Yuen and Yuen and Hudd and Tolmie - [2009] FMCAfam 30

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YUEN and YUEN & HUDD and TOLMIE

[2009] FMCAfam 30

FAMILY LAW – Child aged 2½ years of age – applicants paternal great grandparents – respondents parents of child – applicants of advanced years – child in their care from approximately one month of age pursuant to informal care arrangement with Families SA – child later found to be in need of care and protection – during 2007 child reunited with parent under auspices of Families SA – after lapse in care and protection order applicants seek to spend time with child – Families SA not supportive of such arrangement – poor relationship between applicants and parents – mother vehemently opposed to child spending anytime whatsoever with great grandparents – best interests – matters to be considered.

Family Law Act 1975, ss.60B, 60CA, 60CC, 91B

Bright v Bright (1995) FLC 92-570
Goode & Goode (2006) FLC 92-286

Applicants:

MR YUEN & MS YUEN

Respondents:

MS HUDD & MR TOLMIE

File Number:

ADC 3757 of 2008

Judgment of:

Brown FM

Hearing date:

19 December 2008

Date of Last Submission:

19 December 2008

Delivered at:

Adelaide

Delivered on:

21 January 2009

REPRESENTATION

Counsel for the Applicants:

Ms Milen

Solicitors for the Applicants:

Jo-Ann Milen & Associates

Counsel for the Respondents:

Ms Leeson

Solicitors for the Respondents:

Vicki Lehmann & Associates

ORDERS

The parties competing applications be fixed for hearing on 24 and 25 June 2009.
Pursuant to section 62G of the Family Law Act a family report be prepared to be released to the parties on or before 23 April 2009.
Pursuant to section 91B of the Family Law Act the Department of Families SA is invited to intervene in these proceedings and to this end it is directed that the Registrar of the Court provide the relevant officer of the aforesaid Department with a copy of these reasons for judgment.
The parties concerned each enrol in a Commonwealth funded children’s contact service, the service to be agreed between the parties and failing agreement to be the nearest such centre to the parents’ home and subject to their suitability to take part in the supervised contact program the maternal great grandparents spend time with the child [X] born in 2006 on the following terms and conditions:
(a)On no more than one occasion each fortnight for a period of two hours at such time as is nominated by the director of the contact service concerned;
(b)Each such visit be subject to the supervision of the director of the service concerned or his/her nominee;
(c)Upon the completion of six supervised visits the director of the service concerned provide a written report concerning the observed interaction between the great grandparents and the child concerned;
(d)Each such visit take place at the expense of the great grandparents.
The proceedings be listed for further direction on 12 May 2009 at 9:30am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3757 of 2008

MR YUEN & MS YUEN

Applicants

And

MS HUDD & MR TOLMIE

Respondents

REASONS FOR JUDGMENT

Introduction

These proceedings concern interim arrangements for the care of one child, [X] born in 2006, particularly whether he should spend any time with his maternal great grandparents, Mr and Ms Yuen and, if so, on what conditions.
[X]’s parents are Ms Hudd and Mr Tolmie. Mr Tolmie has not taken an active role in the case. Ms Hudd is vehemently opposed to [X] spending any time whatsoever with his great grandparents, whatever conditions are imposed. It is an unusual case.
Mr Yuen is seventy-nine years of age. Ms Yuen is seventy-four. [X] came into their full-time care in July of 2006, shortly after he was born. This placement occurred under the auspices of Families SA and apparently with Ms Hudd’s acquiescence.
Earlier, a police officer had removed [X] from the mother, at the caravan in which Ms Hudd was living at the time. The officer was concerned that [X] had been exposed to family violence occurring between his parents.
The police took [X] to Mr and Ms Yuen’s home and asked whether they would be willing to take [X] in. Later an officer from Families SA provided them with some items necessary for [X]’s care.
It is Mr and Ms Yuen’s case that [X] was in poor health, when he came into their care, suffering signs of neglect. They say they attended to his needs and quickly bonded with him.
For a period of some months in 2006, the mother lived at the great grandparent’s home. It is her case that this was a difficult period for her as Mr and Ms Yuen would not support her relationship with [X] and excluded her from providing care for him.
On the other hand, Mr and Ms Yuen contend that the mother was essentially disinterested in [X] and was living with them because she had nowhere else to go. It is their case that the mother left all matters to do with [X]’s care to them. Ms Hudd denies that she ever neglected [X]’s health needs.
In August of 2006 the parties, again under the auspices of Families SA, entered into a voluntary agreement pursuant to which Ms Hudd agreed that she would not remove [X] from Mr and Ms Yuen’s care.
It is Ms Hudd’s position that this agreement was foisted upon her and she had no real choice in respect of it. At the time Ms Hudd was seventeen years of age and in a vulnerable position because of her volatile relationship with Mr Tolmie.
Ultimately, Families SA applied for a care and protection order, in respect of [X], in the Youth Court at Adelaide. The parties’ dispute precisely when this application was first made but documentary evidence indicates that Judge Prescott made a care and protection order in respect of [X] on 3 October 2007.
Pursuant to this order, [X] was placed under the guardianship of the Minister for Families & Communities for a period of twelve months, and Ms Hudd and Mr Tolmie were permitted to have access to him at times nominated by the Minister’s nominee and subject to the nominee’s supervision. Mr and Ms Yuen were not a party to these proceedings.
In June of 2007, social workers employed by Families SA and Centacare began a process of reintroducing [X] to Ms Hudd and

Mr Tolmie with the intention of reuniting them as a family. Mr Tolmie and Ms Hudd had their first overnight visit with [X] on 13 September 2007.
Prior to the inauguration of this reunification program, Ms Hudd and Mr Tolmie had undergone a process of intensive counselling to assist them with their relationship problems. Mr Tolmie attended an anger management course. After this process, the father and mother began to live together once again.
There is a disagreement between the parties regarding how much time [X] spent in the care of Ms Hudd and Mr Tolmie on the one hand and Mr and Ms Yuen on the other. However, it is agreed by Mr and

Ms Yuen that their time with [X] decreased to allow the reunification process to be completed.
In early 2008, Families SA considered that the reunification process was complete. At this stage, the Department made no formal arrangements for Mr and Ms Yuen to spend time with [X]. Rather, it was hoped that the parties themselves could arrange an appropriate regime.
Ms Hudd’s position is that Mr and Ms Yuen were undermining of this process of reunification between parents and child and were obstructive in regards to the efforts of the various social workers involved. Over time, relations between Mr and Ms Yuen and Ms Hudd have deteriorated to the point where they are not able to communicate directly with one another.
It is Mr and Ms Yuen’s position that they were given to understand, by workers from the Department that, given the strength of their relationship with [X], the Department would be supportive of them remaining in contact with [X].
I am unable to ascertain the truth or otherwise of this assertion. However, it is the case that the Department was not prepared to oversee any formal arrangements whereby Mr and Ms Yuen saw [X] from the latter part of 2007 onwards.
The mother’s position is that Department workers told her that it was necessary for the bond between [X] and Mr and Ms Yuen to be broken, so that [X] might become fully bonded with his parents. It is also

Ms Hudd’s position that the Department were concerned at Mr and

Ms Yuen’s age and state of health to provide care for [X].
In the latter part of 2007, Ms Hudd was agreeable to Mr and Ms Yuen spending time with [X], subject to her supervision, at her home in [E]. With some reluctance, Mr and Ms Yuen acceded to this proposal. However it broke down. The last time Mr and Ms Yuen saw [X] was either in mid-February of 2008 (the great grandparent’s position) or on Australia Day 2008 (the mother’s position).
It is the mother’s position that she and Mr Tolmie now have a close relationship and have resolved their various difficulties with one another and are the most appropriate persons to make decisions regarding [X]’s care and welfare, as his parents.
It is also Ms Hudd’s case that Ms Yuen has an unhealthy obsession with [X] and oversteps the proper bounds of being a great grandparent because she is intent on undermining the mother’s parenting of the child, to secure her own emotional needs.
Mr and Ms Yuen deny these assertions. It is their case that they merely want to maintain a relationship with [X], whom they deeply love because of their extensive involvement with him from shortly after his birth and throughout 2007.
In addition, Mr and Ms Yuen refute any suggestion that their age and state of health should act as an impediment to them spending time with [X]. In this regard, I have been provided with a medical report from their treating general medical practitioner, Dr S.
Dr S reports that Mr Yuen’s hypertension and glaucoma are well managed with medication and he suffers from no psychiatric disorder. In Dr S’s opinion, Mr Yuen is capable of supervising a child of [X]’s age.
Ms Yuen also suffers from a number of age related medical issues, including hypertension, osteoporosis and intermittent diverticulitis. These conditions are also treated with medication.
In Dr S’s opinion, Ms Yuen shows no signs of dementia or any form of cognitive impairment and does not suffer from any psychiatric disorder. Accordingly, like her husband, Dr S believes that Ms Yuen is capable of caring for a child of [X]’s age.
It is obvious from Dr S’s report that he is a strong supporter of

Mr and Ms Yuen and thinks highly of them. He has seen [X] with

Mr and Ms Yuen and believes that there is a significant bond between great grandparents and child.
In his report he opines as follows:
“In general I would like to comment that attachment behaviours in humans serve a primary purpose of providing safety and protection for the young, the old, and others who are less capable of meeting there(sic) own needs in this area. In addition these interpersonal connections provide for socialisation and stimulation of intellectual development. Attachments provide connections to others and help us develop a sense of self. Attachments help us define ourselves as humans, as sons or daughters, mothers or fathers, brothers or sisters, wives or husbands, grandparents, or as friends.
Disrupted attachment, especially during our early developing years, can lead to significant intra-personal and inter-personal difficulties, either at the time of the disruption or later in life or both.
There is considerable research and clinical data to substantiate the difficulties that one may encounter (sometimes severe difficulties) in these individuals who have experienced disrupted attachment.”[1]
[1] See annexure A to the affidavit of Ms H filed 18 December 2008
On 4 October 2008, the care and protection order in respect of [X] lapsed. Earlier, in May of 2008, Mr and Ms Yuen had applied to the Youth Court to vary the care and protection order in respect of [X]. This application came before Judge Eldridge.
Her Honour was of the view that she did not have jurisdiction to vary the order so that Mr and Ms Yuen could have some contact with [X]. However, she urged the parties and Families SA to see what arrangements could be made for [X] to see his great grandparents, from time to time. Her Honour proposed some form of supervised visitation, with officers of the Department conveying [X] between the parties’ respective homes.
This “back door”, as categorised by Her Honour and counsel in the proceedings did not result in the great grandparents spending any time whatsoever with [X].
In her reasons for judgment, Judge Eldridge said as follows:
“I am not prepared to entertain your application. I don’t consider that I have got the power to recognise the great-grandparents of the child as parties. I don’t see that they can bring an application to vary those final orders so on that basis I’ve got no alternative but to dismiss your application. As I have already indicated, I hope that the involvement of Mr Croser as the child’s representative further negotiations will take place between the parties with a view to access being arranged, and as I indicated before I don’t see the fact of difficulties of the relationship between the parents and the great-grandparents as being any barrier to access taking place and I can see no reason why other arrangements can’t be made as are often done in this jurisdiction.”[2]
[2] See annexure C to the affidavit of Mr and Ms Yuen filed 22 September 2008
It is clear from the tenor of these proceedings that Judge Eldridge and the lawyer appointed for [X] in the care and protection proceedings,

Mr Croser, were in favour of [X] spending some time with his great grandparents. In particular, Mr Croser said he was “horrified” that all contact between [X] and his great grandparents had been severed in circumstances where previously they had been his principle carers.
Mr and Ms Yuen commenced these proceedings on 22 September 2008. On an interim basis, they wish to spend time with [X], for an introductory period of three months, between 10am and 6pm on each Saturday. Thereafter, they would wish to spend time with [X] on alternate weekends and for one half of each school holiday period.
They propose that they would collect [X] from his parents’ home, at the beginning of each such period and Ms Hudd and Mr Tolmie should collect him from their home at the conclusion of each period.
During the course of the interim proceedings, Ms Milen, counsel for Mr and Ms Yuen indicated that her clients were willing to see [X] on any basis whatsoever, including seeing him in a professional supervised setting, as would be provided by a government funded children’s contact centre.
Mr and Ms Yuen’s application came before this court for the first time on 28 October 2008. Ms Hudd appeared on her own behalf, having been served with the application on 29 September 2008. She had not filed any material in response to the great grandparent’s application.
Accordingly, the proceedings were adjourned to 2 December 2008 and in the interim, it was ordered that the parties attend a child dispute conference. This conference did not resolve the complex issues between the parties but the family consultant concerned recommended that the court order a long family report be prepared.
Ms Hudd did not comply with the orders requiring her to file answering documents prior to 2 December 2008 and accordingly, the scheduled interim hearing did not take place. Again, the proceedings were adjourned to 19 December 2008.
Ms Hudd has now filed her answering material. Her position can be easily stated. She wishes the court to dismiss Mr and Ms Yuen’s application. For the reasons outlined above, she contends that it cannot be said to be in [X]’s best interests for him to have any form of relationship with his great grandparents, notwithstanding the fact that they provided a substantial level of care for him in the first year of his life.
Families SA and its officers have played a significant role in the life of [X] up to this stage. The proceedings in the Youth Court have concluded and necessarily the Department is not a party to these proceedings and in a formal sense I am unaware of what its attitude to Mr and Ms Yuen’s application.
However, I have been provided with a report dated 6 May 2008. The report was prepared as a “courtesy” to the Youth Court, when it was considering Mr and Ms Yuen’s application to spend time with [X]. It is clear from this report that the Department is not supportive of [X] spending periods of time with his great grandparents.
The report reads as follows:
“From the time that [X] was placed in their care, Mr and Ms Yuen were always advised by Families SA that they were only assessed and only considered as Short Term carers ‘capable of providing adequate care of [X] in the short term’; concerns were held due to their age and frailty and their ability to care for [X] physically as he gets older.
Since September 2007 the parents and Mr and Ms Yuen have been encouraged to arrange informal contact which has been occurring up until early February 2008. The parents have recently suggested that given their observations of [X] whilst around Mr and Ms Yuen, they feel that [X] needs to strengthen his attachment with his parents and build on their relationship, which Families SA supports. The parents have stated to Families SA that they feel that Mr and Ms Yuen are undermining their parenting style and the parents are very concerned at the behaviour that [X] demonstrates whilst he is in their care. The parents have stated that although they have tried to discuss these concerns and others relating to [X] that Mr and Ms Yuen do not appear to take any of the parents concerns on board.
Families SA acknowledged that the reunification process may be difficult for Mr and Ms Yuen and so a referral for a relative support worker was initiated in July 2007. Families SA understands that Mr and Ms Yuen utilised this service only a few times and the support was cancelled by them in January 2008.
Ultimately the parents are trying hard to do the right thing and they have done extremely well so far in consolidating their progress. The transition from the full time care by Mr and Ms Yuen to the full time care of the parents was always made with [X]’s best interests in mind and Mr and Ms Yuen have always been informed of the steps involved in the reunification process.
Over the course of the reunification process, Families SA has tried to encourage and support informal contact between family members as the Department will not be seeking further orders and will therefore not be involved with family matters past the current order’s expiry in October 2008. The Department is of the view that at this point in time it would be detrimental for the family of [X] to have contact with Mr and Ms Yuen given the reasons as outlined above.”[3]
[3] See annexure E to the affidavit of Mr and Ms Yuen filed 22 September 2008
As this introduction shows, the positions of the parties are polarised in the extreme. There are many disputes of fact between them. In addition, the case raises complex issues to do with the nature of the relationship between elderly great grandparents and a child of tender years, against a background of relationship dysfunction and extreme hostility.
The hearing, at the interim stage, does not allow for the hearing of oral evidence from the parties concerned, nor any cross-examination. Necessarily the hearing has to be brief. As a result, I cannot make findings of fact, where there is a dispute between the parties concerned as to what previously happened between them. There are many such disputes in this particular case.
The difference between interim and final hearings is that interim hearings do not make concluded arrangements for the care of any child concerned, whereas final hearings do. In addition, very often, at the interim stage, all the evidence likely to be available at the final hearing is not yet to hand.

In particular, at this stage, the family report recommended by Family Consultant Beall has not been commissioned. In addition, I do not have any extensive evidence from Families SA regarding their formal view of the matter. Regardless of these difficulties, it is necessary for me to make some decision, notwithstanding the imperfect nature of the evidence before me.

The legal principles to be applied

Part VII is the part of the Family Law Act which deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount or most important consideration [Family Law Act section 60CA].
The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
The Family Law Act is primarily a code for regulating arrangements regarding the care of children between the parents of any child concerned. However, a parenting order need not be confined to an order made in regards to a child’s parents alone.
It is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)].
As the expression implies, obviously parenting orders are most usually made in favour of the parents of the child concerned but clearly can also include other people, who are significant to the child concerned, in the sense of that child’s care, welfare and development.
Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. Accordingly, in my view, the applicants have legislative authority to seek the orders, which they do.
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(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.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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).”
A principle is defined as “a fundamental truth or law as the basis of reasoning or action”.[4] The principles of the Family Law Act emphasise the “right” of a child to know and be cared for by both of his or her parents.
[4] See the Australian Oxford Dictionary
These principles also emphasise a child’s entitlement to spend time, on a regular basis, with those who are significant to the child’s care, welfare and development. It is Mr and Ms Yuen’s case that they are such persons, having provided a significant level of care to [X] in the first months of his life.
Section 60B(2)(b) was amended by the Family Law Amendment (Shared Parental Responsibility) Act of 2006. The section speaks specifically of grandparents but not of great grandparents. However, in my view Mr and Ms Yuen are persons intended to come within the purview of the section. The relevant section of the explanatory memorandum to the legislation reads as follows:
“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.”[5]
[5] See Item 8 – Section 60B paragraph 39 at page 12 of The New Family Law Parenting System Handbook
It is Mr and Ms Yuen’s position that [X] has a right to have some form or relationship with them because they are part of [X]’s wider family and, as such, are likely to be significant to his ongoing care, welfare and development.
These were themes which were taken up by Treyvaud J in Bright v Bright[6], which seems to me to be relevant, although it pre-dates the applicable legislation. His Honour said as follows:
“His Honour was at pains there to point out, as I do now, that it is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is a part a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
In deciding this dispute between the grandparents, on the one hand, and the parents, on the other hand, I am required by law to treat the welfare of the child E as the paramount consideration. I have pointed out that as a matter of general principle children develop better when they recognise that they have a place not only in the home in which they live but in the wider family.”
[6] See Bright v Bright (1995) FLC 92-570 at page 81,658
From the mother’s perspective, the re-introduction of [X] to Mr and

Ms Yuen is fraught with all manner of difficulty, particularly given what she sees as their undermining and negative attitude towards her and Mr Tolmie’s parenting of him.
She is also concerned that given their respective ages, it is unlikely that Mr and Ms Yuen will be able to play a long term role in [X]’s development. As such, the tenor of her case is that any time between the great grandparents and [X] will not be helpful to the child’s long term parenting and will not assist him to achieve his full potential.
I have taken some time to set out the different aims and principles of the Act and the parties’ different reliance on them to emphasise the difficulties inherent in this case. However, none of these aims or principles is ranked in any order of priority. They each remain important, depending on the particular circumstances of the case concerned.
The fundamental task for the court is to determine, bearing in mind these goals and principles, what is the best outcome for any child concerned, both now and in the future. Necessarily different but equally important concepts must be weighed and accessed against each other to achieve the best outcome for any child concerned.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
In assessing the various considerations arising under section 60CC(2) & (3), the court is required to consider the extent to which each of the parents of the child concerned has fulfilled or failed to fulfil the responsibilities of being a parent.
This assessment includes how much time and communication each parent has had with the children; their degree of involvement in long-term decision making; and the fulfilment of financial obligations towards the children concerned.
Picking up on the principle set out in section 60B(2)(b), one of the additional considerations contained in section 60CC(3)(d) directs the court to consider the implications for a child of being separated from a person with whom he or she has previously been living. Again the sub-section concerned makes particular reference to grandparents.
In Goode & Goode [7] The Full Court has directed that, in determining interim hearings, the court should first identify the competing proposals of the parties concerned and the issues in dispute between them and then, as it best it can, bearing in mind the abbreviated form of an interim hearing, consider all of the relevant section 60CC factors and attempt to make findings of fact in respect of them.
[7] Goode & Goode (2006) FLC 92-286 at 80,899

Discussion

It is now the stage where I attempt to marry up the legal principles to the factual situation in this case. Firstly, I must consider the relevant section 60CC factors, particularly the primary considerations.
At the present time, it seems clear that [X] has a meaningful relationship with both his parents. He lives with them and so sees and interacts with them on a daily basis. I do not believe that it can be said, at this stage, that Mr and Ms Yuen are intent on changing this situation. Their ostensible desire is to spend time with [X] and augment their relationship with him.
The mother asserts that she has witnessed Ms Yuen continuously hit her husband, whilst she (Ms Yuen) was holding [X], following [X] suffering a minor domestic injury. Mr Yuen acknowledges that [X] was upset but not seriously burnt after he knocked over a cup of tea accidentally. He denies the gravamen of the mother’s allegations.
I do not think that the evidence currently before me indicates that there is any serious risk that Mr and Ms Yuen will ever expose [X] to the harm which is represented by abuse, neglect or family violence. In particular, on the basis of Dr S’s report, I do not think it can be said that their respective ages disqualify them from being able to spend time with [X]. Certainly, in 2006, both Ms Hudd and Families SA were content to entrust [X] to Mr and Ms Yuen’s care.
The reason why [X] came into Mr and Ms Yuen’s care, in the first place, was because he had been exposed to serious family violence whilst in the care of his parents. I accept that Ms Hudd and Mr Tolmie have made great progress in repairing their relationship and Mr Tolmie in particular has attended a violence prevention course. This is to their mutual credit.
The impression I have is that Ms Hudd is somewhat insecure about her parenting of [X] and feels threatened by what she perceives to be

Ms Yuen’s overweening interest in [X] and her propensity to be critical of her and Mr Tolmie’s parenting of him. For whatever reason the relationship between Ms Hudd on the one hand and Mr and Ms Yuen on the other, which could once, at the very least, be described as a workable one, has now completely broken down.
This seems to be the central issue in the case. From Ms Hudd and

Mr Tolmie’s perspective, they are [X]’s parents and have made a family with him and his recently born sibling [Y], who was born in 2008. As such, they consider that Mr and Ms Yuen should now simply butt out of their lives, regardless of the assistance they have provided them in the past.
It is also the subtext of their case that, given the great grandparents’ ages, it is difficult to see that they will be available to play a significant role in the long haul of parenting [X]. As such, it does not make pragmatic sense to encourage this particular relationship, so far as [X] is concerned.
From Mr and Ms Yuen’s perspective, I suspect that they continue to harbour concerns about the viability of the relationship between

Ms Hudd and Mr Tolmie, given its past extreme difficulties. For reasons not of their making, they played a significant role in [X]’s life from its earliest stages. Inevitably they formed a bond with him and now have a deep and abiding love for him. As such, it is only to be expected that they would want to look out for him now and be protective of him.
In addition, given their differences in age and life experience, it is likely that there will be a gulf in the parenting attitudes and expectations between the great grandparents on the one hand and the parents on the other. Necessarily they will have different values and views. What Mrs Yuen may see as helpful advice, Ms Hudd may see as destructive and gratuitous criticism.
Perhaps the relationship between mother and great grandparents was always fragile. I suspect it was. Regardless of its strengths or weaknesses, the reunification process begun at Centacare, involving primarily the parents and [X] and leading to the exclusion of Mr and Ms Yuen, was likely to put it under a great deal of pressure. As events have proved, Mr and Ms Yuen are not inclined to melt into the background so far as [X] is concerned.
Regrettably, for the foreseeable future, I can see no prospect of the relationship between the parties improving. Currently Ms Hudd has an implacable antipathy towards Mr and Ms Yuen, whom she regards as senile meddlers in her affairs. I gain this impression from my earlier dialogue with her at the first mentions of the matter. She is obviously highly resentful at any suggestion that she should facilitate [X] spending any time whatsoever with Mr and Ms Yuen.
Against this background, any arrangement for Mr and Ms Yuen to spend time with [X] will be fraught with difficulty. This cannot be good for [X], particularly as his parental attachments were in a state of flux over the first one or two years of his life, prior to the commencement of the reunification process with his parents. As such, he is to be regarded as a vulnerable child. Prolonged exposure to the high level of conflict between his parents and great grandparents will not be helpful to him feeling stable and secure.
[X] is too young to be able to express any view about what is the appropriate outcome in this case [section 60CC(3)(a)]. In addition, it is not beyond the bounds of possibility that he has no or little recall of

Mr and Ms Yuen, given that he has not seen them for nearly twelve months.
At present, [X]’s most significant relationship is with his parents. It is clearly the case that Families SA realised that it was not a viable long term option for Mr and Ms Yuen to permanently replace Ms Hudd and Mr Tolmie as [X]’s parents. Although I accept that Mr and Ms Yuen are in good health, the reality is they are of advanced years and as such it is questionable whether they would have been in a position to offer a child of [X]’s age long term security in regards to his nurture and care.
Accordingly Families SA were compelled by the circumstances to seek some alternative form of placement for [X] to that offered by Mr and Ms Yuen’s home. The preferable option – provided the parents could assure the Department of their commitment to his wellbeing – was to examine how [X] could be returned to the full time care of his parents. Otherwise, it would seem to be the case that the Department would have had to consider other options or placements for [X] in the longer term.
This situation, of course, created dilemmas of its own. Mr and Ms Yuen were regarded by Families SA as more than competent short term carers for [X]. However[X] is their kith and kin. They were not professional foster carers, able to bring some emotional detachment to the role of caring for a young child. Inevitably, they became emotional involved with [X].
I am not able to adjudge, at this stage of proceedings, what [X] knows or remembers of his great grandparents. However, from Mr and

Ms Yuen’s perspective, their relationship with [X] is highly significant. They love and care about [X] deeply. In all these circumstances, it is heartbreakingly difficult for them to step back and renounce any role in [X]’s on going development [section 60CC(3)(b)].
From the perspective of his own personal history, Mr and Ms Yuen are very important to [X]. They looked after him when he was a baby.

It may be Ms Hudd and Mr Tolmie’s preference that [X] not ever know this significant matter to do with his earliest life. I do not know. It is likely to be a subject of some sensitivity to the parents, given that how [X] came into Mr and Ms Yuen’s care in the first place is not greatly to their credit. These are difficult issues to canvass in an interim hearing such as this one. They are also likely to lead to the ongoing conflict between the parties remaining unresolved.
Given all these circumstances, it is Ms Hudd’s position that Ms Yuen in particular is not capable, at a deep emotional level, of supporting [X]’s ongoing relationship with his parents. As such, given that it is in [X]’s best interests – both in the long and short term – that the reunification process be consolidated, it is better that no consideration be given to the great grandparents spending time with [X] [section 60CC(3)(c)].
If Mr and Ms Yuen do spend any time with [X], she fears that this may have the potential to confuse [X] and undermine her and Mr Tolmie’s role as [X]’s parents. Accordingly, it is her case that there can be no benefits for [X] of seeing his great grandparents, regardless of how important or otherwise they may have been to him in the past.
This is a powerful argument and one which it seems found favour with the relevant social workers from Families SA, who believed it would be “detrimental” for [X] to have contact visits with his great grandparents. The social workers reached this view because they took credence of Ms Hudd and Mr Tolmie’s complaints that they (the parents) felt Mr and Ms Yuen were “undermining their parenting style…”
Mr and Ms Yuen rigorously refute any suggestion that they do not accept the reality of it being in [X]’s best interests to remain in the primary care of his parents. It is their case that they merely want to spend some time with [X] because of their love and interest in him and because he is a member of their family. From their perspective, it is the natural order of things that great grandparents see their great grand children from time to time.
In the absence of a more thorough investigation of the evidence likely to be available in this case at final hearing, particularly in the form of a family report, I am not in a position to resolve definitively whether the fact of Mr and Ms Yuen spending time with [X] and the extent of that time is likely to be significantly detrimental to either [X] or the parents’ capacity to parent him to their optimal capacity. However, regardless of that, by dint of their relationship to him, Mr and Ms Yuen have the potential to be highly significant to [X].

For one thing they love him. For another, they are likely to be his oldest living relatives. They are his kith and kin. Our society recognises the corner stone of the family in the development of children. As Treyvaud J points out, family is not a concept just confined to the parent child relationship but encompasses grandparents, uncles, aunts, cousins and indeed great grandparents.
Given the period of time which has elapsed since he last saw them, [X] is unlikely to have any strong memories of being separated from his great grandparents [section 60CC(3)(d)]. However he has lived with Mr and Ms Yuen for an extended period of time and most likely he formed some form of attachment to them. What is the relevance, if any, of this attachment to [X]’s best interests now is difficult to gauge at this stage, particularly given the absence of any expert evidence.
Apart from the parties’ extremely poor relationship with one another, there appear to be few practical obstacles to Mr and Ms Yuen spending time with [X] in the future. Given the antipathy which currently exists between them and Ms Hudd, the great grandparents have indicated that they are willing to undertake a process of supervised contact with [X], which would obviate the need for the parties to come directly into contact with one another. It would also have the benefit of allowing the court to have some sort of independent assessment of how [X] reacted to Mr and Ms Yuen.
In addition, the time available for [X] to spend with Mr and Ms Yuen at such a contact centre is likely to be extremely limited. In such circumstances, it is difficult to see how such a regime would be unacceptably undermining of Ms Hudd and Mr Tolmie’s parenting of [X].
For the reasons already provided, I accept that the great grandparents have the capacity to meet [X]’s needs, particularly over confined periods of time. After all, when she was in difficulties, Ms Hudd was content to entrust [X] to them, with Families SA’s imprimatur [section 60CC(3)(f)]. I do not think any of the other section 60CC factors are greatly relevant to this case.

Conclusions

At this interim stage, all the relevant evidence is not to hand in this difficult and problematic case. In my view this is a case which requires some form of independent assessment in the form of a family report. The question is what arrangements should be made pending the preparation of that report.
Although relations between the parties are extremely poor and likely to remain so for the indefinite future, I consider that there is the possibility that [X] will be able to derive some benefits from being able to engage, in some form or other, with his great grandparents, who love and cherish him. At this stage I consider it premature to sever the possibility of this relationship being inaugurated because of the mother’s patent hostility towards it.
However, for the reasons outlined, the current circumstances of the parties do not provide fertile soil for the relationship to be nurtured and grown. For that reason, a cautious and incremental approach needs to be taken to reintroducing [X] to his great grandparents. If the process moves too quickly it is likely to miscarry.
Accordingly I have come to the conclusion that I should accede to

Ms Milen’s proposal that there should be an introductory process of supervised time between [X] and his great grandparents. This will have the benefit of producing a report, albeit limited in scope, which will outline how the process went from [X]’s point of view. The periods of time envisaged will not be so great that it can be said that Ms Hudd and Mr Tolmie’s capacity to parent [X] is seriously undermined in any way.
Concurrently with that process a family report can be prepared, which will examine the emotional dynamics between the parties and [X] in greater depth. If necessary these steps will be a prelude to a more detailed examination of the evidence in this case as final hearing. I will tentatively fix some dates for that hearing at this stage.
Finally, given their extensive involvement in [X]’s care and life to date, I will invite Families SA to intervene in these proceedings pursuant to section 91B of the Family Law Act. No doubt, the Department has much relevance information in its files concerning this family about whether or not it is viable for [X] to have a more extensive relationship with his great grandparents in the future.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 21 January 2009