SAWYER & GRINDER

[2009] FamCA 1368

FAMILY COURT OF AUSTRALIA

SAWYER & GRINDER [2009] FamCA 1368

FAMILY LAW – CHILDREN – With whom children  live

APPLICANT: Ms Sawyer

RESPONDENT: Mr Grinder

INDEPENDENT CHILDREN’S LAWYER: Matthews Folbigg

FILE NUMBER: PAC 384 of 2009

DATE DELIVERED: 2 October 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: STEVENSON J

HEARING DATE: 28 & 29 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

COUNSEL FOR THE RESPONDENT: Ms Snelling

SOLICITOR FOR THE RESPONDENT: Adams Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Munk

Orders

1. That all existing orders in relation to the children:

   T born on … April 1999 and

   R born on … October 2000 (‘the children’)

   be discharged.

2. That the parents have equal shared parental responsibility for the children.

3. That the children live with the mother at all times other than the periods specified in order 3, during which they will live with the father.

4. That the children live with the father:

   4.1From the conclusion of school on Friday until the commencement of school on Wednesday in each alternate week during school term time, commencing on the first Friday of each school term.

   4.2For one half of all school holidays, being the first half in odd-numbered years and the second half in even-numbered years, subject to orders.

5. 5.1     That the children live with the father from 10:00am until 5:00pm on Fathers Day if they are not otherwise in his care pursuant to these orders.

   5.2That the children live with the mother from 10:00am until 5:00pm on Mothers Day if they are not otherwise in her care pursuant to these orders.

6. 6.1      That the children live with the father from 11:00am on Christmas Eve until 11:00am on Christmas Day and with the mother from 11:00am on Christmas Day until 11:00am on Boxing Day in odd-numbered years.

   6.2That the children live with the mother from 11:00am on Christmas Eve until 11:00am on Christmas Day and with the father from 11:00am on Christmas Day until 11:00am on Boxing Day in even-numbered years.

7. That the parent with whom the children are living for holiday periods shall facilitate the children communicating by telephone with the other parent between 6:00pm and 6:30pm each Tuesday and Thursday, provided that this order does not apply to the periods specified in order 5.

8. That each parent ensure that the children maintain engagement with counsellors at P Organisation for so long as their counsellors deem necessary.

9. That the parents enrol in and complete a post-separation parenting course, as recommended by the Independent Children’s Lawyer.

10. That the mother do all things necessary to enrol in and complete the course “Keeping Children Safe” and the counselling program to which she has been referred by staff at P Organisation.

11. That each parent do all things necessary to ensure that the children have no contact or communication whatsoever with D Grinder.

12. That each of the parents is restrained from changing the children’s school, except for enrolling T at high school when he completes his primary education.

13. That each of the parents inform the other, as soon as practicable, of any major illness or accident suffered by the children while in his or her care.

14. That the parties effect changeovers, for the purposes of implementation of these orders, at the children’s school or at McDonalds Restaurant at C

15. That pursuant to s.65DA(2) and s.62B, 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 the Fact Sheet attached hereto and these particulars are included in these orders.

16. That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment under the pseudonym Sawyer & Grinder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 384 of 2009

MS SAWYER

Applicant

And

MR GRINDER

Respondent

REASONS FOR JUDGMENT

the proceedings  

1. Mr Grinder and Ms Sawyer are the parents of two children:

   T born in April 1999 (10) (‘T’) and

   R born in October 2000 (9) (‘R’).

   The issues between the parents narrowed significantly as the trial progressed and, ultimately, became a question of the number of nights per fortnight which the children spend with each of them and what arrangements should be made for special occasions.

Background

1. The father, who is now 27, and the mother, who is now 28, began their relationship in December 1997 and began to live together in December 1998.  They separated in November 2002, when the children remained in their home with their mother.  The father lived with his mother after the separation and later moved to Queensland.

2. The father did not see the children at all for 3½ years after the separation.  At all times the mother and the children lived in the house which had been the family home at K.

3. The father has a brother, D Grinder, who was born in 1980.  He lived in a granny flat at the rear of the K premises during the parties’ cohabitation.  He had previously lived in a caravan at their home in K.  In November 2007 D Grinder moved into the house with the mother and the children, after the roof of his granny flat had collapsed.

4. On 1 April 2006 the father arrived at the mother’s home in the company of his present partner, Ms H.  They commenced their relationship in April 2005 and have a daughter, M, who was born in October 2008.  Ms H had never met T and R.

5. The father gave no notice to the mother that he intended to come to her home on 1 April 2006 to attempt to arrange for the children to spend time with him.  Subsequently the parents attended mediation and agreed to orders for a graduated regime of time for the children to spend time with their father.  These orders were made by consent on 22 June 2006. 

6. During January 2009 the children were on holidays in Queensland with their father, Ms H and their paternal grandmother.  On 11 January 2009 R told the paternal grandmother that D Grinder had sexually abused her by inappropriate touching.  She also said that D had held a gun to her head.  Further, R told the paternal grandmother that D sexually abused T by inappropriate touching.  As well R said that she told her mother what had happened and that she said “go away and deal with it yourself”. 

7. T also complained to the paternal grandmother that D had made inappropriate sexual suggestions to him and sexually abused him.  He also said that he had been physically abused by D Grinder. 

8. On 12 January 2009 R told Ms H about inappropriate touching by D Grinder.  She also told Ms H that she had informed her mother, who replied “go away and deal with it yourself”.  T made a similar statement about his mother’s responses to the children’s disclosures of abuse.  The mother strenuously denied that she made any such statements.  Later in that week T told Ms H about physical abuse by D Grinder.

9. The paternal grandmother took R to see police and a JIRT investigation followed.  On 21 January 2009 members of the JIRT team advised the father that the children would be removed from the mother’s care if he returned them.  The children have since lived with him.

10. The JIRT investigation concluded that the children had been sexually, physically and emotionally abused by D Grinder.  They have spent only supervised time with their mother since the disclosures in January 2009. 

11. According to the mother D Grinder left her premises on 25 January 2009.  She said firmly that she has not seen him since and has no intention of doing so.

The Proposals of the Parents and the Independent Children’s Lawyer (‘ICL’)

1. Initially the mother sought the children live with her and spend time with their father each alternate weekend; for half of all school holidays and on special occasions.  By the time of final submissions her position had shifted to residence with her and 4 nights per fortnight, plus half of all school holidays and special occasions with the father.  She proposed, inter alia, an order that neither parent bring the children into contact with D Grinder.

2. Initially the father sought that the children live with him and spend time with their mother for 2 hours per week at a contact centre and for 1 hour each Tuesday and Thursday at McDonalds Restaurant at C.  By the end of the trial his position had shifted to the children living with him for 6 nights per fortnight and half of all school holidays and otherwise with their mother.

3. The ICL proposed that the children live with their father for 4 nights per fortnight and half of all school holidays and otherwise with their mother.

Approach To These Proceedings

1. The principles which govern the determination of these proceedings are substantially set out in Part VII of the Family Law Act.  Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters the statutory conferral of joint parental responsibility.

2. If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each of his or her parents to have equal shared parental responsibility:  section 61DA(1).  This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence:  sections 61DA(2) and 61DA(3).  This presumption may be rebutted if the Court is satisfied that its application would conflict with the best interests of the child:  section 61DA(4)

3. When this presumption is applied, the Court must first consider making an order for the child to spend equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable.  If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable:  section 65DA(1) and 65DA(2)

4. The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5).  The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing the child to share events of special significance with each parent.    In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement

5. If neither equal nor substantial and significant time would promote a child’s best interests, then the outcome is to be determined in accordance with the child’s best interests.  The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.

Section 60CC(2):  The Primary Considerations

section 60CC(2)(a):           the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

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.

1. It was agreed by counsel for the mother, the father and the ICL that no relevant issues arise pursuant to the primary considerations.  This conclusion is logical, given that the dispute ultimately was as to whether the children should spend 4, 6 or some other number of nights per fortnight with their father.  It follows that the mother, the father and the ICL must consider that the children will benefit from a meaningful relationship with each of their parents.

2. The mother readily agreed to an order preventing her from bringing the children into any contact whatsoever with D Grinder.  The proposals of the father and the ICL inherently mean that they accept that this restraint is sufficient to protect the children from the risk of further abuse from that person.  The mother also gave compelling evidence that she now believes that the children were abused.  She has enrolled in a course known as “Keeping Children Safe” and approached P Organisation, where the children are receiving sexual assault counselling, for a referral for appropriate assistance for herself.  She was due to start weekly, one on one, counselling sessions on 6 October 2009.

3. All of the evidence indicated clearly to me that the children have benefitted from a meaningful relationship with each of their parents and will continue to do so in future.  I am comfortably satisfied that there is now no need to protect the children from the risk of abuse while in the care of their mother.  I accept that she has been deeply ashamed and distressed that the children were abused by D Grinder while in her care and that she will be very vigilant in future.

Section 60CC(3):  Additional Considerations

section 60CC(3)(a):           any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. T was ambivalent in his views about where he wants to live and what time he wishes to spend with each of his parents in his interview with Mr A, Family Consultant.  Mr A reported: 

   “During the course of talking about where he may live, [T] said that he did not really know what he wanted the judge to know.  He went on to say that some days he wanted to live with his father and some days he wanted to live with his mother.  He said some days he ‘hates’ Dad and some days he ‘doesn’t like’ Mum.  He thought it would be good to live ‘a bit at Dad’s and a bit at Mum’s’.  [T] was concerned that he would miss football should he return to live with his mother.  [T] identified football (rugby league) as a significant interest for himself, both playing and following the Panthers;  in contrast [the mother] reported that his interest was in ‘English football’ (soccer).”

2. R informed the Family Consultant as follows:

   “Asked if there was anything she would want the judge to know if they had to decide where she was going to live, [R] said that she wanted to live with her mother.  [R] says that she ‘knows Mum much more than Dad’ and ‘Dad went away for a long time’.  [R] said she would miss seeing [M] and Dad and [Ms H] if she returned to living with her mother.”

3. T was 10 and R nearly 9 years old when interviewed by the Family Consultant.  There was no evidence to indicate that they have been influenced to state a particular view.  Their views should thus carry significant weight.

   section 60CC(3)(b): the nature of the relationship of the child with:

   (i)each of the child’s parents;  and

   (ii)      other persons (including any grandparent or other relative of the child);

4. The Family Consultant assessed that the children “presented having close relationships with each of their parents and the extended family and social connections associated with both households”. 

   With regard to R, he was of the view that: 

   “[R] has a clearly stated preference to live with her mother.  This can be understood in attachment terms as being related to her father absenting himself from her life in the years between ages 2 and 5.  This period in a child’s life is critical for cementing long lasting attachment relationships.  It appears from the report of both parents and the school that [R] has a longer standing and more significant history of behavioural concerns than [T]. 

   It appears that [R’s] needs may best be served by predominantly living with her mother, consistent with her stated preference.”

   section 60CC(3)(c):           the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

5. Both parties have demonstrated a willingness and ability to encourage a close and continuing relationship between the children and their other parent.  The mother cooperated in the re-introduction of their father into their lives after an absence of 3½ years.  The father has fostered supervised time for the children with their mother since their disclosures in January 2009.  He is to be commended for abandoning his application for supervision to continue, at an appropriate point in the proceedings.

   section 60CC(3)(d):           the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents;  or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

6. A return to primary residence with their mother would accord with R’s stated wishes and not conflict with T’s view, as expressed to the Family Consultant.  There was evidence from the father, Ms H and the paternal grandmother to the effect that T has recently expressed opposition to spending time with his mother and has said that he “hates” her.  It should be remembered that he told the Family Consultant that he also “hates” his father “some days”. 

7. I do not regard T’s statement that he “hates” his mother or his stated wish not to spend time with her to reflect his genuine perception of and relationship with her.  The occasion on 20 September 2009, when he refused to get out of the car and go into the contact centre followed directly on the mother’s refusal to change arrangements so that he could attend a motor sporting event.  Obviously T became very angry with her, to the point where he swore at her during a telephone call.  It could also be that he is becoming tired of spending time with his mother in a confined space, under the supervision of a person who makes notes about what occurs during the visit.  In my opinion T is very likely to resettle quickly into life with his mother, who has been his primary carer at all times other than for the last 9 months.

   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;

8. The parties live only 12 kilometres apart and neither is presently in employment.  The father has access to a car but the mother is reliant on public transport.  She did not indicate any difficulties in transporting herself and the children.

   section 60CC(3)(f):           the capacity of:

   (i)each of the child’s parents;  and

   (ii)      any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   section 60CC(3)(i):            the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

9. There are two very obvious difficulties in terms of this consideration, one with each parent.  The father chose to have no contact whatsoever with the children for 3½ years.  I appreciate that he “had a few emotional issues to sort out after separation”, to use his words.  The fact remains, however, that he elected to leave the mother to cope alone with two young children with no support at all from their other parent.  I can only conclude that he lacked the capacity to fulfil a parental role during this period. 

10. For her part the mother failed to recognise the risk and actuality of abuse of the children by D Grinder.  At first she refused to believe the children’s disclosures of abuse.  She said that she “could not understand how it could have happened while [I] was at home”. 

1. The Family Consultant explained the position in which the mother found herself in these words, during his oral evidence:

   “It was really that she said that she accepted that it occurred but on the other hand she struggled to accept that it could have occurred under her supervision as a parent, without her realising it.”

2. Mr A summarised his assessment of the capacity of each of the parties as follows:

   “Both [the mother] and [the father] have made parenting decisions in the past that have caused significant harm to their children.  The interaction observed between the children and the adults of both households however suggest that the majority of the care experience for the children from all caregivers has been positive.  Aside from their conflict, both parents present currently as having the potential to be ‘good enough parents’ to [R] and [T], adequately meeting their emotional and intellectual needs.”

3. Mr A expressed concern as to the level of conflict between the parents.  As I indicated during submissions, however, the conflict between the father and the mother impressed me as being at the lower end of the scale frequently observed in this jurisdiction.  For example, both parents said that they wished to improve their communication and implied that they realise that they need to cooperate for the sake of their children.  In my view it is hardly surprising that their co-parent relationship has suffered in the circumstances which have arisen since the children’s disclosures in January 2009.  I am hopeful that they will regain the ability to be flexible in arrangements for their children, as has been the case in the past, once these proceedings are at an end.

   section 60CC(3)(g):  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

4. No relevant considerations arise pursuant to this subsection.

   section 60CC(3)(h):           if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)       the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and

   (ii)      the likely impact any proposed parenting order under this Part will have on that right;

5. No relevant considerations arise pursuant to this subsection.

   section 60CC(3)(j):  any family violence involving the child or a member of the child’s family;

   section 60CC(3)(k):          any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order;  or

   (ii)the making of the order was contested by a person

6. There was no suggestion of any family violence.

   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;

7. It is my assessment that there is unlikely to be further litigation once the father, the mother and the children settle into the arrangements which will be put in place by my orders.  As noted, I am hopeful that they will manage to regain their previous level of cooperation and that my orders will be only a framework for future parenting arrangements.

The Presumption of Equal Shared Parental Responsibility

1. There was no suggestion by either party or the ICL that the presumption does not apply or has been rebutted.  The ICL, the father and the mtoher each submitted a Minute of Order which contained a provision for equal shared parental responsibility.  Nothing in the evidence suggested in any way at all that the position should be otherwise. 

Equal Time or Substantial and Significant Time

Equal Time

1. As there will be an order for equal shared parental responsibility, I am required to consider whether it is in the children’s best interests, and reasonably practicable, for the children to spend equal time with each parent.  In fact, neither parent nor the ICL sought such an order.  It is my view that the level of cooperation between the parents is not sufficient to support an equal time arrangement, in any event.

Substantial and Significant Time 

1. It seems to me that the proposals of each of the parents would fall within this concept, although I regard the mother’s proposal for only 4 nights per fortnight as unnecessarily limiting of the children’s time with their father.  Whether the outcome is 5 or 6 nights per fortnight is unlikely to make any real difference to the children’s relationship with either of their parents.

2. An arrangement whereby the children spend 5 nights per fortnight with their father would allow them to spend a full weekend and two school days and nights in his household.  He would thus have the opportunity to be involved with their school activities on a regular basis. 

3. I do not wish to embarrass the father but I must take into account the consequences for the children of his inability to read and write.  In comparison, the mother has a Higher School Certificate and is in a position to help the children with their school work.  For that reason I am of the view that they should spend more of the school week in her care.  For these reasons, I will put in place an arrangement whereby the children spend 5 nights per fortnight with their father and otherwise live with their mother.   They will share the school holidays equally between their parents and provision will be made for special occasions.

Change of School

1. The father sought an order which would permit him to change the children’s school from K Public School to N Public School at N.  I have no doubt that he was well intentioned in making this application but he adduced no evidence, other than his own opinion, that this change would benefit the children.

2. This proposal is contrary to the recommendation of the Family Consultant.  Mr A reported: 

   “The concerns that the current school is not performing optimally academically are noted, however it is considered that the family based difficulties faced by [T] and [R] are more likely to be impairing their education than the ability of the school.  The school appears to have appropriate strategies in place to respond to the identified behavioural difficulties and significantly [T] and [R] identified that they have long standing friendships with others at this school.  Any future move by either parent, even with a view to improving secondary schooling options for [T], should incorporate consideration of the practicality of maintaining [R] at [K] Public School until the completion of her primary education (until at least the end of 2012)”.

3. I am persuaded that a change of school would not advance the children’s interests.  There will be an order to restrain each of the parents from changing the children’s school.  Of course, T will commence his secondary education in a couple of years and there will be an automatic change of school for him at that point.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              2 October 2009