BRENNER & BRENNER

[2019] FCCA 2685

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRENNER & BRENNER [2019] FCCA 2685

Catchwords:
FAMILY LAW – Children – relationship with maternal grandmother – conflict between extended family – children’s best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA.

Applicant: MS BRENNER

Respondent: MS R BRENNER

File Number: ADC 3950 of 2018

Judgment of: Judge Kelly

Hearing dates: 20 and 21 August 2019

Date of Last Submission: 21 August 2019

Delivered at: Adelaide

Delivered on: 29 August 2019

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Ms R Read

Solicitors for the Respondent: Calderwood Atkinson

ORDERS

1. The children X born … 2012 and Y born … 2014 live with the mother and father.

2. The mother and father retain parental responsibility for the children’s care, welfare and development in accordance with s.61C of the Family Law Act 1975.

3. The children spend time with the maternal grandmother as follows:

   (a)from 10.00am until 5.00pm on the third (3^rd) Saturday of each school term, commencing in fourth term 2019;  and

   (b)from 10.00am until 5.00pm on the first (1^st) Saturday of each school holiday period, commencing in the September/October 2019 school holiday period.

4. Handovers take place with the mother’s nominee delivering the children to and collecting them from the maternal grandmother’s home at the commencement and conclusion of visits.

5. The maternal grandmother is restrained from:

   (a)abusing, criticising or denigrating either parent in the presence of the children and from allowing any other person to do so;  and

   (b)discussing any matters raised in these proceedings with or in the presence of the children and from allowing any other person to do so.

6. The mother and father are each restrained from:

   (a)abusing, criticising or denigrating the maternal grandmother in the presence of the children and allowing any other person to do so;  and

   (b)discussing any matters raised in these proceedings with or in the presence of the children and from allowing any other person to do so.

7. The maternal grandmother and extended family are permitted to forward cards, letters or gifts to the children on special occasions (such as Christmas, Easter and the children’s birthdays) and on one other occasion each school term care of H Street, Suburb J or such other address as the mother may nominate.

8. The mother ensure that these items are provided to the children immediately.

9. All proceedings are dismissed as finalised.

IT IS NOTED that publication of this judgment under the pseudonym Brenner & Brenner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3950 of 2018

MS BRENNER

Applicant

And

MS R BRENNER

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.  They have been edited and corrected from transcript to correct any grammatical errors and generally to make my oral reasons easier to read.

1. These proceedings relate to the Applicant’s grandchildren, X and Y.  X is seven and a-half years of age and Y is nearly five years old.  The girls live with their parents, Ms R Brenner and Y, in the suburbs of Adelaide.  The Applicant maternal grandmother, Ms Brenner, lives in Suburb K.  The parties agree that X and Y have not spent any time with their grandmother since … 2018. 

Background

1. I will outline those matters that are largely uncontroversial.  The maternal grandmother’s relationship with the maternal grandfather was characterised by violence and abuse, including sexual abuse of the mother as a very young child.  The maternal grandmother separated from her husband when the mother was approximately two years of age. She returned to South Australia with the mother and her brother Mr L and the family eventually settled in Suburb K where the maternal grandmother had support from her parents.  The maternal grandmother and mother both received trauma counselling from Child Protection Services as a result of the maternal grandfather’s abuse. 

2. The maternal grandmother entered a new relationship and has another son, M, who is in his mid-teens.   The maternal grandmother was in a relationship with M’s father for approximately twelve years before they eventually separated.  The maternal grandmother and her sons Mr L and M live with the maternal great grandmother.  Another family member also lives on the premises. 

3. The mother and father met as teenagers and the mother became pregnant with X when she was only nineteen years old.  The parents moved in together, but they received extensive support from both the maternal family and paternal family, and particularly the maternal grandmother.  The maternal grandmother says she was X’s primary caregiver following her birth, but the mother disputes this.  I will discuss that issue further in these Reasons.

4. The mother and maternal grandmother have had a difficult relationship across the years and they each blame the other party for these problems.  The Court heard a great deal of evidence about this topic, but I am not going to traverse those issues to any great extent, beyond what is necessary to determine this dispute.  Notwithstanding the difficulties between the mother and the maternal grandmother, the maternal grandmother had very regular contact with the girls, especially with X when she was a younger child. 

5. In mid-2015, the parents decided to leave the Suburb K area.  The family moved to live in Suburb C and they continue to live in the outer suburbs of Adelaide.  The family would visit their extended families in the Suburb K area every few weeks and would generally stay with the paternal family and spend extended time visiting with the maternal grandmother at her home.  

6. This pattern continued until problems arose during a visit in January 2018.  The parents were staying with the father’s extended family and they and the children would visit the maternal grandmother on most days.  Unfortunately the underlying tensions within the family dynamic came to the surface and a disagreement occurred whilst the family was visiting a café in Suburb N on 22 January 2018. 

7. The mother and maternal grandmother both considered the other party had behaved badly and in subsequent telephone calls they each blamed the other for the argument.  Following on from these events the mother and her family returned to Adelaide and the children have not spent any time with their maternal grandmother since then.

8. The parties attempted mediation in mid-2018, but were unable to resolve the impasse.  Accordingly, on 24 September 2018 the maternal grandmother filed her Initiating Application seeking orders to spend time with X and Y.  The mother filed her Response on 10 December 2018 and opposed the children spending any time with their grandmother.  The father did not participate formally in the proceedings, but has filed an Affidavit supporting the mother’s position. 

9. Given the level of conflict and the dispute between the parties, the Court declined to make any interim orders for time to resume between the girls and their maternal grandmother.  Trial dates were allocated and a s.62G the family report was ordered.  That report was prepared by a family consultant, Ms A, and was released to the parties on 27 May 2019. 

The trial

1. The trial proceeded before me on 20 and 21 August 2019.  The maternal grandmother was represented at the commencement of proceedings but has been representing herself since October 2018.  The mother has been represented throughout the proceedings and was represented by Counsel at the trial.

2. The maternal grandmother filed an array of documents leading up to the trial – her trial Affidavit, a Case Information sheet and parenting questionnaire and Affidavits on behalf of her two witnesses, the maternal great-grandmother, Ms D and a family friend described as the mother’s godfather, Mr E.   In addition, she also filed a Contravention Application and Affidavit, together with an Application in a Case and Affidavit on 9 August 2019 and a further Affidavit on 14 August 2019. 

3. The Contravention Application related to the late filing of the mother’s trial documents and I dismissed that application, as it was not an issue that required a formal application.  The Application in a Case sought orders for the girls to live with her.  Not surprisingly, Ms Read, Counsel appearing for the mother, opposed that application proceeding, but I concluded it was appropriate to allow all parenting issues to be dealt with and finalised at the trial, rather than have further applications that may need to be dealt with at a later date. 

4. I allowed the maternal grandmother to rely upon the two Affidavits filed 9 and 14 August 2019 in addition to her trial affidavit of 7 August 2019, in circumstances where the later Affidavits really did no more than summarise her position.

5. The mother relied upon her trial Affidavit together with Affidavits filed by the father, the paternal grandmother, Ms F, and the paternal great grandmother, Ms G.  I also allowed the mother to rely on her Affidavit filed on 10 December 2018, given that the dispute had extended beyond simply time-spending arrangements for the children and their grandmother.

6. At the commencement of the trial the maternal grandmother was seeking primary care of X and Y, but if she was unsuccessful in that regard she seeks to spend regular time with the children on alternate weekends and school holidays.  She was proposing handovers at a midway point, being the service station at Suburb O.  The mother is opposed to the girls re-establishing any relationship with the maternal grandmother and has the support of the father in that regard. 

7. The trial judge is not required or expected to rule on every issue in dispute between the parties.  The Applicant and the Respondent have strong and divergent views about many issues that occurred in the past, but not all of those issues are relevant to my decision today.  I will focus my considerations on those issues that are most relevant to the care arrangement for the two girls.

Relevant Legal Principles

1. The Family Law Act 1975 directs the Court to make such parenting order as it considers proper (s.65D) and any parenting order must be in the best interests of the children (s.60CA). Section 60B sets out the objects and principles which the Court must take into account, and focuses on the children having meaningful involvement from their parents, parents fulfilling their parental responsibilities and the need to protect children from harm.

2. Section 60CC then sets out the factors the Court must consider in determining the children’s best interests. There are two primary considerations, the first of which is a benefit to the children of having a meaningful relationship with both parents and the second primary consideration is the need to protect children from the physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The need to protect children from harm takes priority, if those issues are in conflict.

3. Section 60CC(3) sets out a range of additional considerations which I must also take into account, including the children’s views, their relationship with their parents and family members and parental capacity. The Court must also ensure that any parenting orders do not expose the children to an unacceptable risk of family violence (s.60CG).

4. Section 61DA presumes that it is in the children’s best interests for their parents to share equally in parental responsibility, unless the presumption is rebutted. If the Court makes an order for equal shared parental responsibility, then the Court must consider whether the children should spend equal time, or substantial and significant time with each parent. Obviously X and Y live with both of their parents and there is no issue to determine in this regard.

5. I note that much of the legislation refers to ‘parents’ and does not directly apply to the maternal grandmother, but I will address the relevant considerations pursuant to s.60CC(3)(m) as matters that relate to her application before the Court. In these reasons I will discuss the evidence presented by each party within the legislative criteria set out in s.60CC.

The trial

1. I note that all of the witnesses gave evidence and were available for cross-examination.  I am satisfied that both parties believe their evidence is true and correct, but clearly there are very different versions of their family history, particularly the recent events leading up to the rupture in January 2018.  As is often the case in parenting disputes, the parties tended to recall their past interactions through a prism of hostility and that colours the evidence from each of them. 

2. The same limitations apply to their supporting witnesses.  These family members were doing their best to support either the maternal grandmother or the mother, but the reliability of their evidence was also somewhat undermined by the unhappy family dynamic that presently exists.  The maternal great grandmother and Mr E could be described as barrackers for the maternal grandmother and had very little to say that was positive about the mother. 

3. The father gave evidence by phone link.  He, the paternal grandmother and paternal great grandmother were less overtly one-sided, but they were clearly supporting the mother.  The reliability of each witness needs to be seen in that context.

4. Ms A, the report writer, gave evidence and was cross-examined.  She confirmed her opinion remained as per her report, notwithstanding the various trial Affidavits.   Ms A recommended that X and Y remain living in the care of their parents and spend regular time with the maternal grandmother on a monthly basis, eventually increasing to overnight time.  She did not see any basis to disrupt the living arrangements for the children and was hopeful that the adult relationships may in fact improve.  Unfortunately that is not the case, as became clear during the trial. Ms A agreed in cross-examination that conflict between the adults was a significant risk factor for the children.

5. The issues to be determined by the Court are:

   a)whether X and Y are at risk in the care of their parents;

   b)whether X and Y should continue to live with their parents or move into the care of the maternal grandmother;

   c)if X and Y remain living with their parents, is it in their best interests to recommence spending regular time in the care of their maternal grandmother.

Section 60CC(2)(a) the benefit to the children of having a meaningful relationship with their parents

1. I am satisfied that the children enjoy and benefit from a meaningful relationship with their parents and this is supported by the family report.  The maternal grandmother says that X and Y are frightened of the mother, but I reject that contention.  It was not apparent in the family report, nor was it apparent in any evidence from the paternal grandmother or paternal great grandmother, who have regular contact with the children and the parents. 

2. Regarding the children’s relationship with their maternal grandmother, this is a relevant factor pursuant to s.60CC(3)(m). I am satisfied that the children have had a meaningful relationship with the maternal grandmother in the past. She played a substantial caring role for X when she was an infant and was certainly providing support to two young parents at that time.

3. I am not satisfied that the maternal grandmother was X’s primary caregiver, but accept that she assisted the parents and provided significant care for X.  Even if I am wrong in that regard and the maternal grandmother was X’s primary carer during her infancy, this occurred five or six years ago.  There is no dispute that X and Y have been in the primary care of their parents since 2015, when the family moved to Suburb C.

4. The children’s relationship with their maternal grandmother (and their maternal great-grandmother) was observed during the family report process and their interaction was relaxed and comfortable.  I am satisfied that the children, especially X, had a significant relationship with the maternal grandmother prior to leaving Suburb K and maintained that relationship afterwards, albeit on a different basis.

Section 60CC(2)(b) – protecting the children from being subjected to, or exposed to abuse, neglect or family violence

1. The maternal grandmother alleges that the mother has behaved violently and aggressively to her and towards the children.  There is no dispute that the mother struggled during her teenage years.  She herself concedes that she was in trouble with the police and that she was “off the rails” as a teenager, but says that she straightened up her act once X was born.

2. The maternal grandmother rejects that proposition.  She says that the mother’s aggressive and erratic behaviour continued across many years and that the incident in January 2018 was simply the last example of the mother’s rude and aggressive behaviour.

3. The mother denies allegations of aggression and gave evidence that she responds to conflict by “shutting down” and withdrawing into herself.  Based on the evidence before me, I conclude the reality is somewhere in between.  I am satisfied that the mother may well react by withdrawing at times, but there are likely to have been other occasions when she has reacted angrily, particularly in response to the maternal grandmother. 

4. Likewise, the maternal grandmother impressed me as having a strong personality. There would have been times when she reacted angrily towards her daughter when they were arguing.  Clearly there has been conflict between the mother and the maternal grandmother across the years but it must be remembered that the relationship has also been supportive at other times. 

5. The maternal grandmother alleges the mother has frequently been aggressive and abusive in front of the children. She further alleges that the mother has physically assaulted the children by grabbing them by the wrists and dragging them away.  She says this happened on numerous occasions, including in January 2018. 

6. I accept the mother may have responded to family conflict by “storming out”, holding the girls by their wrists as she left.   I can well imagine that could have happened, but this does not equate to violence or child abuse.  If the girls were distressed or crying, it is likely to have been because they were caught in the middle of the adult conflict.

7. Turning to the events in January 2018, it is not necessary for me to make detailed findings regarding these matters.  Clearly there was tension between the mother and maternal grandmother.  The mother said she felt uncomfortable and withdrew from interaction.  The maternal grandmother and extended family considered the mother’s behaviour was rude and hostile.  I accept that the maternal grandmother may well have said words to the effect of “Get a shovel and bury me” to the mother in the course of an argument, but such language merely demonstrates the level of agitation within the family dynamic at the time.  It does not equate to a risk or any sort of threat.

8. Frankly, everyone’s reaction regarding the events that occurred in January 2018 have been blown out of proportion.  I accept that the maternal great grandmother may have felt hurt when her granddaughter declined to give her a hug, but it seems to have taken on far more significance than I consider it really warrants.  Likewise, in subsequent telephone calls between the parties, everyone has been quick to feel offended and react angrily.

9. I conclude that both parties have contributed to the breakdown in their relationship and the subsequent conflict that has occurred.  I do not consider their behaviour falls within the definition of family violence, however.

10. The maternal grandmother also claims the children are at risk due to the father’s mental health issues. She says that the father has ‘meltdowns” when he is stressed and the girls are exposed to his aggression and dysregulated behaviour during such incidents.  The father acknowledged that he has mental health issues, which he says are properly managed with support from his GP and medication. The maternal grandmother was concerned that the father does not consult with a psychiatrist, but if his care is being properly managed by a GP, there is no need for the father to also seek specialist assistance.  I am satisfied the father manages his mental health appropriately.

1. The Applicant maternal grandmother interpreted the family report as indicating that Ms A had concerns about the father’s mental health, but that is not the case.  Ms A made it clear in her cross-examination at trial that her reference to a psychiatric evaluation of the father related to the concerns held by the grandmother, rather than any concerns Ms A held about the father.  I do not consider the father’s mental health diagnosis should affect my assessment of his parenting capacity.   

2. The father may well experience heightened stress at times, such as attending at Court, for example, but I do not consider the children are at risk of violence, neglect or abuse in his care.  I conclude that the children are safe in the care of their parents and are not at risk of being exposed to violence, abuse or neglect. 

3. Equally, I do not consider there is a significant risk of the children being exposed to abuse, violence or neglect if they were in the care of the maternal grandmother (s.60CC(3)(m)).  However, I remain concerned that X and Y may witness their maternal grandmother denigrating or abusing their parents and this is a matter of concern for the Court.

Section 60CC (3) – additional considerations

(a) the children’s views

1. The children had the opportunity to express their views to Ms A.  The maternal grandmother says that X expressed positive feelings towards her by giving a ‘thumbs up’ sign to Ms A, whereas X gave the mother a ‘thumbs down’ sign.  That is correct, but it would be wrong to interpret X’s ‘thumbs up’ as anything more than confirming that she enjoyed seeing her grandmother.  Her ‘thumbs down’ indicated that she knew her mother would not necessarily approve.  This gesture cannot be interpreted as X rejecting her mother, or expressing a preference for her maternal grandmother over her mother.

2. Ms A was confident the children did not appear to be influenced or coached by their parents and that the views they expressed were their own views.

(b) the children’s relationship with their parents and significant others.

1. As discussed, I am satisfied that X and Y have a positive and loving relationship with their parents.   Both children interacted positively and warmly with their maternal grandmother and also with their maternal great-grandmother when she joined the session. 

2. Based on Ms A’s report and her evidence, I am satisfied that both X and Y would enjoy spending time with their maternal grandmother in the future.  This must be weighed up against the other relevant considerations. 

(c), (f) & (i) the parties’ parental capacity and their attitude to parental responsibility

1. The mother and father may not be perfect parents but, in my experience, the “perfect parent” does not exist.  I accept the evidence from the paternal grandmother and the paternal great-grandmother that the children are settled and well cared for by the mother and father. 

2. The maternal grandmother disagrees, but her capacity to comment on her daughter’s parenting is limited.  She has obviously visited her daughter and family occasionally, but once the mother relocated in 2015 her opportunity to observe the family dynamic was limited.

3. The maternal grandmother’s criticisms of the mother appear fixed in time, dating back to concerns that she held when the family was living in Suburb K.  The maternal grandmother has been unable to accept that the parents have matured and developed in their parenting capacity over the last few years.  I take a different view.

4. Both parents are engaged in the workforce. They are balancing their work commitments and their parenting responsibilities appropriately and I am satisfied that they provide appropriate parental care for X and Y.

5. Similarly, the maternal grandmother’s concerns about the parents’ drug use are also fixed in the past.  The mother’s evidence is that she does not use illegal drugs and there is no current evidence that contradicts her position. The father frankly conceded that he uses marijuana occasionally.   The Court does not condone the use of any illegal drugs, but occasional marijuana use does not automatically compromise his parenting capacity. 

6. The parents have maintained the children’s relationship with the maternal grandmother until January 2018.  Since that time they have ceased any relationship and the parents are now concerned that the maternal grandmother will denigrate them to the children and disrupt their settled family life.  The maternal grandmother says she would not behave in this way, but given the depth of hostility that was apparent during the trial, this remains a matter of concern to the Court.

7. In relation to the maternal grandmother’s parental capacity and her attitude to appropriate parental responsibility for children (a relevant matter pursuant to s.60CC(3)(m)), I am confident that she could provide for the children’s day to day care. The maternal grandmother loves X and Y, but she has little insight into the strength of their relationship with their parents or the impact that a change of primary care would have for the children.

d) the likely effect of any changes upon the children, including the effect of any separation from their parents or significant others

1. Obviously it would be a major disruption for the children if they were removed from their parents’ care.  Not only would they experience the huge emotional distress of that separation, they would change schools, lose their friendship network and would not be able to attend their extracurricular activities.

2. X and Y would benefit from re-establishing a relationship with their maternal grandmother, but there are also risks associated with this outcome.  The parents would struggle to support the relationship and that is a factor that I take into account.

Conclusion

1. I am satisfied the children should remain in the primary care of their parents.  X and Y enjoy a safe and happy life in the care of their parents and there is no reason to disrupt this.   Ms A certainly did not support a change of primary care and I accept her evidence in that regard.  Accordingly, I dismiss the maternal grandmother’s application for primary care of X and Y.

2. In relation to parental responsibility, the parents both hold parental responsibility for X and Y pursuant to s.61C of the Family Law Act 1975 and that should continue.  The children have two devoted parents who are involved in their daily care and I am satisfied that the parents take their responsibilities very seriously.

3. That then leaves the issue of whether the children should spend time with the maternal grandmother.  The mother and father are opposed to that outcome.  They are concerned that the maternal grandmother and extended family members will denigrate and criticise them to the children, which will disrupt what is otherwise a settled home life for X and Y in their parents’ care. 

4. The mother and father gave evidence that they would find it stressful and disruptive if the children spent regular time with their maternal grandmother and they prefer to enjoy family time together.  Indeed, the evidence before me was that the girls rarely have sleepovers even with the paternal grandmother, with whom the parents enjoy a comfortable relationship.

5. The hostility of the maternal grandmother towards the parents was evident during the hearing, especially towards the mother.  She had nothing positive to say about the mother.  I can appreciate why the parents are concerned about the emotional impact upon the children if they are exposed to the maternal grandmother’s hostility.  I must weigh that concern against the children’s right to maintain a relationship with their extended maternal family, especially with their grandmother. 

6. It is a finely balanced situation and a difficult decision.  As I have indicated, X and Y are stable and settled with their parents.  They are able to enjoy a relationship with their paternal grandparents and extended paternal family, which is supported by the parents. 

7. The children were spending regular time with the maternal grandmother until January 2018 and enjoyed the opportunity to interact with her again during the family assessment.  I accept that Y could not quite remember the maternal grandmother but she enjoyed playing with her grandmother.

8. So the question is: should the children be denied a relationship with the maternal grandmother because of the hostility between the parties? 

9. I have given this matter very careful consideration and I conclude that the children are entitled to maintain a relationship with their maternal grandmother and should be able to do so.   However, this must be balanced against the need to minimise the impact upon the children’s home life and upon their parents.  

10. The mother argued that if the children were to spend time with their maternal grandmother, that time should be supervised, but that approach was not supported by Ms A.  On balance, I do not consider supervision is appropriate in this matter.  It would limit the range of activities that the children could undertake with their maternal grandmother.  I intend making orders for the children to spend occasional day visits with their maternal grandmother and given this limitation, I conclude that supervision is unnecessary.

11. I note the maternal grandmother’s proposal was for fortnightly time and half school holidays, but I consider that outcome would be far too intrusive on the children’s family life in Adelaide. I am also concerned that the maternal grandmother may be unable to refrain from criticising the parents in the event X and Y were spending extended overnight time in her care. I conclude that day visits are more appropriate, given the lack of trust between the adults.

12. Ms A recommended visits once a month but, on balance, I am going to put in place a less frequent regime.  I conclude that the children should spend time with their grandmother on one occasion each school term and once each school holiday period.  This will ensure that X and Y can retain a relationship with their maternal grandmother whilst at the same time, minimise the disruption to their home life in Adelaide.

13. It is appropriate that the maternal grandmother and extended family be able to forward cards and gifts to X and Y.  It is also important then that the mother immediately pass those cards or gifts on to the children for them to enjoy.  This could occur on special occasions and perhaps once each school term if the maternal grandmother or extended family wish to do so. 

14. I will restrain all parties from abusing, criticising or denigrating the other party in the presence of the children and from allowing anyone else to do so.   I cannot emphasise now how important that will be for X and Y.  The children should be free to enjoy ongoing relationships with the significant adults in their lives and it is the responsibility of those adults to ensure that they do not expose the children to hostility or denigration of their parents or conversely, of their grandmother or great-grandmother.  This is vital for the children’s emotional welfare and the Court expects all parties will comply with these orders.

15. I have heard submissions in relation to handover arrangements and will make orders as proposed by the mother, given that the parents are offering to travel with the children to Suburb K.  The mother also proposes that letters and gifts can be forwarded c/- the paternal grandmother and that seems a sensible option.  The orders will specify that the visits take place on the third Saturday of each school term, commencing next school term, and the first Saturday of each school holiday period, again commencing in the next school holidays.  Such orders provides a set arrangement for the parties to implement into the future.

16. I now make orders as published at the commencement of these Reasons.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date:       25 September 2019