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Inserra & Henning & Anor [2019] FCCA 754 (27 February 2019)

Last Updated: 20 August 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

INSERRA & HENNING & ANOR


Catchwords:
FAMILY LAW – Parenting – mother not participating – where 21 month old child has lived with maternal grandparent.


Legislation:


Applicant:
MR INSERRA

First Respondent:
MS HENNING

Second Respondent:
MS A HENNING

File Number:
DGC 2798 of 2017

Judgment of:
Judge McGuire

Hearing date:
27 February 2019

Date of Last Submission:
27 February 2019

Delivered at:
Launceston

Delivered on:
27 February 2019



REPRESENTATION

Applicant appeared in person

No appearance for the first Respondent

Counsel for the second Respondent:
Ms Mooney

Solicitors for the second Respondent:
Rae & Partners


ORDERS

(1) That the applicant father MR INSERRA (“the father”) and the second respondent great grandmother MS A HENNING(“Ms A Henning”) have equal shared parental responsibility for the child [X] born ... 2017 (“the child”).
(2) That the child live with the second respondent MS A HENNING.
(3) That the child spend time with the father (with travel costs to be at the father’s expense) as follows:
(4) That the child spend time and communicate with the father otherwise as agreed between the parties as noted paragraph 3(h).
(5) That if the father and Ms A Henning cannot agree on a changeover location, changeover shall occur at the Park (or at the child’s school when collecting after school).
(6) That until the child commences full-time school, Ms A Henning will keep the father advised of any usual sleep times, toileting regime and food intolerances/preferences.
(7) That the father and Ms A Henning will keep each other advised of their mobile telephone contact details and will forthwith advise of any change thereto.
(8) That a copy of these Reasons be taken out, settled and provided to each of the applicant father and the second respondent maternal great grandmother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

DGC 2798 of 2017

MR INSERRA

Applicant

And

MS HENNING

First Respondent

MS A HENNING
Second Respondent


REASONS FOR JUDGMENT

Delivered Ex-Tempore

  1. These are proceedings in respect of the child, [X] born ... 2017, and so young [X] is just 21 months of age. Unfortunately for [X] those 21 months have been fairly tumultuous and have involved experiences and change that perhaps an infant child, who requires being settled and routine and the ability to establish relationships, does not need.
  2. There are now parenting proceedings and the participants in those proceedings are the father, Mr Inserra, and the respondent is Ms A Henning, who is the great grandmother of young [X]. Unfortunately for [X], for everyone concerned and not least for herself, [X]’s mother, Ms Henning, has not participated in these proceedings and has absented herself from any relationship with [X] virtually for almost 18 months now for reasons best known to her and sadly for [X] and for everyone else involved in his life.
  3. The applicant, Mr Inserra, represented himself in these proceedings. He did so, as I have just said to him after his final address, with some degree of skill and with a high level of courtesy to the court, to counsel and to the respondent grandmother and her witnesses and that augers well for what I will speak about soon, being a relationship between the adults moving forward, which will ultimately benefit young [X].
  4. Being unrepresented, the father was provided with some preliminary assistance in respect of the procedure in court and an invitation to ask for assistance at any time in respect of procedure, consistent with a decision of the Full Court in Re F: a Litigant in Person. Having said that, Mr Inserra conducted this hearing with little skill. Clearly he had done some research and in particular as to the crucial element of attachments for children. He cross-examined the respondent to the point and at all times conducted himself appropriately and skilfully.
  5. The grandmother is represented by counsel and solicitors and the parties have each filed trial affidavits and there is supporting material.
  6. The issue for the court is the primary living arrangements for [X] moving forward. Each of the parties seeks an order that [X] live primarily with them.
  7. The history, as I have said, is somewhat tragic and sad. The parents had a relationship of some 22 months duration between, I think, ... 2015 and ... 2017. At or around the time of separation the mother, Ms Henning, obviously unilaterally and, in my reading of the material and perhaps with the assistance of her mother, the maternal grandmother, removed [X] from Victoria, where the parties had been living and he has been in Tasmania ever since.
  8. There is some discussion as to the father’s commitment to [X] and indeed there is some evidence which superficially might question his commitment to maintaining a relationship with [X]. But what is clear is that at the very first opportunity Mr Inserra made an application to this Court for a recovery order, almost within a day or so to this Court at Dandenong.
  9. He was perhaps, as he put it or as he indicated, a victim of some circumstance in that it is clear that Ms Henning, who interestingly now takes no part in these proceedings, perhaps countered that application with an application of her own to the State Court seeking intervention orders and probably in respect of a not surprisingly and not unusually an incident in their household at or around the time of separation, which I will find was perhaps circumstantial in that respect.
  10. The result of that for Mr Inserra has been one of extreme difficulty. His child has lived in Tasmania. [X] was removed to Tasmania without his consent. He went to a court. He was not successful, as I have just indicated, and in his personal circumstances he struggled to maintain a relationship with [X].
  11. What happened is that the father and [X] had no direct contact, I say tragically, for a year between the parents’ separation in August 2017 and the matter coming before this Court in Launceston in 2018 when I made some form of interim orders. That has been a situation that irresistibly has not been in the best interests of [X].
  12. The father says, and I will accept it for the purposes of these reasons, that he has spent up to and perhaps eight visits with [X] in Tasmania coinciding with court events. Those visits have been short. They have been unlikely to have achieved much in establishing and maintaining a relationship for [X] with his father. The visits have been supervised and all and all have probably been an unsatisfactory course of events for the father and for [X].
  13. The father’s proposal is, as I understand it, that [X] live with him and that a transition for [X] to living with the father in Melbourne take place within approximately three months from the date of these orders. I assume that it is the father’s position that [X] maintain a relationship with his maternal extended family, including the respondent great grandmother.
  14. The father’s case is based on an interesting argument and one that involves attachment and, again, philosophically and superficially has some attraction. The father’s argument, as I understand it, is that the child is young and is still in the throes of establishing his important attachments where the maternal extended family have not been helpful or committed in him establishing a relationship with [X] and that the relationship that has and attachments that have occurred for this young boy have not been to his benefit.
  15. The father’s view is that, whilst he understands there will be difficulties in the child moving from a status quo of some 18 months out of his 21 months, that those issues are outweighed by the benefits to the child in immediately establishing an attached relationship with his biological parent in Melbourne and that time is running out for that to occur. To put it colloquially, the father’s view is that by the time that the child is four or five years of age it will be extremely difficult, if not too late, for those attachments to occur.
  16. The father has clearly done a deal of reading in respect of attachment theory and that seems to ground his application. As I have said, it is an interesting and not unmeritorious argument. Whether or not such an issue or such an argument sits comfortably with [X]’s best interests or consistently with general attachment theory is another issue.
  17. The grandmother’s proposal is perhaps more a traditional one. When she came to this Court at the commencement of the trial yesterday the orders she sought were for sole parental responsibility, that [X] live with her; and that the child’s time with the father be supervised and little else. To her credit and not unusually in trials, there has been something of a more insightful movement by the grandmother in her position to the stage where she tells me from the witness box that she would not be opposed in a general sense to the child moving to live primarily with his father if, as I put earlier, that the planets align and certain matters happen, but at this stage her position is that there still be an order for sole parental responsibility in her by reason of the circumstance and the nature of the relationship between the parents and that [X] live with her, but she is certainly more altruistic in her proposals for [X] to spend time with the father and establish a relationship with him.
  18. The grandmother lives in Launceston. She is of Aboriginal heritage. She lives essentially in an extended family unit involving her husband and her daughter, who is the maternal grandmother of young [X]. Even though it is not that relevant in my view, because there is no evidence as to any personal incapacity in the great grandmother, simply for the purposes of these reasons I am told and I accept that the great grandmother is 64 years of age.
  19. The family appear to have a high level of involvement within the Tasmanian Aboriginal movement and that of course is a matter which must be taken into account in respect of the peculiarities for [X] and his best interests generally.
  20. The father is 40 years of age. He is currently unemployed. He has a work history in general in the customer service industry and in some form of home trades. What is important is that he lives with his own mother. I heard evidence by telephone from his mother. They live together in suburban Melbourne. His mother unfortunately suffers a diagnosis of bipolar disorder, which seems to be controlled with medication, but the father is her carer and his commitment to his mother and his responsibilities for caring for her were quite striking in his evidence.
  21. It is proper to note that Mr Inserra is a reformed, if I can put it that way, heroin addict, who has been involved in the methadone program for some considerable time and they are matters of historical interest only in my determination. He has two adult daughters. He has no current relationship with the older girl, but has frequent contact with his younger 18 year old daughter, who I am told has just commenced her tertiary studies at a Melbourne university.
  22. Mr Inserra relies on his trial affidavit of 15 January 2019 which was read into evidence and he was cross-examined. He presented to me as a devoted and committed father for young [X]. There has been some dispute and some contraindications of his commitment but I am generally satisfied that from the day of separation until this day at the trial he has exhibited a high level of commitment in his quest to have a relationship with [X].
  23. There have been some difficulties for him, being geographical, financial and perhaps a misunderstanding or a focus on a personal adult conflict, as he sees it, with the maternal side of the family. Unfortunately for him and unfortunately for [X] that has impacted on the development of a relationship between he and [X].
  24. The father adduced evidence from four witnesses. They are his friend, Mr C, his mother, who I have mentioned, Ms D, a health care worker, Ms E, and his general practitioner, Dr F. The evidence of Ms E was read into evidence without cross-examination and we received some telephone evidence and some short cross-examination in respect of the other three witnesses. They were generally complimentary of Mr Inserra personally and in his parenting capacity and where relevant in his compliance with the methadone program with some confidence from his doctor that he may get off that program in the relative short term.
  25. The great grandmother gave evidence and was cross-examined. She was forthright in her evidence. I have little doubt that she has a committed and devoted relationship with [X]. There were some commendable moves from the great grandmother in her evidence, as I have said, towards perhaps a more understanding recognition of the desirability for [X] to develop and maintain a relationship with his father. Nevertheless, it was perhaps notable that there were at least some residual matters of concern in respect of that commitment and as identified by the family reporter in her evidence in the family reports.
  26. I prefer that this is a matter where there continues mutual suspicion and adult issues that might have little base, but which have developed over a period of time between the adults themselves, but I am gladdened by the move made by the maternal grandmother in her evidence in this Court and it is pleasing that Mr Inserra was here to witness and to hear the same thing I heard.
  27. There was also evidence from the grandmother, Ms B Henning, and from the paternal great grandfather, I think that is the correct term, Mr Henning. Both of those witnesses also exhibited the not unusual and not unexpected hesitancy in being completely open and forthcoming in respect of Mr Inserra and the history of their personal relationship makes this possibly understandable.
  28. I personally asked Mr Henning some questions which were, to use a colloquialism, perhaps loaded to see whether I could elicit some personal animosity between he and Mr Inserra and those responses were not forthcoming. I am quite comfortable in my observations of the three members of the maternal family that, firstly, they are committed to the care of young [X] and that with the passing of time and some efforts on the part of Mr Inserra that their personal relationships might become more trusting and open with more of a focus on [X] than on the intra-adult relationships.
  29. I also have had the benefit of two family reports from the family consultant, Ms G. Those reports are dated 7 September 2018 and an addendum of 24 January 2019. The reports set out the history of the interaction between the relevant adults. At paragraph 74 of the first report under the heading Evaluation appears the following, which is worthy of reading into these reasons:
  30. That is a statement which I think should be absorbed by all of the adult participants in this trial:
  31. I find those comments to be of great assistance and insightful and consistent with my own views of the issues before me. Significantly, Ms Henning was a participant for the interviews for the preparation of the first family report, which I note is as recent as September of 2018, just some less than six months ago.
  32. Ms G at that stage made the following recommendations from paragraph 83 and following:
  33. It is interesting as an aside that in these Courts often and understandably considerable weight is given to family reports, but it should be always kept in perspective that they are just another piece of opinion evidence and certainly not determinative and should hold no higher status, because, as I understand it, on the day after the interviews for this report, that Ms Henning, despite that recommendation, decided for reasons best known to her to leave Tasmania and to effectively delegate the care of young [X] to her mother and grandmother and grandfather.
  34. The next recommendation from the September report is that:
  35. As I understand it and broadly speaking, the family reporter then and not yet six months ago was of the view that [X] of his age should be stabilised in his family unit in Launceston. The family reporter perhaps was not to understand the spontaneity of Ms Henning’s personality.
  36. The court does, however, have the benefit of a second and more recent family report dated 24 January 2019 also from the same author, Ms G. At [61] and following I think is worthy of reading into these reasons as follows:

I pause to say that the mother appears not to participate in the dispute now:

It appears that from the history of their relationships his attachment relationships are developing with the maternal side of his family. As if often the case in Aboriginal family structures, [X] appears to be cared for by a number of significant family members. He appears to be being cared for by them as a team lead by Ms A Henning. At 20 months of age [X] is in the middle of the developmental stage in which these attachment relationships should continue without interruption. Such interruption would represent a significant breach in the early development of [X]’s emotional security and trust in close relationships. Therefore it is suggested that [X] continue living with Ms A Henning. This would also provide him with the opportunity to consolidate his relationships with Ms B Henning and Mr Henning. Given the history of disruption to relationships in both the maternal and paternal side of the family it will be important for [X]’s emotional social stability into the future to consolidate a relationship with his parents. This will need to be a priority for both sides of his family. While the maternal side has expressed numerous misgivings about Mr Inserra, it would appear that he is willing and well set up to [X] and provide him with a home.
It appears that he has made the care of [X] as his priority at present. However, [X] does not have a relationship with Mr Inserra at this stage. It is suggested that parenting arrangements should be made to prioritise creating this arrangement.
It would most likely be to [X]’s benefit that Mr Inserra make regular trips to Tasmania so that [X] can spend an increasing amount of daytime periods with him, working towards overnight time once [X] is around three and a half or four years of age, progressing to [X] eventually spending time with Mr Inserra in Melbourne possibly when he is around five or six years of age and eventually [X] transitioning into the care of his father, Mr Inserra. Such progression would depend on [X]’s relationship with Mr Inserra being supported by the maternal side of the family and Mr Inserra being engaged with services to assist him to support to care for a young child initially at distance.
There is evidence to suggest from the lack of presence of fathers in the maternal side of the family and Ms A Henning and Ms B Henning’s attitude about Mr Inserra that they will have significant difficulty in supporting [X] to have a relationship with his father. This may be particularly so if they perceive that by supporting [X] to spend time with Mr Inserra in Launceston towards ultimately spending time or living with him in Melbourne. They may be fulfilling the early stages in the plan for [X] to live with Mr Inserra. It is doubtful on the information of this assessment whether the maternal side of the family would engage in supporting any plan that might eventuate in [X] living with his family.
  1. It is quite clear, by way of comment, that Mr Inserra, armed with that opinion from the family consultant, has grounded his argument before this court, at least to a large part. I also am not so naïve as to dismiss the observations of the family reporter but, as I have said earlier, I like to take people at face value, particularly when they are under their oath in the witness box and I was particularly impressed by the evidence of the maternal great grandmother in her move from perhaps a strict regime of supervised contact and little else to an understanding and an indication that she and her family may be open to something so dramatic in the future as a transition for young [X] to the father. If the maternal grandmother thinks that she might pay lip service and give evidence, albeit under oath, that simply sounds good and convincing to a judge then she is seriously underestimating this Court and indeed kidding herself only, but I do not think that that was the case.
  2. The family reporter goes on to say that [X] will benefit from regular and brief opportunities to familiarise himself with Mr Inserra by electronic means, such as skype conversations. These need to be short, age appropriate, simple connections. They would need to be explicitly supported and encouraged by the maternal side of the family. And the recommendations that conclude that report are – noting that the previous recommendations are no longer relevant, given the circumstances of Ms Henning:

So notably those recommendations are made despite what are quite obviously some concerns as to the insight of the maternal side of the family into the needs for [X] to have a relationship with his father. They then continue as recommendations in respect of [X] spending time with Mr Inserra, firstly in Tasmania and then perhaps in Victoria.

  1. The relevant law that guides my determination is firstly and importantly at section 60CA of the Family Law Act is that I must have [X]’s best interests as my paramount consideration in determining his parenting and living arrangements. I determine those best interests by a general reference to the objects and principles of the Family Law Act set out in section 60B of the Act and in a more pragmatic sense to the numerous and mandatory considerations set out in section 60CC(2) and (3) of the Family Law Act. In the matter now before me issues of shared care or even substantial and significant time for [X] between the important adults and participants in this litigation are not available due to geographical circumstances where the only option for the court really is that [X] either live with his father in Melbourne or continue to live with his great grandmother in Launceston.
  2. I turn briefly to those relevant section 60CC factors. The consideration at section 60CC(2)(a) is that I make orders which benefit children having meaningful relationships with – it says both of their parents, but I will use a broader discretion here in respect of the important people in [X]’s life. It appears that [X] unfortunately has no relationship whatsoever with his biological mother at this stage. His relationship with his father is a tenuous one. It is in the early stages of development and that is no comment negative to the father, it is simply a fact of circumstance. This young boy and his father had no relationship whatsoever for a period of 12 months in a very formative time, as indicated by Mr Inserra in his submissions, when attachments form and secure. That situation has been addressed albeit not perfectly. The importance for young children is to develop those relationships and there is some merit in the submission of Mr Inserra, as evidenced by social science, that the ages between birth and perhaps three or four or five years of age are crucial in establishing those attachments and relationships.
  3. It is clear, nevertheless, that [X]’s primary relationships, source of support and his identity is in the household generally of the maternal extended family.
  4. Family violence does not feature prominently in my determination here. There was an instance, as I indicated earlier, of a family violence event at the time of separation. Ms Henning previously filed an affidavit, but is not here to support that affidavit. And, as I say, those issues are of little consequence to me at the moment.
  5. What is perhaps more important at the moment, and it should not be dealt with necessarily under the heading of family violence, is the nature of the adult relationships. They quite clearly remain relationships with little trust, little actual communication, a high degree of suspicion and little willingness to cooperate. One can hope, as suggested by Mrs Mooney in her final submissions, that this Court event itself has been a salutatory lesson to all of the adults in this respect. And to put it bluntly, whatever his living arrangements, [X] will benefit by the important adults in his life, the ones he loves and needs support from, having some form of civil and cooperative relationship.
  6. [X] is not of an age where he is able to formulate any views or preferences as to his own living and parenting arrangements. The nature of the relationship between the child and the parties is an important one and has already been mentioned to a degree in these reasons in respect of meaningful relationships. Nevertheless, the irresistible conclusion on the facts is that [X]’s current bonding, source of support and his familiarity is in the household of the maternal extended family. The nature of his relationship with his father is one where there is little attachment yet. And that is not a criticism; it is a statement of fact simply through lack of direct contact. The relationship at best is in the early throes of development. [X] is still young. The family reporter says that [X] and the father need time and frequency of contact to develop that relationship, which I respectfully agree.
  7. I must consider the capacity of the parties to attend to [X]’s physical, intellectual and emotional needs. The great grandmother’s capacity has been admirable in taking on the care of this young child, where I expect from her perspective there were few, if any, other options for the care of the child. Her capacity might arguably be impeached to a degree by the comments of the family reporter in respect of her commitment to facilitating [X]’s relationship with the father. I have already commented on that evidence.
  8. The father’s commitment again, I think, is admirable. He has been subject to criticism and justifiable criticism in respect of his travel, his ability to accept invitations for telephone or FaceTime contact with [X], but generally his commitment to this court case and to his quest for [X] to live with him has been unrelenting and admirable. He could improve to a high degree in his understanding of the need to develop that comfortable relationship for [X] with him. And whilst they are less than perfect, media contact through telephone, facetime, any form of media is better than nothing and it serves for this child to develop a recognition of his father and to move forward within that relationship. I can only hope that Mr Inserra gains a little more insight in that respect.
  9. [X] has the distinct advantage of carrying Tasmanian Aboriginality as a part of his identity. That is an important and should never be underestimated matter of consideration for this Court. It is not, however, determinative of his living and parenting arrangements. What is desirable from [X]’s perspective is that, again, all of the important adults in his life understand the actual and potential benefits for young [X] in identifying with his culture and his history and the traits of his maternal family, as indeed, as I said during the evidence, he should identify and be allowed to identify with his history and identity. But I am satisfied at this stage that his Tasmanian Aboriginality is being attended to more than adequately by the maternal side of his family. The important point is it is not determinative of his living and parenting arrangements. The desirability for the Court would be that the father develops an understanding and some involvement, if he can, limited as it might be, into that aspect of his son’s identity.
  10. I am required to reference the attitude to the responsibilities of parenting of the adults in this matter. The only issues for the Court, and I have already addressed these in these reasons, is the father’s commitment to the child and perhaps less of a focus on the suspicion between the adults would do wonders for his relationship with [X]. Whilst I am understanding of the difficulties that are forthcoming following relationship breakdowns and the attitudes taken by extended families, from what I have seen here Mr Inserra should perhaps develop a demeanour of less suspicion and more confidence in himself and in the maternal family in respect of his relationship with [X].
  11. The other issue of course that I have already mentioned in these reasons is the attitude of the maternal family towards establishing, facilitating and encouraging [X]’s relationship with Mr Inserra. There might be some difficulty there also given some residual suspicions and intra-family issues which have taken place over time, but ultimately [X]’s best interests are served by him having a broad spectrum of relationships with all of the important adults in his life. They are the relevant factors under section 60CC(2) and (3) in my point of view.
  12. In summary and in conclusion, I am able to find that [X]’s relationship with his father is at the early stages of development. It is not yet an attached and fully established relationship, but I am happy that there is commitment for that to occur into the future.
  13. The child’s primary attachment and source of support is the maternal extended family with particular reference to the nature of that family unit and to Ms A Henning in respect of that family unit.
  14. The father has personal, financial and geographical difficulties in establishing a relationship with [X]. I am fully aware of that. It is a question of priority, but is firstly more than that perhaps a question of insight into the fact that it is the quality of relationships which is important for children and for this Court, rather than simply a question of the quantity of time. Again, as put to the father during his evidence, there is benefit in a facetime communication of three or four minutes that should not be discounted, all of which adds to the recognition and serves to assist the establishment of the attachments.
  15. I am generally satisfied that the father has committed to the relationship and the establishment of the relationship with [X]. I am equally satisfied, nevertheless, that he is perhaps overly ambitious and adventurous in the orders that he currently seeks in respect of [X], although, I find some at least academic or intellectual merit in the attachment arguments that he has put before this Court.
  16. I am not satisfied that Mr Inserra has yet established a relationship with his 21 month old child such that the child’s best interests are served by him transitioning to live with the father in Melbourne within the three months contemplated by Mr Inserra. I find some merit to the father’s and the family reporter’s concerns in respect of the commitment of the maternal extended family in encouraging the establishing and maintenance of the relationship between [X] and the father and the onus is now fairly and squarely under notice on those family members to act altruistically and in the child’s best interests and not in their own perceived interests.
  17. I am satisfied in all other respects that the maternal great grandmother and her family attend more than adequately to [X]’s physical, emotional and cultural needs. I am satisfied that [X]’s best interests at this time remain with him continuing to live primarily with the maternal extended family and hence with the respondent, Ms A Henning.
  18. I am satisfied that there need to be orders which serve to encourage and enforce the stated and required commitment by both parties to establishing and maintaining that relationship between [X] and his father.
  19. Ultimately this is a matter where the father should have some confidence in [X] eventually moving to his primary care. That will not happen in the short term. And as I have said, the orders sought by the father are in a sense, in my view, without criticism of Mr Inserra, are naïve, ambitious and adventurous in respect of a 21 month old child.
  20. That move might need a consideration of the factors under the well known decision of the Full Court of the Family Court in Rice & Asplund. Nevertheless, I do not see that as being a high hurdle for the father to negotiate in the future. Firstly, if he shows a commitment to the establishment of a successful relationship with [X] then I would respectfully suggest that most judges in this Court would not be overly troubled in being able to find that it be proper to consider a change in circumstances from those that currently exist.
  21. Secondly and of equal importance is that, should there be evidence in the future coming before these Courts consistent with the family reporter’s concerns as to the insight and commitment of the great grandmother and the extended maternal family being manifested or continued, then I would similarly expect that a court would not be troubled in rehearing any substantive issues as to [X]’s best interests.
  22. It is put to me on behalf of the respondent great grandmother that there should be an order for sole parental responsibility. That submission is not surprising, given the nature of the adult relationships and the circumstances that have existed for young [X].
  23. Certainly this is not a situation where any presumption between parents applies and I would not envisage any order involving Ms Henning in the important decision-making aspects of young [X]’s life. Having said that, I am of the view that the parental responsibility for [X], which for the benefit of both of these parties is not to be confused with his living arrangements, but is the obligation and responsibility for making long-term important decisions for [X], such as religious or cultural practice, education or medical interventions should be shared equally between the respondent great grandmother and the father.
  24. I think it important that as [X] grows up that these important people in his life are seen and understood to be making a contribution to those responsibilities. And it is important that it be seen not as a right, not as an award that is given, but as a responsibility or a job that people take on for young children. So I am not troubled in making this order where there is quite obviously a difficult and perhaps suspicious relationship between the father and the maternal extended family, but on the evidence I have seen and heard, I am confident that those matters will be diluted over time with a focus more on [X]’s best interests and less on personal suspicious issues between the parents.
  25. There will be an order that the applicant father and the second respondent, great grandmother, Ms A Henning, have equal shared parental responsibility for the child [X] born ... 2017.
  26. There will be an order that [X] live with the second respondent, Ms A Henning. Without any submissions to the contrary and nothing the difficulties for Mr Inserra of a historical; personal in respect of his mother; financial and his other commitments, I think that [X]’s best interests are served by there being actual orders in the terms of paragraph 5 of the proposal that the maternal great grandmother handed up in final submissions, but I wish to say that there will be an order that [X] spend time and communicate with the father, otherwise as agreed between the parties as noted in subparagraph (h) and in many senses that is a very important order where there are some practical difficulties that the relevant adults understand the need for some flexibility and understanding of the positions of each of the other participants.
  27. And there will be orders therefore in the terms of paragraphs 5(a) to (h) accordingly.
RECORDED : NOT TRANSCRIBED
  1. There will be an order in the terms of paragraph 7 and 8 and 9 of the draft orders sought by the maternal great grandmother and the Court will take out those orders accordingly.
RECORDED : NOT TRANSCRIBED
  1. There will be an order that a copy of these reasons be taken out, settled and provided to each of the applicant father and the second respondent, maternal grandmother.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 27 March 2019

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