Acheson & Begbie (No 2)
[2023] FedCFamC1F 705
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Acheson & Begbie (No 2) [2023] FedCFamC1F 705
File number(s): NCC 3670 of 2019 Judgment of: CHRISTIE J Date of judgment: 22 August 2023 Catchwords: FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Proceedings between father and maternal grandmother – Where the mother is recently deceased – Where the child lives with the maternal grandmother – Where the applicant consents on the final day of the hearing to the Independent Children’s Lawyer’s Minute of Order such that the issues in the proceedings narrow – Parental responsibility – Competing applications for sole parental responsibility – Where the parties have a history of distrust and miscommunication – History of maternal grandmother attempting to involve the father in decisions for the child – Order for shared parental responsibility and for alternative dispute resolution where decision cannot be reached jointly – Meaningful relationship – Where the child has a positive relationship with both parties – Where the child’s relationship with the maternal grandmother is more secure – Proposal for changing the child’s living arrangements – Where any significant change to the current parenting arrangements would be likely to result in significant emotional dysregulation – Issue of passport – Where it is in the best interests of the child to have a passport. Legislation: Family Law Act 1975 (Cth) ss 4, 60CC, 61DA Cases cited: Hartley & Hartley [2021] FedCFamC1F 178
Isles v Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Division: Division 1 First Instance Number of paragraphs: 108 Date of hearing: 17-21 July 2023 Place: Sydney Counsel for the Applicant: Ms Edwards Solicitor for the Applicant: Genuine Legal Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Kennedy & Cooke Lawyers Counsel for the Independent Children's Lawyer: Mr Scarlett Solicitor for the Independent Children's Lawyer: Venus & Smart ORDERS
NCC 3670 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ACHESON
Applicant
AND: MS BEGBIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
22 AUGUST 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The Father and Maternal Grandmother have equal shared parental responsibility for long term decisions about the care, welfare and development of the child X born 2017 (“the child”).
2.In making long term decisions the Maternal Grandmother shall inform the Father of the decision she proposes to make and within 7 days the Father shall reply to the Maternal Grandmother whether he agrees to the proposal.
3.Should the Father disagree with the Maternal Grandmother’s proposal he will provide written reasons within 7 days as to why he disagrees and make an alternative proposal.
4.If the parties are unable to reach agreement about the long term decision, they shall attend alternate dispute resolution to assist them to discuss options for resolving the impasse.
Live with and spend time arrangements for the child
5.The child shall live with the Maternal Grandmother.
6.The child shall spend time with the Father by agreement, but failing agreement as follows:
(a)During New South Wales (“NSW”) gazetted school terms 1, 3 and 4 on the weekend at the conclusion of week 3 from after school (or 3.00 pm) on Friday until before school (or 9.00 am) on the following Monday with the time at week 3 to occur in the Region F Local Government Area;
(b)During NSW gazetted school terms 1 and 4 on the weekend at the conclusion of week 6 from 6.00 pm on Friday until 6.00 pm on Sunday with the time to occur at a location nominated by the Father;
(c)On Father’s Day weekend (each year in term 3) from 6.00 pm on Friday until 6.00 pm on Sunday with the time to occur at a location nominated by the Father;
(d)On the King’s Birthday weekend (each year in June in term 2) from 6.00 pm on Friday until 6.00 pm on Monday with the time to occur at a location nominated by the Father;
(e)During the NSW gazetted school holidays at the conclusion of terms 1, 2 and 3 in 2023 from 3.00 pm on the first Sunday until 3.00 pm the following Thursday;
(f)During the NSW gazetted school holidays at the conclusion of terms 1, 2 and 3 in 2024 from 3.00 pm on the first Sunday until 3.00 pm the following Friday.
(g)During the NSW gazetted school holidays at the conclusion of terms 1, 2 and 3 in 2025 from 3.00 pm on the first Sunday until 3.00 pm on the middle Sunday.
(h)During the NSW gazetted school holidays at the conclusion of term 4 2023 from 3.00 pm on 23 December 2023 until 3.00 pm on 28 December 2023 and from 3.00 pm on 20 January 2023 until 3.00 pm on 25 January 2024.
(i)During the NSW gazetted school holidays at the conclusion of term 4 2024 from 3.00 pm on 27 December 2024 until 3.00 pm on 1 January 2025 and from 3.00 pm on 20 January 2025 until 3.00 pm on 25 January 2025.
(j)During the NSW gazetted school holidays at the conclusion of term 4 2025 and in odd numbered years thereafter from 3.00 pm on 23 December until 3.00 pm 1 January and from 3.00 pm on 20 January until 3.00 pm on 25 January.
(k)During the NSW gazetted school holidays at the conclusion of term 4 2026 and in even numbered years thereafter from 3:00pm on 26 December until 3:00pm on 30 December and from 3:00pm on 16 January until 3:00pm on 24 January.
Changeover arrangements
7.The Father’s time with the child is subject to the condition that on each occasion where the father proposes to drive (or be driven) with the child for a distance of more than 3 hours travelling time he must be accompanied by another adult known to the child.
8.For the purposes of facilitating Order 6, unless the Father and the Maternal Grandmother otherwise agree in writing, changeover arrangements shall be as follows;
(a)For order 6(a) at the child’s school,
(b)For orders 6(b)–(k) the child shall be collected by the father at G Building and returned by the father to Suburb H McDonalds.
9.The Father and the Maternal Grandmother may arrange for the person to attend changeover on their behalf provided that the person is known to the children and the other party is notified no later than 24 hours before changeover unless in an emergency.
Arrangements for the child to communicate with the parties
10.The Father shall have telephone or audiovisual communication with the child by agreement with the Maternal Grandmother and failing agreement at 5.00 pm on Sunday and Thursday when the child is not in his care.
11.The Maternal Grandmother shall have telephone or audiovisual communication with the child by agreement with the Father and failing agreement at 5.00 pm on Thursday when the child is not in her care.
12.Neither the Father nor the Maternal Grandmother shall deny the child any reasonable request he may make from time to time whilst in their care to have communication with the other party by telephone, Skype or other electronic means.
Medical
13.The Maternal Grandmother shall:
(a)Keep the Father updated with the names and addresses of the child’s treating doctors;
(b)Inform the Father in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“special medical consultant”) in relation to the child; and
(c)Ensure that the Father is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the receipt of the report.
14.Both the Father and Maternal Grandmother shall be entitled to:
(a)Attend any appointments with any treating doctor or specialist medical consultant relating to the child (however such attendance shall be at the discretion of the treating doctor or specialist medical consultant); and
(b)Discuss the child’s condition with such treating doctor or specialist medical consultant.
15.The Father shall ensure that the Maternal Grandmother is notified as soon as practicable if, while in his care:
(a)The child is admitted to hospital;
(b)The child is involved in a medical emergency; and
(c)Should the child be required to take medication when he returns to the Maternal Grandmother’s care, the Father shall advise the Maternal Grandmother of the details of the medication required to be taken and shall provide the Maternal Grandmother with sufficient medication to cover the first 72 hours.
16.The Maternal Grandmother shall ensure that the Father is notified as soon as practicable if, while in her care:
(a)The child is admitted to hospital;
(b)The child is involved in a medical emergency; and
(c)Should the child be required to take medication when he transitions to the Father’s care, the Maternal Grandmother shall advise the Father of the details of the medication required to be taken and shall provide the Father with sufficient medication to cover the first 72 hours.
Schooling and extracurricular activities
17.These Orders authorise any school which the child attends from time to time to provide the Father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the Father in relation to the child.
18.If the child is participating in a special event with school or an extra-curricular activity including but not limited to a concert, performance or competition both the Father and the Maternal Grandmother are permitted to attend all such events as normally attended by parents/carers.
19.Should the Maternal Grandmother enrol the child in extra-curricular activities that require participation on weekends the commitment to the extracurricular activity shall not prevent the Father’s time from occurring.
Communication between parties
20.Unless otherwise agreed the Father and the Maternal Grandmother shall register to use a parenting app (with the intention that it be the Divitto app) and thereafter communicate with one another by the parenting app or, in case of an emergency, by text message and shall ensure that all communication between them is polite and child focused.
Contact details
21.The Maternal Grandmother and the Father shall notify each other of any change to their telephone contact numbers and email address, such notification to be made in writing and within 24 hours of any change.
Travel
22.Each the Father and the Maternal Grandmother shall consent to the other party travelling overseas with the child provided that:
(a)The child is not to travel to any countries marked as “reconsider your need to travel” or “do not travel” on the Australian Department of Foreign Affairs “Smart Traveller” website, or any countries that are not party to the Hague Convention;
(b)The party who is to travel overseas with the child on any given occasion will give the other party six (6) weeks’ written notice of the proposed travel, including:
(i)Proposed departure and return dates;
(ii)Proof of travel insurance with medical and medivac cover for the child and the travelling party;
(iii)Itinerary of the proposed travel and accommodation overseas;
(iv)The address and telephone number of the premises where the child will be staying during the trip; and
(v)A telephone number, “WhatsApp” number or other internet-based communication service details for contact with the child.
(c)So far as practical, the occasions on which either party takes the child on an overseas holiday is to coincide with normal school holidays, and during that party’s time with the child.
(d)The party who is to travel overseas with the child on any given occasion will provide the other party with copies of return airline tickets not later than 30 days prior to the proposed departure date.
(e)Makeup time will be provided to the Father should he have missed time with the child due to the overseas travel of the child with the Maternal Grandmother.
23.That the child is permitted to travel internationally for holidays of up to 3 weeks duration accompanied by either the Maternal Grandmother or the Father.
24.That the Father and Maternal Grandmother shall do all such things necessary to cause an Australian Passport to be issued to the child, including completing and signing any application or other documents within fourteen (14) days of a request to do so from the other party.
25.That in the event either party fails to comply with Order 24 above, pursuant to s 11 of the Australian Passports Act 2005 (Cth), either party shall be at liberty to apply for, or renew a Passport for the child, and such Passport shall be issued to that party notwithstanding that the other party does not consent.
26.The cost of the child’s passport or renewal shall be borne by the party requiring the passport for the purpose of that party’s overseas travel.
27.Except as provided for in these Orders, the Maternal Grandmother shall retain the child’s passport.
28.The Maternal Grandmother shall provide the Father with the child’s passports no later than 21 days prior to the Father travelling with the child.
29.The Father shall return the child’s passport to the Maternal Grandmother upon the child’s return to Australia.
30.The Father shall be entitled to retain a photocopy of the child’s passport for the purposes of booking travel and insurance.
Restraints
31.Both parties are restrained from:
(a)Questioning the child about the other party or events in the other party’s home or permitting any other person to do so;
(b)Criticising or making derogatory statements about the other party, the other party’s parenting, the other party’s partner or their family in the presence or hearing of the child or permitting others to do so;
(c)Posting any comments (or allowing any to remain) about the other party, their extended family or the other party’s partner on any social media platform, or asking or encouraging any third party to do so;
(d)Questioning the child about his views regarding who he wants to live with;
(e)Encouraging the child to spend less time with the other party or asking or encouraging anyone else to try to influence the child’s view about spending time with the other party; and
(f)Being under the influence of any illicit substances whilst the child is in their care.
32.The Maternal Grandmother is restrained from leaving the child in the sole care of Mr D.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for final parenting orders for X who was born in 2017.
X’s parents are Mr Acheson, the applicant father (“the father”) and Ms E who died in 2022. These proceedings have been on foot since November 2019.
The respondent to the application is X’s maternal grandmother, Ms Begbie (“the maternal grandmother”), with whom X lives. Ms Begbie was joined to these proceedings in May 2020.
At the hearing the maternal grandmother sought orders that X live with her; while the father originally sought orders that X live with him. He was supported in his application by his parents with whom he lives.
X has an Independent Children’s Lawyer (“ICL”).
The parties endeavoured to resolve the matter without the need for a judicial determination but those efforts were not successful and so the matter came before the Court for final hearing.
At the commencement of that hearing I was being asked to make orders about parental responsibility, with whom X would live and the time X would spend with the party with whom he did not live. On the final day of the hearing, following completion of the evidence of the single expert, the issues were narrowed significantly such that the Father adopted the orders sought by the ICL.
The parties remained at issue about minor aspects of orders but the central dispute which required adjudication related to an injunction which was sought by the ICL and applicant father and opposed by the respondent maternal grandmother.
Where there is substantial agreement to the content and form of the orders to be made it is not necessary for me to have regard to the evidence in the same detail that would be required had the matter remained fully contested. I must nonetheless be independently satisfied that the orders which are to be made operate in the best interests of the child and accordingly I will have regard to the relevant considerations under the Family LawAct1975 (Cth) (“the Act”).
BACKGROUND
X was born in 2017 in City C, moving to Region B with his parents soon thereafter.
In 2017 X first came to the attention of child welfare authorities and the following month a safety plan was developed for him. That safety plan was reviewed in late 2017 and early 2018.
On 1 April 2018 the parents separated.
In mid-2018 the mother, the maternal grandmother and X left Region B. The following month, the mother, maternal grandmother and the maternal grandmother’s child J, born 2009, moved to Town K in New South Wales.
In March 2019 the father spent time with X in the presence of the mother.
In September 2019 the mother travelled to City C with the father and X.
On the following day the father sent the maternal grandmother a text message indicating he had obtained a recovery order in respect of X. It is not controversial that he had not actually obtained a recovery order.
On 12 November 2019 the father filed his Initiating Application, seeking that he have sole parental responsibility and X live with him.
On 21 November 2019 the Court made orders for X to live with the mother provided she lived with the maternal grandmother and spend unsupervised day time with the father.
On 1 May 2020, the court made orders for X to live with the maternal grandmother and spend time with the mother as agreed between the mother and the maternal grandmother and spend one weekend per month with the father provided he was living with the paternal grandparents and his time was supervised by them.
On 27 June 2020 X spent his first period of overnight time with the father.
On 4 May 2021 orders were made by consent varying the father’s time to provide that X spend time with him on the last Saturday of each calendar month from 10.00 am until 5.00 pm the following Monday.
In 2021 X was diagnosed with attention deficit hyperactivity disorder (“ADHD”).
In early 2022 the father facilitated the mother spending time with X contrary to the maternal grandmother’s request. That request was made the previous day when an incident occurred at the childcare centre with the mother which resulted in the police being called and the centre going into lockdown.
In March 2022 the father came to Region F to spend time with X but the maternal grandmother did not permit the time to occur because of the father’s facilitation of the mother’s time with X earlier in 2022.
In 2022, the maternal grandmother found the mother deceased at her own residence at approximately 5.00 pm. X was present and had been present when his mother died.
Following the mother’s death the father and paternal grandmother travelled to Region F. They remained in the area for two weeks and spent time with X on most afternoons and for two weekends.
On 9 November 2022, the maternal grandmother sent an invitation to the father about X’s preschool graduation, which was scheduled for December. The father did not respond to the maternal grandmother and did not attend.
In January 2023 X spent five nights with the father.
In February 2023 X commenced school at L School.
In 2023 X was diagnosed with autism spectrum disorder (“ASD”).
Between 7 and 10 April 2023 X spent time with the father.
The father relied on:
(a)Case Outline filed 14 July 2023;
(b)Minute of Orders Sought (Exhibit 1), replaced with an Amended Minute of Orders (Exhibit 6);
(c)Affidavit of Mr Acheson filed 5 July 2023;
(d)Affidavit of Ms Acheson filed 14 July 2023;
(e)Affidavit of Mr M Acheson filed 14 July 2023;
(f)Notice of Risk filed 12 November 2019; and
(g)Report of Court Child Expert dated 16 May 2023.
The maternal grandmother relied on:
(a)Case Outline filed 14 July 2023;
(b)Amended Response to Initiating Application filed 4 July 2023;
(c)Affidavit of Ms Begbie filed 5 July 2023;
(d)Affidavit of Mr N filed 5 July 2023;
(e)Affidavit of Ms E filed 22 January 2020;
(f)Affidavit of Ms E filed 30 April 2020;
(g)Affidavit of Ms E filed 4 November 2020; and
(h)Report of Court Child Expert dated 16 May 2023.
The ICL relied on:
(a)Case Outline filed 13 July 2023; and
(b)Report of Court Child Expert dated 16 May 2023.
CONSIDERATION
It is not controversial that X has lived with the maternal grandmother for most of his young life. From time to time his mother was also a member of that household. At all times his maternal aunt has been a member of that household.
The Court Child Expert records that neither the father nor the maternal grandmother raised any concerns for X’s safety or wellbeing in the other household. However, at trial the father indicated that from his perspective the risks to X posed by the maternal grandmother were threefold:
(1)The maternal grandmother had facilitated X’s time with the mother which placed X at risk including on the day of the mother’s death;
(2)The maternal grandmother had allowed X to come into contact with Mr D (her former partner); and
(3)The maternal grandmother had unnecessarily restricted X’s time with the father.
The first asserted risk above is not a risk factor that exists in the future although the father submitted that the maternal grandmother’s past conduct may reflect on her protective capacity. The second asserted risk is addressed in the reasons that follow. The third asserted risk above is not, for reasons that follow, reflective of the evidence before me.
The issues which arose for determination in this case are as follows:
(a)Should decision making responsibility for major long term issues be held by one party or the other or shared (either equally or in some other manner)?
(b)What is the nature of the relationship between X and his father?
(c)What is the nature of the relationship between X and the maternal grandmother?
(d)How can orders be crafted to best promote a meaningful relationship between X and the father and between X and the maternal grandmother?
(e)What would be the impact on X’s of his living arrangements changing?
(f)Are there deficits in the parenting capacity of the maternal grandmother such as would place X at potential risk of harm? If so can these be ameliorated?
(g)Are there deficits in the parenting capacity of the father such as would place X at potential risk of harm? If so can these be ameliorated?
(h)Should X have a passport?
Parental responsibility
Both the father (at the commencement of the hearing) and maternal grandmother sought an order for sole parental responsibility (albeit the form of order sought by the maternal grandmother followed the proposal of the Court Child Expert discussed below).
The ICL at the commencement of the hearing submitted that the presumption would be rebutted. In the ICL’s proposed Minute of Orders (Exhibit 26) at the conclusion of the hearing it was sought that the parties have equal shared parental responsibility and orders as to how the exercise of parental responsibility would be negotiated.
The father told the Court Child Expert that the maternal grandmother “has not involved him in any decision-making in relation to where [X] was to attend school, nor provided him with any information about [X’s] progress at school and/or medical and other health issues”.
The father’s blanket statement that the maternal grandmother has not involved him is inaccurate. In cross-examination the father accepted that:
(a)The maternal grandmother had provided X’s ASD checklists to the father;
(b)The maternal grandmother had told the father about X testing positive to COVID-19;
(c)The maternal grandmother had sent the father information about X’s Halloween celebrations;
(d)The maternal grandmother had sent the father information about at least one of X’s paediatrician appointments;
(e)The maternal grandmother had sent the father material about the cognitive assessment of X undertaken through the school counsellor;
(f)The maternal grandmother had sent the father details of the medical centre attended by X;
(g)The maternal grandmother had sent the father screenshots of X’s homework charts;
(h)The maternal grandmother had sent the father details in respect of photo day;
(i)The maternal grandmother had sent the father photos of awards, which X had recently achieved, including his preschool graduation certificate;
(j)The maternal grandmother had sent the father details of the fact that X been learning CPR; and
(k)The maternal grandmother had sent the father examples of X’s handwriting.
An order for parental responsibility is an order which permits the holder to make major long terms decisions – they include such matters as education, religion, major medical treatment, relocation: the Act s 4. The presumption in favour of equal shared parental responsibility does not apply here.
One of the key factors to be considered in determining whether or not an order for equal shared parental responsibility will operate in the best interests of X is the question of how functional the communication between the father and the maternal grandmother is, and whether or not X can be shielded from any conflict which may arise from equal shared parental responsibility. In the same vein, it is necessary to make a finding as to whether or not conflict or lack of communication may operate to X’s disadvantage in delaying important decisions for him.
As the Court Child Expert stated: “there is a significant level of distrust between the father and maternal grandmother”.
It is important for X that the father be engaged in important decisions, relating to his long-term care.
The Court Child Expert expressed the view that X would benefit from an order for equal shared parental responsibility, but in recognition of the potential for an impasse, the Court Child Expert suggested that if they were unable to reach an agreement within a specified period of time, the maternal grandmother be able to make the decision.
I consider that there is some value to X in having his only surviving parent being given decision-making responsibility for major long-term issues.
Both the father and the maternal grandmother have indicated a preparedness to use a ‘Parenting App’ that facilitates productive communication.
On balance, notwithstanding the distrust and communication difficulties, the advantages to X of having his father involved in decisions and the maternal grandmother’s track record of trying to involve the father in decisions have persuaded me that it is appropriate to make an order for equal shared parental responsibility. These factors, coupled with an order that the parties attend alternative dispute resolution upon reaching an impasse in relation to a major long term issue for X, give comfort that such decisions ought be able to be made jointly by the father and maternal grandmother. While I understand the intention of the Court Child Expert in suggesting that the maternal grandmother effectively be permitted to exercise the decision making power when agreement is not possible, this is effectively a sole parental responsibility order by stealth and so the order which I will make will require the parties to reach a joint decision.
Meaningful relationship
One of the most significant factors in this case is the importance to X of a meaningful relationship with his father. This is perhaps more significant because of the death of X’s mother. What is meant by the term “meaningful” has been the subject of comment and the resulting case law has said that it is to be given it plain meaning: see, eg, Mazorski v Albright (2007) 37 Fam LR 518 at [26]. The Court Child Expert recognised that in adolescence X may recognise his family structure as different from that of his peers and it would not be unusual if he sought, at that stage, to live with his father.
X’s views
X identifies his father (and extended paternal family) as family. The observations conducted by the Court Child Expert suggest that the relationship is a warm one. In the context of this case, and in reliance upon the expert opinion, I am able to conclude that the relationship presently has value to parent and child. If the father exercises the time available to him then I would anticipate that the relationship would continue to have meaning to X.
X is a young child who has experienced significant changes during his short life. The most significant of these is likely to be the death of his mother. Because of X’s age his views are not a significant factor in this case but they remain relevant because, as the Court Child Expert noted: they “provide significant insight into his emotional world, in terms of his bonds, with the adults and others in each family”.
What is the nature of the relationship between X and his father?
X was very young when his parents separated and his father was working during those months such that his direct involvement in X’s care was limited. After separation the parties are at issue about why the father and X did not spend time together but they are not at issue that he did not spend time with X for a period of nearly one year.
The Court Child Expert noted:
70. …Unfortunately, [X’s] time with his father has only been able to occur on one occasion each month, therefore it could be hypothesised that, despite [X’s] bond with his father being positive it is unlikely to yet be experienced by [X] as being as emotionally secure as his bond to his maternal grandmother…
What is the nature of the relationship between X and the maternal grandmother?
It is useful to set out the observations of the Court Child Expert:
52. Given the parenting history, it would seem that [X’s] primary emotional attachment would be to his maternal grandmother who, based on the narrative provided by both his father and maternal grandmother, has been a daily presence in [X’s] life since he was a few weeks old.
53.During one of [X’s] first critical development phases (0-3 years), his father was to a large extent not present…
When the Court Child Expert met with X, X identified his maternal grandmother as the person to whom he could talk if he were worried.
Effect of change on X
Ultimately, the father did not pursue his application that X live with him. The evidence established that this would have presented a very significant change for X. He would be moved from living with his primary attachment figure and his aunt to a new household. There is no suggestion that in the father’s home X would not receive love, affection and appropriate care. Accordingly, the change with which I was concerned was the potential psychological impact on X. The Court Child Expert said:
70.…Any disruption to [X’s] bond with his maternal grandmother would be likely to result in a range of negative outcomes for [X], such as a regression in his overall development, emotional dysregulation and it would also impact his current seemingly positive cognitive and social development. He could become clingy and anxious and thus have difficulty in adjusting to the range of changes which would be imposed on him by moving from the care of his maternal grandmother to that of his father.
That is powerful evidence, undisturbed in cross-examination, about the child’s wellbeing. I did not doubt the father’s intention to obtain professional help nor did I doubt his family’s willingness to do all within their power to address the child’s needs as they present. However, I remained concerned at the conclusion of the evidence that the actions which may be taken may not be equal to ameliorating the risk. I formed that view for a number of reasons. The first one was because the Court Child Expert in her report date 16 May 2023 had indicated the necessity for the father to make adjustments including taking leave from his employment to transition X into his care yet the father’s evidence filed after release of this report gave no indication of his intention or preparedness to do this. The second reason was that the father did not seem to address the child’s fear at being separated from his primary carer. The third reason was that the father had been unable to avail himself of the time available to him under the court orders during 2023 and this failure (while explained by him) did not provide me with confidence that he would be able to facilitate the level of face-to-face contact between X and the maternal grandmother that would be necessary to address X’s grief from being separated from her. The geographical distance between the two households has created practical difficulties to which there are no easy solutions. Finally, X has lost his mother with whom he has spent time on a more frequent (albeit not regular) basis and his age and vulnerability require that the orders which I make promote his stability in particular his emotional stability.
As the Court Child Expert observed:
73.…Any significant change to the current parenting arrangements would be likely to result in [X], experiencing significant emotional dysregulation, which would be likely to impact all aspects of his life; cognitively, emotionally, socially and behaviourally.
I am confident that the maternal grandmother understands and appreciates the value to X of both a relationship with and time with his father. The maternal grandmother reached out to the father after the separation of the mother and father to facilitate time. At the hearing the maternal grandmother said she could see the value in X spending time with the father each weekend if he was able.
I note that the orders which are proposed will not impact on X’s right to enjoy his culture.
Having reviewed, in brief, the relevant considerations under s 60CC of the Act I am satisfied that the resulting orders are orders which will operate in X’s best interests.
I turn now to consider some of the minor issues of drafting where the maternal grandmother did not join with the application of the ICL (and father), before turning to the remaining significant issue.
Additional issues
Changeover
X attends school in Region F. Where time is to be exercised in Region F the father should collect X from school and return him to school. This gives X the opportunity for his father to see his school, his friends and his teachers which is to his benefit.
On weekends or holidays where X’s time is to be exercised outside Region F then, at the commencement of time, the maternal grandmother should drive X to Suburb P to meet the father who is likely to have driven from the City C area. The distance to be travelled by X is the same but the parties share the driving.
At the conclusion of X’s time on occasions outside Region F the father should return X to Suburb H McDonalds rather than meeting in Suburb P. Again the distance for X is the same but it will be important for X to be closer to home at the end of changeover ahead of the school week. It also gives the father longer with X (albeit in the car). Finally, it recognises that the maternal grandmother is also responsible for the care of another child (J) and a round trip to Suburb P would take her away from home for a lengthy period.
The above arrangements seek to balance the practical issues for X’s carers.
Transport
X is six years old and diagnosed with ADHD in 2021 and in 2023 diagnosed as being on the Autism Spectrum. The maternal grandmother gave evidence that from time to time X can exhibit challenging behaviour in the car, including throwing his iPad, and that the presence of a second person on long car drives assists in addressing this difficulty. This evidence supports the making of an order to assist X with travel and I will make the order sought by the maternal grandmother in that regard.
Telephone calls
The ICL’s minute referred to telephone communication on a Wednesday. The maternal grandmother asked that it be a different day to avoid a clash with sports. I am confident that it is better to avoid difficulties by changing the day for telephone communication.
Passport
The father initially opposed the maternal grandmother seeking an order that the parties do all necessary acts and things to cause a passport to be issued for X. The father relied on the fact that the maternal grandmother had lived overseas with X’s mother. The father in cross‑examination stated that he himself has never been issued a passport and was unable to see any reason as to why it should occur. He denied being able to see any developmental or educational advantages that having a passport may allow and believed there was a possibility X being issued a passport is a means of the maternal grandmother eradicating the father’s time with X.
In adopting the ICL’s minute the father came to accept an order for X to be issued a passport.
The maternal grandmother gave evidence that she wants X to have a passport for the purpose of family holidays. She said she and J have enjoyed holidays approximately every six months but have recently been limited to domestic holidays absent X’s passport (and consent to travel). It is beneficial that the controversy about X being issued a passport has been quashed. I accept that X will benefit from attending holidays with the maternal grandmother and J including international holidays which bring with them the benefit of experiencing different cultures and experiences.
Injunction
An issue arose during the hearing. The father (and his parents who were witnesses) appeared to have been operating on the mistaken assumption that the father’s final relief included an injunction restraining the maternal grandmother from bringing X into contact with Mr D, her former partner and stepfather of the mother.
After the maternal grandmother had given evidence and had been cross-examined, counsel for the father sought to amend her client’s application to seek an injunction. That application was opposed by counsel for the maternal grandmother on the basis that his client had closed her case.
I determined that leave should be granted to the father to amend his application and indicated that the prejudice could be cured if I permitted the maternal grandmother to call a case in reply. Ultimately, the maternal grandmother elected not to call a case in reply.
It is necessary to turn to the evidence which was before the Court in support of the making of the injunction.
The ICL’s Minute of Order – with which the father agreed – sought in Order 42: “[t]hat the maternal grandmother is restrained from bringing the child into contact with [Mr D]”.
The evidence in support of that application was contained in Exhibits 8-12 and 16 which were tendered into evidence in the father’s case. In broad terms the father contends that Mr D is a risk to X because of facts and circumstances reported by X’s mother to them, to the police and to other parties.
The allegations which have been made are:
(a)Mr D engaged in conduct which was described as a “sexually touching offence” directed at his adult step daughter, X’s mother in 2020;
(b)Mr D hit his stepdaughter when she was 16; and
(c)Mr D has not intervened when others have made sexually inappropriate comments to J.
A document produced on subpoena by the Region F local health district recorded:
[The mother] stated that the Xmas period was difficult and that she had to navigate not being in the presence of her step father following his previous sexual advances toward her. [The mother] discussed that once disclosing the sexual advances that her [step] father had done, her mother was immediately supportive stating that she planned to cease all communication with him. [The mother] stated that her mother trusting her and believing what had occurred was empowering for her and is assisting in her recovery for her to feel safe within her mother[‘s] home…
Another record from the same health service contains the following:
…[Ms E] reported that she went to [City Q] to collect her new car from her step farther [sic] and her step father was sexually inappropriate in behaviour. [The mother] stated that [s]he stated to him that this was inappropriate and has reported this to her mother whom has supported her…
In 2020 there is a Social Work Progress Note produced on subpoena by the Region F local health district which relates to presentation by X’s mother. The record reads that:
…[The mother] reported that her step father ([Mr D]) had invited her to come to his place as he had a car for her. [The mother] reported that [Mr D] was very friendly when he arrived/wanting to take her out to dinner (he had been her step father since she was 6 years old). [The mother] reported she declined the invitation and they stayed home and had a couple of drinks with a meal. [The mother] reported [Mr D] tried to kiss her and encourage her to sleep with him. Discussed [Mr D’s] [sic] inappropriate behaviour. [The mother] wasn’t to blame/he had enticed [the mother] with the promise of a car. [The mother] reported she felt guilty because she had previously accused him of inappropriate behaviour and [Mr D] and her mother had convinced her she had imagined it. [The mother] reported they were all getting along and she was starting to think that she may have misread the signs. [The mother] reported she told [Mr D] she was tired and she went to bed to avoid him. [The mother] reported she struggled with the dilemma of telling her mother (their relationship had only recently been restored) or keeping the secret [Mr D] asked her to hold. [The mother] reported she told her mother and she was very supportive.
A further record from the Region F local health district in respect of admission which commenced early 2021 contains the following: “court case of son’s custody coming up, feeling ashamed due to relapse and use of opioids and her step father recently tried to sexually molest her […]”.
In 2021 J is said, according to Department of Communities and Justice records, to have reported finding her sister’s diary. The record reads:
[J] has found her adult sister’s journal entries that in her diary, she read that [Mr D] had gotten [the mother] drunk, had kissed her and then tried to move her to his bed. When [J] asked [the mother] if this was true, she stated it was.
The maternal grandmother took her daughter J to the police after this and a report was made.
In early 2022 the police made a record of a report described as “Historical Sexual Touching Offence” from 2020 that occurred in Region R. The record says:
VIC [the mother] is adult. POI is [the mother]’s step father. The author has been in contact with [the mother] since [late] 2021. Mentally she has not been in a place to be able to speak further about the incident until today. She has been admitted to hospital for mental health issues relating to this incident. She attended the station with a support person and was able to stay for about 2 hours before needing a break. A statement has been started with the [the mother] and at this stage is at five pages.
The entry in the COPS record was amended the following month and says:
…Basic outline of incident: [In] 2020 the [mother] lived in the [Suburb H] area and the [step father] lived in [Region R]. On the evening of […] 2020 the [mother] attended the [step father’s] house to pick up a car she had bought from him. It was her intention to stay the night and drive home the next day. The [step father] picked her up from the train station and on the way home he bought the [mother] a bottle of wine and pizza for dinner. They returned to the house and the [step father] gave the [mother] a tour of the house. When in his room, he lit candles and said words to the effect, “How nice does my room look with the bed andthe [sic] candles.” “How nice would it be to sleep in here?” “It’s cold we could sleep together to keep warm.” The [mother] laughed off the comments and changed the subject. They moved to the lounge room and played Uno. Over the next few hours the [step father] continued to drink beer and became increasingly sexual in his comments. After winning a round the [step father] lent in and kissed the [mother]. The [step father] kept asking the [mother] about her sexuality and experiences in life and if she watched stepdad/stepdaughter porn. This made the [mother] feel extremely uncomfortable, she tried to laugh it off and change the subject again. The [step father] continued the sexual comments and said words to the effect of, “I wonder what your mouth could do?” “I wonder how your tongue would feel.” [Step father] stopped playing cards and tried to show him videos on her phone of her friends singing. The [step father] asked her about her childhood and told her that her that she had been turning him on since she was 10 years old. By this time it was about 2am. To try and get out of the situation, the [mother] told the [step father] she was tired and wanted to go to bed. The [mother] went to the bathroom and the [step father] walked straight in while she was sitting on the toilet. She yelled at him to get out. The [step father] got something from the vanity, looked the [mother] up and down, winked and walked out. The [mother] told the [step father] she was going to sleep in her half sister’s room. The [step father] grabbed the [mother] by the arms and started dragging her towards his bedroom as she struggled against him. The [step father] grabbed her left breast and put his other hand between her legs. The [mother] kept telling the [step father] she was sleeping inher [sic] half sister’s room and to leave her alone. The [step father] grabbed the [mother] again and dragged her into his bedroom. The [step father] said words to the effect, “I want to sleep with you in my bed naked, because it’s cold and we can keep each other warm.” The [mother] kept telling him no and that she wanted to sleep in her half sister’s room by herself. The [step father] was holding her so tight it was difficult to get away. The [step father] pulled the [mother] onto his bed, touching her breast again and between her legs. She eventually kicked him off and got to the bedroom door. The [mother] turned to the [step father] and said, “I’m sleeping in [redacted]’s (half sister) room and you are not welcome in her bed. She went into [redacted]’s room and slammed the door. The [mother] cried for about 10 minutes …when she got home she took her mother into her room and started crying and begged her not to leave her alone with the [step father]. She refused to tell her mother anything else. The [mother]’s mother kept asking what had happened. About a week later the [mother] told her mother that the [step father] kissed her and asked to sleep with her. She did not elaborate further. The [mother]’s mother was furious with the [step father] but also blamed the [mother] saying, “You should have known better.” After about a week she apologised to the [mother]. Since that time the [mother] has been struggling with her mental health and has not been in a state to talk to police about it until now. She is extremely emotional when discussing the incident with the author and broke down several times.
In opposing the application for the injunction the respondent contended that the mother had provided inconsistent accounts, had suffered serious mental health challenges (which from time to time including delusionary aspects, for example talking to an imaginary person in a cupboard) and pointed to inconsistencies in the records. The inconsistencies were identified as the record that the mother travelled to City Q (as opposed to Region R) to collect the car or the fact that the mother’s sister does not allegedly have a bedroom in the step father’s home.
Providing a history to Region F local health district in 2018 the records note “[the mother] denied any specific physical assault except when her stepfather when she was 16 hit her in the face which got her mother to throw him out. No specific sexual assaults”.
During her admission from 2020 the records include:
Flash backs from childhood trauma [Emotional & Physical abuse allegedly perpetrated by her mother and step father throughout her childhood into adulthood residing in the home. With the last incidence of her mother slapping her across the face occurring prior to the birth of her son 2 years ago], Previous DV relationship biological sons father. [The mother] stated she was subjected to multiple sexual assaults during this relationship.
The mother filed an affidavit on 4 November 2020 which was relied on by the maternal grandmother in these proceedings. Attached to that affidavit were copies of her counselling notes. There is a note for February 2020. It reads: “[s]ome problems with step dad [Mr D] ([J’s] father) […]. Clearing conversation and now their relationship is better. She felt she needed to make an effort for [J]”.
There is considerable tension. The father relied upon what the mother said about Mr D but denied what the mother said about him. The maternal grandmother pointed to the mother’s changing narrative as indicative of unreliability. The father had to agree (at least to the extent it involved him).
The version of the assault provided by the maternal grandmother to police was not first-hand since there was no suggestion she was present. It is not possible to know whether it represents a version provided by the mother to the maternal grandmother or whether it was an attempt by the maternal grandmother to minimise what occurred. A COPS record dated 2021 reads:
[The maternal grandmother] clarified that on the night of the incident [the mother] visited [redacted]. [Redacted] drove them both to buy alcohol. They both drank to excess and were extremely intoxicated. They were both on the lounge when [redacted] lunged at [the mother] and tried to force his tongue down her throat. She pushed him off and went to bed. Nothing further happened. They both got up in the morning and acted as if nothing happened. [Redacted] visits [the mother]’s house after school some days. This is where she read the diary. Since reading the diary [redacted] wants nothing to do with her father [redacted] and has refused to speak to him. [The maternal grandmother] has spoken to [the mother] about the incident and she confirmed the above version. [The mother] told [the maternal grandmother] that nothing else happened before or since the incident … [The mother] was spoken to and confirmed the above version. She did not want to provide a statement or want anything to happen to [redacted] who she described as her “Ex adopted father” [the mother] was more concerned that her younger sister found out … [The mother] is speaking with a Psychologist about the incident and a number of other things in her life.
Apart from the allegations which relate to a sexual assault, the father (and his family) are concerned by allegations that Mr D hit the mother when she was 16 and may not have acted protectively in respect of J when other men made inappropriate comments of a sexual nature about her.
The maternal grandmother and Mr D do not live together. They are no longer in a relationship. Mr D is not a member of the maternal grandmother’s household. Mr D is J’s father.
It was evident that the maternal grandmother retains a workable relationship with Mr D such that she was able to rely on him to care for J (and X) when her original plan for child care fell through during the trial. It is plain that he has cared for X on previous occasions.
The ICL and the father ask that I make an order which would have the effect of ensuring that the maternal grandmother not bring X into contact with Mr D. I am concerned that he appears to be a source of practical support to the maternal grandmother but I accept that if the evidence establishes risk then that practical concern must give to a more cautious approach.
Mr D did not give evidence. That decision was understandable at the commencement of the trial when no orders were sought restraining the maternal grandmother from bringing X into contact with him but less understandable after I indicated I would permit a case in reply.
In approaching the question of an injunction I have had regard to principles restated in Hartley & Hartley [2021] FedCFamC1F 178 per McClelland DCJ at [11]-[14]:
11.The Court is empowered to grant injunctive relief in the nature of that sought by the parties pursuant to s 68B of the Act which relevantly empowers the Court to ‘grant such injunction as it considers appropriate for the welfare of the child’ including, pursuant to s 68B(2), by interlocutory order ‘in any case in which it appears to the court to be just or convenient to do so’
12.At the outset it should be noted that the granting of an injunction restraining the exercise of what otherwise would be a person’s inherent rights and freedoms is a serious matter. The breach of such injunction potentially exposes a person to an action for contempt of Court. As noted by the plurality in Cardile v LED Builders Pty Ltd [1999] HCA 18 (‘Cardile’) at [31] :
…that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so – does not confer an unlimited power to grant injunctive relief. Regard must still be had to the existence of a legal or equitable right which the injunction protects against invasion or threatened invasion, or other unconscientious conduct or exercise of legal or equitable rights.
(references omitted)
13.In considering the nature of the injunctive relief, it is important to be aware of the general principle that ‘equity intervenes to the minimum extent necessary to do justice’.
14.In the context of family law, in Sieling and Sieling (1979) FLC 90-627 at 78 264, the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest.
(Footnotes omitted)
I am being asked to find – on the basis of evidence which is contested – not that Mr D behaved in the manner alleged but rather whether there is an unacceptable risk to X in the future if the injunction is not made: M v M (1988) 166 CLR 69; Isles v Nelissen (2022) 65 Fam LR 288.
I accept that the information about what is said to have occurred in 2020 and J’s report that her father did not act protectively raise issues about the appropriateness of Mr D as a carer for X, perhaps not because that conduct would place X at physical risk, but because it raises issues (if accepted) about Mr D’s judgment as a carer or person in loco parentis.
Counsel for the maternal grandmother submitted that the Court could place trust in the maternal grandmother based on her history of care for X and be confident she would act protectively. I accept that the maternal grandmother is likely, based on the evidence, to act protectively. Her action in having J make a police report supports this position.
However, the mother’s account cannot be lightly dismissed as the natural product of her illness. It is appropriate having regard to the single expert assessment of risk to act cautiously in this case.
An added reason for granting an injunction is that it will help the father to develop trust in the maternal grandmother as carer for his child and hopefully assist in building a cooperative relationship.
I am not satisfied that it is necessary to make the injunction as broadly as was sought by the ICL and father. Mr D should not have the sole care of X but he is J’s father and so it is likely that family events will see X and Mr D present at the same time (if an injunction does not prevent same).
I raised a less onerous injunction with the parties. Counsel for the father submitted that the presence of the maternal grandmother did not prevent X’s mother from being struck by Mr D. That may be so – but X will be in a very different position. Mr D was the step father of a child who was experiencing very challenging mental health issues. This is not said in any way to explain his conduct but rather to differentiate the potential risk which might flow from X and Mr D encountering one another compared to a situation where Mr D was really acting in loco parentis.
I am permitted to consider any hardship to the maternal grandmother, who would be bound by the terms of the injunction, but this consideration cannot displace the focus on the welfare of X. I accept that there may well be some hardship since the maternal grandmother has had the assistance of Mr D in providing child care however on balance I have reached the conclusion that it is more important, having regard to X’s interests considered broadly, to make an injunction.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 22 August 2023
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