Booth & Remington
[2023] FedCFamC1F 625
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Booth & Remington [2023] FedCFamC1F 625
File number: NCC 2009 of 2009 Judgment of: SMITH J Date of judgment: 28 July 2023 Catchwords: FAMILY LAW - CHILDREN - With whom a child lives – Best interests of the child – parental responsibility – sole parental responsibility – where the children are paternal half-siblings – where history of litigation – where one child has no knowledge of the father – where other child has no relationship with father or paternal grandmother, gave evidence against the father in criminal proceedings and does not want to spend time with them - where there are historical allegations of sexual assault against the father – where father was involved in criminal proceedings – where father has withdrawn from these proceedings and no application pressed – where paternal grandmother seeks time with and communication with the children – Held children to live with respective mothers – children to spend no time with paternal grandmother – confirm injunction against father from spending time with or communicating with children – injunction against paternal grandmother from communicating with children – exception where communication initiated by child’s mother. Legislation: Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC, 65AA, 68B, 68C, 70NBA Cases cited: Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Division 1 First Instance Number of paragraphs: 132 Date of hearing: 17–18 July 2023 The Applicant: Litigant in person The First Respondent: Litigant in person The Second Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Mueller Solicitor for the Independent Children's Lawyer: Legal Aid NSW Gosford Family Law ORDERS
NCC 2009 of 2009 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOOTH
Applicant
AND: MS C
First Respondent
MS B REMINGTON
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
28 July 2023
THE COURT ORDERS THAT:
X:
1.All previous Orders be discharged.
Parental responsibility:
2.The mother Ms Booth born 1982 (“the mother”) is to have sole parental responsibility for making decisions about the major long term issues concerning the child, X born 2011 (“the child”), including the care, welfare and development of the child. These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.
Live with:
3.The child X live with the mother Ms Booth.
Injunctions:
4.Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Remington born 1983 be restrained from:
(a)contacting or attempting to contact the child by any means, including through a third party, or responding to any contact from the child;
(b)approaching or coming within 100 metres of any place where the child might reside from time to time;
(c)approaching or coming within 100 metres of any place where the child might attend day care or school; and
(d)however, is not restrained from communication with the child initiated by and in the presence of the mother.
5.Pursuant to s 68C the injunction in Order 4 above pursuant to s 68B of the Family Law Act 1975 (Cth), is for the personal protection of the child X.
6.Pursuant to s 68B of the Family Law Act 1975 (Cth), Ms B Remington born 1955 be restrained from:
(a)contacting or attempting to contact the child by any means, including through a third party, or responding to any contact from the child;
(b)approaching or coming within 100 metres of any place where the child might reside from time to time;
(c)approaching or coming within 100 metres of any place where the child might attend day care or school; and
(d)however, is not restrained from communication with the child initiated by and in the presence of the mother.
7.Pursuant to s 68C the injunction in Order 6 above pursuant to s 68B of the Family Law Act 1975 (Cth), is for the personal protection of the child X.
Passport and International Travel:
8.The mother Ms Booth born 1982 have sole parental responsibility in respect of the child X born 2011 in respect of any application for a passport and in any travel outside the Commonwealth of Australia.
9.The Mother be authorised to apply and forthwith obtain an Australian passport for the Child so as to enable her to travel in and out of the Commonwealth of Australia.
10.The consent of the Father Mr Remington born 1983 to the issuing of such an Australian passport for the Child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
11.The Child be permitted to depart the Commonwealth of Australia.
12.A copy of these orders may be provided to any school or similar institution at which the child attends from time to time.
Y:
1.All previous Orders be discharged.
Parental responsibility:
2.The mother Ms C born 1989 (“the mother”) is to have sole parental responsibility for making decisions about the major long term issues concerning the child, Y born 2009 (“the child”), including the care, welfare and development of the child. These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.
Live with:
3.The child Y born 2009 live with the mother Ms C born 1989.
Injunctions:
4.Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Remington born 1983 be restrained from:
(a)contacting or attempting to contact the child by any means, including through a third party, or responding to any contact from the child;
(b)approaching or coming within 100 metres of any place where the child might reside from time to time;
(c)approaching or coming within 100 metres of any place where the child might attend day care or school; and
(d)however, is not restrained from communication with the child initiated by and in the presence of the mother.
5.Pursuant to s 68C the injunction in Order 4 above pursuant to s 68B of the Family Law Act 1975 (Cth), is for the personal protection of the child Y.
6.Pursuant to s 68B of the Family Law Act 1975 (Cth), Ms B Remington born 1955 be restrained from:
(a)contacting or attempting to contact the child by any means, including through a third party, or responding to any contact from the child;
(b)approaching or coming within 100 metres of any place where the child might reside from time to time;
(c)approaching or coming within 100 metres of any place where the child might attend day care or school; and
(d)however, is not restrained from communication with the child initiated by and in the presence of the mother.
7.Pursuant to s 68C the injunction in Order 6 above pursuant to s 68B of the Family Law Act 1975 (Cth), is for the personal protection of the child Y.
Passport and International Travel:
8.The mother Ms C born 1989 have sole parental responsibility in respect of the child Y born 2009 in respect of any application for a passport and in any travel outside the Commonwealth of Australia.
9.The Mother be authorised to apply and forthwith obtain an Australian passport for the Child so as to enable her to travel in and out of the Commonwealth of Australia.
10.The consent of the Father Mr Remington born 1983 to the issuing of such an Australian passport for the Child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
11.The Child be permitted to depart the Commonwealth of Australia.
12.A copy of these orders may be provided to any school or similar institution at which the child attends from time to time.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Booth & Remington has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
These consolidated proceedings concern the parenting orders pursuant to the Family Law Act 1975 Cth (“the Act”) to be made in the best interests of Y (born 2009) aged 14 and X (born 2011) aged 11. Where appropriate I will refer to Y and X jointly as “the children”.
Y and X are paternal half-sisters. Their father is Mr Remington aged 39 (“the father”). The father is the adopted son of Ms B Reminton aged 68 (“the paternal grandmother”).
The father and Ms C aged 34 are the parents of Y.
The father and Ms Booth aged 40 are the parents of X. Where appropriate I will refer to Ms C and Ms Booth jointly as “the mothers”.
The proceedings relating to Y and X were consolidated due to the involvement of the father and the paternal grandmother as parties in both proceedings and because the allegations that the father sexually assaulted Y and also Z, who is X’s maternal half-sister, are relevant to the orders to be made for both Y and X.
Y and Z both gave evidence in a District Court prosecution of the father for separate alleged sexual assaults. Those proceedings were on foot from 2017, were apparently delayed by COVID-19, and concluded in 2022 with an acquittal.
The father and the paternal grandmother maintain the father’s innocence. Their position is that given the result of the criminal proceedings this Court would find that the father does not pose any risk to the children, and on that basis that both children should spend time with and communicate with both the father and the paternal grandmother.[1]
[1] ICL 1, CIR at [34].
In oral evidence the paternal grandmother stated that she believed the respective sexual assault allegations were fabricated by Ms C and by Ms Booth for the purposes of these family law proceedings. The paternal grandmother also stated that despite holding that view she did not think poorly of either Ms C or Ms Booth and that her views of the mothers would not impact her capacity to spend time with either child and to keep her views to herself.
Ms Booth and Ms C deny that they fabricated these allegations and coached Z and Y to make them. Ms C and Ms Booth maintain that the father poses an unacceptable risk of sexual harm to Y and X.[2] Their position is that the absence of evidence to the criminal standard does not mean that the father does not pose an unacceptable risk of sexual harm to Y and X applying the standard applicable in these proceedings.[3]
[2] ICL 1, CIR at [33], [39].
[3] Isles & Nelissen (2022) 65 Fam LR 288.
The matters for determination at Trial significantly narrowed as the father sought and was granted leave to withdraw from the proceedings.
The paternal grandmother maintained her applications to spend time with Y and X. The paternal grandmother did not press her applications for communication with either child. She agreed that communication would not work given the need for the two mother’s to act as gatekeepers and noting the history of contravention applications around communication orders in these proceedings. The paternal grandmother did not press her application for orders for the father to spend time with or communicate with either child in circumstances where he elected to withdraw and to not participate in the final hearing.
The only issues for determination, therefore, are whether it is in the best interests of Y or of X to spend unsupervised time with the paternal grandmother for one day per month.[4]
[4] Paternal grandmother’s Amended Response to Initiating Application filed 21 April 2022.
Ms Booth and Ms C each opposed the paternal grandmother’s applications.
A Court Child Expert, Ms E (“the expert”) was appointed to prepare opinions in these proceedings. She prepared a Child Dispute Conference Memorandum to Court on 6 May 2010 and two family reports in the period after that.[5] Those reports were not before the Court. The expert interviewed the parties and the children and prepared a Child Impact Report dated 8 September 2022 (“the CIR”) and an Addendum Child Impact Report dated 16 December 2022 (“the ACIR”). The expert gave oral evidence and was cross examined. The expert did not support the paternal grandmother’s applications as being in either child’s best interests.
[5] ICL 1, CIR at [9].
The Independent Childrens Lawyer (“ICL”) appointed to represent the children opposed the paternal grandmother’s applications and submitted they were not in either child’s best interests.
For reasons set out below I find that it is not in either Y’s best interests or X’s best interests that either of them should spend time with the paternal grandmother.
BACKGROUND
The father has four children with four different partners, so that each Y and X have three paternal half-siblings.
The father’s eldest child V was born in 2007 and is 16. V is the child of the father and Ms F. The father then had Y with Ms C in 2009 and X with Ms Booth in 2011. He had his youngest child Q, born 2013 aged 9, with Ms G. Neither V nor Q are the subject of current proceedings. The paternal grandmother says the father and she have relationships and spend unsupervised time with both V and Q.
Y lives with Ms C who has always been her primary carer and is a single mother. Y ceased spending time with the father in 2013 following the alleged disclosure of alleged sexual assault by the father. Y was four. She has spent no time with the father or the paternal grandmother since then. She knows who they are but has no relationship with either of them. She gave evidence at the father’s criminal trial.
Ms Booth was in a relationship with Mr Booth from 2000. They had two children, Z (born 2003) aged 20 and W (born 2005) aged 18. They were married in 2008. They separated in 2009.
Ms Booth met the father in 2009. They commenced living together in 2010. They did not marry. They had X. They separated in December 2011. The mother reconciled with Mr Booth, with who she remains married, and they recommenced living together with their children and with X.
Over the first 12 months of her life X spent approximately five hours per week with the father at his house. The paternal grandmother said in oral evidence she was involved in caring for X during those periods. Ms Booth said in oral evidence that she was unaware of that fact. X spent time with the father for approximately two hours per fortnight during the following six months as the father had moved to Sydney with his new partner.
That arrangement ceased as a result of an incident in 2013 in which Ms Booth alleges the father violently shook X as a consequence of hearing X, then 18 months old, call Mr Booth “daddy.”
X is in year six and commences high school next year. X has not spent time with the father nor the paternal grandmother since the incident in 2013. X believes that Mr Booth is her father and that Z and W are her full siblings. She has no recollection of the father nor of the paternal grandmother. She does not know they exist or who they are and does not have any relationship with either of them. She is not aware that she has three paternal half-siblings.
The father and the paternal grandmother have had no contact with Ms Booth or Ms C other than through the District Court criminal proceedings or these proceedings since 2013.[6] They do not know where the mothers live. The mothers want to keep their addresses and contact details private.[7]
[6] ICL 1, CIR at [28].
[7] ICL 1, CIR at [30].
PROCEDURAL BACKGROUND
Proceedings in relation to Y (NCC2009/2009) commenced in 2009 when she was not yet one.[8] Consent final orders were entered on 30 January 2012.
[8] ICL 1, CIR at [9].
On 17 February 2012 the paternal grandmother filed an Initiating Application (NCC379/2012) seeking time with X.
In 2013 Ms C made a complaint to police. She said that Y had made disclosures to her consistent with the father sexually assaulting Y.[9] Y was interviewed by police. No action was taken by police at that time. Y has spent no time with the father, nor the paternal grandmother, since 2013. She knows who the father and paternal grandmother are but has no relationship with them.
[9] ICL 3, MFI 4 at 12.
The two sets of proceedings were consolidated.
On 4 November 2013 consent final orders were entered simultaneously in relation to V, Y and X in the one proceeding (NCC2009/2009).
The orders for V were that his parents exercise joint parental responsibility, for V to live with his mother and spend regular time, and have regular communication, with the father and the paternal grandmother.[10]
[10] Orders dated 4 November 2013 before Judge Terry, Annexure “A”.
The 4 November 2013 consent orders between the father and the mothers discharged the 2012 orders in relation to Y, and in relation to each of Y and X, separately ordered that they live with their respective mothers, that their respective mothers have sole parental responsibility, and that there should be no time spent with the father. Each mother was also given a passport order. It was common ground that the parties, and the father, have understood and treated the father’s no time orders as incorporating no communication orders.
On 4 November 2013 separate consent orders were entered between the paternal grandmother and the mothers.[11] Those orders provided for the paternal grandmother to communicate with X and Y by forwarding letters, cards, presents and photographs to the mothers on Christmas, Easter, the child’s birthday and two other occasions per year. The mothers were to provide the paternal grandmother with school reports, photos and two short letters each year about the child’s well-being and activities.
[11] Paternal grandmother’s affidavit filed 19 April 2023, Annexure “D”.
There was also an order that Y and X spend time with the paternal grandmother at their respective mother’s discretion. In the exercise of their discretion no time with the paternal grandmother was allowed by either mother.
On 27 March 2014 the paternal grandmother filed a Contravention Application against both Ms Booth and Ms C.[12] On 6 May 2014, pursuant to s 70NBA of the Act, injunctions were made against the paternal grandmother and the mothers in relation to the posting of social media comments relating to the provision of photographs and letters, and the mothers were required to provide up to date photographs and to provide further and better quality letters to the paternal grandmother in complyance with the consent orders.
[12] Exhibit C.
On 22 August 2014 the paternal grandmother filed a further Contravention Application against Ms C relating to communication issues.
On 8 November 2016 Ms Booth commenced proceedings to change X’s surname to Booth. Those orders were made.
In 2017 Z was interviewed by JIRT officers with the Child Abuse Squad at Suburb H.[13] She was 13 years of age. Z told the police that over the two year period from when she was about seven to nine years of age and Ms Booth was in a relationship with the father and they were living with the father that the father would sexually assault her when Ms Booth was at work.
[13] ICL 4, MFI 4 at 98–118.
In about 2017 the father was charged with sexual assault. It appears that Y’s case was re‑opened as a consequence of Z’s allegations. Y and Z both gave evidence in the criminal trial in the District Court of NSW.
On 21 April 2017 the paternal grandmother filed a further Contravention Application in relation to the issue of cards and letters.
On 18 July 2017 Ms Booth filed a further Initiating Application (NCC2095/2017).
The father was acquitted of all charges in 2022.
This Trial had been delayed awaiting the outcome of the father’s criminal Trial.
TRIAL
This matter was heard on 17 and 18 July 2023. The parties were self-represented. The ICL was legally represented including by Counsel. The ICL provided a Court Book of 118 pdf pages (MFI 1) which contained all the parties’ material to be relied upon.
Ms Booth relied on the:
(a)Initiating Application filed 18 July 2017;
(b)Trial affidavit filed 14 April 2023, which was read without objections.
Ms C relied on the:
(a)Response to Initiating Application filed 1 September 2017;
(b)Trial affidavit filed 17 April 2023, which was read without objections.
The paternal grandmother relied on the:
(a)Amended Response to Initiating Application filed 21 April 2022;
(b)Trial affidavit filed 19 April 2023, which was read without objections;
(c)Trial affidavit of the father sworn 12 August 2017, read subject to weight and the father not being available for cross examination;
(d)Written Submissions (MFI 2).
The ICL relied on the:
(e)Child Impact Report dated 8 September 2022, prepared by Ms E (“the expert”) (Exhibit ICL 1);
(f)Child Impact Report Addendum dated 16 December 2022, prepared by the Expert (Exhibit ICL 2);
(g)Outline of Case document filed 14 July 2023 (MFI 3);
(h)Tender Bundle of 223 pdf pages (MFI 4).
Ms Booth, Ms C, the paternal grandmother and the expert were all required for cross examination.
The Tender Bundle included documentary material from which items were tendered and admitted as exhibits. The paternal grandmother also tendered various documents throughout the Trial. Exhibits will be referred to as appropriate.
APPLICATIONS
Ms Booth by her Initiating Application filed on 18 July 2017 relevantly sought orders that there be no time and no communication with or between X and the paternal grandmother.
Ms C sought the same orders by her Response filed 1 September 2017.
The paternal grandmother sought orders in her Amended Response filed on 21 April 2022 that Y and X each spend time with her one day per month from 9:00 am until 6:00 pm, with such time to occur on the first Saturday of each month. Implicitly that would involve Y and X spending time together as well as with the paternal grandmother.
The ICL’s Case Outline[14] and final proposed Minute of Order[15] as amended during final oral submissions sought a restatement and clarification of the existing no time and no communication injunctions orders in relation to the father and each of Y and X, and for similar injunctions in relation to the grandmother and each of Y and X, together with a restatement of the existing passport orders so that there is a single set of current orders for each child.
[14] MFI 3.
[15] MFI 5.
The parties and ICL all proceeded on the basis that it is appropriate for the Court to consider the orders concerning the paternal grandmother and Y and X de novo. I agree.[16]
X
[16] Rice & Asplund (1979) FLC 90-725.
The evidence
Ms Booth has not communicated with the paternal grandmother since at least 2016.[17] They have no relationship and there is clearly a high degree of animosity.
[17] Paternal grandmother’s affidavit filed 19 April 2023 at [11].
Ms Booth’s affidavit evidence was that she believed interactions with the paternal grandmother would “be detrimental to [X’s] psychological well-being”[18] and that as a result of the paternal grandmother’s “character and history nothing positive with (sic) come of interaction with [X]”.[19]
[18] Ms Booth’s affidavit filed 14 April 2023 at [21].
[19] Ibid at [22].
Ms Booth and Ms C both told the expert that:[20]
They do not believe the children will benefit from having a relationship with the paternal grandmother, as their experience of her is that she is controlling and that she is the driving force behind the father’s application to spend time with the children. They do not trust her and believe that she is a risk because she supports the father and does not believe that he sexually abused [Y] and [Z].
[20] Exhibit ICL 1, CIR at [40].
The expert described X as “very gregarious, intelligent and articulate”[21] with “a big personality and a great sense of humour”.[22]
[21] Ibid at [14].
[22] Ibid at [20].
X believes that Mr Booth is her father and that Z and W, with who she has a very close and loving relationship, are her full siblings. Obviously she is unaware of who the father and paternal grandmother are. X told the expert that her mother was the number one and Mr Booth the number two person in her world.[23]
[23] Ibid at [19].
X told the expert that she “would like to be detective, police officer or teacher when she leaves school as she wants to ‘Get the bad people who rape women’”.[24] In cross examination Ms Booth said that X was aware that Z was sexually assaulted, but not that it was her father who was alleged to have committed the assault.
[24] Ibid at [16].
The expert said that while X had been protected from the conflict it is inevitable that at some stage she will find out that Mr Booth is not her father, and that Z and W are half-siblings, and that her father allegedly sexually assaulted Z, and that all of this will be “devastating”.[25] In oral evidence the expert confirmed her assessment that the truth will likely be “devastating” for X, even when she is old enough to be told it.
[25] Ibid at [37].
The expert considered that when X, inevitably, learns the truth she will need a great deal of emotional and psychological support and that it is likely she will question her familial relationships. X’s ability to trust people is likely to be impacted.[26] The expert suggested in her report that the mother may need to explain the situation to X “sooner rather than later”[27] and to seek psychological support for X and herself.
[26] Ibid at [37]–[38].
[27] Ibid at [48].
However, in oral evidence the expert said that as X was now entering adolescence it was inappropriate to raise these issues with her now. The expert said that the mother might need to wait until X has made it through adolescence to tell her. The expert was advised of Ms Booth’s oral evidence that she was seeing a psychologist who was advising her on how to manage the issue and on when to tell X. The expert considered that an appropriate course.
In her opening the paternal grandmother said that it was her intention to be “…open and upfront” and that “if the children spend time with me, if they want to know the rest of their family, whether that’s their father, their uncle, their brother, sisters, I would not stop them.”
In cross examination it was put to the paternal grandmother that it would not be in X’s best interests to know the true situation and that this made X spending time with her impractical.
The paternal grandmother said that she accepted that X was not ready to know the truth yet. She said that she was willing to spend time with X on the basis that X was told that she was a family friend and nothing about the true situation. In that way when X is told the truth and has questions about the paternal family she will have an existing relationship with the paternal grandmother. The paternal grandmother will then be able to answer any questions X has about the broader paternal family and identity, assist with issues of medical history, introduce her to uncles and aunts and other relatives if X wants to meet them, and importantly make sure that X understands that she was never rejected by the paternal grandmother or the father or the broader paternal family. The paternal grandmother said that the father was adopted and that she had made sure he had involvement with the birth mother to ensure that he was able to know that his adoption was not because he was not wanted by his birth mother or family.
The paternal grandmother’s evidence on this topic applies to her attitude to Y too.
I accept the paternal grandmother sincerity in this evidence. I note that having considered this evidence, and the paternal grandmother’s focus on the longer term benefits to both children of knowing that they were not rejected by the paternal family, and on having a connection with someone who could answer questions they might have about that family and their paternal identity as they mature, the ICL in closing oral submission specifically withdrew the submission at paragraph [37] of the ICL’s written submissions[28] which was critical of the paternal grandmother’s “proprietorial attitude” towards the children and maintenance of this litigation when the orders are opposed by Y and by both mothers. I have taken this into account when considering the ICL’s costs.
[28] MFI 3.
In oral evidence the expert said that X should not be told the true facts now, which would be necessary for her to spend time with the paternal grandmother and know who she is, and that she could see no clear benefit to X now spending time with the paternal grandmother if X did not know who the paternal grandmother was.
The expert did not consider the paternal grandmother’s proposal, that X not be told who she was, practicable. On the paternal grandmother’s proposal, X would be left to wonder why she was suddenly spending regular time alone with a woman in her late 60’s she had never met, who was not as far as was apparent a family friend, with whom neither her parents nor Z nor W were spending time, and in circumstances where if X said she did not want to go she would need to be forced to attend to avoid breaching Court orders, but could not be told it was Court ordered because that would necessarily lead to questions about why the Court would order her to spend time with an older lady with no apparent connection to her or her family.
There would also be a real risk, even accepting the paternal grandmother’s evidence that she would make sure not to tell X the nature of their relationship, that X would find out the true situation before it was appropriate for that to happen. That might happen through inadvertence on the paternal grandmother’s part or through X becoming suspicious of the circumstances and questioning her half-siblings, mother or Mr Booth.
There would also be a real risk that, even through inadvertence, the paternal grandmother’s very poor view of Ms Booth, as someone who fabricated sexual abuse allegations, might be conveyed to X, putting X in a position of spending time with a stranger who did not like her mother.
Further, the expert said that given all of these issues, there was a high likelihood that orders for X to spend time with the paternal grandmother would not be complied with by Ms Booth given the history of the proceedings and Ms Booth’s views of the paternal grandmother. That would give rise to a risk of further litigation over X, which even if X was not aware of it, would place stress on the family and was not be in X’s best interests.[29]
[29] Exhibit ICL 1, CIR at [49].
X’s best interests
The paramount consideration is what is in X’s best interests (ss 60CA, 65AA) taking into consideration the factors set out in s 60CC.
The two primary considerations, in order of weight, are firstly the need to protect X from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and the benefits to X of having a meaningful relationship with both parents.
The paternal grandmother does not present a physical risk to X. I find that requiring X to spend time with the paternal grandmother does present a real risk of significant psychological harm from the risk that X will learn the real circumstances before it is in her interests for that to occur.
I further find that there is a significant risk of psychological harm of X being exposed to the paternal grandmother’s beliefs that her mother caused Z to believe false allegations of sexual abuse, and to go through a criminal trial, for forensic purposes in these proceedings. The paternal grandmother said she did not think badly of Ms Booth for doing this. I did not accept that evidence from the paternal grandmother taking into account the history of these proceedings, the conflict in them, and the content of the paternal grandmother’s views about what she believes Ms Booth has done.
X has a meaningful relationship with her mother. She has no relationship with the paternal grandmother. In these circumstances, I accept the expert’s opinion that there is no current benefit to X in being required to develop such a relationship now and that the paternal grandmother’s proposal that X spend time with her without knowing who she is or why they are spending time together is impractical.
While I accept the paternal grandmother’s evidence, and submission, that there may be a long term benefit to X in having a connection with the paternal grandmother so that when she finds out the truth she is able to explore the paternal side of the family, if she wants to, that long term benefit is significantly outweighed by the psychological risks posed to X of making the orders for time that the paternal grandmother proposes.
X has not expressed any views as she is not aware of the relevant circumstances. The mother has a good relationship with X, as does Mr Booth, Z and W who have all acted to protect X from the fact that Z alleges the father sexually assaulted her. There is no relationship with the paternal grandmother.
The paternal grandmother has sought to communicate with X to the extent permitted by orders. She had no obligation to maintain X.
There is no effect on X’s circumstances from the orders proposed by Ms Booth and the ICL. There is a significant change in X’s circumstance on the paternal grandmother’s application as X will be required to spend a day a month with an older lady she does not know, in circumstances discussed where it will make no sense why she is being forced to do so, and there is a significant risk that this process will cause her to learn the true position.
There are no issues with practicality of the paternal grandmother’s proposal in terms of time and cost but there is a significant issue of practicality of having X spend time with her without X knowing who she is or why she is being compelled to spend time with her.
X’s mother has the capacity to care for and to meet all of X’s needs. There is no current need of X’s which spending time with the paternal grandmother will meet.
To the extent to which the paternal grandmother says that she may provide a future benefit to X when X is old enough to be told the true situation, the paternal grandmother will be able to do so when X is an adult if X wishes to have that connection at that time.
There is a considerable risk that Ms Booth would not comply with the order. I accept that she genuinely believes that the paternal grandmother might breach the orders and introduce X to the father, might reveal the true situation to X, or might convey to X the belief that the mother fabricated the sexual assault allegations. Further, the history of litigation over whether or not letters sent were adequate to comply with orders makes it clear that the potential for ongoing litigation over every issue is significant. The orders proposed by the ICL are least likely to lead to further ligation which is in X’s best interests.
While there may be some long term benefit to X in having a relationship with the paternal grandmother when X is an adult, the significant risks to X’s psychological well-being and safety mean that it is not in X’s best interests that she spend any time with the paternal grandmother nor have any communication with her prior to the age of 18.
Y
The evidence
Ms C has not communicated with the paternal grandmother since, at the latest, 2016.[30] In her very short affidavit she said that there was “an extensive history of animosity and distrust between” herself and the paternal grandmother. Given the paternal grandmother’s oral evidence that she believes that Ms C fabricated the sexual abuse allegations, I find that is an accurate portrayal of the relationship and prefer it to the paternal grandmother’s evidence.
[30] Paternal grandmother’s affidavit filed 19 April 2023 at [11].
Ms C also told the expert she believes the paternal grandmother poses a risk to Y as she does not believe that the father sexually abused Y.[31]
[31] ICL 1, CIR at [40].
Y’s position is different to X’s. While Y has not had any contact with the father since 2013 she knows who he is and gave evidence against him in criminal proceedings. She knows who the paternal grandmother is but has no relationship with her.
When interviewed by the expert for the CIR on 8 September 2022,[32] Y presented as “extremely anxious”.[33] Y told the expert:[34]
24.[Y] said that despite her having very little recollection of the father, she is curious about him and said that she would at least like to meet him in a supervised setting.
25.With regards to the paternal grandmother, she said she had not thought about spending time with her at all, but had thought about the father a lot.
26.[Y] was unsure if after seeing the father for the first time that she would want time with him to continue. She thought that it may just be a one-off, but was of the view that if she did want to spend further time with the father that the mother would support her and make those arrangements, as long as it was safe to do so.
[32] ICL 1, CIR at 3.
[33] Ibid at [22].
[34] Ibid at [24]–[26].
Y told the expert that did not want to spend time with paternal grandmother “but is agreeable to the paternal grandmother corresponding with her”.[35]
[35] ICL 2, ACIR at [4]–[5], [7].
Ms C told the expert that Y was “curious about the father” and that if Y wanted contact or communication she would comply with orders to that effect.[36]
[36] ICL 1, CIR at [35], [39].
During the course of discussions with Y the expert unwittingly let Y know that in addition to X, who Y was aware of, there are two other half-siblings. The expert did not realise that Y was not aware of V or Q. Y told the expert that she had no interest in meeting her half-siblings.[37]
[37] ICL 2, ACIR at [4]–[5].
The father and the paternal grandmother told the expert that if Y did not want a relationship with them then they would abide by her wishes.[38] Despite telling the expert that she would abide by Y’s wishes the paternal grandmother maintains this application.
[38] ICL 1, CIR at [42].
After the release of the CIR the ICL spoke with Y. Y told the ICL something different to her position expressed in the CIR. This was brought to the Court’s attention. On 4 October 2022, I made orders for a further interview to clarify Y’s views.
The expert spoke with Y again on 14 December 2022. The expert raised with Y the fact that at the first interview she told the expert that she did want to see her father, but then told the ICL she had changed her mind. Y told the expert the first interview had been overwhelming and that her view was that she did not want to spend time with the father as he was still a threat to her.[39] Y said that her view was that the only way to keep herself safe while maintaining contact with the paternal grandmother is to accept correspondence only, with that correspondence being screened by her mother.[40]
[39] ICL 2, ACIR at [10]–[11].
[40] Ibid at [14].
The expert said that Y’s wish that she not spend time with the father should be given “significant weight”.[41] In oral evidence the expert said that Y’s wish to not spend time with the paternal grandmother should also be given significant weight.
[41] Ibid at [16].
The paternal grandmother said that although she respects Y’s wishes, she believes that in the long run it will be in Y’s best interests to develop a relationship with her so that Y knows she has not been rejected by the extended paternal family. She said she wanted Y to have access to her so that she would be able to ask questions about medical history if necessary and to find out other matters concerning her background as needed. The paternal grandmother’s evidence set out elsewhere concerning the long term benefits to X also apply to her evidence and submissions regarding Y.
The paternal grandmother said she would not let Y know her views that the sexual assault allegations were fabricated by Ms C when Y was just four.
She said she would not allow the father to attend on their time together.
The expert expressed the view in the report that Y having been the subject of ligation since 2009 needed to be protected from further litigation and conflict.[42]
[42] ICL 1, CIR at [49].
The paternal grandmother produced a Facebook friend request from Y to the father which was shown to Ms C. Ms C said that she and Y were searching for the father on Facebook because of Y’s interest in knowing about him, and that this might have accidentally triggered the request.
The paternal grandmother sought to give hearsay evidence from the bar table to the effect that a girl telephoned the father’s mobile phone, at some time after the criminal trial concluded, saying that she did want to speak with him. There is no direct evidence of that or of when it allegedly occurred. The expert conceded that might be possible, given Y’s age and the complex nature of the situation and noting her statements in the first interview, that Y had tried to contact the father.
The expert stated in her oral evidence that in all of the circumstances she did consider it was in Y’s best interests to be required to spend time with the paternal grandmother against Y’s express wishes.
Y’s best interests
The paramount consideration is Y’s best interests (ss 60CA, 65AA) taking into consideration the factors set out in s 60CC.
The two primary considerations, in order of weight, are again firstly the need to protect Y from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and then the benefits to Y of having a meaningful relationship with both parents.
Y is aware of who the paternal grandmother is so the risk issue of learning the true situation from the paternal grandmother does not exist. However, there is still a risk that Y will become aware that the paternal grandmother believes her mother fabricated the sexual assault allegations and required her to participate in a criminal trial purely for forensic purposes related to family law proceedings. The potential psychological risk to Y of being exposed to the view that her mother is a liar who abused her trust in this way is significant.
Y has been through a traumatic process in giving evidence against the father. She has no relationship with the paternal grandmother. She has expressed a view that she does not feel safe spending time with the paternal grandmother. I find there would be a significant risk of psychological harm in forcing Y to spend time with the paternal grandmother against her wishes when she has expressed fear of doing so.
Y does not have a relationship with the paternal grandmother. The expert did not see any benefit to Y in trying to develop a relationship with the paternal grandmother at this stage, particularly when Y does not feel safe doing so.
The paternal grandmother has taken the opportunity to communicate with Y to the extent she was permitted to do so by Orders. She had no obligation to maintain Y.
There is no change of circumstance and no effect on Y of respecting her views and not requiring her to spend time with the paternal grandmother.
Requiring Y to spend time with the paternal grandmother against her wishes would be a significant change of circumstance which may affect her feeling of safety and her psychological well-being.
There are no practical difficulties in terms of time or money with either proposal.
Ms C and or Y may not comply with the orders given Y’s age and stated views. The history of this matter shows that there is a high likelihood of non-compliance and litigation over the details of compliance or non-compliance. The ICL’s proposed orders have the least risk of future litigation.
I consider relieving Y of the burden of further involvement in conflict and Court proceedings, and the need to potentially be re-interviewed by experts and others yet again, as another significant factor weighing in favour of the ICL’s proposal.
Given Y’s age, the circumstances surrounding the allegations, and the fact that she has been through a criminal trial as the complainant, I accept and agree with the expert that Y’s views she be given significant weight.
Y is aware of the paternal grandmother and that she wants to have a relationship. If, when Y is an adult, Y wants to contact the paternal grandmother Y will be able to have the benefits of access to information about her identity that the paternal grandmother raised.
I am comfortably satisfied that requiring Y to spend time with the paternal grandmother against her wishes poses a serious and unacceptable risk of psychological harm to Y and that the paternal grandmother’s proposal for time is not in Y’s best interests.
The paternal grandmother did not press a communication order but did oppose the formulation of the injunction proposed by the ICL in relation to her, and the father, on the basis that it would prohibit the father or her from answering a call from Y or responding to an email or friend request. Given that such a phone call or email would suggest that Y had changed her mind it was submitted to be harmful to Y to prevent a response to contact initiated by her.
DECISION
In respect of the father, who did not participate, the paternal grandmother did not press her applications in respect of varying the orders in place for the father.
There are current orders that the mothers have sole parental responsibility, passport and international travel orders, and that the father have no time with either Y or X. I am told and accept that the parties, including the father, have all interpreted those orders as being no time and no communication orders for the father. That was clearly the mutual intention at the time, noting the distinction that allowed the paternal grandmother to communicate with the children on certain terms.
The ICL proposed that for clarity in relation to the communication, and so that there are a single set of orders in one place for each child, the Court should restate the no time and no communication injunctions as between the father and Y and X and, for the avoidance of doubt, make it clear that this extends to the father not taking calls from Y, or X, or responding to messages if she sends them. I accept that submission and will make those orders.
For the reasons set out above I find that the paternal grandmother’s proposals to spend time with Y and X are not in either child’s interests. The paternal grandmother did not make an application for communication. I find that the ICL’s proposed injunctions against the paternal grandmother spending time with or contacting either child to be in each child’s best interests.
The paternal grandmother submitted that if Y, or someday X, calls her or the father while still under 18 then they should not be prohibited from taking the call and communicating with the child. The submission was that to hang up on them, or not respond to a Facebook friend request or email, might make the child feel rejected. The ICL submitted that the history of contravention litigation means that the risk of litigation over whether it was the paternal grandmother or father or the child who instigated the contact means that on balance there should be no exception. I accept the ICL’s submission.
However, given Y’s changing views, and the possibility that if told the truth before she is 18 that X may want some contact with the paternal grandmother or father, I will include an exception that will allow each mother to contact the paternal grandmother or father and supervise communication with the child at their discretion.
Given Y’s involvement in the process, and Ms C’s evidence that she will facilitate communication if Y wants it, Ms C may advise Y of this decision and that if Y wants to communicate with the paternal grandmother or father it will need to be with Ms C’s assistance.
ICL’S COSTS
The ICL sought costs in the sum of $8,800 as required. Usually the parties to proceedings should be required to pay the ICL’s costs. None of the parties were legally represented.
The paternal grandmother is an aged pensioner and any costs order would have a significant adverse impact on her. Although wholly unsuccessful I accept, as did the ICL in closing submissions, that she had a motivation which was not self-focussed but which was, in her mind, genuinely focussed on the children’s long term best interests.
Ms C is a single mother. Ms Booth is not financially well off.
This is an unusual case which falls within that very, very narrow category of cases in which I consider it appropriate to exercise the discretion not to order any payment towards the ICL’s costs by any party.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 28 July 2023
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