Templeton and Champion and Anor

[2015] FamCA 586

FAMILY COURT OF AUSTRALIA

TEMPLETON & CHAMPION AND ANOR [2015] FamCA 586

FAMILY LAW – CHILDREN –Where parenting proceedings between the father, mother and maternal grandmother – Where only arrangements between the father and maternal grandmother determined – Where the significant issue is the time the maternal grandmother spends with the child – Where there is an issue of the effect of time with the maternal grandmother on the behaviour of the child – The child’s best interests – Consideration of the primary considerations and relevant additional considerations.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT: Mr Templeton

1st RESPONDENT: Ms Champion

2nd RESPONDENT: Ms O’Dowd

INDEPENDENT CHILDREN’S LAWYER: Louise Coady Family Lawyer

FILE NUMBER: PAC 2058 of 2012

DATE DELIVERED: 23 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 17, 18 and 19 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE 1ST RESPONDENT: Ms Conte-Mills

SOLICITOR FOR THE 1ST RESPONDENT: Fay Rose Legal

COUNSEL FOR THE 2ND RESPONDENT: Ms Barnett

SOLICITOR FOR THE 2ND RESPONDENT: Horizons Community Legal Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Louise Coady Family Lawyer

Orders

1. That the child B born … 2006 spend time with the maternal grandmother as agreed between the father and maternal grandmother in writing, such writing to include email and SMS communication, and in default of agreement as follows:

   (a)       During school terms on the first weekend of each month commencing on the first Friday of that month from 3:00pm Friday to 5:00pm Saturday provided always that such time shall be suspended on the Father’s Day weekend with such time to occur in lieu at the election of the father on either the weekend before or the weekend after the Father’s Day weekend,

   (b)       From 9:00am Monday to 5:00pm Friday in the first week of the school holiday period occurring at the conclusion of school term 2 (the June/ July school holidays) or otherwise as agreed,

   (c)       During the Christmas school holidays from 9:00am on the second  Monday in January until 5:00pm the following Friday or otherwise as agreed,

   (d)       On the Sunday after the child’s birthday for a period of not less than 6 hours as agreed in writing, such writing to include email and SMS communication, and in default of agreement from 12 noon to 6:00pm,

   (e)       Approximate to but not on Christmas Eve or Christmas Day, during the day only, for a period of not less than 6 hours as agreed in writing, such writing to include email and SMS communication, and in default of agreement from 12 noon to 6:00pm on 23 December each year,

   (f)       That the maternal grandmother shall communicate with the child by telephone between 6:00pm and 6:30pm each Sunday if the child is not otherwise in her care that day and at such other times as agreed in writing such writing to include email and SMS communication and for the purpose of this order the father shall provide to the maternal grandmother a contact telephone number on which the child will be available and ensure that the child is available to receive such calls and shall afford the child reasonable privacy during such calls.

2. Provided always that if the child has a significant family or social commitment that the father wishes to take the child to or have his wife take the child to on a weekend or holiday period when the child is due to be in the care of the maternal grandmother then:

   (a)       The father will notify the maternal grandmother of the commitment by email as soon as possible and in any event in the event of a weekend at least one week in advance and in the event of a holiday period at least one month before the commencement of the holiday period; and

   (b)       The child’s time with the maternal grandmother will instead occur at a time to be agreed between the father and the maternal grandmother or failing agreement if a weekend on the weekend after it was due to occur and if a holiday period in the following school holiday period.

3. That as soon as practicable and no later than 24 hours before the child is to spend time with the maternal grandmother the father will send an email to the maternal grandmother notifying her of any behavioural or disciplinary issues and or health or dietary issues the child has that the father wishes the maternal grandmother to be aware of during the child’s time with her and the maternal grandmother shall use her best endeavours to reasonably implement any health regime or behavioural strategy of which she is so informed.

4. That the maternal grandmother be restrained from facilitating time or communication between the child and the mother other than in accordance with orders unless with the written consent of the father.

5. That the maternal grandmother be restrained from smoking in the immediate presence of the child and shall remove the child from the vicinity of any third party who may be smoking.

6. That the maternal grandmother be restrained from consuming alcohol during any period that the child is in her care.

7. That the maternal grandmother shall facilitate the child’s attendance at all sporting, extra-curricular, social or schooling events that may fall in the period that the child is spending time with her and the father shall provide to the maternal grandmother details of such events in a timely manner and in any event not less than 72 hours before the child is to commence spending time with the maternal grandmother.

8. That the maternal grandmother and the mother are at liberty to attend the child’s special school events including concerts, assembly, event days and presentations.

9. That the father shall provide to the maternal grandmother a copy of the child’s school report within 14 days of receiving same from time to time.

10. That changeovers for the purposes of the maternal grandmother’s time during school term be facilitated by the maternal grandmother facilitating collection of the child from school on Friday afternoon and returning the child at the conclusion of that time to the father’s home or such reasonable midway point as nominated by the father in writing including email or SMS communication in a timely manner and in any event no later than 24 hours before the conclusion of the child’s time with the maternal grandmother.

11. That otherwise changeovers be facilitated by the maternal grandmother facilitating collecting and returning the child to and from the father’s home or such midway point as nominated by the father in writing including email or SMS communication in a timely manner and in any event no later than 24 hours before the conclusion of the child’s time with the maternal grandmother.

12. That the father shall pass on to the child unopened letters, gifts or items sent by the maternal grandmother to the child,

13. That the father and maternal grandmother will each provide the other with and keep the other informed of any changes to their residential address, their contact email address and their contact telephone number including landline and mobile phone numbers.

14. That the maternal grandmother be restrained from passing on to the mother details of the father’s residential address or contact details and shall use her best endeavours to prevent any other person from doing so.

15. That the father as soon as practicable give written authorities to Dr C or any other treating psychiatrist or psychologist so that the maternal grandmother may contact the practitioner to discuss with them and receive from the information regarding the child’s diagnosis, treatment and any recommendations for the care of the child whilst the child is in her care.

16. That the father and maternal grandmother shall keep each other informed of any significant illness or injury suffered by the child whilst in their care,

17. That the maternal grandmother is entitled to attend the child’s school events, sporting events and extracurricular activities that regularly allow for family attendance and participation.

18. That the parties are restrained from denigrating the other or members of their family in the presence of or hearing of the child and shall remove the child from the presence of any third party who may do so.

19. That proceedings as to the mother’s time with the child be adjourned for further case management hearing to 9.30am on 22 March 2016 noting that the Independent Children’s Lawyer has leave to relist on short notice.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2058  of 2012

Mr Templeton

Applicant

And

Ms Champion and Ms O’Dowd

Respondents

REASONS FOR JUDGMENT

1. The parties to the present proceedings are the applicant father, the respondent mother and the second respondent maternal grandmother.

2. The child subject of the present dispute is the child B, born in 2006. At the time of trial the child was nearly 9 years of age and residing with the applicant father.

3. At the commencement of the trial the Court was informed by the Independent Children’s Lawyer (ICL) that some of the significant issues in dispute had been resolved in that it was agreed by all parties that the father should have sole parental responsibility for the child, that the child should continue to reside with the father and that the child should have a hyphenated surname. Final orders to that effect were made on the 17 June 2015.

4. The remaining issues for determination then were:

   a)The child’s time with the maternal grandmother;

   b)The child’s time, if any, with the respondent mother and, if there was to be time, the terms and conditions of that time in accordance with the child’s best interests including supervision of that time;

   c)Various specific issues prescribing conditions for time and other matters.

5. At the commencement of the trial the Court was informed that the mother was to be admitted to a long term residential drug and alcohol rehabilitation program the next day. However during the course of the first day of trial the mother fell ill and was taken by ambulance to hospital. The following day the Court was informed that the mother had been released from hospital and was later admitted to the rehabilitation program. By agreement the mother’s application as to time with the child was stood over to a later date for directions and interim orders by consent were made facilitating the mother having supervised time.

6. The matter then proceeded in relation to the maternal grandmother’s time only.

7. Much of the affidavit evidence of the parties was of little assistance due to the mother’s absence from the proceedings and as significant issues had been resolved by agreement, especially in terms of the father’s support for the orders sought by the ICL save substantially for overnight time with the maternal grandmother during school term.

8. At trial the father relied upon the following documents:

   a)His Amended Initiating Application filed 8 June 2015;

   b)His trial affidavit filed 5 June 2015;

   c)His financial statement filed 12 June 2015;

   d)The affidavit of his wife Ms D Templeton filed 5June 2015;

   e)The affidavit of the paternal grandmother Ms E Templeton filed 5 June 2015.

9. At trial the second respondent maternal grandmother relied upon the following documents:

   a)Her Amended Response filed 18 July 2014;

   b)Her financial statement filed 4 June 2015;

   c)Her trial affidavit filed 4 June 2015;

   d)The affidavit of Mr O’Dowd, the maternal step-grandfather filed 4 June 2015.

10. During the course of the trial the ICL provided several minutes of proposed orders to the Court. At the conclusion of the trial the orders supported by the ICL in summary provided as follows:

    a)That the child spend time with the maternal grandmother:

    i)During school term on the first weekend of each month commencing on the first Friday of that month from 3:00pm Friday to 7:00pm Saturday;

    ii)From 9:00am Monday to 7:00pm Friday on the first week of the school holiday periods occurring at the conclusion of school terms 1 and 3; and

    iii)Otherwise as agreed between the parties.

    b)That the maternal grandmother be restrained from facilitating time or communication between the child and the mother other than in accordance with orders unless with the written consent of the father,

    c)That the maternal grandmother be restrained from smoking in the immediate presence of the child and shall remove the child from the vicinity of any third party who may be smoking,

    d)That the maternal grandmother be restrained from consuming alcohol during any period that the child is in her care,

    e)That the maternal grandmother shall facilitate the child’s attendance at all sporting, extra-curricular or schooling events that may fall in the period that the child is spending time with her,

    f)That the maternal grandmother and the mother are at liberty to attend the child’s special school events including concerts, assembly, event days and presentations,

    g)That the father shall provide to the maternal grandmother a copy of the child’s school report within 14 days of receiving same from time to time,

    h)That changeovers for the purposes of the maternal grandmother’s time during school term be facilitated by the maternal grandmother collecting the child from school on Friday afternoon and returning the child to the father’s home or such midway point as nominated by the father at the conclusion of that time,

    i)That otherwise for the purposes of changeovers they be facilitated by the maternal grandmother collecting and returning the child to and from the father’s home or such midway point as nominated by the father,

    j)That the maternal grandmother shall communicate with the child by telephone between 6:00pm and 7:00pm each Sunday and at such other times as agreed between the parties,

    k)That the father shall pass on to the child unopened letters, gifts or items sent by the maternal grandmother to the child,

    l)That the father and maternal grandmother will each provide the other with and keep the other informed of any changes to their residential address, their contact email address and their contact telephone number,

    m)That the maternal grandmother be restrained from passing on to the mother details of the father’s residential address or contact details,

    n)That the maternal grandmother is at liberty to and hereby authorised to obtain information from the Dr C as to the child’s diagnosis, treatment and progress,

    o)That the father and maternal grandmother shall keep each other informed of any significant illness or injury suffered by the child whilst in their care or any school, extra-curricular activity or sporting event in which the child is involved,

    p)That the maternal grandmother is entitled to attend the child’s school events, sporting events and extracurricular activities that regularly allow for family attendance and participation,

    q)That the parties are restrained from denigrating the other or members of their family in the presence of or hearing of the child and shall remove the child from the presence of any third party who may do so.

    r)That if the child has a significant family or social commitment that the father wishes to take the child to or have his wife take the child to on a weekend when the child is due to be in the care of the maternal grandmother then:

    i)The father will notify the maternal grandmother of the commitment by email as soon as possible and in any event it least one week in advance; and

    ii)The child’s time with the paternal grandmother will instead occur at a time to be agreed between the father and the maternal grandmother or failing agreement on the weekend after it was due to occur.

11. Save for the issue as to the maternal grandmother’s time the father substantially supported the orders sought by the ICL, save as to some reservation as to overnight time during the school term, providing the maternal grandmother with his residential address and having only notations rather than specific orders made as to special days contemplated by the parties.

12. At the conclusion of the trial the maternal grandmother provided to the Court a minute of orders sought by her. As will be seen those orders leave some discrete issues for determination as between the maternal grandmother and the ICL. The maternal grandmother proposed as follows:

    a)That the child spend time with the maternal grandmother as follows:

    i)During school term on the first weekend of each month commencing the first Friday of the month from 3:00pm Friday to 10:00am Sunday;

    ii)During the term 2 school holidays from 9:00am on Monday of the first week of the holidays until 7:00pm the following Friday;

    iii)During the Christmas school holidays from 9:00am on the second  Monday in January until 7:00pm the following Friday;

    iv)On the weekend following the child’s birthday as agreed and in default of agreement from 9:00am until 6:00pm on the Sunday;

    v)From 3:00pm on 22 December until 6:00pm on 23 December each year;

    vi)If the child is not spending time with the mother on Mother’s Day then from 12:00 noon until 4:00pm on Mother’s Day; and

    vii)At such other times as are agreed between the maternal grandmother and the father.

    b)That changeovers be at the child’s school on school days or otherwise the fathers home except in the event that the father relocates the child’s residence or school to more than 30km from F Street, G Town and in that event changeovers to be effected at the child’s school if a school day, the father’s home at the commencement of the maternal grandmother’s time and at the maternal grandmother’s home at the conclusion of the maternal grandmother’s time;

    c)That the maternal grandmother have telephone contact with the child between 7:00pm and 7:30pm each Thursday with the father to ensure the child is able to receive telephone calls in privacy and without disruption;

    d)That the father and maternal grandmother will each facilitate the child contacting the other by telephone or by way of letters and gifts at any time the child expresses a wish to do so;

    e)That notwithstanding any other order the child shall spend Father’s Day with the father on the Father’s Day weekend from 7:00pm Saturday;

    f)That the maternal grandmother be restrained from facilitating time or communicating between the child and the mother other than in accordance with orders of the court unless with the written consent of the father and also with the express invitation in writing of the maternal grandmother;

    g)That as soon as practicable and no later than 24 hours before the child spend times with the maternal grandmother the father will send an email to the maternal grandmother notifying her of any sporting or social commitments, behavioural or disciplinary issues and or health or dietary issues the child has that the father wishes the maternal grandmother to be aware of during the child’s time with her;

    h)That the father as soon as practicable give written authorities to Dr C or any other treating psychiatrist or psychologist so that the maternal grandmother may contact the practitioner to discuss with them and receive from the information regarding the child’s diagnosis, treatment and any recommendations for the care of the child whilst the child is in her care.

1. Otherwise the maternal grandmother sought orders not inconsistent with the other specific issues orders sought by the ICL.

Context

1. It is appropriate notwithstanding the limited issues for determination to consider briefly the factual background.

2. The father at the time of trial was aged 32 and the mother aged 31.

3. The child was born as a consequence of a brief encounter between the parties in 2005. The child is the only child of the parties.

4. The mother and father had limited contact with each other during the mother’s pregnancy and the father had little input into the child’s care in the first year of his life.

5. The mother asserts that the father was not supportive of her after the birth of the child and that she was assisted by her subsequent partners with the care of the child.

6. The mother’s relationship with the maternal grandmother soured after the maternal grandmother made a notification to the Department of Family and Community Services (“the Department”) when the child was about four months of age.

7. In July 2007 the child was admitted to hospital with serious bruising on his body and face and objective symptoms of neglect. On admission it was found that the child had previously sustained a spiral fracture to his right tibia. Investigations by the Department were unable to determine whether it was the mother or her then partner who perpetrated the injuries on the child.

8. On 16 July 2007 the Department made application for an emergency care order in the Children’s Court. On discharge from hospital the child was placed in the care of the paternal grandmother, Ms E Templeton. Living in the paternal grandmother’s household was the paternal grandfather, the father and also a paternal uncle.

9. Final orders were made in the Children’s Court on 17 December 2007 granting sole parental responsibility to the father until the child attained the age of 18 years. Under the terms of the final orders for the first 12 months the mother was to have contact with the child once per month for two hours supervised by the Department and on another occasion during the month supervised by a person assessed by the Department as suitable. Thereafter the mother’s time with the child was to be supervised by a person agreed to by the parties and failing agreement at a specialist contact centre.

10. For a period the mother’s time with the child was supervised by the maternal grandmother or by the father and various other family members. However by 2011 the father was unwilling to supervise the visits due to the mother’s inconsistency and the maternal grandmother’s relationship with the mother further deteriorated as a consequence of the mother’s alcohol abuse to the extent that she also refused to supervise the visits. For a period thereafter the mother’s time was supervised by a contact centre.

11. The father and his now wife commenced cohabitation in 2008 and she assisted him with the care of the child. The father and his wife moved to separate accommodation in 2009 and his wife assumed the bulk of the care for the child whilst the father has been working and studying.

12. The father and his wife have two children of their relationship, H born in 2014 and J born on 24 March 2015.

13. There appears little doubt that the relationship between the father and his wife was placed under stress as a consequence of the background circumstances relating to the child and the difficult relationship with the child’s mother. There was an incident between the father and his wife in November 2011 involving a significant episode of family violence and they separated until January 2012. During this period the paternal and maternal grandmother’s assisted the father with the child’s care.

14. During 2012 the child spent not insignificant time with the maternal grandmother but following behavioural issues that became apparent after the child had spent time with the maternal grandmother the relationship between the father and the maternal grandmother soured. From early 2013 the maternal grandmother spent little or no time with the child and to the father’s observation the child’s behavioural issues settled significantly.

15. These proceedings were commenced by the maternal grandmother who felt that she was being excluded from the child’s life and who desired to resume spending time with the child.

16. Notwithstanding the final orders made in the Children’s Court, the Department provided their consent to this Court exercising jurisdiction in relation to the child.

17. On 19 June 2014 following an interim hearing in the Federal Circuit Court of Australia orders were made for the maternal grandmother to have time with the child relevantly as follows:

    a)Each third weekend during school term 4 from the conclusion of school Friday until 4:00pm Sunday with the maternal grandmother to collect the child from school on Friday and return the child to the father’s home at the conclusion of her time,

    b)That the maternal grandmother and the mother be entitled to speak to the child by phone each Tuesday and Thursday and on any Sunday when the child has not been in the care of the maternal grandmother between 6:00pm and 6:30pm.

18. Otherwise the proceedings were then listed for final hearing to commence on 8 October 2014.

19. The Family Report authored by Dr I and dated 11 September 2014 was released to the parties on 3 October 2014. The context of that report is discussed below.

20. On 9 October 2014 the final hearing before Halligan J in the Federal Circuit Court was vacated by consent, presumably as a consequence of issues raised by the report.

21. On that day orders were made in summary as follows:

    a)That the Department of Family and Community Services be requested to intervene in the proceedings,

    b)That the maternal grandmother’s weekend time with the child continue pending further order,

    c)That the child spend time with the maternal grandmother from 10:00am on 12 January 2015 to 10:00am on 19 January 2015,

    d)That telephone communication between the mother and the child pursuant to the previous interim orders now be between 7:00pm and 7:15pm and that telephone communication between the maternal grandmother and the child be between 7:15pm and 7:30pm,

    e)That pending further order the maternal grandmother shall not permit the child to come into contact with the mother other than in accordance with arrangements between the parents in terms of the Children’s Court orders made on 17 December 2007 with the parents to inform the maternal grandmother as to their agreement,

    f)That proceedings be transferred to the Family Court of Australia.

22. On 23 December 2014 a Registrar of this Court requested information from the Department as to their engagement in relation to the child and requested the Department intervene in these proceedings. The Department’s response was released to the parties on 5 March 2015(Exh C). The Department elected not to intervene in the current proceedings.

23. There is no doubt that the relationship between the father and the maternal grandmother is strained. He perceives the maternal grandmother to be unreasonable, argumentative, contradictory, obsessive and vindictive.

24. The father contends that the child from 2012 has exhibited behavioural issues particularly after spending time with the maternal grandmother. The father has noticed that the child has been unwilling to comply with instructions saying things such as “my nanny said it was okay”, “my nanny would let me” and “my nanny is the boss” not only to the father but to his carers at the child care centre.

25. The father sought to discuss this situation with the maternal grandmother and it appears the maternal grandmother felt that the father’s complaints were a personal attack on her saying “you are victimising me”.

26. In February 2013 there were concerns about the child’s behaviour at child care where the child had lashed out at another child and had carried on excessively about sharing. As a consequence the father “grounded” the child and did not permit the child to go to the maternal grandmother’s home for the weekend. The father otherwise implemented various behavioural mechanisms in relation to the child to address the issue of sharing and his behaviour in relation to other children.

27. The father asserts that the maternal grandmother accused his wife of being a liar in relation to her representations as to what took place at the child care centre, she having contacted the day care centre to establish what had transpired. The day care notes (Exh G) are supportive of the father’s contention.

28. To say that thereafter there was a deterioration in the relationship between the father and the maternal grandmother would be an understatement.

29. On the evening of 15 February 2013 at about 9:00pm officers from the New South Wales Police Service attended at the father’s home in response to a reported concern for the welfare of the child. The police confirmed that the complaint had been made by the maternal grandfather. The police observed the child asleep in bed and apologised to the father for their intrusion.

30. The maternal grandmother had no contact with the child thereafter until interim orders were made in June 2014 save for a few occasions.

31. As a consequence of the mother’s history of drug dependency and alcohol abuse the father’s residential circumstances have been kept from the mother so as to prevent the mother attending at his home. The father had installed at his home an alarm and surveillance system for the protection of he and his family.

32. Notwithstanding this, in the maternal grandmother’s application initiating proceedings she disclosed the father’s residential address. This did nothing to enhance their relationship.

33. The father complains that since the resumption of regular time between the child and the maternal grandmother in June 2014 the child’s behaviour has been more challenging and defiant.

34. On 1 April 2014 the child was seen by Dr C, paediatrician. Dr C’s file (Exh I) includes a report dated 11 April 2014 identifying the child’s then current problems as:

    a)Many features of ADHD,

    b)Oppositional defiant behaviour,

    c)Mild asthma,

    d)Early history of abuse and neglect or possibly an important contributor to his emotional dysregulation.

35. A review by Dr C dated 19 May 2014 observes:

    ..the overall clinical impression of Oppositional Defiant Disorder and ADHD are supported by the feedback forms completed by his parents and his class teacher. His teacher indicates that he is performing at Grade level across most of the key learning area but is starting to struggle with specific aspects of literacy especially spelling and handwriting. He struggles to fit in comfortably with his peer group because of his overbearing and intrusive nature. [The child] continues to be quite impulsive and easily distracted.

    …I have suggested a trial of Ritalin as an adjunct to other supportive measures in light of the ongoing difficult and challenging behaviours he is presenting with. I do think he needs strong and careful management with the patient’s steady hand and a consistent and firm approach.

36. Regular reviews thereafter demonstrate that the child continued to present with behavioural issues.

37. On a referral by Dr C the child attended upon Ms K, psychologist and her report is dated 11 March 2015 (Exh I). The child was diagnosed as within the autism spectrum, meeting the level I severity rating requiring support for both the social communication and restricted repetitive behaviours domains.

38. Ms K reported that the child:

    a)Displayed a number of excessive interests and inflexible behaviours requiring psychological intervention,

    b)May be assisted by a psychologist with his understanding of social appropriateness, communicating with others in a less intrusive manner and in general “getting along with others” more effectively,

    c)Should have a speech assessment,

    d)Struggles to follow instructions or move through more complex activities with multiple steps,

    e)Should receive support in the school environment to ensure his academic, behavioural and social development.

39. The child has exhibited outbursts including punching the father’s wife when she was pregnant. The child seeks to undermine the authority of the father and his wife saying words to the effect of “I don’t have to cause nanny said” or “nanny said the judge is the boss not you”.

40. The child continues to exhibit difficult behaviour particularly after time with the maternal grandmother. The father says that after weekend time with the maternal grandmother the child takes some time to get back into his routine including the need for guidance for simple tasks and returning to his normal sleep routine. Otherwise the father has observed that the child exhibits some defiance particularly with his wife and more “attitude” after time with the maternal grandmother.

41. The child remains on slow release Ritalin medication on school days.

42. As a consequence the father seeks orders that provide for the child to have Sunday day time contact only with the maternal grandmother or otherwise time as agreed between he and the maternal grandmother and if reasonably requested by the child. It was the father’s contention that if there was to be overnight time agreed that it would preferably be from after school Friday until Saturday afternoon so as to facilitate the child resettling into his household before school recommences on the Monday. He agreed that the child needed structure as recommended by Dr C.

43. The father conceded that school holiday time for a block period with the maternal grandmother was not as problematic particularly if time was at the beginning of the school holidays so as to facilitate the child resettling on his return to home.

44. The father rejects that contention that his relationship with the maternal grandmother has improved since the implementation of her regular time with the child. He says they communicate rarely and then by email. However there have been occasions when they have been able to agree as to a change in the present orders to accommodate other circumstances.

45. The father acknowledges that the child’s relationship with the maternal grandmother is important to the child and that the child loves both of his maternal grandparents. Yet he has concerns as to the child’s time with the maternal grandmother due to the adverse effect on the child’s behaviour and the perceived lack of boundaries for the child in the maternal grandmother’s household.

46. The father’s wife in oral evidence when asked what the maternal grandmother could offer responded by saying that “her respect for their decisions in relation to the child and for the child’s medical condition” would be of benefit. She was of the view that one night away on a weekend during school term should not be an issue for the child.

The Maternal Grandmother

1. The maternal grandmother at the time of trial was aged 59 and in full-time employment with the Department of Corrective Services. The maternal step-grandfather was in full-time employment as a truck driver and at the time of trial was aged 53.

2. The maternal grandparents met in December 1995 and married in 1998. They have lived in their present home since its purchase in March 2003.

3. The maternal grandmother has been a patient of Dr L, consultant psychiatrist, at the M Clinic since July 2011 for alcohol dependence and depression. The maternal grandmother has had several admissions to the M Clinic for depression and/or alcoholism and has been a regular outpatient attendee at the clinic. Dr L says that the maternal grandmother has had long periods of abstinence from five months to nine months at different times but has been able to function at a high level in spite of depression and short relapses of alcoholism. He reports that as at November 2013 the maternal grandmother was on antidepressant medication and anti-craving agents for alcohol. There was no evidence to suggest any psychiatric illness and her mental state is stable on medication.

4. At the time of trial the maternal grandmother was still on medication.

5. The maternal grandmother is critical of the father’s discipline regime for the child describing it as “overly harsh and potentially harmful”. However, during the course of her evidence she acknowledged that her perceptions were perhaps overly critical of the father. She acknowledged in her oral evidence that the child needed similar management techniques in both households due to his autism spectrum disorder; although she complained that there was a lack of information provided to her by the father and she invited him to provide to her details of any relevant behavioural regime for the child prior to the child spending time with her.

6. It is clear that she has had a significant and meaningful role in the child’s life, save for the regrettable period where she was unable to spend appropriate time with the child until the making of interim orders in these proceedings.

7. She conceded there were difficulties in terms of her communication with the father although she does have the father’s mobile phone number and has communicated by email in the past. She acknowledged that continuing conflict between her and the father was not in the best interests of the child.

The Family Report: October 2014

1. The Family Report prepared by Dr I was released to the parties on 3 October 2014. She was not required for cross examination.

2. At the time the report was prepared the mother was seeking an order for the child to reside with her although her proposal was that the child primarily live with the maternal grandmother and spend progressively increasing periods of time with the mother until such time that the child lived with her full-time.

3. The mother further proposed that she and the maternal grandmother have equal shared parental responsibility for 12 months and that thereafter the mother have sole parental responsibility. The mother otherwise sought that the child spend alternate weekends with the father.

4. It is clear that at the time of the report interviews in August 2014 the father was struggling with his circumstances and was contemplating handing the care of the child over to the mother. The family reporter observed that the father presented as a concerned and caring parent for the child and became quite emotional and sensitive when discussing the trauma to which the child has been exposed. The father to the family reporter gave the impression of being somewhat rigid and inflexible, describing himself as “dogmatic”. This description is somewhat apt having regard to the father’s presentation during the hearing and his reluctance to consider appropriate compromise.

5. Clearly circumstances in relation to this child have moved on significantly since the initial context of the Family Report. Importantly, significant issues as to parental responsibility, primary residence and the surname of the child have been resolved with the consent of all parties.

6. The father in interview described the child as outgoing, trusting and articulate but also a liar and a child who does not listen. He described to the family reporter how he and his wife have tried to manage the child behaviourally and academically and provide a home environment that has been stable and secure. He reported to the family reporter his concerns that the maternal grandparents undermine his parental authority and “spoil” the child.

7. He complained that the maternal grandmother whilst having played a significant role in assisting him with the child over the years was “obsessive” about the child. He further complains that the maternal grandmother did not support him in setting boundaries for the child, provided an inappropriate diet for the child, inadequately supervised the child and failed to relay appropriate information when the child was in her care.

8. The maternal grandparents when interviewed referred to their “devotion” to the child and how they believed they had a good working relationship with the father and his wife and the paternal grandparents over many years. In recent times that contention is not supported by the evidence.

1. The maternal grandmother acknowledged that the child was adequately cared for by the father and his wife and appreciated the level of caring responsibility undertaken by the father’s wife. She was, however, critical of what she believed to be the father and his wife’s harsh discipline of the child.

2. On interview the father’s wife presented as highly distressed. She referred to the persistent undermining of her and her husband’s parental role by the mother and the involvement of the maternal grandmother that she found to be “overpowering, intimidating and interfering”. She felt constrained that perhaps acceding to the maternal grandmother and the mother by allowing the child to live with them would stop the harassment and stalking of her and her husband.

3. The father’s wife reported a close bond between the child and his half-sister and in oral evidence reported a close bond between the child and his newly born half-sister. Yet she reported that there was another side to the child that is “rude, demanding and vicious” in the school and the home setting. She reported that the child’s behaviour had taken a turn for the worse since the commencement of the interim orders restoring the maternal grandmother’s time and she was of the view the child was getting “confused and angry”.

4. At the time of interview the child was aged 8 years and 2 months. He presented as a talkative and outgoing child but also quite restless and at times he found it difficult to focus. The child was clearly cognisant of the conflict between the paternal and maternal families.

5. In evaluation the family reporter concluded that the maternal grandmother was clearly one of the significant adults who played a key, supportive role from 2007 to 2013 notwithstanding allegations about her mental health or alcohol use. Furthermore both grandmothers and the father and his wife are able to communicate and make arrangements for the child cooperatively as evidenced by examples of their electronic communication, although the relationship at the time of interview between the grandmothers had deteriorated to the extent that they were not able to acknowledge each other in the waiting room.

6. The family reporter observes that the father and his wife:

   …consequently assumed a rather punitive and authoritative stance in the discipline they instituted for [the child] which included, amongst other strategies, grounding him from spending time with his grandparents…

7. There are indicators, observes the family reporter:

   …that [the father and his wife] are possibly, at times, somewhat harsh and rigid in the discipline of [the child] and use fear as a motivator to modify [the child’s] behaviour. Although they continue to meet [the child’s] needs at many levels, it is possible that they find nurturing [the child] and responding to his emotional needs a challenge particularly as [the child] has been acting out more.

8. Importantly the family reporter opines that:

   …it is probably the case that they perceive the gentleness of the grandparents as “spoiling” [the child] and reinforcing his misbehaviour rather than an important dimension of [the child’s] emotional development which complements their role and provides them with some respite. It is of the essence that the father and his wife appreciate that inclusivity rather than exclusivity of extended family is most likely to be in [the child’s] interest.

9. It is of interest to observe that the family reporter makes observation as to an issue that is now common ground between the father and the maternal grandmother in the following terms:

   In the interests of stability and consistency, particularly given [the child’s] recent diagnosis, it would be important that significant others placed the adult issues to the side and be included in any behaviour management program for [the child] so that there is consistency in the way [the child’s] behaviour is managed by the adults in all of the households in which he lives and spends time...

   The diagnosis…that have recently been made of [the child] highlight the importance of [the child] to have stability and security in one household where there are boundaries and limits. There also needs to be consistency in the way his behaviour is managed and it is essential that all of the adults in [the child’s] life come together and work collaboratively in his interests rather than pulling against each other.

10. Notwithstanding the sentiments expressed by the parties to the family reporter at the time of the report interviews the family reporter observed:

    A change in the place of residence to the maternal family would be extremely destabilising to the safety and security [the child] has known… and it is likely that he would interpret [this] as punishment for his wrongdoing and that he would feel responsible. This would be the second major abandonment that [the child] would have had in his life and is likely to have a serious impact on his attachment relationships.

11. It is of great credit to the parties that they have resolved this significant issue in a very child focused way in accordance with the recommendations of the family reporter that there be a continuation of the status quo where the father has sole parental responsibility and that the child lives with him.

12. As to the maternal grandmother’s time it was recommended by the family reporter that the child spend time with the maternal grandparents no more than one weekend in every three.

Discussion

1. Section 65C of the Family Law Act 1975 (‘the Act’) provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.

2. It is clear having regard to the circumstances of the child both historical and at present as referred to above that the maternal grandmother is concerned with the care, welfare and development of the child.

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

4. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this matter the question of parental responsibility has been resolved by consent.

5. There is thus no need to consider the operation of section 65DAA, which requires the Court to consider if there is equal shared parental responsibility whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

The maternal grandmother – a non-parent

1. This matter involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.

2. Consideration of the maternal grandmother as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m): “any other fact or circumstance that the court thinks is relevant”.

3. The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision” (See e.g. Donnell & Dovey (supra) at [104]). It is therefore appropriate to consider the relevant considerations in so far as they are applicable to the maternal grandmother by way of application of s 60CC(3)(m).

4. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

   …there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act).

5. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:

   19. It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents.

   …

   21. It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …

   …

   25.      In Donnell, the Court went on to say … [at [101] and [102]]:

   However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.

   We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. …

6. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.

7. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

   The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

The Additional Considerations: s 60CC(3)

1. The additional considerations are set out in s 60CC (3) of the Act. The relevant considerations in the context of the discrete issues for determination are as follows:

   (a) Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   The child is only just nine years of age. He has significant health issues. He expressed no relevant views to the family reporter. Even if he did it is likely that a consideration of any expressed views would be of little utility.

   (b) The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);

   The nature of the child’s relationships with the maternal grandmother and the father, together with other significant persons has been considered above. The child has an established relationship with the maternal grandparents. The child’s relationship with the maternal grandmother is important and meaningful to the child and as opined by the family reporter presents a balance to the father’s household.

   The child’s relationship with the father and his wife is well established and confirmed by the agreed residence order but overshadowed by the conflict with and circumspection as to the role of the maternal grandmother. The raft of orders that are the subject of agreement address these issues.

   (c)The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child and to communicate with the child;

   This is only relevant to the mother and her circumstances are yet to be considered.

   (d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   The child is settled in the father’s household and is having time with the maternal grandmother. Any change to these arrangements must be cognisant of the child’s particular issues especially his ADHD and consequent behavioural issues. The maternal grandmother acknowledged her need to be aware of these issues and will depend on the father for insight in how to appropriately manage the child in her household.

   At present the maternal grandmother’s time is presenting difficulties in the father’s household as to the management of the child.

   The father seeks a reduction in weekend time, with the only issue whether it is day only as sought by him, extends to Saturday afternoon as sought by the ICL or to Sunday morning as sought by the maternal grandmother.

   The father’s wife, in reality the child’s primary carer, asserts that an overnight to Saturday afternoon should not be an issue provided that there is some comity as to the child’s management in each household. Such comity is now a matter of agreement. Otherwise the father is available at home Saturday evenings amongst other weekend commitments so as to enjoy family time.

   Such considerations favour the ICL’s position.

   The other change is the question of school holidays. The child has spent extended time with the maternal grandmother as recently as January this year. Some issues arose but now seem to have subsided.

   The father acknowledges that some holiday time is appropriate perhaps by extending a weekend for a few days but that it should be in the early part of the holidays to allow the child to settle on return before school. The maternal grandmother’s weekend time does not extend into school holidays. Yet he would prefer no order as to holiday time and leave it hopefully to agreement. These considerations are indicative of a discrete period at the beginning of some of the school holiday periods being the subject of order.

   The maternal grandmother seeks time in the mid-year and the long Christmas holidays. Such times offer the father’s household some respite but he should be able to vary same in appropriate circumstances provided that alternate holiday time is agreed.

   As to the question of time on special days that should be the matter of agreement and if not a default position imposed.  In circumstances where the father presents as rigid and in his own words “dogmatic” it is best to prescribe such time.

   (e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   This is not a relevant consideration in this case.

   (f) The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;

   The matters referred to above demonstrate that a determination of this issue will need to await a full hearing.

   The father is not subject to any reservations in this regard provided that he acknowledges the concerns expressed in the family report and seeks therapeutic assistance as to the appropriate management of the child.

   Similarly the maternal grandmother should also do so.

   Their ongoing conflict is problematic but oral evidence by the maternal grandmother when cross examined by the father in person provided the Court some insight that the relationship was not fatally flawed and that both may well be able to put the past behind and work cooperatively for the benefit of the child.

   (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; 

   The child is now aged only nine. His ADHD and other behavioural issues present issues for all carers who need to be cognisant of same.

   (i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   In the circumstances in which the child has come into the father’s care, he has demonstrated an appropriate attitude to the child and the responsibilities of parenting him.  The father’s somewhat rigid personality has overshadowed his attitude to the child. The father clearly struggles at times with the issues presented by the child as does his wife.

   The maternal grandmother has perhaps not reflected on her proper role in relation to this child. A relationship is not measured in terms of time with but in terms of the value of the relationship to the child. If she is able to address the child’s management properly in her household and heed the behavioural techniques to be communicated to her by the father she will be an invaluable part of the child’s life. If not she will present ongoing problems for the child and the father’s household that can only ultimately see her relationship with the child curtailed. She bears a significant responsibility in this regard.

   (j)Any family violence;

   There was a disturbing history when the child was young. Such was the responsibility of the mother who failed to protect the child in circumstances that saw the child removed from her care.

   More relevant were the incidents between the father’s wife and the mother and then he and his wife. They are now matters of history only.

   (l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   These are final proceedings at least as between the father and maternal grandmother. The orders to be made must consider the child’s present circumstances and his best interests into the future. Absent a significant change in the child’s circumstances, the orders substantially agreed to and to be made are at present the least likely to lead to further proceedings.

   (m)     Any other fact or circumstance that the court thinks is relevant.

   As noted above, this additional consideration facilitates consideration of the best interest factors discussed above conveniently in relation to the maternal grandmother who is a non-parent.

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   (a) The benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. The benefit to the child in having a meaningful relationship with the father is addressed by the consent orders as to parental responsibility and residence with the father. The nature of the father’s relationship with the child and the issues the child presents are set out above. The continuation of the relationship is clearly of utmost importance to the child going forward.

3. This primary consideration is not applicable to the maternal grandmother  being a non-parent, but the relationship between the child and her is one of significance and it has been considered above in the context of the additional considerations.

4. The second primary consideration is the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. In applying this considerations set out in subsection 60CC(2), the Court is to give greater weight to this consideration.

5. This is a significant issue for this child. The father’s care is protective of the child, particularly having regard to the child’s issues. Should the maternal grandmother in the future demonstrate a lack of reflective capacity in relation to her grandson and his particular needs both physically and emotionally then there is a risk to the child.  As has been said should she not be cognisant of her obligations to this child and to the father’s household then her time could well be curtailed in the future.

6. During submissions the parties reached substantial agreement as to the various specific issues orders contended for by each of them. They will not be dealt with accordingly.

7. In all the circumstances it is in the best interest of the child for orders to be made as set out at the forefront of this judgment.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 23 July 2015.

Associate:

Date:  23 July 2015