S and S
[2008] FCWA 78
•30 JUNE 2008
[2008] FCWA 78
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : [REGIONAL CENTRE] | ||
| CITATION |
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| CORAM |
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| HEARD |
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| DELIVERED |
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| PUBLISHED |
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| FILE NO/S |
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| BETWEEN |
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AND
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Respondent/Grandmother
Catchwords:
FAMILY LAW - children - with whom a child lives - mother deceased - maternal grandmother - father
Legislation:
Family Law Act 1975 - s 60B, s 60CA and s 60CC
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Holme |
| Respondent | : | Mr Dungey |
[2008] FCWA 78
Solicitors:
| Applicant | : | Simon Holme |
| Respondent | : | Macdonald Rudder |
Case(s) referred to in judgment(s):
Rice v Miller (1993) FLC 92-415
[2008] FCWA 78
1 The issue for determination was the father’s application, filed 9 November 2006, in the [local] Magistrate’s Court, seeking that his son, now aged eight years, live with him, that he have sole responsibility for decision-making about the care welfare and development of the child, and the child spend time with his maternal grandmother, the respondent, as agreed between the parties.
2 The grandmother filed a response, on 17 January 2007, seeking that the father’s
application be dismissed. At trial, she proposed the child continue to primarily live with her, but spend from Friday after school to Monday morning, in alternate weeks, with his father. In the alternative, she proposed that the child live with the parties on a week about basis.
3 The applicant was not specific as to the time he proposed that the child would
spend with his grandmother, saying that she should spend time with the child on the basis that most grandmothers would, which he seemed to regard as being occasional weekend visits, and during school holidays.
4 I apologise to the parties for the delay in delivering judgment. I presume, since
no attempt has been made to reopen since the trial, that the arrangements for [James],
as at trial, have continued.5 On 30 June 2008, I made the following orders and, as foreshadowed, now publish reasons for decision:
1. Until further order:
(1) The applicant father have sole parental responsibility for the child,
[JAMES], born [in] January 2000.(2) The child live with the applicant father for 10 days per fortnight and with the respondent grandmother for four days per fortnight on the basis that, commencing from the beginning of the next school term, the child live with the grandmother from the commencement of school on Thursday to the commencement of school on Monday each alternate weekend. (3) The child spend half of all school holidays in the year with each
party.(4) Either party, on six weeks’ notice, be permitted to take the child from [his home town] for a holiday and, in that event, the child may spend the whole of that holiday with them provided they provide contact numbers and addresses to the other party. (5) The child continue to attend [the local] Primary School. (6) Neither party be permitted to change the child’s residence from the [local] area subject to further order or the other party’s written consent. 2. The child be permitted to telephone or visit the other party at any reasonable time he wishes and each party facilitate such request.
[2008] FCWA 78
3. There be liberty to apply in relation to implementation of this order and for further orders.
Background
6 [The father] is 47 years old and a disability pensioner, although at the time of
trial, he was working part-time in a [shop]. He was born in the United Kingdom and emigrated to Australia as a child. He has a daughter, now aged 17 years, who lives in [another state]. He has had minimal contact with the child, he says because it was what the mother of the child wanted. As a teenager, he joined the RAAF for about 12 years. He has been involved in a relationship with [Ms A], also a disability pensioner (with back and joint problems) for four years, but the couple’s evidence was they broke up in August 2007, but have remained friendly. [Ms A] has no children.
7 [The grandmother] is 56 years old and also a disability pensioner with back
problems. She had lived in a de facto relationship with her daughter’s father in the 1970’s. She has since been married twice, her last marriage ending in the early 1990’s. At trial, it appears her last husband, [Neal], was generally living in the garage at the property at which she resides, although, she said, not as a couple.
8 The mother of the child was [Natalie], who was born [in] 1977, so she was 16 years younger than [the father]. She died in December 2002. She had been diagnosed with serious diabetes in 1990, when she was about 13 years old. [The grandmother’s parents]’s moved from Melbourne to [her home in W.A.] to help care for [Natalie]. Her mother became ill with cancer and later died in 2004. [The grandmother] moved into her parents’ home to help and still lives there with her father.
9 The applicant and [Natalie] commenced a relationship in about 1997, married in
1998, and separated in February 2000. They were divorced in April 2002. The only child of the marriage, [James], was born only a few weeks prior to separation, [in] January 2000 (aged eight years).
10 The couple had met in [the north of WA], where [Natalie] and [the grandmother]
were visiting [the grandmother]’s husband, [Neal]. [The father] was then working as a barman. The couple commenced living together in [the regional centre], [the father] working as a barman there.
11 After separation, [James] remained living with his mother, who opposed any contact by the father with the child.
12 The parents were involved in some proceedings in this Court, and initially, on 14 June 2000, it was ordered the parents have week about care, but this was varied, on 17 August 2000, to provide, until further order, the child live with the mother.
13 On 30 April 2001, final orders were made that [James] live with the mother and
she have sole responsibility for his day to day care, welfare and development. The father did not take part in the proceedings from mid 2000. The mother did not know his whereabouts for some of the time. It is apparent she and [the father] had a very poor relationship.
[2008] FCWA 78
14 It is not disputed that [Natalie] was the child’s primary care giver, although she
was hospitalised at times and her mother then cared for [James], and that the father
had little involvement with him prior to the mother’s death.15 By late 2001, while the father was having some contact with the child, his
evidence being that “[Natalie]’s physical and verbal abuse of me when we met for handovers had become, I felt detrimental towards [James]”. His evidence was he decided that it was in [James]’s best interests to geographically remove himself from the conflict, so he moved to [the eastern states], from where he had originated. In fact, he had formed a relationship with a, then, 16 year old girl, [Roselind], with whom he travelled around Australia. [Roselind] gave dramatic evidence as to some of [the father]’s violent and anti-social behaviour during this trip, including illicit drug usage. [The father] said he unsuccessfully tried to contact the child by telephone and email. In about November 2002, he came to [the town] to see [James], [Natalie] and [the grandmother], but was not allowed to do so by [Natalie]. By then, [Natalie] had formed a new de facto relationship with [Joseph].
16 On 3 December 2002, [Natalie] died from complications resulting from her
diabetes, for which she had medicated herself with excessive morphine. [The grandmother] immediately took [James] into her care. Since [Natalie]’s death, [James] has lived with his grandmother and spent time with his father which, over time, has increased.
17 After [Natalie]’s death, the father said he was not informed for 10 days, but the
respondent said she contacted him by mobile phone the next day. He went to [town] “to collect [James]”, but the grandmother had immediately filed an application in the [local] Magistrate’s Court seeking residence of [James]. The proceedings had been listed for 8 January 2003. The father sought an adjournment to obtain Legal Aid and prepare, but the Magistrate ordered that the child reside with the respondent, the applicant have supervised contact as arranged, and neither party should relocate without first obtaining the written consent of the other party. [The father] had about five sessions of supervised contact.
18 It had been [the father]’s intention to continue with the Court proceedings, but
his evidence was that he received threats of violence and had windows smashed at the place he was staying. He believed that the threats originated from the grandmother or her associates. He had certainly reported the matter to the police, for example, on 30 January 2003. He said he was extremely fearful because of the threats of violence he was receiving so he left for [the eastern states] so he could be with his family.
19 His evidence was, from January 2002 to September 2005, he attempted to
contact the grandmother so he could spend time with the child on numerous occasions.
It is not in dispute he took no legal action.
| 20 | In about September 2004, the grandmother went to visit friends in [the eastern states] and, having approached [the father], allowed him, with one of |
his sisters, to spend about half an hour with [James].
21 In late 2004, [Joseph], who had had a reasonable relationship with [James], died, apparently of a heroin overdose. In June 2005, [the grandmother] telephoned
[2008] FCWA 78
[the father] and said, according to him, that she was not coping with [James], and that she had been promoting [Joseph] as a father figure for [James], but now he had passed away, [James] wanted to know who was his real father. [The grandmother] accepts she rang and asked [the father] to speak to [James] as he was a “bit confused” about his paternity. The father soon after returned to [the regional centre] in about July 2005. The father had some limited overnight contact which was not supervised.
22 In about December 2005, the father sent the grandmother a text message saying
that he wanted [James] to come and live with him. He says the grandmother responded saying “I’ll say my goodbyes …. nothing to go on for”. [The grandmother] said she could not remember what she said, but felt that if she lost her father and [James] she would not have any reason to stay in [the area]. [The father] said he was concerned about the respondent grandmother’s mental health and contacted the police and asked them to check on her to make sure she had not self-harmed. [The grandmother] was fine, but does admit attempting to take an overdose of depressant pills when her relationship with her then husband, [Neal], broke up about 10 years ago.
23 In December 2005, the parties attended an ADR Conference and from January
2006, [James] lived with the father on weekends from Friday after school to Monday,
and for half of the school holidays.24 The father commenced these proceedings on 9 November 2006, in the [local]
Court, seeking to have the child live with him, and spend time with [the grandmother] as agreed between the parties. On 23 February 2007, the following interim orders were made in the [local] Magistrates’ Court :
1. [James] live with the respondent Grandmother, except as set out in 3(a) and 3(b).
2. The respondent Grandmother have sole responsibility for the care, welfare and development of the child while the child lives with her.
3.(a)
The child live with the applicant father each alternate weekend commencing the 2 March 2007, from the end of school Friday to the commencement of school Monday and if Monday is a public holiday, then the commencement of school Tuesday.
(b) The child live with the applicant father for the second half of each
school holiday period.(c) While the child lives with the applicant Father, the Father have the sole responsibility of the care, welfare and development of the child.
25 The proceedings were otherwise transferred to this Court.
26 The amount of time spent by the child with his father was reduced, the father
says because an affidavit was filed, on the grandmother’s behalf, by [Roselind], the
former girlfriend of the father, who made some damaging allegations about him.27 From 23 February 2007 until trial, [James] had been staying with his father
every second weekend and for half of school holidays. Between 23 March 2007 until
[2008] FCWA 78
30 May 2007, the child lived with his father while the grandmother had a knee
replacement operation, and recovered from it.28 Once she recovered, it took some time for [the grandmother] to get [the father]
to return [James] to her, the father saying she was not really capable of caring for him.
[The grandmother] did not see much of [James] during this time.29 Since then, [James] has lived with [the grandmother] and spent time with [the father] each alternate weekend from Friday to Monday.
Proposals for the care of the child
30 At trial, the father proposed to continue to reside in a rented brick home in
[the area] which had three bedrooms. [James] has his own room, and there is a
spacious back garden.31 Generally, in recent years, the father has been in receipt of a disability pension, but has done some part-time work in a [shop].
32 He proposed that he would care for the child on a full-time basis outside school
and any work he does would allow him to care for [James]. [James] has been attending the [local] Primary School, although he originally went to [another] Primary School, but [the grandmother] moved him, she said because he was being bullied. Although his family live in [the eastern states], [the father]’s plans, for the time being, are to remain living in [the regional centre].
33 The grandmother proposes that the child continue to live with her and spend
some weekends and school holidays with his father. She also is not employed outside the home. Her father, the child’s maternal great grandfather, is 90 years old and lives with her. I believe she lives in a granny flat at the rear of the property. While [James] has his own room, he is scared of the dark, and at trial, was often sleeping with the great grandfather.
34 She proposes the child continue to attend his present school.
35 [The grandmother]’s position is, whatever the outcome of these proceedings, she
is quite determined to remain in [James]’s life, but if anything happened to her father,
would consider moving back to the Eastern States to be closer to her family.36 At para 68 of her trial affidavit, she said “I would certainly consult [the father] before contemplating any move interstate, if [James] were still living with me”.
Relevant law and factors
37 Section 60B of the Family Law Act 1975 provides:
(1) The objects of this Part are to ensure that the best interests of
children are met by:
[2008] FCWA 78
(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.
(2) The principles underlying these objects are 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).
38 Section 60CA provides, in deciding whether to make a particular parenting order
in relation to a child, the court must regard the best interests of the child as the
paramount consideration.39 Section 60CC(1) provides that in determining what is in the child’s best interests, the court must consider the matter set out in subsections (2) and (3).
40 Section 60CC(2) provides that the primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
41 It is not in dispute that it is to [James]’s benefit to have a meaningful relationship
with his father and that he does now have such a relationship, although he had minimal contact with his father in the early years of his life. Sadly, the child’s mother is deceased. It is clearly in his best interests to continue to have a meaningful
[2008] FCWA 78
relationship with his maternal grandmother, who has been his primary carer for most
of the time since his mother’s death.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
42 The father claims that there is a risk of neglect while living with the respondent.
43 The father has made a number of allegations against the grandmother which are referred to subsequently.
44 As to abuse, it is not in dispute that the child suffered some anal fissures while in
the care of the grandmother. [James] was taken to a general practitioner and it appears that the problem was put down to constipation. The Department for Child Protection has had some involvement with the family, for example, about the child’s sleeping arrangements, and there is no evidence to suggest the child has made any disclosures of inappropriate behaviour towards him by anyone. While I am concerned about the level of supervision of the child while at [the grandmother]’s home, particularly while [Neal], who probably drinks to excess, is staying there, I am satisfied that any risk of abuse is slight and acceptable, and that [James] is of an age when he would probably inform an adult about it.
45 [The grandmother] says that she does not consider the child is at risk of physical
or psychological harm, abuse or family violence in his father’s care, but is concerned about a possible risk of neglect, that is if the child is unattended while in the applicant’s care.
46 While the overall standard of care of [James] has probably not been very high
with either party, he has not been neglected, and his presentation at school has not
been cause for concern.47 Section 60CC(3) refers to additional considerations which the court is to take
into account:
(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;
48 [The father]’s position was that the child has expressed a strong wish to live with
him. [The grandmother] accepts that the child has expressed a wish to live with his father from time to time, but she does not regard this as a maturely expressed wish. Her evidence was that [the father] has offered [James] inducements, such as a tree house and holidays, which have not come to fruition. I have given [James]’s wishes some, but not great, weight.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
[2008] FCWA 78
(ii) other persons (including any grandparent or other relative of the child);
49 Sadly, [James]’s mother is deceased. It is clear that the child has a good
relationship with, and is closely bonded to, both parties. He also has a good relationship with his great grandfather, who lives with his grandmother, and with the father’s friend, [Ms A].
50 He has had a very limited relationship with his father’s parents and other
paternal relatives, who live in [the eastern states], and any other extended family of the grandmother who live in [another state]. The child’s [maternal grandfather, who lives [inter-state], has now shown some interest in him.
(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;
51 Both parties have expressed concern that the other will not facilitate the child’s
relationship with them if the child is living with the other party. In this regard, the father refers to the fact that it has required some effort on his part to pursue his relationship with the child. The grandmother refers to the fact that she had difficulty in obtaining the return of the child after her knee operation during last year, and [the father] did not facilitate many visits.
52 While their concerns are understandable in the circumstances, both parties
accept the maintenance of [James]’s relationship with the other is important for his
wellbeing, and both are likely to comply with court orders.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
53 In recent years, [James] has been used to living with his grandmother and great grandfather, and to some extent, [Neal], and spending regular time with his father.
54 The father’s position was that a change to spend the majority of time with his father would have a positive effect for the child.
55 The grandmother’s position is that [James] was very pleased to return home to
her in May 2007, after living with his father for two months, and that he would be
distressed if he did not at least see her regularly.56 I accept the child would adjust to a change in his living arrangements providing he maintains regular and extensive contact with the other party.
[2008] FCWA 78
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
57 This is not an issue since both parties live in [the regional centre], which is a medium sized country town.
(f) the capacity of:
(i) each of the child’s parents; and (ii) 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;
58 [The father] says that it is relevant that the grandmother is in her 50’s and she is
not in particularly good health. She is a disability pensioner with back problems and last year had a knee replacement operation. Her position is that she is otherwise in good health.
59 [The grandmother] does not dispute that the applicant’s ability to care for
[James]’s needs, although he also is a disability pensioner, he claims as a result of back and mental health problems. He may suffer from borderline and antisocial personality disorder. His former partner, [Roselind], referred to him as a “loaded pistol”. His evidence was he was seeing a psychologist, [Ms L], weekly and said he has also received anger management treatment. Also, he said he had been diagnosed as bi-polar, apparently quite recently. The evidence as to his mental health was obviously unsatisfactory. However, I have some degree of confidence that [Ms A] is likely to remain involved with [James], and would keep an eye on [the father]’s condition.
60 I do not regard the age difference between the parties is of much significance since, unusually, the father is only a few years younger than the grandmother.
61 [The father] has expressed concern that [the grandmother] has not been
adequately promoting the child’s education. It would appear that [James] has been progressing reasonably satisfactorily, although is a bit behind in some areas. There is no evidence to suggest that he is not reasonably well presented at school, or that his physical needs are not adequately cared for.
62 [The grandmother] may well have had psychiatric problems. She admits to
attempting suicide some years ago, and there was no medical evidence as to her
condition.63 [The grandmother] expresses concern about [the father]’s ability to care for the
child’s emotional and intellectual needs, because he does not discuss these with her
and she believes, encourages the child to be secretive.
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64 I have considerable doubts about both parties’ ability to well care for all the
child’s needs, particularly his emotional needs, having regard to the poor relationship between them and their lack of respect for each other, which must cause [James] some distress, since both are so important to him.
65 However, despite his less than ideal upbringing, even in recent years, [James]
has progressed quite well, so the parties must have been reasonably capable. While I am concerned about the fairly vague evidence about [the father]’s psychiatric history, he seems to be functioning at a reasonable level, and there was no evidence to suggest his mental health in recent times has had an effect on [James].
(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;
66 The child is a boy who is now eight years old. He is of Australian/Anglo Saxon
background. While neither party suggested that the child had any special characteristics to take into account, it is obviously relevant that the child’s mother is deceased, and this is likely to make him more emotionally vulnerable. He has been scared of the dark. I gather he suffers from migraines. It is important for him to be brought up in a secure and stable environment.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
67 Both parties make a number of criticisms of the other in this regard, but it is to
their credit that, at least in recent years, both have, generally, given the child’s needs priority and have done their best to care for him. However, I do have concerns about both parties’ application to their responsibilities in caring for [James], as role models for him.
68 Both parties have criminal records, the father claims to have spent two years in
gaol for larceny and a few months in prison for another dishonesty charge. He has
been acquitted of other charges.69 [The grandmother] has shoplifting convictions from about 10 years ago and the recent assault conviction.
70 [The father]’s evidence is he was an amphetamine user in the late 1980’s, and
has used occasionally since. He smokes marijuana on an average of every couple of days, going to a room away from [James] to smoke it. His evidence is he used to buy it from [the grandmother]. In 2005, he was using cannabis twice daily. He does not drink alcohol.
71 While [the father] asserted [the grandmother] used marijuana, he seemed to
accuse her more of being a dealer. I am more concerned about [Neal]’s presence in the garage as he apparently may consume alcohol to excess. He apparently turned up about four years ago and stayed. He is some company for [the grandmother]’s father.
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It appears the social hub of the household is the shed, where drinking and smoking occurs. [Neal] was not available to give evidence.
72 Neither party’s social arrangements seem very desirable for a young child. However, I accept that both have involved [James] in other suitable activities.
73 The father claims the grandmother is involved in psychic matters. I accept she has probably dabbled in this, but it is not significant.
74 The father also complains about [the grandmother]’s lack of supervision of
[James], as he has been found wandering the streets. I accept that [James], to some
extent, has probably not been strictly supervised.
(j) any family violence involving the child or a member of the child’s family; and (k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or (ii) the making of the order was contested by a person;
75 There has been one incident of minor violence by the grandmother against the
father’s then partner, [Ms A], who was serving papers on the grandmother at
changeover.76 [The grandmother] was charged and pleaded guilty to common assault, she says
because she received legal advice it constituted an assault to touch a person without
their consent and she had touched her on the arm.77 It was not suggested that any injury was caused, and I do not consider that event to be significant to my determination.
78 There are no family violence orders in force between the parties, but the father’s ex de facto partner did obtain a violence restraining order against the respondent.
79 [The father] asserts that [the grandmother], shortly after the death of [Natalie],
organised threats of violence against him. This is denied, and if they occurred they were several years ago when all parties were under considerable stress after [Natalie]’s death. It is not suggested there has been any such threats since the father became actively involved in [James]’s life.
(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 child;
80 The father’s position is that if the child has strong views about living with him, it
would be preferable this occur as otherwise there would likely to be further
proceedings.
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81 I consider further proceedings will be unlikely, unless either party tries to move away from [the regional centre], and the parties do not agree on the arrangements. conclusion.
82 Any other relevant fact or circumstance, this will be referred to in my
| Conclusion |
83 This case clearly warranted the involvement of an independent children’s
lawyer, and it is unfortunate that this did not occur. Despite the unsatisfactory state of the evidence in some respects, I am satisfied that sufficient relevant material was, eventually, before the Court.
84 The principal issue to be decided is whether [James] should predominately live with his father or grandmother.
85 Both parties were not particularly credible witnesses, [the father] has obviously
exaggerated the more creditable aspects of his past, for example, his career in the Forces, and down-played the more discreditable, such as his drug usage and mental health history. [The grandmother] has down-played the negative aspects of her past, for example, her criminal history and the concerning aspects of her household arrangements – for example, she was not frank about the situation in relation to [Neal].
86 While both parties are far from perfect role models, in recent years at least, they
appear, between them, to have done a reasonable job in parenting [James]. Although the quality of parenting could have been better, it appears that [James] is secure in the knowledge that the parties love him and are trying to do their best for him. It is appreciated that all involved are pensioners dependent on Social Security.
87 Of considerable concern is the parties’ very poor attitude to each, other as
demonstrated, for example, by their disgusting text messages. It is obviously important for both to try to bury the hatchet and, at least, have a reasonable working relationship to put [James]’s interests first. There has been some degree of cooperation in the past.
88 In relation to [the father], obviously the principal area of concern is that he was
prepared for years, for whatever reason, to not be involved as a parent for [James], when he was clearly needed, although in more recent times, he has maintained his involvement. I am also concerned about his marijuana usage and mental health history.
89 As to [the grandmother], I have some concerns about the quality of supervision
and care in her household, but she deserves considerable credit for taking on the
parenting of [James], to some extent before, and mainly after, the death of his mother.90 The father’s position was that [James] should live with him because he is the
child’s father:
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“I am [James]s (sic) only parent. The respondent is the maternal grandmother. I would consider it more in accordance with societies (sic) norms were [James] to be brought up by me instead of his grandmother.”
91 However, it is well established that, while the fact of parenthood is to be
regarded as an important and significant factor in considering which proposals best advance a child’s welfare, the fact of parenthood does not establish a presumption in favour of an actual parent, nor generate a preferential position in favour of that parent from which the Court commences the decision-making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose residence is in question (Rice v Miller (1993) FLC 92-415).
92 I accept both parties are genuine in their positions of wanting [James] to
maximise his time with them, although it is possible that financial (Social Security)
implications may have had an impact on their views.93 While both were very critical of each other, [the grandmother] could not really
think [James] would come to harm with his father, if she was prepared to offer week
about care with the father.94 I do not consider equal shared care is in [James]’s interests, having regard to his need for stability during the school week.
95 Having taken into account all the relevant considerations, I have determined that
it is in [James]’s best interests to primarily live with his father, but also live with his grandmother, but spending more time with his father. [James] should have an opportunity to live with his surviving natural parent, although he has faults, but maintain his good relationship with his grandmother, who also has faults.
96 However, I am satisfied that [the father], as the surviving parent of [James],
should now have sole parental responsibility for him. As he is progressing reasonably well at school and has settled in there, I specifically ordered that [James] continue to attend the [local] Primary School, although the [previous] Primary School may be closer to [the father]’s home. There could not be much travel involved.
97 I consider it important that [James] spend regular weekend time with his
grandmother and that this include some school days to ensure that [the grandmother]
continues to have involvement in his school life.98 Both parties should have equal school holiday time with [James], but spread
over the whole year to enable either party to take the child on holiday to visit relatives,
in particular.99 I consider it important for [James] to maintain a close relationship with both the
parties, and therefore, if either party wishes to change the child’s residence from the Esperance area (which would not be practical anyway, having regard to the balance of my orders), the other party’s written consent, or further court order will be required.
100 I accept that both parties should have the opportunity to seek further orders, to
further define details of these orders if necessary. Neither party sought orders with much definition, for example, about details of parental responsibility, notifications,
[2008] FCWA 78
special occasion time with the child, etc. If this proves to be a problem, either party may return to court for further orders. Having regard to the distances involved, I would permit either party to attend by telephone.
I certify that the preceding [100] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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