Wilton & Anor and Leary & Anor

[2018] FamCA 123

FAMILY COURT OF AUSTRALIA

WILTON AND ANOR & LEARY AND ANOR [2018] FamCA 123

FAMILY LAW – CHILDREN – With whom a child spends time – Whether child spends time with maternal grandparents.

Family Law Act 1975 (Cth) s 60CC

APPLICANTS: Mr Wilton and Ms Niet

RESPONDENTS: Mr Leary and Ms Leary

INDEPENDENT CHILDREN’S LAWYER: Legal Aid, NSW

FILE NUMBER: SYC 4107 of 2012

DATE DELIVERED: 2 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 24-26 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: KD Holmes Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tran

Orders

1.All previous parenting orders in relation to B, born … 2010 be discharged, save the following orders as between the Applicant Father and Ms F Leary made on 29 October 2013:

1.Ms F Leary and the Applicant Father are each restrained by injunction from denigrating the other to the child or within her presence or hearing.

2.Ms F Leary be restrained from discussing the child’s mother’s demise or circumstances thereof in the child’s presence or hearing without the written consent of the Applicant Father.

3.Note that the child is not to be left alone with Ms F Leary for any overnight period.

2.The child live with the Applicants.

3.The child be permitted to be removed from the Commonwealth of Australia.

4.The child be removed from the Family Law Watchlist.

5.That each of the parties is restrained from:

1.Denigrating the other party or parties and from permitting any other person to do so in the presence of the child; and

2.Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of, the child and from permitting any other person to do so.

6.In the event that the child becomes ill or seriously injures herself while in the care of the Respondents, the Respondents will telephone the Applicants immediately.

7.The Applicants shall facilitate telephone and/or Skype communication between the child and the Respondents on the first Sunday of every month at 3pm (… local time) with the Respondents to initiate the call by calling the Applicants by video communication.

8.The Applicants shall provide written reports on the child’s progress and recent photographs of the child to the Respondents by email each three months.

9.The parents are to further provide the child forthwith to the Independent Children’s Lawyer for the purpose of explaining the orders to the child.

10.The Independent Children’s Lawyer is discharged following meeting with the child to explain the orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Wilton and Anor & Leary and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4107 of 2012

Mr Wilton and Ms Niet

Applicant

And

Mr Leary and Ms Leary

Respondent

REASONS FOR JUDGMENT

1.The child B, who is six, is the daughter of Mr Wilton and by adoption Ms Niet (the mother).  The child’s birth mother, Ms V Leary (the birth mother) died when the child was about two months old.  The father currently lives in Asia and the mother wishes to join him with the child.  At present the mother and the child are living in Australia and are not permitted to leave Australia by virtue of an airport watch list alert.  Until recently the father also lived in Australia. 

2.The dispute is about arrangements for the child spending time with her birth mother’s parents (the maternal grandparents) who live in New Zealand.  There is significant mistrust and ill will between the father and the maternal grandparents.  Although this matter was resolved by consent orders on 29 October 2013 which permitted a graduated arrangement for the maternal grandparents spending time with the child, such that at present they are due to spend periods of five days and two nights on two occasions each year and four days and nights on one occasion each year, the time with the maternal grandparents has proved problematic.  There is a history of contravention of the orders by the father and corresponding litigation by the maternal grandparents regarding the contraventions. 

3.Despite a difficult history between the father and the maternal grandparents the dispute is not as to whether or not it is in the child’s best interests to spend time with her maternal grandparents, but as to how she is to spend time with them, where she is to spend time with them, whether the arrangements for her to spend time with the maternal grandparents are to be supported by orders or left to the discretion of the father and mother, and whether if orders are made, they are to be supported by the lodging of a bond by the father. 

4.In the immediate future the dispute is even narrower than as outlined above, as it is agreed that to start with, the maternal grandparents should spend time with the child in Asia and in Australia.  In the future they wish to spend time with the child in Asia and in New Zealand, which remains the subject of dispute. 

5.Again, leaving the matter as a narrow dispute, the parties during the proceedings came to agreement as to a number of ancillary orders. 

6.Whilst the grandparents initially sought fourteen different orders, by the end of proceedings orders 1 – 5 were not pressed.  The grandparents thereby sought, relevantly, that:

6.In the event that Orders 1 - 5 not being made, then, in the alternative, and  subject at all times to the Father firstly complying with Order 13 below:

7.[The child] be then permitted to be removed from the Commonwealth of Australia.

8.[The child] be then removed from the Family Law Watchlist.

9.[The child] spend time with the maternal grandparents as follows:

9.1 During [the child’s] scheduled school holiday periods (consistent with where she is living at that time) two times per year.

9.2That on one occasion time will occur in [City Q], New Zealand.

9.3     That on one occasion time will occur in Sydney, Australia.

10.That the time in 9 above extend for a period of 5 days, which is to include overnights.

11.That for the purposes of changeover, the parents, or their nominee, are to deliver [the child] to the designated residence of the maternal grandparents in Sydney or [City Q], as appropriate.

12.Each party bear their own costs of travel.

13.That the Father deposit an amount of $50,000 with KD Holmes Solicitors Trust Account, to be held on trust pending further order, to secure compliance with these orders, and to be released to the respondents on application to the Court should [the child] not spend time with time pursuant to the Orders Herein, and to be released to the Father upon [the child] attaining the age of 15 years if there has been no breach of these orders for time with the Maternal Grandparents.

14.The said sum in Order 13 may be invested in a controlled monies account with interest thereon to be added to the capital sum.

7.During the hearing of the matter the parties agreed on the following matters:

1.All previous parenting orders in relation to [B], born… 2010 be discharged.

2.[The child] live with the Applicants.

3.[The child] be permitted to be removed from the Commonwealth of Australia.

4.[The child] be removed from the Family Law Watchlist.

5.That each of the parties is restrained from:

1.From denigrating the other party or parties and from permitting any other person to do so in the presence of [the child]; and

2.Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of, [the child] and from permitting any other person to do so.

6.In the event that orders are made in relation to face-to-face time between the child and the Respondents, the parties are restrained from discussing the outcome of the proceedings with the child until the Independent Children’s Lawyer meets with her. 

7.In the event that the child becomes ill or seriously injures herself while in the care of the Respondents, the Respondents will telephone the Applicants immediately.

8.The Applicants shall facilitate telephone and/or Skype communication between the child and the Respondents on the first Sunday of every month at 3pm (Hanoi local time) with the Respondents to initiate the call by calling the Applicants by video communication.

9.The Applicants shall provide written reports on the child’s progress and recent photographs of the child to the Respondents by email each three months.

Material relied upon

8.The Applicants relied upon the following:

1.Affidavit of Mr Wilton filed 30 June 2017;

2.Affidavit of Ms Niet filed 30 June 2017;

3.Affidavit of Mr R Wilton filed 30 June 2017;

4.Affidavit of Ms S Niet filed 30 June 2017;

5.Affidavit of Ms T filed 30 June 2017; and

6.Affidavit of Mr T filed 30 June 2017.

9.The Respondents relied upon the following:

1.Affidavit of Ms Leary filed 30 June 2017;

2.Affidavit of Ms F Leary filed 30 June 2017;

3.Affidavit of Mr Leary filed 30 June 2017;

4.Orders and reasons for judgment of Judge Monahan dated 10 August 2016;

5.Orders and judgment with the tender of portions of transcript of the interim hearing on 12 December 2016 before Loughnan J; and

6.Orders and reasons for judgment of Rees J dated 11 April 2017.

10.The Independent Children’s Lawyer relied upon:

1.Family Report of Ms U dated 21 June 2017.

11.At the heart of the dispute, the maternal grandparents say that unless the arrangements are supported by orders of the Court, they will not get to see the child.  In contrast, the mother and father assert that orders are counter-productive to a relationship between the child and the maternal grandparents, as orders breed conflict, ill will and raise the spectre of further litigation regarding contraventions.  Further, they say that reducing the arrangements to orders will result in an unworkable inflexibility.  They assert that it is more in the interests of the child that there are no orders and further assert that this would be supportive of a better ongoing relationship between the mother, the father and the maternal grandparents. 

Background

12.Ms V Leary died in December 2010.  The maternal grandmother says that she assisted the father immediately after Ms V Leary’s death with practical arrangements, including for the care of the child.  The father denies this.  In June 2011 the maternal grandmother again spent time with the child.  The parties then became involved in a dispute in relation to Ms V Leary’s estate, which appears to be ongoing.  The maternal grandmother alleges that the father said that she would not be seeing the child whilst that legal action continued.  

13.In 2012 Ms V Leary’s aunt, Ms F Leary, commenced proceedings regarding the child.  The maternal grandparents joined those proceedings.  Ms F Leary was a witness in these proceedings but did not otherwise participate, however she was on notice of these proceedings.  The remaining orders concerning her are restraints between her and the father as set out later in the judgment and may remain in place regardless of the outcome of proceedings between the father and the maternal grandparents.

14.On 29 October 2013 the parties entered into final orders by consent in relation to the maternal grandparents spending time with the child.  The important background to the current circumstances is an understanding of the operation of the consent orders that were entered into in 2013 and the litigation that has followed them.  Those orders were to transition to overnight time in 2016 and they were, insofar as they are relevant, as follows:

1.That by consent, orders are made in accordance with the document entitled “By Consent of the First and Second Respondents” as between the Respondent Father and the 2^nd Respondent Maternal Grandparents, as set out herein:

1.[B], born …10, spend time with her maternal grandparents:

i.As may be agreed with [the child’s] Father and in the absence of agreement:

ii.Deleted.

iii.On Thursday 31.10.13 from 11.30-2.30 each day, with [Ms T] to deliver the child to the Maternal Grandparents at [W Park], or if too hot then at [X] Shopping Centre, and [the child] to be collected at the conclusion from the same place, it being noted that [Ms T] will settle her down for half an hour if necessary;

iv.For three consecutive days 10am – 5pm in the second half of January each year commencing January 2015 to conclude at least three days prior to the commencement of the NSW school year, and in respect of which the Maternal Grandparents must give two month’s written notice of the dates for such contact with [the child];

v.In 2014 and 2015: for 4 consecutive days from 10-5pm in the three mid-term New Zealand Public School holiday periods, being on a Friday, Saturday, Sunday and Monday of each holiday period;

vi.Notwithstanding anything to the contrary, in the third term holiday period in 2014 and every second year thereafter in the week when NZ and Australian school holiday periods coincide, the time spent by [the child] with her Maternal Grandparents shall be 4 consecutive days and nights at the Maternal Grandparents’ home in [City Q], NZ, with the Father to deliver [the child] to and collect [the child] from the Maternal Grandparents’ home;

vii.In 2016 and in every year thereafter for 5 consecutive days from 10am to 5pm in each of the three NSW mid-term public school holiday periods such time being suspended for the September mid-term holiday period when (vi) above is operative;

viii.In the June/July mid-term NZ school holidays, the time in (v) shall extend to one overnight stay with the Maternal Grandparents;

ix.In 2015, the time in (v) shall extend to one overnight stay on two of the holiday periods; and

x.From 2016 and thereafter the time in (vii) above shall extend to two nights on two of the holiday periods, and all such occasions in (viii), (ix) & (x) shall not be at [Ms F Leary’s] residence.

2.Notation that the Father hereby agrees to release the child’s mother’s ashes to the Maternal Grandparents who will now intern the ashes in New Zealand with a suitable plaque where [the child] may visit as she matures and they will notify the Father of the place of the plaque prior to erecting same.

3.[The child’s] time with her Maternal Grandparents may be in the company of her aunts and other relatives, other than for the first occasion that (vi) is operative, at which time they shall not be permit [Ms F Leary] to be present.

4.That the Father shall supply reports on the child’s progress together with recent photographs to the Maternal Grandparents every 3 months during the middle of each school term.

5.That once [the child] commences school [the child] communicate with the Maternal Grandparents by telephone once each month, on the second Saturday at 5.30pm A.E.S.T for not more than 10 minutes with the Maternal Grandparents to initiate the call to the Father’s phone number.  

6.That the Maternal Grandparents be restrained from discussing [the child’s] mother’s demise or circumstances thereof in [the child’s] presence or hearing without the written consent of the Father.

7.That the Father do accept any gifts and cards for [the child] if delivered for her from the Maternal Grandparents and other family members via [Ms M].

8.That each party notify the other of any changes to their residential addresses or phone numbers within 7 days of any such change.

9.That the Maternal Grandparents spend time with [the child] from 10.00am to 5.00pm on 19, 20 & 21 December 2013.

10.The Father and the Maternal Grandparents are each restrained by injunction from denigrating the other to [the child] or within her presence or within her hearing.

11.The Maternal Grandparents notify the Father of where [the child] spends time with them.

12.That any overnight time in Australia is not to be spent at the residence of [Ms F Leary].

13.Notation that these Orders are subject to any Orders of the Court in the proceedings between [Ms F Leary] and the Father which may be inconsistent with these Orders.

14.Notation that as [the child] matures, the Father will consider whether [the child] is able to spend more time including overnight time with the Maternal Grandparents, consistent with her best interests.

2.That by consent, orders are made in accordance with the document entitled “By Consent Between the Applicant ([Ms F Leary]) and the First Respondent (the father)” initialled by me and dated today, as set out herein:

1.The Orders made pursuant to the agreement entered into between the First Respondent and the Second Respondents are amended pursuant to the notation at clause 13 as follows:-

i.Clause 1(x) should read:-

“From 2016 and thereafter the time in (vii) above should extend to two nights on two of the holiday periods”:

ii.Clause 3 shall read:-

“[the child’s] time with her maternal grandparents may be in the company of her aunts and other relatives”;

iii.Clause 12 is discharged in its entirety.

2.The First Respondent and the Applicant are each restrained by injunction from denigrating the other to [the child] or within her presence or hearing.

3.The Applicant be restrained from discussing [the child’s] mother’s demise or circumstances thereof in [the child’s] presence or hearing without the written consent of the father.

4.Note that [the child] is not to be left alone with the Applicant for any overnight period.

3.That all applications and cross-applications be and are hereby dismissed.

4.That all issues be removed from the Active Pending Cases List.

15.The general scheme of the orders provided for a graduation of time between the maternal grandparents and the child to four then five consecutive days and to one then two overnight periods within those days by 2016.

16.In 2015 the father and mother married, with the mother adopting the child in 2016.

17.On 3 July 2015 the maternal grandparents commenced contravention proceedings against the father.  The father says that in the lead-up to the July visits, the child began to wet herself.

18.On 4 December 2015 the father recommenced the substantive proceedings by an initiating application seeking to remove the obligation for the child to spend time with the maternal grandparents.

19.Exhibit G1 was the judgment and orders of Judge Monahan of 10 August 2016 relating to the contravention proceedings against the father. 

20.The judgment of Judge Monahan acts as conclusive proof of the contraventions of the orders there found.  By operation of the doctrine of res judicata the judgment itself is not subject to challenge in these proceedings, even by those parties who were not a party to the then proceedings. 

21.The grandparents sought to use the judgment in a broader sense for the facts found within that judgment.  Those findings of fact within the judgment, in so far as they may be relevant to these proceedings, operate as an issue estoppel   in respect of the then parties to the proceedings, being the maternal grandparents, Mr Leary (maternal grandfather) and Ms Leary (maternal grandmother) and the father.  They do not act as an issue estoppel in respect of the mother, although, as each of the contraventions was supported by an admission by the father as recorded in the judgment, there is strong evidence in support of the underlying factual matters that found the contraventions. 

22.In summary, these contraventions involved failing to comply with orders in relation to periods of time that the child was due to spend with the maternal grandparents in July 2014, October 2014 and April 2015.

23.The contraventions are as follows:

July 2014 Contraventions

1.Failing to facilitate the entirety of the child’s time with the maternal grandparents pursuant to 1.1(v) of the final orders on 10 July 2014;

2.Failing to facilitate the child’s overnight time with the maternal grandparents pursuant to 1.1(viii) of the final orders between 7 July 2014 and 18 July 2014;

24.In the July 2014 grouping, the contraventions involved the cutting short of time on 10 July 2014.  The orders provided for a day of time with the maternal grandparents and the child spent 9am until approximately 10:35am only.  The second aspect of breach in relation to this period was the failure of the father to facilitate overnight time.  Oddly, despite enforcing a contravention, the maternal grandmother accepted that the child may not have been old enough for overnight time at that stage. 

25.During the proceedings the father alleged that the July 2014 contraventions in relation to overnight time were occasioned because the grandparents had not sought overnight time.  The proceedings before Judge Monahan indicate that a request was made, but that the father had not received the request until after the proposed overnight time had passed by.  That is, the proposal was for overnight time to occur on 12 July 2014 but that the father did not receive this request until afterwards. 

September-October 2015 Contraventions

1.Failing to facilitate the child’s time with the maternal grandparents pursuant to 1.1(vi) of the final orders between 29 September 2014 and 10 October 2014;

26.These breaches related to September-October 2014.  These orders provided for the child to spend time with the maternal grandparents in New Zealand, being four consecutive days and nights.  The father declined to take the child to New Zealand.

April 2015 Contraventions

1.Failing to facilitate the entirety of the child’s time with the maternal grandparents pursuant to 1.1(v) of the final orders on 10 April 2015;

2.Failing to facilitate the child’s time with the maternal grandparents pursuant to 1.1(v) of the final orders on 11, 12 and 13 April 2015l;

3.Failing to facilitate the entirety of the child’s time with the maternal grandparents pursuant to 1.1(v) of the final orders; and

4.Failing to facilitate overnight pursuant to 1.1(ix) of the final orders on 10, 11, 12 and 13 April 2015.

27.These contraventions related to April 2015.  The father imposed a supervision requirement, telling the maternal grandparents that they would not be permitted to see the child without him being present for the entirety of the time. 

28.Each of the periods of time that the child spent with the maternal grandparents was shorter than the day provided for in the orders.  This was said to be justified, on the part of the father, by virtue of a medical certificate that he sent to the maternal grandparents two weeks prior to their travel to Sydney to see the child, telling them that the child was unwell. 

29.The father says that the contraventions did not stop the child from seeing the maternal grandparents (even if it interfered with the time that they were due to spend). 

30.Judge Monahan’s orders of 10 August 2016 provided for the father to pay costs, enter into a bond and to complete a post-separation parenting program.  The consent orders continued without alteration.  However, the completion of the contravention proceedings did not mark the end of the conflict between the parties in relation to the child.  The father complains that the maternal grandparents threatened him with further contravention proceedings in relation to visits for April 2017 when there was no obligation for the child to be provided in the way requested.

31.The maternal grandmother accepted that previous moves to determine where the child would go to school, or to have the child placed on the Watch List, could be causes of animosity between the parties and lead to the impression that the grandparents were attempting to exercise control over the father. 

32.In September or October 2016 the maternal grandparents threatened the father with contravention proceedings relating to the father not providing the child for time in New Zealand.  At that stage the child was on the Watch List, which meant that she could not travel.  The Court noted on 16 August 2016 that the child had been placed on the Watch List at the instigation of the maternal grandparents.

33.The maternal grandmother lists occasions in January 2017 when the child has raised with her that she is stopping the child from going to Asia, that she is costing the father money, and that the maternal grandmother wants the father to go to gaol.  In order to send a message to the grandparents, the mother caused the child to wear an “I love [Asia]” t-shirt on a visit to her grandparents.

34.In March 2017 the child, during a phone call, said to the maternal grandmother:

Why are you stopping me from going to [Asia]?  You have to give my daddy the green light to go to [Asia].  You are spending my daddy’s money.  I am not going to come to Sydney…you are not my grandparents.  You are not my family.  I need a green light to go to [Asia].  I am going now, bye.

35.In April 2017 the child said to the maternal grandmother:

… (a reference to the maternal grandmother), you want to put my father in gaol don’t you?...I don’t like you and … (a reference to the maternal grandfather), you are nasty people.

36.In April 2017 the father commenced work in Asia, leaving the child and the mother behind in Australia.

37.During April 2017 visits, the maternal grandparents had daytime periods with the child.  The father had indicated that he did not think that overnight was appropriate.  The maternal grandparents sought overnight time the day of the first changeover, under threat of further contravention proceedings.  While not accepting that the overnight time would be distressful for the child, the maternal grandparents say they acceded to the father’s position that overnight time not occur for that visit.  There was no obligation to provide the child for overnight time for those visits.

38.The maternal grandmother says that, although she threatened contravention proceedings against the father in April 2017, she had amended her approach.  For example, she said that she tried to reduce conflict by simply giving in to the father, and had not commenced contravention proceedings against him despite what she saw as a contravention in relation to a proposed visit in July 2017.

39.By an amended initiating application filed 31 May 2017 the father and mother sought that the child be removed from the Watch List and that there be no orders for time between the child and the maternal grandparents.  Interim orders were sought by the father to suspend the time with the grandparents and to allow the child to go to Asia.  These were refused by Justice Rees on 11 April 2017.

40.Until the commencement of the trial of this matter the maternal grandparents sought to restrain the mother and father from removing the child from Australia to live in Asia, where the father is currently living and where the mother intends to live.  This proposed restraint was a matter of significant frustration and resentment on the part of the mother and father.  Following the maternal grandparents advising the Court that they did not wish to pursue that component of their orders (although they still sought to secure the compliance with orders by the lodgement of a bond prior to any departure) the mother indicated to the Court that she thought there were improved prospects for the mother and father to cooperate with the maternal grandparents. 

41.Similarly, until the proceedings were underway the maternal grandparents had indicated that they would not be prepared to visit the child in Asia.  The mother again expressed significant resentment that the maternal grandparents were unwilling to visit the child where she would, on her case, be living. 

The position of the parents

42.The father said that he was agreeable to the maternal grandparents spending time with the child, in general terms, twice each year for a period of about five days each time.  He was not agreeable to this taking place in New Zealand.  He did not agree to these arrangements being the subject of orders, as to do so would mean that the orders would be used to control him. 

43.The father had previously asserted before Justice Aldridge, prior to the making of the previous final orders, that the maternal grandmother “should not be interfering in my life at any level.”  He had also said that he did not want the maternal grandmother involved in the child’s life and that he did not think that she was able to add any value to the child’s development.  He had said that he did not trust her, and that he detested her.  In particular, he is concerned that notwithstanding any orders put into place that if the child was to travel to New Zealand to spend time with the maternal grandparents that the grandmother would take her to her birth mother’s grave.  He is concerned as to how they will speak of the child’s birth mother to her.

44.This is a matter that he says should be left for the child to initiate.

45.Underlying this, the father believed that the maternal grandparents have no genuine interest in the child.

46.Against this background, the father asserted to the Independent Children’s Lawyer that because he thought that it is in the child’s best interest to spend time with the maternal grandparents that he will do his best to make it happen.

47.The father was also concerned that he would be under threat of contravention proceedings, given a lack of flexibility on the part of the maternal grandparents.  It should be noted that, as well as the successful contravention proceedings outlined above, contravention proceedings have previously been threatened against the father despite a lack of relevant obligation on his part.

48.He accepted that if the arrangements were fixed, for example as to drop off and pick up, that this would not constitute control.  However, the father either was unable to, or did not, obtain a calendar as to the child’s school dates to enable fixed dates to be established.  That is, any orders would require a degree of flexibility in order to accommodate the child’s living arrangements and schooling.  However, the nature of the dealings between the parties does not allow for flexibility.

49.Rather than be mandated by orders, the father said that the arrangements should be reliant upon his willingness to facilitate the time.

50.The mother is a health professional, who treats children and adolescents.  Her view, until the commencement of the trial, was that the maternal grandparents did not care for the child, and that the child recognised that they did not care about her.  This was in particular because of their opposition to the child moving to Asia. 

51.The mother has told the child that she does not like the maternal grandparents.  She has also told the child that they are responsible for the child being placed upon the Watch List, and therefore unable to travel to be with her father in Asia.  The mother accepted that there was no benefit to the child to know this, but wanted the child to know the truth about why she was separated from her father.

52.The mother’s position was expressed as softened during the trial, once the maternal grandparents amended their view and application insofar as it purported to restrain the child from living in Asia.  The mother, as a result of this change, thought that a relationship could now be facilitated.

53.The mother gave her assurance that she would facilitate the relationship between the child and the maternal grandparents without the need for court orders on the basis that she believes that the child needs those relationships.

54.Whether the parents lack the capacity to shield the child from the conflict between the parties, or simply decide not to, it appears highly unlikely that they will protect the child from exposure to conflict with the grandparents in the future.  That is, if there is conflict, it should be anticipated that the child will know about it.

Mr T

55.Mr T is the cousin of the child’s birth mother.  He and his wife Ms T have been extensively involved with the child.  The child refers to him as “my [Mr T]” and, unlike the maternal grandparents, Mr T and Ms T have a good relationship with the father and the mother.  They regularly cared for the child following Ms V Leary’s death, including overnight nearly every Friday, while the child lived in Sydney.  They attended the father’s wedding and have shared significant events together, such as birthdays and Chinese New Year.  The father says that there is a special bond between Mr T, Ms T and the child, of which he is fully supportive.  Mr T said that he would maintain a close connection with the child, even if she was in Asia, through visits and electronic means.  He said that he was able to continue to provide connection with the maternal family, and also with the child’s Chinese heritage.  His willingness to be involved assists in the father’s view that the child’s cultural heritage should be maintained.  

Family Report

56.The Family Reporter recorded a number of concerns expressed by the parents about the maternal grandparents.  They were of the view that the child has no meaningful relationship with the maternal grandparents, doubted whether the maternal grandparents would prioritise the child’s best interests, considered that the child would be distressed at the prospect of spending time with the maternal grandparents, were concerned that the maternal grandparents would take the child to her birth mother’s grave site and were concerned that the maternal grandparents would involve them in further litigation.  They complained to the Family Report writer that the maternal grandparents were not prepared to visit Asia.

57.Importantly, the Family Report writer considered that the child had been embroiled in the dispute.  When observed with the grandparents she referred to the grandparents as “those people”, and “bad people”.  She told the Family Report writer that her parents did not like the maternal grandparents and that the maternal grandparents had got the father into trouble with the judge.  When observed with the maternal grandparents she was resistant to verbal interaction with them.  The child explained to the Family Reporter that her parents talk about Court all the time and that she never wanted to see the maternal grandparents again. 

58.According to the Family Report writer the views expressed by the child had been influenced by the conflict between the mother and father with the maternal grandparents.  She did not think that those views were necessarily genuine but rather revealed the impact of the conflict upon the child.  The fact that the child is caught in the middle of this conflict was thought to be detrimental to her development.  Although the relationship between the child and the maternal grandparents was not sufficient for this to cause her “emotional dilemma and loyalty bind” the conflicts meant that “it may not be in her best interest to maintain relationships with her grandparents”.   

59.The particular concern of the Family Reporter was that the parents “have contributed to the child’s distress”.  They have not protected the child from the adult conflict and appear to have directly exposed her to their negative feelings about “the grandparents”.  She thought they were unlikely to support the relationship “where they believe there is no benefit, a possible risk”.  The problem for the child, she thought, came from the father’s and mother’s “narrative of Ms Leary’s behaviour”. 

60.The consequence of the nature of the relationship between the parents and the maternal grandparents, where the Family Reporter thought that the father and the maternal grandparents blamed each other in relation to the death of the birth mother, meant that “the child will increasingly be placed in a position where she feels she must actively reject her grandparents… This would not be psychologically healthy for the child”.  During the hearing of the matter the maternal grandfather said that he blamed the father for the birth mother’s death.

61.However, the consequences of being completely cut off from the biological family could “be quite damaging to her development” as she “could benefit from maintaining relationships with her maternal grandparents”.  These connections would give her connections to her family, to her birth mother and to her Chinese and New Zealand heritage that she gained from her birth mother.

62.On balance, the Family Consultant thought not only was overnight time not appropriate in the foreseeable future for the child but that due to the conflict and attitude of the parents it was better for there to be no orders in place, rather than orders supporting the time.   

63.If the parents are not supportive of the child spending time with the grandparents, there is likely to be conflict and the parents are either unwilling or unable to shield the child from that conflict.  There is a risk that the parents will not comply unless the visits are on their terms.  The child is vulnerable to that conflict and it is likely to lead to stress for her.  In turn, the child may then feel forced to spend time with the grandparents.  In the circumstances where the child is beginning to reject the grandparents, there is a risk of increased rejection in the absence of support from the parents.

64.The presence of orders was thought by her to likely add to further resentment on the part of the parents, undermining the possibility of relationship between the child and the paternal grandparents.  Conversely, she thought the absence of orders may facilitate better relations and a better prospect for the child to have a relationship with the maternal grandparents.

65.As opposed to this, the risk of no time with the grandparents is a risk of loss of connection to the maternal family, to the child’s cultural background and with her deceased birth mother.  Connection with the family may allow the child to ask questions about her birth mother.  The significance of those connections is more prominent in teenage years and into adulthood.  The loss of such may be connected to acting out, rebellion and mental health issues.

66.In consequence she recommended:

1.That [the child] live with her parents, [Mr Wilton] and [Ms Niet], and that [Mr Wilton] and [Ms Niet] have the ability to decide where they live, including the option of relocating to [Asia].

2.That there be no orders made regarding [the child] spending time or communicating with [Ms Leary] and [Mr Leary].

3.That [Mr Wilton] and [Ms Niet] facilitate [the child] communicating with and spending time with her maternal grandparents, in the absence of Court Orders.  It is recommended that [the child] communicate with her maternal grandparents once per month and spend time with them twice per year. It is recommended that this time take place once per year in the city in which [the child] lives and once per year in Sydney, Australia.

Discussion

67.Although the initial proceedings and orders also concerned the child’s great aunt, Ms F Leary, she is no longer a party to these proceedings, and these proceedings will not impinge upon the orders involving her.  The contest is now between the child’s parents and the maternal grandparents.  These are proceedings in which the court must regard the child’s best interests as the paramount consideration.

68.What is at issue is whether orders should be made for the child to spend time with the maternal grandparents. This is to be determined in accordance with the considerations set out at s 60CC of the Family Law Act 1975.

69.In this case the primary considerations do not bear on a determination of the outcome.  There is no suggestion of abuse and on any account the child will live with her parents and have the full benefits of meaningful relationship that are available to her.

70.Only a limited number of the additional considerations are relevant. Those considerations relate firstly to the child’s views. Secondly, they relate to the nature of her relationships, focused upon her relationships with her parents, maternal grandparents and other family, and the interplay of those relationships with the capacity of those persons to provide for the child’s needs. Thirdly, they relate to changes in circumstances, in the limited sense that travel would be required to enable time to be spent with the maternal grandparents. Fourthly, the other relevant matter concerns the effect on the child of orders being made that are not supported by her parents, in particular the extent that she may be exposed to, and embroiled within, conflict concerning such orders. To the extent that any of the other s 60CC considerations may be engaged, they fall within a consideration of these matters.

71.While the child has expressed some views, given her age and stage of development they are not views that may be given any weight.  Those views are contrary to spending time with the maternal grandparents (perhaps contingent upon the question of moving to Asia), but appear to be grounded in her involvement in the dispute between the parents and the maternal grandparents.  Those views, however, give some indication as to difficulties in her relationship with the maternal grandparents.  They also illustrate the problems with orders that run counter to what the parents are prepared to support.

72.A key matter concerns the nature of the relationships between the child and the maternal grandparents, and the benefits that she may obtain from spending time with them.  The relationship between the child and the maternal grandparents is currently limited.  Although there has been regular exposure to them, it is only for a few times each year and has not transitioned to overnight time.  The view of the Family Report writer is that the relationship is not of sufficient quality for overnight time to be appropriate at this stage.  Time with the maternal grandparents would necessarily be for the purpose of developing the relationship, rather than the preservation of a well-established and important relationship for the child.

73.What the child may gain out of spending time with the maternal grandparents has been identified by the Family Report writer as being related to the child’s knowledge of her deceased mother, the answering of questions about her mother, connection to family and issues connected to the child’s identity and cultural heritage.  These have implications for her development into a teenager and adult.  As identified by the Family Reporter, deficits in this area have implications for acting out, rebellion and mental health issues, that is, they increase the risks in relation to these matters.

74.In relation to the connection with Ms V Leary, with the maternal family and her cultural heritage, the maternal grandparents do not constitute the only source of connection.  In relation to Ms V Leary, the father also constitutes an appropriate source.  He is a person with intimate knowledge of Ms V Leary.  The father and Ms V Leary were still in a relationship at the time of her death.  

75.One issue ventilated in the proceedings was the father’s significant mistrust of how the maternal grandparents might deal with issues concerning Ms V Leary with the child.  The father’s view was that such issues should be left until the child is older and expressing an interest in those issues.  As he and the mother have joint parental responsibility, the determination of when such matters are to be ventilated with the child is a matter for them.  If these matters are left to them, the independent benefit in this area to be gained from the maternal grandparents is limited.

76.Further, even in the absence of the maternal grandparents, the child has access to Ms V Leary’s cousin, Mr T and his wife Ms T, who provide a solid link to Ms V Leary’s family and to the child’s cultural heritage. 

77.The consequence of these circumstances is that the maternal grandparents do not constitute the only link to these important matters.  The child will not be without connection to her family background, to her deceased mother, nor to her cultural background without contact with the maternal grandparents.

78.As the parties all anticipate that the child will in future live in Asia, and as the maternal grandparents live in New Zealand, there are significant practical impediments to their spending time together.  The maternal grandparents at present accept that time should occur either in Asia or Australia, with time in New Zealand reserved for when the child is older.  This will necessitate the maternal grandparents travelling to Asia.  They are willing to do this.  However, the evidence did not enable times to be set out for this to occur.  This would require orders with a degree of flexibility to accommodate the child’s living and schooling arrangements.  Flexibility requires cooperation that, in the circumstances of their poor relationship, has dim prospects, particularly where the father views it as being a means of the maternal grandparents exercising control over him.  Further, whatever the arrangements are to be, at present the child has been assessed as not being ready to spend overnight time with the maternal grandparents, restricting the sort of mechanisms that can be put into place to support the time.

79.Any time the child spends with the maternal grandparents will also take place in the broader context of the difficult relationship between her parents and the maternal grandparents.  Despite the assurances given by the parents, their expressed views of the maternal grandparents can give no confidence that they consider time with the maternal grandparents to be in the child’s best interests.  Absent such a view, it cannot be anticipated that they will support time in the absence of orders.  It should also not be expected that they will be supportive of time if orders are made.

80.Each of the parents resists orders being made.  The previous final orders have not proved successful.  They have resulted in significant ongoing litigation for contravention, and threatened litigation for alleged contravention.  The father perceives the orders to be an attempt to control him by the maternal grandparents.

81.Most importantly in this particular case, the parents have not protected the child from the dispute with the maternal grandparents.  Whether this is because they lack the capacity or insight to do so, or otherwise, the imposition of orders, against the settled views of the parents, carries with it a strong risk of exposing the child not only to their adverse views of the maternal grandparents, but of embroiling her as an instrument of the dispute. 

82.The history of the child previously being exposed to the dispute means that there is a significant risk that she would be exposed to adverse views held by the parents if arrangements were made other than what the parents will accept.  These views would undermine the time that the child would spend with the maternal grandparents.  The Family Reporter identified that this carries risk with it for the child, a risk that grows as the child gets older.  In particular, the risk is that the child will be placed in a position where she is caused to side against the maternal grandparents and with the parents.  This would place her into the centre of any dispute, as an actor and participant in the dispute.  This can already be seen to have occurred in the child’s engagement with the maternal grandmother on the frustration of the family’s plan to move to Asia. 

83.The critical balance in consideration of the s 60CC matters that are relevant to these proceedings is between the benefits of relationship with the maternal grandparents as against the risk of exposure to and involvement in conflict between the parents and the maternal grandparents. At present the risk of being involved in the dispute outweighs the benefits of relationships which are limited and also, to the extent they exist, are at peril in the face of potential conflict. The child’s exposure to the dispute is not in her best interests. It is the sort of matter that capable parents would be expected to protect her from, in the interests of providing for her emotionally. Historically this has not happened. The parents cannot be relied upon to give the child this protection if orders conflict with their views on the matter. Given their opposition to any orders to spend time with the maternal grandparents, this conflict, where their relationship is so poor, is likely to arise.  Orders will therefore not be made for face-to-face time, given the parents’ limitations in shielding the child from their adverse views of the maternal grandparents.

84.If I am wrong about this and the parents have both the will and ability to pursue the child’s best interests ahead of any dispute they have with the maternal grandparents, then presumably they will foster the relationship, as they have suggested they will, in the absence of orders requiring them to do so.  This unsatisfactory result is in the child’s best interests, as she should not become part of the conflict between the parents and the maternal grandparents.  Absent such, she should have the benefit that a relationship with the maternal grandparents should provide.  

85.To the extent that the parties have agreed on orders to support that relationship the orders should be made.

Bond

86.The father disputed his capacity to lodge a bond in support of his compliance with orders.  Accepting that he had received $650,000 net proceeds from the sale of property 12 months prior to the hearing, he asserted that this was necessary for the education of their two children.  I do not accept that there is a lack of capacity to lodge a bond for a fixed period of time, without impinging upon the need to educate the children.  If the bond was for a fixed period, as is sought by the maternal grandparents, then, assuming compliance, the amount would be returnable prior to the need for that component for the education of the children.

87.A bond was sought by the maternal grandparents in circumstances where options to enforce the orders are limited, with the child in Asia and the maternal grandparents in New Zealand.  A bond could provide some ability to cause compliance with the orders.

88.However, while it may enforce compliance with the remaining orders to be made, its potential to further breed resentment and ill will, where some good will is required for there to be a relationship between the child and the maternal grandparents, means that no order for a bond should be made.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 2 March 2018.

Associate: 

Date:  2 March 2018