Charters & Webb - [2022] FedCFamC1F 527

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Charters & Webb [2022] FedCFamC1F 527

File number(s): SYC 7278 of 2017

Judgment of: ALTOBELLI J

Date of judgment: 25 July 2022

Catchwords: FAMILY LAW – PARENTING – Application by maternal grandmother to spend time with the child – Where there are existing consent orders between the parents made in previous proceedings – Where the parents and Independent Children’s Lawyer oppose the orders sought by the maternal grandmother – Aboriginality of the child – Finding that it is not in the best interests of the child to spend time with the maternal grandmother.

Legislation: Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229

Gibbs v Capewell (1995) 54 FCR 503; [1995] FCA 25

Malcolm & Monroe (2011) FLC 93-460; [2011] FamCAFC 16

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Sheldon & Weir (No. 3) [2010] FamCA 1138

Valentine & Lacerra and Anor (2013) FLC 93-539; [2012] FamCAFC 219

Webb & Guthrie [2016] FCCA 2285

Division: Division 1 First Instance

Number of paragraphs: 165

Date of hearing: 27–30 October 2020, 1–2 February 2021, 3–4 February 2022

Place: Wollongong (27–30 October 2020, 1–2 February 2021)
Sydney (via videoconference) (3–4 February 2022)

The Applicant: Litigant in Person

Counsel for the First Respondent: Mr Lawrence

Solicitor for the First Respondent: Acorn Lawyers

Counsel for the Second Respondent: Mr Alexander

Solicitor for the Second Respondent: Access Law Group

Counsel for the Independent Children's Lawyer: Mr Cairns

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 7278 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CHARTERS

Applicant

AND:
MR WEBB

First Respondent

MS GUTHRIE

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 JULY 2022

THE COURT ORDERS THAT:
1.The application of the Applicant maternal grandmother is dismissed.
2.All other extant applications in this matter are dismissed.
3.The Applicant is permitted to send letters, cards, gifts, and photographs to the child, X born in 2012 (“X”), noting that the First and Second Respondents are entitled to vet the same before giving them to X.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Charters & Webb) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION

This case is about X born in 2012 (“X”), who is currently nine and a half years old. The Court had to decide whether the Applicant maternal grandmother (“the grandmother”) should spend time with her, and, if so, on what terms and conditions. These reasons for judgment explain why the Court has ordered that X not spend any time with the grandmother.
BACKGROUND
The proceedings relating to X commenced in 2013, when she was about one year old. Initially the litigation was between her parents but the current application was commenced by the grandmother on 7 September 2017.
The grandmother is 56 years old and her husband is 67 years old. They live in Q Town, a country town in New South Wales.
Mr Webb (“the father”) is the First Respondent in this case. He is 35 years old and lives in the far western suburbs of Sydney. He is married. X has lived with the father and his current wife, Ms B since December 2016, when the Court ordered this to take place.
The mother, Ms Guthrie (“the mother”) is 35 years old. She lives in a northern suburb of E City, in Queensland, and is the Second Respondent in this case.
X’s parents met in 2009, married in 2011, and separated in June 2012. X was not born until a few months after her parents separated.
After their separation, the parents were unable to reach an agreement about the father spending time with X, and the father filed an Initiating Application on 22 April 2013. The first significant orders in this case were made on 27 August 2013. They provided that the mother have sole parental responsibility for X, and that there be no time or communication between X and the father. On 21 May 2014, orders were made by consent on the third day of a final hearing before me. The orders provided for X to live with the mother, but spend time with the father, initially on a supervised basis. Within a very short time of making these orders, problems arose with compliance and the father filed a contravention application, recommencing the litigation. The litigation appears to have intensified thereafter. The mother sought an Apprehended Domestic Violence Order against the father, and filed an Application in a Case to vary the orders.
Further interim orders were made by consent on 4 May 2015, providing for X to spend supervised time with the father. Later that year, the mother unilaterally relocated with X to a suburb in E City, Queensland. The matter came before me for a final hearing in April and May 2016 and I made final orders on 16 December 2016, the effect of which were to grant to the father sole parental responsibility, and for X to live with him and spend time with the mother. The father had, one year earlier, married Ms B
I delivered reasons for judgment in relation to those orders on the same date, published as Webb & Guthrie [2016] FCCA 2285. In those reasons, I canvassed the involvement of the grandmother in X’s life at the time. At [74], I noted that it was clear that the grandmother was “intimately involved” in X’s daily life, and her involvement extended to a significant role in following up certain disclosures alleged to have been made by X (at [156]–[280]). Indeed, when the mother relocated with X to E City in 2015, the grandmother would accompany X to Sydney once a fortnight to spend time with the father (at [282]).
The litigation resumed in May 2017, with the mother filing an Application in a Case (which was later discontinued), and then in September 2017, with the mother filing a contravention application. In September 2017, the grandmother filed the present Application for Final Orders, in effect seeking that X live with her.
In November 2018, the father and Ms B had their own child, who is now three and a half years old. In January 2020, the father and Ms B had a second child, who is now about 18 months old.
The hearing of the grandmother’s application commenced before me in October 2020. After four days, it adjourned part-heard and resumed in 2021 for two days. It adjourned part-heard once again and finalised in February 2022 after a further two days of hearing, with judgment reserved. The completion of the hearing was delayed several times because of factors including the grandmother’s ill health and the COVID‑19 pandemic.
By the time of closing submission, the issues in dispute had narrowed, and the commonality in the positions of the parties had emerged. Thus, by the time of closing submissions, it was clear that, in effect, the father, Independent Children’s Lawyer, and the mother proposed that the grandmother have no time with X.
The grandmother, at all relevant times, represented herself in these proceedings. She is clearly a highly intelligent and articulate woman, who was more than capable of holding her own in this litigation, but, of course and understandably, her case suffered from the lack of objectivity that generally exists when a party is competently represented by an experienced family lawyer and counsel. It was, at times, somewhat difficult for the Court to understand precisely her final proposal to spend time with X. It changed several times through the course of the proceedings, and several times during cross‑examination. Her proposal certainly became clear by the last day of the hearing.
Doing the best the Court can, it seems that the grandmother’s proposal is contained in her Initiating Application, filed 21 January 2022 (though it is technically an amended application). In general terms, these orders provide that X spend time with the maternal grandmother “and extended family as available” for at least eight weekends throughout the year during school terms, and for a one week period during the Christmas school holidays. In closing submissions, and in response to questions from the Court, the grandmother clarified that she was seeking eight weekends each year outside of school holidays, provided the mother, the father and the grandmother can agree, but failing agreement once every six weeks, from February to December.
It is important to record that the grandmother’s application changed substantially during the proceedings. Her original application filed 7 September 2017 proposed orders that X be placed into her care, that X spend time on alternate weekends with the father, and the other weekends with the mother. The grandmother proposed that the time between X and the mother be supervised for a period of three months before moving to unsupervised time. A comparison between her original proposal, and that which she described to the Court in closing submissions, does show something about the grandmother’s insight and ability to reflect, with a degree of objectivity and reality, on the proposals she advanced.
It must be recognised that when the grandmother commenced the present application she was under the impression that her own daughter, the mother, supported her application. The extent of that support clearly waned during the course of the litigation and, indeed, after the grandmother was cross‑examined the mother’s counsel indicated to the Court that she resiled from her original proposal for the grandmother to have fortnightly calls with X and to spend no more than four hours with her during the school holidays, supervised by the mother or the mother’s former partner, Mr C. Moreover, by the time of closing submissions, the mother’s own proposal was that there be no time.
To be fair to the grandmother, it must also be recognised that the Family Report dated 16 March 2020 provided limited support to the grandmother’s case, but at least favoured time no more than four hours once every two months. But that too changed during cross‑examination of the family consultant, when she recommended, albeit with some reluctance and possible sadness, that it was in X’s best interest for her not to have any time with the grandmother.
THE EVIDENCE
In support of her case, the grandmother relied on the following documents:
(a)Her affidavit filed 20 February 2018;
(b)Her affidavit filed 26 September 2018
(c)Her affidavit filed 25 September 2020;
(d)Affidavit of Ms D filed 30 January 2019;
(e)Affidavit of Mr F filed 19 May 2020;
(f)Affidavit of Ms G filed 19 May 2020;
(g)Affidavit of Ms H filed 10 September 2020;
(h)Affidavit of Ms J filed 22 September 2020;
(i)Affidavit of Ms K filed 24 September 2020;
(j)Her Notice to Admit Facts filed 5 May 2020;
(k)Case outline and annexure filed 12 October 2020;
(l)Her Initiating Application filed 21 January 2022 (amended); and
(m)Various documents tendered and marked as exhibits A1–A21.
In support of his case, the father relied on the following documents:
(a)His Amended Response to Initiating Application filed 25 September 2020;
(b)His affidavit filed 25 September 2020;
(c)Affidavit of Ms B filed 25 September 2020;
(d)Affidavit of Ms L filed 25 September 2020;
(e)Notice of Dispute filed 19 May 2020; and
(f)His case outline filed 14 October 2020.
In support of her case, the mother relied on the following documents:
(a)Amended Response to Initiating Application filed 25 September 2020;
(b)Her affidavit filed 25 September 2020;
(c)Affidavit of Mr C filed 25 September 2020;
(d)Notice of Disputing Facts filed 20 May 2020;
(e)Case outline filed 12 October 2020; and
(f)Medical notes concerning her mental health, tendered and marked as exhibit 1R1.
In support of her case, the Independent Children’s Lawyer relied on the following documents:
(a)Child Dispute Conference Memorandum prepared by Ms M dated 12 December 2018;
(b)Family Report prepared by Ms M dated 16 March 2020, tendered and marked as exhibit ICL1; and
(c)Case outline filed 19 October 2020.
Witnesses who filed affidavits also gave oral evidence at the final hearing, with the exception of Ms J, Ms K, and Ms G, who were not required for cross-examination.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)

Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:        Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)      Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
Although some factors included in s 60CC of the Act expressly refer only to parents, the consideration of those factors insofar as they relate to a grandparent is nevertheless permitted by s 60CC(3)(m) and would carry the same weight under whichever provision they are discussed (see Aldridge & Keaton (2009) FLC 93-421 at [111]–[112]; Malcolm & Monroe (2011) FLC 93-460 at [94]–[100]).
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
It is clear from Valentine & Lacerra and Anor (2013) FLC 93-539 that an application as between a grandparent and parents, as with all other parenting applications, must be determined with the best interests of the child as the paramount consideration. The Full Court states at [43]:
43.The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). That is not altered by the parent having sole parental responsibility.
ISSUES AND NON-ISSUES
It is helpful to record what, in the Court’s view, is not in issue in this case.
There is no doubt that X is very much loved by the father, Ms B, the mother, and the grandmother.
There is no issue that X should continue to live with the father, who will continue to have sole parental responsibility, and should continue to spend time with the mother.
There is no suggestion of any risk of harm of any sort while in the father’s care. Whilst the grandmother suggested in her case that there was a risk of harm to X in spending time with the mother, she did not seek orders that were directed to mitigating that risk, other than to contend that spending time with the grandmother would, in effect, be a safety net for X. Given the grandmother’s own proposal for such limited time with X, it is not possible to discern how this would be a safety net for X as regards the supposed risk of harm from her mother. Indeed, the Court does not accept that there is a risk of harm to X spending time with the mother in accordance with the current orders governing that.
The father’s case expressly, and the mother’s and Independent Children’s Lawyer’s cases implicitly, contended that there was a risk of emotional or psychological harm to X in spending time with the grandmother. The grandmother, of course, contended to the contrary. From the Court’s perspective, the issues raised in the risk of harm case against the grandmother could just as easily have been considered as matters of the grandmother’s attitude to X, and to the responsibilities of parenthood, as well as issues of parental capacity. The Court accepts that if the matters put to the Court about the grandmother’s capacity to meet X’s emotional needs, and the issues of attitude and insight are established then there is a risk of emotional harm to X.
There is no issue in this case that X has a meaningful relationship with both of her parents. She also has a relationship with the grandmother that is meaningful to X. She probably spent most of the first four years of her life being substantially cared for by the grandmother. The unfortunate but unchangeable reality in this case is that she has spent hardly any time with the grandmother in the second half of her life. Nonetheless, there is clearly a relationship. It is an important one. Subject to any risk of psychological harm to X, it could be a meaningful relationship that needs to be protected.
This Court believes that there is no issue in this case in the grandmother being a grandmother and not a parent. In line with the authorities discussed above, the Court is confident that every primary and additional consideration in s 60CC of the Act can be applied to the grandmother.
Any views that X may have expressed, directly or indirectly, explicitly or implicitly, are, for all practical purposes, irrelevant. The Court places no weight on them. X has spent almost her entire life the subject of intense litigation between the parents, and now the grandmother as well. Even putting aside her age and level of understanding, any expression of her view would be highly unreliable.
The Court accepts that historically there was no issue about the practical difficulty and expense of X spending time with the grandmother. This family, including the grandmother, managed to cope with the tyranny of distance quite satisfactorily. If an order for the grandmother to spend time with X is made, it will not matter where X or the grandmother lives, as the Court is satisfied that the grandmother will do everything possible to facilitate spending time with X. However, the relationships between the mother, the father and the grandmother have re-aligned now. The litigation has taken its toll on these relationships. The goodwill and willingness of the parents to cooperate with the grandmother has dissipated.
There is no issue in this case about family violence in the context of the present application.
There is no issue in this case about obligations to maintain X. Whilst the grandmother, understandably, feels aggrieved about having been effectively excluded from X’s life, on any objective review of the evidence it could not be said that either parent owed a duty to the grandmother pursuant to an order, or otherwise by law, which duty or obligation was somehow contravened.
The real issues in this case, therefore, are as follows:
(1)Are there any manifest attitudes of the grandmother towards the child, or towards the responsibilities of parenthood, that influence the decision to be made?
(2)What is the nature of X’s relationship with her grandmother?
(3)What would be the likely effect on X both of an order that she spend time with her grandmother, and an order that she not spend time with her grandmother?
(4)If the Court finds that X is an Aboriginal child, what is the significance of her right to enjoy her culture, and what is the likely impact on this of any order made?
(5)What order can be made that would be least likely to lead to the institution of further proceedings in relation to X?
(6)Does the grandmother have the capacity to provide for the emotional needs of X?
(7)Is X at risk of psychological harm whilst in her grandmother’s care?
As should become apparent, the answer to all of those questions focus primarily on the grandmother and X, and not on the father and the mother. With the greatest of respect to the grandmother, too much of this hearing was an indulgence to her so that her case might be fully presented to the Court, even though most of the evidence that she led and her cross‑examination of the parents was quite irrelevant. Indeed, her cross-examination of the mother revealed more important information about the grandmother, than about the mother herself. Regrettably, the Court’s strong impression at various times during the hearing, and most obviously at the conclusion of the hearing, was that the grandmother’s case was about herself and seeking some form of vindication for what she considered to be scurrilous allegations made about her in the substantive proceedings between the mother and father in 2016.
The focus of this case is on the grandmother. Thus, this is not a case that turns on either the substance, or the reliability of the evidence of other witnesses. In these reasons for judgment the Court will consider and specifically discuss the evidence of the family consultant, the evidence of Mr C, and the evidence of the grandmother, though in her case the relevance is discussed by reference to the issues. As will become apparent, the evidence of the mother, the father, and the father’s partner are frequently referred to. All of the evidence before the Court has been considered, even if not specifically addressed in these reasons.
THE FAMILY REPORT DATED 16 MARCH 2020
The Family Report was prepared by a very experienced family consultant who had access to all the documents filed as at that time. The Family Report was based on interviews held on 20 February 2020. As foreshadowed, the family consultant recommended that X spend time with the grandmother for no more than four hours once every two months, at a locality chosen by the mother. The time was to occur within the time that X spent time with her mother, pursuant to existing orders, either in the presence of Mr C or, alternatively, be supervised by an external agency. The family consultant also recommended that X have telephone contact with the maternal grandparents once a month, with the father and Ms B to be in hearing of the conversation.
At the time of the Family Report, as indeed continues to be the case, the father and Ms B were living in Sydney, the mother and Mr C were living near E City in Queensland, and the grandmother was living at N City in New South Wales, 400 kilometres away from the father’s home, and 2000 kilometres away from the mother’s home. At the time, X was spending no more than six times a year with the mother, notwithstanding the orders made in December 2016 which provided for her to spend alternate weekends with the mother.
At the time of the interview, the grandmother proposed that X spend time with her one weekend a month each school term and one week each school holiday period, both times within the N City area. The father opposed any time with the maternal grandmother. The mother was unclear about what would be the best arrangement for X. She acknowledged that the grandmother loved X, but was also concerned that contact could potentially pose risks to X’s relationship with both the mother and the father.
At paragraph 65, the family consultant summarised her conversation with X:
65.[X] spoke about her grandparents including her father’s parents and [Ms B’s] parents. She said that she used to see her “[Grandfather]” a long time ago and remembered that he had a long beard that she used to plait. She said that her [Grandfather] lived alone. When asked about Nanny (this author understood that this is what [X] called [Ms Charters]), she appeared unclear. However when asked whether she would like to see her maternal grandparents on the day of these interviews, she immediately confirmed that she wanted to.
At paragraph 68–71, she makes observations about the interactions between X and her maternal grandparents:
68.[X] was observed with her maternal grandparents. She nervously walked in the room and gave her “Nanny” a hug. Nanny held her for a long time and then gave [X] her scarf. [X] then left [Ms Charters] embrace and gave [Mr F] “Grandfather” a hug, staying in his embrace, appearing uncomfortable, but not pulling away. [X] then put her head on his shoulder and sat with him. [Ms Charters] tended to dominate the conversation, avoiding pauses or silences in the observation, responded with more enthusiasm than others in the room did and she appeared intense and overly animated in her interaction. She heaped praise and admiration onto [X], who stood largely still. There were times when [X] appeared to be engaged with the interaction, while at other times, she appeared to be lost in the interaction, as if she was watching a show. Mr F in his interaction with [X] was more considered, less intense and [X] had more mutual and responsive interaction with him. [Ms Charters] then appeared to use the observation as a way of saying goodbye to [X], including telling X that whenever she looked at the moon, she can be reassured that Ms Charters is also under the same moon thinking about her. [X] responded with monosyllabic words. [X] was her most talkative when she plaited her maternal grandfather’s beard, whist she sat on his lap. [X] took interest in [Ms Charters] necklace to which [Ms Charters] gave to [X].
69.Upon the completion of the observation, [Ms Charters] said to [X], “thank you for letting us see you today. We wanted to see you, we always want to see you, Nanny and [Grandfather] love you very, very much and when I look at the moon, I will think of you”. [Ms Charters] also spoke about [X] growing up from a caterpillar to a beautiful butterfly. [X] stood, appearing a little awkward, but smiling on occasion.
70.[X] was spoken to after the observation and she said that she felt “sad” at having seen and then left her maternal grandparents. She was taken out to her parents and carers and her carers were encouraged to give her a hug. She is noted to have made sure that she had the scarf and necklace that her maternal grandmother had given her upon leaving.
71.[Ms Charters] and [Mr F] were seen after the observation and they, [Ms Charters] especially, were tearful. [Ms Charters] was concerned that she had done the wrong thing by giving [X] the necklace. This author commented that it appeared that [Ms Charters] was saying goodbye to [X] and [Ms Charters] indicated that she wanted [X] to know that she would always have her in her mind and that she is on the journey of becoming a beautiful butterfly.
The evaluation commences at paragraph 75, with the relevant paragraphs being 76–80.
76.The maternal grandparents propose that they spend time with [X] once a month and one week during the school holidays. [Mr Webb] opposes any time for [X] to spend time with her maternal grandparents, while Ms Guthrie was ambivalent about [X] spending time with her maternal grandparents. Realistically there are significant limitations for grandparents to spend time with a grandchild when neither parent supports the time, especially in the longer term. [X] presented as having a distant relationship with her maternal grandparents, unsurprisingly, since she had not regularly spent time with them since December 2016 (when she was aged 4 years 2 months). The question is whether [X’s] previously closer bond with her maternal grandparent ought to be or can be re-established or whether the parents’ concerns about the maternal grandmother warrant limitations or no time at all.
77.[Ms Charters] and [Mr F] presented as deeply missing [X] and they greatly want to spend regular time with [X]. There are no issues raised about [X’s] physical safety while in the care of her maternal grandparents, however the allegations made about [X’s] emotional wellbeing while in the care of her maternal grandmother require addressing. Both [Mr Webb] and [Ms Guthrie] have raised concerns about [Ms Charters] alleged manipulative behaviour with [X] and of [Ms Charters] coaching [X]. Mr C’s account of Ms Charters alleged coaching behaviour towards [X] is particularly concerning noting [Ms Charters] denial of the event. Adding to these concerns are the past allegations about [X] being sexually mistreated by [Mr Webb]. [Mr Webb’s] concern that, were [X] to spend unsupervised time with her maternal grandmother, further allegations would surface are considered to have some weight.
78. [Ms Charters'] proposal that [ spend time with her monthly weekends and half the school holidays within the [N City] area is considered unlikely to be practical or in the best interests of [X]. [X], at this assessment, not surprisingly given the previous three years, presented as having a limited relationship with her maternal grandparents that would likely leave her lacking confidence to spend significant amounts of time with her maternal grandparents. The allegations made by the parents about [X’s] emotional wellbeing were she to spend time with her maternal grandmother and the lack of support from either parent for [Ms Charters] proposal, add further contraindications to [Ms Charters’] proposal. Realistically, if concerns about future allegations and [X’s] emotional wellbeing are considered by the Court to be a significant factor and [X] is supported to spend time with her maternal [grandparents], supervised time would be the likely necessary outcome.
79.[Mr Webb] proposes that [X] spend no time with her maternal grandparents. Such a proposal offers [Mr Webb] the reassurance that [X] would not be in a position where she is being coached or manipulated by [Ms Charters]. [X ]spending no time with her maternal grandmother affords [Ms Guthrie] the ability to maintain a level of distance from the maternal grandmother, which the parents [report] has positively assisted with parental communication. However, it clearly limits [X] by way of connection to extended family and, in this case, her access to her lone Aboriginal identifying family. Ideally, this author would suggest that, if reassurances about risk of coaching and manipulation of [X] are reached, [X] is likely to benefit from the opportunity to remain connected to her maternal grandmother.
80.The mother’s and maternal grandmother’s relationship has significant limitations. On the one hand, [Ms Guthrie’s] move to place boundaries and set limits on her relationship with her mother appears to have resulted in improved communications between her and [Mr Webb] resulting in obvious positives for [X]. However, the now estranged mother and maternal grandmother relationship leaves [X] less opportunity to continue her relationships with her maternal grandparents. Parents are usually the natural gatekeepers of a child’s relationships with their grandparents. Practically, the most obvious option for [X] to spend time with her maternal grandparents would occur through time when with her mother. In this particular case, the reported dynamic and relationship between the mother and maternal grandmother leave questions about whether this is appropriate for both [X] and [Ms Guthrie]. Potential concerns include [Ms Guthrie’s] ability to intervene and stand up to [Ms Charters] were inappropriate behaviour to occur and what impact contact with [Ms Charters] would have on [Ms Guthrie’s] mental health. Mr C, who is assessed as having a greater capacity to assert himself with Ms Charters, could potentially offer [Ms Guthrie] support by being present when [X] is with her maternal grandmother and mother. However, there is a question about the stability of this relationship. [Mr F] is described as a passive and sensitive character who poses no risk to [X], however there are concerns raised from the parents that he would not, and has not, intervened when [Ms Charters] has acted inappropriately and he supported [Ms Charters] during this assessment with his assertion that the maternal grandmother had not acted in any way inappropriately. On balance, this assessment does not support [Ms Guthrie] being solely present when [X] spends time with her maternal grandmother. If [Mr C] is unable to be present or is deemed unsuitable due to further instability within his relationship with []Ms Guthrie, options may be limited to an external agency providing supervision.

These paragraphs provide a clear insight into why the family consultant made the recommendations she did.
The family consultant was cross‑examined. By the time she gave her evidence, it became clear that neither parent supported X spending time with the grandmother. Moreover, the evidence that the grandmother had herself given, was that if her time with X was limited to no more than four times a year, there was no point in continuing the hearing. In addition, the grandmother rejected any form of ongoing supervision.
With that background, the family consultant was asked to express a view as to the benefit, if any, in X having a relationship with the grandmother. She explained that there were many hurdles to get through, a significant one being the absence of parental support for such time. X had experienced significant changes in her life. Nonetheless, she presented as being very settled in her father’s care. She had not spent much time with the grandmother in recent years and, thus, if she were to spend time with the grandmother, they would need to reconnect and adjust. The family consultant believed that the mother and the father were genuine in their belief that they needed to prioritise the parental relationship, and that they saw the grandmother as an obstacle to being able to do that. She expressed the view that the Court would have to prioritise the parents’ relationship over X’s reconnection with the grandmother.
The family consultant gave evidence that, provided it was not emotionally intrusive for X, it would be acceptable for the grandmother to send letters, cards, gifts, and photographs. The Court will accept this evidence, but will find there is ample reason to be concerned about the capacity of the grandmother not to be emotionally intrusive. Thus, any such order will give both parents the right to vet the correspondence and gifts.
It was clear to the Court that the family consultant still preferred limited, albeit supervised, time between X and the grandmother but she nonetheless supported the views of the parents that there should be no time. The family consultant accepted that whilst supervised time with the grandmother would not be detrimental to the child, it would nonetheless be detrimental to the parental relationship.
The family consultant conceded that whatever strength there may have been in the relationship between X and the grandmother in the first four years of her life, the reality was that four years later there was almost no relationship. In observation, X manifested no yearning to reconnect, and although she felt sad at having seen and left the maternal grandparents, she displayed no distress on separation. Thus the family consultant concluded that the relationship with the grandmother had shifted indefinitely.
In cross-examination by the grandmother, and on at least two separate occasions, the family consultant was asked to consider a scenario wherein the evidence of the mother especially, but also of the father, in relation to the grandmother was not accepted by the Court. The following exchange took place:
[THE GRANDMOTHER]: But if those concerns were not supported by the court, and if it was found out that the mother or the father or any party for that matter in this particular party matter had been telling some pretty big untruths that have impacted [X] such as repeatedly telling her and allowing somebody to be under – allowing somebody else to tell [X] that something wasn’t true, when they knew what the truth was, then that may change your position and – because in this evidence here which I will put before the court, there’s evidence of – no evidence of inappropriate conversations, no evidence of manipulation, so if there was no evidence found of manipulation with the witnesses that come into this stand, if there was evidence to support that the mother has at times for whatever reason not been able to speak the truth, for whatever reason – and there’s many reasons, your Honour, that people don’t tell the truth – would that cause you to reconsider your position to allowing my husband and I to have regular contact with [X] working over, looking at 2023, to more than one day, perhaps two days a month, like on a weekend, in 2023. I’m not talking about something close?
[FAMILY CONSULTANT]: All right. I think what you’re asking me is if the court finds that there has been no manipulation and no – no undermining[, what] do we do then.
[THE GRANDMOTHER]: Yes?
[FAMILY CONSULTANT]: What I am left with is still having parents who do not support you having a role in [X’s] life. I’m also left with the belief that – that – and this is going to sound blunt – [X’s] relationship with you is probably not as important as your relationship with her at this point in time. Because of the lack of time that you’ve spent together in the last four years, it has become that. There are still significant limitations. Even if all the allegations are untrue, there are still significant limitations because Mum and Dad do not support that, and that has some weight.
(Transcript 28 October 2020, p.136 line 27 to p.137 line 5)
A similar passage is found a little later in the transcript (Transcript 28 October 2020, p.139 lines 18–29). It is clear that the family consultant’s views would not have changed even if the facts in this case had been found to be different.
The Court accepts the evidence of the family consultant.
THE EVIDENCE OF MR C
Mr C filed an affidavit on 25 September 2020. He was cross-examined on 3 February 2022. His affidavit is significant because it makes a number of potentially damaging allegations against the grandmother.
In his affidavit he describes himself as a friend of the mother. He first met the grandmother in 2016. He and the mother were friends initially, but then commenced a romantic relationship in about April 2016. The relationship ended in early 2020.
At paragraph 1 of his affidavit, under the heading “Relationship with Ms Charters” he explains that his first impression of the grandmother was that she was a strong-willed woman and that she did not understand social boundaries. The Court is satisfied from the totality of the evidence that the impression formed by Mr C as to the grandmother being a strong-willed woman was correct. This is consistent with the opinion of the family consultant, and of the Court’s own impression based on observations of the grandmother throughout the course of a lengthy hearing.
Mr C formed the impression that the grandmother did not understand social boundaries. The basis of that is set out in the same paragraph, in which he deposes that when he first met the grandmother, she prayed out loud for him. He did not say anything, but this left him feeling uncomfortable. At paragraph 4 he explains that he also observed the grandmother praying for the mother’s clients, whilst the mother was styling their hair. In cross‑examination, Mr C was not challenged about this evidence and accordingly the Court accepts his evidence, and can understand how he formed the impression that the grandmother did not understand social boundaries.
He deposes at paragraph 5 as follows:
May 2016, I attended a family dinner at [Ms Charters] and [Mr F’s] house. During the dinner [Ms Charter]s said, “[]X is not allowed to watch movies such as Aladdin or Beauty and The Beast as they were written by the ‘illuminati’”.
(As per the original) (Emphasis in original)
During cross-examination, Mr C confirmed his evidence that these were the words used by the grandmother. She did not challenge this evidence. There was a peripheral challenge about where the grandmother and her husband were living at the time, but no challenge about the central contention in relation to the illuminati. Later in cross‑examination it became apparent that Mr C’s concern was not about the inappropriateness of movies such as Aladdin or Beauty and the Beast. His concern was about the grandmother’s statement that these films were written by the illuminati.
At paragraph 10 of his affidavit Mr C states:
On more than one occasion, [Ms Charters] discussed with me that this was an attempt to prevent [Mr Webb] from having access to [X]. [Ms Charters] said to me, “I tried to get [Ms Guthrie] to move overseas to have the baby, so the baby would have a different residency. Originally, I wanted us to go to [S Town] to hide.”
(Emphasis in original)
The context of this statement was Mr C’s previous paragraph in which he explained that in 2015 the mother and the grandmother moved to E City.
There was no challenge in cross-examination to this paragraph of the affidavit.
At paragraph 11 of the affidavit, Mr C deposes to an incident when the mother was admitted to hospital due to a back injury and that the grandmother rang the mother and abused her, saying, “If you don’t get out of the hospital and get back to work you will have to declare bankruptcy.”
Mr C explained that he could hear the grandmother saying this through the telephone. In cross-examination the grandmother challenged this evidence. She took Mr C to medical notes and attempted to demonstrate that because the mother had attended on her doctor on 25 May 2017 (seven or eight months later) and the doctor recorded that there was no prior history of back injuries, then Mr C must not have been telling the truth. However, looking closely at the document referred to by the grandmother, which was not tendered during the proceedings but which the Court will mark as exhibit C1, it appears that the mother had in fact attended upon her doctor on 24 October 2016, but the doctor did not create a record of the visit until 20 May 2017. The mother’s doctor makes no specific reference to a back injury but recorded that there has been “no history of recent injury”. She further recorded a suspected diagnosis of disc prolapse and sent a referral letter to the emergency department. Mr C’s evidence about the attendance at the hospital with the mother, and its potential implications on a contact visit with X, was consistent with the medical record and the Court prefers the evidence of Mr C in this regard. His explanation of the consequences of the mother’s back injury was entirely plausible. He was clear and convincing.
At paragraph 13 Mr C deposes to the grandmother attempting to force the mother to leave the relationship with him, telling the mother several times: “You are living in sin. You need to stop living in sin.”
There was no challenge to this evidence. The Court accepts it.
At paragraph 16 Mr C deposes that the grandmother said to the mother, “[the father] and Judge Altobelli are part of a Masonic group and the contact centres are linked to them. You don’t want to go to those.”
At paragraph 17 he deposes that the grandmother mentioned this to him on many occasions and spoke openly about it with him. There was no challenge to this evidence. The Court accepts it.
At paragraph 18 Mr C deposes to the mother’s first contact visit with X in 2017. He asserts that the grandmother ran towards X, pushing the mother out of the way to hug X, upsetting X. The grandmother cross-examined Mr C about this, as a result of which he accepted that his evidence was incorrect. She suggested that he was being mischievous. The Court disagrees. Mr C was confronted with a number of propositions that ultimately led him to concede that his evidence was incorrect. It was a sensible concession to make, and does not tarnish the rest of his evidence.
At paragraph 19 Mr C gives evidence about travelling in a car with the grandmother, the mother and X, and observing X starting to hit herself with the palm of her hand. He deposes that the grandmother said to X: “You didn’t do this before, you’ve only started doing this since living with Daddy.”
The grandmother had previously been cross-examined about this incident and denied that it took place, even though the mother deposes to this same incident at paragraph 92 of her affidavit. Mr C was not cross-examined about this evidence. The Court accepts his evidence.
At paragraphs 20–22 of his affidavit, Mr C makes a number of serious allegations against the grandmother, in relation to her involvement in the mother’s litigation against the father. At paragraph 20 he deposes to observing the grandmother often sending emails from the mother’s email address. At paragraph 21 he deposes that the grandmother had heavy involvement in the drafting of emails from the mother’s email address. At paragraph 22 he deposes to being present for a discussion about the father’s replies to the emails. He deposes that the grandmother withheld information from the mother and Mr C, and that it was not until after the mother and the father were able to communicate, that they became aware of this.
The mother’s evidence is consistent with the evidence of Mr C in relation to the above matters. The mother gave evidence that she considered herself “extremely impressionable” by the grandmother. The Court observes in this regard that this does not necessarily mean that the mother was not also influenced by others at points of her life including, for example, by the father when they were together, and by other people who counselled and supported her during her life. The totality of the mother’s evidence, however, does suggest that the grandmother had an element of control over her life.
The grandmother was herself cross-examined about these allegations and for all practical purposes conceded that she sent emails from the mother’s address and that she was heavily involved in the preparation of the emails, but as typist rather than author. The Court doubts very much that the grandmother was merely a typist. It is clear from the totality of the evidence that she dominated the mother.
Mr C was cross-examined by the grandmother about his evidence. He was asked what he meant by “heavy involvement” and he gave the example of the grandmother trying to lodge an appeal notwithstanding receiving advice from lawyers not to do so. He accepted that the grandmother did not ultimately file the appeal but withdrew it.
The grandmother did not directly challenge Mr C’s evidence. In any event, the Court finds his evidence clear and convincing, and accepts it.
At paragraph 25 Mr C deposes that in late 2017 or early 2018, he started to become more involved with assisting the mother and organising suitable times to see X. He deposes that the grandmother was not happy with this and said to the mother: “If you don’t do things my way, I am going to stop helping you and I won’t help you see X.”
The grandmother was cross-examined about a similar contention in the evidence, but denied the same.
The mother gave evidence consistent with Mr C, recounting a situation where she wanted to ask the father whether she could spend time with X outside of the orders. She stated that the grandmother’s response was that she would no longer support the mother if she did that. The grandmother challenged the mother on this, but the mother was steadfast in her evidence that the grandmother stated she would stop supporting the mother, including financially.
In cross-examination, the grandmother did not challenge Mr C’s evidence on this issue. The Court accepts Mr C’s and the mother’s evidence in this regard.
At paragraph 26 Mr C deposes that in Easter 2018 he and the mother were travelling to Sydney to visit his family and to visit X. He deposes that when the grandmother heard of this she yelled at the mother, saying: “You can’t see X! If you are going to organise time to see X without me, I’m not going to help you.”
The grandmother cross-examined Mr C about his evidence at paragraph 26. It was put to him that it was not true. Mr C insisted that the grandmother not only said those words, but yelled at the mother and himself, and explained that that was one of the last times that he ever spoke to the grandmother on the phone.
The following exchange took place in cross-examination:
[THE GRANDMOTHER]: I put it to you – and you’re alleging that I refused to give [Ms Guthrie] any more financial aid because she didn’t invite me to see [X]?
[MR C]: No, because we weren’t playing the game the way you wanted to play it. It was basically we had to do everything that you asked us to do in terms of affidavits, trying to get [Ms Guthrie] to wear wires and do all kinds of crazy stuff and if we weren’t onboard with that, then basically you weren’t going to help her financially to see her daughter any more.
(Transcript 3 February 2022, p.77 lines 37–42)
Again, the Court accepts the evidence of Mr C. He was clear and convincing.
He goes on to depose at paragraph 28 that one day the mother rang him at work, and he went to the mother’s house, where there was an argument about the issue referred to above. He deposed that the grandmother was yelling at the mother about this. The grandmother objected to the evidence on the basis that she had a witness who could give contrary evidence to that given by Mr C at paragraph 28. Even if such application had been made, the Court would have declined the same, given the length of the hearing and the fact that the grandmother had since September 2020 to file affidavit evidence contrary to that of Mr C.
In cross-examination it was not suggested to Mr C, other than implicitly, that the grandmother was not yelling at the mother. Rather, the suggestion was that the mother was yelling at her. Once again, Mr C’s response was detailed and convincing. He explained that that is not what he saw. He took the mother away from there, crying. He observed the grandmother yelling at the mother, who was in tears in the corner underneath the house. Indeed, Mr C even conceded that he probably yelled at the grandmother, because of the way she was treating the mother.
The Court accepts the evidence of Mr C.
In submissions, it was submitted by counsel for the mother that Mr C was a reliable witness with no vested interest in the outcome of the proceedings given that he was no longer in a relationship with the mother, but was merely a friend. The Court accepts this submission. In the grandmother’s closing submissions she seemed to struggle with the concept that the Court was entitled to make findings on the basis of the evidence of one witness as against her evidence. She seemed to suggest that without corroboration, there was no reason why her evidence should not be accepted over that of Mr C, or indeed any other witness. The Court observes, however, the consistency between the evidence of Mr C and the mother in relation to many of the issues identified above. Moreover, Mr C was responsive in cross-examination.
Mr C’s evidence is significant. It suggests that the grandmother has strong, and sometimes extreme, views about issues. It raises concerns about the grandmother’s boundaries. It raises concerns about the grandmother’s involvement in the litigation between the parents and is consistent with the mother’s case in relation to the grandmother’s heavy involvement in her case with the father. It indicates an insensitivity and lack of insight into the needs both of the mother and X. The conversation in the car suggests lack of insight. The mother makes a very serious allegation about the grandmother’s manipulativeness. The evidence of Mr C corroborates this.
THE EVIDENCE OF THE GRANDMOTHER
Some preliminary impressions and findings about the grandmother’s evidence are apposite. The Court, who had more than ample time to form these impressions, makes these comments reluctantly, regretfully and carefully. The manner in which a witness gives evidence, and a party presents their case, often provides insight into their character as well as credibility. Character pervades and underpins many of the primary and additional considerations that assist in understanding the concept of the best interests of the child. In her oral evidence, the grandmother was pervasively non-responsive, effusively expansive, frequently defensive, and exuded a sense of entitlement and self-righteousness. She rarely made any meaningful concessions. This detracted from the credibility of the grandmother. Thus, as will be seen, where her evidence contradicts with the evidence of another witness such as Mr C or the mother, unless there are independent documents supporting her evidence, the Court prefers the evidence of the other witnesses over that of the grandmother.

This hearing should have taken half the length of time that it took. It took much longer because of the way that the grandmother conducted her case and gave her evidence.
DISCUSSION
Are there any manifest attitudes of the grandmother towards X, or towards the responsibilities of parenthood, that influence the decision to be made?
The evidence in this regard commences with the grandmother’s case outline that was filed 12 October 2020. In cross-examination the grandmother confirmed that she wrote the document herself and that the matters stated therein have her approval.
Under the heading “Summary of Argument”, the grandmother makes a number of statements that, in the Court’s opinion, reflect on her attitude towards the mother and, indeed towards the father as well. These are summarised below:
·At paragraph 42 she alleges that the mother and father have alienated X from the relationship with her.
·At paragraph 53 she alleges that after living with the father for nearly four years, X has experienced psychological problems including Attention Deficit Disorder, depression and anxiety, and learning difficulty. The strong inference is that X has experienced these problems as a result of the father’s care.
·At paragraph 58 she describes the mother as:
…an individual who has tried many different occupations due to suffering rsi. She has had a string of failed intimate and interpersonal relationships and has ongoing mental health concerns. She currently works in a café. She has currently estranged herself from the maternal grandmother.
(As per the original)
·At paragraph 60, in relation to the father, she contends that he has demonstrated a lack of understanding surrounding attachments, their disruption, and the importance of significant relationships in children’s lives. She contends that he has alienated the child from the relationship with her.
·At paragraph 67 she again refers to the mother’s mental health concerns, with multiple diagnoses, and the medication she has taken, including Seroquel (an anti-psychotic). She also alleges that the mother has a history of self-medicating.
·At paragraph 68 she accuses the mother of neglecting X, by failing to visit her when she had the opportunity.
·At paragraph 69 she expands on this, asserting that the mother had Court-ordered contact every fortnight pursuant to the Court order, but has only seen X, prior to the pandemic, on average, three times a year since 2017, and once in seven months in 2020. Putting aside whether the statement is accurate or not, it ignores the reality that X lives with the father in Sydney, and the mother lives in E City.
·At paragraph 70 the grandmother alleges that as the mother is no longer in a long-term relationship with anyone in E City, she could have (and inferentially, should have) moved to New South Wales to spend time with X.
·At paragraph 72 she contends that the mother does not understand the importance of her visits with X and keeping her word to a young child, nor the impact on X.
·At paragraph 74, the grandmother repeats her assertion that the mother has a history of broken relationships, with allegations of violence and rape in nearly every one of these.
Unsurprisingly, the grandmother was cross-examined about these statements.
When asked why she referred to the mother having a string of failed intimate and interpersonal relationships, she explained that she made the statement because it was true. When asked how it was relevant, she explained:
Because it can impact upon [X] if [the mother] has parental – sole parental rights or anything like that. That is relevant to [X’s] wellbeing that [the mother] actually has trouble sustaining relationships.
(Transcript 27 October 2020, p.43 lines 3–5)
At all times it must have been apparent to the grandmother that the issue in this case was not whether X live with her mother or issues of parental responsibility in relation to the mother and X. It must have been apparent that the only issue in this litigation was whether, and if so on what terms, X should spend time with the grandmother.
The Court finds the grandmother’s answer to the question disingenuous.
In relation to the grandmother’s assertion that the mother had ongoing mental health concerns, it was suggested that someone reading the statement might think that these things were intended as a criticism of the mother, or to cast her in a bad light in these parenting proceedings. The grandmother responded: “That’s up to the individual to cast it into whatever light they want to, but that is—that is the truth.”
The grandmother was invited to explain why she included the statement that the mother was an individual who had tried many different occupations. The grandmother explained: “It’s important to be able to see the stability or lack of stability.”
Counsel suggested that what she was trying to do was to paint the mother as someone who is unstable in her life. The grandmother answered: “She’s not stable, but I don’t see that that’s a wholly negative.”
Counsel suggested to her that she was being critical of the mother, but the grandmother insisted that she was merely telling the truth, saying: “I am telling the truth to assist this Court to have a full picture, and that’s this Court’s right to have a full picture …”
It was suggested to the grandmother that her intention at paragraph 72 was to persuade the Court that the mother was an unreliable person. The grandmother disagreed, explaining:
… it was my intention to bring things that are relevant to [X’s] best interests before the court, and if they happen to be a criticism but they are true, it is important.
(Transcript 27 October 2020, p.44 lines 32–34)
When counsel suggested that she was attempting to highlight the mother’s shortcomings to the Court, the grandmother once again reasserted that she was talking about very significant events that impacted on X. She ultimately accepted that they were shortcomings of the mother.
Counsel asked the grandmother about the significance of paragraph 74 where she reiterates the mother’s history of broken relationships, adding that there were allegations of violence and rape. The grandmother explained that if the allegations are untrue, as regards the father, it goes to her bona fides, and if they are true it raises questions about the mother’s capacity to look after X. She also explained that it raised concerns about the mother’s capacity to judge the characters of people, and allowing herself into situations that can escalate quickly, to the potential harm of X.
Counsel suggested to the grandmother that at paragraph 74 she was “just throwing mud” at the mother. The grandmother then gave a lengthy explanation contrary to this proposition, and premised on concerns for X’s safety when spending time with the mother. It is important to recognise that part of the grandmother’s case was that spending time with her was a safety net for X, should she not be able to spend safe time with the mother. There is no doubt that the grandmother was of the view that there was some risk to X when spending time with the mother.
Ultimately, the grandmother accepted that in her case outline there were areas that could be seen as critical of the mother. She would not accept that they were put-downs, but rather conceptualised them as facts. The grandmother explained her belief that the mother lacked understanding about X’s needs. Ultimately, when pressed, the grandmother conceded that some of her statements in the case outline, including, for example, at paragraphs 74 and 75, sought to draw a comparison between the mother and herself. She explained that the comparison related to stability, with the grandmother’s relationships being stable.
In effect, the grandmother was contending that X would be in a stable environment with the father and Ms B, and with the grandmother and her husband. She contended that spending time with her was important, as X needed to spend time with an original primary attachment—time which the grandmother contended the mother has not been able to facilitate. She explained that it would be important for X’s resilience and emotional wellbeing. The grandmother was firmly of the belief that X had a primary attachment relationship with her, formed in the first four years of her life.
From the Court’s perspective, this was unmistakably a suggestion that X’s primary, or strongest attachment, was with the grandmother, even though she has not seen X for four years, other than for the purposes of the Family Report interviews in February 2020. When pressed, the grandmother conceded that her current attachment with X would be described as a warm attachment.
In cross-examination, the grandmother agreed that X needs regular, consistent time with the mother, but added there would also be benefit to her to spend time with the grandmother and her husband.
The grandmother’s case outline, and her responses in cross-examination in relation to the same, is troubling. It is not surprising, from the Court’s perspective, that during the course of the hearing the mother’s proposal changed from being one where she contemplated some time between X and her grandmother to her final proposal, consistent with that of the father, that there be no time at all. It must have been very hurtful for the mother to read the grandmother’s assertions about her, and then to hear the grandmother’s oral evidence about the same. The mother was understandably concerned about the risk of transmission of the grandmother’s views about her to X. Of particular concern to the Court is the lack of relevance between the matters raised by the grandmother, and the issue before the Court. The only issue before the Court was whether, and if so under what circumstances, X should spend time with the grandmother. The grandmother’s “safety net” argument was never a well‑founded one, having regard to what will be seen below as the grandmother’s unrealistic, ill‑considered, and constantly changing, proposals for X to spend time with her.
The grandmother cross-examined the mother. There is a significant preliminary matter which contextualises this cross-examination. At several points during the hearing the Court raised with the parties, and the grandmother in particular, the question of whether the damage that would be caused to family relationships, and in particular to the relationship between the grandmother and the mother, was justified by what was sought to be achieved through the litigation. Moreover, the Court raised with the grandmother the relevance of any concerns that she might have about the mother’s parenting capacity given the issues in this case. The grandmother insisted that it was relevant to her case.
The following exchange in cross-examination between the grandmother and mother provides some insight into the grandmother’s motivation in this case:
[THE MOTHER]: And I also don’t understand – and I can appreciate that maybe I don’t understand it, and that’s okay – what that has to do with you now spending time with [X]. I never said you couldn’t see [X]. I never said you couldn’t have time with [X]. I actually never had an issue with you spending time with [X], but now, it has become apparent that obviously (1) you don’t want to be in relationship with me, and that makes it difficult for you to see [X], but (2) you don’t support me, you don’t support my relationship with [Mr Webb] in co-parenting [X], and to be completely honest, I don’t actually get the say over what time you do and don’t spend with [X]. So I can appreciate your questioning me about the abuse that happened when I was little, but I don’t understand the relevance that that has to do with your time with [X] now, and your relationship with [X] now, and why it’s important for you to be with [X] now.
[THE GRANDMOTHER]: Thank you, [Ms Guthrie]. Thank you, [Ms Guthrie]. It’s relevant in the sense that one of the reasons people are saying I’m not allowed to spend time with [X] is because of what happened to you as a little girl, and when you were a child, some horrible things did happen?
[THE MOTHER]: I can appreciate that.
(Transcript 2 February 2021, p.404 lines 29–44)
At no stage was it a part of the case against the grandmother that she was not allowed to spend time with X because of what happened to the mother as a child.
Notwithstanding the above, the grandmother cross-examined the mother about the sexual abuse that she experienced as a child, and then as an adult. She further alleged that the mother disassociates, does not take her prescribed medication, was not seeking counselling, and suffered from a personality disorder. Once again, the Court intervened and queried the relevance and impact of the line of cross-examination being undertaken by the grandmother (Transcript 2 February 2021, p.413, lines 27–38). At one stage the grandmother put to the mother in cross-examination that she had a female partner, the inference clearly being that the relationship was sexual. The mother denied this, and even if it were relevant (which it is not), the question was unnecessary and highly intrusive.
Notwithstanding this, the grandmother then cross-examined the mother about issues such as: whether she was aware of why the grandmother had left her partner at the time; the events surrounding the mother leaving home at age 13; whether the Department of Community Services had investigated; and the abuse the mother had suffered from the grandmother’s partner at the time.
The mother was later cross-examined about the grandmother’s allegations against her. She agreed that she found the criticisms made of her by the grandmother to be undermining of her confidence in herself and as a mother to X. With the greatest of respect to the grandmother, this should have been apparent to her before she embarked on her case against her own daughter, the mother of X.
Certain attitudes of the grandmother become apparent. She was very critical and condescending of the mother. There was a clear air of superiority. Little or no compassion was communicated either in writing, or in the grandmother’s own cross‑examination of the mother, and in the grandmother’s presentation throughout the hearing. It was a critical, belittling attitude. It was insensitive. It revealed the grandmother’s own attitude of self-entitlement and an inability to understand how her entire case made both the father’s and the mother’s parenting of X more difficult because of the emotional, financial, and practical investment in this litigation. The grandmother, who the Court found to be intelligent and articulate, lacked the emotional intelligence to understand how this litigation, and her own actions, could indirectly adversely impact on X.
The Court was left with a strong impression that, in reality, the grandmother’s litigation was as much about herself as it was about X. The Court acknowledges that this is a serious and harsh observation to make about the grandmother, but it is soundly based on her own evidence. Both in the grandmother’s own cross-examination, and in the grandmother’s cross-examination of the mother, her answers in one context, and questions in the other, indicated a defensive, self-justificatory agenda that was devoid of any relevance to the issue of the grandmother’s time with X.
In cross-examining the mother about her experience of sexual abuse from her step-siblings as a child, and then from the grandmother’s former partner as an adult (both issues which the Court repeatedly explained were irrelevant to the present case), the grandmother was not only potentially re-traumatising her own daughter, and minimising her experience of the abuse, but seemingly seeking to justify her own behaviour and inaction at the time.
The grandmother had a strange quasi-preoccupation with the report of Dr P dated 23 October 2015. Dr P was the single joint expert in the substantive proceedings between the mother and father which concluded in 2016. At the commencement of the final hearing in 2020, and indeed several times during the hearing, the lack of relevance of Dr P’s report to the present proceedings was emphasised by the Court. Curiously, the grandmother kept referring to it. For example, during the very little cross-examination that the Court allowed about it, arising out of an answer the grandmother gave in cross-examination, the grandmother explained that Dr P said whilst in the witness box that in her opinion the grandmother was borderline narcissistic, histrionic, and antisocial. The grandmother disagreed whilst emphasising that Dr P had never met her. The grandmother asserted that the report breached professional standards. The Court’s impression was that the grandmother felt maligned by the report of Dr P and allowed her personal feelings to distract her from the real issues in this case. She became defensive about the issue of her own mental health when that was simply not an issue in this case and there was no adverse evidence about this.
The grandmother’s defensive, self-focused attitude in the case was also reflected in her closing submissions. For example, in submitting that the mother’s evidence was untruthful the Court was left in no doubt that the grandmother was alluding to the mother’s own evidence about the grandmother coercing and manipulating her. Yet, credibility had a limited role to play in this case.
The nature of X’s relationship with the grandmother
The best evidence about this is from the family consultant. In cross-examination she explained that whatever was the nature of the relationship in the first four years of the life of X, now, four years later, the relationship is almost non-existent. The family consultant rejected the grandmother’s explicit or implied case that an attachment still existed, or could at least be revived with minimal adverse impact on the child and the parents.
From the Court’s perspective, there is little doubt that during the first four years of X’s life the grandmother was at least as important to her as the mother. They would have had a very close relationship, and probably an attachment relationship.
The likely effect on X both of an order that she spend time with her grandmother, and an order that she not spend time with her grandmother
It is the evidence of the family consultant, the mother and the father, and indeed the findings of this Court that if X were to spend time with the grandmother it would pose an unacceptable pressure and burden on the relationship that X has with both of the parents. The reason for this is that the Court finds that the grandmother does not have the capacity to provide for the emotional needs of X, which encapsulates issues of the grandmother’s insight and understanding of how her past and present actions have directly and indirectly adversely affected X. The Court is not satisfied that the grandmother adequately understands this such that she could change in the future. The grandmother would certainly meet her physical, intellectual and cultural needs, but those needs are being amply met by her parents.
There is no evidence before the Court that X would be adversely affected by an order that she not spend time with the grandmother. Indeed the family consultant’s evidence is, at least impliedly, to the contrary—that is, that X would not be adversely affected. Despite the adversity that she has experienced in her lifetime, she seems to be thriving in the care of the father and Ms B, in a family that includes their two children. In addition, X has an important relationship with the mother, a relationship which is stronger than that with the grandmother.
If X is an Aboriginal child, what is the significance of her right to enjoy her culture, and what is the likely impact on this of any order made?
Before deciding the issue, the Court is prepared to assume, for the purposes of discussion only, that X is an Aboriginal child, and thus it is important to consider her right to enjoy her culture and to make an order that facilitates this taking place, to the extent that this can be reconciled with other important considerations in this case.

It must be recognised, however, that the father has sole parental responsibility and there was no proposal by any party that sought to modify or interfere with this in any way. Moreover, the mother’s evidence was clear in that she does not accept that either she or X are Aboriginal. Her case proceeded on the basis of deep scepticism of the grandmother’s claims. The Court’s strong impression is that this issue also has the potential to interfere with the mother’s and the father’s parenting of X, and thus create further tension as regards parenting, and the parental relationship. There is also a profound impact on the mother if the grandmother is found to be Aboriginal—it will mean that both the mother and X are also Aboriginal.
The Court does not regard this consideration as being determinative of the issue of whether X should be spending time with her grandmother. To have done so would have been to improperly elevate this consideration over other considerations that are just as important, if not more so.
On the evidence in this case, there are at least two alternatives as to how X would be able to enjoy her culture as an Aboriginal child.
The first alternative, proffered by the grandmother, fundamentally assumes that X would be spending time with her. The grandmother, who is both passionate and knowledgeable about her own Aboriginal culture, presented no alternative scenario to the Court about how X could be exposed to and educated about her Aboriginal culture. The grandmother’s proposal was inextricably linked to the grandmother’s personal involvement in this. Perhaps this is understandable, given the grandmother’s love both for X and her Aboriginal culture.
But if the Court concludes that it is not in X’s interest to spend time with the grandmother, the only other alternative available to the Court is that presented in the father’s case, and supported by the mother. Indeed, it is not even a case of comparing which of the two proposals better addressed this very important cultural issue, because the grandmother’s proposal was dependent on time with her, which might not be found in X’s best interest. However, even if this were not the case, the family consultant’s evidence is quite clear. Given the grandmother’s own limited proposal to spend time with X, such time would not be adequate to promote her Aboriginality. Even the grandmother agreed to this in cross-examination when she accepted that her limited time with X would probably not be sufficient to promote her Aboriginal identity.
Another salient fact is that the grandmother discovered her Aboriginal heritage at about the same time that X went into her father’s care, and thus X’s exposure to the Aboriginal culture is limited as she had such little time with her grandmother thereafter. There is no evidence before the Court of X already having a knowledge about what her grandmother considers to be her Indigenous roots, which will be denied if this alleged heritage is not promoted. Apart from what the grandmother told her when she was only 4 or 5 years old, the reality is that this child does not know this is a major issue to be decided.
The focus turns to the father’s proposal. In effect his evidence and case was that if the Court found that X was an Aboriginal child, her exposure to her Indigenous culture would be facilitated by the father’s brother’s partner, Ms L, who filed an affidavit on 25 September 2020, and who was cross-examined by the grandmother. In cross-examination Ms L presented as having an impressive knowledge and understanding about Indigenous culture, and an authentic commitment to the same. She is connected to several tribes, and is a proud member of the R people. In cross-examination, even the grandmother recognised that Ms L loved X and could contribute to her Aboriginal culture. Ms L acknowledged, however, that she had not as yet shared aspects of her culture with X. In the circumstances of this case, that is hardly surprising given that this was a contentious issue.
The father will have sole parental responsibility. This encompasses decisions about fostering and facilitating X’s Aboriginal culture. It is clear from his evidence that he does not believe that she is in fact of Aboriginal descent, but it is equally clear that he will abide by any order made by the Court. To make such an order, however, requires a positive finding as to Aboriginality, which the Court is very cautious about, especially as (at least from the grandmother’s perspective) it may have broader implications. Hitherto the Court has proceeded on an assumption that X is an Aboriginal child, but that is not a finding.
Some relevant background matters include that the mother does not consider herself Aboriginal, and whilst X has been told once by the grandmother that she is Aboriginal, the Court doubts that this had any real meaning to her at that time, or does so now. Neither the mother nor X have been exposed to Aboriginal culture in any meaningful way. The mother gave express evidence that she does not identify as Aboriginal. While there is evidence of the grandmother exposing X to Aboriginal culture, such as by showing her native plants and flowers, it is unlikely that this would have a significant lasting impact on X, given her age and the passage of time.
The father submitted that no finding needs to be made as to Aboriginality as it is an issue of parental responsibility, which is not disputed in this case. The mother submitted that, even if there is a basis for finding that X is an Aboriginal child, the Court ought to weigh that against other matters such as parental responsibility, and the capacity of the father and Ms B to fulfil X’s enjoyment of culture. The Independent Children’s Lawyer submitted that the Court could make a finding of Aboriginality but contended that if such a finding were made, any connection to culture could be met by the parents and Ms L. The grandmother contended that a finding can be made. The passion with which the grandmother presented this aspect of her case is not matched by the probative value of the evidence upon which she relied.
In cross-examination the grandmother explained that there were three criteria to establish her Aboriginality:
The first one is that you can trace your family so you can actually go this parent to this parent to this parent. The second one is that you are involved and recognised by the community and the third way is that you actually have to identify or embrace your Indigenality and that embrace can be reflected differently depending on what your immediate culture and the people you are involved with looks like.
(Transcript 28 October 2020, p.101 lines 33–38)
The abundance of the evidence led by the grandmother in support of this was not matched by its probative value. The only evidence that counsel were prepared to (reluctantly) concede had possible probative value was a document from the N City Local Aboriginal Land Council at page 5 of exhibit A21, confirming that the grandmother sat on the Council, in a context where only Aboriginal persons could sit on the same. The Court accepts that this document suggests that the grandmother identifies and is accepted in that context as an Indigenous person. This may establish the second criteria identified by the grandmother. If the Court accepts the grandmother’s evidence about her embracing her “Indigenality”, this satisfies the third criteria. Both of these are subjective, not objective, criteria. It is important to recognise that the statement in the confirmation of membership of the Land Council that an Aboriginal person “is a member of the Aboriginal race of Australia” does not establish that the grandmother is Aboriginal just because she is a member. Membership of the Aboriginal race is an objective criterion, not a subjective one. This document does not prove descent. At most it is an assertion of descent which does not bind this Court.
For present purposes the question is whether X is an Aboriginal child for the purposes of s 60CC(3)(h) of the Act. Section 4(1) defines an Aboriginal child as “a child who is a descendant of the Aboriginal people of Australia”. This is, in effect, the grandmother’s first criterion. In Sheldon & Weir (No. 3) [2010] FamCA 1138, Ryan J concluded that to be a descendent of the Aboriginal people for the purposes of the Act requires evidence of genetic heritage to the Aboriginal people in Australia prior to European settlement. The focus is on genetic heritage: Gibbs v Capewell (1995) 54 FCR 503.
In Sheldon & Weir (No. 3), Ryan J said at [483]–[485]:
483.The words ‘Aboriginal child’ used in the Family Law Act, are to be understood in the context of the objects of the Act, in particular Pt VII. Although the definition is applicable to the entire Act, it is in Pt VII where these words are put to use. The Objects of Pt VII are found in s 60B have been set out earlier. Considered in that context, the words are to be interpreted in an Act whose purpose is to make parenting and associated orders that ensure a child’s best interests are the ultimate determinate. The Act is sensitive to cultural matters and the infinite variety of circumstances that make up life. Because family lives and individual children’s circumstances are constantly changing, the Act ensures the Court may take into account the infinite variety of families and children’s lives. Consistent with this, the Act aims to ensure Aboriginal children have the right of access to their Aboriginal culture and heritage. This is a particular right for these children. The definition is based upon descent alone. It must be considered in the historical context of destruction of Aboriginal family life, culture and tradition through, inter alia, post European settlement policies of discrimination and assimilation. The definition mandates proof of decent is essential before a child can come within the category of person defined as an ‘Aboriginal child’. In other words, proof of descent from the pre European settlement inhabitants of Australia. The historical context makes it plain a descendant may be a person of limited Aboriginal genetic heritage. Such a conclusion is consistent with the ordinary meaning of the words. Self-identification and acceptance by the Aboriginal community would not, because of the statutory requirement of descent, without more, bring a person within the definition.
484.Because the Act contemplates people may come from mixed cultural or racial backgrounds, ordinary usage in this context would include children with limited Aboriginal genetic heritage and a predominant non-Aboriginal genetic heritage. For these people, self-identification and community acceptance would be required to define them as Aboriginal. Particular issues arise in relation to children, who are reliant upon parents and others for their sense of identity. Where the child is too young or lacks the maturity to have considered identity issues in a real way, ordinarily the Court would look to the lifestyle and identity marked out by his or her parents, including the extent to which they and the community identify them and their children. This is different to the preliminary view I expressed during the hearing. In closing addresses, I indicated support for the submission made by counsel for the father to the effect descent, no matter how small, would be sufficient for a child to be Aboriginal within the meaning of the Family [Law] Act. My considered view is such an approach would be wrong. So that it is clear, these remarks relate to a child with limited Aboriginal genetic heritage. A substantial degree of Aboriginal descent would, by itself be enough to require a child to be regarded as an ‘Aboriginal child’.
485.Ultimately, the matter is a question of fact.
Thus, in this case, for X to be an Aboriginal child, the grandmother needs to prove descent. The onus of proof is on the grandmother to establish that X was a descendent of the Aboriginal people of Australia. She has not discharged that onus. With respect to the grandmother, and despite the Court’s efforts to adopt the most generous interpretation of the material before the Court, none of her evidence is probative. Documents were relied on, including genealogies, which were of unknown provenance such that some were admitted as aide memoires only. The grandmother was the only witness on the issue of descent but, given her partisan interest in the finding she sought, her evidence must be carefully weighed in the absence of corroboration. She led no admissible expert evidence (eg. from an anthropologist or an archivist). There was no independent evidence of oral history relevant to descent. The very limited weight that the Court is prepared to place on the grandmother’s membership of an Aboriginal Land Council has already been noted at [147].
The grandmother has not established her case that X is an Aboriginal child for the purposes of the Act. The father has sole parental responsibility and he, preferably in conjunction with the mother, can decide whether this issue should be taken further.
Even if X were an Aboriginal child, in the circumstances of this case where the Court will conclude that it is not in the child’s interest to spend time with the grandmother, the Court would not have compelled the father to facilitate X’s enjoyment of her culture. Neither he nor the mother believe that their daughter is Aboriginal. In the circumstances of this case, that is not surprising. Whilst they would abide by any orders of the Court (none of which were sought, in any event) it is clear that they are not committed. It would be another complex issue introduced into the already highly complex circumstances surrounding the parenting of X.
What order can be made that would be least likely to lead to the institution of further proceedings in relation to X?
X has been exposed to litigation about her for almost all of her life. Just when the litigation between the parents appeared to have subsided, the grandmother brought the present application which has been prolonged over many years for circumstances beyond X’s control.
Making an order consistent with that proposed by the grandmother presents a high risk of re-litigation not just as between the grandmother and the parents, but also as between the parents themselves. The family consultant’s expert opinion was that any order for X to spend time with the grandmother would strain the parental relationship. The current relationship between the mother and the father is probably the best that it has been for most of X’s life. They appear to be communicating relatively well and they have managed to resolve issues satisfactorily. If the mother is not spending time with X in accordance with the orders that is not because of anything the father is doing, or not doing. X appears to be thriving in the care of the father, Ms B and their family. Both parents strongly oppose X spending time with the grandmother. The mother has had a very difficult life, and is still vulnerable even though the totality of the evidence suggests she currently has good mental health, is engaged with professionals assisting her, and is currently medication-compliant. The Court’s strong impression is that the greatest distress in the life of the parents and X is the current litigation, and thus the Court is reasonably optimistic that the conclusion of these proceedings, from the parents’ perspective, will significantly alleviate a major source of stress in their lives.
An order for X to spend time with the grandmother will continue the stress that has existed to date and create more opportunities for litigation. For example, the grandmother is very focused on achieving what she believes to be right. The Court would reasonably expect that if an order is made which is not complied with to the satisfaction of the grandmother, contravention proceedings would almost inevitably result. It must be remembered that there are formidable practical issues associated with the grandmother spending time with X, and a high degree of cooperation would be needed in order to satisfactorily implement an order consistent with the one she proposes. Problematically, however, that high degree of cooperation is not present. Rather, the relationship between the parents and the grandmother is marked by deep mistrust. Cooperation may have been present several years ago, at a time when there was an alliance between the mother and grandmother. That is no longer the case and this litigation may well have irreversibly damaged the relationship between the mother and grandmother. From this Court’s perspective, making an order consistent with that proposed by the grandmother invites further litigation.
Of course, making any order that is not consistent with the grandmother’s proposal likely also invites further litigation by way of appeal. The grandmother is focused on what she considers to be the right outcome for her granddaughter, and has already previously hinted at an appeal.
Does the grandmother have the capacity to provide for the emotional needs of X?
The Court acknowledges that there is considerable overlap between any consideration of the grandmother’s capacity to provide for the emotional needs of X, and the separate consideration of her attitudes which have already been discussed above.
For present purposes the focus will be on the evidence about the grandmother’s discussions with X. The evidence indicates that in about early 2018 X disclosed that the grandmother had told her that she was Aboriginal. The Court finds that this did, in fact, occur. Even though the grandmother initially denied that she told X, her husband confirmed this happened in cross-examination. This conversation took place without the knowledge or consent of the parents. It was only reluctantly, and after being pressed in cross-examination, that the grandmother acknowledged that she should have consulted the parents first. The father gave unchallenged evidence about the emotional impact of this news on X, including teasing at school. In his affidavit, the father deposes:
145.Within a few days, [X] came home from school telling us that someone teased her. We asked her about it. [X] said something to the effect of “I told my friend that I was aboriginal, they said, no you’re not, you’re too white.” Talking to [X] about this, it seemed [X] did not know what being an aboriginal was or meant.
(As per the original) (Emphasis in original)
The Court has found that X is not of Aboriginal descent.
Another example of a concerning conversation between the grandmother and X is the incident in which X hit herself in the car. Mr C gives evidence about this in his affidavit. The grandmother was cross-examined about this evidence. The event allegedly occurred in 2017 after X had her first visit with the mother after the 2016 orders were made. As discussed at [79]–[80] above, Mr C, the grandmother and X were travelling in a car when X started hitting herself with the palm of her hand. The allegation made by Mr C is that the grandmother said to X: “You didn’t do this before, you’ve only started doing this since living with Daddy”. In cross-examination the grandmother insisted that she did not remember saying this, and did not believe she would have said it. Moreover, she did not remember X hitting herself. The Court does not accept the grandmother’s evidence. Her denials in cross-examination were vague and unconvincing. Mr C was more responsive and convincing in his evidence when challenged about this incident, and the mother’s evidence is consistent with his.
There is a disconcerting unpredictability about what the grandmother can say and do. The risk of significant concern to the Independent Children’s Lawyer and the parents is that the grandmother will continue to say inappropriate things to, or in the presence of, X. Her characterisation of her relationship with X was troubling at times (e.g. her insistence that she was the primary attachment for X). At times it felt that the grandmother was conducting this case as if she was the mother (i.e. a parent). For example, in cross-examination, there is the unusual statement of the grandmother inferring that she was the victim of parental alienation syndrome (Transcript 28 October 2020, p.108, lines 9–18). The Court does have concerns about the grandmother’s capacity to understand that she is not X’s mother.

The Court shares the concerns of the Independent Children’s Lawyer, the mother, and the father, that the grandmother lacks the capacity to meet the emotional needs of X. She says inappropriate things, such as the matters identified above. She has strong views which she is open and dogmatic about, such as her Aboriginality, but does not have the filters that would otherwise enable her to determine the right time and place to say things. She diminishes the important role of X’s mother in her life, but sought to enlarge her own role as grandmother. Despite obviously loving X, meeting her emotional needs is dependent on understanding those needs, and prioritising the child’s needs over her own. The Court lacks confidence in the grandmother’s ability to do this.
Is X at risk of psychological harm whilst in her grandmother’s care?
To the extent that it is necessary to do so, drawing on the findings that the Court has made above, the Court accepts the submissions made on behalf of the Independent Children’s Lawyer, the father and the mother that there is, in fact, a risk of psychological harm to her if X spends time in the grandmother’s care. There is also the indirect psychological harm to X if the capacity of the mother and the father to care for her is inhibited by having to manage the grandmother’s demands for X to be in her life.
Of course the grandmother contends that if she was some form of risk to X, it would have been apparent during supervised contact but that the reports do not evidence this. That may well be factually correct. Indeed, this raises the question of the appropriateness of supervised contact as a way of managing risk. Firstly, ongoing supervised contact is problematic. Even assuming that the practical issues of cost, travel etc. can be overcome, there is the issue of how X will experience this and the broader implications of having the grandmother in her life in the context of this case where her mother and father are opposed to this, and the Court finds that there are good reasons for their view. Secondly, the nature of the risks identified in this case require very close levels of supervision because it is the grandmother’s underlying attitudes, and lack of insight and understanding, that form the foundation of the risk to X. Thirdly, it is clear that supervised contact was not the grandmother’s preferred outcome of this case, though the Court’s strong impression is that she would accept whatever form of contact is made available. On balance, the Court finds that in the circumstances of this case, supervised contact is not a practicable, long-term way of managing the risk issues in this case.
ORDERS IN THE BEST INTERESTS OF X
Having regard to the Court’s findings above, the Court accepts that it is not in the best interests of X to spend time with the grandmother and, indeed, communication needs to be limited to the provision of cards and gifts, but with the proviso that the parents have the ability to vet this to ensure that nothing inappropriate is sought to be communicated.

I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 25 July 2022

File number(s):	SYC 7278 of 2017
Judgment of:	ALTOBELLI J
Date of judgment:	25 July 2022
Catchwords:	FAMILY LAW – PARENTING – Application by maternal grandmother to spend time with the child – Where there are existing consent orders between the parents made in previous proceedings – Where the parents and Independent Children’s Lawyer oppose the orders sought by the maternal grandmother – Aboriginality of the child – Finding that it is not in the best interests of the child to spend time with the maternal grandmother.
Legislation:	Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:	Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229 Gibbs v Capewell (1995) 54 FCR 503; [1995] FCA 25 Malcolm & Monroe (2011) FLC 93-460; [2011] FamCAFC 16 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Sheldon & Weir (No. 3) [2010] FamCA 1138 Valentine & Lacerra and Anor (2013) FLC 93-539; [2012] FamCAFC 219 Webb & Guthrie [2016] FCCA 2285
Division:	Division 1 First Instance
Number of paragraphs:	165
Date of hearing:	27–30 October 2020, 1–2 February 2021, 3–4 February 2022
Place:	Wollongong (27–30 October 2020, 1–2 February 2021) Sydney (via videoconference) (3–4 February 2022)
The Applicant:	Litigant in Person
Counsel for the First Respondent:	Mr Lawrence
Solicitor for the First Respondent:	Acorn Lawyers
Counsel for the Second Respondent:	Mr Alexander
Solicitor for the Second Respondent:	Access Law Group
Counsel for the Independent Children's Lawyer:	Mr Cairns
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 7278 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CHARTERS Applicant
AND:	MR WEBB First Respondent MS GUTHRIE Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	25 JULY 2022