West and Anor & West
[2007] FamCA 546
•7 June 2007
FAMILY COURT OF AUSTRALIA
| WEST AND ANOR & WEST | [2007] FamCA 546 |
| FAMILY LAW - CHILDREN - With whom a child lives - Competing applications between Applicant maternal grandparents and mother of a 4 year old child who has been in the primary care of the grandparents since soon after birth - Exercise of discretion |
| 1st APPLICANT: | Mr West |
| 2nd APPLICANT: | Mrs West |
| RESPONDENT: | Ms West |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Waterhouse |
| FILE NUMBER: | HBF | 107 | of | 2006 |
| DATE DELIVERED: | 7 June 2007 |
| PLACE DELIVERED: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 15, 16 & 17 May 2007 |
REPRESENTATION
| COUNSEL FOR THE 1ST AND 2ND APPLICANT: | Ms Gibson |
| SOLICITOR FOR THE 1ST AND 2ND APPLICANT: | Zeeman Kable & Page |
| COUNSEL FOR THE RESPONDENT: | Ms Higgins |
| SOLICITOR FOR THE RESPONDENT: | Bishops |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Waterhouse |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | P L Corby & Co. |
Orders
THAT the maternal grandparents, Mr West and Mrs West (“the grandparents”) and the mother, Ms West (“the mother”) have equal shared parental responsibility for the child, a son (“the child”), born … December 2002.
THAT the child live with the grandparents and the mother as provided by these orders or as otherwise agreed in writing between the parties. Such time being;
a.For one half of the Easter and mid year Tasmanian school holiday periods being with the grandparents for the first half in odd numbered years and the second half in even numbered years and spend the other half of such holiday periods with the mother;
b.That the child live with the mother from the end of school year in 2007 until 3.00pm Christmas Day and then shall live with the grandparents from 3.00pm Christmas Day until 10.00am on 1 January 2008 and thereafter spend one week with the mother then one week with the grandparents alternating until school classes resume. This arrangement to continue each alternate year from 2007.
c.Live with the grandparents from the end of the school year in 2008 until 3.00pm Christmas Day and shall live with the mother from 3.00pm Christmas Day until 10.00am 1 January 2009 and thereafter spend one week with the grandparents and then one week with the mother alternating until school classes resume. This arrangement shall continue in each alternate year from 2008.
d.In the event that the final period of alternating weeks provided in this order over the Christmas/New Year period means that the child will spend two days or less with the mother or the grandparents at the end of that period, then those days will be included in the time the child lives with one or other of the parties in the preceding week with that final period to then run for either eight or nine days.
e.From the date of this order until the end of school term 2007 the child will live with the mother each weekend from after school Friday until the commencement of school Monday in week 1 and from after school Friday until 4.00pm Tuesday in week 2 during school term, then continuing in like form throughout the school term.
f.From commencement of school term in 2008 and during successive school terms the child will live with the grandparents for one week from the end of school Monday to the commencement of school the following Monday and live with the mother for the other week from the end of school Monday to the commencement of school the following Monday.
g.If the child lives with the grandparents over the last days of the preceding school holiday period then at the end of that school holiday period the grandparents will ensure that the child is delivered to school on the first day of the school term and the child shall then live with the mother from the end of school that day until the commencement of school the following Monday.
h.If the child lives with the mother over the last days of the preceding school holiday period then at the end of that school holiday period the mother will ensure that the child is delivered to school on the first day of the school term and the child shall then live with the grandparents from the end of school that day until the commencement of school the following Monday.
i.The intent of the orders regarding school term time from 2008 and onwards is to ensure that the child spends one half of each fortnight with the grandparents and one half of each fortnight with the mother.
j.In the event that the school Monday is a public holiday or pupil free day then the child shall remain in the care of the party with whom he was living the preceding weekend until the commencement of school Tuesday.
k.Notwithstanding these orders the child shall live with the grandparents from 6.00pm on the evening before Mother’s Day until the commencement of school the day after Mother’s Day in even numbered years commencing in the year 2008 and the child shall live with the mother from 6.00pm on the evening before Mother’s Day until the commencement of school the day after Mother’s Day in odd numbered years commencing 2009.
l.That in terms of the arrangement to collect and deliver the child for changeover of living times between the parties such changeover shall, wherever possible, take place before and after school at the child’s school. However, if the changeover takes place at other than the school then if the child is living with the grandparents the mother shall be responsible for collecting the child from the grandparents’ home. If the child is living with the mother then the grandparents shall be responsible for arranging for the collection of the child from the mother’s home.
THAT all parties shall keep the other advised, in a timely fashion, of any medical or other issue pertaining to the child including details of any medical, dental, psychological or psychiatric treatment undertaken by the child.
THAT all parties shall ensure that all school records shall note both the mother and grandparents are persons with whom the school authorities may liaise from time to time regarding the child.
THAT all parties shall be entitled to attend school functions such as swimming carnivals, sports carnivals, plays, Easter parades and the like.
THAT in the case of any medical emergency the party who is aware of such emergency shall as soon as is reasonably practicable contact and notify the other party/s regarding the child’s medical circumstances.
THAT none of the parties shall denigrate nor permit any other person to denigrate the other party or parties, the other party’s partner, sibling or parent in the presence or hearing of the child.
THAT each party shall keep the other informed as to such party’s residential address and telephone numbers where that parent may be contacted.
THAT all parties are restrained from changing the school which the child attends without the written consent of the other party or further order of a court exercising jurisdiction under the Family Law Act 1975.
THAT the mother and the grandparents contact Relationships Australia (or similar organisation) within seven days of the date of this order and each make arrangements to participate in the Children’s Contact Program or similar and do all things required to facilitate and participate in such a program and ensure that such party has completed such program within twelve months form the date of these orders.
THAT the parties are restrained from physically disciplining the child in any circumstances.
THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBF 107 of 2006
| Mr West and Mrs West |
Applicant
And
| Ms West |
Respondent
REASONS FOR JUDGMENT
These are proceedings in relation to a child, a son (“[the child]”), who was aged about four and a half at the date of hearing. The proceedings are between Mr West and Mrs West (“the grandparents”) who are the child’s maternal grandparents and Ms West (“the mother”) who is the child’s mother.
The child’s father has not involved himself in these proceedings and no orders are sought by him. Further, no orders are sought by the parties in relation to his involvement in the child’s life. From the evidence provided to the court the child’s father has not played a role in his life to date.
The grandparents have been the primary carers of the child since his birth and seek orders that the child lives with them and spends time with the mother each alternate weekend from 10.00am Friday until 4.00pm Monday and each Wednesday from 4.00pm to 7.00pm.
The grandparent’s submissions were that during the 2007 calendar year the child spend every weekend with the mother from Friday to Sunday. In addition that the child be collected from school on Mondays and Wednesdays by the mother and returned home to the grandparents after dinner. This was to accommodate the mother’s present night shift employment during the week. The mother gave evidence, which I accept, that she would alter her work arrangement to facilitate the time she has with the child.
In 2008 the grandparent’s submissions were that the child reside with the grandparents four days, the mother four days provided that this include every alternate weekend. The problem with this submission was that weekends would be hard to share without a longer period of time with one or other of the parties, during the week or alternatively numerous and perhaps confusing changeover arrangements.
The grandparents submitted from the 2009 calendar year the arrangements be that the child live with the mother and then the grandparents week about.
The grandparents sought orders that the child spend half of the school holidays with the grandparents and the other half with the mother.
Finally the grandparents submitted that parental responsibility ought to be equally shared between the mother and the grandparents.
The mother seeks orders that the child spends half the school holidays with the grandparents and half the school holidays with her.
10. The mother seeks orders that the child live with her fifty per cent of the time and with the grandparents fifty per cent of the time for the 2007 calendar year. Her submissions were that this ought not be week about.
11. In the 2008 calendar year the mother submitted that the arrangements ought to be that the child live with her four days per week and live three days per week with the grandparents with the child spending each alternate weekend with her and each alternate weekend with the grandparents. She further submitted that from 1 July 2008 the child live with her most of the time and live with the grandparents each alternate weekend from after school Friday to the commencement of school Monday and then on the “off weekend” the child spend the following Monday after school with the grandparents until the commencement of school Tuesday.
12. The mother’s submissions were that parental responsibility should be shared until mid 2008 and from that time she should have sole parental responsibility.
13. The Independent Children’s Lawyer submitted that there ought to be equal shared parental responsibility until the commencement of 2009 school year when the parental responsibility should be given to the mother. He further submitted that the child should spend equal time with each parent in the 2007 calendar year, four days with the mother and three days with the grandparents per week in the 2008 financial year. In the 2009 calendar year the child should live with the mother most of the time and live with the grandparents each alternate weekend from after school Friday until the commencement of school Monday plus after school Monday to the commencement of school Tuesday on the Monday after the “off weekend”.
Background
14. The parties submitted, and I agree, that this was a matter where the orders should be live with/live with rather than live with/spend time with bearing in mind the relationship between the child and each of the parties.
15. The maternal grandfather is aged forty six and is in good health. He works full time. The maternal grandmother is aged forty four and she is in good health. She is not in paid employment and is able to spend her time caring for the child.
16. The grandparents have four children for whom they are or were responsible, namely the mother, B aged twenty four, K (“[K]”) aged twenty three, and T (“[T]”) who is aged eighteen. (K is not a child of the grandparents but a child who has been a part of their family for a significant part of her life)
17. It was not in issue that the child was primarily cared for by the grandparents from the date of his birth until early April 2006. Since that time there has been a shared care arrangement pursuant to orders made in the Federal Magistrates Court, by consent, on 31 May 2006. There is an issue of fact as to the extent of the mother’s involvement with the child between the date of his birth and April 2006. What is not in issue is that the primary carers of the child over that period of time were the grandparents.
18. The mother is in a relationship with Ms J (“[Ms J]”). She has been in that relationship since about April 2005. The mother and Ms J commenced cohabitation in June 2005 and live in private rental accommodation in G.
19. Both the mother and Ms J are in full time employment. The mother commenced employment on a full time basis in January 2007.
20. The relationship between Ms J and the grandparents was initially cordial, even friendly, but after April 2006 that relationship has broken down.
21. Since April 2006 none of the parties visited the other parties home. They currently have limited communication.
22. Ms J said, and I accept, that she has a good relationship with the child. She says that she and the mother rarely fight, but they do have arguments. Her evidence in many respects mirrored that of the mother. I have concerns about the quality of her evidence because of the close relationship between her and the mother, her evidence about her support of the mother and her demeanour in the witness box. Ms J has no complaints about the parenting of the grandparents except that she said that sometimes she observed (prior to April 2006) that the child was sometimes difficult and moody. It seems that she was not really alert to the age of the child at that time (vis June 2005 to April 2006 when his age ranged from two and a half to three and a half years).
23. The mother and Ms J gave evidence of their concerns about the grandparents approach to discipline which differed from that of the grandparents, I also accept the evidence of K and from that I infer that the mother and Ms J had a stricter discipline regime in their house than the grandparents did in theirs. I find that the child is occasionally smacked at the home of the mother and complains about being smacked. There is no evidence that such smacking is excessive. Nevertheless, all parties agreed that there ought to be an order that the child not be subjected to physical discipline.
24. It was agreed that on 1 April 2006 the mother was having difficulty managing the child and rang the grandmother. In the course of discussion the grandmother used the throw away line “if you think you can do a better job, do it” (or words to that effect). The mother and Ms J took this as an invitation to completely change the child’s living arrangements.
25. Ms J agreed that the maternal grandfather was the only significant male role model in the life of the child and conceded that he was important in that regard.
26. In terms of use of drugs, Ms J gave evidence, which I accept, that she does not use drugs herself and has not observed the mother using drugs. As to alcohol she says the mother consumes up to about half a dozen cans of beer every second weekend (that being the weekend when the child is not staying with the mother). I accept her evidence in that regard.
RELEVANT LEGAL PRINCIPLES
27.In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (‘the Act’). The Act was the subject of amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.
28.The objects of those provisions of the Act relating to children are to ensure that the best interests of the children are met by[1];
[1] s 60B(1) Family Law Act 1975 (Cth).
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
29. The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:
[2] s 60B(2) Family Law Act 1975 (Cth).
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right 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); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
30.Each of the parents of a child has complete but several parental responsibility for that child[3]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. Section 61DA is part of the amendment and became operative on 1 July 2006. This section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child. The section provides as follows:
[3] s61C Family Law Act 1975 (Cth).
[4] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
Section 61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and is reasonably practicable[5], then an order must be made in accordance with that section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s 61DA(2) or, if the parenting order is made in interim proceedings, the Court must find that such a joint parental responsibility order would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted pursuant to a determination made under s 61DA(4) of the Act.
[5]s 65DAA(1) Family Law Act 1975 (Cth).
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly
Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.
The first step is to determine whether the presumption applies. Section 61DA requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable. Section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[6]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.
[6] Both “abuse” and “family violence” are defined in s4 Family Law Act 1975 (Cth).
If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[7], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[8]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.
[7]s 61DA(3) Family Law Act 1975 (Cth).
[8]s 61DA(4) Family Law Act 1975 (Cth).
A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that the presumption does not apply almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.
As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[9]. Should the parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders, and if so what orders, regard the best interests of the child as the paramount consideration. Section 60CA the Act provides:-
[9]s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
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.
The amendments go on to provide in s 60CB that the best interests of the child are the paramount consideration.
How the court determines what is in the best interests of a child is set out under s 60CC of the Act.
Those interests are determined under a 2-tiered approach contained in s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
The question now arises of how the court deals with this new “two tier list of factors” set out under s 60CC in determining the best interest of a child?
It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.
The approach to be adopted by a court is structured by the amended Act.
The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s61DA(2) and/or having regard to the primary and additional considerations under ss60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.
The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DAA. In circumstances where s 65DAA does not apply the court should still consider equal or substantial time if there are factual circumstances that would invite such orders for equal or substantial time.
To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary and other considerations in determining the child’s best interests.
The primary considerations set out in s 60CC(2) of the Act go to the core of any parenting, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations was considered by Bennett J in a recent unreported decision[10] where her Honour said:
[10]G and C [2006] FamCA 994.
The primary considerations
65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.66 This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[11].
70The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;[11]pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).
71 The arguments supporting the second possible interpretation include;
(a)Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b) The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c) The whole of s.60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e) The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
71 My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [B] into the future.
I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[12]. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
[12]Ibid paragraph 68.
Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court make such a determination.
Another legal issue is whether there is now a presumption that a child live with a biological parent and whether the decision in Rice -v- Miller (1993) FLC 92-415 had been statutorily overturned by virtue of the 2006 amendments to the Family Law Act. That question was considered by the Full Court in Dennett & Norman [2007] FamCA 57 where the principals adopted in Rice and Miller, seemed to have been considered and affirmed. In Dennett & Norman the Full Court set out the settled principles and, in the light of the 2006 amendments, held that in that case the trial judge had correctly applied the settled principles.
The elevation of the importance of the parents in making orders under Part VII of the Act was a feature of the 2006 amendments, as was the importance of the role of grandparents.
The 2006 amendments gave considerable attention to the position of grandparents. The revised Explanatory Memorandum accompanying the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) set out in respect of grandparents -
[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.]
[177] Item 22 gives greater recognition to the important role that grandparents and other relatives play in a child's life and to the benefits to a child of continued contact with these significant people. In particular, subsection 64B(2) specifically provides that a parenting order 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 facilitate greater involvement of extended family members in the lives of children.
The 2006 amendments do not create a presumption that a child must live with a biological parent, as set out in Dennett & Norman that the settled principles continue to apply and that the task of the Judge is to balance the potential parenting capacities of each party.
Credit
Evidence was given by the maternal grandmother and she was challenged in a number of areas including the extent of time that the child was away from her in April/May 2006. The maternal grandmother has a tendency to exaggerate and her evidence has to be seen in that light.
Evidence was also given by the maternal grandfather. His affidavits reflected the evidence of the maternal grandmother. This was an unsatisfactory way for his affidavit evidence to be given. However, the maternal grandfather was careful and thoughtful in his oral evidence and I am satisfied that he is generally a witness of truth.
The mother gave evidence in accordance with her affidavit and I am not satisfied that she is a witness of truth. I find that she exaggerates and is not constrained by the accuracy of the evidence that she gave. In particular she gave evidence with regard to the Mother’s Day afternoon tea at the child’s school which she and the maternal grandmother were to attend a few days before the trial. She gave evidence that she had an appointment, arranged for the child to be taken out of school (notwithstanding her knowledge that there was a Mother’s Day luncheon) and then cancelled it and proceeded to the afternoon tea with Ms J. She prevaricated with regard to this evidence and I find that the mother manipulated events on that day to ensure that she and Ms J attended at the Mother’s Day afternoon tea with the child and to exclude the maternal grandmother. I see this as occurring in the best interests of the mother and not in the best interests of the child. Accordingly, her evidence will have to be treated carefully.
Evidence of the grandparents
The maternal grandmother gave evidence of her primary care of the child up until April 2006. I accept her evidence in that regard. The maternal grandmother also gave evidence with the consent orders of the events since that time. In particular she said that the child had difficulty in transiting from one home to another. He was reluctant to go and when he came back it took some time for him to settle down. This is understandable bearing in mind the conflict that now exists between the parties and their families.
I find that the child does have some difficulties in transiting from one home to the other but that these difficulties are not as great as the grandmother asserts. Further I find that it is likely the situation will improve in time, particularly when these proceedings are concluded.
The maternal grandmother raised issues in her affidavit and in evidence in chief about sexualised behaviour by the chjild, which she believed was related to the mother. She gave evidence of the mother and her partner engaging in “mock” fights which involved touching each other in the presence of the child. What is of concern is that this alleged behaviour of the child did not come to light until late 2006 or early 2007. The family reporter believed that this may have something to do with the involvement of the child in pre-school and his interaction with other children. Notwithstanding the grandparents’ complaints in this regard they did not seek that the time the mother spends with the child be supervised. They were still content for him to spend half of the school holidays with the mother. Whilst the child’s alleged behaviour is a concern and will no doubt be monitored by all adults involved it is not at a level which gives rise to any issue as to unacceptable risk of the child living with the mother in an unsupervised capacity.
The maternal grandmother agreed that between 2002 to at least 2004 the mother had difficulties with entering into a poor relationship, use of drugs, alcohol and crime, particularly with regard to violence. The last time the maternal grandmother saw the mother intoxicated was in September 2006, this event was denied by the mother. The maternal grandmother had concerns about the mother physically disciplining the child and raised an issue about a bruise on the child’s face which the child had said arose from being pushed against the wall. The mother gave evidence that the bruise arose as a result of the child falling over. The issues of the alleged smacking and discipline are significant but not such that the grandparents (who are legally represented at all relevant times) sought that the mother be supervised. Whilst it is of concern that allegations such as that are made by the child I am conscious of his age and maturity and I infer that he is alert to the conflict between these significant people in his life. I make no positive finding that the child has been injured by the mother nor can I make any negative findings. With this evidence and the concerns of all the parties about discipline I will make an order that none of the parties physically discipline the child.
In terms of the use of communication I will be making an order that the parties do not demean, belittle or insult the other in the presence or hearing of the child.
I accept the evidence of the maternal grandmother and maternal grandfather that the child has a close relationship with T (who does not at the present time have a relationship with the mother) and K (who at one stage was the child’s babysitter when he was in the care of the mother but K is no longer requested to assist in that regard). T and K have been significant people in the child’s life and ought to be able to continue in that role.
The child commenced school this year and attends from 9.00am until 3.00pm Mondays and Wednesdays.
I accept the maternal grandmother’s evidence that the child expressed a wish not to live with his mother and is glad to return to his grandparents’ home. However, I do not find that his wishes are such as to prevent him from living significant time with the mother. I find that once at the mother’s home the child settles reasonably quickly.
On the evidence of the mother, Ms J, the maternal grandparents and the family reporter I find that the child is a well adjusted child and is managing well. However, I find that the conflict between the parties, (if it continues), will have an adverse impact upon him.
In September 2006 the mother arranged to meet the maternal grandfather at a cemetery so that they could discuss issues regarding the child. There is a dispute as to the facts of what was said at that meeting. On balance, I prefer the evidence of the maternal grandfather to that of the mother. I find that one of the primary reasons for the meeting was so that the mother could obtain $500.00 from the maternal grandfather and considering the versions of the mother and the grandfather of the events of that day and preferring the grandfather’s evidence I infer that the mother’s statement to the grandfather of having this meeting to resolve these proceedings was not genuine.
Sadly these proceedings have broken down the very strong relationship between the maternal grandfather and the mother and the less strong but still significant relationship that existed between the paternal grandmother and the mother. The grandfather’s assessment of the mother and her lifestyle changes since 2005 was harsh and he did not appear to seriously reflect upon such change to the mother’s life over recent years. This will impact on the communication between the parties and I have had regard to that circumstance in coming to this decision.
Both grandparents gave evidence, which I accept, that they are not concerned about the mother’s sexuality but they are concerned about what they regard as violence in the mother’s relationship and they are concerned that Ms J endeavours to isolate the mother from her family in particular from K and T. In relation to this issue I am mot able to make a finding that the relationship between the mother and Ms J is violent and I do not make a finding that Ms J isolates the mother from her family.
Both grandparents gave evidence that they thought an equal division of time between the mother and the grandparents would work for the child in the longer term.
The mother’s evidence.
The mother gave evidence in accordance with her affidavit. She now works as a sewing machinist and has been in that employment since late January 2007. She initially worked at that job from 3.00pm to 11.00pm but as this involved finding carers for the child she has now changed her shift to 11.00pm to 7.00am. Her evidence is that this is five days a week and that it takes the mother about an hour to commute from home to work and vice versa. She leaves home at 9.45pm and arrives home at about 8.00am.
During cross-examination the mother said that she made enquiries of her employer and believes that she can go back to the afternoon shift which is from shortly before 3.00pm to 11.00pm five days per week. This would also involve the commute set out above. She has also made enquiries to her employer and believes that it may be open to her to work three days a week on eight or twelve hour shifts which may include weekends and would commence at 7.00am and finish at either 3.00pm or 7.00pm.
The mother’s evidence is that Ms J works from either 8.00am to 4.00pm or 9.00am to 5.00pm. This makes it difficult for the mother on the days when she has the child after she has worked at night. The mother takes care of the child until Ms J returns home at 4.00pm or 5.00pm. This means that the mother is awake for upwards of twenty hours on those days. That would impact on her capacity to parent particularly bearing in mind the child’s present age.
The mother’s action in removing the child from the care of the grandparents in April 2006 shows that the mother still has little insight into the child’s relationship with the grandparents or if she does it has little impact on her.
The mother denies that there is conflict between herself and Ms J and avoids communicating with the grandparents at times when she meets them. It appears that she blames the grandparents for the state of communication of the grandparents and commenced these proceedings after the mother removed the child from their care. This approval by the mother again reflects on her poor insight into the child’s needs.
After the child was taken into the mother’s care in April 2006, he was enrolled by the mother in child care four days a week and this was reduced to three days a week when the mother ceased paid employment at that time. The mother prevaricated in terms of this evidence and, despite what she had said in her affidavit of the previous year, retreated from it saying the child was only in child care for very short periods of time.
I find that the child was in child care between three and four days a week whilst the mother was in paid employment and in child care for up to three days a week when the mother ceased employment. The mother removed the child from his grandparents’ care only to place him, almost immediately, in child care.
This was the same approach the mother had adopted when the child was living with her three days per week earlier in 2006. Although the day care was at that time one day per week. The mother explained her approach by saying she was ensuring ‘socialisation of the child’. In late 2006 early 2007 arrangements had been put in place by the grandparents such that the child would spend three nights with the mother and Ms J.
I find that the placement of the child in childcare was intended to primarily meets the needs of the mother, who at that time, struggled to meet the day to day challenges of full time parenting. When the mother began living with Ms Jo, arrangements were put in place for the child to visit their home and both the mother and Ms Jo were welcome at the parent’s home.
During cross-examination the mother sometimes responded to questions by saying that she “did not recall”. I find that on a number of occasions the mother used that response to avoid answering difficult questions.
The mother said she had last used drugs two years ago being in the form of amphetamines. There is no evidence that she is currently using that form of illegal drug.
As to the mother’s relationship with Ms J the mother said that they yell at each other and argue from time to time. She has on a number of occasions left the home she shares with Ms J but has not moved out permanently. I find that the relationship is one where the mother and Ms J yell at each other and from time to time engage in verbally aggressive exchanges. Evidence given by K made it clear that this verbally aggressive language sometimes is directed at the child, by Ms J.
Evidence from the mother and Ms J are that they are planning to have a child via IVF and they have made preliminary enquiries in that regard.
The mother earns about one thousand dollars per week if she works Saturdays. Ms J earns about $2,000.00 to $2,500.00 per month. The mother agreed that she would need to continue to be in paid employment, particularly if Ms J has a child.
I find that the mother’s action in retaining the child in April 2006 was the event which triggered the breakdown of the relationship between the grandparents and the mother. The mother has little insight into the impact of this and in many ways blames the grandparents. I find that the grandparents acted appropriately and in a child focused way in relation to the circumstances of the change of care of the child over the April/May 2006 period.
The mother gave evidence that she would like to restore her relationship with the grandparents and accepts that the child is close to his aunt T. Given what I have said in these reasons, I have concerns about whether there is a real substance behind that statement.
The mother agrees that the grandparents send school newsletters and information on to her. She says she sends some in reply but I do not accept the veracity of her evidence in that regard. I find that since April/May 2006 the mother has endeavoured to limit the grandparents’ involvement in the child’s life which addresses the mother’s interests but not those of the child.
The communication between the grandparents and the mother is impersonal and generally via text message. I infer that the grandparents are willing to restore full communication. The mother gave evidence that she will attend a post-separation contact course conducted by Relationships Australia and I propose to make that order in respect of all of the parties.
When the mother returned to work in January 2007 she said it was to “beat boredom”. She spends long hours at work and attempts to care for the child afterwards. She lacks insight into how this impacts on her parenting of the child particularly of the quality of care when the mother has been awake up to twenty hours or more on these days.
To the mother’s credit, she concedes there are no negative aspects to the grandparents’ parenting and if it wasn’t for them the child would be in great difficulties. The mother agreed that, for at least a short period, equal time would be appropriate.
On the evidence of the mother and the grandparents I find that the grandparents encouraged the relationship between the mother and the child throughout the time the child was in the grandparent’s care. The mother was a welcome and regular visitor to the grandparents’ home until April 2006, they accommodated the mother’s desire to spend 3 days per week with the child prior to April 2006, despite their concerns about the mother’s placement of the child in child care. The only times they prevented the child spending time with the mother when the child was from time to time sick on the day before the day he was to go to the mother and then straight to child care. The mother accepted this approach by the grandparents as soundly based.
Ms J’s evidence
Ms J gave evidence in accordance with her affidavit sworn 12 January 2007. Ms J did not have insight into the impact on the child of a violent episode which took place in June 2005 between her and the mother on one hand and the mother’s former girlfriend on the other.
Ms J’s evidence must be seen in the context that she is standing by her partner. I have concerns that her evidence is partisan and is designed to support that of the mother. One basis for my concern is that, when asked about a telephone call in April 2006 between the mother and the maternal grandmother, Ms J initially said it was on loud speaker and then later said that material from that conversation was passed on to her.
The evidence of the family reporter
The family reporter gave evidence in accordance with her report which was prepared in late 2006. The philosophy underlying the report was the family reporter’s view that the child needed an emotional attachment with a parent. The family reporter said that the best result for the child would be that he be allowed to develop a better attachment with the mother without damaging the existing attachment he has to the grandparents. The family reporter gave evidence that the attachment between the child and the mother would have become stronger since the report was prepared.
In these proceedings, I am endeavouring to preserve the close attachment that the child has with the grandparents (under which he has thrived) and enable the relationship with his mother to continue to develop. The development of the relationship with the mother should not be at the expense of the existing attachment.
The family reporter did not observe any difference in the parties’ parenting styles, although the parties perceived a difference in their respective parenting styles. The mother gave evidence that she was concerned about the grandparents spoiling the child in circumstances where the mother had bought the child a motor cycle for his fourth birthday. The family reporter indicated that the level of conflict between the parties was such that communication and conflict may predicate against shared parenting. She also agreed that the child’s reluctance to go from one house to the other and his behaviour on his return was expected in circumstances such as this. She went on to give evidence that there was no evidence to indicate that the child felt he was abandoned and that he was happy with the grandparents and with the mother.
In cross-examination the family reporter said the child’s reluctance to go from one house to the other could due to his memory of being removed from the care of the grandparents in April 2006, when he was aged 3½ and in the view of the family reporter, was particularly emotionally vulnerable.
The family reporter expressed concern about the mother’s manipulative behaviour in respect of the school Mother’s day afternoon tea. I have accepted the grandmother’s evidence in that regard. The mother’s evidence that she made an appointment for the child that day, then cancelled the appointment and proceeded to the event in the absence of the mother is such that I infer that the mother intended to exclude the maternal grandmother from that event. I do not accept the mother’s evidence that she did not know that the maternal grandmother was going to attend.
The conclusions of the family reporter’s conclusions are based on the parties providing an accurate and factually correct history. I have concerns about the accuracy of some of the information provided by the mother and by Ms J. I do accept the family reporter’s evidence that in the short time of her observation the child related well to the mother and to Ms J.
I infer, in accordance with the family reporter’s evidence, that the removal of the child from the care of the maternal grandparents over that period of time had a significant impact on the child and that may be part of the reason why the child is reluctant to go to his mother and is happy and comforted on his return. Another additional factor in the child’s behaviour may be that the child is able to sense the grandparents’ anxiety when he goes to and comes from the mother’s home.
There is no issue that the mother had significant personal difficulties from the date of the child’s birth until at least mid 2005. The mother said that she engaged in drug use and entered into an inappropriate relationship with a person who at the time was aged thirteen. The mother was aged nineteen or twenty years when that relationship commenced and she remained in that inappropriate relationship (bearing in mind that her sexual partner was aged thirteen at its commencement) for some years.
There is no issue as to the parenting capacity of the grandparents. The mother said of them “they have done a great job”. She said “I can’t say it would be better if [the child] was with me”.
There is significant conflict between the parties which has deteriorated since the events of April 2006.
The evidence of K
A late affidavit was filed by the grandparents being that of K, (“[K]”) aged twenty three. She is a child who was brought up and treated as a child of the grandparents. Her affidavit dealt with issues that had arisen during the trial and was admitted into evidence by consent. I found K to be an impressive witness and who gave her evidence clearly and thoughtfully. I accept her evidence that the child is reluctant to leave the grandparents to spend time with the mother and not vice versa. I accept her evidence in relation to Ms J yelling at the child. It was challenged as to whether she could hear the yelling because of her hearing disability, notwithstanding that challenge, I accept that she was able to hear that exchange and recognised it as being between Ms J and the child.
There is an issue as to whether the parties will encourage the child 's relationship with the other party. I am satisfied that once these proceedings are at an end the grandparents will encourage the relationship between the child and his mother although as I previously said I am not confident that the reverse will occur. The behaviour of the mother with regard to Mother’s Day, and in particular her disingenuous approach in that regard, gives me concerns as to the bona fides of her expression that she would allow the child to continue the relationship with the grandparents, who are his primary source of attachment.
In terms of shared parental responsibility there are difficulties with the mother. She has a history of poor decision making which includes removing the child from the care of the grandparents in April 2006, her past abuse of alcohol, her past use of illegal drugs, her past violence and her earlier relationship with a thirteen year old child.
At the time the mother entered into that relationship she engaged in violent and threatening behaviour with that child’s parents, she formed a sexual relationship with a child of thirteen years of age and maintained that relationship for two to three years is of concern. Then to add to that concern, as late June 2005, the mother acted violently towards that former girlfriend.
The mother was involved in violent episodes which are set out in her police criminal records[13]. The mother agreed that she had a violent history prior to July 20005 with the last incident occurring in June 2005.
[13] Exhibit “ICL1”
In terms of the history of assaults relating to the mother they appear to be:-
(a)The assaults arising from the mother removing the former girlfriend from her parents home into a relationship (obviously with the consent of that child) and trespassing on land. The behaviour of the mother was such that she showed at that time no insight into the need to protect a young person from physical, emotional or sexual manipulation. This occurred about two months after the child was born.
(b)The second assault was of a person who the mother said had said something about the mother and the mother physically attacked her in a public street.
(c)The third assault was of the former girlfriend shortly after the break-up of that relationship.
(d)The mother was charged with assaulting police who endeavoured to intervene
Other Evidence
The mother sought orders that the child spend four hours on his birthday with the party with whom he is not living or spending time with on that day. In view of the comments I have made in these reasons regarding the conflict between these parties it is in the best interests that this not occur. The child would be with one or other of the competing parties either the week before his birthday or the week after his birthday.
I find that from shortly after his birth until April 2006, the child’s principal carers were the grandparents and that the mother had limited involvement in his life. The involvement that the mother did have was encouraged by the grandparents and was as set out in the evidence of the maternal grandmother.
I find that the child was removed from the care of the grandparents by the mother in early April 2006 in the way described by the maternal grandparents and I do not accept that the mother believed that the grandparents had abandoned the child to her care.
I have had regard to the submissions of the Independent Children’s Lawyer but for the reasons contained in this judgment I will adopt a somewhat different approach. I conclude that the long term involvement of the grandparents of the child will be in his long term best interests, as will the continuation of their involvement in his day to day care on an equal basis.
Taking all of the factors set out under s60CC of the Act into account I determine that this is not a matter to which the provisions of s61DA applies. The father of the child has taken no part in his life and as such an order for equal shared parental responsibility of the child by he and the mother is not in the child’s best interests. I find that there should be orders that the mother and the grandparents have parental responsibility and such responsibility should be equally shared.
RELEVANT MATTERS PURSUANT TO SECTION 60(2)(a)
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
Whatever the outcome in these proceedings the child will have a meaningful relationship with his mother. I accept that the grandparents have worked to ensure that the child had a relationship with his mother even at the times when the mother was “out of control” prior to July 2005. Up until April 2006 the mother was a very regular visitor at the grandparents' home. The grandparents facilitated the child spending regular time with the mother in her home with Ms J from June 2005 until January 2006 and facilitated the three day per week arrangement from January 2006 until April 2006. The term meaningful relationship does not mean the need for a child to live mostly with the mother in this case. the child will have a meaningful relationship with his mother whichever of the proposals I accept.
The father has expressed no interest in these proceedings nor any interest in being involved in the child’s life. As such I am unable to make any determination in respect of the relationship between the child and the father.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The approach of all parties including the Independent Children’s Lawyer is that the child is not at risk of harm from abuse, violence or neglect in the care of the grandparents or the mother as they are presently situated.
RELEVANT MATTERS PURSUANT TO SECTION 60CC(3)
For the purpose of determining the best interests of the child I am required to make findings in relation to the following matters pursuant to the provisions of section 60CC(3).
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The evidence is and I accept that the child is more content and settled in the home of the grandparents than in the home of the mother. This is a view expressed by the child in actions rather than words. I give that view some but not considerable weight.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The grandparents have to all intents and purposes been the child 's primary carers.. The evidence is that the child was primarily attached to them and they have brought him up well. The mother and Ms J concede this and it is clear from the material of the family reporter that this has occurred. There are no criticisms of the grandparents. Quite to the contrary the grandparents have facilitated and encouraged the development of a relationship between the child and the mother. I do not repeat all of the material set out earlier in these reasons but reflect on them in considering this factor.
The mother did not have a good relationship or bonding with the child prior to June 2005. Since that time, with the help of Ms J and the grandparents a good bond has developed and continues to develop.
The real challenge for the parties is to maintain the existing relationship between the child and the grandparents, which is clearly in his best interests, and ensure that the developing relationship with the mother continues. It is important that the relationship with the mother continues in a safe way so that the child has a relationship with his mother and both grandparents. The grandparents are relatively young and will feature in the child 's life until he turns eighteen and beyond. I accept the submissions of the Independent Children’s Lawyer that the child’s preference, at this time, is for his grandparents.
the child also has strong relationships with Ms J, and with the wife's sisters T and K. These relationships need to be maintained and encouraged.
(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;
The family consultant appeared to question the grandparents in respect of their willingness to facilitate the relationship between the child and his mother. I do not accept that as a matter of fact. During the hearing it is clear that the grandparents worked assiduously to maintain the relationship with the child and his mother even at the times when the mother was in difficulties prior to July 2005. Since that time the grandparents have continued to promote that relationship. This can be seen in terms of how they managed the further time the child spent with the mother in early 2006, the loan of $500.00 by the grandparents to the mother when she had financial difficulties in September 2006 (at a time when the mother was not “talking to” the parents).
A recent example of the grandparents approach is after the difficulties with the Mother’s Day afternoon tea at school, (referred to above), the grandmother still ensured that the child spent Mother’s Day with the mother. On the evidence before me the grandparents have at all times focused on the needs of the child and they continue to do so.
As to the mother, I have no doubt that she has a deep love and affection for the child. However, she is determined once she makes up her mind. I have made comments about her lack of insight in relation to various matters set out in these reasons. I am concerned as to her willingness and/or an ability to facilitate the relationship between the child and the grandparents. Notwithstanding that doubt the mother has said she will attend at a parents in contact course subsequent to this hearing as have the grandparents (through their counsel). Accordingly I will be making that order in the hope that the communication difficulties between these parties can be ameliorated.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child has been in the primary care of the grandparents since birth and they have parented the child well to date. All parties agree that the child’s relationship with his mother needs to be improved and that time will assist in that regard. However, this must be done in a way, so as not to damage the relationship with the grandparents. The significant change as proposed by the mother will impact on this child who I find is already struggling with the changes that were brought about in April 2006. The evidence of the impact of that change from the family reporter and the grandparents is such that I infer that further time away from the grandparents, T and K will not be in the child’s best interests.
(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;
There is no practical difficulty bearing in mind the proximity of the parties residence to each other except in terms of the poor communication between the respective adults.
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I accept the submissions of the Independent Children’s Lawyer that there are no issues as to the capacity of the grandparents to provide for the needs of the child including emotional and intellectual needs.
There are some questions in relation to the mother’s capacity, again bearing in mind the comments I have made earlier. The mother has exhibited poor decision making ability and inappropriate behaviour prior to June 2005 but notwithstanding the evidence of the maternal grandfather, about the meeting in September 2006 and has views of the mother, here has been some improvement since that time. The real challenge for the mother will be to re-establish a relationship with her parents so that the conflict that exists between the households is minimised.
There was evidence of some indication of sexualisation of the child. I find this falls into the category of some exaggeration by the maternal grandmother, the age and behaviour of the child (as set out in the evidence given by the family consultant) and the underlying conflict which exists between the parties during the course of these proceedings? The mother had a tendency to lose her temper but has undertaken an anger management course. It seems that she has managed her anger in the last eighteen months to two years, although her actions involving the removal of the child from the grandparents primary care in April 2006 and her response to the grandparents in taking these proceedings causes some concern.
The mother made a series of bad decisions prior to July 2005. These are set out in these reasons. The decision making processes of the mother at that time were poor. Since that time the mother seems to have put her life into a better order. This was with the assistance of Ms J. Notwithstanding this turnabout, the mother still continues, from time to time, to make poor decisions. These later concerns include the mother placing the child into child care in 2006 (which I find was more to meet her needs rather than the needs of the child), the removal of the child from the primary care of the grandparents in April 2006 and the events of the school “Mother’s Day” afternoon tea.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Not relevant.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The Independent Children’s Lawyer observed that this ground is almost invariably connected with the capacity ground in both cases. I agree with him in that regard. I reiterate the findings and inferences set out above. I make no criticism of the grandparents in relation to this factor and repeat the comments I have made in respect of the mother both prior to and after her relationship with Ms J.
(j)any family violence involving the child or a member of the child’s family;
Not relevant.
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no family violence involving the child or a member of the child’s family.
(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;
Whichever decision is made in relation to these proceedings it will be difficult to avoid further hearings unless or until the parties reconcile their differences. To that end the parties will be ordered to attend a parenting after separation course.
(m) any other fact or circumstance that the court thinks is relevant.
I have considered all of the matters set out in these reasons and all of the evidence in making this determination.
I have had regard to the involvement of the mother about participating and making decisions in relation to major long terms issues with respect to the child, spending time with the child and communicating with the child.
The grandparents have facilitated communication and time between the child and the mother throughout and have been the people who have fulfilled the obligations to properly maintaining the child.
I have considered the matters set out in s 60CC(4) and s 60CC(4A) of the Family Law Act.
CONCLUSION
Taking all of the evidence into account and having regard to the factors set out in s60CC, and balancing all of those factors as to the potential parenting capacities of the respective parties, I determine that the best interest of the child will be met by him spending more time with the grandparents in the 2007 year and equal time thereafter and parental responsibility shared equally between the mother and the grandparents.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as West & West.
I certify that the preceding 121 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Associate:
Date: 7 June 2007
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
0