Sailer and Harley and Ors

[2019] FamCA 702

FAMILY COURT OF AUSTRALIA

SAILER & HARLEY AND ORS [2019] FamCA 702

FAMILY LAW – CHILDREN – final parenting consent orders between paternal grandmother and mother – where the Court was asked to determine limited outstanding issues.

Family Law Act 1975 (Cth) ss.60CC
APPLICANT:	Ms Sailer

FIRST RESPONDENT: Ms Harley

SECOND RESPONDENT: Mr Adlam

THIRD RESPONDENT: Mr Sailer

FILE NUMBER: LEC 700 of 2016

DATE DELIVERED: 9 September 2019

PLACE DELIVERED: Lismore

PLACE HEARD: Lismore

JUDGMENT OF: Baumann J

HEARING DATE: 9 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S Priestley

SOLICITOR FOR THE APPLICANT: Beek & Gallagher Legal

COUNSEL FOR THE FIRST RESPONDENT: Ms C Smith

SOLICITOR FOR THE FIRST RESPONDENT: Paul Denmeade & Co

NO APPEARANCE BY THE SECOND RESPONDENT

NO APPEARANCE BY THE THIRD RESPONDENT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms P Decle

INDEPENDENT CHILDREN’S LAWYER: Ms K Hazan
Trenches Mckenzie Cox

Orders

1. That, subject to Order 2, the First Respondent shall have sole parental responsibility in respect of the child, X born … 2012 (“the child”).

2. That the child shall attend B School in Town D until the conclusion of Year six (6).

3. That the mother shall consult the Applicant about major long term decisions to be made in the exercise of her sole parental responsibility as follows:

   (a)The mother shall, in a timeframe appropriate in the circumstances, inform the paternal grandmother in writing about the decision to be made, including any information in the mother’s knowledge relevant to the decision, and the mother’s proposed decision;

   (b)The paternal grandmother shall inform the mother in writing within fourteen (14) days of her views about the decision to be made;

   (c)The mother shall make a genuine effort to take into consideration the views of the paternal grandmother about the decision to be made; and

   (d)The mother shall inform the paternal grandmother in writing within fourteen (14) days of the decision she has made.

4. That, except as otherwise specified in these Orders:

   (a)the mother shall be responsible for the daily care, welfare and development of the child when he is living with/spending time with her; and

   (b)the paternal grandmother shall be responsible for the daily care, welfare and development of the child when he is living with/spending time with her.

Exchange of information and communication between adults

1. That the mother and paternal grandmother shall participate in family counselling for the purpose of improving the effectiveness of their communication about matters concerning the child as follows:

   (a)within twenty-eight (28) days of the date of these Orders, the mother and paternal grandmother shall take all necessary steps to arrange family counselling through the G Group in Town E (or such other organisation as agreed in writing between them);

   (b)the mother and paternal grandmother shall bear the costs of family counselling equally; and

   (c)the mother and paternal grandmother shall each participate in family counselling until such time as the counsellor advises the goal of family counselling has been achieved or is no longer considered appropriate.

2. That the mother and paternal grandmother shall:

   (a)keep each other informed at all times of their respective residential address, contact mobile phone number and email address and advise the other of any intended change at least twenty-four (24) hours prior;

   (b)keep the other informed of the names and addresses of any medical, dental or allied health practitioners who the child attends upon; and

   (c)inform the other parent or grandparent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.

3. That the mother and paternal grandmother shall communicate about matters relating to the child in the following ways, unless agreed otherwise in writing:

   (a)In an emergency – by telephone;

   (b)Where a time-sensitive issue arises – by text message or other electronic communication; and

   (c)In respect of major long term issues – by email or letter.

4. That, by this Order, any medical, dental or allied health practitioners who the child attends upon is authorised to provide each party any information that they would be lawfully able to provide about a child to a parent.

5. That, by this Order, the school attended by the child from time to time is authorised to give each party information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that party’s request and cost).

6. That during the time the child spends or communicates with either parent or grandparent, that party shall:

   (a)respect the privacy of the other parent and/or grandparent and not question the child about the personal life of the other parent or grandparent;

   (b)speak of the other parent and/or grandparent respectfully;

   (c)not denigrate or insult the other parent and/or grandparent in the presence or hearing of the child and take all reasonable steps to ensure that others do not denigrate or insult the other parent and/or grandparent in the hearing or presence of the child.

Living arrangements

1. That the child is to live with, spend time with and/or communicate with the mother and paternal grandmother as follows.

2. That the child shall spend time with the paternal grandmother during school term:

   (a)commencing 20 September 2019, from the conclusion of school Friday until 4.00pm the following Sunday and each alternate weekend thereafter in term three (3) of 2019; and

   (b)commencing term four (4) of 2019 and continuing in every school term thereafter, from the conclusion of school on the second Friday of the school term until 4.00pm the following Sunday and each alternate weekend thereafter during that school term.

3. That otherwise the child shall live with the mother during school terms.

4. That the parties are restrained from permitting or causing the child to spend physical time with his biological father Mr Sailer (“the father”) unless agreed by the mother and paternal grandmother in advance in writing.

5. That the child shall spend time with the paternal grandmother for school holiday periods as follows:

   (a)for the second half of each Autumn, Winter and Spring school holiday periods; and

   (b)for the second week of each Summer school holiday period and each alternate week thereafter during that school holiday period.

6. That for the purpose of these Orders, the child’s time during school holidays shall commence as follows:

   (a)In the second half of the Autumn, Winter and Spring school holidays at 9.00am on second Saturday of the holidays and conclude at 9.00am on the last Sunday of the holidays; and

   (b)For summer school holidays, at 9.00am on the second Saturday of the holidays at 9.00am seven (7) days later, and shall continue each alternate week thereafter.

7. That the child shall spend time with his parents and grandparents on special occasions each year as follows:

   (a)For Christmas Day:

   (i)from 4.00pm Christmas Eve until 9.00am Boxing Day in odd numbered years with the paternal grandmother and in even numbered years with the mother; and

   (ii)from 9.00am Boxing Day until 4.00pm 27 December in odd numbered years with the mother and in even numbered years with the paternal grandmother;

   (b)That when the child is in their care on Christmas Day, that parent or grandparent shall facilitate the child telephoning the other parent or grandparent on Christmas Day;

   (c)From 9.00am until 5.00pm on Easter Sunday with the paternal grandmother in even numbered years and, if the child is not otherwise in the mother’s care, with the mother in odd numbered years;

   (d)On the birthday of the child (with the parent or grandparent they are not living with on the day):

   (i)if a school day, from the conclusion of school until 6.00pm;

   (ii)if a non-school day, from 1pm until 6.00pm;

   (iii)with that parent or grandparent to be responsible to collect and return the child;

   (e)On the birthday of the child’s siblings (with the parent or grandparent they are not living with on the day):

   (i)if a school day, from the conclusion of school until 6.00pm;

   (ii)if a non-school day, from 1.00pm until 6.00pm;

   (iii)with that parent or grandparent to be responsible to collect and return the child; and

   (f)with the mother on Mother’s Day (if the child is not otherwise in her care) from after school Friday until 4.00pm Sunday.

8. That the child shall communicate with Mother and Paternal Grandmother on the telephone at such times as the child reasonably requests but otherwise each Wednesday between 6pm and 6.30pm and in relation to such communication the Mother and Paternal Grandmother shall:

   (a)ensure that the child is available to receive the telephone call;

   (b)arrange for the child to telephone the other parent or grandparent on the following night if, for any unforeseen circumstances, the child misses the telephone call from that parent or grandparent;

   (c)ensure that the child has privacy during the conversation.

Collection and delivery

1. That except as otherwise ordered, paternal grandmother shall collect the child from and return him to school during times that she has the child.

2. That if the child is not attending school then changeovers shall take place at such location as agreed in writing between the mother and paternal grandmother but failing agreement the paternal grandmother shall collect the child from the mother at McDonalds Town D at the commencement of the time and the mother shall collect the child from the paternal grandmother at McDonalds Town E at the conclusion of the time.

3. That the mother and paternal grandmother shall deliver and return the child’s clothing, school supplies and belongings to each other and the child’s clothing shall be returned in a clean condition.

Specific issues

1. That no party shall consume alcohol to excess or use illegal drugs or use unauthorised prescription medication in the presence of the child or twelve (12) hours prior to the child coming into their care.

2. That each party shall take all reasonable steps to prevent the child coming into contact with any person who is intoxicated, under the influence of illegal drugs or unauthorised prescription medication or a person who has consumed illegal drugs or unauthorised prescription medication in the previous 12 hours.

3. That no party shall physically discipline the child.

Dispute resolution

1. That the process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:

   (a)The G Group shall be appointed as Family Dispute Resolution Practitioner;

   (b)The mother, father and/or paternal grandmother shall consult with the Family Dispute Resolution Practitioner at the G Group to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;

   (c)Whoever participates shall pay the costs of the Family Dispute Resolution Practitioner equally;

   (d)In the event that they are unable to for any reason to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;

   (e)The father or paternal grandmother shall choose one (1) of the listed practitioners within seven (7) days of receipt of the list; and

   (f)If the father or paternal grandmother fails to choose then the mother may choose;

2. That unless there are some emergent circumstances, before an application is made to the Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in Order 24 hereof.

3. That all previous Orders and Parenting Plans be discharged.

4. That the Independent Children’s Lawyer is discharged.

5. That pursuant to s121 of the Family Law Act 1975 the Independent Children’s Lawyer be granted leave to provide a copy of the Reasons for Judgment of 9 September 2019 along with a sealed copy of these Orders and the Family Report dated 7 February 2019 to the G Group.

6. That if, within two (2) years of the making of these Orders, an application is made for enforcement or variation of these Orders, including an application by the father to spend time with the child, then, if possible, any judicial determination of any application for interim or final orders should be listed before the Honourable Justice Baumann.

IT IS NOTED:

A.That Orders 12, 14, 17(a), 27-30 have been made by the Court and the remainder have been made with the consent of the parties.

B.That at the time these Orders were made, the father:

a.had discontinued any applications to the Court seeking specific orders;

b.was incarcerated;

c.has demonstrated in the past a genuine interest in the spending time with and developing a relationship with the child; and

d.on untested evidence has had some significant challenges to his functioning regarding his behaviour and use of drugs.

C.That if the father seeks an order of the Court for prescribed orders to spend time with the child, then such application should, if possible, be supported by independent evidence of a forensic character that asserts the father does not present any form of risk to the child at that time and his capacity for relapse into past behaviour is assessed as minimal.

D.That the mother will sign such documents as are necessary to record the father as the biological child of the father on the child’s birth certificate.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sailer & Harley & Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT LISMORE

FILE NUMBER: LEC 700 of 2016

Ms Sailer

Applicant

And

Ms Harley

First Respondent

And

Mr Adlam

Second Respondent

And

Mr Sailer

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. The Applicant paternal grandmother, Ms Sailer, and the Respondent mother, Ms Harley, have been engaged in conflict, at times shaped by litigation in this Court and in an earlier court commenced in December 2016, around what are the future parenting arrangements for X who was born in 2012.  The parties, despite recent Affidavits which raise a number of concerns against each other, offered to the Court today, after some extensive negotiations between the parties, assisted no doubt by their Counsel: Mr Priestly for the grandmother, Ms Smith for the mother and Ms Decle for the Independent Children’s Lawyer, final orders, the effect of which is that X will primarily live with the mother; that the mother will have sole parental responsibility and that the grandmother shall have regular fortnightly time and holiday time, as well as time over special occasions.

2. The parties have agreed on a number of facilitative orders which support the parties managing these arrangements in a way less likely to lead to further proceedings between them. Even when orders by consent are offered to the Court, the Court must be satisfied that the orders are in the best interests of the child. That requirement is enforced by the statute which makes it the paramount, but not only consideration. In determining whether parenting arrangements are in the best interests of a child, the Court is required to give consideration to the factors set out in section 60CC(2) and (3) of the Family Law Act 1975, as well as the objects and principles under which litigation in this country in relation to children are to be conducted.

3. It is a sad factor of this case at this stage that the biological father of X, Mr Sailer, who is now aged 30 years, is unable to participate fully in these proceedings.  So much arises from not only his decision to file a Notice of Discontinuance on 6 May 2019 but also because of his recent incarceration for traffic and drug-related offences, for which he was convicted and for which he is serving a term of imprisonment that may see him released in March next year.  These proceedings have been the subject of two family reports by Ms C, a Family Consultant attached to the Lismore registry.

4. The benefit of Ms C’ reports are that they are spaced some time apart, such that she was able to reflect on the earlier concerns about the mother’s behaviour, previous use of drugs and somewhat chaotic, at times, lifestyle and see how, in Ms C’ words, she had been able to improve herself.  The mother is 27 years of age.  She now has undertaken a number of parenting courses; has completed a certificate in education, which she does on a contract basis as required, and has, further, become a mother to another child, Y, who was born in 2018.

5. There is limited information before the Court as to the nature of her relationship with the father of Y other than it seems to be amicable, but that the child Y lives primarily with the mother.  The recent evidence of the mother’s father, Mr Adlam, reflects that the mother continues to reside in a home with him, but that his role has in fact changed as well, as he says (untested though it might be) that he has observed the improving functionality of his daughter.  I observe in this case, and I have no doubt that Mr and Mrs Sailer, the paternal grandparents, who are committed very much to X (who no longer live together as an intact couple but support each other), would love nothing more than to see their son [Mr Sailer] develop into a better functioning, drug-free and responsible citizen in the same way that the mother has.

6. No doubt their love for their son will support him when he is released from prison.  However, this case is not about Mr Sailer.  This case is about X.  It is to his best interests that the Court’s attention must be directed.  It is a sad reality of even quasi adversarial family law litigation in this county that trial material often is a vehicle by which parties find themselves unable to restrain themselves from making negative comments about the person with whom they are, in a sense, from their perspective, competing.  When allegations are made under oath said to be true, they have a form of indelibility about them; they can hurt.  Parties against whom allegations are made can carry that pain and hurt for some time.

7. It is in some cases appropriate that hard and difficult allegations be raised.  However, as I indicated to all the experienced Counsel at the Bar Table, when it was suggested to me that I would be asked to make final consent orders today, my concern in doing so arises from the manner in which both parties have used their trial material to continue to make hurtful allegations against the other person, many of them historical in nature, and yet some of them quite recent.  In respect of recent allegations, I particularly refer to those made and sworn to be true by the paternal grandmother at paragraphs 72 to 82 of her trial Affidavit.  I do not, of course, ignore the fact that the mother has made some serious allegations against the grandmother and the father.

1. It seemed to me that, to a large degree, many of the allegations that the mother had to deal with against herself caused her to become very defensive.  Rather than just merely denying the allegations or trying to minimise them, she has done something about it.  She deserves, in my view, an enormous amount of credit for that, and I give it to her.  The grandmother, of course, has some concerns about the sustainability of that now behaviour of the mother.  I am not satisfied that the grandmother will easily, having fought so hard and having the responsibilities in relation to two other infant children (who are the children of the father in this case) who are in her care as a result of guardianship orders made by State courts - find it easy to be mute when, as a grandparent, she sees the parenting style of a very young parent, doing so under difficulties, and reflecting upon how she would parent; but she must.

2. But for the orders of the State courts in respect of those children, her parenting role has ceased.  Her parenting role in respect of W and Z continues.  They are aged eight and six, so will continue for some time.  No doubt those children benefit from the love and experience of their grandmother as their primary carer.  However, X’s position is different.  He has, on my assessment - and this order reflects, it seems to me, perhaps a begrudging acceptance by the paternal grandmother - a capable, loving, effective, talented, resourceful and committed parent in Ms Harley.

3. She should be permitted to get on with the job of parenting without having to meet, at times, demands from a loving and caring grandparent whose perspective, although shaped by the best interests of X, has been highly critical of the mother.  In my view, when one looks at the first report, her position was some form of attack that at times was shaped by her desire that her son had a more functioning relationship with the child.

4. Now, as I have indicated in the reasons I have delivered orally today and in discussion with Counsel, I propose to make an order in terms of that recommended by the Independent Children’s Lawyer and the mother at paragraph 15 in the form that the parties are restrained from permitting or causing the child to spend physical time with the father unless agreed by the mother and paternal grandmother in advance in writing because of these Reasons.

5. Firstly, I am satisfied on all the evidence, untested as it is, that the mother has a genuine wish that the father function well enough to play a role in the life of their son.  He has not been able to demonstrate the capacity to do so effectively to date.  But at age 30 and with proper assistance, and with the incentive of having a functioning relationship in the future with his son well into the adulthood of that child, one cannot think of any other incentive he needs to deal with the scourge of the drug use which has caused other lawlessness, it seems, to occur in his life.

6. Secondly, it is important that he gets the message that if he wishes to have a relationship with his son, other than that which the mother, I think, fairly, would agree to at least have supervised in an appropriate way, then he needs to do something with his life.  He may in the future need to demonstrate to the Court that change, and if he can do so, and it is sustainable, then the future of his relationship with X could be very bright.  But he must do the hard work; not his mother; not his father; and not the mother of X.  It is a matter for him.  These Reasons will be published and he will be able to read them.  He may disagree with them.

7. Nonetheless, to at least take some account of my concerns about future applications by the father, if there is disagreement between the mother and his own mother as to how the father shall see X and it needs to be dealt with by a court, I am prepared, at least if an application is made within the next two years, to have the matter initially come to me.

8. I do not lightly indicate that if there was evidence in the future that the grandmother has been unable to transition from a potential primary carer of X to a position of a loving grandmother to X, wanting to maintain a relationship with him and facilitating time between him and his siblings W and Z, then the real concern to X’s emotional behaviour might only able to be dealt with by restricting the amount of time the grandmother has with the child.  It is my hope that that will never come to pass.

9. In my view, the orders that the parties have generally agreed to are in the best interests of the child, subject to the three discrete issues upon which they could not agree which I will give reasons on now.  I cannot say that I have no reservations at all about the capacity for the mother and the paternal grandmother, as the major person in the paternal side of the family, being able to put down their weapons of war, something Ms C called “tribal warfare”, and focus on the best interests of X.

10. I do have some concerns, but I take on board the considered submissions of Ms Smith, Mr Priestly and of course the Independent Children’s Lawyer who supports these orders, that a combination of the end of litigation and the hope that these essentially good people want the very best for X, will mean they find ways to compromise in the future, where they have not in the past.  The benefit of facilitative counselling at the G Group in Town E should give me some confidence that these parties will not return to the Court.

11. There are three areas upon which there was significant dispute which are important and need to be ruled upon.  I deal with them sequentially as follows:

    a)A dispute arises as to when alternate fortnight term time should cease.  The mother and the Independent Children’s Lawyer support changeover occurring at 4.00pm on the Sunday before school is recommencing.  The grandmother would ask that the Court extend that time to before school on Monday.  Each of the Counsel on the papers has referred to the principles that need to be applied and from those submissions I distil the following matters.  Whilst changeovers other than at school are to take place at a public location, being McDonald’s at either Town D or Town E, depending on whether it is at the commencement or conclusion of time, I agree that changeovers at a school offer a neutral, nonconflictual venue where parties do not have to both be present and which allows the child to naturally move from one household to the other on a school day.

    b)There is, however, the other factors, including the mother’s view that as the person with sole parental responsibility and with the primary care of X (who is to enter grade two next year), a maintenance of the current regime that has been in place for his school term time, since he started school of finishing on a Sunday, will be the continuation of an agreed and understood regime by the child with which he copes well.  This is not about nights.  I accept that the benefit of extended time on a Sunday night would be to extend the amount of time that the child would have available with his siblings, W and Z.  It does seem to me that for the children of this age, who are going to two different schools on the Monday morning, the quality of that time is probably not as significant as the time spent engaged in activities on a Saturday and Sunday as he currently does that is currently available to him.  I therefore do not think this is a huge factor for children of this age.  There is no reason why, of course, as time moves on, as the child’s needs change, that the parties could not agree on varying these orders without having to come back to the Court.  At this stage however, I am persuaded on the evidence that it is in the best interests of X that the time cease at 4.00pm on a Sunday.

    c)In that way, the mother, who has the responsibility for X’s schooling, his uniform and preparing him, can continue to do as she is doing now.  It avoids conflicts about uniforms being returned and the like.  He lives proximate to his school, living with the mother at Town D.  It involves less travel on the Monday morning.  In all those respects, I do not see those benefits as being outweighed by the benefit that would come from having an additional night per fortnight in the grandmother’s care.  I also take on board the fact that these arrangements might ultimately change when the father is back functioning well.  So, at this stage, I do not propose to make the change now.

    d)I have already indicated the reasons why I propose in order 15 to make an order that the parties are restrained from permitting or causing the child to spend physical time with the father unless agreed by the mother and paternal grandmother in advance in writing.  I will provide a notation, which I will dictate shortly, which I would ask the ICL to incorporate in the order that she will be asked to send to my associate, something which gives some guidance to the father about how he might deal with future applications, having indicated that I was not prepared to make an order as proposed by all parties at paragraph 28.

    e)The other issue that remains in dispute is Christmas.  I am mindful of the fact that the child has, at only six and a half, cognitively spent Christmas morning and Christmas lunch effectively with his mother and her family, since separation.  This child does have, of course, a paternal and a maternal family.  Christmas is often an opportunity for wider families to get together.  It is important that children have a sense of their extended family as it identifies their roots before they develop their wings.  My concern with the proposition that there be a changeover at 2.00pm on Christmas Day, as the mother proposes, and, to be fair, each alternate year, is that it is a time that really is fairly impractical to most families celebrating Christmas Day.

    f)The benefit to a young child, who often gets up early on Christmas morning and who by late in the afternoon are somewhat flagging, being asked to transition from one household to another through McDonald’s is, in my view, limited.  Of course it would be nice if the day of Christmas Day, which is significant to many people in the Christian calendar, but seemingly not a matter where he practices his faith at this stage, could spend it in a happy family situation.  This is not a happy family situation.  In my view, it is in the best interests of X as we move forward to have changeovers at Christmas on Boxing Day morning at 9.00am.

    g)So it will continue until 9.00am on Boxing Day and the following year, same thing.  So the Christmas experience for - it should really go from maybe 4.00pm on Christmas Eve to 9.00am Boxing Day one year, then from 9.00am Boxing Day to - it can be to the 27th.  It will go for Boxing Day, Boxing Day night and into the 27th so that that period of about four days is split up.  Now, whilst I should not have to order this, I would expect that when the child is in the care of the mother for Christmas Day under the orders, that she would facilitate a telephone call by the child to the grandmother and to his siblings.  Similarly, I would expect when the child is in the care of the grandmother on Christmas Day that she would facilitate a telephone call to the mother and his sibling Y.  In my view, an order of this form, being a final order, is least likely to lead to further proceedings as the child gets older.

12. Otherwise the orders pronounced and set out at the commencement of these Reasons are, in my assessment, in the best interests of X.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 9 September 2019.

Associate:

Date:  2 October 2019