CHANEY & DANVILLE

[2020] FamCA 646

FAMILY COURT OF AUSTRALIA

CHANEY & DANVILLE [2020] FamCA 646

FAMILY LAW – CHILDREN – Application by maternal grandmother to spend time and communicate with two children – the father and Independent Children’s Lawyer oppose the application – where both children have special needs – where the father has an acquired brain injury – father’s inability to cope with orders as proposed by the maternal grandmother – where maternal grandmother has not seen the children since 2017 – allegations of sexual abuse perpetrated by the maternal grandfather – consideration of best interests of the children – orders made as proposed by the father and Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 62G, 67Z

Bell & Nahos [2016] FamCAFC 244
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPLICANT: Ms Chaney

RESPONDENT: Mr Danville

INDEPENDENT CHILDREN’S LAWYER: Bentleigh Family Lawyers

FILE NUMBER: MLC 3463 of 2018

DATE DELIVERED: 11 August 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 6 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cash

SOLICITOR FOR THE APPLICANT: Rodriguez Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kiernan

SOLICITOR FOR THE RESPONDENT: Marcou and Associates Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Foong

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bentleigh Family Lawyers

Orders

1. All previous parenting orders be discharged.

2. The father have sole parental responsibility for the children X born … 2006 and Y born … 2008 (‘the children’).

3. The children live with the father.

4. The children spend no time with, and have no communication with, the maternal grandmother.

5. The maternal grandmother and her agents or servants, be and are hereby restrained by injunction from:-

   (a)       contacting or approaching the children;

   (b)       locating, following, and/or keeping the children under surveillance;

   (c)       attending any school, venue for extra-curricular activities and/or venue for medical or allied health treatment, that the children may attend;

   (d)       attending the father’s residence without the written consent of the father;

   (e)       publishing on the internet, by email or other electronic communication any material about the father and/or the children, or any of them; and/or

   (f)        discussing these proceedings or any other proceedings relating to the children.

6. The parties are restrained from speaking in a derogatory manner about the other and their family members, either directly to the children or within the children’s hearing or allowing any other person to do so.

7. The appointment of the Independent Children’s Lawyer be discharged.

8. Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of Counsel.

9. All extant applications including the maternal grandmother’s Amended Initiating Application filed 4 May 2020 and the father’s Further Amended Response to Initiating Application filed 27 May 2020 be otherwise dismissed.

Notation:-

A.Pursuant to s65DA(2) and s62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chaney & Danville has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3463 of 2018

Ms Chaney

Applicant

And

Mr Danville

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Preliminary

1. This proceeding commenced on 3 April 2018 in the Federal Circuit Court of Australia (‘the FCC’). The Applicant is the maternal grandmother of the children, X born in 2006 and Y born in 2008 (‘the children’). The Respondent is the children’s father. The children’s mother died in 2015. At the time of the mother’s death, the mother and father were happily married. They commenced their relationship in 2003; commenced their cohabitation in 2005; and were married in 2009 being a date following the birth of both of the children. The marriage also followed the diagnosis of the mother in November 2007 with cancer. This diagnosis occurred during her pregnancy with the child Y.

2. Since their mother’s death, the children have lived with their father and they last saw the maternal grandparents in September 2017. Prior to that time, the children had seen the Applicant on some six occasions between November 2015 and September 2017.

3. The child X is approaching 14 years of age. He was diagnosed in 2013 with an intellectual disability and Autism Spectrum Disorder (‘ASD’) and has additionally been diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’). He is in receipt of a National Disability Insurance Scheme (‘NDIS’) package. He attends B School.

4. The child Y is 12 years of age. She has been diagnosed with a mild Intellectual Disability and with ASD. She is in receipt of a NDIS package. Y also attended B School before, at the commencement of this year, transitioning to the local primary state school where she is in grade six. She is thriving and happy in that environment.

5. X was supported in his transition to secondary education by an Education Department psychologist, Ms C. Y was likewise supported in her transitioning from the specialist school to the local primary school. Further, the family received support from D Services and have more recently received support from F Services. Throughout these engagements with outside service providers, the Respondent has been welcoming, cooperative and keen to remain engaged for the benefit of the children.

6. The Respondent was born in 1974 in Suburb G, Queensland and is aged 45 years. He has learning difficulties, and is illiterate. The Respondent attended a special school for his secondary education where he completed the senior level and then left at the age of sixteen years to commence working as a tradesman. When the Respondent was approximately 18 or 19 years old he was involved, as a passenger, in a car accident. He suffered a stroke and as a result has an acquired brain injury (‘ABI’). He has “difficulty remembering things and can be seen as a poor historian”.[1]

   [1] Affidavit of Mr Danville sworn 26 May 2020, [64].

7. The Respondent is in receipt of a disability support pension and a carer’s payment in respect of the child X.

Material Relied Upon

1. In this proceeding the Applicant relied upon the following material:-

   a)an Amended Initiating Application filed 4 May 2020;

   b)an affidavit of evidence in chief sworn 4 May 2020; and

   c)an affidavit in reply sworn 14 June 2020; and

   d)an outline of case document filed 31 July 2020.

2. In this proceeding, the Respondent relied upon:-

   a)an Amended Response filed 27 May 2020;

   b)an affidavit of evidence in chief sworn 26 May 2020; and

   c)an outline of case document filed 3 August 2020.

3. In this proceeding the Independent Children’s Lawyer relied upon:-

   a)a s 67Z of the Family Law Act 1975 (Cth) (‘the Act’) response prepared by the Department of Health and Human Services (‘DHHS’) dated 25 August 2018;

   b)the Children and Parent’s Issues Assessment by Family Consultant Ms H dated 29 August 2018;

   c)a s 62G of the Act family report prepared by Family Consultant Ms J dated 6 July 2020 (‘family report’); and

   d)an outline of case dated 5 August 2020.

Orders Sought

1. The issue in this case is whether the Applicant should spend any time with the children and further, whether the Applicant should, in any way, communicate with the children.

2. Each of the Respondent and the Independent Children’s Lawyer oppose any orders that would result in the Applicant spending any time, or communicating in any way, with the children.

3. The Applicant agrees that the children should continue to live with the Respondent and there is no challenge by the Applicant as to the Respondent having sole parental responsibility of the children. The Applicant however seeks to spend time with the children and sought orders, relevantly, in the following terms:-

   2. The applicant Grandmother spend time with her grandchildren as follows forthwith:

   a. For period of one month, fortnightly on a Saturday from 10am to 2pm

   b. For period of two months, fortnightly on a Saturday from 10am to 4pm

   c. On an ongoing basis, fortnightly on a Saturday and Sunday from 10am to 4pm

   3. The applicant's daughter, Ms N, or other person agreed between the parties and the Respondent father be present at changeover and such changeover to occur at McDonalds in Suburb K.

   4. That the Applicant Grandmother be at liberty to continue to send any letters, cards and special occasions presents to the children and the father to facilitate the same.

   5. Any further additional time to be provided upon agreement in writing between the parties during birthdays, special occasions and holidays.

   6. That the maternal Grandfather be restrained from having any spend time or communication with the children.

   7. That the parties provide to each other their address and telephone number within 7 days forthwith and upon any change to the same in future.

   …

4. As can be seen in the preceding paragraph the Applicant acknowledges that her husband, the maternal grandfather, should have no contact with the children whilst they are spending time with her and seeks specifically a restraining order to that effect.

5. In closing, counsel for the Applicant sought an order that the parties engage in family therapy and that as a first step the Applicant be permitted to send to the children cards and gifts and thereafter, by means of a progression in the relationship, the Applicant be permitted to spend supervised time with children in a contact centre setting with such time spent with to occur in the presence of the Respondent. The Applicant thus conceded that any form of unsupervised time with the children would be considerably delayed and would need to follow the parties and children engaging in extensive family therapy together with the other steps outlined herein occurring as a precursor to unsupervised time.

Issues as to Orders Sought

1. The Applicant puts her case in the context of allegations made against the maternal grandfather of sexual abuse perpetrated by him, both in an historic context and more recently. The allegations relate to three different females at three different times. The first being a child of family friends in 1994; the second, being the deceased mother of the children in 1996; and the third, being the child Y in both November 2015, occurring in the week after the child’s mother’s death and again in August 2016. Both the Applicant and the maternal grandfather deny these allegations. The Applicant did so vehemently in the proceeding. No charges have been laid. Each of the children has been interviewed by the Sexual Offences and Child Abuse Investigation Team (‘SOCIT’) and the allegations are unsubstantiated. The Respondent nevertheless accepts these allegations as detailed to him by both his deceased wife and his daughter.

2. The Respondent’s evidence is that his wife told him that her father had sexually abused her when she was 16 years of age. This allegation was one repeated to him on her death bed. The Respondent’s evidence is that the child Y told him that the maternal grandfather had, whilst naked, placed himself on top of her and had touched her vagina. This occurred in 2016 and at a time when the Respondent was allowing the maternal grandparents to spend time with the children, in part, because he was overwhelmed with grief and needed some respite from the care of the children.

3. The Respondent does not take issue with the fact that the Applicant had a close relationship with the children prior to their mother’s death in 2015. He admits that she was very involved in the children’s lives prior to his wife’s death and that involvement included his wife and the children spending overnight, at times weekly, periods in the home of the maternal grandparents. These visits enabled the children to have a relationship with not only the maternal grandparents but, in a more limited way, with their cousins on their mother’s side.

4. However Y’s disclosures to the Respondent coupled with his wife’s earlier disclosures changed the Respondent’s approach to the maternal grandparents and he felt a need to act protectively in respect of the children. The Respondent is “very fixed” in his belief that the maternal grandfather has acted as alleged. The Respondent’s evidence at trial was that the Applicant has been complicit in the actions of her husband and he went so far as to allege that the Applicant had given medication to Y to enable her husband to carry out the sexual abuse of Y. The Respondent will not consent to any order making any provision for the Applicant to spend time with, or communicate with, whether by cards and letters or in any other way, the children.

5. The Applicant commenced these proceedings in order to resume face to face contact with the children. She has been precluded from this form of spend time with, not only by the existence of no order providing for her to spend time with the children, but also by an intervention order obtained by the Respondent in the Magistrates’ Court at Suburb L on 19 September 2017, wherein he and the children are named as aggrieved family members. On 15 July 2019 a final intervention order was granted until 14 January 2020. 

The Law

1. Section 60CA of the Family Law Act 1975 (Cth) (‘the Act’) provides that:-

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. Section 60CC(2) of the Act provides relevantly:-

   Determining the child’s best interests

   …

   (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.

   …

3. Section 60CC(3) of the Act provides additional considerations further to the primary considerations, those relevant being as follows:-

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   …

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   …

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   …

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

Consideration

1. It is not necessary in these reasons for judgment to comment upon the evidence of each witness nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[2] The Court has had regard to those matters set out in paragraphs 21 to 23 above.

   [2]Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].

2. A lot of time has passed since November 2015 and in that time the Applicant has seen little, and then for last three years nothing, of the children.

3. There is now a deep distrust and antagonism between the parties. They do not like each other. The Applicant’s material is replete with criticism of the Respondent though her evidence at trial was that she respected him as the children’s father and that she believed she would be able to communicate with him in respect of matters going to the children were any orders to be made. The evidence of the family consultant Ms J, who prepared the family report dated 6 July 2020, is that any form of therapeutic counselling (if same was to be ordered as the Respondent will not consent to any such order) may well be “futile”. Her evidence was further that the children have considerable vulnerabilities making it difficult for the children to be caught in the cross-fire of the parties’ hostile relationship and in particular, given their father has an ABI. These matters led the family consultant to recommend “[t]here [be] no spend time or communication between the children and their maternal grandparents.”[3]

   [3] Family Report dated 6 July 2020, [59].

4. Following the commencement of these proceedings and on 29 August 2018, Family Consultant Ms H prepared an assessment based on her individual meetings with the Applicant, the Respondent, and with the children. The maternal grandfather was also briefly interviewed. It was clear at that time the Respondent raised risk factors for the children being allegations of family violence between the maternal grandparents including an assault upon the maternal grandmother by the maternal grandfather and child abuse as perpetrated by the maternal grandfather upon the child Y. The Respondent remains consistent in his expression of these concerns. The Respondent’s case is that there is a need to protect the child Y from abuse and to protect the children from the psychological harm that he alleges will befall them if exposed to the maternal grandparents and their violent relationship.

5. When Ms H interviewed the children in 2018, the children expressed a wish that they did not want to spend time with either of their grandparents. They remain consistent in their expression of that view to the present time. The children, in 2018, were also concerned that the grandparents were stalking them and seeking to remove them from their father’s care. They had formed that impression from the Respondent voicing his own anxieties as to that matter in the presence of the children. The children’s apprehension as to being removed from the Respondent’s care by the Applicant remains heightened and continuing to the present time. Ms H’ evaluation in 2018 about the issues for the parties and the children’s needs was as follows:-[4]

   22. X is a boy with high needs who appears to have a special relationship with his father, on whom he depends for his feelings of safety and security. He is protective of his sister and clear about his wants.

   23. Y is a girl who also has a close relationship with her father and her brother. She is currently supported well by professional services. At interview, she gave a clear reason why she did not want to spend time with her grandparents.

   24. All family members have been struggling with the death of Ms Danville, around it seems, whom this family revolved. Compounding their grief has been the alleged disclosures made by Y.

   25. If Orders were made for Y and/or X to spend time with their grandparents, their anxiety levels would likely overwhelm them. While there is no suggestion that Ms Chaney has harmed the children directly, nor suggestion that she was involved in covering up any alleged harm, the children associated her with the harm. The reality is, if there was harm done to Y, Ms Chaney has failed to protect her.

   26. It has not been helpful to the children for Mr Danville to tell them their grandparents have been stalking them and want to take them away from him. This will only increase their anxiety and the latter is untrue, given Ms Chaney is only seeking time with her grandchildren.

   27. Allegations pertaining to family violence between the grandparents is concerning.

   28. There is alleged risk in terms of the grandparents and this risk would need further assessment and strategies for risk mitigation if the matter was to progress.

   [4] Children and Parents Issues Assessment dated 29 August 2018, [22]-[28].

1. The children were further able to express their views to the Independent Children’s Lawyer during the currency of this proceeding and being more recently. Those views are described below:-

   The children have special needs. The ICL met the children through FaceTime on 19 July 2020. X will be 14 years old in 2 months. While he spoke about school, favourite sports, pet, friends at school, he was quiet unless prompted. He did not understand some questions. He was happy to tell the ICL that he enjoys living with dad who is a good cook, loves his dad. X told the ICL that he does not want to see his Grandparents and they make him uncomfortable.

   Y is 12 years old, sounded excited and keen to talk. She told the ICL she goes to B School and is in Grade 6. She is happy with dad. She has lots of friends and loves her teachers. She told the ICL that she doesn’t get homework because of her “level”. Y can cook and enjoys it. Has been learning to cook. When asked if she is worried about anything Y replied “I don’t want to see my grandparents, I’m not comfortable”. The children have expressed their views that they do not want to spend any time with their grandparents.[5]

   [5] Independent Children’s Lawyers Outline of Case filed 5 August 2020, page 9 [3(a)].

2. The Court considers in the factual context of this family, as comprised of the Respondent and children, that the children’s views should be given considerable weight.

3. The children’s relationship with the Respondent is secure and happy. They love him and know they are loved by him. They are well settled in their routine with the Respondent and the Respondent provides well for all their financial, emotional and physical needs. Additionally, he provides well for their special medical needs. The Respondent does this both personally and by seeking out assistance within the community and through the NDIS, as appropriate.

4. The children’s relationship with the Applicant is now very poor and almost non-existent. Whilst this is very sad given that prior to their mother’s death they had a regular and close relationship with her, this situation has existed for almost five years now and the children have remained steadfast in their view that they do not want to see the Applicant. The Respondent is immovable in his view that the Applicant should have nothing to do with the children. He does not trust her and sees no benefit to the children in resuming their relationship with the Applicant. Although the Respondent consented at an earlier time to the Applicant being permitted to send cards and gifts to the children, he was unable to provide the children with the cards. It was simply too emotionally destabilising for him and he feared having to deal with the anticipated angry response of the children.

5. Disrupting the children’s current (positive to them) circumstances, which promote their best interests is highly problematic and adverse to the children. It is the Respondent’s evidence that the children have progressed considerably taking into account their special needs. The child Y is now able to shower by herself, is no longer wetting the bed and has developed a love for cooking which she does whilst being supervised by the Respondent.[6] The child X is also “doing well”.[7] He helps with the house chores including vacuuming and washing up after dinner without being instructed to do so by the Respondent.[8] The Respondent does not want the children to “regress” by allowing the Applicant to spend time and communicate with them as he fears this will trigger the children’s anxiety.[9] This factor, he and the Independent Children’s Lawyer argue, considerably outweighs the benefit to the children, which would ordinarily occur, in the pursuit of and/or preservation of a relationship with their maternal grandmother.

   [6] Affidavit of Mr Danville sworn 26 May 2020, [194].

   [7] Affidavit of Mr Danville sworn 26 May 2020, [195].

   [8] Affidavit of Mr Danville sworn 26 May 2020, [195].

   [9] Affidavit of Mr Danville sworn 26 May 2020, [196].

6. The matters to be considered in s 60CC of the Act, including those which are relevant and canvased in paragraph 23 above are explored in the family report of Ms J. The evidence of Ms J is accepted by the Court and is highly persuasive evidence as to what orders the Court should make to promote the best interests of the children.

7. The family report is a carefully considered assessment of the impact upon the Respondent and the children of the making of orders as sought by the Applicant. The Respondent presented to Ms J as “child focused and protective of the children as a first priority.”[10] Ms J said of the Respondent:-

   38…He was able to identify their needs and reported good engagement with educational and support services. He described that he tries to focus on maintaining stability for the children. He does not always attend to his own needs and puts himself last. He reported he has regularly attended upon a counsellor. He stated “I hate talking about myself”, and generally impressed that he struggled to articulate his thoughts and feelings at times, his views forthright and thinking at times concrete. He said the counsellor helps him articulate his thoughts, has helped with the grief and loss and assists him in solving everyday issues.

   39. Mr Danville said he had received the gifts and cards sent by Ms Chaney. He reported he gave the children the gifts but kept the cards, they therefore do not know who the gifts are from. He reported “it’s wrong what I’m doing”, but “I don’t want to deal with the fall out”. By this he qualified, mention of the grandparents creates fear in the children they will “come and get them”, the children become upset and “go off”. He said it has been a long time since any contact or communication about the grandparents and he regards it “upsets them”, “makes it hell for me”, “interferes with them” and they will be worried. Mr Danville regards any mention of the grandparents is destabilising, in his view it “sets the children back” and would undo “all the work I have put in”. He said he does not want to “deal with it”. He does not regard there is any benefit to the children sharing a relationship with them and it would likely distress them too much, is unsafe because of the alleged sexual abuse disclosures and poses risk to the children’s ongoing stability, development and well-being.

   40. Mr Danville is entrenched in his view that the grandparents pose risk to the children, not only of potential sexual harm as a result of Y’s disclosures, but also emotional harm. The children are dysregulated by the mention of them and it is not in their interests to be disrupted by any contact or communications with them. This is compounded by Mr Danville’s somewhat concrete and linear type views. In that; the grandparents have wanted to take the children from him, Ms Chaney is untrustworthy, the mention of the grandparents leads to dysregulation in the children, parenting difficulties for him and destabilisation. He is fixed in this position and negotiations and attempts to alter this thinking appear likely futile and seem compounded by issues associated with his ABI, where he acknowledges cognitive deficits including; poor memory, especially in the short term and limited literacy skills.

   [10] Family report dated 6 July 2020, [38].

8. Ms J said of the Applicant:-[11]

   41. Ms Chaney is fixed in her position that Mr Danville has taken the children from her, he is lying about what happened in their family unit prior to her daughter’s death and he has no capacity to maintain good extended family connections having experienced dislocation in his own background. She seems fixed on proving him wrong, disputing facts, exonerating herself and Mr Chaney from the allegations about them, and to some extent wants an alternate narrative given primacy from that espoused by Mr Danville about care of the children prior to her daughter’s death. She seems to seek this narrative be heard and given weight, or, credence to her position. There seems little capacity for communication or negotiation between the parties.

   [11] Family report dated 6 July 2020, [38].

9. Ms J’s evaluation is compelling and accepted by the Court. It is relevantly as contained in paragraphs 51 to 55 of her family report which I set out below being as follows:-

   51. Mr Danville presents as protective of the children, this at times demonstrated by a concrete type fixation that seemed somewhat intractable. He held a steadfastness that any mention of the grandparents created distress and difficulties for him in the parenting of the children, so he has therefore not passed on the cards sent by Ms Chaney. This is unhelpful in terms of any potential reconciliation of the relationship and establishment of any spend time arrangements. Whether this type of thinking is personality based, a firmly held belief that Ms Chaney will try to take the children from him, a protectiveness of the children, a disregard for Court Orders, or, in part due to his own cognitive deficits, or, all of the above is not clear. He is however, committed to the children, keeping them safe and demonstrates a co-operative approach to education and support services to assist in his parenting endeavours.

   52. Ms Chaney presents with a genuine desire to spend time with the children. Notwithstanding this genuine desire, her reports at interview suggests she wants more so to prove Mr Danville wrong, dispute facts and exonerate herself and Mr Chaney from the allegations about them. She also presents with a strong desire to ensure a different narrative to that provided by Mr Danville in these proceedings about the Danville’s family functioning prior to her daughter’s death is regarded as credible. Of some concern was Ms Chaneys views that Mr Danville may be “playing on” the children’s disabilities. Whilst Ms Chaney’s presentation and distress at the loss of her daughter, what she regards as lies by Mr Danville and her desire to spend time with the children is entirely understandable. It is, however, questionable whether ongoing proceedings will assist in this regard.

   53. Given the fixed positions of the parties, the time now passed, that this is a grandparent relationship, the allegations of risk in relation to Mr Chaney in addition to Mr Danville’s and the children’s vulnerabilities, it is also questionable that any spend time would be possible, or, beneficial to the children at this point in time and into the foreseeable future.

   54. It seems at this point in time and into the future; Ms Chaney is likely to pose a destabilising influence on Mr Danville’s parenting capacity and therefore to the children’s current stability. Amongst this backdrop, it is questionable if the involvement of Ms Chaney would be helpful in the parenting of X and Y, or, enhance developmental outcomes for them. The parties in this matter are unlikely to enter into any constructive communications, or, be engaged in positive extended family relationships. Their relationship is marked by a long period of absence following on from the grief and loss experienced after Ms Danville’s death. They present as fixed in their polarised positons, they may have with the assistance of Ms Danville managed a constructive extended family relationship whereby the children spent time with their grandparents in the course of everyday life, but this does not seem possible now.

   55. X and Y will benefit if Court Orders ensure they are not only safe, but also that they are protected from potential and future harm, inclusive of any adverse impact of parenting orders upon their primary parent. It is unlikely any ongoing litigation will offer any protective factors to X and Y’s care and development, or, assist to enhance developmental outcomes for them, and may indeed only add to further stressors in Mr Danville’s parenting.

Conclusion

1. The Court concludes that the family consultant’s view that therapeutic counselling would be “futile” in the circumstances of this case, is an accurate view. Further, the Court concludes that any order whereby the Applicant would have some form of contact and/or communication with the children would be highly destabilising to both the children and the Respondent and to such an extent that the children’s best interests would not be served. This is for the reason that neither the children nor their father could cope with the operation of such an order. The adverse impact of any such parenting order upon the children’s only parent would lead to the children being placed at risk given the particular vulnerabilities of both the Respondent and the children. Accordingly, the Applicant’s application must fail.

2. The Respondent and the Independent Children’s Lawyer sought an injunctive order against the paternal grandfather. He is not, and never has been, a party to the proceeding. Nor was he a witness at trial. No order is made against him as a non-party and the Court notes that historically any concerns in respect of his behaviour has been dealt with in the obtaining of an intervention order against him by the Respondent as an aggrieved family member.

3. The injunctions in respect of the Applicant are sought by the Respondent and the Independent Children’s Lawyer and necessary on the evidence given the Applicant, at an earlier point in time, made enquiries of, and attempted to locate, the whereabouts of the children’s home and school. The existence of such an order shall reassure the children that the Applicant is not intent on removing them from the Respondent’s care and lessen the areas of conflict between the Applicant and the Respondent which impact upon the Respondent’s ability to properly care for the children.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 11 August 2020.

Associate: 

Date:  11 August 2020