which have arisen since the last contact visit, and which relate to the CHILD’S wellbeing.
That the MATERNAL GRANDMOTHER shall take steps to have the CHILD’S health reviewed by her General Practitioner and a suitable dietary program shall be developed. The MATERNAL GRANDMOTHER shall, when the program is set (which shall take place within 30 days), provide C S with a copy via the communication book. C S shall comply with the recommendations of the dietary program during contact visits.
That the MATERNAL GRANDMOTHER shall provide within 14 days a written direction to the CHILD’S school, authorising them to send a copy of school reports, photographs and newsletters to and at the cost of C S.
That the MATERNAL GRANDMOTHER is to give C S not less than
2 months notice of any intention to move the permanent residence of the CHILD from the Sunshine Coast.
That C S is to have contact to the CHILD as agreed but at least on the last weekend of each month, commencing July 2001 from:
(a)After school Friday to 5.00pm on Sunday.
That C S shall collect the CHILD at the commencement of contact from the CHILD’S school, however if it is not a school day, then he shall collect the CHILD from an agreed location in the S P Shopping Centre at M.
That C S shall return the CHILD at the conclusion of contact to the agreed location in the S P Shopping Centre at M.
That there be no order as to costs.

IT IS NOTED:

That the CHILD’S REPRESENTATIVE facilitate the explanation to the CHILD of the effect and meaning of these orders by the report writer F P as soon as possible.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

ZB3847 of 2001

C S

Applicant

And

L A B

Respondent

REASONS FOR JUDGMENT

Introduction

I have an application before me by C S for increased contact and certain special issues orders so far as they relate to the child R L B, an infant born on 3 February 1992, and who is, as a result, 9 years of age now. The application which came on for final hearing today before me has been the subject of various earlier orders of myself, and in the Family Court.

Background

Essentially the relevant background facts are not in dispute. So far as is relevant, the applicant, Mr S, and the respondent, who I shall hereafter call the maternal grandmother, L A B, commenced cohabitation in early 1991. The child, R, was born, as I indicated, in February 1992, and initially resided with her mother, T L B. The child has both Australian and Papua New Guinean ancestry.
There was, it would seem, a significant amount of continuing contact between the paternal grandparents and their extended family until approximately 1995, when it would seem that R was placed in the care, by agreement of the parties, of the paternal grandparents, whilst the mother and father were incarcerated. Regrettably, during this period the paternal grandfather died and the paternal grandmother became ill. This, it would seem, necessitated a change in the living arrangements for R, and the maternal grandmother then took over the role of principal carer to the child. At this stage, of course, she was in a relationship with the applicant, C S, and he maintained an interest in her care, welfare and development from that stage.
In approximately May 1999 the maternal grandmother separated from C S and chose to re-locate from the Gold Coast to the Sunshine Coast. It would seem, not with the support of the maternal grandmother, that Mr S followed shortly thereafter and commenced living in close proximity to the home of the maternal grandmother. Disputes arose as to an ongoing contact regime being sought by Mr S to R. Some of these disputes appear to have resulted in initially the maternal grandmother seeking an order under the domestic violence legislation against C S, but those proceedings which were commenced in November 1999 were ultimately, it would seem, dismissed at a hearing on 6 January 2000.
On 5 June 2000, when the matter came before the Family Court and before Registrar Rimmer, as she then was, contact was ordered in the form of one Saturday per month. Since that time, as I have indicated, the regime for contact has been revised on two further occasions, until we have reached a final hearing today. The most recent contact order was one made by me on 8 May 2001, which effectively provided that C S was to have contact to R overnight on two separate occasions, one in May and one in June.

Principles to be applied

The principles which are to be applied in a matter of this nature are well known to all the parties before me essentially. Section 60B of the Family Law Act, and the object of part VII of the Act, is to ensure that children receive adequate and proper parenting to help them achieve their full potential and ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The principles underlying these objects are that except where it is or would be contrary to the children's best interests:
a)The children have the right to know and be cared for by both parents regardless of whether their parents are married, separated, have never married or never lived together, and relatively in this matter under subparagraph;
b)The children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development.
I am conscious, of course, of the requirements of section 65E of the Act, which provides in deciding whether to make a particular parenting order in relation to a child a Court must regard the best interests of the child as the paramount consideration. I am also conscious of the provisions of Section 68f, which provides that in determining what is in the children's best interests the Court must consider the matters set out in subsection 2, and I will turn to that subsection shortly.

Competing proposals

After submissions there were essentially as follows:

The applicant

a)C S proposes that he have contact once every three weekends from after school on Friday until 5pm Sunday. He also seeks a further period of extended contact during the school holiday period, being four nights during each short school holiday period, and two weeks during each long school holiday period. There were some discussions as to changeover, and ultimately it was agreed that the changeover could take place at a neutral location and the S P Shopping Centre was suggested. In addition, C S sought that the child telephone him every Wednesday between 6pm and 6.30pm. He also sought an order that the maternal grandmother provide to the child's school, sporting and social clubs, an authority stating that C S is at liberty to contact them directly in order to receive reports, newsletters, etcetera, and attend functions. By way of the reply filed on 22 June 2001, two further orders were sought by C S, essentially a special issues order that the parties in these proceedings be jointly responsible for the child's long term care, welfare and development, and a further order that the maternal grandmother be restrained from relocating with the child out of the Sunshine Coast region.

The respondent

b)For her part, the maternal grandmother initially, as part of her application, had sought that contact cease. Quite properly, in my view, during the course of these proceedings and after consideration of the evidence of Mr P and others, the maternal grandmother's position in closing was that the level of contact that should be provided to Mr S was one weekend a month, presumably the last weekend of each month, from Saturday morning to Sunday evening. It was proposed by the maternal grandmother that there be no further contact other than that contact. Ultimately, it seemed to me that she agreed that telephone contact could take place but on no more than a weekly basis. She also agreed ultimately that changeover of contact could take place in a neutral location, although she expressed some reservations about that. She opposed the orders sought by C S in relation to restraining her movements or, in fact, movement of the child. She also sought an order that she have the sole responsibility for the long term, care, welfare and development of the child.

Evidence

In respect to the evidence, at the commencement of these proceedings I made the observation to the parties that some of the material that has been previously filed did not seem to be relevant to the issues for my determination today. This was not a contested residence case. As a result, issues that related to the relationship between Mr S and the maternal grandmother, some of it in the material going back some years, was of little if any relevance. I was delighted to see that the parties after certain observations that were given by me reflected on the evidence, which was necessary for me to make a decision in the best interests of the child, and adjusted their presentation of their case appropriately.
In this regard I was assisted significantly by the legal representation of the applicant, the respondent, and the child representative. It also became apparent when one considered those issues that the evidence which had been placed before the Court through the affidavits of J B, T N (who otherwise in these proceedings will be called Nanny N), and the father, E N, did not take the matter much further, other than to confirm that all those persons had a significant interest in and had at different parts of this child's life, played a role in the child's care, welfare and development.
As a result, those parties were not cross-examined and the evidence before the Court is therefore unchallenged. Before making some observations on the evidence of Mr S, Mrs B and Mr P, who of course was the child report writer called by the child's representative, I should indicate that this was not a case that it seemed to me that issues of credit were likely to be very significant.
I found all witnesses to be witnesses of truth. In fact, as Mr P observed, and as I also adopt in a sense, the maternal grandmother was refreshingly honest in respect of her views. She has strong views and she expressed them. There was no doubt about what her views were. Similarly, it seemed to me that Mr S had strong views about the benefits which flowed to R from continued contact to him.
In those circumstances, when considering the evidence before me from each of the parties, and without seeking to recite in this extempore judgment the evidence totally, some of the more relevant observations or remarks during the course of the evidence were, it seemed to me, in respect of Mr S that:
a)He acknowledged that the parties separated in May 1999 and that there has been a significant degree of conflict since that stage;
b)He had difficulty acknowledging the father as a significant person in the life of R. This seemed to me to show little insight into the special relationship which generally, and in this case I find still, exists between the child and her biological parents. It is clear that Mr S regarded the lack of opportunity of the father to have contact to R over most of her young life as being indicative of the lack of significance that he plays in R's future life, but that would be an unfair assumption, in my view;
c)He acknowledged the important role which Nanny N and certain members of the extended family had played in R's life, and saw no difficulty with that continuing contact;
d)He was less comfortable in conceding the role of the Aunty J and members of her family, but did accept that there had been an extensive amount of contact between R and J and her children;
e)He acknowledged that R has a weight problem and, in fact, it seems common that all parties accept that the child has a weight problem, although, as I will indicate shortly, the maternal grandmother was reluctant to categorise it as overweight. Certainly on the evidence it suggests that this child will benefit from some assistance with weight, which may have a positive effect on her health, but also on her confidence and self-image;
f)He said he was quite happy to follow any regime set by the maternal grandmother in respect of dietary needs or other issues, and there was some discussion of the do's and don'ts list referred to by Mr P;
g)Essentially his view was that he felt it was in the interests of stability for R that he have more contact with her. He indicated that he felt that he could deal with the high conflict between himself and the maternal grandmother by really having nothing to do with her, and although he accepted that he was part of the problem in respect of the high level of conflict, he really had no solutions that he could give to me as to how that conflict could be reduced.
In respect of Mrs B:
a)She made it very clear that she has tried to persuade R from having any contact with Mr S at all. It is clear, and she accepted, that she has found it difficult to separate her feelings for Mr S from what may be the child's feelings for him as reflected in Mr P's report. She also had some difficulty initially, but ultimately I sensed conceded, that the conduct of her own child, T L, would make it difficult for her to be able to totally redevelop initially a relationship with R, although not unreasonably as a mother she is hopeful that that may come to pass in time;
b)She indicated some disappointment in the conduct of her daughter, but notwithstanding that the father of the child has had difficulties with the law as well, she acknowledged that she felt the father had always demonstrated a consistent interest in the child's well being, and was keen to promote and encourage that relationship. She indicated that she did not necessarily agree that losing C would be an emotional loss for the child;
c)This again seemed to stem from her own view that she could not see any benefit that could possibly flow from a relationship between Mr S and the child. As further evidence of this difficulty, whilst she acknowledged that there was no other close family person who could represent the role of a grandfather in the life of this young child, she said she could not possibly call C S "grandad";
d)When asked by me to examine her feelings in relation to the effect it might have on the child, while she acknowledged that she could see that it could be causing some difficulties for the child, essentially she expressed some emotional difficulties in being able to move past that point. As I said at the start, she has been consistent in her view. Of course, in a matter of this nature, I am not able to understand the dynamics of the relationship between the maternal grandmother and Mr S and why, after the breakdown of a seven-year relationship, it has resulted in the level of animosity which currently exists.
I would make this observation, however: that R, having had so much uncertainty in her life, is entitled at least to expect that these two significant parents try a little harder than I suspect they both have to date. Essentially, I suspect, the maternal grandmother, apart from her concerns about the level of contact and if there should be any contact to C S, also had what I believe was a genuine concern and insight into the benefits to R that flows from her maintaining contact with the extended family.
Although there was no evidence before me in relation to the issue, it is clear that R is a child born of an Australian mother and a Papua New Guinean father. The aspects of this cultural heritage would, no doubt, be important to the child, and that aspect of the child's development, although not the subject of any real evidence before me, I suspect I can infer, will be best served by her maintaining contact with the father to the extent that he has been able to, and of course Nanny N and the extended family, who have already played an important role in the life of the child.
Again, I was surprised in some ways that neither the maternal grandmother or Mr S gave that aspect of this child's heritage much significance, and it probably reflects the fact that, to a large degree, they saw the dispute as one between themselves rather than something that related to the overall best interests of the child.
In relation to the prospect of a move to Sydney, the maternal grandmother quite properly indicated in my view that she had not contemplated such a move, but could not rule out such a relocation if an opportunity for more secure and better employment, such as she previously had on the Gold Coast, arose in Sydney while she has her mother and sister living there, she acknowledged that a move out of the Sunshine Coast area would separate the child from the extended family of Mr N, and also Aunty J, but that nonetheless that was a matter that she would need to consider at the time. I propose to order, not that the grandmother be restrained, but that she give notice of any intended movement from the Sunshine Coast on a permanent basis.
We are then left with the evidence of Mr P. Mr P is a very experienced social worker, and a person who is often called upon by a child representative to provide some independent specialist advice in relation to the best interests of a child. The role of the child's representative must be understood to be one essentially of assisting the Court in determining what is in the best interests of the child. Mr P has produced two reports, one filed on 15 March and a further one filed on 2 May.
His report of 2 May, of course, because of its timing, was not able to take into account any results of the overnight contact which took place in May and June. Nonetheless, significant parts of Mr P's report, which were unchallenged, and which are now probably accepted even by the maternal grandmother, is that R does have a relationship with Mr S and that she wishes to maintain that relationship. She clearly also has a strong and significant bond and primary attachment to the maternal grandmother, who is, as Mr P described her, the primary care-giver, and there is no doubt in my mind that the maternal grandmother fills that role.
Mr P indicated, in addition to the report and his recommendations which were for continuing contact between the child and Mr S, that he regarded there being two core problems in this matter. One he described as the child's own innate personality and functioning. In that regard, the evidence before the Court is that R is a child who suffers some intellectual and social challenges. The maternal grandmother reflected that she was perhaps a little slow. She also has some difficulties with her weight, which can all have an effect on a child of this age in the way that they are perceived by their peers, and in the way they perceive themselves.

On top of those innate personality issues flows the most unsettled nature of this child's upbringing - an upbringing which is described in all the material as being predominantly undertaken by the grandmothers’, in a sense, as a result of the difficulties which the mother and the father have had with the law. I have said previously in this Court, and I am happy to say it again, that children in these circumstances derives enormous benefit from the compassion and the efforts of grandparents who often are required, not by choice at this stage of life but by necessity, to undertake an important role in the upbringing of some young children.
Mr P was not surprised when it was put to him the level of the vehement opposition which the maternal grandmother has to the continued contact. Interestingly, and relevantly in my view, he said that although he detected that the child was aware of this significant conflict between Mr S and the maternal grandmother, he did not, in his observations of the child, detect the stress in the child one might expect to find. That observation is borne out by the material, where there seems to be little evidence of any distress to the child arising from the current contact arrangements.
One would have thought, particularly in respect of the maternal grandmother, that if there were some events or evidence of distress, that I would have known about it in her material; but no such issues arise. Not surprisingly, Mr P observed the high level of conflict is a further burden which the child needs to cope with, but I sense from his reports and from his oral evidence today that he felt this child is coping with that at this stage. It seems that Mr P has formed the view that she copes with it by basically not getting involved in the management of the dispute, and that is advice which I have taken into account when considering the nature of the orders I propose to make.
Mr P quite properly observed that it was a positive attribute of the maternal grandmother's reactions in this matter that she has not sabotaged the contact arrangements and has observed those, even in circumstances where she acknowledges that she finds it difficult to support the orders of the Court as being in the best interests of the child. The solicitor for Mr S sought, with great persistence, to have Mr P confirm that the arrangements he initially set out in his first report would still be appropriate now, that is, extended contact.
Mr P's ultimate conclusion was that based on the continuing behavioural difficulties, which apparently R is still suffering – and to that extent can I just observe that there was no material before me from the teachers corroborating the extent of those behavioural difficulties, although there was evidence by both of the parties of some difficulties – he would not feel comfortable in extending the contact into a longer holiday-type routine until a review is undertaken – he suggested, by himself – in some six or nine months’ time.
All the representatives, in accordance with their instructions, and in view of the evidence, have urged me not to make any order which requires a review of the ultimate order I propose to make. Whilst it was put to Mr P that if the maternal grandmother was incapable of accepting Mr S it could cause future problems for R, Mr P, not surprisingly, when one is used to seeing his evidence, maintained an optimistic view. As he indicated, social workers are optimists, and he said that he still held a view that there was a prospect that the maternal grandmother could be more accepting of the position, provided she was not pushed too far too early.
He also indicated, in a relevant passage of his evidence, in my view, that he believes contact for a weekend each month would probably satisfy R's needs, but he felt it would not satisfy the needs of Mr S.
It is proper that I consider the relevant Section 68F(2) factors as required by the authorities:
a)In respect to the wishes of the child, it is clear the child has expressed some wish, as identified by the child representative in her submissions, that she maintain contact with Mr S. Even though the child is 9, it is clear to me that those wishes should be given some weight, bearing in mind that the child has had so much instability in her life and is seeking, it would seem, to preserve any relationship she has which can give her some love and some support;
b)In relation to the nature of the relationship of the child with each of the child's parents, and with other persons, I agree with Mr P that the significant and primary relationship for this child is with the maternal grandmother. It is not particularly helpful, in my view, to try and rate or rank the other important relationships. However, it is clear on the evidence that R has a relationship with Mr S, with Nanny N, with her father, and with certain members of the extended family who are referred to in the material. The difficulty for this case is how one balances up those relationships and the needs and best interests of the child;
c)There does not appear to be any practical difficulty and expense in relation to exercising contact, and I do not believe that in this case Mr S, as it is a contact case, is reduced in the capacity to provide for the emotional and intellectual needs of the child;
d)As I indicated, factor 68F(2)(f) requires me to take into consideration any cultural issues, and I have indicated already in my reasons that I believe they do have some significance in this case, in view of the heritage of the child, but that those needs can be met by the orders I propose to make;
e)There is no evidence, in my view, of any physical or psychological harm being caused to the child, other than the negative influence of the maternal grandmother and the conflict that is likely to continue to persist between the maternal grandmother and Mr S;
f)Although there were clearly differing parental attitudes adopted by the maternal grandmother and Mr S, and although at times there were some lack of insight by both, on balance it seems that both have a realistic appraisal of the roles which they can play in the child's life. I believe that Mr S is capable of accepting that, with the primary living arrangements being with the maternal grandmother, and where there is a difference between his views as parental conduct and those of the maternal grandmother, the maternal grandmother's views in relation to things like discipline and diet should be maintained and observed so as to prevent ongoing confusion and conflict for the child;
g)In respect of whether it would be preferable to make an order that would be least likely to lead to further institution of proceedings, it is clear that all parties believe that was desirable as a result the review by someone like Mr P was supported.

Conclusion

I propose to deal with the proposed orders in this way. It is not contested that the child should reside with the maternal grandmother, L A B; and an order in that regard will be made as a final order.
There is some dispute as to where the responsibility for long-term care, welfare, and development of the child should lay. Mr S says that he should share that responsibility. I am satisfied that because of the high level of conflict, coupled with the fact that in my view she has played an ongoing parental role with proper consideration of the child's needs and interests, that in the unusual circumstances of this case (where the biological mother and father can play no continuing role at this stage in the life of the child) the stability of the child is best served by the maternal grandmother having the sole responsibility for the long-term care, welfare and development of the child, and I propose to so order.
In relation to telephone contact, the observations of Mr P were clear. There is a very positive message that can be given to a child of R's age, where there is a high level of conflict between the maternal grandmother and Mr S about encouraging telephone contact. I propose to order that R shall be entitled to telephone C S whenever she wishes, and in particular the maternal grandmother shall facilitate the child telephoning C S between 6 o'clock and 6.30 pm each Wednesday. In addition, if the child wishes to write a letter to C S, the maternal grandmother shall ensure it is posted as soon as possible.
Counsel for the child representative suggested the use of a communication book. In circumstances where neither parties are able to provide any real solution as to how communication could improve, that seems to be, as ineffective as it sometimes is, the best option; I propose to make such an order.
I was concerned by part of the evidence of the maternal grandmother that she had not reviewed the medical condition of the child. There was some evidence attributing blame to the apparent increase in weight of young R over the last two years. I propose to order that the maternal grandmother shall take steps to have the child's health reviewed by her general practitioner, and a suitable dietary program developed. The maternal grandmother shall, when the program is set, which shall take place within 30 days, provide C S with a copy via the communication book, and C S shall comply with the recommendations of the dietary program during contact occasions.
There was some discussion and debate as to what was the appropriate way, if at all, that Mr S should be involved in the school activities of the child. In fact, the order sought by him extended to school activities, sporting and social clubs. There is no evidence before me that the child is involved in any of those activities at this stage. I believe there is an important role for people who have a significant interest in the welfare of the child to be aware of her educational progress. In many ways school is a haven for these children and can provide an opportunity for continued support of what the child is hoping to achieve at her school. It seems to me that because there will be ongoing contact between the child and Mr S and in circumstances where I'm satisfied that the maternal grandmother will provide Nanny N and other members of the extended family with the information. I propose to order that the maternal grandmother shall provide within 14 days a written direction to the child's school authorising them to send a copy of school reports, photographs and newsletter to and at the cost of C S.
I have indicated already that I propose to order that the maternal grandmother will be required to give not less than two months notice of any intention to move the permanent residence of the child from the Sunshine Coast.
We ultimately come down to the major issue which was before me, and that is the frequency and level of contact that is to take place. As I say, the evidence before me distilled a number of options. In the end result I have taken the view that we should maintain the current regime of one weekend a month, but on a slightly extended basis as recommended by the child's representative. I do not believe at this time that it is in the interests of the child that I make any order for extended holiday contact.
It is my view that the child at this age with continued contact to Mr S, as I propose to order, will be in a position as she gets older to express strong wishes as to a requirement to extend that contact to Mr S. It would be a foolish act on behalf of the maternal grandmother, and not one which I think she would undertake, when ultimately she is put to the test of refusing a reasonable request by the child to maintain a relationship with Mr S or other people significant to her care, welfare and development to disregard those expressed wishes. This is particularly so, in circumstances where the child has lost much through lack of persistent parenting from her biological mother and father.
In those circumstances the order I propose to make is:
(1)That C S is to have contact to the child, as agreed, but at least on the last weekend of each month commencing July 2001 from after school Friday to 5 pm Sunday.
(2)I will further provide that C S shall collect the child at the commencement of contact from the child's school. However, if it is not a school day, then he shall collect the child from an agreed location in the S P Shopping Centre, M.
(3)I will further provide that C S shall return the child at the conclusion of contact to the agreed location in the S P Shopping Centre, M.
(4)The order will note that the child's representative is to facilitate an explanation of these orders to R by the report writer, F P as soon as possible.

Costs

The Child Representative has made an application for cost. In cases like this it is quite proper for the child representative, in accordance with the guidelines which apply to Legal Aid, to identify that the useful service which Legal Aid provides to the court in providing separate representation for the child, is at a cost to the public purse, and if appropriate that cost should be met by the parties who bring the dispute to the court.
In the unusual circumstances of this case however, that quite honestly neither the maternal grandmother or Mr S would be likely to be here if the mother and father were in a position to properly care for the child, it seems to me appropriate that I make no order for costs, but nonetheless to thank the child representative for her involvement on behalf of the child.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:

Date:

[2001] FMCAfam 168

8 October 2001