Bedford and Bedford
[2017] FCCA 1805
•14 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEDFORD & BEDFORD | [2017] FCCA 1805 |
| Catchwords: FAMILY LAW – Parenting application by maternal grandfather – where mother and maternal grandfather estranged – where not in child’s best interests for any time with her grandfather. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Church v S Overton & Anor (2008) FAMCA 952 MRR v GR [2010] HCA 4 |
| Applicant: | MR BEDFORD |
| Respondent: | MS BEDFORD |
| File Number: | WOC 719 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 5 and 7 December 2016, 3 April 2017 and 19 July 2017 |
| Date of Last Submission: | 19 July 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 14 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Robertson Lawyers |
| The Respondent was self-represented and appeared by telephone. |
| Counsel for the Independent Children's Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
The Mother have sole parental responsibility for the child X, born (omitted) 2011 (‘the child’).
The child live with the Mother.
The child spend no time with the Maternal Grandfather.
The Mother shall provide to the Maternal Grandfather an address to which he can send letters, gifts and cards to the child on the following occasions:
(a)Her birthday;
(b)Christmas; and
(c)Easter.
Upon receipt of the communications outlined in Order 4 above, the Mother shall ensure that those gifts, cards and letters are given to the child and read to her by the Mother, with the Mother to explain that they come from her maternal grandfather.
IT IS NOTED that publication of this judgment under the pseudonym Bedford & Bedford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 719 of 2013
| MR BEDFORD |
Applicant
And
| MS BEDFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about a child, X, born (omitted) 2011. X is currently five years old, but will turn six within a matter of months after the publication of these Reasons for Judgment. The Application was commenced by her Maternal Grandfather, who is 74 years old. He wants to spend time with his granddaughter. The Respondent is X's Mother, who strenuously opposes any contact or communication between X and her Grandfather. These Reasons for Judgment explain why the Court has concluded that it is indeed in X's best interests that there is no contact or communication with her Grandfather. This is a very sad case and one that was difficult to decide.
Background
When X was born in (omitted) 2011, she was living with her Mother and Father in (omitted) on the (omitted) of New South Wales. Later that year, however, her parents separated and the Mother and X moved back to (omitted) in New South Wales to live with the Maternal Grandparents. X's father has not had any involvement in her life, and whilst he was nominally a party in these proceedings, he played no role.
Before X was born, certain things are apparent from the evidence, mostly uncontentious, that provide important background to this case. The Maternal Grandfather, for example, started to suffer from depression as early as 1996 and commenced treatment from 2002. The relationship between the Maternal Grandfather, and the Maternal Grandmother, was a difficult one, and indeed, there are some allegations that their relationship was a violent one. It is not possible to make findings about this, however, particularly because the Maternal Grandmother was not called to give evidence in the Mother's case. There are admissions made by the Maternal Grandfather that do provide insight into the difficult, indeed perhaps dysfunctional, relationship that existed between the grandparents.
The Maternal Grandfather's depression became quite severe by about 2008 and included hospitalisation. There was, allegedly, a self‑harm attempt in 2008. The grandparents appeared to be leading separate lives during this period. Indeed, by about 2008, the impression formed from the totality of the evidence is that not only was the relationship between the grandparents dysfunctional, but the Mother's relationship with her parents deteriorated, which led to an extended number of years where they simply did not see her.
In any event, by early 2012, the Mother and X had moved in with the Maternal Grandparents in (omitted), following the breakdown of the Mother's relationship with X's father. The impression formed is that the Maternal Grandparents were, by this time, leading separate lives, albeit in the same home. Eventually the Maternal Grandfather moved out of the home itself to live in a shed in the backyard of the home.
It seems as if the Mother was also dealing with depression after 2012, as she was seeing a psychologist, Ms B, in (omitted), from about 2013. The Mother and her parents appear to have had a further falling out March 2013, and eventually the Mother and X moved to the (omitted), and then subsequently the (omitted) area of New South Wales. By May 2013, the Maternal Grandmother had also moved in with the Mother and X. Whilst the Mother appears to have reconciled her relationship with the Maternal Grandmother, the strong impression formed from the totality of the evidence before the Court is that the relationship between the Maternal Grandmother, and Maternal Grandfather, and the relationship between the Mother and the Maternal Grandfather was very much strained. This invariably affected X's relationship with her Grandfather. It is clear that in 2013, he was able to spend time with her, albeit under the Mother's supervision. This stopped, however, at the end of June 2013. X has not seen her Grandfather since then. The Grandfather alleges, and as it turns out, the Court is inclined to accept that the Mother made a number of statements to him about this time threatening that he would never see X again. It is clear that one of the issues that arose in 2014 was the Maternal Grandfather's mental health.
For some unexplained reason, the Maternal Grandfather commenced these proceedings in the Local Court at Nowra. This was surprising, given the nature of the application before the Court. It was not until the end of 2013, after the Mother's response had been filed, that the matter was transferred to this Court in Wollongong. During the course of 2014, the parties were ordered to attend a Child Dispute Conference, a Family Report was ordered and an Independent Children's Lawyer was appointed.
A brief mention was made above to X's father, Mr P. He was formally joined to these proceedings as the Second Respondent in July 2015 and filed a Response initially seeking that X spend time with him. As mentioned above, however, he did not pursue the matter further.
A Family Report was prepared by Family Consultant Ms L dated 16 August 2015. This was released the next day. Despite the recommendation that X spend no time with her Grandfather, he applied for, and the Court granted hearing dates commencing on 5 December 2016. In the meanwhile, the Father filed an Application in a Case seeking supervised time through Catholic Care at (omitted). Indeed, this order was made on 21 June 2016 but, for all practical purposes, it was not complied with.
The first day of the hearing was to be 5 December 2016. Mr Kassem, solicitor, appeared on behalf of the Mother. Mr Ladopoulus of Counsel appeared on behalf of Ms Temelkovska, the Independent Children's Lawyer. Ms Gillies of Counsel appeared on behalf of the Maternal Grandfather. On behalf of the Mother, an application was made to adjourn the hearing to the next day, as the Mother was suffering from a migraine. It was very apparent to the Court that Mr Kassem's instructions were limited and, indeed, he left the Court during the course of the afternoon, presumably because he held no instructions. In order to give the Mother every opportunity to participate in the proceedings, the matter was adjourned to Wednesday 7 December 2016. On that day, the Mother did not appear, once again. Ms Gillies, on behalf of the Maternal Grandfather, applied for the matter to proceed on an undefended basis. What became apparent, however, is that there was a concern on the Independent Children Lawyer's part as to the appropriateness of the orders sought by the Grandfather. By 7 December 2016, the Mother had caused to be forwarded to the Court medical certificates suggesting that she had been suffering from health concerns, including post‑traumatic stress disorder and migraines. The Court decided that the evidence should commence. On 7 December 2016, the applicant Maternal Grandfather gave his evidence and was cross‑examined by Counsel for the Independent Children's Lawyer. The Family Consultant, Ms L, gave her evidence and was examined by both Mr Ladopoulos and Ms Gillies. The Court ordered a transcript of the day's proceedings and directed that a copy be provided to the Mother so that she was aware of the proceedings, and could conduct a cross‑examination if she so desired. The matter was adjourned part heard to 3 April 2017.
On the adjourned date, the Mother attended, but only by telephone. She indicated that she did not feel capable of attending in person. No objection was taken to her participating in these proceedings by telephone. In any event, on 3 April 2017, the Mother cross‑examined the Maternal Grandfather. The Grandfather's treating psychiatrist, Dr P, gave evidence and was cross‑examined by the Mother. At the end of the day, the Mother gave her evidence‑in‑chief. The matter was adjourned part heard to 19 July 2017.
The matter resumed on 19 July 2017. Again, the Mother attended by telephone. The Mother was cross‑examined by both Mr Ladopoulos and Ms Gillies. Closing submissions were then made, and Judgment was reserved.
The Evidence Relied Upon
The Applicant Maternal Grandfather relied on the following evidence in his case:
a)Initiating Application filed 21 August 2013;
b)Affidavit of Mr Bedford sworn 3 November 2016; and
c)Affidavit of Dr P sworn 24 November 2016.
The Respondent Mother relied on the following evidence:
a)Response filed 12 November 2013;
b)Affidavit of Ms Bedford sworn 12 November 2013; and
c)Affidavit of Ms Bedford sworn 17 November 2016.
The Independent Children's Lawyer relied on the evidence in the form of the Family Consultant prepared by Ms L and dated 16 August 2015.
The Maternal Grandfather, his treating psychiatrist Dr P, the Respondent Mother, and the Family Consultant all gave evidence and were cross‑examined.
The Applicable Law
The applicable law is, of course, Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child, the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Applicant in this case is, of course, not a parent, but a Maternal Grandparent. In Church v S Overton & Anor (2008) FAMCA 952 (12 November 2008), Benjamin J discussed a number of issues about the entitlements of grandparents, and parental rights, at paragraphs 28‑48.
Do grandparents have special entitlements to see or communicate with grandchildren?
28. The Family Law Act places parents in a special position in respect of their children. The objects and principles (s 60B supra) clearly set out their importance. The primary considerations (s 60CC(2) of the Act) weight the importance of a meaningful relationship between child and parent against the need to protect a child from harm.
29. The Family Law Amendment (Shared Parental Responsibility) Act 2006 amended various sections of the Family Law Act in relation to parenting orders and made explicit reference to grandparents.
30. On face value the amended Act does not invest grandparents with a special category of rights or position over and above other people who might be significant to a child’s care, welfare and development. The only people in such a special category are parents. The principles which support the objects of Part VII of the Act – the part dealing with children - refer to grandparents. Section 60B(2)(b) says:
children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).
31. Grandparents are included with “other relatives” as an example of the class of people who may be able to establish that they are significant to a child’s care, welfare and development, and if that is the case and it is in the best interest of the child then the child has a right to see that grandparent.
32. The Explanatory Memorandum accompanying the 2006 amendments explained as to s 60B(2):
39. Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child's life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children.
33. The legislation specifically empowers a grandparent to apply for a parenting order. Section 65C of the Act states (emphasis added):
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
34. Parenting orders can be made in favour of grandparents, who are given a specific inclusion in section 64B of the Act. This is not surprising as sometimes grandparents are the sole stable feature in the lives of some children.
35. Grandparents are also referred to section 65G of the Act, in which the legislature imposes some conditions upon a court if a residence order is to be made otherwise than in favour of a ‘parent, grandparent or other relative of the child.’ This gives grandparents some special significance in terms of parenting.
36. Of the 2006 amendments the Explanatory Memorandum said in respect of s60CC(3)(d) and 60CC(3)(f):
60. Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification. Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to grandparents or other relatives. The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child's circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship. New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives. This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents.
62. Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification. Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents or other relatives. This provision provides that in determining the best interests of the child, the court should consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs. The amended paragraph 60CC(3)(f) recognises the importance of the relationships that the child has with wider family, in particular grandparents.
37. In his second reading speech to the Bill in the House of Representatives on 8 December 2005 the Honourable Phillip Ruddock said:
“The bill contains changes to better recognise the interests of children in spending time with grandparents and other relatives, who also play an important role in the raising of children.”
38. On the literal reading of s 60B if the particular grandparent is not significant to the child’s care, welfare and development it seems the child has no statutorily enshrined right to spend time with them on a regular basis. Given the paramountcy of the child’s best interests, however, regular time might be ordered. Reading the totality of the amendments in the context of the explanatory memorandum it is clear that the legislature was endeavouring to acknowledge the importance of grandparents and other relatives in the lives of children.
39. Counsel for the grandfather submitted that the community is increasingly aware of the role and importance of grandparents in children’s lives and that this is reflected by the 2006 amendments. He further submitted that whilst it would be unusual for a stranger who has had no relationship with a child to apply for a “time” order, it would not be unusual for a biological relative such as a grandfather to seek a parenting order for a child they had never seen, saying:
They have a relationship with that child by virtue of their biological/genetic connection. That connection is the cultural, family and genetic heritage of the child and the court should not lightly disregard the importance to the child of “knowing” their family background especially where that parent or grandparent has the capacity and is willing and able to provide that connection and care.
40. The independent children’s lawyer said in his closing submissions:
There has been recognition of the role of grandparents for some time in the Family Law Act. It’s an implicit recognition of their role because they have been specified as people who can make applications but at no stage has the legislation given them any rights over and above any other person to make an application for contact, or indeed, for a parenting order. They are there as an example and no doubt the legislation had in mind bringing the particular position of grandparents as significant persons to the attention of the court, but the important words are “people significant to their care, welfare and development…
41. It is clear that the Act has been specifically amended to refer to grandparents at various points. The legislative intent is that interested grandparents should be specifically considered and recognised when determining which orders to make in the best interests of a child.
42. In Sampson & Jacks [2008] FamCA 176, O’Ryan J said;
32. In my opinion, the importance of children having a relationship with extended family including grandparents was recognised even prior to the amendments made by the Family Law Amendment (Shared Parental Responsibility) Act. A number of cases dealt with issues regarding applications by persons who were not biologically related to a child but were people significant to the care, welfare and development of a child.
43. The Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interests. However, any determination of the best interests of a child or children should be informed by the family dynamics between the children’s parent/s and grandparent/s. In that regard, the views of the parents are significant but not necessarily determinative.
The right of parents to make decisions about their children
44. The Act set out principles that parents [emphasis added] are expected to share duties and responsibilities for the care welfare and development of their children (s 60B(2)(c)). The Act provides that parents should agree about the future parenting of their children (s 60B(2)(d)).
45. The Act makes parents endeavour to resolve parenting issues themselves. To do this they must generally undertake some alternative form of dispute resolution before commencing court proceedings. When parenting orders are made, parents can usually make changes to those orders by agreement.
46. The presumption of shared parental responsibility only applies to parents. In Souter & Meagher & Anor [2007] FamCA 18, Cronin J said (emphasis added):
132. Whether it was a legislative oversight or not, it is curious that the provision is limited to parents. This is particularly so in a case where a child such as R has been effectively parented by his great grandparents for the major portion of his life. It is quite clear in the additional considerations in s 60CC(3)(b), (d) and (f) that persons other than parents and in particular grandparents are treated as significant participants. However, the presumption in relation to the question of sharing parental responsibility is limited to the parents. That does not mean that a court cannot make an order for a relative to have parental responsibility (See s 64B(2)(c)). Counsel for the independent children’s lawyer pointed to the fact that the principle objects of Part VII refer to parents and that it was the intention of the legislature to place the onus on parents to undertake those responsibilities primarily. I agree with that proposition.
47. Where parents jointly (or if a sole parent, solely) have a strong view in relation to the parenting of their children, courts should be cautious about interfering with that exercise of parental responsibility. In general, parents best know their own children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of children. This does not mean that courts take over the role of parents.
48. There are limits on the ability of parents to make decisions regarding their children. The most obvious example is their ability to consent to certain medical procedures (most notably, sterilisation) in the absence of a court order made by this Court. But the defining tenor of the Family Law Act is to empower parents to take responsibility for making decisions regarding their children free from arbitrary or unwarranted interference.
Outline of Reasons for Judgment
The Reasons that follow will commence with some observations about the evidence given by both the Maternal Grandfather, and the Mother. The expert evidence of Ms L, the Family Consultant, and then Dr P, the Grandfather's treating psychiatrist, will be discussed. There will then be a discussion of the evidence of the Maternal Grandfather, and the Respondent Mother. Finally, the evidence will be discussed by reference to the relevant considerations under section 60CC of the Family Law Act.
General observations about the witnesses
The Maternal Grandfather gave his evidence earnestly. He presented as an elderly man, sometimes seemingly frail, who longed to resume the relationship that he had with X, but who often seemed to struggle with recollection of past events. In particular, the Court formed the distinct impression that he minimised his involvement in past unfortunate events, which clearly contributed to the breakdown of relationships within the family consisting of him, the Maternal Grandmother, and the Mother in these proceedings. He was genuine in his desire to spend time with X, but lacked insight into the potential implications both for X, and her Mother if the orders that he sought were, in fact, made. He genuinely could not see how his past behaviour may have contributed to the present dilemma.
The Respondent Mother represented herself in these proceedings. She was, at times, both distraught and overwhelmed with emotion. On the one hand, she presented as an intelligent and articulate woman who was capable of conducting a reasonable cross‑examination of her own Father. On the other hand, she presented as being both singular, and forthright in her views and attitudes about X spending time with her Grandfather ‑ which was intransigently negative.
Interestingly, the Court does not necessarily doubt the evidence that both the Mother, and the Maternal Grandfather gave during the hearing. They each presented the truth as they believed it, based on what they perceive to have been their past experiences. There is nothing unusual about that in these difficult, emotional parenting cases. All the Court can do is to take these parties where they presently are, irrespective of the absence of any objective basis to the subjective beliefs that they hold so clearly as being truth. Overall, the greater concern that the Court has is about the Maternal Grandfather's evidence, which seemed to almost conveniently avoid, or overlook, the issue of his involvement in the dysfunctional relationships in this family, and the significance of that to the decision that the Court must make.
The Evidence of the Family Consultant
It should be noted that X's Father, Mr P, participated in the interviews. Given his decision not to be involved in this case, these Reasons for Judgment will not refer to those parts of the report that deal with him.
Ms L records her observations about the Mother commencing from paragraph 13 of her report. It is important to reproduce these observations, and to comment upon them having regard to the evidence the Court heard.
13. Ms Bedford (aged 38 years) presented as a softly spoken and somewhat reserved woman. She appeared anxious and uncertain at the beginning of the interview and at times she became teary and emotional when recalling past events, particularly in regards to her relationship with her father.
14. Ms Bedford said that she has always had an emotionally tumultuous relationship with her father. Ms Bedford described him as a controlling, intimidating and emotionally abusive man, who spent years “terrorising” herself and her mother into submission. She said that nothing either she or her mother did was ever good enough for him. Ms Bedford recalled that she wanted to leave home as soon as she turned 18, but her mother begged her to stay because she did not want to be alone with Mr Bedford.
15. Ms Bedford said that when she decided to move to (omitted) (where her parents were then living) after separating from Mr P, she only did so because she thought that her father was going travelling in his campervan. She said that when she arrived, however, he told her that his van was not roadworthy. Ms Bedford recalled that her father continued to be abusive towards herself and her mother and her mother subsequently asked him to leave the house (which was in the maternal grandmother’s name) but he refused. Ms Bedford said that he eventually relented and moved into a shed in the backyard but he then adamantly refused to go any further, which left herself and her mother with no other option but to leave the premises themselves, which they did in early 2013.
16. Ms Bedford said that, when her father followed them down to the (omitted) area, she initially allowed him to see X for short periods of time (15 minutes or so) several times a week because she thought that this was “the right thing” to do. Ms Bedford said that it seemed that her father was less interested in interacting with X and more interested in getting her to do things for him, “because he had no idea of how to look after himself.” She said that Mr Bedford became increasingly demanding and abusive towards her and he would ring up and “bark” at her that she and X had to come and see him.
17. Ms Bedford recalled that, around June 2013, Mr Bedford was becoming increasingly erratic and “he was starting to sound so strange.” She said that his anger and irritability seemed to have spiked but she had no idea why. She said at times he would talk “complete nonsense” and this worried her. Ms Bedford said that Mr Bedford asked her to bring X to the local bowling club on a Sunday but she declined, saying that she did not think this was an appropriate place to take a small child to. Ms Bedford said that when she woke up on the following Monday, there were multiple voicemail messages from Mr Bedford on her phone, yelling and demanding and “he was so cutting and sarcastic and cruel.” When Ms Bedford told him that she was not going to take X to see him again, he told her “that he was going to the police to make a complaint.” Ms Bedford said that her father told her that DOCS would take X off her because of her PTSD and how this had made her an unfit mother.
18. Ms Bedford said that, as far as she is aware, Mr Bedford is still living near to where she and the maternal grandmother live with X. She said that she feels threatened by this but she knows there is nothing she can do about it unless he actually does something untoward. Ms Bedford said there is absolutely no reason why Mr Bedford should have remained living in the (omitted) area and she believes he has done so in order to intimidate herself and her mother by making them feel constantly fearful of running into him. Ms Bedford said that Mr Bedford’s application to spend time with X really has nothing to do with her, but everything to do with remaining actively in hers and the maternal grandmother’s lives and having power over them. Ms Bedford said that her father currently has little or no power over them and he finds this very difficult to deal with.
19. Ms Bedford said that she does not support the maternal grandfather having any time with X in the future. She said that she does not think that Mr Bedford has anything of value to offer X and she believes that X would find him a scary and threatening individual. Ms Bedford said that overall, she and her mother feel so much more stronger and confident then they did when Mr Bedford was living with them, or constantly in their lives. The Court observes that what the family consultant recorded as the Mother telling her was consistent with both the Mother's presentation during the hearing (limited as it was by telephone) in the evidence.
The Family Consultant's observations about the Maternal Grandfather are extensive, and commence from paragraph 31 of the report.
31. Mr Bedford (aged 72 years) presented as a slowly spoken older man who struggled at times to articulate his situation. He maintained a stance of absolute denial of all of Ms Bedford’s allegations against him and when the Family Consultant challenged this at times during the interview, he became frustrated and agitated. By the same token, Mr Bedford began the interview by saying that it was not his wish to say any critical things about Ms Bedford; rather he had formed an opinion that she was deluded about many aspects of the past, or her memory was faulty; or she had unresolved mental health issues.
32. Mr Bedford reported that up until 2008, he and Ms Bedford got on extremely well. He described them as being “very good friends.” Mr Bedford said that in 2008, Ms Bedford sold her Sydney apartment, which Mr Bedford said that he had loaned her the deposit for, and she did not pay him back this money, apparently saying that she believed he had gifted it to her. Mr Bedford said that he was upset by Ms Bedford’s actions in doing this, and he decided that he did not want to have any contact with her. Mr Bedford recalled that he did not speak with Ms Bedford at all in the period 2008-2011 and their first conversation after this occurred when she rang and asked him if she and X could come and live with himself and the maternal grandmother in (omitted).
33. Mr Bedford said that he and his wife Ms D originally separated in 2002 but they began living together on a platonic basis in 2008, after Mr Bedford had become particularly unwell with depression and made a suicide attempt. Mr Bedford said that 2008 was one of the lowest times of his life. He said that “I was upset about the money (that Ms Bedford had allegedly not paid him back) and I didn’t want to live any more. Simple.” Mr Bedford said that he tried to slash his wrists but he ended up regaining consciousness and then drove himself to the hospital where he stayed for 10 days. Mr Bedford said that the hospital told him that he needed someone to care for him, so he moved back in with Ms Bedford, “on the understanding that it was only going to be until I got better” but then his campervan was not roadworthy at the time and he could not afford to fix it, so he stayed on with Ms Bedford.
34. Mr Bedford denied ever being verbally abusive or coercively controlling towards Ms Bedford; he said that on the contrary, in the period from 2008 to 2012 they were getting along together extremely well: “There was no anger and lots of laughter.” Mr Bedford said that he did all of the maintenance around the house and he also paid Ms Bedford $200 per week in rent.
35. Mr Bedford recalled feeling shocked when he saw Ms Bedford at the end of 2011, which was the first time since 2008. He said that he would not have recognised her if he passed her on the street. Mr Bedford said that she was very thin, “and she was hard in her manner. Abrupt. There was no love in her eyes and she couldn’t even cuddle me properly.” Mr Bedford said that he believes Ms Bedford was in limbo at this time, as she was contesting her work-related stress claim and she had no money “and she basically just didn’t have a future.”
36. Mr Bedford said that he became aware that Ms Bedford “detested” X’s father and she was not keen for X to have anything to do with him but he was not aware of any particular arrangements that they had in place for Mr P to spend time with X.
37. Mr Bedford recalled that he tried to make things better for Ms Bedford by asking her and X to come travelling with him in his campervan, as he had always found this to have helped him in the past when he was struggling with depression. Mr Bedford said that Ms Bedford declined his offer, saying that she did not want to get better until she had received her compensation payout.
38. Mr Bedford said that things deteriorated in 2012 because of how cramped the living situation in the (omitted) house was. Mr Bedford said that after Ms Bedford and X moved in, he and Ms Bedford had twin beds in a small room “and it eventually got to Ms D” and she asked him to move out so she could have some space back. Mr Bedford denied that there were any other reasons for Ms D to request this. Mr Bedford said that, as his van was not roadworthy at the time, he was going to become homeless so he arranged to live in a shed in the backyard on a temporary basis. Mr Bedford said this was a difficult time, as Ms D would not let him use the facilities in the house, because he refused to pay her more than $50 per week rent.
39. Mr Bedford said that after about six weeks where he was living in the shed, Ms Bedford and her mother decided to move to the (omitted) area. Mr Bedford expressed the view that Ms Bedford instigated the move in order to get as far away as possible from Mr P. Mr Bedford said that the move had nothing whatsoever to do with getting away from him, and in fact he suggested several towns to Ms Bedford and travelled down to help her look for places.
40. Mr Bedford said that he subsequently became aware that Ms D and Ms Bedford had found a house in (omitted) , but they refused to give him the address. When Mr Bedford was asked why he thought this was the case, he said that he had no idea.
41. Mr Bedford said that he decided to take his campervan down to (omitted) in about March 2013, so that he could spend time with X. He strongly denied Ms Bedford’s assertion that he “demanded” to see X all the time; he said that what happened was that Ms Bedford asked him how often he wanted to see X and he suggested three times a week for a couple of hours at a local park. Mr Bedford described this as “a simple arrangement” which Ms Bedford had no issues with. Ms Bedford attended all of the visits along with X.
42. Mr Bedford expressed the view that he and X had had a close bond from the time she came to live in (omitted) with her mother. Mr Bedford said that he and X would play together in the yard on the swing set and she also loved coming into his campervan and looking at everything. Mr Bedford said that while they were living in (omitted), Ms Bedford would also allow him to take X to a local park “where she would run around and do her own thing and then I would carry her home.” Mr Bedford recalled that when he was spending time with her in 2013, X was always affectionate with him and she would climb onto his lap for a cuddle and a kiss. Mr Bedford said that X was never shy or distant with him. Mr Bedford said that about a week before he stopped seeing X, she called him “Poppa” which was apparently the first word that she ever said.
43. Mr Bedford recalled that this arrangement preceded relatively well from April to June 2013. Mr Bedford said that he asked Ms Bedford for a loan of $10,000 to get his campervan back on the road and she agreed (her compensation payout had recently come through). Mr Bedford said that things went awry without any warning whatsoever, on the last weekend of June 2013 when, on the Friday visit he asked Ms Bedford if he could take X on Sunday to a local club where they were having a family fun day. Mr Bedford said that Ms Bedford told him she would think about it and call him back, but she did not contact him. Mr Bedford said he called her at 8am on the Monday morning to tell her that he was disappointed that she had not agreed to his request. Mr Bedford denied that he called multiple times or that he was harassing or abusive in any messages that he left. He said Ms Bedford eventually called him back “and I didn’t even recognise her voice, she was that agitated.” Mr Bedford said that he was worried that Ms Bedford may not have been capable of caring for X in this agitated state, so he attended the police station to ask them to do a welfare check on X. He said that he had no idea that it would result in such an “official” outcome (with the police and their response). Mr Bedford said that shortly after this, Ms Bedford told him “that I was too much of a hassle to her and she was changing her phone number.”
44. Mr Bedford said that he has no idea whatsoever about why Ms Bedford stopped him from spending time with X. He said he simply does not understand it and the only thing he can think of is that “something has gone wrong with our relationship” and that this was caused by Ms Bedford’s experiences when she was living on the (omitted), which in Mr Bedford’s view, changed her for the worse.
45. A considerable amount of time was spent discussing with Mr Bedford why he believes he has fallen out so profoundly with his ex wife and daughter. He expressed uncertainty and confusion over the reasons for this and said that it had nothing at all to with his behaviour towards them. Mr Bedford denied ever being controlling, verbally abusive or cruel towards either Ms D or Ms Bedford.
46. Mr Bedford reported that his mental health is currently stable. He said that he has suffered from depression quite significantly in the past, in particular the years 1997 to 2001 and then again in 2008. Mr Bedford said that his depression stems from work related stress when he was a (occupation omitted) and he received a compensation payment in 2002 as a result of this. Mr Bedford said that he has a current mental health plan and he is seeing a psychologist based in (omitted) “because of all the stress caused by this matter.” He said that the psychologist has formed an opinion that he is coping very well with a difficult situation. Mr Bedford said that he finds this feedback very helpful and he intends to continue seeing this person at least every two months.
47. In regards to what he is seeking in the future, Mr Bedford said that he would like to be able to spend “an hour or two” with X each week. He said that he understands that he would now be a stranger to X and they would have to take things slowly. He said that he would ask her if she remembers him and prompt her with accounts of the things they used to do together. Mr Bedford said that he would not attempt to cuddle X or do anything that might cause her to feel scared or anxious. Mr Bedford said that he understands the visits would need to be supervised in the first instance, while he and X are getting to know each other again.
48. Mr Bedford said that he would be “absolutely devastated” if the Court decided that he should not have time with X in the future. Mr Bedford said that he has been told (by Court staff and his solicitor) that this is “a difficult situation and I may not get to see her again” but Mr Bedford said that he does not view things in such a pessimistic way and this is why he has continued to fight to spend time with X. Mr Bedford expressed the view that he is no threat whatsoever to X and he can only add value to her life.
49. Mr Bedford became quite teary when talking about his relationship with Ms Bedford. He said that he truly loves her and he would like nothing more than for them to be able to talk with each other again, but he is not sure how this could happen. He said that he is prepared to do anything the Court might require of him in relation to repairing this relationship so that he can spend time with X in the future. The Court observes that, for example, in relation to paragraph 31, throughout his evidence, the Maternal Grandfather maintained that stance of denial. It is somewhat ironic that he formed the view that the Mother was deluded about aspects of the past, or had a faulty memory, or was suffering from mental health issues. The objective evidence before the Court suggested quite to the contrary ‑ that there are aspects of the Maternal Grandfather's behaviour consistent with him having a faulty memory, and unresolved mental health issues.
At paragraphs 67 and 68, Ms L sets out observations of X with both her Mother, and Maternal Grandmother, in the following terms:
67. X (aged 3 years, 7 months) was observed informally with her mother and grandmother. X presented as a highly verbal, excitable and engaging young girl. She appeared fascinated by her strange surroundings and she asked many questions of the Family Consultant. Despite the day not ending until late afternoon, X’s energy and enthusiasm did not flag over the course of the afternoon. X remained with her maternal grandmother while her mother was speaking to the Family Consultant and she did not display any anxiety at her mother’s coming and going. X asked to play with the Family Consultant by herself, however this was at the end of the day so it was not possible. X appeared very excited when the Family Consultant told her that she might come back another time and play and she then left happily with her mother and grandmother.
68. Ms Bedford was asked if X is due to start preschool in 2016, given that she turns 4 in (omitted) 2015 (and she appears to be an extremely bright child). Ms Bedford said that she has no plans to enrol X in any form of childcare before she begins school, as she believes that X does not need it and she gets all the stimulation she requires from the activities that Ms Bedford plans and from the interactions with herself and her maternal grandmother. No observation was conducted with the Father, or the Maternal Grandfather.
Ms L had access to the subpoenaed documents available at the time of her report. One significant paragraph of her observations in this regard relate to the Maternal Grandfather's mental health. Indeed, paragraphs 75‑76 are informative:
75. Mr Bedford’s health and counselling records indicate that he has suffered from major depressive episodes on and off since 1997. Mr Bedford engaged with a psychiatrist in the latter half of 2013 (Dr P). He found that Mr Bedford was not necessarily able to reflect on the impact of his behaviour on others; and that he was “obsessively preoccupied with vindication” (against the police and his daughter following the events of July 2013). In a session in November 2013, Mr Bedford described Ms Bedford as “evil” for what she had said about him in an affidavit. The psychiatrist assessed Mr Bedford as having “extreme” levels of anger.
76. In March 2014, Mr Bedford’s treating psychologist Mr D wrote a letter in support of Mr Bedford stating that, “Mr Bedford has acknowledged that his previous approach (to familial relationships) may have contributed to poor outcomes, misunderstanding and animosity between the parties. Mr Bedford readily reflects on his thoughts taking responsibility for his actions.”
In her evaluation, Ms L observed that the reality was that X did not have a current relationship, either with her Father, or the Maternal Grandfather. Her assessment of the Maternal Grandfather is found at paragraphs 78‑81 inclusive.
78. Mr Bedford’s presentation, narrative, and supporting materials suggest that he is a person who struggles to appreciate or understand the impact of his behaviour on others. Despite his complete estrangement from both his ex-wife and his daughter, and their continuing efforts to keep him out of their lives, Mr Bedford professed to have no idea of why this had occurred, other than to surmise that it was something to do with Ms Bedford's PTSD. His capacity for self-reflection and self-insight was extremely limited. Although his psychologist reported in early 2014 that Mr Bedford was able to reflect on his past actions and take responsibility for these, this was not evident during the Family Report interviews, nor was there evidence of it in Mr Bedford’s affidavit material.
79. Given the significant concerns about Mr Bedford’s mental health, his anger management and his drinking, it would not be appropriate for him to spend any amount of unsupervised time with X. If Mr Bedford were to spend time with X in the future, the only two people available to supervise this time would be either the maternal grandmother or Ms Bedford. Ms Bedford has alleged that Mr Bedford is seeking time with X to gain proximity and access to herself and the maternal grandmother, which he would then utilise as a form of coercive control.
80. While X could theoretically spend time with the maternal grandfather at a contact centre in (omitted), this would only be appropriate if there was a realistic possibility that this would only be necessary for a short period of time. In this case, there would be no end point at which you could reasonably say that X would be safe – emotionally, psychologically and physically – in the maternal grandfather’s care.
81. On the basis of the above concerns, Mr Bedford’s application to spend time with X is not supported.
At paragraph 98, the final paragraph of her report, Ms L recommended that X spend no time with the Maternal Grandfather.
Ms L was extensively cross‑examined on 7 December 2016. Her professional view was that there would be no short, medium or long‑term adverse impacts on X if she were not spending time with the Maternal Grandfather. She explained, of course, that when X becomes older, she can make her own choices about which family members to associate with. Of course, an important aspect of this case was the Maternal Grandfather's age.
Mr Ladopoulos, Counsel for the Independent Children's Lawyer, asked Ms L on a hypothetical basis what might be the implications on X if the Court formed a view that the Mother would have difficulty accepting an order that requires X to spend time with the Maternal Grandfather, and that such an order would cause the Mother anxiety, stress and emotional difficulties? Ms L explained that her opinion in this regard was based on the interview that she held with the Mother for the purposes of the Family Report. She found the Mother to be a highly anxious individual with a history of post‑traumatic stress disorder, as reported to her by the Mother. Again, as reported to her by the Mother, the Mother seemed to have trouble coping with situations that were very emotionally confronting or challenging. Ms L was able to independently attest to that during the course of the interviews with the Mother. Ms L felt that if X was ordered to have contact with her Grandfather, the Mother would struggle immensely with anxiety, fear and uncertainty about how to cope with that. Ms L did not rule out the possibility that the Maternal Grandfather had changed, but observed that what counted was the Mother's perception, which was based on her experience of living with her father over the course of her life. Thus, any time that X spent with him would create a fear in her that he was attempting to get back into her life and recommence controlling her. The impact on X of her Mother not coping could be to shoulder an immense amount of parental emotion and take responsibility for it. The risk, Ms L explained, was that X would want to keep her Mother happy and would want to stop her Mother from feeling sad or anxious or worried about the prospect of X spending time with her Grandfather. This would be very challenging in itself.
Notwithstanding this, Ms L was of the view that, provided the Mother was free of anxiety, if the Court ordered X to spend time or communicate with her Grandfather, the Mother would comply.
Ms L was cross‑examined by Ms Gillies in her usual thorough and forthright manner. One of the major concerns raised with Ms L in cross‑examination was that she, Ms L, may have unequivocally accepted the Mother's version of otherwise contentious events involving her father. Indeed, the Court observes, as will be discussed below, that there are important factual differences between the Mother's evidence and the Maternal Grandfather's evidence. Ms L explained that her role as a Family Consultant preparing a report was simply to accept what people say to her. It was not her role to determine who was telling the truth. That was the Court's job. She explained, however, the views that she formed in the report were informed not just by what the Mother said, but by her presentation, and what the Maternal Grandfather said, and his presentation.
Ms Gillies directed Ms L to the inconsistencies between the Mother's evidence pertaining to her father, and the independent and contemporaneous records produced by Ms B, the Mother's psychologist. Ms L maintained that the Mother's account, and Ms B's records were not necessarily inconsistent. Indeed, Ms L emphasised that the Mother's perception of past events was important to her and it was for the Court to decide on reality.
At page 45 of the transcript, the following exchange occurs at lines 1‑14:-
MS GILLIES: Now, in your report, ultimately, you say that the maternal grandfather shouldn’t have time with X because he presents – and this appears at paragraph 80 of your report – he presents a psychological, physical and emotional risk to X?
MS L: Yes.
MS GILLIES: Right. In terms of why you would say he is a physical risk, would you be able to, Ms L, take us to the particular paragraph which you would say supports the proposition that he is a physical risk to the child?
MS L: My view that is he is a physical risk to X is based on the mother’s narrative of him having an extremely bad temper and being a very angry person. So it is about what is a reasonably foreseeable risk based on a view that I have formed of the grandfather and the grandfather, indeed, has accepted that he is, or was, a very angry person so anger is very dangerous for children to be around.
MS GILLIES: When you were giving evidence earlier in your cross-examination, you indicated to his Honour that you were very clear that when the mother said that she had suffered abuse at the hands of her father, it had not been physical abuse. Correct?
MS L: Yes.
MS GILLIES: So you make the observation that you believe that X is at physical risk of being harmed by her grandfather as a consequence of his anger knowing, as you do….?
MS L: Yes.
MS GILLIES: …. that he has not been physically abusive to X’s mother. Correct?
MS L: Yes.
MS GILLIES: And again, in terms of the evidence that you’ve read and what was told to you and as being recorded by you in your report, there’s no allegation that he was physically abusive to his former wife either, is there?
MS L: No.
MS GILLIES: Thank you. And, in terms of the physical risk being linked to anger, you would accept, wouldn’t you that Dr P would be in an excellent position to be able to express a view on whether improvements have been made in the grandfather’s ability to recognise his own anger in the last 18 months?
MS L: Yes. Absolutely.
MS GILLIES: You would agree that he would be in an excellent position to provide the court with evidence about whether or not there have been improvements in relation to his ability to control his anger?
MS L: Yes.
MS GILLIES: And you would agree, wouldn’t you, that he would be in an excellent position to be able to provide evidence in relation to the grandfather’s insight in relation to whether or not he had been an angry person beforehand and how that might have impacted upon him?
MS L: Yes.
Ms L also confirmed the psychological risk to X from the Maternal Grandfather's potential anger which would be expressed around her, and not necessarily directed to her. Ms Gillies ensured that Ms L fully understood the very limited nature of the Grandfather's application for time with X. There is no doubt that Ms L understood this.
At the conclusion of Ms Gillies' cross‑examination, I asked Ms L some questions, and this exchange commences at transcript page 49 line 42, through to page 43 line 41:
HIS HONOUR: Ms L, it’s Judge Altobelli here. So I just want to go back to a much, much earlier question about how your recommendations might change if I simply didn’t accept the mother’s evidence in relation to the maternal grandfather. So if I can ask you to just please focus on that. I want you to assume that the court doesn’t accept her evidence. How does that change the recommendations?
MS L: Sorry, just to clarify your Honour. So if the court doesn’t accept the mother’s account of the grandfather or her time with the grandfather?
HIS HONOUR: Correct?
MS L: I think – I find that hard to answer, your Honour, and only – for two reasons. One is the way that the grandfather presented to me and his – the things we talked about and in then, in combination with the most recent report of Dr P and also other – Dr P’s other records that I had access to at the time of writing the report, to me, those things do tend to make me support the mother’s account. So however – I just needed to say that. If the court formed an opinion that the mother’s account was not accurate or not based on reality, then my view about X spending time with the grandfather would change.
HIS HONOUR: And are you able to tell me how it would change?
MS L: It would change to the extent that if the mother’s account is not correct then she has given a false account because she is deliberately trying to keep X away from her grandfather for reasons that are unrelated to X. And so I would need to separate that out and to say well, X does have the right to have a meaningful relationship with someone who, you know, would provide benefit to her. A parent who otherwise, you know, deliberately obstructs a child from having a relationship with a parent or a grandparent, that’s not – that’s not good for that child.
HIS HONOUR: And would you be able to assist me with any guidelines, for example, about how I would frame an order for time in those circumstances?
MS L: The question remains about the mother’s reaction to any order that was made and her anxiety or her fear or, indeed, her anger about such an order and how that would impact on X. So regardless, I think what I’m saying, badly, regardless of the mother’s reasons or motivation for not wanting X to spend time with her grandfather I think that we would – I’m not sure how the court could determine or formulate any orders that would lessen the impact on the mother of that time and I think that would be a risk to X. Certainly, I think supervised time – professionally supervised time for shorter periods and for that supervision to be in place for at least six months – at least six months. I would also like to see – I’m not sure whether the mother would agree to this and, of course, she’s not in court, but I would like to see Dr P being able to engage the mother in this process and to see whether he was able to, on the grandfather’s behalf, I guess, facilitate some reflective thinking in her. And that process could perhaps start before X had contact if this is what the court decided. That process could be helpful for the mother to engage in prior to X having contact with her grandfather. So, perhaps, alleviate some of the mother’s anxiety and to give her some reassurance that if, indeed, the grandfather has changed for the better as he says he has and as Dr P thinks he may have, to give her some reassurance that that is, in fact, the case.
It is clear from the last passage above that Ms L was very much concerned about the impact on the Mother of any order for X to spend time with her Grandfather. She thought that the Mother's reaction would be a risk to X. Whilst professionally supervised time was an option, Ms L pointed out that this was generally a short‑term option. Even with professionally supervised time, she thought the Mother would need assistance to cope.
The Court finds that Ms L was well entitled to form a view which, in simple terms, would be expressed as the Mother could not psychologically cope with the idea of X spending time with her Grandfather, and this would in itself be a concern from X's perspective. Whilst Ms Gillies strongly submitted that there was no basis for forming this view, the Court disagrees. It was the Mother's position, both explicit and implicit, that she could not cope with the idea of X spending time with her Grandfather. The Mother's presentation throughout the entire proceedings was consistent with that position. What Ms L did, quite properly the Court accepts, was to warn the Court about the potential adverse implications on X if her Mother felt as strongly as she did. It was certainly implied, if not express from Ms L's evidence and cross‑examination that from X's perspective, the issue was what her Mother perceived to be the truth, rather than what the truth actually was. The Court accepts this. Indeed, the Court accepts the evidence of Ms L.
Evidence of Dr P
Dr P is the Maternal Grandfather's treating psychiatrist. His report is annexed to his affidavit filed 28 November 2016. The report itself is dated 24 November 2016. He diagnosed the Maternal Grandfather as suffering from chronic major depressive disorder, in partial remission on treatment. At paragraph 101, he reports:
He experiences periods of pervasively low mood, low energy, poor concentration, poor sleep, feelings of hopelessness, loss of enjoyment in usual activities, and suicidal thoughts and acts.
He diagnosed the Grandfather as having obsessive compulsive personality disorder. At paragraph 102, Dr P observed:
He has overly logical and inflexible pattern of thinking, a detachment from emotions, and a tendency to avoid emotional context with logic.
At paragraph 103, Dr P described the Grandfather as utilising "psychological defence strategies of intellectualisation, reaction formation and idealisation”. He explained that intellectualisation refers to "using excessive and abstract logic or rationalising to avoid difficult feelings, as seen in his attempts to use contradictions that he perceives in others' account to negate the substance of the allegation." At paragraph 107, Dr P explains that through the Grandfather's extreme idealisation of his daughter, he saw their relationship as perfect. He would have seen her more as part of himself he would have found it difficult to acknowledge anything about her that was not like him. "This would lead to him unconsciously exerting emotional control over her."
In terms of prognosis, Dr P thought the Grandfather would benefit, in terms of his depression, if he were allowed contact with his granddaughter. At paragraph 119, he deals with the Grandfather's "anger management and personality problems". He suggests that this will gradually improve over time.
There is no doubt that Dr P was supportive of the Grandfather's proposal for contact with his granddaughter, on a supervised basis. At paragraph 123, he makes some important observations about the Grandfather's insight and willingness to accept responsibility:‑
Mr Bedford has displayed a gradually improving but now definite willingness to accept responsibility for the breakdown of the family relationship and estrangement from his ex‑wife and his daughter. He now acknowledges that they must have seen him as a very different person, given how they described his behaviour. He does accept that he could be angry and intimidating when angry. He does maintain a strong desire to understand himself better and change, and this has been borne out by his actions, and his persistence in therapy. He has shown some acknowledgement of controlling behaviour.
Dr P was briefly cross‑examined. His evidence and cross‑examination neither added, nor detracted from his report.
The Court concludes that Dr P's evidence is important, but does not necessarily assist the Grandfather's case. As Mr Ladopoulos submitted in closing, there is much in Dr P's report that is of concern in relation to the Grandfather's parenting capacity, as well as his attitudes. Put at its highest, Mr Ladopoulos submitted that Dr P's report suggested that the Grandfather was a work in progress. There was much in Dr P's report which was consistent with the Mother's allegations about his past behaviour. Indeed, the Court accepts Mr Ladopoulos' implied submission that Dr P's report probably reflects the Maternal Grandfather's admissions to him of past difficulties in the Grandfather's relationship with both the Grandmother and the Mother, more than the Grandfather's evidence does itself. The reality is, the Court observes, that much of Dr P's description of the Grandfather is entirely consistent with the Mother's case about him. Of course, the Mother does not use the words "lack of … emotional awareness of others", like Dr P does at paragraph 96 of his report. But in many respects, that is precisely what she is trying to describe. Moreover, at paragraph 98, for example, the Grandfather makes a concession to his doctor that he doesn't make elsewhere in his evidence, ie, "that there was something wrong in his behaviour or actions towards his ex‑wife and daughter that prompted them to terminate contact with him". The Court fully understands why it was important for the Grandfather to provide evidence from his treating psychiatrist. Without it, there would have been an enormous hole in his case. But the Grandfather is bound to take Dr P's report for all it says, including those parts of it which were not necessarily helpful to his case.
The Evidence of the Maternal Grandfather
The Maternal Grandfather's evidence consisted of his affidavit filed 3 November 2016. At paragraph 7 of his affidavit, he reflects on the mental health treatment he has received since 1996 when he was first diagnosed with depression. He explains that he was surprised that his own treating psychiatrist, Dr P, had stated that he suffered from extreme anger. He made an appointment with Dr P to discuss these comments with him, as well as to seek help.
I realise that how I saw myself and how my daughter saw me might have been quite different. I acknowledge at the time Ms Bedford stopped me from seeing X I was angry and frustrated. I am deeply saddened that my relationship with Ms Bedford was adversely affected by the undiagnosed issues.
He then deposes to the efforts that he has undertaken to manage his emotions. The challenge for the Court was to see whether the Grandfather's insight manifested at paragraph 7 of his affidavit actually reflects his present feelings and perspective? His cross‑examination will be discussed below.
The Maternal Grandfather provides a detailed history of his relationship with the Mother, and indeed, with his former wife. The histories given are not materially different.
At paragraph 20 of his affidavit, he purports to respond to the Mother's affidavit sworn 7 November 2013. This was, in fact, one of the affidavits relied on by the Mother at the trial. Responding to paragraph 2 of the Mother's affidavit, the Maternal Grandfather says:
I deny there have ever been any violent outbursts by me during my relationship with either Ms Bedford or her Mother Ms D, though I recall times when I have raised my voice. … I recognise that this is an anger issue and unacceptable.
The Court accepts that the Maternal Grandfather was acknowledging here that raising his voice was an anger issue, and thus unacceptable.
When one has regard to the allegations made by the Mother in her said affidavit, whilst it is true that she frequently uses the descriptive term “violent outbursts", the context seems clear - the Mother was not asserting that her father was physically violent towards her, or her mother. The Mother was clearly describing verbal abuse. It would seem, therefore, that the Maternal Grandfather's response to the Mother's allegations in effect misses the point ‑ the allegation was of verbal abuse, a matter that he acknowledges by the reference to "when I have raised my voice".
Interestingly, the Maternal Grandfather's response to the Mother's allegations, described in the preceding paragraph, is quite consistent with Dr P's observations of him at paragraph 85 of his report, where he states:‑
Mr Bedford's tendency to miss the emotional point of situations and become preoccupied with details was discussed. With the allegations against him, he responded by focusing on technicalities, rather than considering the emotional context. Mr Bedford was able to acknowledge this.
Applying that to the Maternal Grandfather's evidence, he responded to his daughter's allegations by focusing on a technicality, "I deny there have ever been any violent outbursts by me”, rather than considering the emotional context, which was that his verbal abuse was experienced by his daughter, and possibly her Mother, as threatening.
Returning to the Maternal Grandfather's affidavit, there are a number of clues given as to why his relationship with his daughter was so dysfunctional, even before the issue of spending time with X became the main issue. For example, he explains that in 2002, he lent the Mother $170,000 to purchase property in Sydney. He says that it was a loan and that she would not sell the unit, and that if she did, he would receive the money back from the sale proceeds. It seems that the Mother did, in fact, sell the property but did not repay the loan. According to him, she insisted that the money had been gifted to her. He agreed that this made him upset.
Returning to paragraph 7, the Maternal Grandfather's comment that he was "deeply saddened that my relationship with Ms Bedford was adversely affected by the undiagnosed issues" seems, once again, both minimising, and externalising. It was not "undiagnosed issues" that adversely affected his relationship with the Mother in this case, it was, at least in part, and confirmed by the evidence that he led in his own case, by his angry behaviour which the Mother experienced as verbal abuse. To explain his behaviour as attributable to an undiagnosed issue both minimises the emotional impact on those around him and shifts the responsibility and accountability away from the source: himself. The Court cannot but be concerned about the subtle but nonetheless important differences between the Grandfather's evidence above, and what his psychiatrist Dr P says at paragraph 98 in relation to the Maternal Grandfather:
He now appears to genuinely accept that there was something wrong in his behaviour or actions towards his ex‑wife and daughter that prompted them to terminate contact with him.
Dr P's comments can only be interpreted to mean that the Maternal Grandfather accepted the wrongfulness of his behaviour, something that is far less clear in the affidavit of the Grandfather.
The Maternal Grandfather was cross‑examined, initially by Mr Ladopoulos, Counsel for the Independent Children's Lawyer, and then by the Mother herself.
Mr Ladopoulos put to the Grandfather that he had previously stated that he hated his daughter. Indeed, that his feeling was more than just one of resentment. The Maternal Grandfather agreed. Just a few moments later, however, and in referring to and acknowledging that the Mother suffered from post‑traumatic stress disorder, he said:
I know she has got problems, but I don't really understand why I'm a part of that problem.
Again, the Court cannot help but to notice the dissonance between Dr P's evidence about the Maternal Grandfather's supposed insight and his response to the question asked by Mr Ladopoulos in cross‑examination. It was a defensive response by the Maternal Grandfather, which is to be contrasted to Dr P's report at paragraph 99, where he was reported to be “able listen without undue defensiveness to suggestions and interpretations of how he may be to blame, how he could have been seen as angry and intimidating and how he was probably invalidating of his daughter …".
Nonetheless, the Maternal Grandfather did acknowledge, both in cross‑examination by Mr Ladopoulos and the Mother, that there was a risk to X if her Mother were not able to cope with an order for him to spend time with X. He nonetheless though there was benefit to X and, indeed, described it quite poignantly:‑
I just like to talk to her and just tell her how much I love her. I will try to explain that I'm her Grandfather and where I stand in relationship. I will tell her that I know a lot about her. … I thought my life was interesting and I could tell her about that. I could take her anywhere she wanted to go.
The Maternal Grandfather denied, however, telling Dr P that he hoped by getting to spend time with X, that she would come to understand why there had been a falling out between X's Mother and himself. The Maternal Grandfather initially said that he didn't remember saying that to Dr P. Then he denied that. And yet that seems to be what Dr P records. The Court has already observed that it had doubts about the Maternal Grandfather's capacity and reliability as a historian of past events. As will be seen below, in response to many of the Mother's very detailed allegations of verbal abuse put to him in cross‑examination, many of the answers were not denials, but simply acknowledgements that he did not recall.
The Mother's cross‑examination of her father was revealing in many ways. Indeed, many of the questions that she put to him made clearer to the Court some of her specific concerns about him. For example, an important factor that had not become apparent from the Grandfather's evidence was that he currently lives in a campervan which is based around the (omitted) area of New South Wales. He explained that he moves around, finding nice places to stay and where he camps. He stays mostly in state forests, rather than in a caravan park. This is quite important evidence that is nowhere else disclosed by the Maternal Grandfather. His affidavit states a residential address, but he acknowledged that he does not live there, he has never lived there, and merely uses it as his postal address. To be fair to him, it is apparent from paragraph 5 of the Family Report that at least Ms L appreciated the Maternal Grandfather's living circumstances.
The Mother cross‑examined her father about his hearing loss, but specifically in the context of his ability to adequately care for X if she were in his care. The Mother put very specific instances to him from the past about things he had said and done which suggested a serious hearing loss. Whilst this is not a major issue in this case, particularly having regard to the parameters of the Grandfather's proposal for quite limited time with X, the Court can nonetheless understand why the Mother would wish to explore the issue with her father in cross‑examination.
An obvious issue that caused a further deterioration in their relationship occurred when the Mother left her violent relationship with X's Father. From cross‑examination the Court was able to deduce that the Mother felt very strongly that, notwithstanding her experiences with him, the Maternal Grandfather appeared to give X’s father the benefit of the doubt. In cross-examination, he did not cavil with this. It is Dr P who is able to articulate the significance of this in terms of the relationship between the parties. For example, at paragraph 99 of his report, he refers to how the Maternal Grandfather "was probably invalidating of his daughter, particularly by siding with her ex‑partner". What was clear from the Mother's cross‑examination of her father on this topic is that he failed to demonstrate the insight that Dr P suggested he demonstrated at paragraph 99 of his report. This event seems to have had a significant impact on adversely affecting the trajectory of the relationship between the Mother, and the Maternal Grandfather.
In cross‑examination, the Mother put some very specific examples of abusive behaviour to the Maternal Grandfather. For example, she referred to six voice messages that he had left on her phone on a particular day which she described as abusive and including threats to call the police. His response was that he did not recall. In later questions, he seemed to acknowledge that, yes he did leave messages, but again insisted that he didn't recall them being abusive. Again, a very specific example of abusive messages was put to him, this time that if the Mother did not bring X to see him, the Maternal Grandfather would be going to Court and the police. He denied this message, but the objective evidence before the Court is that he both commenced these proceedings, and called the police to do a welfare check. The Grandfather's denials in this regard were quite unconvincing, as was his evidence that he simply did not recall.
Again, the Mother put to him very specific examples of what she called "violent verbal outbursts to me and Mum" during the relationship. His immediate response was to the effect: "Give me an example". Again, a perfect example of what Dr P refers to at paragraph 85 of his report, but yet another example of how Dr P's optimism about the Maternal Grandfather is perhaps premature. The proposition the Mother put to him was her specific recollection that when he came home from (employment omitted) he would be violently angry, constantly shouting at the Maternal Grandmother and always screaming, yelling and swearing. He denied this. He said: "I did not swear.” In the very next question, however, he answered that yes he did swear when he was depressed, which, of course, was at any time after 1996.
At one point, the Mother put to her father that there were angry outbursts and swearing, and he was "putting me down, saying that I was not going to get anywhere …". The Grandfather responded words to the effect: "I never, ever put you down ‑ I encouraged you …" Again, the difficulty with the Grandfather's evidence is that it is so inconsistent with Dr P's evidence, for example, at paragraphs 60, 61, 75 and 77. The Maternal Grandfather's general denials about anger issues were not just undermined by his own treating psychiatrist's report, but also by the Mother's cross‑examination about when he purchased a campervan in 2002, which experienced gearbox failure and which caused the Grandfather to become very angry, to argue with the dealer, and indeed to make threats to the dealer. The Mother put to him:
You were in such a rage, you were screaming, spit was coming out of your mouth, you were swearing, calling these people the worst of names.
The Maternal Grandfather agreed that he was angry, but maintained that he was not as angry as the Mother was asserting.
The Mother cross‑examined her father about his drinking and he suggested that in the past, and even now, he would drink about a case of beer each week, being between two‑four beers daily.
The Mother specifically put to her father an incident during the period when he was depressed when he was screaming and angry so much that his fists were clenched, all over the Maternal Grandmother forgetting to record a football game. The Mother's question was very graphic:
You came back out, Mum explained that it didn't record, and you went into a rage, standing over her, your face against her, your fists clenched.
In cross‑examination, all the Grandfather could say in response to this very graphic description of an incident was that he didn't recall. He insisted that it never got to clenched fists. The Maternal Grandfather's denials were unconvincing.
The Maternal Grandfather's evidence was genuine insofar as it sought to depict his heartfelt yearning to resume a relationship with X. His evidence about the benefits of the resumed relationship for the child was poignant. His evidence about the nature of his relationship with his daughter, and in all likelihood, his wife, was unconvincing. There were inconsistencies, often glaring ones, between Dr P's evidence about the Maternal Grandfather and his own evidence in the witness box. It is more likely than not, the Court finds, that there is substance to the Mother's allegations about the Maternal Grandfather being angry and abusive in their relationship. As will be seen from a discussion of the Mother's evidence below, it may be possible that her depiction is both quantitatively and qualitatively overstated. Nonetheless, the Court will safely conclude that there is sufficient evidence for it to find that the Maternal Grandfather's abusive and angry behaviour after 1996 was a major contributor, in fact probably the single greatest contributor, to the estrangement in his relationship with his daughter, the Mother in these proceedings. As it turns out, the Court will find that there is indeed some objective basis to the Mother's concerns.
The Evidence of the Respondent Mother
The Mother's affidavits consisted of one sworn 7 November 2013, when she was legally represented, and another one sworn 17 November 2016, when she was representing herself. The history that she gives is consistent with the chronology recited at the beginning of these reasons for judgment. It would be almost an understatement to say that she states very serious concerns about her father and his abusive behaviour, directed not just towards her, but to her mother as well. In general terms, she raises concerns about her father's angry, violent verbal outbursts, his excessive drinking, and his threatening and intimidating behaviour not just towards her and her mother, but to third parties, including to the dealer who had sold the campervan to him.
The Mother was extensively cross‑examined by telephone on 19 July 2017. In cross‑examination by Mr Ladopoulos, Counsel for the Independent Children's Lawyer, she made it very clear that she simply could not abide by an order that provided for X to spend time with the Maternal Grandfather because of his past abusive behaviour. She agreed that it was at least four years since she had seen her father, and that she was very sceptical indeed if he could change in that period. She said, quite openly, that the things that she had heard him say in Court gave her little hope to believe that he could change. She had read the transcript of the Maternal Grandfather's cross‑examination by the two Counsel. She had read Dr P's report, but was sceptical because Dr P had not heard her side of the case or her mother's side. She steadfastly would not believe that her Father had changed or would change. Her attitude was that she would not "put up with any more abuse …” and that she “just want to focus on my freedom, my family and X”.
The Mother was extensively cross‑examined by Ms Gillies. The Mother agreed that reading Dr P's report merely fortified her views that her father should not have any contact with X. She agreed that her evidence depicted her father as continually abusive of her, and of her mother throughout their life. From her perspective, he was a man unable to contain his anger and who thus presented a risk to the public at large. From her perspective, he was a man with no insight into his own problem, and no ability to change his behaviour. She simply would not accept Dr P's view that her father has changed. To be fair to the Mother, by the time she was cross‑examined, she had finished cross‑examining her father. On any objective review of the evidence of both the Grandfather and Dr P, the obvious inconsistencies are apparent. It is hardly surprising with respect that the Mother would have so little confidence in Dr P's assessment of the Maternal Grandfather.
The Mother was extensively cross‑examined about her WorkCover claim against the (employer omitted), which was consequent upon a workplace injury she sustained when working with the (employer omitted). Throughout the WorkCover claim, the Mother was seeing her psychologist, Ms B, who was obviously providing reports to WorkCover in that context. What Ms Gillies managed to skilfully elicit from cross‑examination of the Mother about Ms B's records is one of two scenarios: firstly, that between 2008 and 2012, the Mother never mentioned to her psychologist the concerns that she had about the Maternal Grandfather, or, secondly, that she mentioned these concerns but they were not recorded.
The Mother insisted that she had mentioned the Maternal Grandfather's conduct several times to Ms B, but for whatever reason it was not written down. This is possible, but unlikely. It is possible because Ms B was well aware of the context of their engagement ‑ a WorkCover claim, and that she might be careful not to record matters extraneous to that. Nonetheless, Ms B is clearly a professional psychologist who prepared business records with no ulterior purpose. The more likely scenario is that the Mother didn't mention the difficulties that she was experiencing in her relationship with the Maternal Grandfather, because the context of her consultation with Ms B was a WorkCover claim, and she didn't want any uncertainty, or complication, created by giving a history of facts that might detract from her claim.
Ms B's notes are business records and should be accorded significant weight accordingly. However, it's not as if the Mother never mentioned the concerns she had about her father, and on completion of the WorkCover claim, it is clear that the frequency with which these matters were mentioned increased.
On behalf of the Maternal Grandfather, what was sought to be established by the cross‑examination of the Mother was that the absence of corroborative evidence of her complaints about her father's abusive behaviour suggests that it didn't occur. But there are many reasons, in this Court's experience, why the victims of abusive behaviour do not disclose the same. Equally, there are many reasons why the Maternal Grandmother, who is 81, might not have wanted to give evidence in a case where the Grandfather's own evidence via his treating psychiatrist suggests that she might have experienced the Maternal Grandfather to be abusive. It is not necessarily the case that the Maternal Grandmother's evidence would not have assisted the Mother's case, and that an adverse inference should be drawn.
With respect, the problem with trying to undermine the Mother's evidence in the manner undertaken was that it didn't address the obvious deficiencies in the Maternal Grandfather's own evidence.
In any event, a very close examination of the file produced by Ms B does reveal consistent references to the Mother's concerns about her father, but they all commence from 2013, after the conclusion of the WorkCover claim. This is consistent with the hypothesis, which the Court considers to be the most likely one, that the focus of the intervention with Ms B up until 2012 was the WorkCover claim, and thus, the absence of any corroborative reference to the Mother's experiences of her father before that date do not necessarily undermine the credibility of her assertion.
What the Mother did concede in cross‑examination, however, was a willingness to provide her father with a post office box that he could use to send letters, gifts and cards to X on her birthday, and at Christmas and Easter. She also agreed that those gifts, cards and letters would be passed on to X, provided they were appropriate, meaning there was nothing negative about them.
The Court accepts the Mother's evidence in this case. The Court finds that her version of the Grandfather's behaviour towards her during their relationship is more likely to be true, than his.
Orders in the Best Interests of X?
The evidence in this case will be discussed by reference to the considerations set out in section 60CC of the Act, in thus attempting to formulate an order that is in the best interests of X. The Court acknowledges at the outset that the Application is between X's Mother, and her Grandfather. Section 60CC more often than not refers to "parents", not grandparents in some paragraphs, but in other paragraphs, it is plain that grandparents are contemplated. Ultimately, section 60CC(3)(m) gives the Court a very wide discretion to take into account any other fact or circumstances that the Court thinks is relevant. In the present case, the Court believes that all of the relevant considerations apply with regard to the Grandfather.
It is highly unlikely that the Maternal Grandfather has a meaningful relationship with X. The Mother certainly does. He aspires to have that meaningful relationship, and it is possible even on his proposal, that the basis for one would be established. The Court is prepared to accept, as a matter of principle, that there is a benefit to X in having this sort of relationship with her Grandfather. It does not necessarily follow, however, that there would be a detriment to her if she did not have a relationship with her Grandfather. Ms L, the Family Consultant, was of the view that there was no such detriment to X if no contact were ordered. The Court takes this into account in a general sense. If there is no detriment to X in not having a relationship with her Grandfather, the benefit to her of having this relationship must take into account all the other circumstances that are contemplated by section 60CC, including, in this case, the unfortunate dynamics of her Mother's relationship with her Grandfather.
The Mother's case was that X needed to be protected from the risk of harm that would come from a relationship with her Grandfather. In this regard, there is no objective evidence of harm being perpetrated in the past. There is no present risk because no contact is occurring. The Mother's prognostication of future risk is based entirely on her own dysfunctional relationship with her father. She experienced him to be angry, abusive, volatile and intimidating. Her concern is that he will manifest these behaviours in front of X. Given her father's proposal, however, it is highly unlikely that this would ever occur in a supervised contact environment. Any such risk would, therefore, be managed by supervision. Of course, supervision is a short‑term measure, and, in any event, risk assessment is not the only perplexing issue in this case. It must be remembered, however, that the Grandfather's proposal is that his time be supervised only for the first three months after the date of making orders. This proposal was not formally abandoned during the hearing. The Court's sense of the Grandfather's evidence, however, is that he would take advantage of any arrangement for him to spend time with X, even a supervised arrangement. It was quite unclear from the evidence how he could possibly afford this, given his living circumstances. He certainly did not lead evidence to suggest that he could pay for an ongoing supervised contact arrangement. The Court would not be prepared to order ongoing supervised contact at a supervised contact centre. Quite apart from an order raising issues about public interest, the Court would be concerned about how X would experience a permanent supervised contact order.
The Court concludes that there no risk of harm against which X needs to be protected in this case. Even if the Court accepts, as indeed it does, that the Mother experienced her father in a certain way, it does not follow that this behaviour would be similarly exhibited to X.
It is probably the case that X once had a good relationship with her Grandfather. The Court is prepared to give him the benefit of the doubt in this regard. It is likely that the Mother's perception of X's relationship with the Maternal Grandfather is coloured by her own experience with her father, and the implacable beliefs that she continues to hold about him. There is no doubt that X enjoys a good relationship with her mother who has been her primary carer for all of her life. A reasonable inference to draw from the evidence is that the Maternal Grandmother, who lives with them, is also an important figure in her life. As foreshadowed, however, the reality is that X does not have a relationship with her Grandfather now indeed probably would not recognise him. This is a significant factor that was perhaps not given adequate attention during the course of the hearing. If an order for time between X and her Grandfather were made, it would need to be carefully structured to, in effect, reintroduce the Grandfather into her life in circumstances where the Court believes the Mother would be exceedingly apprehensive about this. There were expressions of concern from the Family Consultant about how X would cope.
The Mother has, for all practical purposes, excluded the Grandfather from X's life for several years. This is a decision she consciously made. It was based on her own highly adverse experience with her father, X's Grandfather. On balance, and after having heard the evidence of both parties and closely examining the other evidence in this case, the Court concludes that there is quite some substance to the Mother's evidence of how she experienced her father in her life. He probably was verbally abusive, aggressive, erratic and intimidating at times. It is highly likely that the Mother's belief was based on objective fact. However, the Mother's fear that the Maternal Grandfather would act in a similar fashion towards X, as he did to both the Mother and probably the Maternal Grandmother, is a subjective one with little objective basis. Even though Dr P, the Maternal Grandfather's own psychiatrist, described him as a work in progress, the Court is comfortably satisfied that he is not the man today who he was even four years ago. He has had the benefit of extensive therapy and mental health support. Whilst Dr P probably presented an overly optimistic view about the Maternal Grandfather's present condition and future prognosis, the Court is satisfied that the risk to X of experiencing what the Mother experienced is a manageable one.
Even though the Court has found that the Mother's subjective concern about the risk that the Maternal Grandfather presents to X has no objective basis that should not be interpreted as a finding that the Mother's stance was unreasonable. The Mother's view about future risks pertaining to X is entirely based on the Mother's own experience of the Maternal Grandfather. It is interesting to observe the absence of any apology, expression of regret or remorse or any conciliatory gesture from the Maternal Grandfather. He commenced litigation to pursue what the Court accepts he believed to have been his right as a Grandfather to spend time with his granddaughter. This is notwithstanding the fact that, in cross‑examination, he conceded that the proceedings must have been a tremendous emotional burden on the Mother, which must have had an impact on X.
One of the concerns that the Court has, foreshadowed above, is the likely impact on X of any changes in her circumstances such that she would be spending time with her Grandfather even in a supervised environment. The context of such change must be fully appreciated in order to understand the likely effect of this change on her. The Mother's fears about X, and the seemingly intractable stance that she adopted about not complying with any order that would see X spend time with her Grandfather, all compound the likely effect on X of this significant change in her life. The least change for X would be not making the order proposed by the Maternal Grandfather.
The only issue of practical difficulty and expense that arises in this case was foreshadowed earlier in these reasons, ie, that even if the Court were prepared to countenance an ongoing supervised contact arrangement that was fully funded by the Maternal Grandfather, there was no evidence adduced that he would have the capacity to sustain this into the future.
The Court must consider the capacity of both the Mother and Grandfather, to provide for the needs of X, including emotional and intellectual needs. The Mother's evidence certainly did raise concerns about her father's physical capacity to adequately care for X and not just because of what she regarded as his volatile, aggressive and intimidatory nature. The Mother cross‑examined her father, for example, about his hearing loss. In her affidavit, she gave examples of situations where the Grandfather's inability to hear properly had led to difficult situations. In a supervised environment these concerns can be adequately managed.
The Mother's capacity to meet X's needs was relatively unchallenged, except to the extent that the child had an emotional need that involved the inclusion of her Grandfather in her life. Clearly, the Mother lacks the capacity to forgive her father, and forget what he did to her. He could have done far more in recent years to create an environment in which the Mother might even take a tentative step towards forgiveness. If there were no objective basis at all for the Mother's concerns about the Maternal Grandfather due to his past behaviour towards her, the Court may well have adopted a different approach in this case. However, the Court is comfortably satisfied from the evidence that the Mother became estranged from her father because of what he did. In any event, the family consultant seemed to downplay the significance of the Maternal Grandfather in X's life in the overall scheme of things. Thus, the criticism of the failure to provide this emotional need must be measured in that light.
Likewise, a criticism was sought to be made of the Mother's attitude, and of her responsibilities as a parent in seeking to exclude the Maternal Grandfather from X's life. But for the complex relational dynamics that exists in this case, this criticism might have more substance. The Court rejects any submission, whether expressed or implied, that the Mother's complaints against her father were manufactured. That is plainly inconsistent with the totality of the evidence. Indeed, the strongest indicator against such a submission is the evidence of Dr P, which suggested that the Grandfather did behave in the past in ways very consistent with the allegations made against him by his daughter.
The Court must take into account family violence. It is possible that the Mother experienced her father's behaviour in a way that is consistent with the modern definition of family violence set out in section 4AB of the Act. It takes the matter no further in this case.
The Court must seek to make an order that is least likely to lead to the institution of further proceedings in relation to X. In this regard, the Court simply cannot ignore the Mother's clear evidence that even if an order were made she simply could not facilitate and thus comply with this order. There is no basis for not accepting the Mother's evidence in this regard. Her views about the future risks to X are firmly based on her own past experiences with the Maternal Grandfather. In this regard, the Family Consultant was wrong in believing that the Mother could comply with any order made. What this means, of course, is that if the Court makes the order that the Maternal Grandfather proposes, subsequent proceedings will be almost inevitable. A Contravention Application may result. The Mother may well argue in those proceedings that she had a reasonable excuse. Even if this argument was not accepted and the Contravention was found without reasonable excuse, the most likely outcome would be the imposition of a bond to comply with the order. The Court's impression of the Mother is that this is hardly likely to change the Mother's intransigent belief in relation to the risks which she believes that her father still holds towards X.
Conclusion
This is a very sad case. The dysfunctional relationship which the Maternal Grandfather had with the Mother in this case has led, eventually, to the Grandfather losing the relationship he had with his granddaughter. There is nothing that the Court can do about that now. Ultimately, the least of the worst option is for X not to see her Grandfather. It is of interest, and of significance, that the Mother in effect agreed to Orders 3 and 4 of the Grandfather's Minute of Order that enable him to send letters, gifts and cards. This will mean, in all likelihood, that some semblance of a relationship can be maintained between them. That is the best that can be done under the circumstances.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 14 September 2017
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Family Law
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