Schroeder & Raleigh & Anor - [2012] FMCAfam 834

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHROEDER & RALEIGH & ANOR

[2012] FMCAfam 834

FAMILY LAW – Parenting – application by paternal grandmother to spend time with grandchildren – application opposed by respondent mother – relationship between adults highly conflicted – children aged 8 years and 4 years – mother raised concern in relation to the application being an attempt for the father to gain more time with the children – mother concerned grandmother is attempting to undermine the mother's parenting of the children – orders made allowing paternal grandmother to spend time with children each alternate Saturday when the children are otherwise spending time with the father, during the school holidays and for Christmas and birthdays.

Family Law Act 1975, ss.60CA, 60CC

Potts & Bims [2007] FamCA 394
Simpson & Brockman [2009] 43 FamLR 32

Applicant:

MS SCHROEDER

First Respondent:

MS RALEIGH

Second Respondent:

MR P

File Number:

MLC 8892 of 2011

Judgment of:

Bender FM

Hearing dates:

1 August 2012 & 2 August 2012

Date of Last Submission:

2 August 2012

Delivered at:

Bendigo

Delivered on:

3 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr Baker

Solicitors for the Applicant:

Peter Baker & Associates

Counsel for the First Respondent:

Mr Middlemis

Solicitors for the First Respondent:

J A Middlemis

Counsel for the Second Respondent:

In Person

Solicitors for the Second Respondent:

In Person

Counsel for the Independent Children’s Lawyer:

Mr McLeod

Solicitors for the Independent Children’s Lawyer:

Lampe Family Lawyers

UPON THE UNDERTAKING of Ms Schroeder that during any time the children Y born (omitted) 2003 (“Y”) and X born (omitted) 2008 (“X”) spend with her, she will ensure the father Mr P is not in the presence or vicinity of Y and/or X.

UPON THE UNDERTAKING of Mr P that he will not be present at any time that the paternal grandmother spends with the children Y born (omitted) 2003 and X born (omitted) 2008.

ORDERS

The applicant paternal grandmother shall spend time and communicate with the children Y born (omitted) 2003 (“Y”) and X born (omitted) 2008 (“X”) as follows:
(a)each alternate weekend from 10.00am to 4.00pm Saturday to coincide with the time the father is to spend with Y and X pursuant to the orders of this Court made 24 May 2011 regardless of whether the father exercises such time with Y and X;
(b)from 8.30am to 5.30pm on the first Friday of the third term school holidays in 2012 and the first term school holidays in 2013;
(c)from 8.30am to 5.30pm on two Fridays in the 2012/2013 long summer vacation on such Fridays as are nominated by the mother and the mother shall give the paternal grandmother 72 hours prior notice of the nominated Fridays;
(d)for two consecutive days and one night in each of the school holiday periods commencing in the second term holidays in 2013 as agreed between the mother and the paternal grandmother and failing agreement from 8.30am Friday to 4.00pm Saturday on the second weekend of the term holidays and as nominated by the mother in the long summer holidays and the mother shall give the paternal grandmother 72 hours prior notice of the nominated weekend;
(e)for two hours at agreed times on the day before each of Y and X’s birthdays, on Christmas Eve and on the paternal grandmother’s birthday and failing agreement from 3.30pm to 5.30pm on a school day and from 10.00am to 12.00 noon on a non-school day; and
(f)as otherwise agreed between the parties.
Unless otherwise agreed, changeover for the time Y and X spend with the paternal grandmother pursuant to these orders shall occur at the (omitted) Centre when available and otherwise at the (omitted) in (omitted)
If Y and X are unable or unavailable to spend time with the paternal grandmother pursuant to these orders, the mother shall provide make up time at the same time in the week following the missed time.
The paternal grandmother may attend any of Y or X’s school or pre-school events which grandparents are invited to attend and the mother shall notify the paternal grandmother of such events no less than 72 hours prior to those events taking place.
Save for the time provided for in order 1(a) herein, the paternal grandmother shall ensure that Y and X do not come into contact with the father during any time they are spending with the paternal grandmother pursuant to these orders.

AND THE COURT NOTES THAT:

A.Nothing in these orders prohibits the paternal grandmother spending time with Y and X during any time Y and X are spending with the father pursuant to any future orders made pursuant to the Family Law Act 1975.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 8892 of 2011

MS SCHROEDER

Applicant

And

MS RALEIGH

First Respondent

MR P

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This matter relates to the paternal grandmother’s Application to spend time with her grandchildren, Y born (omitted) 2003 (“Y”) and X born (omitted) 2008 (“X”).
Y and X are the children of the paternal grandmother’s son, the second-named respondent in these proceedings and the mother Ms Raleigh, the first-named respondent in these proceedings.
Y and X’s parents were in a relationship from 1999 to late 2008/early 2009 albeit with lengthy periods of separation.
The mother alleges that the father was physically violent throughout the relationship as well as abusing alcohol and illicit substances.
After the parties’ final separation in April 2009, they entered into a parenting plan dated 27 May 2009 which provided that Y and X live with the mother and spend supervised time with the father at (omitted)
The father commenced spending time with Y and X at (omitted) on (omitted) 2009.
The father issued proceedings in the Federal Magistrates Court at Bendigo on 12 February 2010 seeking orders that he spend unsupervised time with Y and X as he and the mother were unable to agree that such time commence.
Orders were made in the course of the proceedings between the parents which required the father to undergo random drug screens, obtain a psychiatric assessment and provide material from his treating medical practitioner as to his then medication regime.
The father provided positive urine screens, results and/or failed to comply with requests from the Independent Children’s Lawyer to undergo such screens, did not or was unable to pay for the cost of his psychiatric assessment and did not file material from his treating general practitioner. Accordingly, the hearing of the matter between the parents was adjourned on several occasions until it was finally listed on 24 May 2011 with a direction it would proceed undefended on that date in the event the father continued to fail to comply with the Court’s orders for trial preparation.
On 24 May 2011, final orders were made by consent that provided for the parties to have equal shared parental responsibility for Y and X, for them to live with their mother and spend time with their father as follows;
(a)from 12.00 noon to 2.00pm each alternate Saturday from 4 June 2011 at the (omitted),for a period of 12 months to be supervised by a supervisor nominated by the father and such supervisor to be paid $50 per supervision by the father;
(b)
from 10.00am to 4.00pm each alternate Saturday commencing on

2 June 2012; and
(c)by telephone each alternate Sunday between 7.00pm and 7.30pm on the non-contact weekend.
On 30 September 2011, the paternal grandmother issued these proceedings, seeking orders that Y and X spend time with her independently of the father’s time. Her application was and is supported by the father.
The mother filed a Response to that application, seeking that the paternal grandmother’s Application be dismissed and that the paternal grandmother spend time with Y and X when they are with their father.
On 21 November 2011, I made orders adjourning the matter to

27 February 2012, appointing an Independent Children’s Lawyer, requiring the grandmother to undergo a psychiatric assessment and for the preparation of a Family Report.
On 27 February 2012, interim orders were made upon the undertaking of the grandmother and the father that the father would not be present when Y and X spent time with the grandmother, for Y and X to spend time with the grandmother for two hours immediately after their time with their father until the end of May 2012 and thereafter for two hours during the time Y and X were to spend with their father in the event the father did not take up that time.
The orders further provided that the grandmother collect Y and X from the (omitted) and return them to the mother at (omitted).

The Evidence

The Paternal Grandmother

The paternal grandmother seeks orders as follows:
(1)The applicant spend time with and communicate with the children Y and X as follows:
(a)each alternate weekend from 10.00am to 5.00pm Saturday to coincide with the day the father is scheduled to spend with the children;
(b)each alternate Friday after school until 7.00pm;
(c)for 2 days and one night each school holiday period;
(d)at Christmas and the children’s birthday and the applicant’s birthday for 2 hours at times to be agreed where the father does not spend time with the children on these occasions;
(e)by telephone at reasonable times; and
(f)at other times as agreed.
(2)Unless otherwise agreed handover shall occur at (omitted) or if (omitted) is not open outside (omitted) police station.
(3)If the children are unavailable or unable to spend scheduled time as set out above the mother shall provide make-up time.
(4)In order to facilitate telephone contact the mother shall:
(a)ensure the applicant has her current telephone number at all times;
(b)shall allow the children to telephone the applicant when the children ask to; and
(c)shall ensure the children ring the applicant back if the children miss a call from the applicant.
(5)The applicant may attend any of the children’s school events at which Grandparents are able to attend.
It is the paternal grandmother’s evidence that she has a close and loving relationship with Y and X and that she wants them to have the opportunity to have a relationship with her and with their extended paternal family.
It is the grandmother’s evidence that she is seeking “grandparent’s” time with Y and X and that she is not in any way seeking to undermine the mother or her role as the primary carer of Y and X.
It is the grandmother’s evidence that she wants Y and X to have the opportunity to also spend time with their extended family including their aunt and cousins, noting that the grandmother has a daughter with four teenaged and adult children as well as a great-grandchild.
The grandmother expresses bemusement as to why the mother was opposed to her spending additional time with Y and X. It is her evidence that she is the same person who the mother happily allowed to have care of the children prior to separation and that the mother had never raised with her any concerns as to her relationship with, or care of, Y and X prior to separation.
It is the mother’s evidence that during the relationship the father had told her that, when he was a child, the grandmother had subjected him to serious physical and verbal abuse.
In the psychiatric assessment of the father undertaken by Dr J in the proceedings between the parties, Dr J reported, in the assessment annexed to his affidavit sworn 1 April 2011, under the heading ‘Developmental’, the following:
He grew up in Sydney and (omitted), mainly with his mother. She was a single mother who could not cope and took it out on him and his sister, hitting and bashing them.
It is the grandmother’s evidence that, while she did smack the father as a child, it was with an open hand to the bottom, as was the parenting practice at the time, and that she has never hit or bashed either of her children.
It is the grandmother’s evidence that she realises that physical discipline is no longer an accepted parenting practice. It is her further evidence that she never has, and never would, physically discipline her grandchildren.
It is the grandmother’s evidence that, whilst she does see Y and X when they are spending time with the father, she works until 12.30pm on Saturdays. Further, it was her evidence that, given the limited time Y and X spend with their father, she is very conscious of not intruding too much on their time with him. She confirmed, however, that as the father lives with her, their time with the father is spent primarily in her home.
It is the grandmother’s evidence that, if the Court were to make orders as sought by her, she would have no objection to the father also being present during that time. The grandmother denies, however, that her application is a backdoor attempt to gain the father additional time with Y and X and indicates that she will abide by any orders of the Court that require any time she spend with Y and X to be without the father.
It is the grandmother’s evidence that the father could stay with a friend in (omitted) if Y and X were allowed to stay overnight and the Court orders that he not be present.
The mother raises concerns that the grandmother is unable to contain her emotions when spending time with Y and X, citing times when the grandmother has attended supervised time at (omitted) and the (omitted) and has become quite teary.
The grandmother concedes that there have been occasions when she has not seen Y and X for a long time and that she has become very emotional to see them. It is her evidence, however, that this is the exception and that she has hidden her tears from the children. She concedes that when Y was recently hospitalised for surgery, she did not take up the mother’s invitation to see him prior to his surgery as she realised she was too emotional and did not want to upset him.
It is the grandmother’s evidence that she will attend counselling with the mother to assist in re-establishing their relationship so they can communicate better in relation to Y and X.

The Mother

The mother seeks that the grandmother’s application be dismissed and argues that the grandmother is able to spend regular and appropriate time with Y and X when they are with their father.
It is the mother’s evidence that she would not oppose the grandmother attending Y and X’s special grandparent days at school and pre-school.
The mother confirms that Y and X love their grandmother and that they have a warm and close relationship with her.
It is the mother’s evidence that, during their relationship, the father told her that the grandmother had abused him as a child, bashing him and hitting him with a large spoon. It is her belief that this abuse of the father by the grandmother is confirmed in the history given by the father to Dr J.
The mother therefore expresses concerns in relation to the risk to Y and X if they were to spend extended time with the grandmother.
The mother concedes that Y and X have never been harmed when left in the care of the grandmother, but notes that after December 2008, when the father told her of the extent of the grandmother’s abuse of him, and someone told the mother that the grandmother had neglected X when she had been left in the grandmother’s care, the mother never left either of Y and X in the grandmother’s sole care thereafter.
When questioned about the alleged ‘neglect’ of X by the grandmother, the mother’s evidence is that she has never discussed this with the grandmother, nor was X ever returned from the grandmother hurt or in any way distressed. She is unable to explain why she believes the allegations of neglect in these circumstances.
The mother’s evidence is that she is unable to trust the grandmother and is concerned she is attempting to undermine her parenting role as a result of the grandmother’s “unrelenting indirect harassment” of her since separation.
When asked to explain what she meant by “unrelenting indirect harassment”, it is the mother’s evidence that shortly after the parents separated, notifications were made in relation to her care of Y and X to the Department of Human Services, to the police and to psychiatric services. It is noted in March 2009 the mother had a short period of involuntary hospitalisation after a breakdown of her mental health.
It is the mother’s belief that it is the grandmother who made those notifications, as those notifications followed shortly after the grandmother visiting her home. I note the grandmother’s evidence that shortly after separation, there was an incident when the mother drove off with the children in an agitated state and that she had suggested the father contact authorities because of concerns as to the mother’s

well-being at that time.
It is the mother’s evidence that there have been no further notifications made to authorities in relation to her care of Y and X since those in March 2009. She insists however that those notifications constitute “unrelenting indirect harassment”, and further notes that “people do not change”. She remains distrustful of the grandmother despite there being no notifications in three and half years.
It is the mother’s evidence that the father should not have less time with Y and X than the grandmother.
It is also the mother’s evidence that she believes that Y and X would be offered better protection if their time with the father and grandmother took place when both were together.
When questioned as to the specific orders sought by the grandmother, while she made it clear that she does not agree that any additional time should be ordered, it is the mother’s evidence as follows:
·Y has only started having sleepovers in recent time. X is only four years of age and has only stayed overnight away from the mother with her very close neighbour when Y was recently in hospital. It is the mother’s evidence that she does not believe that X is ready for sleepovers at this time.
·In the event the Court orders Y and X to spend time with the grandmother in the holidays, as the mother works Fridays what would work best for her would be for that time to be from 8.30am Friday to 4.00pm Saturday commencing on the Friday in the first week of the term holidays.
·
If there were to be orders made for regular mid-week time between Y, X and the grandmother, it be from

4.00pm to 5.30pm on a Wednesday. The mother notes that X is usually in bed by about 7.00pm or 7.30pm.
·Any time for special occasions, such as birthdays or Christmas, should be on the day before those days, given the mother organises celebrations to take place on those days.
·When the father calls Y and X each alternate Sunday, the grandmother also speak to them and therefore there is no need for an order that the grandmother call at some different or alternate time.
·Changeovers for the grandmother’s time with the children take place at (omitted) as Y feels very safe at (omitted) and is familiar with their services and the people who work there. If (omitted) is unavailable, she proposes changeover be at the (omitted) and not a police station.
·The mother wishes there to be no changeovers at Y’s school as she wants the school to remain a safe place for Y, not associated with any of the issues surrounding his time with the paternal family.
·If the father’s time were to come to a stop, the mother is not comfortable with the grandmother continuing to have time, but will leave that issue to the judge.
It is the mother’s evidence that she does not believe counselling will assist her relationship with the grandmother as she feels that, with all the notifications post-separation, the grandmother does not have the mother’s best interests at heart in her role as the carer of Y and X.

The Father

It is the father’s evidence that the grandmother did not hit or abuse him in his childhood. It is his evidence that she was a strict disciplinarian and did smack him, but it was only with an open hand to his backside and never with a spoon or any other object.
It is the father’s evidence that the grandmother was verbally harsh. He describes her as verbally bashing him, explaining that if he did something wrong, she would not only chastise him for that wrong, but bring up all his previous wrongdoings.
It is the father’s evidence that Dr J has misquoted him in his report and that he had complained to Dr J of his mother “verbally bashing” him.
It is the father’s evidence that the grandmother has never mistreated any of her grandchildren and that she has a close and loving relationship with all of her grandchildren.

Ms S

Ms S is a Regulation 7 Family Consultant with the Federal Magistrates Court and prepared a Family Report dated 18 January 2012. Ms S was not required to give evidence at the hearing of this matter.
In relation to the grandmother, Ms S states in paragraph 5 of her Report as follows:
Although they do not have a good relationship now, she says that Ms Raleigh “is a great Mum” who loves her children but is saddened that she has cut the children off from the paternal family.
At paragraph 7 of her Report, Ms S states the following:
Whilst she accepts she will be able to see the children while they are spending time with their father, Ms Schroeder wants Court orders that specifically relate to her time with the children to ensure that she is not denied having a relationship with them should the father’s time with the children cease. She does not want her time to be dependent or conditional on the father’s time with them. At the same time, she wants her own individual time with the children so that they can have a separate experience with their grandmother and they “know that they have a Nan”.
Interestingly, Ms S reports that the grandmother then told her that she recognises the children would not be ready for overnight stays at the moment, especially X who would fret for her mother.
In paragraph 8 of her Report, Ms S states the following:
Ms Schroeder insists that she is not a danger to her grandchildren and strongly denies the allegations that she was abusive of her own children. She says that her son reported to her that he was misquoted in her psychiatric assessment although she readily concedes that she did smack her children “but never beat them”. She explains that it was a different era when she raised her children and smacking was accepted more than it is today ... she says that she has never smacked or physically disciplined any of her grandchildren.
Ms S describes the mother in paragraph 9 of her Report as follows:
Ms Raleigh presented as confident and direct but genial. She reports feeling well and recuperated, she no longer requires

antidepressants and is managing well both with part time work and as a full time solo parent.
Ms S at paragraph 9 of her Report notes that the mother opposes the grandmother’s application as:
… she is convinced that her application is a backdoor attempt to obtain more time with the children.
In paragraph 10 of her Report, Ms S notes that the mother lost trust in the grandmother shortly after separation having deduced that the notifications to authorities made against her were after the grandmother had visited her home, and, therefore, the notifier was the grandmother.
In paragraph 11 of her Report, Ms S sets out that the mother’s other concern is the possible risk to Y and X given the father’s disclosure of abuse by his mother when he was a child.
Ms S further states in paragraph 11 of her Report:
[The mother] is concerned that Ms Schroeder will have the same impact on the children as she had on her son’s emotional and psychological development and is loath to have her interact with her children and expose them to the same abuse and consequences.
Ms S notes that the mother stated she would feel more comfortable with Y and X being with both their father and grandmother together rather than individually.
Ms S sets out her observations of Y and X with the grandmother in paragraph 14 of her Report as follows:
Observation of the children with their grandmother confirmed that they share a warm, close and happy relationship. Ms Schroeder was appropriate in her interaction with them, was alert to their needs and attended to both children. There was laughter, an easy flow of conversation and animated play. Both children greeted and farewelled their grandmother warmly and affectionately.
Whilst agreeing that it is not unreasonable for the mother to question the bona fides of the grandmother’s application, Ms S notes the grandmother’s insistence the father will not be present when Y and X are with her.
In relation to the mother’s concerns as to the grandmother’s parenting capacity, Ms S states at paragraph 18 of her Report the following:
There is nothing to suggest there Ms Schroeder has disciplined the children in any inappropriate manner, smacked or hurt them during her time with them. While she is not condoning her practices, Ms Schroeder appropriately points out that the attitudes and values around discipline and corporal punishment and smacking of children was very different while she was raising her family. She has not and would not use smacking as a discipline tool today with any of her grandchildren.
In paragraph 20 of her Report, Ms S states as follows:
The children were observed to have a warm and close relationship with their grandmother and clearly enjoy spending time with her. They did not disclose any concerns and it would appear that they have not been disciplined harshly or inappropriately, if at all. They feel safe and secure with their grandmother. Considering the children’s presentation on the day, their interaction with Ms Schroeder and the lack of any disclosure, it is unlikely that the children will be at risk should they spend time with Ms Schroeder.
Under the heading ‘Recommendations’, Ms S states as follows:
25.Provided there is no evidence to the contrary and as noted in the body of the report, it is recommended that the children spend time with Ms Schroeder at the same time as they spend time with their father as of June 2012 or in the event that Mr P does not spend time with the children, that they continue to spend time with Ms Schroeder every fortnight between 10am and 5pm.
26.Until June 2012, it is recommended that the children spend up to three hours with Ms Schroeder from the termination of their time with their father and that they are able to attend at Ms Schroeder’s home provided Mr P is absent from the home.
27.It is further recommended that not before the September 2012 school holidays, the children spend two days and one overnight with Ms Schroeder during the term holidays.
28.In order that Ms Raleigh may feel reassured and confident that the children are spending time with their grandmother and not their father, it is recommended that Court orders define any limitations and requirements to Ms Schroeder’s time with the children and it may be necessary for Ms Schroeder and/or Mr P to give an undertaking to the Court.
29.Ms Raleigh and Ms Schroeder are encouraged to consider accessing counselling services to re-establish their relationship and communication between them.

Dr D

The Court was handed the psychiatric assessment prepared by

Dr D in relation to the grandmother dated 13 June 2012.

In the penultimate paragraph of his assessment, Dr D stated:
I could not identify any underlying mental health problems that needed to be considered in relation to Ms Schroeder being granted contact time with her grandchildren.
Dr D’s report was not challenged at the final hearing.

The Law

Section 60CA of the Family Law Act1975 (“the Act”) provides that:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
It is therefore incumbent upon me to determine this matter on the basis of what is in the best interests of Y and X.
This is done by me considering all relevant factors under section 60CC of the Act.
Many of the factors pursuant to section 60CC are worded such that they make reference only to a child’s parents. How the Court is to consider the specific provisions of section 60CC that refers to parents only in disputes between parents and non-parents has been considered in a number of cases by the Full Court.
In the matter of Simpson & Brockman [2009] 43 FamLR 32, at paragraph 121, the Full Court cited with approval the decision of Moore J in the matter of Potts & Bims [2007] FamCA 394. In Potts & Bims (supra), Her Honour was determining a dispute between the children’s parents and the maternal grandparents. Having considered the manner in which the Court should deal with those matters under sections 60CC(2) and (3), which make specific reference to parents only, Her Honour concluded that those subsections that referred specifically to “parents” could not be specifically considered in the context of parties who were not the child’s parent. Her Honour concluded however, that if the matters under sections 60CC(2) and (3), which were excluded for consideration because they made reference to “parents”, were relevant to the best interests of the children, then those factors could be considered by reference to the catchall provision of section 60CC(3)(m). Her Honour was of the view that this enabled the Court to consider all factors that are relevant to the best interests of the children in question, whether the parties to the proceedings were the children’s parents or not.
I am in complete accord that this is the appropriate approach that the Court should take when determining parenting issues between parties, where one or other of the parties is not a parent of the child.
I will therefore look at the provisions under section 60CC in relation to what is in the best interests of Y and X in the context of the dispute before me.
Section 60CC(2) of the Act sets out the primary considerations to be considered in determining what is in the children’s best interests.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents.

It is not relevant to the matter before the Court.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

The mother’s concern that Y and X may be exposed to physical harm if left in the grandmother’s sole care is well documented in this judgment.
This concern is based on the father allegedly telling the mother and

Dr J that he and his sister were both hit and bashed by the grandmother in their childhood.
The grandmother and the father deny that the father and his sister were hit and bashed by the grandmother in their childhood.
Whatever the mother’s concerns are as to how the grandmother parented her children, the mother concedes that the grandmother has never harmed Y and X when they have been in her care prior to separation or since the grandmother has been spending time with them pursuant to the orders made in February 2012.
Y and X have made no disclosures to the mother, the Report Writer or anyone else of their grandmother ever harming them.
As noted in this judgment, it is Ms S’s view that it is unlikely that Y and X will be at risk should they spend time with the grandmother.
Whilst the mother’s concerns are understandable, given the contents of Dr J’s report, I am satisfied that Y and X will not be at risk of inappropriate discipline when in their grandmother’s care.

Section 60CC(3)

Section 60CC(3) of the Act sets out the additional considerations to be taken into account when determining what is in a child’s best interest and will be considered, in turn, where relevant in this matter.

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

The observed warm, close and happy relationship between Y and X and their grandmother, Y’s wish to go to his grandmother’s house when Ms S saw them together and the mother’s own acknowledgement that Y and X love their grandmother confirms that Y and X do wish to have a relationship with their grandmother.

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)

The mother is Y and X’s primary carer and it is with her that they have their primary attachment.
Y and X are in the process of establishing their relationship with their father.
It is apparent that Y and X have a close and loving relationship with their grandmother and that they enjoy having ‘Nan’ in their lives.

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

This subsection is not to be considered in the context of this matter.

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

No separation from their parent or grandmother is proposed by the parties.

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

This subsection is not to be considered in the context of this matter.

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

I am satisfied that the mother and the maternal grandmother can provide for Y and X’s intellectual and emotional needs.

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

This subsection is not to be considered in the context of this matter.

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;

This subsection is not to be considered in the context of this matter.

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

This subsection is not to be considered in the context of this matter.

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

There are allegations of serious family violence by the father against the mother during the parents’ relationship. There is a current intervention order in place by the mother against the father. Whilst these factors are of real relevance to the matters between the mother and father, I am of the view that they do not impact on the grandmother’s application for additional time with Y and X.

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

Notation ‘A’ to the May 2011 consent orders between the mother and father provides as follows:
It is noted that the father has agreed to the final orders without prejudice to him seeking further time at the expiration of

12 months of time pursuant to paragraph 2(b).
Accordingly, the father has the option to seek an increase in his time with Y and X after June 2013.
It is the grandmother’s evidence that she expects the father to seek to extend his time with Y and X once that period has expired and that whilst she will support him in that application, she will not be a party to any proceedings instituted by the father.
It is the mother’s evidence that she is opposed to the father spending any increased time with Y and X.
Sadly, it appears that the matter is very likely to involve further litigation in the future unless the parents’ current positions alter.

Section 60CC(3)(m) any other fact or circumstance that the Court thinks is relevant

It is the submission of the Independent Children’s Lawyer that Y and X should have additional time with their grandmother over and above the time she sees them when they are spending time with their father.
The Independent Children’s Lawyer proposes that orders be made in the following terms:
(1)The applicant paternal grandmother shall spend time and communicate with the child Y born (omitted) 2003 (“Y”) and X born (omitted) 2008 (“X”) as agreed, but in default of agreement:
(a)each alternate weekend from 10.00am to 4.00pm Saturday to coincide with the day the Father is scheduled to spend with the children, regardless of whether or not the Father exercises time with the children;
(b)each alternate Wednesday (in the other week) from the conclusion of school (or 3.30pm if a non-school day) until 5.30pm;
(c)for two consecutive days and one night each school holiday period as agreed but in default of agreement from 10.00am on the Friday 5.00pm on the Saturday of the second weekend of such school holidays;
(d)for two hours at agreed times on the day before each of the children’s birthdays, Christmas Day and on the grandmother’s birthday (28 July) in the absence of agreement such time shall occur from 10.00am to 12.00pm if a non-school day and 3.30pm to 5.30pm if a school day;
(e)by telephone at any time the children wish to call the grandmother and otherwise between 6.30pm and 7.00pm on Sunday
(2)Unless agreed otherwise changeover shall occur:
(a)to and from school if applicable, otherwise;
(b)at (omitted) if that facility it available; and otherwise;
(c)at the (omitted) in (omitted).
(3)If the children are unavailable or unable to spend scheduled time as set out above the mother shall provide makeup time on the same day the next week.
(4)In order to facilitate telephone contact the mother shall:
(a)ensure that the Applicant Paternal Grandmother has her current telephone number at all times;
(b)allow the children to telephone the applicant when the children ask to; and
(c)ensure the children ring the applicant back if the children miss a call from the applicant.
(5)The applicant paternal grandmother may attend any of the children’s school events which grandparents are able to attend.
(6)In the event the mother invites the applicant paternal grandmother to attend therapeutic counselling of any kind, the grandmother shall attend for the same.
(7)The mother shall attend upon her GP for referral to such counselling as the GP may deem appropriate.
(8)The mother and the paternal grandmother are at liberty to provide a copy of the Family Report to any Counsellor (or the mother’s GP) attended by the parties pursuant to these orders.
(9)s65DA(2) and s62B orders and notations in the usual terms
(10)All extant applications be otherwise dismissed.
(11)Certify for advocacy.
AND THE COURT NOTES:
A.Nothing in these orders prohibits the grandmother from attending any time the children may attend with the father pursuant to any future Family Law Act order.

It is submitted on behalf of the Independent Children’s Lawyer that

Ms S makes clear recommendations that Y and X spend additional time with their grandmother. Whilst conceding the proposal for mid-week time goes beyond that which is recommended by Ms S, Counsel for the Independent Children’s Lawyer argues that the proposal for additional mid-week time accords with the spirit of the recommended additional time.
It is submitted by the Independent Children’s Lawyer that the despite the mother’s concerns that Y and X could be at risk in the grandmother’s care, she has no actual complaint of the care given to Y and X by the grandmother when they are with her.
Counsel for the Independent Children’s Lawyer notes that the mother agrees that Y and X have a loving and warm relationship with their grandmother as she does with them.
It is the Independent Children’s Lawyer’s submission that mother’s evidence objecting to additional time between Y and X and their grandmother is based on her feelings of betrayal by the grandmother at separation and is not based on there being any real risk to Y and X when they are with their grandmother.
The Independent Children’s Lawyer further submits that the mother has provided no evidence that Y and X spending time with their grandmother will impact on her parenting capacity.
The Independent Children’s Lawyer argues that given the mother’s agreement that the grandmother should continue to spend time with Y and X, albeit when the father is spending time with them, the mother accordingly agrees that Y and X will benefit from a continuing relationship with their grandmother.
It is the Independent Children’s Lawyer’s view that additional time between Y and X and their grandmother will be in their best interests and will ensure that that relationship can be sustained and grow.

Conclusion

There is no doubt that Y and X love and are loved by their grandmother. She is the grandparent who has been a part of their lives since birth. I am satisfied that it is in their best interests that this special grandparent/grandchild relationship continues into the future.
The mother argues that the grandchild/grandparent relationship can be maintained and nurtured by the grandmother spending time with Y and X when they spend time with their father for six hours each alternate Saturday.
It is submitted on behalf of the mother that if additional time is ordered between Y and X and the grandmother, the mother will suffer anxiety such that her parenting capacity will be adversely impacted.
It is argued that since separation, when the mother had some mental health issues, she has done an amazing job to get her life on track so that she is able to be a wonderful parent to Y and X. In circumstances where she is Y and X’s primary carer without financial or practical support, it is argued that it cannot be seen to be in Y and X’s best interests to make orders that could undo the mother’s progress since separation.
It is further submitted on behalf of the mother that it is not appropriate that Y and X should spend more time with a grandparent than they do with a parent and that, in reality, the grandmother’s application is nothing more than a backdoor attempt to increase the father’s time with Y and X.
It is argued on behalf of the grandmother that she wishes to have the opportunity to have an ongoing grandparent relationship with Y and X. While she is able to see Y and X when they are with their father, she is conscious that this is primarily their time with their father. What she is seeking is time with Y and X that is about their special relationship as grandmother and grandchildren. She denies her application is a backdoor attempt to obtain more time for the father to spend with Y and X.
The grandmother’s evidence that she has no objection to the father being present during any additional time that the Court ordered Y and X spend with her is of concern. It clearly shows a lack of insight on her part of the impact on the mother if that were to occur and also raises questions in my mind about the bona fide nature of her application.
However, having said that, this matter must be determined on the basis of what is in Y and X’s best interests.
I am satisfied that it is in Y and X’s best interests that they have a special relationship with their grandmother that is different to that which they have with their parents. That they currently spend relatively limited time with their father is not a reason, in my opinion, to place limits or constraints on their relationship with the grandmother or their time with her.
It is submitted on behalf of the mother that an order for additional time between Y and X and their grandmother would impact on her parenting capacity. I do not accept that argument. Nowhere in the mother’s evidence does she raise this as a concern. She gave evidence that she continues to receive counselling, but there is no evidence from her counsellor that Y and X spending additional time with the grandmother will impact on her or create undue anxiety for her.
Further, in the Family Report at paragraph 9 , Ms S notes the mother to be confident and that the mother felt:
… well recuperated, no longer needing anti depressants and is managing well both with part time work and as a full time solo parent.
Having determined that it is in the best interests of Y and X that they have some additional special grandmother time, the question is what should that time be?
The grandmother and the Independent Children’s Lawyer propose that there be two days and one night in the school holidays, time after school, time on special occasions, grandparent days at school and preschool and telephone time.
The mother, together with Ms S and the grandmother herself, questioned X’s readiness for overnight time away from the mother, given her very young age.
I am of the view that Y and X should be able to go to their grandmother’s house for a holiday, as do many grandchildren.
Given X’s young age and the mother’s evidence that she has not had any regular sleepovers as yet, orders will be made that Y and X spend from 8.30am to 5.30pm on the first Friday of the third term holidays and first term holidays 2013 with the grandmother. An order will also be made for Y and X to spend two Fridays with the grandmother in the long summer vacation 2012/2013 on days as nominated by the mother.
Commencing the second term holidays in 2013 (by which time X will be almost five) orders will be made for Y and X to spend two days and one night with the grandmother in all school holidays, being from 8.30am Friday to 4.00pm Saturday in the final week of the term holidays and as nominated by mother in the summer vacation commencing 2013/2014.
In relation to the proposal for Y and X to spend alternate mid-week time with the grandmother, such time was not recommended by Ms S, the Report Writer. The proposed time is only for one and a half hours, and in circumstances where the grandmother does not drive, where the mother wishes there be no changeover to take place at schools, where X is not starting school until 2014, where the proposed time is 3.30pm to 5.00pm, and it would be impossible for X and Y to get to a neutral location for change earlier than 4.00pm, I can see very little advantage to Y and X spending an hour a fortnight with their grandmother. Accordingly, I will not make orders in the terms sought by the grandmother or as recommended by the Independent Children’s Lawyer.
Special occasions like birthdays and Christmas should be family affairs. I am of the view that Y and X should be able to share them with their grandmother. Accordingly, I will make orders that Y and X spend time with the grandmother for two hours on the day before their birthday and on Christmas Eve and on the grandmother’s actual birthday at times agreed between the parties and, failing agreement, from 10.00am to 12.00 noon on a non-school day and from 3.30pm to 5.30pm on school days.
The grandmother seeks orders that Y and X be able to call her if they wish to do so. The Independent Children’s Lawyer proposes that there be a set time each Sunday between 6.30pm and 7.00pm when the paternal grandmother is able to speak to the children.
Given that Y and X speak to their father on alternate Sundays and that during those calls the grandmother speaks to them, I cannot see any merit in a separate call from the grandmother.
Whilst I think it would be really nice for Y and X to be able to call their grandmother when they have exciting news for her, given the mother’s lack of trust of and ongoing antipathy towards the grandmother, such an order would, I believe, interfere with the mother’s sense of security in her own home.
Accordingly, no orders will be made in relation to telephone communication between Y and X and the grandmother.
To her credit, the mother has agreed that it is important for Y and X that their grandmother be able to attend special grandparent events at Y and X’s school and pre-school. An order will be made that the grandmother be authorised to attend such events and requiring the mother to notify the grandmother of those events.
Changeover for the time the grandmother spends with Y and X shall take place at (omitted), and if (omitted) is not available, at the (omitted) in (omitted), the alternate venue suggested by the mother.
In the event the father should fail to spend time with Y and X in accordance with orders of this Court, I am of the view they should continue to spend regular time with the grandmother, and orders will be made accordingly.
All of the orders proposed are predicated on the grandmother and father giving a further undertaking to the Court that the father will not be present during any additional time Y and X are spending with their grandmother pursuant to these orders. Further, an order will be made that all time Y and X spend with the grandmother pursuant to these orders will be absent of the father, save and except for the time the grandmother spends with Y and X when they are spending time with the father pursuant to any order of the Court.
Finally, whilst Ms S and the Independent Children’s Lawyer suggest that the mother and grandmother attend counselling with a view to re-establishing their relationship and bettering their communication, the mother’s rejection of that proposal is such that I can see little being gained in making such an order, even though it would be in Y and X’s best interests if their mother was able to move beyond her distrust of the grandmother and be able to communicate directly with the grandmother about Y and X.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 16 August 2012