Sheldon and Abraham and Ors - [2013] FCCA 48

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHELDON & ABRAHAM & ORS

[2013] FCCA 48

Catchwords:
FAMILY LAW – Interim – mother deceased – father facing unrelated criminal proceedings – three year old child living with paternal grandparents – maternal grandmother seeking parenting orders – supervision of child’s time with maternal grandmother.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65C, 65D, 65DAA

Goode & Goode(2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346
McKenzie & Edwards& Anor [2006] FamCA 1314

Applicant:

MS SHELDON

First Respondent:

MR ABRAHAM

Second Respondent:

MS ABRAHAM

Third Respondent:

MR Y ABRAHAM

File Number:

SYC 7690 of 2010

Judgment of:

Judge Monahan

Hearing date:

15 March 2013

Date of Last Submission:

15 March 2013

Delivered at:

Sydney

Delivered on:

19 April 2013

REPRESENTATION

Counsel for the Applicant:

Not Applicable

Solicitors for the Applicant:

David H Cohen & Co

Counsel for the First Respondent:

Not Applicable

Solicitors for the First Respondent:

James Papas Solicitors

Counsel for the Second and Third Respondents:

Not Applicable

Solicitors for the Second and Third Respondents:

Phillip A. Wilkins & Associates

Independent Children’s Lawyer:

Peter Baker Solicitors

ORDERS

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

The Orders made on 15 March 2013 continue in full force and effect with the exception of paragraph 4 and 5 therein which are discharged.
The child X, born on (omitted) 2010, (“the child”) spend time with MS SHELDON (“the Applicant Maternal Grandmother”) as agreed or, failing agreement, as follows:
(a)for two (2) hours at times to be agreed or, failing agreement, from 10:00am until 12noon at the (omitted) Play Centre at (omitted) (“(omitted)”) on:
i)27 April 2013;
ii)11 May 2013;
iii)25 May 2013;
iv)8 June 2013;
(b)for four (4) hours at times to be agreed or, failing agreement, from 10:00am until 2:00pm, at (omitted) on 22 June 2013, with changeover to occur at the (omitted) Contact Centre at (omitted);
(c)for four (4) hours at times to be agreed or, failing agreement, from 10:00am until 2:00pm, commencing on 6 July 2013 and each alternate Saturday thereafter with changeovers to occur as agreed or, failing agreement, at the (omitted) Contact Centre at (omitted), and with such time to be spent as agreed or, failing agreement, at public venues chosen by the maternal grandmother.
Unless otherwise agreed, the Applicant Maternal Grandmother be restrained from the following:
(a)removing the child from (omitted) when spending time with the child pursuant to paragraph 2(a) herein; and
(b)taking the child to her residence or the residence of any third party during the time that the child spends with her pursuant to these Orders.
The Applicant Maternal Grandmother and the First Respondent Father, MR ABRAHAM, each pay half of any fee charged by the (omitted) Contact Centre at (omitted) to facilitate paragraphs 2(b) and (c) herein.

AND THE COURT NOTES THAT:

(A)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 are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 7690 of 2010

MS SHELDON

Applicant

And

MR ABRAHAM

First Respondent

MS ABRAHAM

Second Respondent

MR Y ABRAHAM

Third Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings commenced by the Applicant, MS SHELDON (“the maternal grandmother”), in relation to the child, X, born on (omitted) 2010 (“X” or “the child”). The First Respondent is MR ABRAHAM (“the father”) and the Second and Third Respondents are MS ABRAHAM AND MR Y ABRAHAM (“the paternal grandparents”) Sadly, X’s mother, Ms G, passed away on 30 November 2010 after having fallen into a coma while experiencing problems during a rapid drug detoxification procedure.
The purpose of this decision, arising from an interim hearing conducted on 15 March 2013, is to determine whether or not the maternal grandmother’s time with X should remain supervised and/or whether such time should be spent at places other than the play centre known as (omitted) at (omitted).

Background of the parties

It appears that the mother and father commenced a relationship in about 2005/2006. It also appears that they had a somewhat tumultuous relationship marked by illicit drug use.
As stated, X was born on (omitted) 2010 and is currently three years of age. In September 2010, both the mother and father went through a rapid detoxification programme (the mother after having already been on the methadone programme earlier that year). Tragically, the mother suffered heart failure during the procedure and went into coma. On 10 October 2010 the mother was taken off life support and later passed away on 30 November 2010.
Since September 2010, X has lived with the father in the home of the paternal grandparents.
The Court understands and appreciates that the passing of X’s mother’s was an incredibly difficult time for both the maternal and paternal families. Unfortunately, it appears that this tension and grief erupted into several incidents at the hospital and has gone a long way toward creating discord and high conflict between the families.
The current parenting arrangements are that X lives with the father and the paternal grandparents (in addition to a paternal aunt and uncle) in (omitted), a Sydney suburb. The maternal grandmother lives with one of her daughters, Y (aged 16), also in (omitted). In accordance with interim Orders that were in place for nearly 12 months up to the date of the interim hearing, X spent time with the maternal grandmother at the (omitted) Contact Centre. Details of the current interim Orders are extracted in these reasons.

Procedural background

The maternal grandmother commenced these proceedings over two years ago by way of her Initiating Application filed on 7 December 2010. The matter first came before me on an urgent basis in my duty list on 15 December 2010. Following the making of Orders in relation to service, the maternal grandmother and the father appeared before me on 1 February 2011. On that occasion I directed that they attend a Child Dispute Conference with a family consultant on 17 February 2011, and I otherwise adjourned the matter for further mention on 2 March 2011.
On 2 March 2011, I made orders for an Independent Children’s Lawyer (“ICL”) to be appointed. This was appropriate given the circumstances and was also a recommendation made by the family consultant, Ms M, who had convened the Child Dispute Conference.
Ms Baker was subsequently appointed as ICL and appeared before me on 5 April 2011. The matter was adjourned to 11 May 2011, at which time I allocated final hearing dates of three days commencing on 16 May 2012 and made associated directions which included a direction for a family report to be prepared and released by late February 2012.
A family report was subsequently prepared by Regulation 7 Family Consultant, Dr J, and released by me on 15 February 2012 (“the Family Report”). In light of the recommendations made in the Family Report, I re-listed the matter for mention on 15 March 2012 to ascertain whether the final hearing listing remained appropriate.
On 15 March 2012 the parties duly attended before me and the hearing dates were confirmed. I also made Orders for the father to undertake urinalysis testing upon the request of the ICL and directed the parties to investigate and liaise with appropriate contact centres so that that material would be before the Court at the final hearing.
The final hearing did not proceed as listed on 16 May 2012 with the consent of the parties. On that occasion the Court agreed to re-list the matter for final hearing of not more than two days commencing on 12 November 2012. Apart from making procedural orders, the Court also made the following parenting Orders with the consent of the parties:
“1.The child X (‘X’), born (omitted) 2010, shall live with the father.
2. X shall spend time with the applicant maternal grandmother once each month at the (omitted) Contact Centre (‘the contact centre’) for two hours, supervised, on the dates and during the hours offered by the contact centre.
3.The maternal grandmother and the father shall each pay half of the costs of the contact centre for the times X spends there with the maternal grandmother in accordance with order 2.
4.Neither party shall speak to or about the other party in an insulting, aggressive or disrespectful manner in the presence of X or within her hearing.”
On 26 October 2012, the paternal grandparents caused an Application in a Case to be filed (“the AIC”). The AIC sought the Court’s leave for the paternal grandparents to be joined in the proceedings and was made returnable by me to 2 November 2012. This was considered necessary because of the father having been charged with a number of criminal offences unrelated to his parenting of X.
On 2 November 2012, I made Orders joining the paternal grandparents to these proceedings. There were also Orders that vacated the final hearing listings of 12 and 13 November 2012 and sought the preparation of an updated family report.
Dr J prepared an updated family report which was released by me on 19 December 2012 (“the Updated Family Report”).
The parties returned before me for further mention on 20 February 2013. On that occasion, after having heard from the parties legal representatives as to the extent of the issues in dispute, it became clear that the significant interim issue in dispute was whether the supervision of X’s time with the maternal grandmother should continue or not pending final hearing of the matter. Consequently, I listed the matter for an interim hearing on that discreet issue on 15 March 2013.
On 15 March 2013, the hearing proceeded limited to the issues described above (“the interim hearing”). At the interim hearing, the maternal grandmother was represented by her solicitor, Mr Cohen, the father by his solicitor, Mr Papas and the paternal grandparents by their solicitor, Ms Wilkins. Ms Baker appeared in her capacity as ICL. Following submissions from the parties and the ICL, I reserved my decision to a date and time to be fixed.
The following interim parenting orders were also made by consent at the interim hearing:
“3.X born (omitted) 2010 (‘the child’) live with the First Respondent Father (‘the father’) and the Second and Third Respondent Paternal Grandparents (‘the paternal grandparents’) at the residence of the paternal grandparents.
4.The child spend time with the Applicant Maternal Grandmother (‘the maternal grandmother’) as agreed or, failing agreement, as follows:
a)for two (2) hours at the (omitted) Contact Service at (omitted) on 16 March 2013 and 13 April 2013; and
b)at the (omitted) [Play] Centre at (omitted) from 10:00am until 12noon 30 March 2013 and 27 April 2013; and
c)commencing 11 May 2013 from 10:00am until 12 noon each alternate Saturday at the (omitted) Play Centre at (omitted).
5.For the purpose of paragraph 4(b) and 4(c) herein, the maternal grandmother be restrained from removing the child from the (omitted) Play Centre at (omitted).
6.Each party be restrained from denigrating:
a)the other party;
b)any partner of the other party; or
c)any family member of the other party
in the presence of the child.
7.The Father is restrained from driving any motor vehicle in which the child is a passenger.
8.Paragraphs three (3) to six (6) of the Orders made on 15 March 2012 continue in full force and effect. ”

Issues and proposals

As stated, the issues in dispute at the interim hearing were firstly, whether the time that X spends with the maternal grandmother should transition to unsupervised time and/or, secondly, whether any such time should be spent at places other than (omitted), (omitted).
In her Initiating Application, the maternal grandmother seeks orders for the child to live with her and spend supervised time with the father. The maternal grandmother also sought numerous interim orders in that application including that the child’s name be placed on the airport watchlist. It would appear that the maternal grandmother now seeks orders for X to spend time with her rather than for residence and foreshadowed that she would soon be filing an Amended Initiating Application to reflect that change.
Consequently, the maternal grandmother substantially supports the ICL’s proposal and seeks that X spend time with her as follows:
·    for a period of three months:
·    for two (2) hours on one occasion per month at the (omitted) Contact Service at (omitted), on the dates and during the hours offered by the Contact Centre; and
·    for one Saturday per month at the (omitted) Play Centre at (omitted) from 10:00am until 12:00 noon to commence on 16 March 2013 and on each fourth Saturday thereafter;
·    thereafter for a period of three (3) months, from 10:00am until 12:00 noon each alternate Saturday at the (omitted) Play Centre at (omitted); and
·    thereafter from 10:00am until 2:00pm each alternate Saturday;
·    at such other times as agreed between the parties.
In addition to those interim orders made by consent on 15 March 2013 (as extracted above), the parties also agreed with the ICL’s proposal that, should the Court decide that X can spend unsupervised time with the maternal grandmother at her residence, there should be a restraint on the maternal grandmother allowing any other person to be present at her residence when she is caring for X, except for her daughter Y.
I would note that the ICL also sought orders in relation to parental responsibility in her case outline document, however, that was not an issue requiring determination at the interim hearing, nor was it the subject of any lengthy submissions. That said, in the orders of 15 March 2013, I made the following notation:
“Parental responsibility may become a live issue should the father be incarcerated as a result of his pending criminal proceedings.”
The father and paternal grandparents seek that the current interim orders (that were consented to on the day of the interim hearing) remain in force. That said, should the Court be against them on that, then they sought that all changeovers occur at (omitted) Contact Centre and that any such time be for no longer than two (2) hours.

Submissions

In addition to providing case outline documents, each of the parties’ legal representatives, and the ICL, made oral submissions. The following is a brief summary only.

ICL’s submissions

Ms Baker, as the ICL, submitted that X should spend time with the maternal grandmother in an unsupervised setting for longer periods of time in order to properly develop a relationship between them. Ms Baker submitted that X will, in all likelihood, grow tired and bored of spending time at (omitted) and that a bit of variety in the encounters between X and the maternal grandmother would be beneficial.
Ms Baker referred the Court to the Family Report, in particular to paragraph 45, which states:
“Due to her age, and the fact that she has not seen Ms Sheldon for some months, Ms Abraham remained in the room with X when Ms Sheldon and her daughter arrived. This was the family consultant’s request. Ms Abraham left the room about 10 minutes after Ms Sheldon [sic] arrived. The two women initially started bickering but were instructed to desist for [X]’s sake and both contained themselves. Ms Abraham slipped out of the room leaving X with her maternal grandmother and aunt. X fairly quickly engaged in play with them and appeared quite settled. X asked for her father on two occasions, once after about 30 minutes and again after about 50 minutes, when the observation was drawing to a close. However, she was quickly distracted by Ms Sheldon who engaged her in play. Ms Sheldon and Y engaged appropriately with [X]. X parted from them without distress. This would be anticipated bearing in mind that she only has a limited relationship with either woman. She appeared happy to be reunited with her father.”
Ms Baker also referred the Court to paragraph 52 of the Family Report and asked the Court to note that X has spent time with the maternal grandmother in a contact centre from August 2012. Ms Baker also submitted that the particular recommendation made was for X to spend unsupervised time (emphasis added) with the maternal grandmother at the end of six months of time spent occurring in a contact centre, with future changeovers to occur at the contact centre. If Dr J’s recommendation had been implemented, then unsupervised time would have been introduced by mid-2013.
Ms Baker expressed her great concern as to the relationship and attitude between the maternal grandmother and the paternal family and how this could increasingly have an impact on X. In support of these concerns Ms Baker referred to paragraphs 50 and 53 of the Family Report. This is also extremely concerning to the Court as well. The poor opinion of the maternal grandmother held by the paternal family is arguably destructive and simply unhelpful. Reference was also made by Ms Baker to paragraphs 10 and 11 of the father’s affidavit e-filed on 12 March 2013. The content of these paragraphs are extremely disturbing to the Court. Moreover, the inappropriateness of the father stating that the maternal grandmother’s “life experiences, family values and character offer nothing that would benefit X” is obvious. Ms Baker went on to suggest that this may be something that could be worked through with the assistance of family therapy or the like. Certainly, there is a need for the parties to actively promote the relationship X has with the other, and not the opposite.
It was also submitted by the ICL that the alleged danger presented by the maternal grandmother, in particular the assertions that X would not be safe in her care, have been overplayed by the father and paternal grandparents. While Ms Baker acknowledged that the maternal grandmother has had a “rocky past”, her intentions in respect of wishing to get to know her granddaughter appeared to the ICL to be genuine. In addition, Ms Baker submitted that there is no evidence that X will be at risk whilst in the care of the maternal grandmother if the orders sought by the ICL are favoured by the Court. The Court agrees with the ICL’s submission that the maternal grandmother should be given due credit for making such efforts to be involved in X’s life.
Ms Baker also submitted that, basically, it has come to the point where there is a need to move to unsupervised time, sooner rather than later, so that the maternal grandmother and X can form a proper attachment and also move to an arrangement which is more ‘normal’.
Finally, Ms Baker submitted that there is no evidence at this stage before the Court to validate the paternal family’s assertions as to random men visiting the maternal grandmother’s home, nor is there evidence as to Y being pregnant, so the Court cannot put much, if any, weight on such assertions. Ms Baker also tendered a number of contact centre reports which were marked as Exhibit “ICL1” and have been considered as part of this decision.

Maternal Grandmother’s submissions

Mr Cohen, for the maternal grandmother, endorsed those submissions made by the ICL and otherwise submitted that orders should be made for X to spend somewhere between four to eight hours a month with the maternal grandmother. Mr Cohen submitted that there is “no magic in the reduction to three hours” and there needs to be quality time spent between X and the maternal grandmother. Futhermore, he suggested that there are few activities that can be done with such limited time.

Mr Cohen objected to there being an injunction on any male persons being present at the time spent with X as there is no evidence at all that the child would be at risk, let alone any evidence about this aspect of the paternal family’s case before the Court at all.
Mr Cohen reiterated the submission of the ICL that the maternal grandmother has been consistent in her persistence in obtaining time with X.

Father’s submissions

Mr Papas, for the father, confirmed that the father seeks orders as recommended in the Family Report which are orders to be made on a final basis. Mr Papas acknowledged that those would be orders to be made after the evidence had been properly tested by cross-examination and the like.
Mr Papas submitted that, of all those involved, the father knows the maternal grandmother the best and his fears come from that knowledge and past experiences. The father asserts that he has concerns flowing from the maternal grandmother’s difficulties with her past partners and her own children.
Mr Papas submitted that any unsupervised time needs to be tested and that should the Court order unsupervised time; it should be limited to two hours only. In addition, it was submitted that the time at (omitted) isn’t strictly being supervised and does allow for X and the maternal grandmother to have ‘normal’ interactions and get to know each other.
The father conceded, through Mr Papas, that he has himself had serious problems and “a patchy past” given his drug addictions and criminal charges. Mr Papas rightly acknowledged that the father is very fortunate that he has his parents’ support in his life.
Mr Papas also submitted that despite the ICL’s reference to paragraph 35 of the Family Report, the comments made at paragraph 20 of the Updated Family Report are more recent and indicate an improvement in the parties’ relationship.

Paternal Grandparents’ submissions

Finally, Ms Wilkins, for the paternal grandparents, indicated that she agreed with those submissions made by Mr Papas and the orders sought by the father. In addition, Ms Wilkins submitted that the orders that X spend two hours a fortnight with the maternal grandmother, rather than the four hours sought by the ICL, are sought because X is still very young and has a very close attachment to them. Ms Wilkins suggested that this is an “untested environment”, and that the paternal grandparents are concerned that X would not cope well being away from them for any longer period of time.
Ms Wilkins otherwise reiterated the safety concerns expressed by Mr Papas and in the material filed by the father and the paternal grandparents.

Submissions in reply

In reply, Mr Cohen restated that there is no evidence as to the safety concerns only that which the father says or knows from the maternal grandmother’s history. In addition, Mr Cohen also submitted that two hours is simply not enough time to develop a relationship and further suggested that such limited time is not normal.

Law and discussion

All parenting proceedings are governed by the provisions of Part VII of Family Law Act 1975 (“the Act”). Under s.65D of the Act, the Court has the power to make a parenting order “as it thinks proper”. Parenting orders are defined in s.64B of the Act and deal with matters such as where a child is to live and the time a child is to spend with another person. Parenting orders may also allocate parental responsibility in relation to a child.
Under s.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 s.65C(ba) of the Act is noteworthy in this case. Although this specific provision was only inserted into the Act by the amendments that commenced in 2000,[1] grandparents still had capacity to seek parenting orders under s.65C(c) of the Act (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”.
[1] As amended by Family Law Amendment Act 2000 (Cth), Schedule 3, section 45.
Given that the maternal grandmother is not a “parent” of X, and that no party is pressing for any orders as to parental responsibility to be made at this stage, I am not required to consider ss.61DA and 65DAA of the Act for the purpose of these proceedings.
Section 60CA of the Act provides:
“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.”
Section 60CA through s.60CC of the Act deal with how the Court determines the best interests of children. Of most relevance to these proceedings are the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3), where relevant. I will consider these briefly later in this decision.
This being an interim hearing, the Court is guided by the decision of the Full Court of the Family Court of Australia (“the Full Court”) in the case of Goode & Goode(2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346 (“Goode”) guides the Court’s approach when making interim decisions and interim orders in respect of parenting disputes. At this point, I note the comments of the Full Court[2] at paragraph 81 of the Goode decision:
“In making interim decisions, the court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
[2] Per Bryant CJ, Finn and Boland JJ.
Clearly, this is such a case. More specifically, it raises the reality the Court cannot fully determine issues of credit at the interim hearing as the evidence being presented by the parties has not been tested by cross-examination. Nevertheless, the Full Court made it very clear in Goode that the legislative pathway must be followed. In other words, the relevant provisions of the Act post the 2006 shared parenting amendments, as further amended by the 2012 family violence amendments when applicable,[3] must be followed.
[3] These proceedings were commenced before 7 June 2012.
That said, I note again that the present dispute is not between X’s parents but rather is a broader contest between the maternal grandmother, the father and the paternal grandparents. Consequently, there is no presumption in favour of equal shared responsibility pursuant to s.61DA of the Act and nor is there any triggering of the provisions of s.65DAA of the Act.
Sadly, there is considerable animosity and distrust between the maternal and paternal families in this case and no doubt the history of this and these parties will be the subject of evidence in cross-examination at the final hearing, should one proceed.

Primary considerations: s.60CC(2)

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

I note that as the applicant maternal grandmother is not a parent, the primary consideration in s.60CC(2)(a) is not relevant as far as she is concerned. This would also apply to the paternal grandparents. Nevertheless, the relevance of familial relationship, meaningful or otherwise, between children and their grandparent or grandparents arises from a number of the additional considerations.
Therefore this provision has no specific relevance to the present dispute[4] as this primary consideration relates to a child having a meaningful relationship with both parents, and not a parental substitute. The word ‘parent’ must be strictly read.[5] 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”.[6]
[4] Aldridge v Keaton [2009] FamCAFC per Bryant CJ, Boland and Crisford JJ at [45].
[5] Potts & Bims & Ors [2007] FamCA 394 per Moore J at [8]; Samson & Jacks [2008] FamCA 176 per O’Ryan J at [18] and [23].
[6] McKenzie & Edwards & Anor [2006] FamCA 1314 at [35].
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 s.60B(2)(b) of the Act, the children have a right:
“… to spend time on a regular basis with, and communicate on a regular basis with, … other people significant to their care, welfare and development (such as grandparents and other relatives)”.
Not surprisingly, this fundamental right of children is subject to the proviso that it must not be contrary to their best interests.
That said, the relationship between children and grandparents is nonetheless relevant under s.60CC(3)(m) of the Act, which will be discussed shortly.

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

In the circumstances of the application being considered today, there are no relevant allegations or assertions that the children have been or will be “subjected to, or exposed to, abuse, neglect or family violence.”
I note that no Notice of Child Abuse or Family Violence has been filed in these proceedings. Nevertheless, the Court notes that concerns and allegations have been made against the parties in these proceedings, in particular, the father and the maternal grandmother.
That all said, there appears to be consensus between the parties that the interim orders agreed to provide sufficient protections and ‘checks and balances’ to protect X from being subjected to, or exposed to, abuse, neglect or family violence. In this regard I am referring to the restraint on the father driving whilst X is a passenger and the maternal grandmother’s time with X being restricted.

Additional considerations: s.60CC(3) of the Act

Some of the additional considerations have no direct application in the case before me because the maternal grandmother, as indicated, is not a parent of X.
That said, issues such as “the views of the child” (as contained in s.60CC(3)(a) of the Act) has been something canvassed in both the family report and the updated family report. Given her young age, it was not possible, nor appropriate, for Dr J to interview X as part of her preparation for the two Family Reports. That said, Dr J provides her most recent observations of X with each of the parties in paragraphs 31 to 35 of the Updated Family Report.
As to s.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 her father and the paternal grandparents, but also by her maternal grandmother. That said, the level of acrimony, distrust and animosity between the parties is at such a high level that it is tangibly destructive.
The paternal grandparents and the father have serious concerns about the maternal grandmother in light of her parenting history with her own children, her lifestyle and her capacity to parent. They further allege that the maternal grandmother’s teenage daughter, Y, who currently lives with the maternal grandmother, has also fallen pregnant. The paternal grandparents allege that the maternal grandmother has frequent male visitors to her home as well as two unidentified men currently living with her.
That said, it is to the parties’ credit that they have been able, in more recent times, to focus more on X and her wellbeing. Despite their considerable difficulties – including, but not limited to, the tragedy of X’s mother’s early passing, the father’s ongoing criminal proceedings, and the history of drug abuse and lifestyle choices tied up with these parties – they have accepted the need to move away from using the contact centre. This is reflected in the current interim orders.
Unfortunately, despite their best endeavours, the parties simply cannot agree on how to transition out of the more controlled and contained environment of “(omitted)” to time being spent between X and the maternal grandmother at her residence or at other locations.
As to s.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 is, strictly speaking, not a relevant consideration in this matter, given the inter-generational dispute. That said, the lack of trust between the paternal family and the maternal grandmother is not encouraging.
In her case outline, Ms Wilkins states “trust needs to be built between them [the paternal grandparents] and the maternal grandmother.” I sincerely hope that this is possible between these parties as it appears, to date, that the paternal family still has very little faith or trust in the maternal grandmother. However, the paternal grandparents have indicated that they are no longer seeking that the maternal grandmother’s time be strictly supervised which is still a degree of progress, however minor.
The Court agrees that the parties do need more time and do need to take more steps towards building trust between them and moving on. It may be that family therapy of some sort may be of assistance.
I note that the maternal grandmother, while having concerns about the father caring for X on his own, acknowledged that the paternal grandmother cares for X very well.[7] In addition, the maternal grandmother noted that her relationship with the paternal grandmother had improved throughout 2012 in that they can at least be civil to each other.[8]
[7] Updated Family Report, dated 19 December 2012, paragraph 18.
[8] Updated family report, dated 19 December 2012, paragraph 19.
As to s.60CC(3)(d), “the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation”, it appears that X has already had substantial changes in her life despite just turning three years of age. The current interim orders were an acknowledgment by the parties that some further change was required.
As to s.60CC(3)(e), “the practical difficulty and expense”, this does not appear to be a major factor in this interim decision. I acknowledge that while there are costs associated with contact centres and play centres, these were not raised during submissions or in the case outlines as significant considerations for the Court. I would note that the (omitted) Play Centre at (omitted) is about 20 to 25 minutes drive from (omitted) Contact Centre and that all parties reside in (omitted).
As to the issue of “capacity” raised by s.60CC(3)(f), I note that the capacity of both the maternal grandmother and the father to care for X has been a constant issue in these proceedings. I refer to my comments made previously in this decision. I am also satisfied that the evidence would suggest that X is being well cared for in the paternal grandparents’ home.
In relation to s.60CC(3)(g) of the Act, the Court notes the allegations made by the paternal family against the maternal grandmother in respect of her engagement in sex work. These allegations, where relevant, would need proper testing. That said, there appears to be no other evidence before the Court to support these allegations.
Section 60CC(3)(h) is not relevant to the present dispute.
Although arguably s.60CC(3)(i) is not a relevant factor given the makeup of the parties, there are no specific issues to consider that have not already been stated in this decision. While it may be asserted that the paternal family’s reluctance to allow X to spend unsupervised time with the maternal grandmother is not particularly child-focused, their reasons appear to be deeply rooted in the poor relationship that has developed since the passing of X’s mother in 2010.
Unfortunately, this case has required the Court to consider ss.60CC(3)(j) and (k) of the Act. As the ICL states in her case outline document, though there are no current AVOs between the parties, there are subpoenaed documents which indicate a history of domestic violence and child protection concerns in the maternal family. In addition, the father has a criminal history and, as stated, is in the midst of criminal proceedings which are yet to be heard and determined.
The allegations made by the paternal family against the maternal grandmother, in particular in relation to her parenting capacity (which may be supported by material produced under subpoena) are nonetheless serious and consequently caution must be reflected in the interim orders that will be needed pending a final hearing. For example, it is conceded that the maternal grandmother’s 13 year old son, Z, is in state care and does not see the maternal grandmother because he does not wish to do so. The maternal grandmother asserts that Z has behavioural problems and has not been attending school for some time.
Section 60CC(3)(l) of the Act is not relevant to me as this is an interim decision, with further orders (particularly on a final basis) likely to be made in the foreseeable future.
In relation to s.60CC(3)(m) of the Act, I have already canvassed the children’s right under s.60B(2)(b) of the Act to “spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”. That said, I would reiterate that it is important for X to build upon and maintain a connection with the maternal family. It is incredibly unfortunate that X’s mother will not be able to know and nurture X. The importance of X having a real connection to her mother and her mother’s family needs to be remembered.
The father’s on-going criminal matters remain of concern to the Court. It would be a further tragedy to X should her father lose his liberty because of alleged criminal activity.
There is otherwise no other fact or circumstance that the Court thinks is relevant in the present dispute that has not already been discussed in this decision.
I note that s.60CC(4) is not a relevant consideration given the makeup of the parties to this dispute.

Conclusion

Having considered the respective applications and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied as follows.
Firstly, there will be further orders for X to spend time with the maternal grandmother for no less than four hours on each occasion on alternate Saturdays from 22 June 2013. On this first occasion on 22 June 2013, changeover will occur at (omitted) Contact Centre at (omitted) and then the maternal grandmother will take X to (omitted), a location familiar to X.
Secondly, from that time on there will be no supervision conditions on the maternal grandmother however there will be a direction that the time X spends with her be spent in public places and not at her residence nor at the residences of third parties. There is simply not enough evidence before the Court at this stage to make a finding about the suitability or unsuitability of the maternal grandmother’s residence.
In making these Orders, the Court agrees with the submissions of the ICL and Mr Cohen that there is no evidence of legitimate safety concerns for X in the maternal grandmother’s care and that the two hour period currently being spent is not enough time to form an attachment and develop an appropriate relationship.
The Court notes that the family consultant has clearly suggested that a range of places be utilised for the maternal grandmother’s time with X. Consequently, the Court agrees with the ICL’s submission that the utilisation of (omitted) is only a temporary solution.
In order for X to derive the most benefit from increased time spent with the maternal grandmother, it is advisable for a certain number of the lengthier visits to occur in surroundings familiar and comfortable to the child. As such, there should be a limited period during which X spends time with the maternal grandmother at the (omitted) Play Centre to which she has become accustomed. Once the child has had an opportunity to become comfortable with the more extended period of time with the maternal grandmother, it would be suitable for the time to transition to public places other than (omitted).

Finally, in order to ease tensions between the two halves of X’s family, changeovers will occur at the (omitted) Contact Centre, (omitted) in the immediate future. I note that this was an agreed position should the Court’s decision be that X spend unsupervised/unaccompanied time with the maternal grandmother. The maternal grandmother and the father will be equally responsible for the costs associated with using the contact centre for changeovers.
Given the Court’s decision to allow the maternal grandmother to spend time with X in public places, it would not be appropriate to make an order at this time restraining the maternal grandmother from allowing any third person (apart from her daughter Y) to be present at times that she spends with X.
Consequently, there will be specific orders for the maternal grandmother to spend time with X as follows:
(a)for two (2) hours at times to be agreed or, failing agreement, from 10:00am until 12noon at the (omitted) Play Centre at (omitted) (“(omitted)”) on:
i)27 April 2013;
ii)11 May 2013;
iii)25 May 2013;
iv)8 June 2013;
(b)for four (4) hours at times to be agreed or, failing agreement, from 10:00am until 2:00pm, at (omitted) on 22 June 2013, with changeover to occur at the (omitted) Contact Centre at (omitted);
(c)for four (4) hours at times to be agreed or, failing agreement, from 10:00am until 2:00pm, commencing on 6 July 2013 and each alternate Saturday thereafter with changeovers to occur as agreed or, failing agreement, at the (omitted) Contact Centre at (omitted), and with such time to be spent as agreed or, failing agreement, at public venues chosen by the maternal grandmother.
I propose listing the matter for final hearing of no longer than two (2) days at the earliest opportunity. I have capacity now to list the matter on 8 and 9 August 2013. This listing should allow for any contested travel plans (as sought by the paternal grandparents in their Response filed 4 March 2013) to be considered at the same time. This will also allow for several changeovers and unsupervised periods of time to occur with the maternal grandmother prior to the final hearing. The Court may need to reconsider the appropriateness of this two day listing should the maternal grandmother continue to press for the orders she seeks in her Initiating Application.
Assuming the maternal grandmother does file an Amended Initiating Application, then the issue of X spending time with the maternal grandmother at her residence, and possibly for overnight periods will be a matter for determination at the final hearing. At that time, the Court will need to consider the evidence that supports the assertions made as to the unsuitability of the maternal grandmother’s residence.
It appears that the issues for the final hearing will be focused on whether the child’s time can occur at the grandmother’s residence and whether that time should include overnight time. The allegations made against the maternal grandmother in relation to the safety or otherwise of her residence remain as mere accusations at this stage and, if pressed, will need to be determined at the final hearing.
Despite the acrimony brought about by these parties’ circumstances, these parties are X’s closest family. As she develops, X is going to need support and love, rather than being surrounded by negativity and conflict. Neither the maternal nor the paternal families come to this Court with entirely blameless records. That said, I note the reference in the Updated Family Report that the paternal grandmother has a good relationship with X’s maternal grandfather and his sister and that they would be visiting them, as well as X’s mother’s grave, to commemorate the second anniversary of the mother’s death[9] and other references in the Updated Family Report that the relationship between the grandmothers has improved somewhat.
[9] Updated family report, dated 12 December 2012, paragraph 30.
I note again that the maternal grandmother foreshadowed that she will need to file an Amended Initiating Application to reflect the orders she now seeks in relation to spending time with X. I will afford her an opportunity to do so in the trial directions I will make as part of the Orders to be pronounced.
All other existing parenting orders will otherwise remain in full force and effect.
There will be Orders and Notations of the Court to reflect this decision.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Date: 18 April 2013