Abrahamsen & Pasternak
[2024] FedCFamC1F 538
•13 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Abrahamsen & Pasternak [2024] FedCFamC1F 538
File number(s): BRC 15738 of 2019 Judgment of: BAUMANN J Date of judgment: 13 August 2024 Catchwords: FAMILY LAW – PARENTING – Where the maternal grandmother was the primary carer for the child’s first seven years of infancy until a change of residence to the father’s care was ordered in 2021 – Where the Court finds the change to the father’s primary care has been a significant positive change for the child – Where there is potential that the maternal grandmother would undermine and seek to destroy the child’s relationship with the father –Mental health challenges affect the mother – What, if any, time the child can spend with the mother is shaped by the need and insistence of the maternal grandmother to be present – No prescribed orders made for the child to spend time or communicate with the mother or the maternal grandmother Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Cases cited: Abrahamsen & Pasternak [2021] FCCA 2149
Abrahamsen & Pasternak [2021] FedCFamC2F 288
Division: Division 1 First Instance Number of paragraphs: 92 Date of hearing: 11–14 October 2022 Place: Brisbane Counsel for the Applicant: Litigant in person Counsel for the First Respondent: Ms Chekirova Solicitor for the First Respondent: A P Hodgson & Associates Counsel for the Second Respondent: Mr Stagg Solicitor for the Second Respondent: Monardo Legal Counsel for the Independent Children’s Lawyer: Mr Linklater-Steele Solicitor for the Independent Children’s Lawyer: Stewart Family Law ORDERS
BRC 15738 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ABRAHAMSEN
Applicant
AND: MS DELGADO AS LITIGATION GUARDIAN FOR MS PASTERNAK
First Respondent
MS EDWARDS
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
13 AUGUST 2024
THE COURT ORDERS:
1.That the child, X born 2014 (“the child”) live with the father.
2.That the father have sole parental responsibility to make major long term decisions for the child.
3.That there be no prescribed orders for the child to spend time or communicate with the mother, MS PASTERNAK or the maternal grandmother, MS EDWARDS.
4.That the father shall:
(a)keep the mother and the maternal grandmother informed as soon as possible of any significant illness or injury affecting the child;
(b)provide a photograph of the child and a final year school report on a yearly basis to the mother and the maternal grandmother;
(c)pass on to the child any gifts, letters, cards or other written communication he receives from the mother and/or maternal grandmother for the child, with full power to decide to either partially redact or withhold the gift, cards, letters or communication if he believes they are inappropriate; and
(d)keep the mother and maternal grandmother informed of a postal address, email address and emergency telephone number where the mother and/or maternal grandmother can send items to the father or contact the father in an emergency.
5.That the maternal grandmother and the mother jointly shall:
(a)be entitled to send to the child, at the address given by the father under Order 4(d), a gift at Easter, Christmas, and/or on the child’s birthday and a card or letter to accompany that gift; and
(b)keep the father informed of a postal address, email address and emergency telephone number which the father can use to send the articles under Order 4(b) or to inform the mother and maternal grandmother of a serious issue identified under Order 4(a).
6.That the father shall be permitted to provide a copy of these Orders and the Reasons for Judgment delivered 13 August 2024 to the child’s Paediatrician Dr B (or any replacement) and to the child’s therapeutic counsellor Ms C (or any replacement).
7.That the Independent Children’s Lawyer be discharged at the expiration of thirty (30) days from the date of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abrahamsen & Pasternak has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
X is now aged 10 years and is the only child of an unusual relationship between the Applicant father Mr Abrahamsen (“the father”) and the Respondent mother Ms Pasternak (“the mother”). Because of mental health challenges affecting the mother, her mother Ms Edwards (“the maternal grandmother”) was the primary full-time carer of X from birth until the change of residence was ordered by Judge Cassidy on 6 October 2021, with immediate effect.
Since October 2021, the mother and the maternal grandmother have not spent time or communicated with the child to any significant extent.
The behavioural changes which the child has exhibited all her life and who is best able in the future to provide support and stability to her, has been a major issue between the father and the maternal grandmother, although to be fair the maternal grandmother’s position became more flexible after all the evidence.
The reasons which follow seek to explain why the orders which appear at the commencement of these Reasons are assessed to be in the best interests of the child.
COMPETING PROPOSALS
Father
The Applicant father is a public servant who did not have legal representation at the hearing. He was given the opportunity to cross examine all other parties and experts but did not choose to do so. In final submissions, he adopted the position expressed by the Independent Children’s Lawyer Counsel, Mr Linklater-Steele for a no time order – save for an email sent on 14 October 2022, referred to later. He had prepared his case well, however his case outline referred to reliance on a number of earlier affidavits, which was contrary to the trial directions made, and were accordingly not read. The father was the subject of cross examination, as was his wife, Ms D.
Mother
The mother was represented at the hearing by Ms Chekirova of Counsel, who received instructions from Ms Delgado, a Litigation Guardian appointed by a Senior Judicial Registrar in March 2021 for the mother. The mother relied upon a short affidavit sworn 14 September 2022 to support her position initially which was for an equal time arrangement, and in the alternative (if the Court ordered X to live with the father), then unsupervised time each alternate weekend and half of school holidays. The mother’s challenges with mental health caused the Independent Children’s Lawyer and the father not to seek to cross examine the mother. It should also be noted that the mother chose not to be in Court for her mother’s testimony and for other parts of the trial – I infer because it was too upsetting and/or confusing for her to do so. Her presentation in court where she chose to sit beside her mother; was comforted by a soft toy and showed little emotion, was in many ways consistent with her diagnosis.
The maternal grandmother
The maternal grandmother was represented by experienced Counsel Mr Staggs. The case outlined filed 10 October 2022 annexed the orders sought by her – principally that the “parties” have equal shared parental responsibility; that week about care with changeovers on a Friday after school occur; that X return to E School with a range of other specific orders, including an order for reportable family therapy.
Although the case outline of the maternal grandmother identified she was relying on a family report filed in August 2017, it was not read in this case because of its age. A number of experts were referred to, many of whom the Independent Children’s Lawyer also relied upon – and were in fact her witnesses.
By final submissions, the maternal grandmother’s position was, although still faintly pressed, to seek an equal time order, confronted by the position advanced by the Independent Children’s Lawyer, the maternal grandmother urged at least some time orders be made for the child to spend time, after family therapy, with both the maternal grandmother and the mother. The maternal grandmother relied upon evidence from her husband, Mr F, who has been a member of the maternal grandmother’s household for many years and regards himself as the step-father of the mother. I should record that Mr Staggs’ advocacy was both measured and sensible, and there was nothing more he could have said to advance the position and orders sought by the maternal grandmother.
Independent Children’s Lawyer
Mr Linklater-Steele advocated strongly for the position adopted finally by the Independent Children’s Lawyer, and articulated as Exhibit 10, namely that:
(a)the father have sole parental responsibility for the child;
(b)the child live with the father; and
(c)the child spend no time with the mother or the maternal grandmother.
The case outline filed by the Independent Children’s Lawyer on 4 October 2022 identified the reliance upon two family reports of Mr G (marked Exhibit 7 dated 16 December 2020 and Exhibit 8 dated 14 June 2022), as well as two affidavits of Ms H; an affidavit of Dr J and an expert report by Consultant Psychiatrist Dr K filed 13 June 2022. None of the Independent Children’s Lawyer’s experts, although relied upon, were required for cross-examination. Those affidavits have been read and considered.
Importantly, the Independent Children’s Lawyer tendered (as background) the bundle of documents tendered before Judge Cassidy in August 2021 and ex tempore Reasons delivered 24 August 2021 and 6 October 2021 by Judge Cassidy, ultimately settled and published. I have read those Reasons to better explain the history of this somewhat complex matter.
As a result of a tender (marked Exhibit 2) of a bundle of documents about recent medical or allied health professional engagement, coupled with notes from Paediatrician Dr B (Exhibit 5); Psychologist Ms C (Exhibit 6) and notes in Exhibit 2 by accredited mental health Social Worker Ms L, the Independent Children’s Lawyer properly called these three health professionals for the purpose of cross examination.
It is appropriate that I express my regret to the parties that these there has been such a delay in preparing and publishing the reasons in this matter. I do note, with all parties (save for the father) being legally represented, no application to reopen these proceedings has been filed or made.
CHRONOLOGICAL CONTEXT
Statements of fact which follow should be construed as findings of fact.
Whilst there are a number of historical issues (or perceptions) in dispute, many of them do not shape what orders are in the child, X’s best interests now. More importantly, the events since the father filed his second Application on 31 December 2019 are the most relevant. It is not necessary to deal with every disputed fact or even every piece of evidence or submission. I am satisfied that the reasons which follow, read holistically, illuminate the pathway to my decision.
The father, mother and maternal grandmother are respectively aged 37 years, 37 years and 63 years of age.
The father says he began a relationship with the mother in 2005 when the parties were both 18 years of age. Although a dispute arises as to whether, and for how long the parties cohabitated, I am satisfied that for extended periods the father lived in the home of the maternal grandmother and her husband Mr F – certainly before the birth of X in 2014.
The father, I find, would have been aware of the mother’s significant mental health challenges and how, from X’s birth, the maternal grandmother was the dominant parenting figure. That for some years X was told her mother was her sister, and not her mother, was a fact known to the father. Whether, as the mother and maternal grandmother assert, X was told around the age of three years that her mother was her biological mother, is disputed – however there is no doubt X was treated by the maternal grandmother as her daughter and X’s relationship and strong attachment to the maternal grandmother exhibits that belief.
The father says, and I accept, the relationship with the mother (which had an unusual dynamic in many respects) ceased in early 2017, with the father and maternal grandmother each obtaining temporary protection orders around the time of separation. X was approaching her third birthday when the father left the home.
On 9 May 2017, the father commenced parenting proceedings, but after the preparation of a family report by Ms M and for reasons disputed (including the assertion that if the father did not pursue parenting orders no child support would be payable), ultimately the father’s Application was dismissed on 15 November 2017. Relevantly, a Registrar had refused to make some earlier purported consent orders providing for X to have no time with the father.
The father re-partnered with Ms D in 2017 (subsequently marrying in 2021).
The effect of the events from separation in early 2017 (a final visit occurring on 18 June 2017) until the father filed the current Application on 31 December 2019, was that X spent no time with her father.
By March 2020, the maternal grandmother had been appointed a legal guardian for the mother by the Queensland Civil and Administrative Tribunal (QCAT). Some months earlier, X had been diagnosed by Paediatrician, Dr B with autism; language delay; ADD and some other global developmental challenges.
Despite the commencement of proceedings, I am satisfied that the behaviour of the maternal grandmother exhibited a strong and persistent view that it was contrary to the best interests of X to recommence and have a relationship with the father. A number of relevant Court events, including the removal of the maternal grandmother as her daughter’s Litigation Guardian and appointment of Ms Delgado in that role, and orders for a family dispute resolution conference, took place but no actual orders for the child were actually made until 24 August 2021 – nearly two years after the father commenced this application.
On 24 August 2021, Judge Cassidy made interim Orders for the Reasons published (see Abrahamsen & Pasternak [2021] FCCA 2149). The Orders provided for X to live with the maternal grandmother and spend at least one hour each week with the father supervised at N Contact Centre. To assist this process, the three parties were ordered to “attend upon [Dr J] and follow all reasonable direction of [Dr J] for the purpose of communicating the child’s parentage, the family dynamic and preparing the child to spend time with the [f]ather”. I refer later in these Reasons to the unchallenged evidence of Dr J.
Furthermore, the three parties were to attend upon Dr K, as a single Court expert Consultant Psychiatrist for assessment. I refer later in these Reasons to the unchallenged evidence of Dr K. In circumstances where the father had asserted that the maternal grandmother had (falsely) advised the child’s school – E School – that the father was prohibited by Court orders from having any contact with or information from the school, Judge Cassidy made Orders 12 and 13. It is relevant to note that these interim Orders were also shaped by the opinions expressed by recommendations made by Family Consultant Mr G who, after some interviews in December 2020, published a report on 16 December 2020 (the first family report – Exhibit 7). The report writer recommended X begin graduated supervised visits with the father.
On 3 September 2021, the matter returned before Judge Cassidy. It was the view strongly expressed by Judge Cassidy, for the reasons set out in her published Judgment delivered 6 October 2021 (see Abrahamsen & Pasternak [2021] FedCFamC2F 288) that the maternal grandmother’s behaviour exhibited “the total inability of the maternal grandmother to accept that the father should spend any time with the child” (at [14]). So concerned was her Honour about compliance with her Orders made five weeks earlier, it appears the Judge took oral evidence from both Dr J and Ms H (O Family Services). The said Reasons set out the evidence given at that time, which persuaded the Judge that “this child will not have a relationship with the father if I leave her with the grandmother” (at [26]). Her Honour then pronounced the following orders, changing the child’s residence, namely:
1.That the child [X] born […] 2014 (herein, “the child”) shall live with the Father.
2.That the child shall spend no time directly or indirectly with the Maternal Grandmother.
3.That the child shall spend no time directly or indirectly with the Mother.
4.That the Father shall have sole parental responsibility for the long term care, welfare and development of the child.
5.That the Maternal Grandmother be restrained and an injunction issue restraining the Maternal Grandmother from attending the child’s school or any of the child’s treating medical practitioners.
6.That the Mother be restrained and an injunction issue restraining the Maternal Grandmother from attending the child’s school or any of the child’s treating medical practitioners.
The Orders made were not the subject of appeal and X began living with her father shortly thereafter. On 14 December 2021, the proceedings were transferred to Division 1 and ultimately listed for a four day trial beginning 11 October 2022. As noted earlier, for the trial, the Court had received a psychiatric assessment by Dr K and an updated family report by Mr G. Further evidence from health professionals was provided as earlier indicated.
The child suffered a significant emotional event in May 2022, whilst continuing to adjust to both her new living arrangements; lack of any interaction with her mother and maternal grandmother and Mr F; and a change of school and alteration of medication. The maternal grandmother pointed to this event as evidence that the father (supported by his wife Ms D), were unable to manage the child’s behaviour appropriately. Fortunately, that event is better understood when seen in the context of all the evidence offered to the Court.
After identifying the statutory pathway which applies in this matter (heard in October 2022), I will make some discrete findings on some of the expert evidence before assessing the stark and polarised positions advanced by the parties within the matrix of the relevant s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) considerations.
STATUTORY PATHWAY
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Act and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
DR K
Dr K’s report dated 13 June 2022 provided the following opinions by way of summary:
Father
The father was assessed at interview on 12 January 2022. Dr K concluded that, in his opinion, the father:
(a)does not have a treatable mental illness but is prone to a stress reaction and anxiety particularly concerning challenging social experiences;
(b)is a low risk of recurrence of depressed mood sufficient to alter functioning “given the stable function presented by the father following his access to and response to effective treatment”;
(c)does not need psychiatric or psychological treatment for a mental illness now; and
(d)his prognosis is “good”.
Mother
The mother was assessed at interview on 13 January 2022 and 4 February 2022 (via Google Duo) and was accompanied by her mother “as her support person” who spoke for the mother throughout much of the examination. The maternal grandmother did not demonstrate a willingness to discuss the mother’s access to psychological therapy, in circumstances where the mother’s memory was poor. Although it does not seem Dr K had all the medical documents tendered as Exhibit 9, he did refer to the letter dated 5 August 2021 from P Hospital and accepted, as I do, the accuracy of those tests and results.
Dr K noted that:
Themes evident from both women concern persistent torment by the father over some 15 five years, and a total opposition to accept the adjudication made by the Honourable Court and total opposition to comply with suggested strategies to cope with and manage the need to develop a post-separation parenting plan with the father.
Dr K concluded that in his opinion, the mother:
(a)has some serious psychiatric and functional issues which could increase the risk of dysfunction for parenting tasks;
(b)has a “loss of the ability to remember, to see and to speak, and the occurrence of a [medical episode] renders her severely impaired to care for and to be aware of the needs of the child”;
(c)has “the potential for a recurrence of depressed mood to alter functioning”; and
(d)his prognosis is very guarded because the mother “has not functioned well as an independent teenager or adult for some 20 years” and there are “structural changes in her brain which indicate some form of brain damage” and where “many years of assessments, tests, and treatment have failed to stabilise the functional decline and the onset of the loss of her memory”.
Maternal grandmother Ms Edwards
The maternal grandmother was assessed at interview on 17 January 2022 (by Google Duo). Clearly the maternal grandmother was unwilling to discuss her childhood and to “divulge, share or speak” about aspects of her past. Dr K referred to notes made by Dr Q which “shed further light on the adversity” of the formative years for the maternal grandmother. I chose not to repeat, in this Judgment, the contents of that note relied upon by Dr K.
Dr K concluded that, in his opinion, the maternal grandmother:
(a)in his examination, is marked by a “stern rigidity to be assessed and an undercurrent of anger opposition and extreme indignation”;
(b)has no treatable psychiatric diagnosis but there are “very long-term and serious psychological issues noted in her manner of dealing with interpersonal relationship issues which have been traumatic in her past”;
(c)“[h]er rigidity to live her life independently and manage the impact of past trauma is to remain totally secluded and live her life in private”. However, a problem with this approach to conflict and coping with her life means she “remains a person who if tested or thwarted or challenged about her privacy and decision making (one of which has been to refuse any post-separation relationship with the father) she will react with rage, anger and indignation that her preferred personal method of coping is not supported”;
(d)Although likely to benefit from psychological support “to manage a most challenging life crisis”, her prognosis should be assessed as “very guarded”; he had grave doubts the maternal grandmother “will embrace a new way of approaching the life challenges which have emerged in 2021 and 2022 in her life”. She demonstrates a “rigidity and opposition to seeking help”.
I accept the opinions of Dr K, but as I will discuss, the maternal grandmother says that since she suffered the grief of X being placed in the care exclusively of the father, she has undertaken some parenting courses and some therapy. The maternal grandmother, whilst not seriously challenging the opinions of Dr K formed at January 2022, asks the Court to accept her views of the father and her attitude to co-parenting have significantly changed.
MS H
Whilst some parts of Ms H’s evidence before Judge Cassidy in August 2021 are recorded in the said Reasons for Judgment, this witness provided two reports which are before the Court – dated 27 September 2021 and 6 December 2021. Ms H is a highly qualified Social Worker and Director of O Family Services. Her reports speak for themselves. The maternal grandmother’s behaviour was simply inappropriate as observed by Ms H. I accept her version of events. As Ms H opined, the maternal grandmother “was fully aware of the potential consequences of thwarting this process. It is concerning that this knowledge did not underpin an encouraging, facilitative and reassuring attitude”.
The second report described the actions of Ms H in facilitating the change of residence to the father. Some of X’s words and behaviour would have been confronting. However, Ms H determined, after some period of time, that X was settled enough to leave the Court and X left with the father and Ms D.
Five further sessions since the change of residence took place with X, the father and Ms D, and overall, the opinions of Ms H reflected that she “cannot overstate the change” observed in X who was “warm, friendly, engaging, generous, kind, thoughtful and funny”. Ms H has been “most impressed by the efforts” of the father and Ms D and opined that the “transformation that has occurred as a result of the change of residence is profound”.
I accept the evidence of Ms H as accurate at that time.
DR J
Dr J had provided an early report (dated 1 December 2021) which reflected on the eight sessions the father attended between 3 August 2021 and December 2021, designed to assist the father and Ms D with the parenting of X after reunification with the father in September 2021. Although Dr J had not personally observed X, she did speak to Dr B and this led her to conclude that X “has made remarkable developmental progress in the three months that she has been parented by” the father.
The observations of how the father and his wife Ms D have embraced the challenges, not easy, of helping to support X transition happily into their care is consistent with the evidence overall presented at the hearing before me, and my positive impressions of the father and Ms D under cross examination.
DR B
X’s Paediatrician provided notes under subpoena of her consultation with the child on 6 September 2022. Dr B was the subject of cross examination, from which the following evidence and opinions were expressed, inter alia:
(a)Although some aspects of X’s behaviour have improved, her diagnosis remains the same. She is medicated as prescribed by Dr B who overseas other allied health professionals’ involvement with X;
(b)The report dated 19 December 2019 to the child’s General Practitioner was accurate at the time, and the context was largely provided by the maternal grandmother;
(c)The consultation on 6 September 2022 revealed a happy child. It was the first time Dr B had found “her social communication emerging”. She was much easier to manage when compared to how she presented when living with the maternal grandmother – giving the example that she could not even weigh her previously;
(d)Overall, whilst the child still has some behavioural challenges, there was a “striking” contrast with how she presents more positively now; and
(e)Under cross examination by Counsel for the maternal grandmother, Dr B opined that the maternal grandmother should not be criticised for not agreeing with the suggestion for prescribed medication.
The evidence of Dr B confirms, and I find, that the father and his wife Ms D understood the importance of maintaining regular consultation with health professionals; agreed with the recommendations offered by the Paediatrician and do not currently exhibit, at least to Dr B, any significant difficulties in maintaining appropriate strategies for X. The report of 7 June 2022 referred to X displaying “separation anxiety from her stepmother”; how “[X] controls the whole family unit”; referred to the incident in May 2022 and, at that time, was aggressive and her anger management skills deteriorated.
Certainly, Dr B felt that by the consultation in September 2022, things had settled down.
MS L
As previously noted, Ms L is an accredited mental health Social Worker. Under subpoena, her notes were produced that reveal weekly appointments for X from 8 July 2020 to 29 September 2021.
In a report to the father dated 1 December 2021 (Exhibit 2), Ms L had also conducted fortnightly appointments post the change of residence. Ms L observed that:
(a)X is now sleeping independently. The maternal grandmother gave evidence X always slept with her, and she could not achieve independent sleeping; and
(b)the father said she was coping well with the change of residence.
Although understandably cautious at the time of that report regarding the change in X’s presentation and demeanour, collateral data provided to her by the child’s Occupational Therapist confirmed that she had also observed X’s recent positive change in presentation.
Ms L opined in the report of 1 December 2021 that X’s presentation and demeanour has changed significantly.
During Ms L’s cross examination, it emerged that since ceasing consultations with X, she had conducted five sessions with the maternal grandmother since August 2022, initially to review with her the report of Dr K, which the maternal grandmother told her she “accepted”. She is happy to continue to assist the maternal grandmother “skill building” and “looking forward”.
Ms L says she has seen a change in the maternal grandmother – from being angry to better able to look into the future and more accepting of X being in the father’s care.
I accept Ms L is a “helping professional” but agree with the final submission of the Independent Children’s Lawyer that caution must be extended to adopting the limited evidence of Ms L, to found a finding of a significant and enduring change in the attitude of the maternal grandmother to the father and her ability to separate the best interests of the child from her own feelings.
MS C
Ms C is a Psychologist and her case notes and various observations commenced after being engaged by the father in June 2022. The therapy was directed to helping X better “regulate” her emotions. During sessions (with various notes comprised as part of Exhibit 2), Ms C made the following observations:
(a)X spoke of screaming and fighting in the “old house” and the need to protect her mother;
(b)She has expressed how much she loves her mother;
(c)The yelling came from the maternal grandmother and Mr F;
(d)She expresses now some concerns about not wanting a relationship with the maternal grandmother;
(e)X is becoming more attached to the father; and
(f)Overall, she is responding to therapy “quite well’ and Ms C opined she believes it is possible X can ultimately regulate her emotions.
I accept the evidence of Ms C.
FAMILY REPORT WRITER – MR G
Experienced Social Worker, Mr G undertook, in effect, a longitudinal study of this family through two separate family reports, namely:
(a)a report dated 16 December 2020 (“the first family report”) arising from interviews conducted on 8 December 2020. As earlier noted, Mr G did not observe X on this occasion for reasons identified. Even when trying to speak with her via video on 15 December 2020, technical issues prevented any engagement with X, although Mr G could “hear high pitched screaming in the background” and the maternal grandmother and her husband Mr F were not able to facilitate X’s participation in the call; and
(b)a report dated 10 June 2022 (“the second family report”) arising from interviews on 20 May 2022. This report was prepared after the change of residence had been put into effect, and X was observed but was not wiling to participate in a formal interview.
The recommendations (at paragraphs 125 to 129) in the second family report were understandably confronting for the maternal grandmother, and the cross-examination undertaken by her Counsel was directed to many of the foundation opinions expressed by Mr G to support his final recommendation that:
(a)X live with the father;
(b)X spend some limited supervised time with the mother;
(c)X spend no time with the maternal grandmother;
(d)the mother and maternal grandmother be at liberty to send letters and/or gifts to X on special occasions; and
(e)X attend counselling for any final orders made, to be explained to her.
The family reports speak for themselves, and although the Court is not bound to accept the opinions of Mr G (or his recommendations), in summary Mr G opined that:
(a)he had concerns about the maternal grandmother’s mental health and capacity to place X at the centre of decision-making, and was uncertain whether the mother is willing and/or able to share a meaningful relationship with X independent of the maternal grandmother (paragraph 112);
(b)X did seem eager to spend time with the maternal grandmother and reciprocated her affection. The maternal grandmother was unable to contain her emotions during the time with X, and the maternal grandmother sought validation from X “and discussed future plans which she does not have complete control over” (paragraph 115);
(c)the maternal grandmother appears “hypersensitive or insightless” and does not seem to be receptive to any views which are not consistent with her own (paragraph 116);
(d)he was concerned about whether the maternal grandmother’s mental health and the “possibility of the maternal grandmother exposing [X] to adult views, undermining her relationship with the father and creating distressing loyalty binds (paragraph 118);
(e)from reports and observations, X does appear to share a positive relationship with the maternal grandmother even though “[X] has known the mother as her sister” (paragraph 119); and
(f)whilst the mother says she has no memory of the father, she continued to articulate negative/absolute views about the father and his role in X’s life. This could suggest she has been “influenced by the maternal grandmother” or has aligned her views with the maternal grandmother’s view “to pacify her or reduce the likelihood of an escalation” (paragraph 120);
Under cross-examination, the following further evidence of relevance was offered by Mr G:
(a)He was aware of the event in May 2022 and the report of Dr B of 7 June 2022 (page 27, Exhibit 22) – which he felt in part was procured to support a desire for the father and/or Ms D to work more from home and be available to assist X to regulate her emotions. He did not see the event of May 2022 as much different from some earlier challenges the maternal grandmother’s household had to deal with prior to the change of residence;
(b)Mr G’s primary concern was about the maternal grandmother’s willingness to either facilitate time or generally support X’s relationship with the father;
(c)The demonstrated inability of the maternal grandmother to control or regulate her emotions during the interviews for the second family report was a continuing concern;
(d)If the Court was satisfied that the maternal grandmother, having completed some parenting courses and engaged with a therapist, had caused a change of attitude by the maternal grandmother from his assessment in May 2022, then the prospect of some time between the child and the maternal grandmother could be considered. At the time of those interviews, the report writer saw no evidence of any change; and
(e)As a result of his recommendation for “no time”, an equal time regime was not considered by him.
Overall, I give significant weight to the opinions and recommendations of Mr G. His opinions were well founded and broadly consistent with the additional evidence the Court received during the trial. I note that:
(a)Mr G had not seen the psychiatric report of Dr K when he prepared his second report, although he had access to the notes of Dr Q; and
(b)I accept that it was likely to be a highly emotional and difficult interaction for the maternal grandmother when she saw X for the first time on 30 May 2022 since the change of residence ordered by the Court, eight months earlier. I am not surprised that the maternal grandmother found it difficult to control her emotions and would not be overly critical of her in that context.
However, despite the work on developing better parenting skills through therapy, the contents of the maternal grandmother’s affidavit sworn on 22 September 2022 – which remained highly critical of the father – and her evidence under cross-examination support the finding I make that the maternal grandmother is not likely to be able to disguise or contain her views about the father and his household, with the inevitable consequence being that the clear stability that the father and Ms D have established for X (which has been, on all the independent assessments, a significant positive change for X), could be put at risk.
I will now, in a narrative style, deal with the competing proposals with the matrix of the relevant primary and additional considerations. In so doing, I rely upon, but do not repeat, findings already made in these Reasons.
PRIMARY CONSIDERATIONS
X will benefit from having a meaningful relationship with both parents if it can be achieved. The bond with the father has been strongly reestablished/created since the change of residence. It is a challenge to be satisfied it can be created with the mother where the maternal grandmother’s dominance and likely involvement will provide hurdles because of her attitude, as s 60CC(2)(b), which I discuss next being given greater weight, requires me to consider.
Put bluntly, on all the evidence I am not satisfied on the balance of probabilities that the longstanding attitude and behaviour of the maternal grandmother to the child’s relationship with the father has sustainably changed. Left in any unsupervised environment, there is a real potential that the maternal grandmother would undermine and seek to destroy the relationship the child has with the father – thereby putting at risk the enormous gains that have been achieved since the change of residence.
I am satisfied that the maternal grandmother is currently unable to separate her feelings and desires for X (and for X’s relationship opportunity with the mother) from what is in X’s best interests. In that regard, for example, the fact that the maternal grandmother at trial still urged the Court to consider X change school, is a stark reminder of her inability to give the father (and his wife) any credit at all for the hard work and effort they have put into establishing a more calm and happy home for X.
In making these adverse and critical findings about the maternal grandmother, I do not ignore the significant challenges she faced which were shaped by, at least:
(a)the adverse upbringing and early years of adulthood;
(b)the need since early in her daughter’s life and continuing, to support the mother who has herself significant additional needs;
(c)the difficulties she experienced in dealing with her daughter’s, I infer, unplanned pregnancy;
(d)the father’s failure for many years post separation to press for a relationship with X, which at least created an environment where the maternal grandmother had to control all the decision-making in a complex family situation; and
(e)the enormity of the emotional upheaval created by the orders to change the residence of X on an interim basis.
However, although it might be said that the maternal grandmother did her best in a difficult situation, and that without her efforts (and support from Mr F), X’s situation could have indeed been dire, that empathic focus is not the test to be applied. The law requires the Court to make an order where the child’s best interests on the evidence now is to be the paramount consideration.
ADDITIONAL CONSIDERATIONS
In my view, the wishes expressed by X at different times can be afforded little weight because of her age, lack of emotional maturity, the likely subtle influence of the maternal grandmother and of course, her significant additional needs. I regard the best evidence of her current feelings is the comfort she demonstrates in her current living arrangements with her father and the improvement in her functioning both at school and as observed by her treating health professionals.
At this time, her relationship with her father and his wife Ms D has become her focus and source of stability. That she had adjusted so well is a credit to the father and his household. I accept that, as a result of the history of care, X has a strong relationship with the maternal grandmother, Mr F and to some degree her mother. The lack of time since October 2021 has diminished that bond.
The father has chosen to interact with the maternal family through the mother’s brother and his family and the maternal grandfather. Whether this was entirely focused on X’s best interests, or whether an element of provocation towards the maternal grandmother (who is estranged from all these people) was an intention, is difficult to assess. On balance, I find the father’s intentions were to genuinely connect with them for X’s best interests – however he must be alert to any negative views the extended family have towards the maternal grandmother and/or the mother, not being shared with X.
Since the change of residence, the father has exercised decision-making, and the capacity for the father and the maternal grandmother to communicate is so limited (and conflictual) that any other option is unlikely to be in X’s best interests. As I will discuss in the final paragraphs of this Judgment, any sharing of care – whether equal time or less – will not work for X on any assessment.
I rely upon earlier findings to establish, in my view, that:
(a)the father has demonstrated his capacity to parent and a committed approach to the responsibilities of parenting;
(b)the maternal grandmother, as a result of not only the heavy responsibilities she exercises in the care of her daughter, but her attitude to parenting, has a compromised capacity to parent; and
(c)I accept the submissions of the Independent Children’s Lawyer, which in effect were that a sharing of care, after the change of residence has been put so successfully into effect, creates real risks to the improvement in X’s functioning being maintained. This could be catastrophic for this young girl.
Family violence issues do not arise for significant consideration in this matter. I accept the maternal grandmother’s household has the stressors associated with the mother’s needs and limitations, however I assessed Mr F (who I accept greatly misses X in his life) as being a support for his wife, and is happy for her to make decisions. Similarly, I find the father and Ms D have a committed marital relationship and they have worked hard as a team to support X to adjust to the change of residence (and school) and to prosper in their care.
The Court is required to consider making an order least likely to lead to further proceedings. On reflection, it is sad for X that the maternal grandmother was so persistently averse to X forming a relationship with the father when he pressed for that outcome. His initial position was not to be the parent with primary care – but to have a relationship with X. Whilst it is mere speculation, a very different and more inclusive and insightful attitude by the maternal grandmother since this fresh Application was commenced in 2019, might have created more inclusive options than are now available. The orders I propose to make are intended to be final orders likely to endure for the infancy of X.
CONCLUSIONS AS TO DECISION-MAKING
The father and maternal grandmother could not communicate effectively in the future to support an order for equal shared parental responsibility, being in X’s best interests. The father must have sole major long term decision responsibility. Whilst I accept his wife Ms D will likely be involved, the legal responsibility with be solely vested in the father.
I have no confidence, despite her assertions, that the lifelong rigidity of the maternal grandmother has changed as far as X is concerned. Whilst I can accept such pragmatism and absolute confidence that she is right, is a quality likely to have been necessary to meet the significant needs of her daughter (the mother), and her approach has the support of her husband Mr F, it is a chronic and serious concern in meeting the needs of X – particularly if the maternal grandmother is required to share care in any form with the father.
Whilst the maternal grandmother might well feel that her efforts to October 2021 are both unrecognised and unrewarded, that is not entirely the case. As I have already noted, if the maternal grandmother did not step in when she did after the birth of X, the outcome for X would have most likely involved child protection authorities.
Whilst the Court has formed the view, on all the evidence, that it is not in X’s best interests to spend time with the maternal grandmother, I accept that at one stage of her journey in life it is almost inevitable that X and the maternal grandmother will interact. I am sure she has some happy memories of time in the home of the maternal grandmother and with the mother and Mr F.
However, the risks associated with the maternal grandmother are so potentially destructive to the child’s newfound bond with the father and Ms D, that even attempts at supervised time are shaped by risks. Limited time is outweighed by the risks.
The consideration of what time or communication, if any, that X can spend with her mother is sadly shaped by the need and insistence of the maternal grandmother to be present. X has and retains feelings of warmth towards her mother and seems to be able, at some level, to distinguish between the feelings for her mother and the feelings for her maternal grandmother. As X gets older, it will be important that the father be alert to assisting X to better understand the mental health challenges the mother confronts every day.
Further education in that regard, as X gets older, is likely to assist X to see her mother in a more realistic context because, again, it is highly likely that X, as she reaches adulthood and thereafter, will seek out more information and/or contact with her mother. This is why it is so important that the father be alert to any negative or hurtful comments that may be offered to X by the extended maternal family.
It is with some regret that I am not satisfied, at this time, that an order for X to spend time (even supervised time) with the mother is feasible or in X’s best interests.
I do have a strong sense however that whilst the father holds very strong negative views about the maternal grandmother, based to a degree from her conduct and behaviour designed to exclude him from X’s life, he holds a more empathic view about the mother. I would not consider, on the evidence before me, it unlikely, as X gets older and more aware of her family history and the mother’s additional needs, that some contact between the mother and X will be facilitated by the father. However, at this time, when support and stability of care for X (and her schooling) is paramount, it is simply too speculative to predict when that future opportunity will emerge.
The father’s letter to the Court after the trial reflected positively on the father and was contrary to the submissions of the Independent Children’s Lawyer. I will order the father to keep the mother and the maternal grandmother informed of the child’s development. Simply, if X does explore their relationship in a few years’ time (or even at adulthood), some understanding of the journey X has taken since the change of residence will give them something to talk about.
It is also important for X, in my assessment, that although she is not spending time or communicating with her mother and maternal grandmother, she gets a clear message that they love her dearly and have not abandoned her in any way. I am confident the father can be trusted to pass on appropriate gifts, cards, and letters. If he has a concern about the views expressed in those letters and cards, then he will have the right to retain them and not give them to X. If X wishes to express her thanks for any gifts etc, it would be entirely appropriate for that to occur.
For all these reasons, the orders which appear at the commencement of these Reasons are in the best interests of X at this time.
The Independent Children’s Lawyer will be discharged with the thanks of the Court for her efforts in this difficult and complex mater.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 13 August 2024
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