Savina and Camilleri
[2009] FMCAfam 943
•17 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAVINA & CAMILLERI | [2009] FMCAfam 943 |
| FAMILY LAW – Parenting – 7 year old child – mother deceased – maternal grandmother seeking to spend time with child – strained relationship between father and maternal grandmother – stress of child spending time with maternal grandmother. |
| Family Law Act 1975, ss.60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 64B, 65C, 65D, 65DAA |
| In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 McKenzie & Edwards [2006] FamCA 1314 Potts & Bims & Ors [2007] FamCA 394 Sampson & Jacks [2008] FamCA 176 Jacks & Sampson [2008] FamCAFC 173 |
| Applicant: | MS SAVINA |
| Respondent: | MR CAMILLERI |
| File Number: | WOC 565 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 26 August 2009 |
| Date of Last Submission: | 27 August 2009 |
| Delivered at: | Wollongong |
| Delivered on: | 17 December 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Autore |
| Counsel for the Respondent: | Mr Maurice |
| Solicitors for the Respondent: | DGB Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Macpherson |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
THE COURT ORDERS THAT
The respondent MR CAMILLERI (“the father”) have sole parental responsibility in relation to the child [X] (“[X]” or “the child”) born [in] 2002.
[X] live with the father.
[X] spend time with the applicant MS SAVINA (“the maternal grandmother”) at such times as agreed between the father and maternal grandmother.
The maternal grandmother may post to [X], or otherwise cause to be forwarded to [X], birthday and/or Christmas cards and/or presents from time to time.
The father shall give to [X] all items received as is referred to in Order 4 herein and shall give those items to the child within twenty-four (24) hours of his receipt of such items.
Each party is retrained from making critical, derogatory remarks about the other party or members of their family in the presence or within the hearing of the child.
Each party do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of the child.
Each party forthwith make contact with Relationships Australia at 63B Market Street Wollongong to arrange an appointment as soon as reasonably practicable for an initial post separation parenting assessment.
Each party forthwith confirm to the Independent Children’s Lawyer that the appointment required by Order 8 herein has been made.
The parties attend all appointments and complete all necessary assessments as required by Relationships Australia at any reasonable location and time as nominated by that organization.
If assessed as suitable by Relationships Australia to attend counselling, mediation and/or a specified program (which may include a child inclusive program), each party must attend and undertake such counselling, mediation and/or specified program (as directed) as soon as is reasonably practicable.
Following confirmation by both parties of the securing of an appointment with Relationships Australia pursuant to Order 9 herein, the appointment of the Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed.
AND THE COURT DIRECTS THAT:
The Independent Children’s Lawyer is at liberty to provide Relationships Australia with a copy of the family report of Dr Anne Hollingworth dated 3 June 2009 and a copy of the reasons for judgment delivered 17 December 2009.
AND THE COURT NOTES THAT:
B.It is intended that the counselling, mediation and/or specified program referred to in Order 11 herein address the parties’ communication difficulties. The aim is to re-establish a co-operative and supporting parenting arrangement necessary for the responsible parenting of the child.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Savina & Camilleri is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
WOC 565 of 2008
| MS SAVINA |
Applicant
And
| MR CAMILLERI |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an unusual and unfortunate case concerning seven year old [X] (“[X]” or “the child”) born [in] 2002. It involves a parenting dispute between the applicant, MS SAVINA (“[X]’s grandmother” or “the maternal grandmother”) and the respondent, MR CAMILLERI (“[X]’s father”). [X] was just four years old when his mother MS CAMILLERI died from a brain tumour. This tragic event appears to be the catalyst for the particular dispute before the Court and the broader family dispute that exists between [X]’s paternal and maternal kin.
The maternal grandmother is asking the Court to make various parenting orders under the Family Law Act 1975 (“the Act”). [X]’s father asks the Court to dismiss his mother-in-law’s application. The essence of the dispute is whether [X] should spend any time or otherwise communicate with the maternal grandmother, and if so, under what circumstances.
The matter initially came before Altobelli FM on 11 November 2008. On that occasion his Honour made an order requiring the parties to attend a child dispute conference with a Family Consultant pursuant to section 11F of the Act. The parties duly attended before Family Consultant, Ms Maree Keating, on 8 December 2008 but were unable to resolve their differences. In her client dispute conference memorandum dated 8 December 2008, Ms Keating records that
“Mr Camilleri does not support the child spending any time with Ms Savina [sic]”. Ms Keating also adds the following notation to her memorandum:
“… high level of anger and distrust between maternal and paternal families. It is noted that the maternal grandfather spends time with the subject child.”
Given this notation, it is not surprising that Ms Keating goes on to recommend the appointment of an Independent Children’s Lawyer (“ICL”).
When the matter returned before Altobelli FM on 12 December 2008, his Honour indeed made an order for the appointment of an ICL and further adjourned the matter for mention on 5 February 2009.
Following a further adjournment of the matter on 5 February 2009, Brewster FM made orders on 25 March 2009 for the appointment of a “Regulation 7 Expert” to prepare a family report in this matter.
Dr Anne Hollingworth was subsequently appointed by the Court’s Dispute Resolution Manager to complete the required report.
Dr Hollingworth subsequently conducted her interviews at the Wollongong Registry on the 25 May 2009.
The matter returned before Brewster FM on 3 June 2009 where his Honour made orders releasing the Dr Hollingworth’s family report dated 1 June 2009 and setting the matter down for a final hearing on a date to be notified.
The matter came before me for final hearing over two days on 26-27 August 2009. At the final hearing all parties will legally represented; Mr Autore appeared for the maternal grandmother, Mr Maurice of counsel appeared for [X]’s father and the Mr Macpherson of counsel appeared for the ICL.
Background
[X]’s grandmother was born [in] 1949 and is currently aged 60 years. In 1966 she married Mr S and they subsequently had three children; Ms Camilleri, Mr O and Mr F. [X]’s grandmother and Mr S separated in 1987 and divorced in 1990.
[X]’s father born [in] 1964 and is currently aged 45 years. [X]’s mother, Ms Camilleri (“Ms Camilleri”), was born [in] 1967 and tragically died [in] 2007 after a short illness.
[X] was born [in] 2002. He is the respondent’s only child and the first grandchild of the maternal grandmother. [X] was baptised [in] October 2002 and his maternal uncle Mr O, and his wife Ms S, were named as his ‘God-parents’.
Since Ms Camilleri’s death, [X] has been in the full-time care of the respondent father. It appears that the maternal grandmother has rarely seen [X] since his mother’s death[1]. [X]’s grandmother indicates in her Case Outline filed in Court on 26 August 2009 that the last personal contact she had with her grandson was on 27 July 2007.[2] Prior to
Ms Camilleri’s death, the maternal grandmother asserts that she “saw [X] every day…except weekends.”[3] The father denies that [X] spent that amount of time with the maternal grandmother.[4]
[1] Dr Anne Hollingworth, Family Report, 1 June 2009 (‘Family Report’), page 5.
[2] Case Outline of the maternal grandmother filed 26 August 2009, page 4.
[3] Affidavit of the maternal grandmother sworn 27 May 2008 and filed 19 November 2008, paragraph 11.
[4] Affidavit of the father sworn 17 November 2008 and filed 18 November 2008 (‘his initial affidavit’), paragraph 31.
Proposals of the parties
In her Application for Final Orders filed 18 June 2008 (and her Application in a Case filed the same day) [X]’s grandmother sought several orders, including that she have “contact” with the child from, inter alia, Saturday at 9:00 am until Saturday at 5:00 pm and overnight for one half of all the school holidays.
[X]’s grandmother substantially altered her proposed orders in her Case Outline filed at the trial. In this document she sought the following orders:[5]
[5] Case Outline of the maternal grandmother filed 26 August 2009, pages 11-12.
“That the child [X] have contact with the Maternal Grandmother:
1. 1 weekend each calendar month: being the first weekend of each month from 9am Saturday - Sunday 5pm
2. In addition [X] spend with the Maternal Grandmother:
a. From 10am-5pm on the first Sunday following [X]’s birthday
b. From 10am-5pm on the first Sunday following the grandmother’s birthday ( August).
c. Boxing day From 12:00pm-7:00pm
d. Easter Monday from 12:00pm-7:00pm
3. That the child [X] receive 1 telephone call every 2nd Monday between the hours 6:00pm-7:00pm from his maternal Grandmother Ms Savina
4. That in addition to the fortnightly telephone contact [X] receive a telephone call from the maternal grandmother:
a. On [X]’s Birthday between 10am-11am
5. The child [X] receive mail from his Maternal Grandmother
Ms Savina
6. The Maternal Grandmother to receive a copy of school photos and school report each year in relation to [X].
7. That the Maternal Grandmother have the opportunity to attend school or extra-curricular activities that it would be anticipated grandparents would attend including but not limited to special presentations, school concerts, grandparent days.
8. That the parties be restrained from denigrating the other in the presence of [X] or within [X]’s hearing, or permit any other person to do so
Notation A: For the purpose of facilitating Order 6 & Order 7. That the father authorise the Maternal Grandmother to contact the school so she can arrange copies of school photos and school report, and to arrange her attendance at school functions.”
In his Response to Initiating Application, filed 18 November 2008 (and in addition to interim procedural orders and orders for the preparation of a family report), [X]’s father sought the final order that “the Application filed 18 June 2008 be dismissed.” This was the same single order sought by [X]’s father in his Case Outline document filed 25 August 2009.
In their “Orders proposed by the Independent Children’s Lawyer” document provided to the Court on 24 August 2009 together with their Case Outline filed the same day, the ICL proposed the following orders:
“1. That the Father has sole parental responsibility in relation to the care, welfare and development of a long term nature involving the child [X] born [in] 2002.
2. That the child shall live with the father.
3. That the father shall have sole parental responsibility for making decisions about the child’s day to day care, welfare and development during the times the child is living with the father.
4. That the child may spend time with the maternal grandmother at such times as agreed upon between the father and maternal grandmother from time to time.
5. That the Maternal Grandmother may post to or otherwise cause to be forwarded to the child Birthday and/or Christmas Cards and/or presents from time to time.
6. That the Father shall give to the child all items received as is referred to in Order 5 above and shall give those items to the child within 24 hours of his receipt of such items.
7. That each party shall refrain from making critical, derogatory remarks about the other party or members of their family in the presence or within the hearing of the child. Each party shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of the child.
8. That each of the parties shall, within seven (7) days of the making of these Orders, make contact with Relationships Australia at 63B Market Street Wollongong to arrange an appointment as soon as reasonably practicable for an initial post separation parenting assessment.
9. The parties must attend any appointments at any reasonable location and time as nominated by Relationships Australia and each shall complete all necessary assessments.
10. If assessed as suitable and Relationships Australia nominate counselling, mediation and or a program to attend which may include [a] child inclusive program, each of the parties must attend and undertake the appropriate program (as the provider directs) as soon as is reasonably practicable.
11. That it is intended that the program with Relationships Australia is intended to address the parties communication difficulties. The aim is to re-establish a co-operative and supporting parenting arrangement necessary for the responsible parenting of the child.”
Family Report
As previously stated, an extensive family report was prepared by Family Consultant Dr Anne Hollingworth on 1 June 2009 (“the report”). The report was tendered by counsel for the ICL and marked as exhibit “ICL1”. Dr Hollingworth was cross-examined at the final hearing in relation to the report.
In addition to [X] and the parties, Dr Hollingworth conducted interviews with the following people:
·Ms Z, [X]’s paternal aunt;
·Mr S, [X]’s maternal grandfather (and former husband of the applicant);
·Ms C, Mr S’s wife;
·Mr C, [X]’s paternal grandfather;
·Ms D, [X]’s paternal grandmother;
·Mr M, the applicant’s partner;
·Mr O, [X]’s elder maternal uncle;
·Ms S, Mr O’s wife; and
·Mr F, [X]’s younger maternal uncle.
The background to the dispute is set out in Dr Hollingworth’s report in paragraphs 4 to 8. Dr Hollingworth confirms the family tension and animosity that exists between [X]’s maternal and paternal kin, and in particular, between [X]’s father and the maternal grandmother.
[X]’s current living arrangements are set out in Dr Hollingworth’s report in paragraphs 9 to 11. [X] and his father currently live with
[X]’s paternal aunt, Ms Z, her husband Mr P, and her daughter [Y] aged 13.[6] [X] also spends time after school with his paternal grandparents (on Mondays, Tuesdays and Thursdays) and with his maternal grandfather and his wife (on Wednesdays and Fridays).[7] At paragraph 11
Dr Hollingworth states:
“There are no current contact arrangements for [X] to see maternal kin. Thus far it has not been possible for this to be arranged informally, via mediation or by consent orders.”
[6] Family Report, paragraph 9.
[7] Ibid, paragraph 10.
Dr Hollingworth’s interview and observations of [X]’s father (and [X]’s extended family supporting his father) are set out in paragraphs 13 to 21 of her report. Dr Hollingworth describes the husband as “polite, friendly and cooperative with the assessment process.” It is clear from the interview with [X]’s father, and [X]’s paternal kin, that they believe that the maternal grandmother “had behaved extremely badly at the time Ms Camilleri was dying”; she had disrespected [X]’s father and “had not shown enough maternal devotion” in the time leading up to, and following, her daughter’s death.[8] Dr Hollingworth goes on to describe [X]’s father as “not highly child focused”.[9] She states that [X]’s father:
“… seems to still feel very aggrieved by events surrounding his wife’s death. His own strong feelings about his wife’s death, may cloud his vision so that he could not see things clearly from his child’s point of view.[10]
[8] Ibid, paragraphs 15-16.
[9] Ibid, paragraph 20.
[10] Family Report, paragraph 21.
Dr Hollingworth’s interview and observations of [X]’s grandmother (and [X]’s extended family supporting his grandmother) are described at paragraphs 22 to 39 of the report. Dr Hollingworth describes the maternal grandmother as “fully cooperative with the assessment process, pleasant and emotionally restrained in manner”.[11] At paragraph 23, Dr Hollingworth states:
“Ms Savina told me that she regretted things that happened between herself and Mr Camilleri at the time of her daughter’s death and that she wanted everybody to be able to forgive and forget so that the child could have contact with his mother’s family, as well as his father’s family. She appeared to understand that Mr Camilleri might not feel the same way and that it was also beyond the power of the court to change how Mr Camilleri feels.”
[11] Ibid, paragraph 22.
It was clear from Dr Hollingworth’s interview with the maternal grandmother that she believes that her ex-husband, Mr S, is “continually stirring things up” and that this may be relevant in [X]’s father’s decision to refuse her spending any time with her grandson.[12] This view appears to be shared by [X]’s younger maternal uncle, Mr F, who stated to Dr Hollingworth that his own “father’s hostility towards his mother is making this rift worse”.[13] Interestingly, Dr Hollingsworth reported that [X]’s elder maternal uncle Mr O, and his wife Ms S:[14]
“… appeared to feel that, as the parents, it was their right to determine who they wanted included in their [own] children’s lives. They wanted to exclude Mr S. Ms S said she would not be willing for her children to have unsupervised contact with Mr S. She would have to be present to ensure their comfort and well-being.”
In his oral evidence, Mr O indicated that his children are now spending some time with his father.[15]
[12] Ibid, paragraph 27.
[13] Ibid, paragraph 31.
[14] Ibid, paragraph 35.
[15] Transcript, 26 August 2009, pages 55-57.
Dr Hollingworth describes her interview with [X], and her observations of [X] with the maternal grandmother, in paragraphs 44 to 49 of her report. At paragraphs 46 to 47 she states:
“46. It is too confronting to ask children their residential preferences directly. I canvassed indirectly by talking with [X] about people in his family and also via a projected activity. We talked about how often he visits his grandparents and cousins and how much would be good to see them. He said it would be good to see his Nonno and Nonna every week. (In this he appeared to be generically referring to both grandfathers.) We discussed how often would not be too often to see other people in the family. He nominated different amounts of time for various people. I asked him when it would be good to see his other Nonna, Ms Savina. He looked down and said, “Never”.
47. Then I got [X] to look at the Bear Cards and choose bears for people in his family. The bear cards show people in different moods and attitudes (sad, scary, angry, friendly, happy, joyous, etc) [X] chose bears for his grandparents, his father and his aunt, all of whom were friendly and welcoming. He chose one also to be Ms Savina with arms crossed over her heart and a tear running down her face. He appeared to find all the adults in his life supportive and to feel trust and affection towards them.”
In relation to her observation of [X] with his maternal grandmother (and related extended family), Dr Hollingworth states at paragraph 49:
“… she greeted [X] in a friendly manner, and he looked up and greeted her. He did not rise to embrace her. Ms Savina’s eyes filled with tears to see him, but she did not overwhelm the child with any demands for an embrace. She began calmly asking questions about how he was doing, schooling etc. [X] showed no aversion towards his grandmother. His manner was warm but aloof. Overall, [X] seemed well disposed towards his grandmother. He made no attempt to leave. I had left the door open and made it clear to the child that he could leave at any time under the escort of his elder cousin [Y]. After a period of chit chat I suggested to [Y] that she might like to take [X] back outside. Ms Savina waited while we departed. I noticed while he was passing through the waiting area [X] did not greet his paternal uncles or cousins.”
Dr Hollingworth provides her extensive evaluation in paragraphs 50 to 65 of her report. In paragraph 52 of the report she states:
“When Ms Camilleri was dying, there appears to have been a competition about which family she really belonged to (her family of origin or her husband’s family?) and who, consequently, was her rightful protector and chief mourner – the husband or her mother? Mr Camilleri and Ms Savina (and probably other family members too) were mad with grief. They lashed out without thinking. Things happened which should not have happened. Things were said which should not have been said. Both sides seemed to have treated the other with disrespect. As a result, deep distrust has sprung up. The flames of anger might die down with time, if they were not being fanned.”
At paragraph 54 of the report, Dr Hollingworth states:
“Ms Savina and her two sons and daughter-in-law may or may not be right in believing that Mr S’s grudge against Ms Savina is inflaming the family feud. Whenever there is a fight in a family, people seek supporters. People take sides, and not always for altruistic motives. Once people have taken sides and are asked to defend a point of view, they increase their allegiance to that point of view, every time they argue for it. Over time the situation becomes more and more polarised as each side keeps tally of the “wrongs” done to their “rights”. In families there is a long ledger book, sometimes spanning generations.”
At paragraphs 55 and 56 of the report, Dr Hollingworth states:
“55. Unfortunately, Mr Camilleri feels significant acrimony towards Ms Savina. His feelings may soften in time, but that is the way it is right now. His son, [X], may not feel the same animosity towards his grandmother on his own behalf. However, having witnessed ugly exchanges between his father and his grandmother, having witnessed the police coming to his home for his father, having lost his mother, it is only to be expected that a young child like [X] would cling tightly to the parent he has left. Being aware of his father’s conflict with his grandmother, as a loyal son, [X] must declare a reluctance to have anything to do with his grandmother, no matter what he truly feels. I suspect he may secretly wish to see his grandmother, uncles and cousins, but he cannot say so. [X]’s dilemma should be acknowledged and his loyalty respected. He is a good son.
56. On the other hand, children need and deserve to know about both sides of their lineage. Mr Camilleri told me at the interview that if [X] ever asked to see his maternal kin, he would not prevent the child from doing so. However, the frequency of contact which the grandmother is asking for is too great given the period of estrangement and the current animosity between the parties.”
At paragraphs 61 to 63 of the report, Dr Hollingworth states:
“61. I am not sure what, if anything, will improve this sad situation, but I'm fairly sure that granting the grandmother’s application will make it worse. Ms Savina does not feel that she was accorded the respect she deserved as Ms Camilleri’s mother, and as [X]’s grandmother. Mr Camilleri does not feel that
Ms Savina respected him as Ms Camilleri’s husband. In order to be able to collaborate again for [X]’s sake, they need an opportunity to show each other they respect the contribution each makes to [X]’s life.
62. Court-ordered contact with handover at Centacare would probably not provide the opportunity. It seems likely to me that Mr Camilleri would take any orders compelling him to allow contact with Ms Savina as disrespect for his rights as a father. He resents the state’s intrusion into his family life and the curtailment of his exercise of parental rights. The court can make orders, but it cannot compel people to obey the orders cheerfully. If
Mr Camilleri had a resentful attitude about complying with orders for [X] to spend time with his grandmother, this attitude would be conveyed to his son. No good could be expected to come to [X] under those conditions.
63. Nonetheless, [X] needs to know his mother’s family loves him and retains an interest in him. Although he will accept his father’s decisions about what is best for him at this stage, when [X] reaches adolescence or early adulthood he may resent his father for severing this link to his mother’s memory. A rift might then open up between [X] and Mr Camilleri. It would be best for all concerned, if a way could be found to respect [X]’s need to feel connected to both sides of his family, without humiliating or coercing anybody.”
Finally, Dr. Hollingworth makes her conclusions and recommendations in paragraphs 66 to 72 of her report. While she certainly recommends that “[X]’s connection with his maternal kin should be maintained (if only by gossamer threads)”, Dr Hollingworth concludes that for any visitation regime to work, the respondent “must feel respected as [X]’s father or the child will not benefit from the time spent with his grandmother and maternal kin”.[16] More specifically, Dr Hollingworth recommends as follows:
“67. Offer Mr Camilleri the option of organizing, on a trial basis for the next six months, a monthly meeting in a suitable public place between Ms Savina and [X], with Ms S as the go-between and visit supervisor. If all goes well, the parties could negotiate future visits thereafter.
68. If this plan fails, [X] should see his grandmother and maternal kin four times per year, with handovers at Centacare. If the child refuses contact after the first two visits, contact should be discontinued until either re-instigated by Mr Camilleri or until [X] is over 10.
69. Christmas and Mother’s Day visits will be too onerous to organize and unlikely to benefit [X] until goodwill increases between the parties.
70. Consideration should be given as to whether there are any suitable interventions which could be offered to this family under the Parenting Orders Program [POP] at Relationships Australia [RA] in Wollongong.
71. If the relationship between Mr Camilleri and Ms Savina cannot be repaired to some minimal level of civility by the end of 2009, then an arrangement should be made whereby [X] can receive birthday and Christmas greetings from his maternal kin and whereby they in turn could receive some news annually of him (e.g. a letter written by the child, samples of his artwork, a school photo). POP at RA in Wollongong may be able to assist.
72. If a civil relationship between [X]’s father and his maternal grandmother cannot be re-established by means of [the] above, then I would strongly advise Ms Savina and her sons to keep [X]’s seat warm until he comes back to them when he grows up. Whenever there is a family gathering, they should set a place at the table for [X] and take a photo of his empty chair to show he is in their thoughts. They should write [X] letters telling him family news and enclosing family photos. They should send him their love every year in Christmas and Birthday Cards. If these messages cannot be delivered, they should still be faithfully prepared and stored. One family member should be chosen to keep [X]’s Archives safely for him. (A copy of this report could be included.) Then [X] will be able to know, that he has never lost his place in his mother’s family.”
[16] Family Report, paragraph 66.
Evidence of the parties
Both parties provided the Court with affidavit and oral evidence and were cross-examined.
In addition, [X]’s elder maternal uncle, Mr O, also gave evidence on behalf of the maternal grandmother but he was not cross-examined by counsel for the father or counsel for the ICL.
[X]’s grandmother’s evidence
The following documents were relied upon by the maternal grandmother:
· her affidavit sworn 27 May 2008 and filed 18 June 2008 (“her first affidavit”);
· her affidavit sworn and filed 22 May 2009 (“her second affidavit”);
· the affidavit of Mr O sworn 11 August 2009 and filed 12 August 2009;
· the affidavit of Ms S sworn and filed 12 August 2009; and
· the maternal grandmother’s Case Outline document filed in Court on 26 August 2009
[X]’s father’s evidence
In support of his response filed 18 November 2008, the father relied upon:
·his affidavit sworn 17 November 2008 and filed 18 November 2008 (“his initial affidavit”);
·the affidavit of Ms Z, sworn 17 November 2008 and filed 18 November 2008;
·the affidavit of psychologist Ms T sworn 17 November 2008 and filed 18 November 2008, attaching the report of Ms T prepared following consultations with the father and dated 30 October 2008;
·the affidavit of Mr S sworn and filed 6 August 2009;
·the supplementary affidavit of the father sworn 5 August 2009 and filed 6 August 2009 (“his supplementary affidavit”); and
·his Case Outline document filed 25 August 2009.
The ICL’s evidence
The ICL relied on the following documents:
·the Case Outline document (titled “Independent Children’s Lawyer document”) filed on 24 August 2009; and
·the “Orders proposed by Independent Children’s Lawyer” provided to the Court on 24 August 2009.
The report writer’s evidence
As previously indicated Dr Hollingworth’s report was tendered in evidence by the counsel for the ICL and it was admitted and marked Exhibit “ICL1”.
As previously stated, Dr. Hollingworth was cross-examined by the maternal grandmother’s solicitor and counsel for [X]’s father.
In his cross examination of Dr Hollingworth, Mr Autore for the maternal grandmother asked the witness about his client’s amended application seeking to spend time with [X] once a month;
Dr Hollingworth responded:
“It’s much less than what Ms Savina was asking for beforehand. However, it doesn’t change my view that while Mr Camilleri is opposed to [X] having contact with his grandmother, this will stress the child.”[17]
Dr Hollingworth went on to state that while she was not suggesting that [X] should not spend time with his grandmother, it would be “absolutely intolerable” for [X], at this stage in this life, to have to make the decision to spend time with his grandmother and his maternal kin.[18] Dr Hollingworth maintained that, despite [X]’s right to spend time with extended family such as the maternal grandmother, any Court orders enforcing such an outcome would be “unworkable”, unless they have the support of [X]’s father.[19] She went to state than in her view, it would not be in [X]’s interest to have contact with his maternal side of the family “if it is stressful to him” to do so.[20]
Dr Hollingworth did agree with the suggestion by Mr Autore that in order for [X] to have any beneficial contact with his mother’s side of the family [X]’s father needed “to put things aside and move forward”.[21]
[17] Transcript, 26 August 2009, page 69 (lines 41-43).
[18] Ibid, page 70 (lines 15-27).
[19] Ibid, page 70 (lines 3-45) and page 71 (lines 1-47).
[20] Ibid, page 73 (lines 9-10).
[21] Ibid, lines 20-21.
In his cross-examination Mr Maurice for [X]’s father advised
Dr Hollingworth of what I will describe as the détente now existing between Mr O and his father Mr S that has lead to the Mr S spending some time with Mr O’s children.[22] Mr Maurice then suggested that, and Dr Hollingworth agreed, “that is an appropriate model … to try and resolve this type of problem” between [X]’s father and the maternal grandmother.[23]
[22] Ibid, lines 31-47.
[23] Ibid, page 74 (lines 1-2).
Dr Hollingworth was later asked by Mr Maurice to elaborate on her earlier suggestion that any Court order requiring [X] to spend time with his grandmother, in the absence of support from [X]’s father, may be stressful to the child:
“It would be very stressful for him, because I would expect that, out of loyalty – because he is a polite, compliant little boy, if he is told to go there and his father politely says “go there” and encourages him, I would expect him to go along with it and feel a bit anxious. If his father can happily support it and hide all his dislike of it, he might be able to cope with it, although I should think, to begin with, he would feel like he is walking on eggshells. But if that’s not the case, it will be stressful for [X] and I would imagine that after one or two visits he would probably refuse to go again.”[24]
Dr Hollingworth also agreed with Mr Maurice’s suggestion that would be unlikely [X]’s father would be able to disguise or otherwise hide from [X] his true feelings about his son spending time with [X]’s grandmother.[25]
[24] Transcript, 26 August 2009, page 76 (lines 19-26).
[25] Ibid, lines 28-32.
The Full Court of the Family Court’s decision of In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713; contains an authoritative statement about how reports such as the one written by
Dr Hollingworth should be treated in proceedings such as this case:
“In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182; 11 ALR 657; [1976] FLC 90-098 at 75,447; In the Marriage of Harris Fam LN No 33; (1977) 29 FLR 285; [1977] FLC 90-276.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.”
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[26]
[26] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-615; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
In this matter Dr Hollingworth’s evidence was tested and not found wanting in relation to her recommendations. In addition, as
Dr Hollingworth is the only independent and expert party in these proceedings, the Court must give the report and her oral evidence considerable weight.
The law
The Court is being asked to make specific parenting orders in relation to these proceedings. More specifically, the Court is asked to determine whether [X] should spend any time or otherwise communicate with the maternal grandmother, and if so, under what circumstances.
Under section 65D of the Act, the Court has the power to make a parenting order “as it thinks proper.” Parenting orders are defined in section 64B of the Act and deal with matters such as where the child is to live and the time the child is to spend with another person. Parenting orders may also allocate parental responsibility in relation to a child.
Under section 65C of the Act, a parenting order may be applied for by:
“(a)either or both of the child’s parents; or
(b)the child; or
(ba)a grandparent of the child; or
(c)any other person concerned with the care, welfare or development of the child.”
The specific inclusion of “a grandparent of the child” in section 65C(ba) is noteworthy in this case. Although this specific provision was only inserted into the Act by the amendments that commenced in 2000,[27] grandparents still had capacity to seek parenting orders under section 65C(c) (and its previously enacted equivalent provisions) on the basis that the grandparent was a “person concerned with the care, welfare or development of the child”.
[27] As amended by Family Law Amendment Act 2000 (Cth), Schedule 3, section 45.
Section 61DA of the Act incorporates a presumption that the Court is required to consider when making a parenting order. That is, the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility. Of course, the tragic death of [X]’s mother means that [X] only has one surviving parent – his father. In any event there is no apparent disagreement between the parties that [X]’s father should retain sole parental responsibility for [X]. Consequently, considerations such as section 65DAA of the Act have no relevance in the context of the current dispute.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the child as the paramount consideration. The issues that arise for this purpose are the primary and secondary considerations that the Court must take into account under section 60CC of the Act. What is considered to be in the best interests of the child in these types of cases necessarily depends on the particular circumstances in each case. In each case different circumstances require different resolutions.
Before turning to a consideration of the primary and additional considerations and factors in section 60CC(2), (3) and (4) of the Act in the context of this case, I note that the solicitor for the maternal grandmother referred me to a number of authorities where the Family Law Courts have considered the issue of a child spending time with grandparents. Most notably is the relatively recent case of Samson & Jacks [2008] FamCA 176 (“Samson & Jacks”), a decision of O’Ryan J,[28] which involved a dispute between the parents and the maternal grandparents over whether the parent’s children should spend time with the maternal grandparents. In his decision, O’Ryan J referred to the revised Explanatory Memorandum that accompanied the 2006 shared parenting amendments to the Act, and in particular at paragraph 30 of his decision, his Honour noted the following provisions:
[28] An appeal against his Honour’s decision was dismissed: see Jacks & Sampson [2008] FamCAFC 173 (per Coleman, Boland & Stevenson JJ).
“[39] Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child’s life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children. (emphasis added)
…
[58] New paragraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with a modification. Existing paragraph 68F(2)(b) provides that where the court is determining the best interests of the child, it must consider the nature of the relationship with each of the child’s parents and with other persons. This provision has been modified to include an explicit reference to grandparents or other relatives of the child. This change further ensures that the court recognises the importance of the relationships that the child has with their wider family, in particular grandparents. (emphasis added)
…
[60] Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification. Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to grandparents or other relatives. The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child’s circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship. New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives. This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents. (emphasis added)
…
[62] Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification. Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents or other relatives. This provision provides that in determining the best interests of the child, the court should consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs. The amended paragraph 60CC(3)(f) recognises the importance of the relationships that the child has with wider family, in particular grandparents. (emphasis added)
...
[151] Item 17 also gives greater recognition to the important role that grandparents and other relatives play in a child’s life. In particular, subsection 63C(2A) specifically provides that a parenting plan may provide for a child spending time with or communicating with the grandparent or other relative of a child. This change is consistent with the amendments to recognise the need to consider the benefit to the child of greater involvement of extended family members.] (emphasis added)”
It is interesting in the context of the case before me that O’Ryan J ultimately decided in Sampson & Jacks against making an order for the relevant children to spend time with the maternal grandparents. This was also the recommendation of the court appointed psychiatrist. His Honour concluded that it was in the children’s best interests that the parties engage in a “process … to work through the issues”[29] that included counselling and allowing the maternal grandparents to “send gifts and cards to each of the children for events such as the birthdays of the children, Easter and Christmas”.[30] In reaching his decision his Honour stated (at paragraphs 145-146):
“145. A very important matter relied upon by the parents is the need to protect each child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. Whatever may have been the Mother’s experience I am not satisfied that the children would be abused or at risk of harm if in the care of the grandparents. The children would not be exposed to physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
146. I am however satisfied that if I made an order that the children spend time with the grandparents it could have the potential to create a possibility of risk of harm for the children whilst in the care of the Mother because of the emotional distress experienced by the Mother and the cascading effect of this on the children or affect her capacity to properly parent the children.”
[29] Samson & Jacks [2008] FamCA 176 at [151].
[30] Ibid, at [152].
Now returning to the relevant statutory considerations in the context of this case, I note that the ‘primary considerations’ are set out in section 60CC(2).
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
This case is somewhat unusual in that the dispute is not between [X]’s parents but rather between [X]’s father and [X]’s maternal grandmother. Therefore this provision has no specific relevance to the present dispute.
The Court does not accept the maternal grandmother’s submission that in the context of section 60CC(2)(a), and given [X]’s mother’s death, “there may be other persons who may assist in partly carrying out the role model of the mother”.[31] The primary consideration relates to a child having a meaningful relationship with both of the child’s parents, and not a parental substitute. The word ‘parent’ must be strictly read.[32] Nevertheless, as Kay J stated in McKenzie & Edwards [2006] FamCA 1314, “the legislature [has] made it clear that grandparents are significant in children’s lives, or can be significant in children’s lives”.[33] This of course arises in the context of children’s rights, and not in the context of the rights of others including parents and grandparents. Under section 60B(2)(b) of the Act, [X] has a right:
“… to spend time on a regular basis with, and communicate on a regular basis with, … other people significant to [his] care, welfare and development (such as grandparents and other relatives)”.
In addition, [X] has a right under section 60B(2)(e):
“… to enjoy [his] culture (including the right to enjoy that culture with other people who share that culture)”.
These fundamental rights of the child are subject to a proviso that it must not be “contrary to the child’s best interests”. Consequently the Court agrees with the ICL’s submission that, as a general proposition, there is benefit to [X] having a meaningful relationship, not just with his father, but with his extended family, provided of course that it is in [X]’s best interests.[34]
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[31] Case Outline of the maternal grandmother filed 26 August 2009, page 5.
[32] Potts & Bims & Ors [2007] FamCA 394 per Moore J at [8]; Sampson & Jacks [2008] FamCA 176 per O’Ryan J at [18] and [23].
[33] McKenzie & Edwards [2006] FamCA 1314 at [35].
[34] Case Outline of the ICL filed 24 August 2009, page 8.
The Court agrees with the ICL’s submission that [X] needs to be protected from the hostility and conflict that exists between his maternal and paternal kin.[35] The relationship between [X]’s father and [X]’s grandmother clearly remains strained. The parties’ disagreement over whether [X] is still suffering grief following his mother’s death (as evidenced by their respective submissions in relation to this specific factor) only goes to highlight their poor relationship.
[35] Ibid.
The Court is persuaded by Dr Hollingworth’s opinion that it would not be in [X]’s interest to have contact with his maternal side of the family if that was to place the child under unnecessary stress in his relationship with his father. Nevertheless, the Court also acknowledges Dr Hollingworth’s prognosis that should his father continue to stand in the way of any reconciliation between the respective families, then “when [X] reaches adolescence or early adulthood he may resent his father for severing this link to his mother’s memory”.[36] Of course, an adolescent or adult [X] would be in a better position to make his own choices in respect of familial relationships.
[36] Family Report, paragraph 63.
The ‘additional considerations’ are set out in section 60CC(2).
Section 60CC(3)(a): any views expressed by the child and any other 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
It is quite clear from the available evidence that [X] has not expressed a view that he wishes to spend any time with the maternal grandmother. While Dr Hollingworth suspects that [X] “may secretly wish to see his grandmother, uncles and cousins”,[37] he did not state that view to either Dr Hollingworth or the ICL.[38] Indeed when he was asked by D
r Hollingworth “when it would be good to see his other Nonna,
Ms Savina”, [X] replied “Never”.[39] That having been said, the Court notes Dr Hollingworth’s evaluation that [X] is not free to evaluate “his own best interests due to young age and loyalty to his dad”.[40][37] Ibid, paragraph 55.
[38] Case Outline of the ICL filed 24 August 2009, page 8.
[39] Family Report, paragraph 46.
[40] Ibid, paragraph 65.
In the longer term, [X]’s views will provide the key to unlock the future relationship he may have with his maternal grandmother, his extended family, and indeed the relationship he will have with his own father.
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …
There is no doubt that [X] is loved, not just by his father, but by all his grandparents including the applicant. The unhappy circumstances of this case is that while [X] has an amicable relationship with all his extended kin, he currently enjoys a much closer relationship with his paternal family, and unusually but not surprisingly given the factual setting, his maternal grandfather.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
Unfortunately for [X], his father is not willing at this stage to facilitate a closer relationship between his son and the maternal grandmother. It is clear that [X]’s father’s grief, and the continuing poor relationship between [X]’s father and the maternal grandmother, have combined against any normalising in the relationship between [X] and his maternal grandmother.
One sign of encouragement that did emerge during the hearing was the father’s insistence that should [X] seek to explore a relationship with his maternal grandmother such would be facilitated.[41]
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation …
[41] Transcript, 27 August 2009, page 61 (lines 28-33).
There will be a change to [X]’s circumstances if the orders sought by the maternal grandmother are made. [X] should not be punished because of the on-going dispute between his father and the maternal grandmother. As stated previously, [X] may wish to explore a relationship with his grandmother and extended maternal family in the not too distant future. But [X] should not be forced into an outcome that may place greater unnecessary strain upon the shoulders of such a young boy. This was certainly the view of [X]’s surviving parent, and the professional view of Dr Hollingworth.
Section 60CC(3)(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
At the commencement of the hearing, [X]’s maternal grandmother amended her application to spend once-a-month time with him, rather than the weekly time initially sought. This was a sensible amendment in light of the move to [S] by [X] and his father in early 2010.
The proposed move to [S] will not unduly complicate the maternal grandmother redeveloping a relationship with [X] should such occur. [S] is located in Sydney’s southern suburbs and is approximately 60km from Wollongong. That having been said, the problem of the poor relationship between [X]’s father and the maternal grandmother still remains and it is unlikely that [X] will be encouraged by his father to spend time with his maternal grandmother in the short term.
Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs
Apart from the particular inter-family dispute that is at the centre of this case, there is no evidence to doubt the respondent being both a responsible and loving parent to [X]. Likewise, there is no evidence to doubt the sincerity of the applicant in her motives for pursuing this action to spend time with not just her first-born grandchild, but the only grandchild she will ever have from her now deceased daughter. Nevertheless, the intensity of this particular dispute, and the parties’ differing views over [X]’s best interests, only goes to highlight the self-centred vision that both parties share.
Given Dr Hollingworth’s opinion that [X]’s father and the paternal family is compromised by the conflict that exists between the respective families,[42] it is difficult to see an early thawing in their relationship that would enable [X] to spend any meaningful time with his maternal grandmother and broader maternal kin.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
[42] Family Report, paragraph 65.
There are some cultural differences which underpin this dispute; [X]’s paternal family are of Maltese descent and his maternal family are of Italian descent. That having been said, the present dispute is more about the respective personalities of, and the views held by, [X]’s father and his maternal grandmother.
[X]’s young age is also a key factor. The only certainly that arises in this case is that [X] is going to grow older. As stated, at some point down the track [X] will pen his own ending to this chapter of his life. Clearly, the Court accepts that that there is a clear and present risk to forcing an outcome upon [X] that would place him under additional stress in a familial relationship that has been surrounded by unhappiness.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I refer to and reiterate the comments made in paragraphs 59 and 60 of this decision.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
The applicant obtained an Apprehended Violence Order (“AVO”) against the respondent. The AVO application was consented to by [X]’s father without admission of any liability and apparently following the advice of his legal representatives “to settle issues and enable the parties to get on with their lives after the death of” [X]’s mother.[43] Although I make no criticism in relation to the necessity for the making of the AVO, the surrounding circumstances are unfortunate. It relates to an incident that allegedly occurred on 23 July 2007 at or near [X]’s mother’s grave site at [omitted] Cemetery. The obtaining of the AVO, and its restraining effect, clearly served to further distance the relationship between the parties.
[43] Husband’s Case Outline document filed 25 August 2009, page 4.
The maternal grandmother provides the relevant details underpinning the necessity for the AVO in paragraph 44 of her first affidavit. [X]’s father responds in paragraph 27 of his initial affidavit. According to [X]’s father, the AVO allowed him “to remove [himself] from any association with [the maternal grandmother] …”[44] Indeed, the respondent referred to the AVO during cross-examination and stated that it was his understanding following advice received that its effect prevented him from having any conversations or other associations (including face-to-face counselling) with the applicant.[45]
Section 60CC(3)(k): any family violence order that applies to the child or a member of the child's family …
[44] Husband’s initial affidavit, paragraph 27.
[45] Transcript, 27 August 2009, page 4 (lines 23-28)
The AVO lapsed on or about 16 August 2009 (i.e. just prior to the final hearing of this application).
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In her report, Dr Hollingworth concluded that “for any visitation regime to work”, the respondent “must feel respected as [X]’s father or the child will not benefit from time spent with his grandmother and maternal kin”.[46] Dr Hollingworth then goes on to offer several pragmatic suggestions that may enable the parties to build a bridge between the gap in their relationship that has developed over several years.
[46] Family Report, paragraph 66.
The ICL supports the specific recommendation made by
Dr Hollingworth for the parties to seek a referral from Relationships Australia and undertake a suitable program to assist in improving their relationship.[47] The ICL also supports Dr Hollingworth’s suggestion that would allow [X] to receive birthday cards and presents (and cards and presents on other occasions such as Christmas) from his maternal grandmother.[48]
[47] Ibid, paragraph 70; see also ‘Orders proposed by the Independent Children’s Lawyer’ (and provided to the Court on 24 August 2009), paragraphs 8-11.
[48] Family Report, paragraph 71; see also ‘Orders proposed by the Independent Children’s Lawyer’, paragraphs 5-6.
The ICL also suggests that a non-denigration order is needed.[49]
[49] ‘Orders proposed by the Independent Children’s Lawyer’, paragraph 7.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
There is no other of fact or circumstance that the Court thinks is relevant in the present dispute.
The Court is also required under section 60CC(4) to consider the “extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent…” I again refer to and reiterate the comments made in paragraphs 59 and 60 of this decision.
Conclusion
I started this decision by stating that this is an ‘unusual and unfortunate case’. The facts reflect the incredible sadness suffered by [X], his father and the maternal grandmother, at the loss of [X]’s mother. For [X]’s sake, a positive outcome from these proceedings is now needed.
[X] certainly has the right to spend time with the applicant and his maternal (and paternal) kin. That right, however, is conditional upon such time to be spent, and under what circumstances, being in [X]’s best interests.
While [X]’s father does not have the right to unreasonably stop [X] pursuing a relationship with his late mother’s family, he has a responsibility to serve [X]’s care and welfare. That responsibility will need adjustment as [X] matures.
[X]’s father should continue to have sole parental responsibility for [X] and the child should remain living with his father.
The Court has no doubt that [X]’s father deeply loves his son and that he believes his actions to date in respect of the child’s relationship with the maternal grandmother are in [X]’s best interests. Similarly, the Court has no doubt that the maternal grandmother loves her first-born grandchild and that she believes her actions to date in pursuing time with the child is in [X]’s best interests.
I am not convinced on the evidence before me that [X]’s best interests would be served by a Court order requiring [X] to spend time with his maternal grandmother. I am convinced, however, that [X]’s best interests would be served by the orders proposed by the ICL. Those orders largely offer the hope that [X] so badly needs to enable the relationship between his father and his maternal grandmother to move beyond the recent past that has proved so divisive.
Ideally, [X] should have an active relationship with all his grandparents (including the maternal grandmother), without the need for the relationship to be underpinned by court orders.[50] However, for all the reasons stated in this decision, this is not an ideal situation.
[50] Potts & Bims & Ors [2007] FamCA 394 per Moore J at [69].
There will be orders of the Court to reflect this decision.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate: Shani Drogemuller
Date: 17 December 2009.
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