Cermack and Cermack and Anor
[2018] FCCA 3243
•13 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CERMACK & CERMACK & ANOR | [2018] FCCA 3243 |
| Catchwords: FAMILY LAW – Parenting orders – whether a grandmother ought to be able to spend overnight time with a seven year-old child when she lives on an island where there is no public transport to the mainland overnight – where the parents allege that the grandmother suffers from mental health issues. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 60CC(2)(a), 60CC(3)(c)(ii), 60CC(3)(c)(iii), 60CC(3)(e), 64B, pt.VII |
| Cases cited: Mazorski & Albright [2007] FamCA 520 |
| Applicant: | MS CERMACK |
| First Respondent: | MR CERMACK |
| Second Respondent: | MS BRONSON |
| File Number: | MLC 12649 of 2016 |
| Judgment of: | Judge Small |
| Hearing dates: | 5, 6 & 7 February 2018 |
| Date of Last Submission: | 7 February 2018 |
| Delivered at: | DANDENONG |
| Delivered on: | 13 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the First Respondent: | Ms Sevdalis |
| Solicitors for the First Respondent: | Bowlen Dunstan and Associates |
| Counsel for the Second Respondent: | Self-represented |
| Solicitors for the Second Respondent: | Self-represented |
ORDERS
The child [X] born 2011 (“[X]”) shall spend time and communicate with her paternal grandmother Ms Cermack (“the paternal Grandmother”) as follows:
(a)During school terms:
(i)for one weekend per term by agreement between the parties from the conclusion of school on Friday to 4:00 p.m. on Sunday commencing in Term 1 2019, and failing agreement on the fifth weekend of each term;
(ii)from the conclusion of school to 7:00 p.m. on each alternate Thursday commencing 22 November 2018;
(b)By telephone, Skype, Facetime or other electronic means:
(i)on each alternate Tuesday between 6:30 p.m. and 7:00 p.m. commencing 13 November 2018;
(ii)on [X]’s birthday and the paternal Grandmother’s birthday each year between 6:30 p.m. and 7:00 p.m. unless [X] will otherwise be spending time with the paternal grandmother on that day pursuant to these orders or by agreement between the parties;
(iii)on Christmas Day each year between 9:00 a.m. and 9:30 a.m. unless [X] will be spending time with the paternal grandmother on Christmas Day by agreement between the parties;
with the paternal grandmother to place the call and the mother (or the father if [X] is in his care at the relevant time) to ensure that [X] has access to a fully charged and working telephone, tablet or computer, that [X] is available to take the call, and that [X] is afforded privacy during the call;
(c)For four consecutive nights during one of the school term holidays each year by agreement between the parties and failing agreement in the Term 2 holidays commencing at the conclusion of school on the last day of term and concluding at 4:00 p.m. four days later;
(d)For five consecutive nights during the long summer holidays each year by agreement between the parties and failing agreement:
(i)for five days commencing at 4:00 p.m. on 2 January in 2019 and in each alternate year thereafter; and
(ii)for five days commencing at 4:00 p.m. on 20 January in 2020 and in each alternate year thereafter; and
(e)at such other times as the parties might agree in writing.
If the time provided in paragraph 1(a)(i) hereof falls on the weekend of Mother’s Day or Father’s Day or of the mother’s or the father’s birthday in any year, then the time the paternal grandmother spends with [X] shall conclude at 5:00 p.m. on the Saturday of that weekend.
Changeover shall take place at [X]’s school where time is to commence at the conclusion of school and at all other times at the (omitted) store at Suburb A or such other venue as the parties agree in writing.
All time spent between [X] and the paternal grandmother shall take place in the State of Victoria unless written consent for her removal from Victoria has been previously obtained from both parents.
When [X] is spending overnight time with the paternal grandmother:
(a)the paternal grandmother shall ensure that no person other than her sleeps in the same room as [X]; and
(b)if [X] requests to speak to the mother or the father by telephone or other electronic means, the paternal grandmother shall actively facilitate that contact.
The paternal grandmother is hereby restrained by injunction from:
(a)Having a blood alcohol level of .05 or greater during all times when [X] is in her care; and
(b)using any illicit substance or any prescribed medication, save strictly in accordance with its prescription, for 24 hours prior to and during all times [X] is in her care.
The mother, the father and the paternal grandmother shall keep each other informed of their current residential address and mobile telephone numbers and advise each other 48 hours prior to any change to those details.
The paternal grandmother shall provide to her treating general practitioner and her treating psychiatrist (and any other medical practitioner she attends) a written irrevocable authority for the practitioner to advise the mother and the father in the event that she suffers any mental health issues which the practitioner believes are likely to impact on her capacity to care for [X].
The paternal grandmother shall continue to attend upon Dr I and Dr D (or such other medical practitioner to whom either of them refers her) and follow their reasonable directions for treatment, including taking all medications as prescribed, and the paternal grandmother shall advise the mother and the father within 21 days of any change in those treating practitioners.
In the event that [X] suffers an illness or injury which requires urgent medical attention when she is in the care of the paternal grandmother, the paternal grandmother shall do all things necessary to contact the mother or the father urgently prior to obtaining treatment for [X] and she shall return [X] to the care of the mother or the father as soon as is practicable.
The mother, the father and the paternal grandmother are hereby restrained by injunction from:
(a)criticising, insulting, belittling, or otherwise denigrating any other party or any member of any other party’s family or household in [X]’s presence or hearing, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in [X]’s presence or hearing, save to explain the effect of these parenting Orders to her, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct; and
(c)allowing [X] to access, read or have read to her any portion of the Court’s Reasons for Judgment in this matter.
IT IS NOTED that publication of this judgment under the pseudonym Cermack & Cermack & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12649 of 2016
| MS CERMACK |
Applicant
And
| MR CERMACK |
First Respondent
| MS BRONSON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter concerning the care arrangements for the child [X] born 2011 (“[X]” or “the child”).
The parties in the proceeding are Ms Cermack (“Ms Cermack” or “the paternal grandmother”), Mr Cermack (“Mr Cermack” or “the father”) and Ms Bronson (“Ms Bronson” or “the mother”).
The paternal grandmother seeks an implementation of the recommendations contained in the Family Report prepared by Family Consultant Ms A (“Ms A”) dated 10 December 2017 with respect to the spend time arrangements for the child.
At the commencement of the proceedings, the Respondent parents sought orders that the paternal grandmother spend no time with the child because of her mental health issues.
The issues to be decided in this case are:
A.Whether the paternal grandmother suffers from mental health issues;
B.Whether the paternal grandmother should spend time with the child; and
C.If so, what time should the child spend with the paternal grandmother?
Background
Ms Cermack was born on 1961 and is currently 57 years of age. She is a self-employed (occupation omitted). At the time of trial she was separated from her husband of some 30 years.
Mr Cermack was born on 1990 and is currently 27 years of age. At the time of trial he was unemployed and had not repartnered.
Ms Bronson was born on 1992 and is currently 26 years of age. She is a (occupation omitted) working approximately 4 to 5 days a week. She has repartnered and has a second child, [V], who was born in 2017.
Mr Cermack and Ms Bronson commenced a relationship in or around 2010. They separated on a final basis on or around December 2011.
There is one child of the relationship, [X], born 2011 and now aged seven years. She attends School 1 Primary School and is progressing well.
Pursuant to final parenting orders made by consent on 16 April 2013, [X] lives with her mother and spends time with her father in a two-week cycle: in week one, from 9:00am on Thursday to 7:00pm on Friday and in week two, from 9:00am Friday until 4:00pm on Sunday.
As the father lived with the paternal grandmother, all time the father spent with [X] in accordance with the final parenting orders was also spent with the paternal grandmother until September 2016.
In September 2016, after an incident at the paternal grandparents’ home, an Intervention Order was made against the paternal grandmother listing the father, and later [X], as Affected Family Members. That incident led to the paternal grandmother leaving the property and her marriage breaking down as a result of the paternal grandfather taking the father’s side in relation to that incident.
At the time of trial, the paternal grandmother lived on (omitted), an island in (Region 1) Victoria.
She did not spend any time with [X] between September 2016 and December 2017. She had spent time with [X] on several occasions between December 2017 and the time of trial by agreement with [X]’s parents.
Procedural History
This matter commenced with Ms Cermack filing an Initiating Application, Affidavit in Support and Notice of Risk on 23 December 2016.
Ms Cermack sought time with [X] on the first weekend of each month from the conclusion of school on Friday to 7:30 p.m. on Sunday; and from the conclusion of school until 7:30 p.m. on each alternate Wednesday during school terms, as well as additional time in school holidays.
Mr Cermack filed a Response, Affidavit in Support and Notice of Risk on 10 March 2017. He sought that the Application of his mother be dismissed.
He sought orders for him to spend time with [X] on each alternate weekend from the conclusion of school on Friday to 4:00 p.m. on Sunday and each Thursday from the conclusion of school to 6:00 p.m.
In the alternative, if his mother’s Application were not dismissed, he sought orders that his mother undergo a psychiatric assessment and that she provide [X]’s parents with a list of all medical practitioners and hospitals where she had received treatment over the previous two years. He also sought an order for a family report.
Ms Bronson filed a Response, Affidavit in Support and Notice of Risk on 15 March 2017.
She also sought that the paternal grandmother’s Application be dismissed, an order that she and Mr Cermack have equal shared parental responsibility for [X], and orders for [X] to live with her. She otherwise sought leave to particularise orders sought in relation to [X] spending time with the father at a later date.
If the paternal grandmother’s Application were not to be dismissed, Ms Bronson sought an order for the paternal grandmother to undergo a psychiatric assessment and for a family report to be prepared.
The matter first came before me in the Duty List on 16 March 2017. On this day, orders were made by consent that the Applicant attend upon a psychiatrist for the purposes of a psychiatric assessment and report, and within 28 days, the Applicant provide to Ms Cermack’s lawyers and to Ms Bronson, a list of any medical practitioner or allied health professional attended upon and their contact details, all hospital admissions in the last two years and all current treating medical practitioners and/or allied health professionals.
I also ordered the parties to attend upon a Family Consultant for the purposes of the preparation of a Family Report. I otherwise adjourned the matter for Final Hearing on 5 February 2018 with an estimated hearing time of 3 days.
Final Hearing commenced on 5 February 2018 and ran over all three days, although evidence was only heard on the second and third days. Ms Cermack and Ms Bronson appeared in person. Mr Cermack was represented by Ms Sevdalis of Counsel.
The witnesses at trial were the parties and Ms A, all of whom underwent cross-examination.
Neither the father nor the mother required Dr E (“Dr E”), the psychiatrist who had prepared a psychiatric assessment in relation to the paternal grandmother for cross-examination. The paternal grandmother, who would have liked to cross-examine Dr E and challenge his findings, was not in a position to pay the fee of $950 that Dr E would have charged to appear at trial by telephone. Thus, while his evidence is unchallenged in the legal sense, I note that Ms Cermack would have liked to cross-examine him and challenge his findings.
Following the conclusion of evidence and submissions on 7 February 2018, I reserved my decision.
I note that orders were made by consent on 7 February 2018 for the paternal grandmother to spend time with [X] during school terms and holidays with all overnight time being spent at her paternal great-grandparents’ home.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A. Whether the paternal grandmother suffers from mental health issues
In her Affidavit sworn 22 and filed 23 December 2016, the only affidavit she swore in these proceedings, the paternal grandmother makes no mention of having experienced any mental health issues at all.
In his Affidavit affirmed 9 and filed 10 March 2018, the father deposes as follows:
9. Some time in or around late April or early May 2016, the Applicant had a severe reaction to her hormone replacement therapy. Her mood and behaviour changed completely. She became anxious, paranoid and delusional at times. She was admitted to Hospital in or around May 2016. The changes in the Applicant’s mood and behaviours impacted upon her relationship with me and the rest of my family.
It is his further evidence that in September 2016, his mother’s mental health “was declining” and that she had used a box cutter to carve messages on the door and walls of her home. He annexes to that affidavit a photograph of a door into which been scratched the words “thanks for the box cutters xox”, and another of a wall into which has been carved the words “I LOVED YOU MR S”[1].
[1] The name of the paternal grandfather is Mr S
The father says that he and his mother had an argument on 2 September 2016 during which Ms Cermack was not coherent at times and he could not make sense of what she was saying.
The paternal grandmother called the police and a Family Violence Safety Notice was issued, that Notice leading to Ms Cermack being removed from her home, and to an Intervention Order (“IVO”) hearing on 5 September 2016 where the paternal grandmother consented to a final order being made against her without admissions. The conditions of the IVO included a prohibition on Ms Cermack approaching within 200 metres of her home without the permission of the paternal grandfather.
Mr Cermack deposes that his mother’s behaviour continued to be erratic after 5 September 2016, and, after seeking advice from child protection authorities (“DHHS”), he successfully applied to vary the IVO to include [X] as an affected family member.
Mr Cermack notes that the paternal grandmother is herself a qualified (occupation omitted), and says that from his point of view, she suffers from “some very serious mental health issues”. He further deposes, paragraph 17:
The Applicant has made four suicide attempts of which I am aware in approximately the last 6 months. On one of these occasions, she locked herself inside her (workplace) and attempted to end her life. I am advised by my father and believe the Applicant has made at least one attempt on her life since commencing these proceedings. I understand she was hospitalised in the Hospital and was in a drug induced coma. I understand she was later transferred to the Hospital.
At the time of affirming his affidavit, the father did not support any time occurring between the paternal grandmother and [X] as he believed the paternal grandmother posed a risk to her welfare. He says that this is “entirely due to the conduct of the Applicant and concerns shared by both the mother and me that it is not in [X]’s best interests to spend time with the Applicant”. He says he no longer trusts his mother and believes she would expose [X] to her unwarranted negative views of him and the mother.
It is his evidence that he has continued to foster a relationship between [X] and other members of his family, including his brother, father and grandparents.
In her Affidavit sworn and filed on 15 March 2017, the mother deposes that when she was working part-time for the paternal grandmother in 2010-2011, the paternal grandmother’s behaviour was bullying and inappropriate, and that when Ms Bronson told her she was pregnant, Ms Cermack had replied “Hopefully it’s just cervical cancer”.
She deposes as to times Ms Cermack had treated her in a degrading and accusatory manner and states she was afraid of coming into contact with Ms Cermack at changeover after she stopped working for her.
Ms Bronson then deposes as follows:
22. I have seen footage of an incident (recorded with Ms Cermack’s permission) where Ms Cermack threatens to remove Mr Cermack from the home, becomes agitated and then calls the police on him while my daughter sleeps in the next room. I have seen Ms Cermack’s continuous attempts at systematic abuse when things do not go her way and I have seen Ms Cermack be dramatic and aggressive in nature towards Mr Cermack and other family members.
23. As the relationship between Mr Cermack and his Mother started to deteriorate, it became apparent that Ms Cermack would willingly use our daughter as a tool against Mr Cermack. This was validated when Ms Cermack made false claims on an intervention order naming [X] as a protected person against Mr Cermack without reason, compiled with false claims holding no evidence. [X]’s father and I were agreeable that no unsupervised access was to occur until there was an order in place stating advice around what can be said around [X], ensuring she did not feel the effects of [X]’s behaviour and did not soil the reputation of our daughter’s father for her own sake. This is a decision we made together.
Ms Bronson then sets out her understanding that Ms Cermack had made four attempts to kill herself over the previous 12 months, the most recent being the day after she lodged her Application in these proceedings. She goes on to say:
24. We believe that if she has a breakdown while our daughter is in her care, she will cause harm to our daughter. Mr Cermack and I again made the decision not to allow any access at all until Ms Cermack was managing her mental health. This was due to her claims that she did not remember making initiating applications against Mr Cermack and does not remember much of the previous days.
And further:
We are saddened by the lack of contact we have allowed with [X] but believe at this time it would be truly detrimental to her wellbeing.
In the DHHS Response to a Notice of Risk dated 4 April 2017, I note the following statement:
Given the nature of reported mental health concerns in relation to Ms Cermack, Child Protection would be concerned if there was to be any contact without appropriate assessments.
On 24 November 2017, Dr E released his psychiatric assessment of Ms Cermack.
Dr E describes Ms Cermack has having been diagnosed as suffering from “an Adjustment Disorder with Depressed and Anxious Mood” while she was in the Hospital after a “negative reaction to Zoladex (HRT)” in 2016.
Dr E further records that Ms Cermack had taken an overdose of all her medications (Panadol, Endone, Lyrica and Endep are mentioned in the report) and alcohol, and that she had spent five days in a coma at the Hospital followed by two weeks as an inpatient at the Clinic where she had made “a rapid recovery”. She told Dr E that she had been attending psychiatrist Dr D and had attended a psychologist on one occasion.
Ms Cermack reported to Dr E that she was currently taking Efexor, an anti-depressant.
Dr E reports that Ms Cermack described “a past history of trauma and sexual abuse” by an uncle, and states that she had undergone treatment for that trauma for some eight years. She further described a volatile and alcohol-fuelled violent marriage, and ongoing issues with her other son Mr T’s paranoid schizophrenic illness and ice abuse, as well as marijuana abuse by the father in these proceedings.
At the time of interview with Dr E, Ms Cermack was not working as her (employment omitted) was being reviewed after she allowed a client to stay overnight at her home.
Ms Cermack told Dr E that she was suffering from “chronic grief” about the failure of her marriage and her inability to spend time with [X], rather than depression or anxiety.
Dr E describes Ms Cermack thus:
Affect – her mood was anxious but not obviously depressed. Ms Cermack was a controlled presence throughout the interview. Her affect was preoccupied and at times tense. Her account was not accompanied by distress or agitation. Rapport and eye contact were maintained in a somewhat distanced manner.
Talk – the speech was normal in rate, rhythm, stream and flow. There was a conveyed sense of pre-existing vulnerability in the context of physical and sexual abuse throughout childhood, an unhappy first marriage, dysfunctional second marriage, and significant range of health issues (“viral meningitis, chronic migraines, back pain and knee injury, endometriosis and surgery”).
Ms Cermack contends that she was a stable figure in [X]’s life up until the incident on 1st September 2016. Since then her life has unravelled resulting in a major overdose in January 2017, subsequent to which she has been under the care of a treating Psychiatrist. There were depressed and anxious themes and a brief period of possible psychotic illness.
Nevertheless, Dr E records that Ms Cermack’s memory and concentration were intact, that she had some insight, and that he did not note any perceptual abnormalities in her presentation.
Dr E’s diagnosis in relation to Ms Cermack is that she suffers from the following:
· Adjustment Disorder with Depressed and Anxious Mood
· Complex Post-traumatic Stress Disorder of Childhood
· Chronic Pain Syndrome
· Cluster B Personality Features.
Dr E goes on to say, under the heading “OPINION”:
6. Ms Cermack’s situation remains of concern. She is currently unemployed, isolated, took a serious overdose in January 2017, and has a significant past psychiatric and medical history.
7. Whilst Ms Cermack contends that she was the one stable figure in [X]’s life, reports from others and her description of her life in recent times would suggest that she is not and has not been “stable” for some time.
9. Having assessed Ms Cermack, I was left with significant reservations as to her level of insight as to her true psychological functioning and well-being. It is evident that [X] may be one of the only remaining elements of her previous family life and for those reasons alone, is very important to Ms Cermack who she spoke lovingly of (sic).
10. Given the conflicted nature of the relationship between the parties, considerations involved in [X]’s well-being in the care of her parents and the possible negative impact of Ms Cermack re-entering the lives of [X] and her parents need to be weighed carefully against her wish to have ongoing contact with [X].
In her Family Report, Ms A says that Ms Cermack denied having Cluster B Personality Traits and that she had said that Dr E had made that diagnosis because she had been assertive at her interview and had disagreed with him on several occasions.
Ms A reports Ms Cermack’s situation at the time of interview thus:
12. Ms Cermack lives on Region 1 in a one-bedroom cottage, with a two-bedroom carriage. She said her company owns the property. She is currently undertaking a (qualifications omitted). She is registered as a (occupation omitted) with conditions that she is restricted in (employment), education or supervision either paid or unpaid. She can work in (employment omitted).
Ms A reports that Mr Cermack filmed his mother throwing clothes around his bedroom, preventing him from leaving the room, and threatening to evict him from the family home on 1 September 2016.
Ms Cermack’s version of those events is considerably less dramatic and is set out in paragraph 66 of these Reasons.
Mr S was interviewed for the family report and told Ms A that earlier in 2016 the CATT team had been involved with Ms Cermack and that they had called every day to assess the state of her mental health and told him to ensure that her medications were secure.
He told Ms Cermack that he had called the CATT Team because she had “lunged for a knife”, which he had had to take from her, and that she had been abusive. When the police had attended and the father had shown them the photograph of the markings on the bedroom door, the police had issued a Family Violence Safety Notice removing her from the home.
Ms Bronson, too, expressed concerns about Ms Cermack’s mental health to Ms A, those concerns being as set out in Ms Bronson’s Affidavit.
At trial, under cross-examination by counsel for the father[2], Ms Cermack stated that her psychiatric difficulties in 2016 had been the result of side effects from her hormone replacement therapy medication, Zoladex. She said she had been suffering from “medical substance induced anxiety and suicidality”. She acknowledged that her symptoms at that time had been quite serious.
[2] Ms Sevdalis appeared for the father, but it was clear during her cross-examination and submissions that the father and the mother were in agreement about orders that ought to be made in relation to Ms Cermack spending time with [X].
She denied that it had been she who had carved the words “thanks for the box cutter” on the bedroom door.
However, she admitted to having carved the words “I used to love you Mr S” on the bedroom door as depicted in the photograph annexed to the father’s affidavit. It was Ms Cermack’s evidence that her husband had deliberately left the box cutter on the kitchen bench so that she would harm herself. Indeed, Ms Cermack said that on previous occasions Mr S had withheld the box cutter from her, and that she had taken the fact that he had left it on the kitchen bench as “an invitation to commit suicide”.
In relation to the photograph of clothes piled on the floor annexed to the father’s Affidavit, Ms Cermack admitted that she had put them there. It was her evidence that she had attended the family home with a police escort in order to collect her belongings pursuant to the provisions of the Intervention Order, and that she discovered that her husband had placed her belongings in various bags and boxes so that she did not know which belongings were in which containers. She said that she had had to sort through all the bags and boxes to find out where her belongings were, and that is how the piles of clothing came to be on the floor.
Ms Cermack further conceded that she had taken an overdose of all her medications together with some alcohol in January 2017 and that she had been in a coma for five days at the Hospital, followed by two weeks’ in-patient care at the Clinic, which treats patients suffering from psychiatric illnesses.
She said that she had essentially been homeless between her discharge from the clinic and 1 July 2017, when she had moved to her current accommodation on Region 1. During the period of homelessness she had slept on friends’ couches, or in a room at her previous workplace.
It was her evidence that she owns the property in which she lives on Region 1 and that Dr E had been wrong in describing her as renting that property.
Counsel asked her some questions about her (occupation omitted), and while Ms Cermack denied that there were any “conditions” on her (employment) and that she had ever been suspended from (employment), she conceded that there were “restrictions” on her (occupation omitted).
She said that she had disagreed with the findings of her professional association in that regard and had appealed its decision to the Victorian Civil and Administrative Tribunal (“VCAT”). It was her evidence that following the VCAT process, when the restrictions had been lifted, the (employment omitted) Board had again sought to restrict her registration on the same grounds. That process had not been completed at the time of trial. She denied that the investigations into her (employment) had been “about you respecting boundaries between a professional and client”.
Ms Sevdalis tendered a copy of an extract from the (employer omitted) website which contain the following information about Ms Cermack:
· she was first registered as a (occupation omitted) on (omitted) and is currently registered until 2018
· there are currently three conditions on her registration, they being
Ø that she retain at her cost a supervisor, being an experienced clinical psychologist approved by the Board
Ø that prior to resuming (employment), she and the supervisor prepare a Risk Mitigation Plan which would set out details as to how many and what kinds of clients she would see, arrangements for her consultation with the supervisor, and any other matter the supervisor regarded as appropriate, that Risk Management Plan to be provided to the Board
Ø that she meet with her supervisor fortnightly for the first two months after resumption of (employment), and no less than monthly after that, until the conclusion of “the substantive disciplinary process”.
It was Ms Cermack’s evidence at trial that she had fulfilled all of those conditions, and that she had very recently begun to see clients again.
When asked about Dr E’s conclusions about her mental health and her “instability”, Ms Cermack responded as follows:
I find it a bit confusing, your Honour. I have lived with the same partner for 30, nearly 30 years, which would – sort of that stability. I have worked in my own (business) for 18 – 17 years, which would indicate stability. I am enrolled in a (course), and have contributed significantly to research in the area. That would indicate stability.
Under cross-examination from Ms Bronson, Ms Cermack denied that she had attempted suicide on the day after she filed these proceedings. She said she had been depressed at that time as her family had “imploded” and she had been unable to see [X], the building in which she conducted her (business) had been sold, her work was under threat from the (employment omitted) Board, and it was Christmas. It was her evidence that a friend of hers had been worried after speaking to her, and had sent a message to the father via the woman’s son, who was a friend of the father’s, to ask that the father conduct a welfare check on Ms Cermack “because I was alone”.
However, she conceded that the police had been called, and that they had taken her to the Hospital after which the social worker at the Hospital had driven her home with her medication. She said that the psychiatric registrar had made an assessment and found that she was not at risk, and that she had not been at the hospital very long.
Upon questioning from the bench, Ms Cermack admitted that there had been one event in January 2017 “that could be deemed to be an attempt at suicide, or something that put you at risk” and that had occurred on 9 January 2017. It was her evidence that she had intended to kill herself on that day by overdosing on her various medications and alcohol.
It was that incident that led to Ms Cermack being admitted to the Hospital where she spent five days in a coma, before being transferred to the Clinic for the next two weeks.
It was her evidence that the only time she had spent in psychiatric care in hospital had been in 2016 when she had suffered an adverse reaction to her hormone replacement therapy, and after the suicide attempt in January 2017.
It was Ms Cermack’s further evidence that:
…up until the Zoladex reaction, I had no history of anxiety or depression, even though I do have a history of childhood trauma. I spent quite an extensive amount of time working through that childhood trauma so it would not impact on my children or my life. I was never diagnosed with depression or anxiety or post-traumatic stress disorder while I was working through that trauma. So the Zoladex side-effects actually created pathways in my brain that made me susceptible to anxiety and depression in the family violence occurred.
Ms Cermack was permitted to tender a letter from her treating psychiatrist at Private Hospital after an appointment with her on 1 February 2018. That letter not being attached to an affidavit, I give it less weight than would otherwise be the case.
Nevertheless, the psychiatrist, Dr D, states that she has been treating Ms Cermack since December 2016 that Ms Cermack’s diagnosis is of adjustment disorder with depressed mood. Dr D states that Ms Cermack is compliant with anti-depressant medication and that she has been stable and adhering to treatment well.
Decision: Issue A
It is clear from the evidence presented in this case, that at least between early to mid-2016 and early 2017, and for whatever reason, Ms Cermack suffered from significant mental ill-health.
It is also clear that she has been treated for those episodes, and that at the time of trial she was compliant with treatment, including anti-depressant medication.
She presented at trial as a colourful, extroverted, slightly anxious and somewhat eccentric woman who was at pains to downplay both her psychiatric history and its consequences for her professional (employment).
Dr D’s letter indicates that as at February 2018, the mother was still being treated for an adjustment disorder with depressed mood, and I am satisfied that there is still some concern, over the long-term, about her psychiatric stability.
That does not mean that she is a danger to her granddaughter, and there is no evidence, other than the belief of the mother, that she would harm [X] if her psychiatric condition were to relapse.
Issue B. Whether the paternal grandmother should spend time with the child
In circumstances where [X]’s parents agreed to [X] spending time with her paternal grandmother over the 2017 – 18 summer holiday, and where they consented to further orders being made for regular time between [X] and Ms Cermack after the trial on 7 February 2018, albeit with any overnight time occurring at the paternal great-grandparents’ home unless the parties were to agree in writing, this question is somewhat moot.
Decision: Issue B
In any event, for the reasons that will be set out later in these Reasons, I find that it is in [X]’s best interests to spend ongoing time with her paternal grandmother.
Issue C. If the paternal grandmother should spend time with the child, what time should she spend?
A grandparent’s relationship with a child, however close, is not the same as a parental relationship. The time a grandparent spends with the child when the child’s parents have separated will inevitably be less than the time each parent spends with the child, and considerably less than when the child’s parents were together.
The orders sought by the applicant grandmother in this case are parenting orders[3].
[3] S64B Family Law Act 1975 (Cth)
The law in relation to parenting orders is found in Part VII of the Family Law Act1975 (Cth) (“the Act”).
S.60CA of the Act states that whenever a court is considering making a parenting order, it must take the best interests of the child is its paramount consideration.
S.60CC then sets out the matters the court must take into account when it is deciding what order to make in a child’s best interests. Most of those matters refer to a relationship between a parent and child and thus, technically, they do not refer to grandparents. Others specifically mention grandparents and some might be interpreted as referring to both parents and grandparents.
I will set out here the relevant paragraphs of s.60CC and assess them against the evidence in this case.
Primary considerations
S.60CC (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).
While s.60CC(2)(a) does not mention grandparents, it is appropriate in this case to consider the benefit to [X] of having a meaningful relationship with her paternal grandmother, and I will do so later in these Reasons.
As can be seen from the wording of s.60CC(2A), the need to keep a child safe, whether from physical, emotional or psychological harm, is the paramount concern of the court.
In this case, [X]’s parents are concerned that the paternal grandmother’s psychiatric history might place [X] at some risk. The mother expressed a fear that the paternal grandmother might physically harm [X] if she were to experience again the psychiatric difficulties she experienced in mid-2016 and early 2017, and both parents were concerned for [X]’s emotional safety should the paternal grandmother have a relapse of that illness.
The evidence before the court is that the paternal grandmother is compliant with her medication, that she is in regular contact with both her general practitioner and her treating psychiatrist, and I note that there has been no Application in this case since the trial which would give the court cause to be concerned about [X]’s welfare in the paternal grandmother’s care.
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;
The only independent evidence the court has in relation to [X]’s views about any time should spend with her paternal grandmother is found in the family report of Ms A.
I note that Ms A was not asked any questions about [X]’s views during her cross-examination at trial.
In her report, Ms A writes as follows:
51. [X] was asked if she recalled her grandmother, and if so what she called her. [X] said she calls her “Gram” and that she remembered her and had not seen her since her sixth birthday party. She said, “I love my Gram”. [X] was asked hypothetically about scenarios whereby she might spend time with her grandmother. She said she used to enjoy spending time with her at the beach. She volunteered she would be “pretty happy if mum dropped me off with her every morning”.
It is clear from Ms A’s report that [X] loves her paternal grandmother and wants to spend time with her. I take those views into account, although [X]’s young age means that they do not have the weight they would have were she older.
(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);
When [X] was brought into the presence of the paternal grandmother, having not seen her for some 15 months at that time, Ms A describes her as “very excited to see Ms Cermack” and that she ran to her for a hug. Ms A describes her as resuming her relationship with her grandmother very quickly, and that [X] appeared “happy, relaxed and keen to engage with Ms Cermack”.
Ms Cermack writes that when the time for observation between [X] and Ms Cermack came to an end “[X] was clearly disappointed”.
Clearly the nature of the relationship between [X] and her paternal grandmother is one of love, affection and common interests and I note that both parents acknowledge that state of affairs.
(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;
This paragraph does not deal with grandparents and I will therefore address it later in these Reasons.
(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;
This factor is not relevant in these proceedings.
(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;
[X] lives with her mother, her mother’s partner, and her half-sister [V]. She spends time with her father pursuant to orders made by consent in this court in 2013, and by agreement between her parents.
Clearly, if I make orders for [X] to spend time with Ms Cermack, that time will need to be carved out of the time she spends with either her mother or her father.
If the time ordered takes place when she would otherwise be in her mother’s care, she will also be separated from her sister and her mother’s partner.
Similarly, if the time ordered takes place when she would otherwise be in her father’s care, that is time she misses out on spending time with him.
Ms A said at trial that it is usual for a grandparent’s time to take place during the time when that grandparent’s child is spending time with the grandchild. In this case, that would be during the time [X] spends with her father.
I take into account that [X]’s time with her father is quite limited and that it may not be in her best interests to further limit that time.
I also take into account that while Ms Cermack was able to consent to orders for his mother to spend time with [X] pending the delivery of this judgment, there have been times when [X]’s father and paternal grandmother have been very much at odds.
(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;
This is another matter that I will deal with later in these Reasons.
(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;
There does not seem to be any evidence to suggest that Ms Cermack is incapable of providing for [X]’s material needs. [X] is apparently appropriately sheltered and fed by her paternal grandmother when in her care.
It is in the area of Ms Cermack’s ability to provide for [X]’s emotional and psychological needs that the court might have some concerns as a result of Ms Cermack’s psychiatric history.
It is apparent from Ms Cermack’s affidavit, and from what she said to Ms A in her interview for the family report, that she sees herself as much more than a grandparent to [X]. At times she has referred to herself as [X]’s “primary carer”, when in fact [X] has always lived with her mother.
However, at trial, Ms Cermack made it clear that she did not wish to take a parental role with [X], and that she understood that the role of grandparent is a different, though no less valuable role.
Under cross-examination by counsel for the father about Dr E’s view of Ms Cermack, Ms Cermack stated that she had taken Dr E’s views into account when writing her report, and that she did not have concerns about Ms Cermack’s level of insight into her psychological functioning. She said:
Well, no, because we did discuss the therapy that she had done. So my understanding was, in relation to her psychological condition, that – the underlying basis, I guess, if you go back to her early years was trauma, and that she had spent significant time undertaking psychotherapy, which she could describe in terms of what she had done and what kind of recovery she had. The sort of personality features that Dr E was referring to can sometimes be consequent to trauma, but that doesn’t mean that they can’t be recovered from either, particularly if you have insight and you undertake appropriate psychotherapy.
When asked again about whether she had concerns about Ms Cermack’s level of insight, Ms Cermack said:
On the basis of the interview that I did with her during which we talked about the type of psychotherapy that she did and her understanding of the trauma and her attempts over many years to recover from that. So somebody who had no insight in – and I’m just going on the basis of my interview with her – would not have been able to discuss that to the level that she did, and that is what I would understand is insight.
Ms Cermack specifically confirmed her written statement that “(T)hough Ms Cermack was colourfully attired and did appear to have a preponderance of physical illnesses as well as mental health crisis, she could be perceived as being spirited without being considered to have personality vulnerabilities”.
When pressed on Dr E’s view of Ms Cermack’s vulnerabilities, Ms A stood her ground and stated clearly that, based on her own interview with Ms Cermack, she did not agree with Dr E’s psychiatric assessment of Ms Cermack when it stated that she lacked insight.
Ms Cermack will have to use that insight to ensure that her interactions with [X] are appropriate, that she does not involve her in adult disputes, and that [X] is protected from any emotional damage that may result from that exposure.
Again, I note there has been no subsequent application to the court based on any incapacity of Ms Cermack to care for [X]’s emotional needs.
Ms Cermack’s descriptions of activities she undertook with [X] before these proceedings were initiated, indicate that she is well able to provide for [X]’s 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;
From Ms A’s description of [X], she is an appropriately mature child, and in the context of this case, the characteristic of [X] that the court thinks is relevant is that she is a granddaughter, with two grandmothers who love her dearly.
(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;
This is not a relevant factor in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Again, this is a matter I will deal with later in these Reasons as this sub-paragraph does not relate to grandparents.
(j) any family violence involving the child or a member of the child’s family;
There are several historical allegations of family violence involving the paternal grandmother and the father, particularly during 2016 when both parties allege verbal and emotional violence against the other.
It is also alleged that [X] was present, though sleeping in another room, during volatile verbal exchanges between those two parties.
(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;
After the incident between the father and the paternal grandmother on 1 September 2016, the police issued a Family Violence Safety Notice against Ms Cermack on behalf of Mr Cermack, which meant that the paternal grandmother was forced to leave her home.
On 5 September 2016, a final Intervention Order was made by consent at the Magistrates Court. At that stage, the Intervention Order named only the father as an Affected Family Member.
It is the father’s evidence that after 5 September 2016, Ms Cermack’s behaviour was such that he successfully applied to have [X] named as an Affected Family Member on the Intervention Order, that variation order being made on 26 September 2016.
In circumstances that are not quite clear to the court, [X]’s name was removed from the order at a later date, and the original order, reduced to provide only that Ms Cermack not commit family violence against her son, lasted until September 2018.
It was Ms Cermack’s evidence that she had not realised that she had consented to a final order on 5 September 2016, believing it to be merely an interim order.
She was clearly affronted at the existence of the order and saw it as a mechanism by which she was kept away from [X].
(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;
It is always preferable, where possible, to make parenting orders that are least likely to result in future proceedings. It cannot be in any child’s best interests for their parents and grandparents to be fighting over their care in a court of law.
I note that final orders were made between [X]’s parents in 2013 when she was only two years old, and that inevitably arrangements between the parents have changed since that time as [X] has grown and her needs have changed.
In the same way, it may not be possible to make orders for seven – year – old [X] which will last into her childhood and adolescence, but the orders I have made in this case are intended to settle the current dispute and provide a foundation upon which [X]’s relationship with her paternal grandmother can develop and grow appropriately.
(m) any other fact or circumstance that the court thinks is relevant.
I have already alluded to several sub-paragraphs which refer only to “parents” and which therefore do not apply in this case.
However, at least some of those matters are relevant under this sub-paragraph.
First, s60CC(2)(a) refers to the benefit to a child in having a meaningful relationship with the child’s parents. As an extension of that section, it is almost axiomatic that if there is a benefit to the child in having a meaningful relationship with a grandparent, then that ought to be a major consideration of the court in deciding what orders to make in a child’s best interests.
It has been noted in the Family Court of Australia[4] that the word “meaningful” is a qualitative not quantitative adjective. In other words it is not the amount of time the child spends with a grandparent that makes the relationship meaningful – it is what happens between them during that time.
[4] see particularly Mazorski & Albright [2007] FamCA 520 per Brown J
In her affidavit, Ms Cermack describes a relationship which by any measure would be described as “meaningful”. For instance, she deposes:
42. [X] has a vivid imagination and we would often imaginary role-play, pretending we were searching for dragons and dinosaurs, mixing magic potions, and playing with the fairies. [X] and I made a game together for mealtime, we would pretend that her food and spoon are different dragons and they fly into her mouth and down into her stomach hunting for treasure.
43. [X] and I often played with her dolls and other toys. We would pretend to feed them, bathe them and change their clothes, put them into bed and read them stories.
44. [X] would also tell me how much she loved taking our dog for walks. The father would walk the dog and I would assist [X] with her bike. [X] liked to stop and collect flowers, leaves and feathers on these walks. We would usually stop at the park for [X] to play in.
[X] told Ms A that she loved her “Gram” that she wouldn’t mind if the mother dropped her off at her paternal grandmother’s every day. That clearly indicates that the relationship between grandmother and granddaughter is “meaningful” in any sense of the word.
The benefit to [X] in spending time and fostering a meaningful relationship with the paternal grandmother, lies in the very nature of that relationship and the appropriateness of its role.
The evidence of both Ms Bronson and Mr Cermack is that Ms Cermack has exaggerated her role in [X]’s early life in her affidavit material, but even if that were not so, the appropriate role for Ms Cermack to play now is not of the parent, but that of a loving, caring, perhaps slightly indulgent but nevertheless firm grandparent.
She has indicated that she understands that role and it is one she is most keen to play.
Second, s.60CC(3)(c)(ii) & (iii) refer to the extent to which a parent has taken the opportunity to spend time and communicate with the child.
In this case the paternal grandmother has taken every opportunity granted to her to spend time and communicate with [X] and she is clearly devoted to her granddaughter.
Third, s.60CC(3)(e) requires the court to take into account any practical difficulty and expense that might be incurred by the parties in orders made for an Applicant to see a child.
In this case, I note that Ms Cermack lives on Region 1, and that the only way to and from Region 1 is by ferry or private boat. There is no evidence that Ms Cermack owns a boat suitable to traverse Region 1, and I do take into account that there may be some practical difficulty in returning [X] to her parents in an emergency if she is spending time with Ms Cermack overnight at Ms Cermack’s home.
Currently, [X] is spending daytime only with her grandmother on Region 1 pursuant to the orders made by consent after trial on 7 February 2018, but there is no evidence before the court that there has been any real practical difficulty in [X] travelling to and from the island.
While I accept that there may be some risk to [X] if an emergency arises while she is staying overnight on Region 1 with her grandmother, I do not find it to be an unacceptable risk.
It was Ms Cermack’s evidence that there are some emergency services on the island, and that in urgent cases people have been lifted from the island by helicopter.
In terms of the risk posed by the paternal grandmother’s psychiatric history, at the time of trial she had had no episodes of mental illness for more than a year, and the court is unaware of any such episode since the time of trial some nine months ago.
I intend to make orders which require her to continue to undergo treatment by her general practitioner and her treating psychiatrist so that her condition is monitored, and any consequences of a possible future relapse are restricted as much as is possible.
Finally, I take into account the attitude of the parties to the child and to their roles as parents and grandparent.
[X]’s parents have travelled a rocky road since their separation when she was two years old, with both having admitted to taking illicit drugs, and there having been fairly frequent low-level disputes between them over the years.
Nevertheless, they have raised [X] to be the delightful child that Ms A saw at interview and they are to be greatly commended for that.
There are three particular passages in the family report which the court found encouraging in relation to Ms Cermack’s attitude to [X] and to her role as Ms Cermack’s grandparent.
First, during the observation of [X] and Ms Cermack together, Ms A writes:
55. Ms Cermack and [X] did some co-drawing while they chatted…. ([X]) asked her grandmother to draw a snake. [X] clearly liked to lead, and Ms Cermack followed. Ms Cermack appeared highly attuned to [X]. She was able to make suggestions to [X] for her consideration while they drew together. [X] received the suggestions well.
55. When it was time for the observation to end [X] was clearly disappointed. Ms Cermack hugged her and said, “I love you sweetheart, I always have and always will”. Ms Cermack was visibly upset but she was careful not to display that to [X] and appeared to be able to prioritise [X]’s needs over her own.
Later in her report, Ms A states:
59. Ms Cermack impressed as having struggled with many illnesses and an event in 2016 which she stated was both medically caused and from which she had recovered. She appeared to have a warm and loving relationship with [X], and it was very clear that [X] has missed her. She was colourfully attired and did appear to have a preponderance of physical illnesses as well as the mental health crisis. However, she might be perceived as somewhat spirited without being considered have personality vulnerabilities. While she did suffer childhood trauma, she had also undertaken many years of therapeutic support to process the trauma. She reported having no remaining trauma symptoms which would be diagnosed as PTSD.
Further, at paragraph 60, Ms Cermack states:
….. It is known that children can benefit from a relationship with an adult who is not a parent, and who can sometimes be a grandparent if that person can listen in a highly attuned way to the child. It builds resilience for a child usually has a different quality that parental role. It is more like a mentor rule. During the observations Ms Cermack did nothing that was inappropriate or that raise concerns about how she relates with [X]. In fact, she is highly skilled at attuning with the child….. Ms Cermack impressed as having accepted that her role with [X], if permitted by the court, would be one of a support and possible mentor.
Decision: Issue C
For all the reasons set out above, and particularly because Ms Cermack’s psychiatric condition appears to have stabilised, and because the court is not aware of any problems having arisen in the operation of the orders made by consent on 7 February 2018, I will make orders which allow for [X] to spend time with her paternal grandmother overnight on Region 1, or any other venue where her paternal grandmother might live or be spending holiday time.
I will continue the orders for fortnightly after-school time and telephone/electronic communication time contained in the orders of 7 February 2018, and will make orders for weekend time once per school term, and holiday time in two school holiday periods per year.
Those orders will allow [X] to enjoy the benefits of a meaningful relationship with Ms Cermack while acknowledging that her primary living arrangements are with her parents.
Conclusion
This little girl has been through much in her short life: her parents’ separation; the volatile circumstances that pertained in 2016 in her father’s home; a long period of separation from her dearly loved paternal grandmother; her mother’s re-partnering and the arrival of a new sibling; and the rekindling of her relationship with her paternal grandmother.
It is to be hoped that these orders will settle the dispute between the parties and form the foundation for a trust to be built between them so that [X] can relax and enjoy her life knowing she is loved by all members of her family.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 13 November 2018
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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