Suban and Suban and Ors

[2015] FCCA 1932

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUBAN & SUBAN & ORS [2015] FCCA 1932

Catchwords:
FAMILY LAW – Children – application by grandmother to spend time with children – opposed by mother – high conflict between mother and grandmother.

Legislation:  

Family Law Act1975, ss.60B, 60CC, 65DA

Applicant: MS J SUBAN

First Respondent: MS A SUBAN

Second Respondent: MR SPURR

Third Respondent: MR BRUCE

Fourth Respondent: MR HALLAHAN

File Number: BRC 10974 of 2013

Judgment of: Judge Lapthorn

Hearing date: 11 June 2015

Date of Last Submission: 11 June 2015

Delivered at: Brisbane

Delivered on: 11 June 2015

REPRESENTATION

Applicant: Self represented

First Respondent: Self represented

Second Respondent: Self represented

Third Respondent: Self represented

Fourth Respondent: Self represented

ORDERS

1. That the Third Respondent’s Response filed on 13 June 2014 be dismissed.

2. That the Initiating Application filed on 13 December 2013 be dismissed.

3. That the children, [Y] born [omitted] 2008 (“[Y]”) and [Z] born [omitted] 2012 live with the Second Respondent Mother. 

4. That the child, [X] born [omitted] 2005 (“[X]”) spend time and communicate with the maternal grandmother at all times as agreed between the child’s father and the maternal grandmother during the times that the child is living with the father. 

5. That the Applicant maternal grandmother be permitted to telephone the child [Y] once per fortnight at 4:00pm on a Sunday when the child is in his mother’s care.

6. That the maternal grandmother be permitted to send letters and cards to children (“[Y]”, “[X]” & “[Z]”).

7. That each party is restrained from denigrating the other parent or a member of their family, to, or in the presence of, or the hearing of, the children, and must ensure that no other person does so and in the event of some other person doing so then that parent must immediately remove the children from the vicinity of the person doing so.

8. That the maternal grandmother is hereby restrained from personally seeking out the child [Y] whenever she is present at [Y]’s school.

9. That all parties are required to keep each other appraised of their current residential address and telephone number. 

10. That the mother advise the maternal grandmother in writing when school photos are available for order and upon the maternal grandmother providing the costs of such photograph/s the mother do all things necessary to have a copy of the photograph provided to the maternal grandmother. 

NOTATION:

A.That the child, [Y] is covered by a Parenting Plan agreed to between his mother and father which reflects that he spend time with his father each alternate weekend and school holidays.  

B.That the father of the child, [X] and the mother have Court Orders in place which reflect a shared care arrangement for the child.  

C.That for the purposes of Order 8 herein the maternal grandmother is not restrained from speaking to or engaging with [Y] in the event that [Y] initiates contact with the grandmother.

D.Pursuant to section 65DA(2) of the Family Law Act1975 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 Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRC 10974 of 2013

MS J SUBAN

Applicant

And

MS A SUBAN

First Respondent

MR SPURR

Second Respondent

MR BRUCE

Third Respondent

MR HALLAHAN

Fourth Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today an application for parenting orders that affects three children:  [X], who is eight years of age, [Y], who is six years of age and [Z], who is three.  The applicant in these proceedings is the children’s maternal grandmother.  There are four respondents.  The first respondent is the children’s mother.  The second respondent, Mr Spurr, is the father of [X].  The third respondent, Mr Bruce, is the father of [Y].  And the fourth respondent, Mr Hallahan, is the father of [Z]. 

2. Mr Bruce has not participated in these proceedings today although he has been previously legally represented.  The application relates to the desire of the maternal grandmother to spend time with the three children.  The mother is opposed to the grandmother spending time with the children and, in particular, [Y] and [Z].  [X], who is in a shared care arrangement of a week about nature with his mother and father, does spend time with the grandmother as arranged between the child’s father and the grandmother. 

3. The child’s father relies on the grandmother to assist him in the week that [X] is living with him.  The fourth respondent, Mr Hallahan, the father of [Z], supports the mother in opposing the children spending time with the grandmother.  When the grandmother filed her application, she was seeking quite extensive periods of time but, having had the benefit of a family report prepared and more time to consider her position, filed an outline of case document on 31 May setting out an order that she spend time with the children every eight weeks either on a Saturday or Sunday from 1 pm to 4 pm. 

4. She also wanted specific arrangements for telephone time with the children as well as a number of other orders which will be addressed later in this judgment insofar as they are relevant.  The mother today presented a minute of order that provided for a positive order that [Y] and [Z] live with her.  She has sought to have [X] included in that but as there are already parenting orders between the mother of [X] and the child’s father, I have indicated I will not make a specific order in that regard. 

5. The mother also seeks an order that [X] spend time and communicate with the grandmother at times agreed between the child’s father and the grandmother during the times that the child is living with the father. The father, that is, Mr Spurr, does not oppose that order being made. The mother also seeks an order that [Y] and [Z] spend no physical time with the maternal grandmother. In other words, she is seeking a positive prohibition on the children spending time with the grandmother.

6. The mother does, however, support the maternal grandmother having telephone communication with [Y] once a week at 4 pm on Wednesdays with the grandmother to telephone the mother to facilitate that communication.  The mother seeks a non-denigration order.  That is, that the maternal grandmother not denigrate the mother to the child, [Y], during any telephone communication.  The grandmother, of course, had sought a non-denigration order in her own orders.  The mother supports the maternal grandmother being permitted to forward letters and cards to [Z]. 

7. The mother seeks orders about keeping – all the parties keeping each other appraised of their current residential addresses and telephone numbers and the mother also seeks an order restraining the grandmother from attending upon the children’s school or day care unless agreed between the mother and the grandmother in writing.  The mother also proposes that she would forward to the grandmother, at the cost of the grandmother, copies of school reports and school photographs.

8. In support of her case, the applicant grandmother relied on her affidavit which was filed on 26 May this year; the affidavit of Mr H, filed on 28 May;  and Mr S, on 27 May. The mother did not file any affidavits in accordance with my earlier directions. However, in order to have sufficient material before the court, I have given her leave to rely on her affidavits filed on 3 March 2014 and 1 October 2014. She also relied on a response filed on 16 June 2014.

9. Because I gave the mother that leave, I also had regard to the earlier affidavits filed by the grandmother.  They were filed on 7 July 2014 and 6 May 2014 and 27 November 2013.  I have also had regard to the affidavit of Mr Spurr that was filed on 28 May 2015; the response from Mr Bruce and his affidavit that had been filed in these proceedings;  the affidavit was filed by leave on 8 May 2014;  and the response on 13 June 2014.  I have also had regard to Mr Hallahan’s affidavit filed on 1 October 2014 and 7 May 2014. 

10. I have had the benefit of a family report prepared by family consultant, Ms R, on 21 July 2014 and Ms R gave evidence before the court today.  The report writer did not support the grandmother’s application and in her view the conflict between the mother and the grandmother may impact the mother’s parenting capacity.

11. I proceeded to hear this matter by way of a less adversarial trial because all parties were without legal representation and the obvious angst on part of the grandmother, the mother and Mr Hallahan was such that I did not consider the traditional course of the trial would benefit them in any way.  I am, however, satisfied that they have been able to put their case before the court. 

12. I am required to determine this matter in accordance with the legislative framework which is set out in Part VII of the Family Law Act. In determining the outcome, I am required to have regard to the objects and principles that underlie that part and I must consider the best interests of each child as the paramount consideration. The objects of Part VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting and that the parents fulfil their duties and meet their parental responsibilities.

13. Section 60B, subsection (2) sets out the principles that underlie those objects. Unless it would be contrary to their best interests, the principles are these:

    a)Children have a right to know and be cared for by both their parents;

    b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development including grandparents;

    c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

    d)Parents should agree about the future parenting of their children;  and

    e)Children have a right to enjoy their culture.

14. In this case, Mr Spurr is supportive of the applicant grandmother’s case.
    Mr Hallahan is supportive of the mother’s case. Mr Hallahan and the mother are currently separated but are undergoing family counselling. Mr Hallahan and the mother are strongly opposed to [Z] having a face to face or physical relationship with the maternal grandmother. Parents are entitled and, in fact, obliged to share responsibilities concerning the care, welfare and development of their children.

15. They share parental responsibility, as I said, and they must make decisions that they consider are in the best interests of children and, unless it is contrary to children’s best interests, the court should not interfere with their joint decisions in that regard. Mr Bruce has not taken part in these proceedings. However, he has generally been supportive of the mother. However, without his presence here today, I do not intend to have or place much significant weight on his earlier evidence. I am required under the Act to determine what’s in children’s best interests by having regard to a number of factors set out in section 60CC(2) and (3).

16. Some of these relate solely to parents as opposed to grandparents and parents.  However, a number of the factors raised in those subsections are of relevance to this case.  There can be no doubt, either from the evidence that has been presented by the grandmother or the mother, and their presentation here today that there is a significant dispute between them.  There can be no doubt that these children are aware of this dispute and have been caught up in it.  They have been exposed to the conflict between the mother and the grandmother. 

17. I have no confidence that that will change in the short term.  The grandmother clearly disagrees with a lot of what the mother complains about.  The grandmother’s presentation before me today was of great concern.  When the mother was giving her evidence, the grandmother would roll her eyes and audibly sigh in a manner that I found to be disrespectful towards the mother.  She clearly disagreed with the evidence of the mother and, even if the mother was not telling the truth, the grandmother’s reaction to what the mother was saying gave me absolutely no confidence there was any prospect of the conflict being minimised in the future. 

18. I accept the mother’s evidence that she finds the relationship with her mother overwhelming.  I accept that the mother has needed the assistance of a psychologist and I accept that it would not be in the best interests of these children to have their mother be further anxious by knowing that the children are spending time with the grandmother.  The grandmother knew full well that the mother had an objection to her seeing [Y] and in 2014 there was an incident that everybody says was inappropriate on Grandmother’s Day at the school. 

19. Notwithstanding that, the grandmother yesterday went to see [Y] on Grandmother’s Day.  In doing so, I find that she did not think of the child’s best interests or, if she did, she did not do so objectively.  She tells the court she was concerned that [Y] was frightened of her and did not want him to be burdened by that.  I accept that.  However, the way in which she approached it clearly showed that she had no respect for [Y]’s mother.  Knowing full well the matter was in court today, she nevertheless took it upon herself to attend upon [Y].  The grandmother was dismissive of the mother’s comments in that regard and, accordingly, I can have no confidence that these children will receive benefit by spending time with the grandmother until the dispute between the mother and the grandmother ends. 

20. And as I said, I’ve got no confidence that’s going to happen in the long term.  It is unfortunate that I have come to that finding because, in the ordinary course, it would be in the best interests of [Y] and [Z] to have a relationship with the grandmother.  In the ordinary course, they would also enjoy and share that relationship with their brother but that cannot be whilst this conflict continues.  To expose these children to that conflict risks exposing them to emotional harm.  I am not satisfied that it is in [Y]’s best interests to be spending time with the grandmother for the reasons that I have indicated. 

21. And, further in [Z]’s case, she has not yet developed a relationship with the grandmother.  Whilst I can only hope that the mother’s relationship with the grandmother improves such that these children will, in the future, be able to have that relationship, I can have no confidence at the moment from what I have seen of the parties’ presentation today that that will change.  For those reasons, I would dismiss the grandmother’s application. 

22. In relation though to the mother’s application to restrain the grandmother attending upon the children’s school, I will not make that order.  The reasons being that [X] is currently attending that school;  the grandmother plays a significant role in ensuring he gets to and from school;  and has taken part in activities at the school.  However, I am satisfied it is appropriate to restrain the grandmother from personally seeking out [Y] at the school whenever she’s in attendance.  Now, that does not prevent [Y] seeking out the grandmother. 

23. If [Y] approaches the grandmother, then it would be inappropriate for the grandmother to turn her back on him.  But it needs to be done the other way.  In other words, I am saying to the grandmother let it take its natural course.  It’s my experience that when children are denied a relationship with other people important to them, they will gravitate towards them over time and it might just need to take that course.  So for that reason, I won’t make the restraining orders sought by the mother but I will make the other one that I indicated. 

24. It is important though that the door is left ajar and, for that reason, I will order that the grandmother be permitted to telephone [Y] once a week and we will work out in a moment an appropriate time and how to do it.  I will order that all parties are restrained from denigrating the other to or in the presence or the hearing of the children. 

25. I am going to order that each party keep the other appraised of their current residential address and telephone number.  And I just want to talk to you both now about school progress reports and the like.

26. I will order that the mother advise the maternal grandmother in writing when the school photos are available for order and, upon the grandmother providing the cost of such photograph, the mother do all things necessary to have a copy of the photograph provided to the grandmother.

27. That the maternal grandmother be permitted to telephone [Y] once per fortnight at 4 pm on Sundays when the child is in the mother’s care.

28. So I am going to make the order that [Y] and [Z] live with the mother.  I am going to note that [Y] is covered by a parenting plan with his father.  I will make an order that, as indicated, [X] spend time and communicate with the grandmother as arranged with the father, which is order number 2 that the mother was seeking.

29. That the child, [X], spend time with and communicate with the maternal grandmother at all times as agreed between the child’s father and the maternal grandmother during the child’s times that he’s living with the father.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Associate: 

Date:  16 July 2015