A terminally ill grandfather wants to see his young grandson – what are his options

A TERMINALLY ILL GRANDFATHER WANTS TO SEE HIS YOUNG GRANDSON – WHAT ARE HIS OPTIONS?

Not many people would find themselves in the position of the grandfather in the case of Sarti & Sarti & Anor [2020] FCCA 2101 (31 July 2020).

The grandfather had a terminal illness, with a life expectancy of about 3 months. He had been spending time with his grandson, who we will call Matthew, since Matthew’s birth although the time was limited as the grandfather lived some distance from Mathew’s parents. Mathew was 5 years old at the time of the Court hearing.

In summary, the grandfather had had an argument with Mathew’s father (who we will call Peter). Peter was the grandfather’s son. After this argument there were tensions between the grandfather and Peter. Peter was separated from Mathew’s mother (who we will call Susan).

Unfortunately, tensions continued between the grandfather and Peter and Susan. For about a year after the argument, the grandfather was allowed to spend time with Matthew. During these times, the grandfather would spend time with Matthew at a park or take Matthew out for a meal.

Communications between the grandfather and Peter and Susan deteriorated.

The grandfather was antagonistic in his communications with Peter and sent copies of his emails to Susan although Peter had asked him not to involve Susan in communications.

Eventually, the grandfather only saw Matthew when he visited Matthew at his childcare centre to deliver a birthday present to Matthew.

Peter offered the grandfather some time with Matthew and the grandfather spent 6 times with Matthew between 8 August 2019 to 10 January 2020.

On 18 March 2020, Peter sent to the grandfather an email advising that, because of the risk of the spread of the coronavirus, all further visits were cancelled until further notice.

The grandfather rang to speak to Matthew on the morning of Matthew’s birthday but as Matthew was distracted, the grandfather was asked to call back later in the day. The grandfather said that he tried to call back later in the day but got no response and he subsequently discovered that Matthew was involved in a celebration via Zoom with Susan’s extended family, to which the grandfather was not invited.

Peter later sent an email to the grandfather telling him that it was not in Matthew’s best interests to spend time with him at the moment or while there was a degree of conflict between the grandfather and Peter and Susan. Peter told the grandfather that all future communication was to be through Peter and Susan’s lawyer.

Before the hearing in June 2020, the last contact Matthew had with his grandfather was a telephone conversation lasting 5 to 10 minutes during the Easter period in April 2020.

The Family Law Act provides that one principle is that a child has a right to spend time on a regular basis with, and communicate on a regular basis with, both his/her parents and other people significant to his/her care, welfare and development (such as grandparents and other relatives).

The child’s right is subject to if it is contrary to his/her best interests.

The Court will only make orders which it considers are in the best interests of the child.

The Court found there was no evidence of any adverse impact on Matthew on the conflict between the grandfather and Peter and Susan or that Matthew was even aware of the disharmony between them. Peter told the Court that he did not trust the grandfather not to say negative things to Matthew about Peter or Susan. The grandfather proposed that an order be made, without admission, that he be restrained from speaking in a derogatory manner about either Peter or Susan in Matthew’s presence. The Court saw this as a reasonable way of addressing that issue.

The Court was satisfied that Matthew had an affectionate and loving relationship with his grandfather. The Court also found that Matthew usually greeted his grandfather by running to him, calling “Nonno” and hugging him.

The parents argued that their continued involvement with the grandfather would cause them great stress, which, in turn, may cause an adverse impact on their capacity to parent Matthew, and was not, therefore, in Matthew’s best interests. The court did not accept that.

The Court found that Peter and Susan found dealing with the grandfather stressful and difficult a lot of the time but there was no evidence that this had ever negatively impacted on their care of Matthew or that it is likely to do so in the future.

Peter and Susan did not want to be compelled to continue Matthew’s relationship with the grandfather. They wanted to determine whether, and when, Matthew spent time with his grandfather. The Court held that given the grandfather’s illness and his current life expectancy, this may have meant that Matthew would never see his grandfather again. The Court considered that Matthew was old enough to remember his grandfather and may, in the future, enquire about the circumstances that led to the end of his relationship with him and that Matthew may regret having been deprived of the opportunity to spend time with him and to say goodbye.

The Court held that Matthew had an uncomplicated and happy relationship with his grandfather from which he was likely to continue to derive a benefit and had a right to do so.

The Court held that it was in Matthew’s best interests for specific orders to be made for him to spend time with his grandfather.

The Court made orders that Matthew spend 4 hours every second week with his grandfather. Matthew could also spend extra time with his grandfather if Peter and Susan agreed.

Peter and Susan have appealed the decision.

If you are a grandparent and have been denied the opportunity to spend time with your grandchild, contact Kathy Chase of Pittwater Family Lawyers on options to avoid a Court hearing. Kathy can be contacted via email at: pittwaterfamilylawyers@gamil.com or via telephone on (02) 9918 6565 or 0418 25 307.