Sheldon and Abraham and Ors (No.2)
[2013] FCCA 2167
•18 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHELDON & ABRAHAM & ORS (No.2) | [2013] FCCA 2167 |
| Catchwords: FAMILY LAW – Parenting – 3 year old child – child living with paternal grandparents – mother deceased and father incarcerated – discreet issues in dispute – time to spend by child with maternal grandmother – whether maternal grandmother’s partner may be present when child is spending time in maternal grandmother’s home – Rice & Asplund. |
| Legislation: Family Law Act 1975,ss.60CA, 60CC, 61DA, 64B, 65C, 65D, 65DAA |
| Bosch & Rickard [2011] FMCAfam 726 Marsden & Winch (2009) FamCAFC 152 McCall & Clark [2009] FamCAFC 92 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 |
| 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 dates: | 7, 8 and 9 August 2013 |
| Date of Last Submission: | 9 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Graves |
| 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: | Ms Conte-Mills |
| Solicitors for the Second and Third Respondents: | Phillip A Wilkins & Associates |
| Counsel for the Independent Children's Lawyer: | Ms Bateman |
| Solicitors for the Independent Children's Lawyer: | Peter Baker Solicitors |
ORDERS
All previous parenting orders in relation to X, born (omitted) 2010 (“the Child”) be discharged.
MR Y ABRAHAM (“the Paternal Grandfather”), and MS ABRAHAM (“the Paternal Grandmother”), have equal shared parental responsibility for the Child.
The Child live with the Paternal Grandfather and the Paternal Grandmother (collectively the “Paternal Grandparents”).
Mr ABRAHAM (“the Father”), shall spend time with the Child:
(a)In the event that the Father and the Paternal Grandparents agree about the time that the Father shall spend with the Child, as is agreed between the Father and the Paternal Grandparents, or
(b)In the event that the Father and the Paternal Grandparents do not agree about the time that the Father shall spend with the Child, the Father shall spend time with the Child as is determined by the Paternal Grandparents.
In the event that the Father has failed to provide a specimen of the Father’s urine in accordance with paragraph 9 below (hereinafter referred to as the ‘Failure to Provide Urine Specimen’) the time that the Father shall spend with the Child shall be supervised, by one or more of the Paternal Grandparents, the Father’s siblings or the Father’s Sister-in-Law, for a period of 12 months from the date of the Failure.
In the event:
(a)That the Father provided a specimen of the Father’s urine (hereinafter referred to as ‘Urine Specimen’) in accordance with paragraph 9 below, and
(b)That the final report of the testing of the Urine Specimen (hereinafter referred to as the ‘Drugs in Urine Test - Final Report’) indicated that the Urine Specimen contained one or more of the following classes of drugs (hereinafter referred to as the ‘Drugs in Urine Test’):
(i)Amphetamine type substances,
(ii)Benzodiazepines,
(iii)Cannabis metabolites,
(iv)Cocaine metabolites, or
(v)Opiates,
the time that the Father shall spend with the Child shall be supervised by one or more of the Paternal Grandparents, the Father’s siblings or the Father’s Sister-in-Law, for a period of 12 months from the date that the Father provided the Urine Specimen.
Until the Father commences to spend time with the Child without the Father being supervised, the Paternal Grandparents or either of them shall request, in writing, on no less than and on no more than 12 occasions per calendar year, that the Father provide a Urine Specimen (hereinafter referred to as the ‘Request for Urine Specimen’).
Other than as provided for in paragraph 7 above, the Paternal Grandfather and the Paternal Grandmother are each restrained from providing the Father with notice of a Request for Urine Specimen.
So as not to constitute a Failure to Provide Urine Specimen, for the purposes of these Orders:
(a)The Father shall, within 24 hours of the Paternal Grandparents or either of them making a Request for Urine Specimen, do all things necessary to ensure that the Father provides the Father’s Urine Specimen in compliance with Australian/New Zealand Standard AS/NZS 4308:2008 ‘Procedures for specimen collection and the detection and quantification of drugs of abuse in urine’ (or such updated standard as is current from time to time).
(b)The Father shall provide all necessary directions to ensure that the respective Urine Specimen is subjected to a Drugs in Urine Test in compliance with Australian/New Zealand Standard AS/NZS 4308:2008.
(c)The Father shall provide all necessary authorities to ensure that the Drugs in Urine Test - Final Report is provided by the issuer of the Drugs in Urine Test - Final Report directly to the Paternal Grandparents or either of them.
(d)The Father is liable for all costs associated with the testing of the respective Urine Specimen and the provision of each respective Drugs in Urine Test - Final Report to the Paternal Grandparents or either of them.
The period of 12 months referred to in paragraphs 5 and 6 above is reduced by no more than the last continuous period that the Father has been tested whilst subject to Orders of the Drug Court of New South Wales, provided that:
(a)The Father was required to provide a Urine Specimen at least once per calendar month by operation of Orders of the Drug Court of New South Wales,
(b)The Father has not failed to provide a Urine Specimen that was required to be provided by operation of Orders of the Drug Court of New South Wales,
(c)The Father has not provided a Urine Specimen that contained one or more of the classes of drugs that are referred to in Order 6. above, and
(d)Evidence of requirements to provide a Urine Specimen, pursuant to paragraph (a) herein, and Drugs in Urine Test - Final Report(s) have been provided from the issuer of the Drugs in Urine Test - Final Report(s) directly to the Paternal Grandparents.
MS SHELDON (“the Maternal Grandmother”), shall spend time with the Child:
(a)In the event that the Maternal Grandmother and the Paternal Grandparents agree about the time that the Maternal Grandmother shall spend with the Child, as is agreed between the Maternal Grandmother and the Paternal Grandparents; or
(b)(b) In the event that the Maternal Grandmother and the Paternal Grandparents do not agree about the time that the Maternal Grandmother shall spend with the Child then such time occur on 28 December 2013 from 10:00 am until 2:00 pm and each alternate Saturday thereafter increasing by two hours (ie. from 10:00 am until 4:00 pm) on the relevant Saturdays after 15 April 2014 and increasing by a further two hours (ie. from 10:00 am until 6:00 pm) on the relevant Saturdays after 15 April 2015.
The Maternal Grandmother shall do all things that are necessary and reasonable to ensure that no person is present at the Maternal Grandmother’s residence at times when the Child is at the Maternal Grandmother’s residence, excepting lineal descendants of the Maternal Grandmother (but not excepting the Child’s Uncle Z), partners of lineal descendants of the Maternal Grandmother and the Maternal Grandmother’s Mother, hereinafter respectively referred to as an ‘Included Person’.
The Maternal Grandmother shall not leave the Child in the care of another person and shall ensure that the Child is in the care of the Maternal Grandmother at all times that the Child spends time with the Maternal Grandmother.
The Paternal Grandparents, or either of them, or their nominee, shall deliver the Child to the Maternal Grandmother at the Maternal Grandmother’s residence at the commencement of times that the Child spends with the Maternal Grandmother.
The Maternal Grandmother shall deliver the Child to the Paternal Grandparents, or either of them, at the Paternal Grandparents’ residence at the cessation of times that the Child spends with the Maternal Grandmother.
The Paternal Grandparents are permitted to take the Child from Australia to a place outside Australia or from New South Wales to a place outside New South Wales for up to six weeks each calendar year (“Periods of Travel”), provided that:
(a)Notice of at least two months is given to the Maternal Grandmother,
(b)A copy of the Child’s itinerary, return tickets, accommodation and contact details are provided to the Maternal Grandmother,
(c)If the travel is to a place outside Australia, a copy of the Child’s travel insurance policy and immunisation certificate, if relevant, are provided to the Maternal Grandmother.
(d)Make-up time is arranged as agreed between the Maternal Grandmother and the Paternal Grandparents and, failing agreement, for the equivalent time in the weeks immediately prior to and after the travel.
During Periods of Travel, the Paternal Grandparents shall facilitate communication via Skype between the Child and the Maternal Grandmother as is agreed between the Paternal Grandparents and the Maternal Grandmother, and, failing agreement, each Wednesday, with the call to be made between 3.00 pm and 3.30 pm Australian Eastern Standard Time or as soon as is practicable thereafter, and, in order for the communication to be facilitated, the Maternal Grandmother shall ensure that she has provided her Skype contact details to the Paternal Grandparents in a timely fashion. In the event that the Skype communication is unavailable, the Paternal Grandparents shall facilitate telephone communication between the Child and the Maternal Grandmother at the same time(s).
The Maternal Grandmother is at liberty to attend all of the Child’s school curricular and extra-curricular activities including cultural functions which are relevant to the Child which a parent would normally be entitled to attend.
In the event that the Child attends an extra-curricular activity that falls during the time that the Child spends with the Maternal Grandmother, the Maternal Grandmother shall ensure that the Child attends the activity or the Maternal Grandmother’s time shall commence at the conclusion of the extra-curricular activity. If the time that the Child spends with the Maternal Grandmother commences at the conclusion of an extra-curricular activity, the duration of the time that the Child spends with the Maternal Grandmother shall be the same as if the time that the Child spends with the Maternal Grandmother commenced at the time unaffected by this Order.
The Paternal Grandparents, or either of them, shall not arrange for the Child to attend extra-curricular activities during time that the Child is to spend time with the Maternal Grandmother if there is a viable alternative.
All parties are restrained from denigrating the other parties and/or members of their household and/or family either in the presence or the hearing of the Child, nor shall any party allow another person to do so.
The Maternal Grandmother is entitled to have reasonable telephone contact with the Child and the Paternal Grandparents shall do all things that are necessary and reasonable to facilitate that telephone contact occurring.
In the event that the Child is hospitalised, receives medical attention or becomes ill, to the extent that that illness impacts upon time that the Child is otherwise to spend time with the Maternal Grandmother pursuant to these Orders, the Paternal Grandparents shall notify the Maternal Grandmother of this as soon as is reasonably possible.
The Maternal Grandmother and the Paternal Grandparents shall keep each other informed of their current contact details including mobile and home telephone numbers and residential address and shall inform each other within 48 hours of a change to such contact details.
There be no order for costs.
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)Paragraphs 11(b), 12, 25 and 26 herein were made by the Court and all other orders were made with the consent of the parties.
(B)The Court was advised that all parties, with the exception of the paternal grandparents were legally aided and the Independent Children’s Lawyer did not propose to seek any costs against them.
(C)In the event that pursuant to paragraph 19 herein, the time the child spends with the grandmother commences after 10:00 am, the intention of that paragraph is that the time that the child spends with the Maternal Grandmother is to extend to make up any time missed.
(D)In appropriate circumstances, the father may file an Initiating Application seeking changes to paragraphs 2 to 10 herein but such changes not otherwise impact upon the child’s time to be spent with the maternal grandmother.
(E)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 (No.2) 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
And
| MS ABRAHAM |
Second Respondent
And
| MR Y ABRAHAM |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings that were commenced by the Applicant, MS SHELDON (“the maternal grandmother”), against the Respondents, MR ABRAHAM (“the father”), MS ABRAHAM (“the paternal grandmother”) and MR Y ABRAHAM (“the paternal grandfather”) (the Second and Third Respondents collectively “the paternal grandparents”).
The relevant child is X, born on (omitted) 2010 (“X” or “the child”).
Sadly, X’s mother, Ms G, died in late 2010. The Court acknowledges the grief that all parties, including X, would have suffered, and continue to suffer, following the death of Ms G.
The parties are in dispute in relation to X spending time with the maternal grandmother. The relationship between the parties has been strained since before Ms G’s death and remains so.
However, to their credit, the parties were able to resolve a number of issues related to this dispute during the course of the final hearing which proceeded before me on 7, 8 and 9 August 2013 (“the final hearing”). This matter is now contained to discreet or limited issues regarding the time X should spend with the maternal grandmother and who may be present during that time.
Background and Chronology
The interim judgment I delivered in this matter on 19 April 2013 provides a detailed summary of the background of this matter.[1] I do not propose to reproduce that background here, but will instead provide a short chronology and a brief background of events occurring since that decision.
[1] Sheldon & Abraham & Anor [2013] FCCA 48; see paragraphs 4 to 8 inclusive for a summary of the parties’ background and paragraphs 9 to 20 inclusive for a procedural history up to the date of the interim hearing.
I acknowledge and thank each party for providing the Court with a brief chronology of events with their case outline documents.
The chronology provided by the Independent Children’s Lawyer (“ICL”) is reproduced below with competing assertions made by the other parties noted.
(omitted) 1955: Paternal grandfather, Mr Y Abraham, born
(omitted) 1957: Paternal grandmother, Ms Abraham, born
(omitted) 1968: Maternal grandmother, Ms Sheldon, Born
(omitted) 1978: The father, Mr Abraham, born
(omitted) 1986: The mother, Ms G, born
2005/2006:The father and mother commenced a relationship [the paternal grandparents assert this was in January 2006]
(omitted) 2010: X born, both mother and father engaged in methadone treatment
September 2010: Both mother and father engage in rapid detoxification program [the maternal grandmother asserts this was 28 September 2010] during which mother suffered heart failure and admitted to intensive care at RPA Hospital [the maternal grandmother asserts this was 29 September 2010]
10 October 2010: Incidents between maternal and paternal family at the hospital
30 November 2010: Mother dies, X lives with father and paternal family
7 December 2010: Initiating application filed by Ms Sheldon against father
1 February 2011: Father files Response
17 February 2011: Interviews with Family Consultant Ms S, parties agree for X to spend supervised time with the maternal grandmother
April 2012: Parties commence intake with (omitted) Contact Service
19 September 2012: Father charged with driving offenses, drug offenses and goods in custody
2 November 2012: Paternal grandparents are joined to the proceedings
15 March 2013: Interim order made for X to live with paternal grandparents and spend time with maternal grandmother for two hours each fortnight
26 March 2013: Father given suspended sentence on condition of good behaviour bond for 18 months
19 April 2013: Further interim orders made for X to spend four hours with maternal grandmother
4 July 2013:Father further charged with drug possession, shoplifting and possession of a knife and taken into custody of Corrective Services NSW [the paternal grandparents assert the father was arrested in June 2013]
7 August 2013: Final hearing commences.
9 August 2013: Final hearing concludes.
At the final hearing, the maternal grandmother was represented by Ms Graves of counsel, the father by his solicitor Mr Papas, the paternal grandparents by Ms Conte-Mills of counsel and the ICL by Ms Bateman of counsel.
Areas of agreement
By the conclusion of the final hearing, the parties were able to agree to a comprehensive set of interim orders that I subsequently approved (“the August Orders”). In summary, those orders provide for the following:
·the paternal grandparents to have equal shared parental responsibility for X;
·X to live with the paternal grandparents;
·X to spend time with the father as agreed with the paternal grandparents (supervised and/or as determined by the paternal grandparents failing agreement);
·the father to undertake drug screening;
·X to spend time with the maternal grandmother for four hours on specified Saturdays including 16 November 2013 and each alternate Saturday thereafter pending final judgement;
·the maternal grandmother to be restrained from having any other person present at her residence when the child is spending time with her excepting an ‘included person’ referred to in the relevant order;
·the maternal grandmother to be present with the child at all times that the child spends time with her;
·changeovers to be facilitated by the paternal grandparents delivering the child to the maternal grandmother at the commencement of all relevant times and by the maternal grandmother delivering the child to the paternal grandparents at the conclusion of all relevant times;
·the maternal grandmother to be at liberty to attend all of the child school curricular and extracurricular activities;
·each party be restrained from denigrating the other party or members of their household and/or family either in the presence or the hearing of the child, or allowing any third party to do so;
·the paternal grandparents to facilitate the child having reasonable telephone communication with the maternal grandmother;
·paternal grandparents to notify the maternal grandmother in the event that the child is hospitalised, receives medical attention or becomes ill, to the extent that the illness impacts upon the child’s time with the maternal grandmother; and
·parties to keep each other informed of current contact details including telephone numbers.
The August Orders also provided for and enabled the paternal grandparents to travel with the child to (country omitted) for the period from about 2 September 2013 to 13 October 2013.
The Court was asked by the parties to make the August Orders on an interim basis for several reasons including clarity and to ensure that X indeed returned to Australia with the paternal grandparents from (country omitted). I saw merit in this path, and acceded to their request. As such, the orders made as a result of this decision will include an order discharging all previous parenting orders and then final orders in terms of paragraphs 2 to 29 of the August Orders (subject to any additions/variations on those discrete aspects in dispute). This will ensure clarity and that the final parenting orders are contained in the one document.
Issues
The remaining issues in dispute relate to the following:[2]
·Firstly, the default arrangements for the Child to spend time with the maternal grandmother after 16 November 2013;
·Secondly, whether paragraph 12 of the August Orders should be amended to include the maternal grandmother’s partner, Mr B, as an ‘listed person’ exception; and
·Thirdly, whether a notation should be included in the final orders that, in appropriate circumstances, the father may file an Initiating Application seeking changes to paragraph 2 to 10 of the August Orders.
Parties’ proposals
[2] See Notation A to the Orders made 9 August 2013.
Maternal grandmother’s proposal
The maternal grandmother’s Initiating Application sought orders for the child to live with her and spend time with the father and paternal grandparents.
However, by the commencement of the final hearing, the maternal grandmother had significantly altered her position and primarily sought orders for the child to spend regular time with her, including overnight time. That said, the grandmother ultimately decided not to pursue an application for the child to spend overnight time with her.
In respect of the three areas remaining in dispute, the maternal grandmother proposed:
·Firstly, a graduated ‘spend time with’ outcome (as initially proposed by the ICL)[3] whereby the child would ultimately spend time with her for up to 10 hours on alternate Saturdays commencing in October 2015 (that is, from 9:00 am until 7:00 pm[4]).
·Secondly, she agitated for paragraph 12 of the August Orders to be amended to include her partner, Mr B, as an ‘listed person’ exception.
·Thirdly, she had no position on whether a notation should be included in the final orders to indicate the possibility of the father filing a future application to vary the parenting orders (but not affecting the orders for the child’s time to be spent with her).
[3] Paragraph 10(b)(ii) of the relevant Minute of Orders (see Exhibit “ICL 3”) stated “That the Maternal Grandmother shall spend time with the child … From 23 November 2013 until 14 April 201[4], from 10.00 am until 4.00 pm, commencing on 23 November 2013 and each Saturday thereafter”. Paragraph 10(b)(iii) “That the Maternal Grandmother shall spend time with the child … From 15 April 2014 until 14 April 2015 from 10.00 pm until 6.00 pm, commencing on 19 April 2014 and each Saturday thereafter”.
[4] Ibid, paragraph 10(b)(iv).
Paternal Grandparents and the Father’s proposal
Similar to the maternal grandmother, the paternal grandparents and the Father (“the respondents”) amended their respective minutes of order a number of times throughout the final hearing. That said, in relation to the remaining issues in dispute the respondents argued as follows:
·Firstly, the respondents sought an outcome whereby the child would continue to spend time with the maternal grandmother on alternate Saturdays for four hours from 10:00 am until 2:00 pm until X’s 5th birthday on (omitted) 2015. The respondents thereafter propose a two-hour increase in the time to be spent each fortnight (i.e. from 10:00 am until 4:00 pm) until X’s 7th birthday on (omitted) 2017. Thereafter, the respondents propose a further two-hour increase in the time to be spent each fortnight (i.e. from 10:00 am until 6:00 pm) and oppose any further increase beyond that.[5]
·Secondly, they opposed any amendment to paragraph 12 of the August Orders that would include the maternal grandmother’s partner, Mr B, as a ‘listed person’ exception.
·Thirdly, the paternal grandparents had no particular position on whether a notation should be included, or did not oppose a notation being included, in the final orders to indicate the possibility of the father filing a future application to vary the parenting arrangments (but not in respect of the child’s time with the maternal grandmother). Such a notation was, not surprisingly, strongly agitated by the father.[6]
[5] Transcript, 9 August 2013, pages 36-37 (per Ms Conte-Mills and Mr Papas).
[6] Ibid, page 44.
ICL’s proposal
The ICL also amended her position on a number of occasions during the course of the final hearing. That said, in relation to the remaining issues in dispute the ICL’s final position was as follows:
·Firstly, the ICL supported a graduated increase in time that would effectively allow the child to spend a “full day” with the maternal grandmother.[7] She also supported the maternal grandmother’s proposal for a “more rapid” transition in the graduation of such time.[8] The ICL, in noting that the evidence of the family consultant (discussed later in these reasons) moved back from a recommendation of ‘10 hours’ to ‘8 hours’ in respect of time to be spent, suggested that there was “no real magic” in either outcome but was ultimatley ambivalent about which time she now supported.[9]
·Secondly, despite earlier supporting such a change, the ICL ultimatley opposed any amendment to paragraph 12 of the August Orders that would include the maternal grandmother’s partner, Mr B, as an ‘listed person’ exception.[10]
·Thirdly, the ICL had no particular position on whether a notation be included (or otherwise did not oppose a notation being included) in the final orders to indicate the possibility of the father filing a future application to vary the parenting arrangments (but not in respect of the child’s time with the maternal grandmother).
[7] Ibid, page 39 (per Ms Bateman).
[8] Ibid.
[9] Ibid.
[10] Ibid, page 38.
Documents
At the final hearing, and in addition to their Case Outline documents and Minutes of proposed orders, the parties relied on the following materials:
Maternal Grandmother:
·Initiating Application filed 7 December 2010;
·Affidavit of maternal grandmother sworn 6 December 2010;
·Affidavit of maternal grandmother sworn 10 May 2012;
·Affidavit of maternal grandmother sworn 7 March 2013; and
·Affidavit of maternal grandmother sworn 18 July 2013.
Paternal Grandparents:
·Response filed 4 March 2013;
·Affidavit of paternal grandmother sworn 24 July 2013;
·Affidavit of paternal grandfather sworn 24 July 2013.
Father:
·Response filed 1 February 2011;
·Affidavit of father sworn 31 January 2011;
·Affidavit of father sworn 12 March 2013;
·Affidavit of father sworn 5 August 2013.
A number of documents were also tended during the final hearing by the paternal grandparents and the ICL:
·Tagged page from the material subpoenaed from the (omitted) Contact Service (Exhibit “RG1”);
·Tagged pages from the material subpoenaed from the New South Wales police in respect of Mr B (Exhibit “RG2”);
·Tagged pages from the material subpoenaed from the Department of Family and Community Services in respect of the maternal grandmother and her children (Exhibits “RG3” and “RG4”);
·Family Report released 15 February 2012 (“ICL1”);
·Updated Family Report released 19 December 2012 (“ICL2”) ;
·Unsigned minutes of final orders made by consent and proposed orders for matters in dispute requiring judicial determination (“ICL3”).
Family Report
As stated, the initial report (dated 14 February 2012 and released 15 February 2012) written by Regulation 7 family consultant, Dr S, was tendered into evidence by the ICL and became Exhibit “ICL1” (“the initial report”).
The interviews for the initial report were conducted on 30 January 2012. Dr S outlines the relevant background, the current parenting arrangements, and the applications, proposals and issues in dispute in paragraphs 1 to 10 of the Report.
Dr S discusses the interview with the maternal grandmother in paragraphs 11 to 23, her interview with the father in paragraphs 24 to 34 and her interviews with the maternal grandmother in paragraphs 35 to 37. Dr S also interviewed one of the maternal aunts, Y; this interview is outlined in paragraphs 38 to 40.
X was just 22 months old at the time of the Report and Dr S provides an outline of X’s relationships with each of the parties in paragraphs 41 to 45. During those observations Dr S initially observed X with the maternal grandmother and the paternal grandmother as X “had not seen Ms Sheldon for some months” and went on to observe X with the maternal grandmother and her daughter, Y. In relation to these observations Dr S stated that:
“45.X fairly quickly engaged in play with [Ms Sheldon and her daughter] and appeared quite settled. X asked for her father on two occasions… However, she was quickly distracted by Ms Sheldon who engaged her in play. Ms Sheldon and Y engaged appropriately with X.”
Dr S provides the following evaluation in paragraphs 46 to 55 of the Report. She described X in the following terms:
“46. X presents as a somewhat indulged little girl, who appears well cared for, confident and happy.
47. X has been living with her father and his family since she was only a few months old and her father has had the full time care of her since her mother’s death. Her primary attachment appears to be to her father and paternal grandmother, as well as, in all likelihood, other members of her direct household, such as her paternal grandfather and aunt.”
As to the relationship between the parties, Dr S observed:
“50. There has been considerable conflict between Ms Sheldon and the Abrahams, possibly stemming from the hostile interactions which occurred between them at the hospital after Ms G fell into a coma. It was clear from the assessment that Mr Abraham and his mother are both very disparaging of Ms Sheldon and speak extremely rudely about her. Ms Sheldon is less openly negative about Mr Abraham, but repeatedly expresses her distrust of his apparent progress and general character.
51. Given the acrimonious relationship that exists between Ms Sheldon and Mr and Ms Abraham, the arrangements as they now stand by which Ms Sheldon is free to ring and arrange times to see X at a local café are unrealistic. At this juncture it would appear that any flexible, mutually agreed meetings are impractical.”
Regarding the time X should spend with the maternal grandmother, Dr S said:
“52.X is still too young to understand the nature of the conflict around her. She presents as a confident child, who is already used to spending time with a range of different adults. There was nothing from the assessment which would suggest that she would be unable to spend at least one or two hours with her maternal grandmother without any distress. This would almost certainly be done most effectively initially at a contact centre. Although the assessment did not identify any specific concerns about X spending short periods of time with her maternal grandmother it may be that, for the peace of mind of the Abraham family, some additional supervision or safeguards would need to be put in place. This may also protect Ms Sheldon against any allegations the Abrahams may make about her interactions with X. Ms Sheldon has stated that she is willing to undergo a urine test if required to do so.”
Dr S expressed some concern regarding the father and paternal grandmother’s use of “unpleasant terms” to describe the maternal grandmother, and suggested that it may “in the long term, prevent [X] from being able to form an appropriate relationship with her maternal grandmother”.[11]
[11] Family Report, 14 February 2012, paragraph 53.
Dr S went on to suggest:
“54. It is important that X has some ongoing contact with members of her maternal family so that, as she grows up, she can learn about part of mother’s family history. She can also be told stories about her mother as a child, see photographs of her and have a sense of what she was like as a person.”
There were several recommendations made in the Report.[12] In summary they were that:
·the father have sole parental responsibility for X and for X to live with him;
·the father complete chain of custody drug urinalysis;
·X spend one hour with the maternal grandmother at a contact centre once a month for a 6 month period, after which, the time increase to two hours unsupervised and the parties discuss which maternal family members may be present during that time; and
·all parties be restrained from denigrating the other parties or members of that household in front of X.
[12] These were incorrectly referred to in the initial report as “paragraphs 49 to 54”; they should have been referred to as paragraphs 56 to 61.
Updated Family Report
The updated family report was again prepared by Dr S, dated 18 December 2012 and released by me the following day (“the updated report”). This report was also tendered into evidence by the ICL and became Exhibit “ICL2”.
The interviews for the Updated Report occurred on 7 December 2012 and included the paternal grandparents, the maternal grandmother and X.
In the updated report, Dr S re-outlined the background of the dispute, the current arrangements, the parties’ proposals and the issues in dispute. In relation to the parties themselves, Dr S made a number of observations.
Of note, in relation to the maternal grandmother’s current relationship, Dr S recorded that:
“16.Ms Sheldon stated that she is in a relationship with Mr B. She stated that they do not live together but that he does, on occasion, stay overnight at her house. Ms Sheldon reported that, as far as she is aware, Mr B would not present a risk to X. She said that he is “very anti drugs” and has three adult children of his own. She added that “there is no violence in my relationship with Mr B”. She stated that the ICL has subpoenaed information about Mr B. She added that Mr B did spent time in jail “a long time ago” but that this did not concern her because “we’ve all had a life”.”
Dr S made the following observations regarding X’s relationship with the paternal grandparents and the maternal grandmother:
“34. X appeared to have a good relationship with her paternal grandmother and grandfather. During the assessment neither made a significant effort to actively engage X in play, but they responded appropriately when she brought them toys to show. They did not appear to set any limits on the number of toys she took out or the mess she made.
35.X appeared unsettled when Ms Sheldon came into the room to spend time with her and did not want Ms Abraham to leave. Ms Abraham stayed in the room for about 15 minutes and X eventually become more settled. However, after about ten minute X again started to become distressed and eventually began to cry and sat in the corner of the room away from Ms Sheldon. Ms Sheldon tried hard to distract and soothe her but X rejected Ms Sheldon’s efforts. However, X responded to the Regulation 7 Family Consultants attempts to settle her, and once she had stopped crying, she played with Ms Sheldon. However, she frequently asked for her “(language omitted)” ((country omitted) for grandmother). Ms Sheldon interacted appropriately with X. When Ms Abraham returned to the room and talked to Ms Sheldon, X was much more settled. The women’s interactions were much more civil and calm than those observed at the original assessment in February 2012.”
In regards to the interaction between X and the maternal grandmother, Dr S stated that:
“40. The way X has been spending time with Ms Sheldon appears not to have improved the quality of their relationship. X appears to be distressed by having to spend time with Ms Sheldon without a member of her paternal family with her. It would be helpful to try and negotiate some way in which Ms Sheldon could spend time with X in the presence of a member of the Abraham family in a public place such as a playground. However, in the long term X’s ability to have a meaningful relationship with her maternal grandmother will rest on them capacity of Mr Y Abraham and Ms Abraham to develop a more cordial relationship with Ms Sheldon, and accept that she will have an ongoing role in the life of her granddaughter.
Dr S made the following recommendations in the updated report;[13] namely that:
· the paternal grandparents have parental responsibility for X, and that X live with them;
· the father’s time with X be supervised by a member of the paternal family;
· the paternal grandparents and maternal grandmother attend mediation to attempt to resolve the conflict;[14]
· if no resolution is possible, X should spend time with the maternal grandmother in a public place and in the presence of either paternal grandparent, for two hours, twice a month for 6 months after which X should spend the same time with the maternal grandmother unsupervised for 6 months; and
· after the 12 month period, X should spend time with the maternal grandmother for 4 hours per month, unsupervised.
[13] See paragraphs 41 to 44 of the updated Family Report, dated 18 December 2012.
[14] The ICL advised the Court that the parties had engaged in a legal aid-sponsored mediation prior to the final hearing.
Evidence of Dr S
Dr S was cross-examined by the parties and re-examined by the ICL regarding the initial report and the updated report.
When questioned by the ICL’s counsel, Dr S reiterated her view that allowing X to “work up to” a full day being spent with the maternal grandmother would be appropriate in order for a meaningful relationship to develop.[15] The family consultant was of the view that an increase to 6 hours being spent could occur by November 2013, and that a further increase to 8 hours could occur upon the child turning five years of age in 2015.[16] Although Dr S initially lent support to a further increase to 10 hours, she changed her position towards the conclusion of the cross examination. Under cross-examination by Ms Conte-Mills the family consultant was asked:
[15] Transcript, 8 August 2013, page 3.
[16] Ibid.
“And when you gave evidence previously, I think you indicated to the effect that supervision is easier through the daytime when people are awake, it’s very hard to be in a supervisor … capacity at night-time when people are asleep?
‑‑‑That’s correct.
Does that relate to X being asleep and the maternal grandmother being asleep and not actually being able to physically watch over X if she were to be there at night-time?
‑‑‑Well, unfortunately many children that do report sexual abuse often report that it occurs when they have gone to bed, so yes
All right. I think we come back to the key issue for the paternal grandparents, and that is the difference between eight hours and ten hours. Does … any of that information, those questions I have asked, the answers that you have now given, fix in your mind whether for X at age five, a ten hour regime with her maternal grandmother is still appropriate, or do you say eight hours?
‑‑‑Look, I think eight hours is probably adequate.”[17]
[17] Transcript, 8 August 2013, pages 14-15.
Ms Graves specifically asked the family consultant whether she was satisfied in relation to the paternal grandparents’ capacity “to have the same protective measures in relation to [the father] as they are demonstrating towards the maternal grandmother?” and Dr S replied:
“I think that the potential risks associated with the … maternal grandmother, and the potential risks associated with the father are somewhat different I think that the paternal … grandparents are able to monitor what the father will do with the child and to restrict X’s, you know, going out with him in the car, such things. So I do have confidence that I don’t think X would be at risk, for example, of sexual abuse at … the paternal grandparent’s house …”[18]
[18] Ibid, pages 8-9.
Ms Graves then asked the family consultant whether she was satisfied in relation to the paternal grandparents’ awareness of the risk of X being exposed to the father’s associates. Dr S responded:
“I think certainly at interview, the paternal grandparents often underplay their son’s both criminal history and drug associated history, but as far as I’m aware, … it’s my understanding that X was, for example, not allowed to go out just with the father … in the car until he got his driving licence, which was when he re-offended. So yes, I do have some concerns about the paternal grandparents underplaying – or certainly what they do behind closed doors, I don’t know, but what they do within this process is they do seem to underplay the father’s difficulties somewhat.”[19]
[19] Ibid, page 9.
At this point I note that the decision of the Full Court of the Family Court of Australia in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 contains an authoritative statement about how family reports should be treated in parenting proceedings.
Overall, given that Dr S is an independent party in these proceedings, the Family Reports and the recommendations contained therein, as expanded upon in her oral evidence, are entitled to be given considerable evidentiary weight by the Court.
Submissions
Each of the parties’ legal representatives presented oral submissions in respect of the issues remaining in dispute. The transcript for the final hearing will of course reflect those submissions.
I do not propose to summarise those oral submissions at this point of these reasons but will refer to the submissions where relevant during the course of my discussion of the relevant law in light of the available evidence.
Law and discussion
The Court is being asked to make specific parenting orders in these proceedings. More specifically, the Court is being asked to determine what time X should ultimately spend with the maternal grandmother and under what circumstances. The Court is also being invited by the father to include a particular notation in the final orders that would potentially allow him to re-agitate parenting matters (not impacting upon the child’s time with the maternal grandmother) once his criminal matters, and drug dependency issues, are behind him.
Under s.65D of the Family Law Act 1975 (“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,[20] 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”.
[20] 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, by consent, parental responsibility will be vested in the paternal grandparents, I am not required to consider either s.61DA or s.65DAA of the Act for the purpose of these proceedings.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of a child as the paramount consideration. In determining the best interests of a child, the Court must have regard to the primary and additional considerations enumerated in s.60CC of the Act. What is considered to be in the best interests of a child in these types of cases necessarily depends on the particular circumstances of each case. In each case different circumstances require different resolutions.
Before turning to a consideration of the primary and additional considerations and factors in s.60CC(2), (3) and (4)[21] of the Act, I note that there are a number of authorities where the Courts have considered the issue of a child spending time with a grandparent.
[21] These proceedings were commenced before the amendments which commenced on 7 June 2012.
In Samson & Jacks [2008] FamCA 176, O’Ryan J[22] considered a dispute between the parents and the maternal grandparents over whether the parent’s children should spend time with the maternal grandparents. In his decision, his Honour referred to the revised Explanatory Memorandum that accompanied the 2006 shared parenting amendments to the Act, and in particular, at paragraph 30 of his decision, his Honour noted the following provisions of the revised Explanatory Memorandum:
[22] An appeal against his Honour’s decision was dismissed: see Jacks & Samson [2008] FamCAFC 173 (per Coleman, Boland & Stevenson JJ).
“[39] Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child’s life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children.
…
[58] New paragraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with a modification. Existing paragraph 68F(2)(b) provides that where the court is determining the best interests of the child, it must consider the nature of the relationship with each of the child’s parents and with other persons. This provision has been modified to include an explicit reference to grandparents or other relatives of the child. This change further ensures that the court recognises the importance of the relationships that the child has with their wider family, in particular grandparents.
…
[60] Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification. Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to grandparents or other relatives. The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child’s circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship. New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives. This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents.
…
[62] Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification. Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents or other relatives. This provision provides that in determining the best interests of the child, the court should consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs. The amended paragraph 60CC(3)(f) recognises the importance of the relationships that the child has with wider family, in particular grandparents.
...
[151] Item 17 also gives greater recognition to the important role that grandparents and other relatives play in a child’s life. In particular, subsection 63C(2A) specifically provides that a parenting plan may provide for a child spending time with or communicating with the grandparent or other relative of a child. This change is consistent with the amendments to recognise the need to consider the benefit to the child of greater involvement of extended family members.” (Emphasis added.)
Justice O’Ryan ultimately decided against making an order for the relevant children to spend time with the maternal grandparents. This was also the recommendation of the Court appointed psychiatrist – something which differs from the case before me. His Honour concluded that it was in the children’s best interests that the parties engage in a “process … to work through the issues”.[23] This included counselling and allowing the maternal grandparents to “send gifts and cards to each of the children for events such as the birthdays of the children, Easter and Christmas”.[24] In reaching his decision, his Honour stated at paragraphs 145-146:
“145. A very important matter relied upon by the parents is the need to protect each child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. Whatever may have been the Mother’s experience I am not satisfied that the children would be abused or at risk of harm if in the care of the grandparents. The children would not be exposed to physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
146. I am however satisfied that if I made an order that the children spend time with the grandparents it could have the potential to create a possibility of risk of harm for the children whilst in the care of the Mother because of the emotional distress experienced by the Mother and the cascading effect of this on the children or affect her capacity to properly parent the children.”
[23] Samson & Jacks [2008] FamCA 176 at [151].
[24] Ibid, at [152].
Primary considerations: section 60CC(2) of the Act
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
Unfortunately in this case the child’s mother is deceased and her father is currently incarcerated.
It is clear from the evidence that, despite their difficulties in communicating with one another, the parties accept the need for X to have a meaningful relationship, not only with her father but also her paternal and maternal family.
The Full Court considered this provision and the concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92. In summary, what the Court is required to do is consider and weigh the available evidence (as at the date of the hearing) and determine (assuming the Court is satisfied that it is in X’s best interests) how and what orders can be framed in order to ensure that X has a meaningful relationship with her father (and by implication X’s extended family, including their partners).
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
No allegations are made by any of the parties against the other regarding any violence or abuse being directed towards X.
That said, the respondents are concerned about the child’s welfare whilst in the maternal grandmother’s care given past allegations and determinations relating to the maternal grandmother’s parenting of her own children. The documents from the Department of Family and Community Services are clearly concerning and add weight to the respondent’s concerns.
I will consider the issues relating to whether Mr B may be present at the maternal grandmother’s home when X is spending time there later on these reasons.
Additional considerations: section 60CC(3) of the Act
Section 60CC(3)(a): any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
X is a toddler and, at 3½ years of age, is too young to express any meaningful views.
That said, Dr S provides some useful comments in the Report and the Updated Report as to her observations of X with each of the parties.
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …
Despite their poor inter-personal relationship, there is no doubt that all the parties love X and that this love is reciprocated by the child.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
This factor is not directly relevant in these proceedings. Clearly, X’s grandparents (maternal and paternal) all seek to play a role in assisting the child (and indirectly the father) to develop from childhood into adult.
Despite their past differences, the parties have, to their credit, been able to resolve most of their parenting dispute without the need for the Court to determine those areas no longer in dispute. The parties have clearly taken on board the recommendations of the family consultant, the views of the ICL and the advice of their own legal representatives.
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 …
Despite the parties’ disagreement over the progression of the graduated time that the child will spend with the maternal grandmother, and the issue in respect of whether Mr B maybe present, it is clear that X has now developed a routine of living with the paternal grandparents and spending time fortnightly time with the maternal grandmother.
That said, there are potential positive and negative aspects to the time graduation proposals proposed by the maternal grandmother and the respondents.
The family consultant was certainly of the view that the graduated times proposed by the maternal grandmother (with the support of the ICL) could assist in promoting a more meaningful relationship between the child and the maternal grandmother. This is clearly an important consideration for the Court to consider. Nevertheless, noting the concerns raised by the respondents, there is merit in using X’s birthdays as milestones for any progression in the time to be spent with the maternal grandmother. Consequently, an increase to six hours in 2014 (ie. from 10:00 am until 4:00 pm), and a further increase to eight hours in 2015 (ie. from 10:00 am until 6:00 pm), has merit in balancing the child’s right to spend time with her grandmother with appropriate circumstances being in place.
To some extent, I agree with the ICL’s comment that there is ‘no magic’ in whether relevant time extends by a further two hours to 10 hours in total. Of course, such an increase would enable the child to enjoy an evening meal with the maternal grandmother and extended family and, depending upon what age the child was when such an increase in time occurred, would be unlikely to impact upon her time for bed.
Nevertheless, there are concerns that would operate to reduce the benefits of any increase beyond eight hours. This was clearly the dilemma that the family consultant was grappling with whilst under cross-examination in these proceedings.
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
Apart from the inconvenience of facilitating changeover, and the reality that the father is currently incarcerated, there were no other practical difficulties raised by any of the parties during the course of submissions.
Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs
The Court is satisfied that the paternal grandparents have the capacity to provide for X’s needs.
As stated, the father will need to work hard to put his past substance abuse and troubles with the law behind him so that he can take on a greater role in the care of his child.
Despite the maternal grandmother’s circumstances, and the history of the parenting of her children, I am satisfied that in proper circumstances she too has the capacity to assist X’s development.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
There are no specific additional matters here that assist the Court that have not already been discussed in this decision.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I refer to my previous comments about father’s difficulties in properly parenting X and the Court’s hope that he may straighten out his life to enable X to have her only living parent in her life, not only to look after her, but to act as a positive role model in her development.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
As stated, there are no allegations that any of the parties has been violent or cruel to X. Similarly, and despite their past differences, there are no allegations that any of the parties have been violent or cruel to each other.
That said, the maternal grandmother has made allegations against the father in his relationship with X’s mother, and the respondents have made allegations about the maternal grandmother and her parenting of her own children.
Section 60CC(3)(k): if a family violence order applies (or did apply), any relevant inferences that can be drawn …
I am not aware that any family violence order applies in respect of the parties or is otherwise relevant to the child.
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
While the Court proposes that any order be subject to any agreement between the parties that benefits X, it is clear that the parties will continue to require specific Court orders to assist them in their future parenting.
The Court is hopeful that, once these parenting proceedings are resolved and further defined orders are in place, there is a reduced likelihood of any further proceedings in the immediate future.
That all said, the father has requested that a notation be included in the final orders that would ‘open the door’ so-to-speak for further parenting proceedings to be agitated by him. Given his present, and somewhat uncertain, circumstances this request appears reasonable in light of a child’s right to live with and all spend time with a parent.
That said, there may an issue here about whether the final orders arising from this case should remain in full force and effect until X attains the age of 18 years. This arises in part, from the reasons expressed by the Full Court in the decision of Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725; namely, that where final parenting orders have been made, the applicant must establish a significant change of circumstances before the Court will entertain a rehearing of parenting issues. In other words, before discharging or varying existing orders:
“The Court must be satisfied there are significant changed circumstances that require the Court to consider afresh how the welfare of her should be served.”[25]
[25] Rice & Asplund (1978) 6 Fam LR 570, at 572 (per Evatt CJ; Pawley SJ and Fogarty J agreeing)
If the Court did not adopt such an approach, then to quote Evatt CJ, in the Rice & Asplund the “result would be to invite endless litigation for change.”[26]
[26] Ibid.
The rule has been considered in more recent cases such as SPL & PLC (2008) FamCAFC 16, a decision of Warnick J; and the Full Court in Marsden & Winch (2009) FamCAFC 152 (“Marsden”). It is quite clear from the Full Court’s decision in Marsden that if a significant change does occur, the Court would also need to be satisfied that a re-litigation would not demonstrably be contrary to X’s best interests. The Court suggested that the decision would require a Court such as this to consider:
“1. The past circumstances, including the reasons for the decision and the evidence it was based upon.
2. Whether there’s any likelihood of orders being varied in a significant way as a result of a new hearing.
3. If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to her, or children, caused by litigation itself.”[27]
Their Honours then said:
“Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.”[28]
[27] Marsden & Winch (2009) FamCAFC 152 at [50] (per Bryant CJ, Finn and Cronin JJ).
[28] Ibid.
Their Honours also stated the following, at paragraph 56 of the Marsden decision:
“From our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of her but may also be because of the need to provide procedural fairness in matter in which a Court determines how the rule will be applied.”
And at paragraph 58, their Honours say:
“That question might be better formulated in another way, in the following proposition. Namely that there is a requirement, firstly, for a prima facie case of changed circumstances to have been established and secondly, for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”
I note that at the close of the final hearing I stated:
“The father has present difficulties that he needs to address and I would have thought a lot of work ahead of him but at some future point should he be in a position to resume the role that I think he wants to have in respect of X’s life, well, then perhaps that application should come before the Court but … there is no evidence at the moment for the Court to consider in that respect.”[29]
[29] Transcript, 9 August 2013, page 44.
Given the particular circumstances of this case, I see merit in the inclusion of the requested notation. I note that the intention is for any further agitation by the father to be limited to the parenting responsibilities now entrusted to the paternal grandparents. It is not intended to in some way lead to some automatic review of the child’s time of the maternal grandmother upon the father gaining his liberty, staying out of trouble and freeing himself from the scourge of illicit drugs.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
I now return to the issue as to whether Mr B may be permitted to be present when X is spending time with the maternal grandmother at the maternal grandmother’s home.
Clearly relevant to this issue is the question of whether the maternal grandmother’s partner poses an unacceptable risk to X.
The issue of unacceptable risk has been considered in a number of judicial decisions including the High Court decision in M v M (1988) 166 CLR 69; (1988) FLC 91-979, the Full Court of the Family Court decision in Johnson v Page [2007] FamCA 1235; (2007) FLC 93-344 (“Johnson v Page”), and the more recent decision of Turner FM (as she then was) in Bosch & Rickard [2011] FMCAfam 726. The issue of unacceptable risk has also been the subject of extra judicial comment in numerous academic publications.
I note at this stage that the relevant cases and commentary tend to focus on whether a child should spend time with a parent who is alleged to have abused the child. While the facts of the case before me differ somewhat from the reported decisions, the analysis of the applicable law remains relevant.
In considering the discreet issue before me, I am satisfied that it is appropriate that the Court consider the available evidence in the context of the following “points” or “principles” articulated by the late Hon John Fogarty that were referred to with the approval of the Full Court in Johnson v Page, namely:
“1. The decisive issue is the best interests of the children.
2. “Unacceptable risk” is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5. The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6. The onus of proof in reaching that conclusion is the ordinary civil standard.
7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.” [30]
[30] Johnson v Page [2007] FamCA 1235 at [68] (per May, Boland and Stevenson JJ).
In this case there is no evidence that X has been abused by anyone; that would include Mr B. In contrast, there is disturbing historical evidence that the maternal grandmother’s own children, including X’s mother, were sexually abused growing up in their own home.
The evidence relating to the maternal grandmother’s relationship with Mr B was only recently placed before the Court. Whilst there is now evidence that might suggest that this relationship commenced in 2009, the maternal grandmother did not reveal that she was in a partnered relationship when she was interviewed for the Report, and indeed she advised the family consultant that she was “not currently in a relationship”.[31] That said, the maternal grandmother disclosed her relationship with Mr B by the time of her interview for the Updated Report. It would also appear that the respondents were aware of this relationship in more recent times. However, I note that there is no affidavit from Mr B before the Court in support of the maternal grandmother’s case, although I understand that he was present in Court during part of the final hearing. I further note that Mr B was not interviewed by the family consultant to the Updated Report.
[31] Family Report released 14 February 2012, paragraph 19.
Material relating to Mr B, and contained in the documents produced under subpoena by the New South Wales Police, was tendered evidence by the paternal grandparents (see Exhibit “RG2”).
It would appear that Mr B was born in 1957 and is currently aged 56 years. The Police material suggests that Mr B was involved in criminal offences during the period 1997 to 1998 involving ‘break and enter’, ‘robbery’ and ‘drug possession’. Of direct relevance to the case before me is the following entry related to events that occurred on 22 July 1998:
“About 1:35 pm on Wednesday the 22nd July, 1998 police were called to the (omitted) Public School, (omitted). Police attended the school and spoke to the school principal. The principal stated that an unknown male had been loitering at the outskirts of the school grounds for the past two and a half hours. A female parent from the school then approached police and stated that the male person was now currently walking north along (omitted). Police left the school and stop the Defendant, Mr B, on the eastern side of (omitted). The Defendant admitted to being near the school grounds that stated that he was waiting for a friend. The Defendant was then searched by police. The Defendant handed police a brown leather wallet. Inside the wallet was a grey (omitted) Bank Card holder. Inside this cardholder with three heat sealed plastic bags containing white powder. These bags consisted of two blue bags and one white bag. Police asked the Defendant as to what the white substance was. The defendant readily admitted to it being heroin. The defendant further stated he purchased the heroin from an unknown male person earlier in the day from outside the (omitted) Hotel. He stated that he bought the three bags for $100.00 and that he intended to use the heroin for his own personal use. The defendant was arrested and conveyed to (omitted) Police Station where he was interviewed ... The total weight of the drug was 0.2 grams. The Defendant was then charged with the matter now before court.”
Given this particular evidence, and the maternal grandmother’s abovementioned statement to the family consultant, the Court could assume that Mr B spent some time in jail as a result of one or more of the incidents that occurred in 1997 to 1998. If so, then I would agree with Ms Conte-Mills submission that there is an inconsistency in the maternal grandmother’s evidence because she stated in her affidavit sworn 18 July 2013 at paragraph 71 that:
“X is not at risk in my home and I do not have a boyfriend released from jail and nor did I ever have one who has been in jail and nor do I have any male associates who put X at risks [sic].”
As noted previously in this decision, the ICL initially supported the inclusion of Mr B (or more correctly the inclusion of the term “maternal grandmother’s partner”) in the list of ‘included persons’ for the purposes of paragraph 11 of the relevant orders. However, the ICL changed her position following Ms Conte-Mills’ final submissions.
While the Court is empathetic to the arguments raised by the maternal grandmother, it is the best interests of the child, and not those of the maternal grandmother and her partner, that must ultimately determine the dispute. Given the circumstances, the position of the respondents and the ICL is favoured by the Court.
There is no other additional fact or circumstance that the Court thinks is relevant to the present dispute.
Conclusion
Having considered the evidence in light of the structured discretion contained within the Act, the decision of the Court is as follows.
Firstly, as foreshadowed, there will be an order discharging all previous parenting orders in relation to X. Subject to the decision in relation to the three remaining issues in dispute, the August Orders will be made on a final basis. I will not be making paragraphs 16 to 20 of the August Orders on a final basis which relate to X’s travel to (country omitted) with the paternal grandparents which has, presumably, occurred and as such those orders are spent.
Secondly, there will be amendments to the default arrangements for X to spend time with the maternal grandmother in accordance with the current cycle on alternate Saturdays on and from 28 December 2013 from 10:00 am until 2:00 pm, increasing by a further two hours on the relevant Saturday following 15 April 2014 (ie. from 10:00 am until 4:00 pm) and increasing by a further two hours on the relevant Saturday following 15 April 2015 (ie. from 10:00 am until 6:00 pm).
Thirdly, there will be no amendment to include ‘the maternal grandmother’s partner’ and/or ‘Mr B’ as a ‘listed person’ exception.
Lastly, there will be a notation included in the final orders that, in appropriate circumstances, the father may file an Initiating Application seeking changes to the relevant parenting orders (but such changes not otherwise impacting upon the child’s time to be spent with the maternal grandmother).
There will be Orders and Notations of the Court to reflect this decision the Court being satisfied that such is in X’s best interests.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 18 December 2013
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