Jacks and Samson 2008 FamCAFC 173

The case involved a dispute between parents and maternal grandparents of children aged 9 and 7 years.  Contact between the children and grandparents ended following a dispute.  Five years later the grandparents applied to spend time with their grandchildren against the wishes of the parents.  A psychiatrist gave evidence that it was beneficial for the children to spend time with their grandparents.  Evidence was given that the mother showed high anxiety at the prospect of her children spending time with her own parents, and the mother and father both opposed the application.

A judge made orders to facilitate contact between the grandparents and children, including an order that the mother participate in voluntary therapy to address her anxieties (therapy for parent).  The judge ordered a graduated approach where the children slowly increase their time with the grandparents over two years resulting in the children spending limited time with the grandparents. The parents appealed against this order.

Two psychiatrists gave evidence about the mother’s high level of anxiety at the prospect that her children would spend any time with her parents.  The order revived the mother’s memories about her own childhood experiences when in the care of her father.  The mother’s anxieties were exacerbated by the grandparents using court processes to re-establish contact with the children.

A psychiatrist gave evidence that the grandfather had narcissistic traits, did not show empathy for his daughter, was prone to rages, and was likely to have a mood disorder (parenting style self centred).  The psychiatrist considered that the grandfather had used abusive parenting strategies when raising his daughter (harsh discipline), but did not present a threat of abuse or harm to the grandchildren.

A psychiatrist gave evidence that the benefit to the children of having contact with their grandparents was outweighed by the likely effect of the orders on the mother, as the mother’s distress would impact both on the children and on her husband as the mother did not condone any direct contact between her children and the grandparents (parental distress).

No evidence was presented to contradict a supposition that both parents were competent parents.

The appeal court noted that there was no dispute between the parents, and that a competent parent should not be compelled to raise their children in a way that is contrary to the wishes of both parents.

The Appeal Court ruled that the Family Law Act authorises a court to make orders about conditions under which a parent or another person may spend time with a child, including an order that a person undergo mental health therapy.  However this power to make a conditional order did not include a power to make stand-alone orders about a competent parent.

The parents’ appeal was upheld.