Cimorelli & Anor and Wenlack & Anor - [2020] FamCA 635

FAMILY COURT OF AUSTRALIA

CIMORELLI AND ANOR & WENLACK AND ANOR

[2020] FamCA 635

FAMILY LAW – CHILDREN – Interim parenting – Where application for time with the subject children by the maternal grandparents – Where application made in context of long running parenting proceedings between father and mother – Where children live with father – Where mother previously ordered to have supervised time with the children – Where conduct of maternal grandfather of concern – Where risks to children in unsupervised time with maternal grandparents – Where consideration of applicable principles – Where orders made for grandparents to have supervised time and not otherwise.

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

Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421
Deiter & Deiter [2011] FamCAFC 82
Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428
Goode and Goode (2006) FLC 93-286
Marvel v Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Potts & Bims [2007] FamCA 394
SS & AH [2010] FamCAFC 13
Valentine & Lacerra and Anor [2013] FamCAFC 53; (2013) FLC 93-539
Wenlack & Cimorelli [2013] FamCA 654
Wenlack & Cimorelli [2014] FamCA 1054
Wenlack & Cimorelli [2019] FamCA 755
Wenlack & Cimorelli (No. 2) [2019] FamCA 790
Wenlack & Cimorelli (No. 4) [2019] FamCA 854
Yamada & Cain [2013] FamCAFC 64

FIRST APPLICANT:

Mr C Cimorelli

SECOND APPLICANT:

Ms D Cimorelli

FIRST RESPONDENT:

Mr Wenlack

SECOND RESPONDENT:

Ms Cimorelli

INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

FILE NUMBER:

SYC

2881

2013

DATE DELIVERED:

3 August 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

5 June 2020 and by way of written submissions last received on 19 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mark Gilbert

FIRST RESPONDENT – SELF‑REPRESENTED LITIGANT:

Mr Brian Joseph Wallace

SOLICITOR FOR THE SECOND RESPONDENT:

Allsop Glover Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Domestic Violence Unit

Orders

That pending further order the children D born … 2008, E born … 2009 and F born … 2012 spend supervised time with the maternal grandparents Mr C Cimorelli and Ms D Cimorelli at a children’s contact service or with a community based supervision service as nominated by the Independent Children’s Lawyer for a period of not more than three hours each calendar month commencing August 2020 and such other additional supervised time as may be agreed to by the father and the maternal grandparents in writing with such writing to include SMS or email communication.
That the maternal grandparents pay for the cost of supervision.
The father and maternal grandparents are each forthwith to take all necessary steps to facilitate the children’s time as provided for above including completing the intake procedures for that service.
That the maternal grandparents Mr C and Ms D Cimorelli be and are hereby restrained from approaching or contacting the children in any way including through a third party save as provided for above and be and are hereby restrained from attending at or within 200 metres of the children’s residence, schools or any place at which the children may attend or be at from time to time save and except with the written consent of the father and upon such conditions as may be imposed by the father with such writing to include SMS or email communication.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 2881 of 2013

Mr C Cimorelli

First Applicant

And

Ms D Cimorelli

Second Applicant

And

Mr Wenlack

First Respondent

And

Ms Cimorelli

Second Respondent

REASONS FOR JUDGMENT

In the context of ongoing parenting proceedings as between the applicant father and the respondent mother, the maternal grandparents sought and were granted leave to intervene in the proceedings.
By Application in a Case filed 19 February 2020 the maternal grandparents Mr C and Ms D Cimorelli sought interim orders that the subject children spend time with them for one day each week on alternating Saturdays and Sundays between 9.00 am and 5.00 pm, one block of four nights in each school holiday period and, otherwise, as agreed between the parties.
On 30 April 2020 the maternal grandparents filed an Amended Application in a Case seeking, in summary, the following orders:
a)that the children spend time with the maternal grandparents:
i)for two days each alternate weekend from after school Friday until 5.00 pm Sunday;
ii)for four consecutive nights during mid-term school holiday periods;
iii)for seven consecutive nights during the Christmas school holiday period; and
iv)for one hour each week at a time agreed between the parties or, otherwise, determined by the Court via audio/video facility.
b)That the father enrol the child E (“the middle child”) into his team at the EE Sports Club and take the child to training sessions and any related competitions or in the alternative the grandparents take the child to his training sessions and any related competitions;
c)that the father enrol the child D (“the oldest child”) into her Saturday morning classes at the FF School and that the father take the child to those classes each week or in the alternative the grandparents take the oldest child to her classes each week; and
d)that for the purposes of spending time with the children when not collecting the children from after school the grandparents pick up and deliver the children to the party with whom they are living during the currency of these orders.
The father filed a Response to the grandparents’ Application in a Case seeking that the Application in a Case be dismissed or in the alternative the maternal grandparents have supervised time with the children for two hours each fortnight until further order.
The mother filed a Response to the grandparents’ Application in a Case seeking relevantly orders, in summary, as follows:
a)That the children live with the maternal grandparents for seven nights a fortnight on a week about basis both during school term and during school holidays from after school Monday until before school the following Monday with changeovers when not at school to be Monday at noon at McDonald’s restaurant car park GG Street, Suburb HH; or
b)In the alternative the children spend time with the maternal grandparents for a minimum of four consecutive nights per fortnight from Thursday after school until Monday before school during school term and half of school holidays in a week about basis with changeovers if not at school to be Monday at noon at the McDonald’s restaurant car park GG Street, Suburb HH;
c)That the father be injuncted from:
i)interfering in any way with the children’s court ordered time with the maternal grandparents;
ii)denigrating, threatening and belittling the maternal grandparents and the maternal family;
iii)questioning the children on their discussions with the Department of Community and Justice case workers, school counsellors, the police and any other mandatory reporters;
iv)relying on and circulating, including these court documents, the six-year-old untested and irrelevant Dr R report or in the alternative the father pays Dr R to attend cross-examination at any proceedings in which he seeks to rely on this report.
d)That the children spend time with the maternal grandparents on their birthdays and the maternal grandparents’ birthdays from after school until 7.00 pm or from 3.30 pm to 7.30 pm on weekends, Easter Sunday, Christmas Day, any of the children’s religious sacraments from noon until 5.00 pm and other relevant cultural days;
e)For the purposes of spending time with the children on special days when not collecting the children from after school the maternal grandparents pick up and deliver the children to the party with whom they are living during the currency of these orders; and
f)That the father enrol F (“the youngest child”) and the middle child into weekly swimming classes and allow the oldest child to attend at the same time recreationally and take the children to these classes, or facilitate the maternal grandparents in taking all three children to these classes.
The interim application of the maternal grandparents was listed before a registrar on 19 March 2020. On that day, by consent, the application was adjourned to 17 April 2020 for mention only. Subsequently, proceedings were before the Court on 30 April 2020 on which date directions were made for the filing of documents in response by the father and the mother. The proceedings were adjourned to 26 May 2020 for judicial case management.
On 26 May 2020 the proceedings were then adjourned for interim hearing to 9.30 am on 5 June 2020.
On 5 June 2020 the interim hearing proceeded and directions were made for the filing and service of supplementary submissions by the maternal grandparents and the respondent father and respondent mother and the Independent Children’s Lawyer (“ICL”).
Submissions were received by 19 June 2020 and judgment was reserved.

Context

These proceedings have had a long and convoluted history.
On 16 August 2013 interim orders were made (Wenlack & Cimorelli [2013] FamCA 654) as follows:
(1)That the applicant father and the respondent mother shall have equal shared parental responsibility for the children of the marriage, namely:
[the oldest child] born … 2008;
[the middle child] born … 2009; and
[the youngest child] born … 2012
hereinafter referred to as (“the children”).
(2)That, pending further order, the children shall spend time with the father as follows:
(a)From after school or day care until 6.30 pm each Wednesday;
(b)From after school or day care until 6.30 pm each Friday;
(c)From 8.30 am until 4.00 pm each Sunday;
(d)For a period of not less than three (3) hours on each of:
(i)the children’s birthdays;
(ii)Christmas Day;
(iii)the father’s birthday; and
(iv)Father’s Day
in the event the children are not ordinarily spending time with the father pursuant to these orders, as agreed between the parties and, failing agreement, from 3.00 pm until 6.00 pm if the day is a school day or from 9.00 am until 12.00 noon if the day is on a weekend.
(e)At any other time as agreed between the parties in writing.
(3)That the children shall otherwise live with the mother.
(4)That for the purpose of effecting changeover in accordance with these orders changeover shall occur at the children’s preschool or school in the event that it is a school day or, if not on a school day, the father shall collect the children from the mother’s place of residence at the commencement of the father’s time with the children and the mother shall thereafter collect the children from the father’s place of residence at the conclusion of the father’s time with the children.
(5)That each parent shall inform the other in writing of any change to his or her residential address not less than seven (7) days prior to such change occurring and of any change to his or her contact telephone number within forty-eight (48) hours of such change occurring.
(6)That the parties may communicate with the children each evening the children are in the care of the other parent and the resident parent shall facilitate and encourage such communication by telephone, “Skype” and/or “FaceTime” and for the purpose of this order the parties shall ensure that the children are available to communicate with the non-residential parent between 5.00 pm and 6.00 pm.
(7)That each party shall notify the other as soon as possible and, in any event within twenty-four (24) hours, of any serious injury or illness suffered by the children whilst with that party.
(8)That the parties shall do all acts and execute all documents necessary to provide all authorities and to give all necessary consents to ensure that the Principal and staff of each of the child’s school or pre-school, together with the child’s treating medical professionals, are directed and authorised to communicate with and provide information and copies of documents directly to each parent upon each parties’ request at their own cost.
On 17 September 2014 further interim orders were made (Wenlack & Cimorelli [2014] FamCA 1054) as follows:
(1)That the Application in a Case filed by the Applicant Father on 16 September 2014 be dismissed.
(2)That without admissions the Wife undertakes to the Court that she shall not take the children… to Dr S for the purposes of medical treatment, reviews and examinations.
(3)That without admissions the Wife undertakes to the Court that if she believes the children need to be taken for medical reviews, examinations or testing (unless in the event of a medical emergency) the Wife shall first:
3.1Provide the husband with reasonable notice in writing (including SMS text message) beforehand of her intention to take the children for any such review, examination or testing;
3.2Provide with such notice the details of any proposed reviews, examinations or testing to be undertaken by any of the children;
3.3Provide reasons as to why she believes such review, examinations or testing should be carried out; and
3.4Obtain the Husband's consent in writing (including SMS text message).
(4)That the [middle child] born … 2009 shall attend Suburb L Public school commencing in Kindergarten in 2015 and the Husband and the Wife shall forthwith do all acts and things and sign all documents necessary to enrol [the middle child] at Suburb L Public School commencing in Kindergarten 2015 and shall join any such application to be made so as to secure [the middle child’s] enrolment at that school and it is noted that this may include an application to the Department of Education.
(5)That without admissions the Husband and the Wife shall be and hereby are restrained from denigrating the other party or any member of the other party's family within the presence and/ or hearing of the children, or any of them.
(6)That without admissions the Husband and the Wife shall be and hereby are restrained from questioning the children about the other party in any manner whatsoever.
(7)That the Husband and the Wife shall continue to engage in counselling with Mr O, in accordance with the recommendations of Mr O, in order to assist the parents and the children in implementing these Orders.
(8)That pending further Order, Orders 2(a), (b) and (c) of the Orders made by the Court on 4 September 2013 shall be varied such that the children shall spend time with the father as follows:
8.1For a period of four weeks as follows:
8.1.1In weeks one and three:
(a)From after school or day care until 6.30 pm on Wednesday;
(b)From after school or day care until 6.30 pm on Friday;
8.1.2In weeks two and four:
(a)From after school or day care until 6.30 pm on Wednesday;
(b)From after school or day care on Friday until 4.00 pm on Saturday;
8.2From the conclusion of the four week period referred to in Order 8.1 and thereafter, as follows:
8.2.1In week one and each alternate week thereafter:
(a)From after school or day care until 6.30 pm on Wednesday commencing on 15 October 2014;
(b)From after school or day care until 6.30 pm on Friday;
8.2.2In week two and each alternate week thereafter:
(a)From after school or day care until 6.30 pm on Wednesday commencing on 22 October 2014;
(b)From after school or day care on Friday until 4.00 pm on Sunday.
(9)That the Wife shall be and hereby is permitted to release a copy of the reports prepared by Dr R in these proceedings to Dr N, Psychiatrist.
(10)That the proceedings be listed for final hearing for five (5) days commencing 2 March 2015.
On 27 August 2015 final parenting orders were made by consent which provided, inter alia:
(1)That the father and mother have equal shared parental responsibility for the children.
(2)That the children live with the father as follows:
2.1During the school term, from the date of these orders until the commencement of Term 3, 2016:
2.1.1Week 1: From after school/day care on Thursday until the commencement of school on Friday, commencing 3 September 2015 and resuming on the first Thursday of each new school term; and
2.1.2Week 2: From after school/day care on Thursday to the commencement of school/day care on Monday, such time to commence on 27 August 2015.
2.2During the school term, from the commencement of Term 3, 2016.
2.2.1Week 1: From after school/day care on Wednesday until the commencement of school on Friday, commencing on the first Wednesday of each new school term; and
2.2.2Week 2: From after school/day care on Thursday to the commencement of school/day care on Monday.
2.3During the school term, from the commencement of Term 3, 2017:
2.3.1Week 1: From after school on Wednesday until the commencement of school on Friday, commencing on the first Wednesday of each new school term; and
2.3.2Week 2: From after school on Wednesday to the commencement of school on Monday.
2.4For one half of all school holiday periods as follows commencing with immediate effect:
2.4.1For one half of the school holidays following the conclusion of Terms 1, 2 and 3 the first half in even numbered years, the second half in odd numbered years.
2.4.2During the Christmas school holiday period as follows:
2.4.1.1In 2015 and 2016, on a week about basis commencing with the second week in 2015 and the first week in 2016;
2.4.1.2During the Christmas school holiday period in 2017 and thereafter, for one half of the Christmas school holiday period such time to be agreed between the parents and if no agreement, with the Mother for the first half in 2017 and with the Father for the first half in 2018, and each alternate year thereafter.
And for the purposes of these Orders, each school holiday commences after school on the last day of term and ends before school on the first day of term.
(3)That the children live with the mother at all other times.
On 4 October 2019 (Wenlack & Cimorelli [2019] FamCA 755) orders were made as follows:
(1)Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the children … from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the children reaches the age of 18 years or the Court orders its removal.
THE COURT NOTES
A.The order is made as a preventative measure but it will be considered in the course of the day whether additional restraints need to be made.
THE COURT FURTHER ORDERS
(2)Pursuant to section 67U of the Family Law Act 1975, a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the children…and to deliver the said children to [the father] and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
(3)Pending further order, the final orders made on 27 August 2015 in relation to the children are suspended.
(4)Pending further order, the children are to live with the father and the father is to have sole parental responsibility for the children.
(5)The father is to advise the Court as soon as practicable when the children are recovered to his care.
(6)Pursuant to s 68B of the Family Law Act the mother is restrained from taking any steps to have the children returned to her care including through a third person and is restrained from contacting the children by any means including through a third party.
(7).The matter is listed for further case management 14 October 2019 at 2.15 pm.

On 16 October 2019 (Wenlack & Cimorelli (No. 2) [2019] FamCA 790) a further order was made as follows:
(1)The father is to forthwith take all steps required of him to ensure that the children are immediately enrolled in the distance education scheme and that they undertake all set work and activities prescribed by that scheme until the 1 November 2019.
On 23 October 2019 the maternal grandparents made an application to intervene in these proceedings.
Then on 20 November 2019 (Wenlack & Cimorelli (No. 4) [2019] FamCA 854) current orders were made as follows:
Pending further order
(1)The final orders made on 27 August 2015 in relation to the children … are suspended.
(2)The children shall live with the father.
(3)The father shall have sole parental responsibility for the children.
(4)The father forthwith shall do all acts and things required to ensure that the children are enrolled to attend T Primary School, Suburb Q.
(5)Order 1 of the orders made on 4 October 2019 be discharged.
(6)Orders 2 and 5 of the orders made on 4 October 2019 are to continue.
(7)Order 6 of the orders made on 4 October 2019 is to continue subject to the following variation:
(a)The words “other than in accordance with these orders” are added to the end of that order.
(8)The order made on 16 October 2019 be discharged.
(9)The mother is to spend supervised time with the children at a Children’s Contact Service as nominated by the Independent Children’s Lawyer for a period of two hours per fortnight and such other additional time as may be accommodated by the contact service.
(10)The parents are each to take all necessary steps to facilitate the mother’s time at the contact service including completing the intake procedures for that service.
(11)The Independent Children’s Lawyer has liberty to provide these orders and Reasons for Judgment to the Children’s Contact Service.
These reasons assume familiarity with the various decisions referred to above and particularly that of 20 November 2019 that sets out in detail the sad history of litigation in relation to the children. Relevant to the present application is the following from the Court’s reasons for judgment:
119.A particular issue of significance which was also present in the previous proceedings relates to the children’s relationship with their extended families particularly in the context of them living with their mother in the extended maternal household. The relationship between the mother and maternal family members was considered as “enmeshed” by the psychiatrist in the previous proceedings. He had particular concern in this regard about the maternal aunt who as I have indicated filed an application to intervene in these proceedings which she ultimately did not pursue. The father in his affidavit deposes to the ongoing role of this maternal aunt in the lives of the children. One of the orders made in 2015 restrained the parents enrolling the children at any school at which this aunt is employed other than by agreement between the parties the father contends that since this order was made the mother has sought to have him agree that it not apply. Further, the father deposes that the maternal aunt has been attending meetings at the children’s school in early 2019 with the mother and that on occasions it has been difficult to extract the youngest child from the care of the mother and maternal aunt as the maternal aunt was very regularly present at the children’s activities.
120.The father also deposes to many occasions from around March 2019 when the mother has refused to allow the two oldest children to spend time with him alone and that the mother and/or members of her family were present at almost every interaction that he had with the children between March and 4 October 2019. The father describes numerous interactions when the children were rude, and made inappropriate and cruel comments to him but were not corrected by the mother or encouraged to interact appropriately with him.
It is subsequent to these latest orders that the maternal grandparents elected to become engaged in these proceedings.

The maternal grandparents

At interim hearing, the maternal grandparents relied upon the following documents:
a)the affidavit of the maternal grandfather Mr C Cimorelli sworn 14 February 2020; and
b)the affidavit of Mr JJ sworn 29 May 2020.
The applicant maternal grandfather was born in 1937 and is now almost 83 years of age. The maternal grandmother was born in 1947 and is now 73 years of age.
Both of the maternal grandparents are retired.
It is asserted that the only contact the maternal grandparents have had with the children was for a period of supervised time on 26 December 2019, this notwithstanding they assert numerous requests to the father either directly or through his solicitors. Otherwise, they had made approaches to the ICL seeking to be able to spend some time with the children on special days and at Christmas 2019.
The grandfather asserts that they approached the Department of Communities and Justice (“the Department”) to seek assistance in relation to arrangements for them to see the children. Why the Department would become engaged in such a way in a matter before this Court is not readily apparent.
When supervised contact occurred on 26 December 2019 the grandparents sought to have their other adult children attend as well. Such a proposal was not agreed to by the father. Notwithstanding existing court orders the grandparents were accompanied by the mother for the purposes of this supervised time.
It is acknowledged by the grandfather that the father proposed by letter of 17 December 2019 that he would facilitate the children’s time with the grandparents provided that such time was under the supervision of KK Contact Service within the community. The grandparents’ response was to communicate with the ICL enquiring as to why their time with the children should be subject to any limitation.
There appears no issue that the maternal grandparents have had a close and significant relationship with the subject children, they having lived in that household for some time before moving to reside with the father. The grandparents complain that the children are being deprived of access to their European culture, community and language.
Otherwise, the maternal grandfather expresses concern as to the middle child’s failure to maintain ongoing involvement in sport and their ability to be engaged in that activity.
The grandfather complains that the father did not allow the oldest child to attend her year six graduation dinner and her sport classes and that the child missed her final term at the school that she had been attending before moving to reside with the father. However, these considerations were before the Court when previous orders were made.
The grandfather expresses concerns as to the effect on the children of their sudden disappearance from their lives. This is somewhat surprising in circumstances where the father as long ago as December last year was willing to make arrangements for them to have supervised time with the children. His proposal was understandable having regard to the Court’s reasons for judgment, in particular, in relation to the mother who lived in their household.
It is apparent, as at the date of the interim hearing, that the grandparents had still not accepted the father’s offer for them to spend supervised time with the children. Such circumstances are a matter of their own making.

The Mr JJ affidavit

Otherwise, the maternal grandparents rely upon an affidavit by Mr JJ of Suburb LL. He deposes as to a significant association with the children and his children attending the former school attended by the subject children since 2016. Mr JJ deposes as to matters that have little relevance to the children’s present circumstances where they now live with the father in a settled arrangement.
Mr JJ deposes as to the receipt by his daughter MM of various text messages from the oldest child on 3 March 2020. The text messages appear to be a representation by the oldest child that she was at risk of harm in the father’s household. Mr JJ says that as a consequence of the text messages he attended Suburb K Police Station to report his concerns. Not having heard from the police thereafter he contacted them on 2 April 2020 and was assured that they would follow up his report of his concerns. Subsequently, it appears that sometime in May 2020 he attended Suburb K Police Station again and was informed that officers had spoken to the subject child and that everything seemed “above board”. What is meant by that expression is simply a matter for conjecture.

The father’s evidence

The father relied upon his affidavit affirmed 15 April 2020.
The father acknowledges the importance of the children maintaining their relationships with the maternal grandparents.
He notes that absent receipt of the expert report he does not support the maternal grandparents having unsupervised time with the children.
The father expresses various concerns as to the children spending time with the maternal grandparents as follows:
a)that the mother, the subject of orders made above, resides in the maternal grandparents’ household. For a reason that is not readily apparent, the maternal grandparents make no reference to that circumstance in their affidavit nor any reference as to how they would facilitate the time with the children in the absence of the mother particularly where they seek time with the children on an overnight basis;
b)should the children come into contact with the mother in unsupervised circumstances, they would be exposed to the very concerns expressed by the Court that precipitated the children living with the father and the mother having limited supervised time;
c)that, otherwise, the maternal aunt Ms N Cimorelli resides in the maternal grandparents’ home with the aunt having previously agitated in online forums in relation to these proceedings including identifying the father as a “significant risk” to the children and supporting the abduction of children from parents unfairly granted custody by the courts. Quite properly, the father expresses significant concern about the children’s exposure to the maternal aunt;
d)that when the children were recovered by the police in terms of previous orders referred to above, the grandparents, he asserts, proactively obstructed the children’s removal by the police including the prearranged attendance of many adults at their home at the time of removal and the filming of the police event at the home;
e)that the grandparents have expressed “unfounded criticisms” of his parenting and thus the father has deep concerns that they will endeavour to undermine his relationship with the children;
f)the grandparents make no reference to any proposals to mitigate the risk to the children of being exposed to the mother in their household and make no reference to their daughter’s behaviour to date that has been the subject of court attention; and
g)that the earlier expert report by Dr R (exhibited to the father’s affidavit) refers to the serious enmeshment issues between members of the maternal family. The father expresses concerns that the grandparents in the nature of their application demonstrate a lack of insight into the gravity of the children’s current situation, the mother’s responsibility for it and the psychological risk that the mother poses to the children.
The father rejects assertions that he has failed to send schooling material to the grandparents as requested. He asserts he did so by email on 6 February 2020 to the grandparents and the mother.
Otherwise, the father rejects the maternal grandparents’ assertion that they have not seen the children outside of supervised visits with the mother. He asserts that the grandparents had visited the children at their new schools on a number of occasions including attending with the maternal aunt the oldest child’s swimming carnival on … 2020. Regrettably, the father asserts that such visits have been disastrous for the children leading to numerous visits from police and the Department to his home and further interrogations of the children. The maternal grandparents were present at a parent information night on … 2020 and were in the vicinity of the children’s school on 2 March 2020.
The father expresses significant concern in relation to the following particular events:
a)The oldest child’s swimming carnival … 2020:
i)unknown to the father the maternal grandparents attended the swimming carnival and spent time with the child. During that time the maternal grandfather entered his mobile phone number into the oldest child’s phone under the false entry “PP”. The father rightly expresses concerns as to this secretive arrangement with the child. Also at the swimming carnival the maternal grandfather entered into the mobile phone of the child the phone number of her friend MM who had been at her previous school with such entry being inserted under the full name “MM”. The child later revealed to the father that her grandfather had MM’s number with him on a piece of paper. The child MM is the daughter of Mr JJ referred to above.
ii)The day following the school carnival the child attended upon her school student welfare director in a distressed state. The child was referred by the director to the school psychologist. After school on 3 March 2020 the child appeared distressed to the father. The father spoke to the child who appeared overwhelmed and confused by “family matters”. The child reported to the father that she had met the child MM before the swimming carnival and they had swapped phone numbers. The child said to the father “afterwards I sent MM a SMS and said some bad things about you dad”. One of the SMS messages received on the child’s phone purported to provide to the child instructions as to how she should “escape” to the residence of Mr JJ in Suburb LL. The child expressed her embarrassment and her regret for what she had done.
iii)Having spoken to the child, the father observed torches being shone through his bedroom window. He saw two police officers. He met those offices at his front door and was informed that they were in attendance to undertake a “welfare check” on the oldest child. The officers then spoke to the oldest child alone. The father was informed that Mr JJ had taken his daughter’s phone to Suburb K Police Station that day. One of the officers reported to the father that when he spoke to the child about the SMS she burst into tears and immediately admitted to him that she had made it all up and that she had lied to the school in relation to her distress and wanting to self-harm. The child asserted that she understood that if she did so she would be able to see her mother quickly. The child did not reveal to the father or the police that, in fact, the maternal grandparents had attended her swimming carnival. The child was also interviewed by a case worker from the Department at her school.
iv)As a consequence of the above, the father expresses his serious concern for the distress caused by the maternal grandparents to the child and the prospective risk that their interaction with the child might represent. On 4 March 2020 the child opened up to the father and conceded that she had not in fact met MM at the train station at all and that the maternal grandparents had attended her swimming carnival and provided the phone numbers in her phone. The child reported that she felt that she needed to be secretive about the event.
v)Remarkably, notwithstanding the earlier police attendance at the father’s home, Mr JJ on 2 April 2020 attended again at the Suburb K Police Station seeking an update as to the police enquiries in relation to the SMS history provided by him to the police a month earlier. This second attendance led to a second police attendance at 9.30 pm on 2 April 2020 at the father’s home. The child was asleep at the time and had to be woken to speak to the police. The police had no concerns having spoken to the child and left.
b)The ongoing involvement of the Department:
i)the father expresses concerns that numerous emails between he and the mother have been copied to a case worker at the Department. None of the emails he asserts relate to any safety issues relating to the children. Otherwise, the Department received between 10 December 2013 and 4 March 2020 36 reports asserting risk of significant harm to the children including allegations as to psychological harm, sexual harm, physical harm and neglect. Of these reports 14 were screened out and 22 reports were screened in as risk of significant harm. There is a strong inference that such reports were from the mother or the extended maternal family. On 3 March 2020 the Department received two risk of harm reports. The background to these reports arise from circumstances relating to the oldest child’s swimming carnival as detailed above. Yet all this notwithstanding the Department has taken no action or, indeed, sought to intervene in these proceedings.
ii)The mother requested that she be permitted to see the children in circumstances supervised by the Department case worker. The father expresses some bewilderment as to why the Department case worker would be so engaged in issues relating to proceedings before this Court and seek to engage herself in issues before the Court.
iii)On 9 March 2020 the father was informed by the Department’s case worker Ms RR that she had attended at the oldest child’s school and interviewed the child on two occasions. The father informed the caseworker that she and her supervisor should have some regard to the reasons for judgment of her Honour Justice Hannam of 20 November 2019 as to the mother’s time with the children. Subsequently, Ms RR undertook an electronic home visit on 8 April 2020 and spoke to the children at length. The case worker’s notes as to portion of her conversations with each of the children comprise part of Exhibit “I”. In brief summary, the children all speak most positively of being in the father’s household. Otherwise, the father asserts that comments made by Ms RR to the children gave rise to the father’s concern as to Ms RR’s impartiality and her alignment with the mother.
The father expresses concern as to the maternal grandparents spending time with the children absent a report from the single expert and appropriate recommendations for the Court’s consideration. The maternal grandparents, themselves, have sought to engage the Department in the issues before this Court and communicated with the Department by letter dated 12 April 2020 expressing their concerns as to the welfare of the subject children. Otherwise, he seeks that the maternal grandparents’ time with the children be appropriately supervised.
The father asserts that the children have now been in his full-time care since 4 October 2019 and have settled in well to their new home and their new schooling and extracurricular activities. The children are engaged with the extended paternal family.

The mother’s evidence

The mother relied upon her affidavit sworn 15 May 2020.
Mostly, the mother’s evidence is irrelevant to the issues for determination in this discrete application as to the maternal grandparents’ time with the children.
The mother seeks to rehash historical issues including the Department’s involvement that was mostly and in all probability at her instigation and matters that were the subject of determination by the judgment of Hannam J in November 2019 as referred to above.
The mother expresses her concern that the children have had their relationships with the maternal family interrupted. Yet such has been as a consequence of the mother’s own conduct and the risk that she presents to the children as outlined by Hannam J in her reasons for judgment.

There is no issue that prior to the children being removed from the mother’s care the children had a close relationship with particularly the maternal grandparents in that they resided within the same household.
Yet the evidence before the Court is that the children are well settled in their present circumstances with the father and are appropriately engaged at school and in extracurricular activities in circumstances where the father presently holds sole parental responsibility for them.

The ICL’s proposals

The ICL proposes (Exhibit “H”) that the maternal grandparents spend time with and communicate with the children each alternate Sunday from 12.00 noon to 4.00 pm and for the purposes of telephone communication on each of the children’s birthdays from 5.00 pm to 5.30 pm.
Otherwise, the ICL proposes:
a)that the mother be restrained from being present during the time the children spend with the maternal grandparents;
b)that the maternal grandparents be restrained from discussing with or in the hearing of the children and shall use their best endeavours to ensure that any third person not discuss with or in the hearing of the children the current proceedings, any reports made to the Department and the exchange of text messages between the oldest child and MM and the circumstances surrounding those text messages;
c)that in the event that the maternal grandparents make a risk of harm report to the Department that within 24 hours of making such report the maternal grandparents notify the ICL and the parties of such notification and the substance and details of such notification; and
d)that the father do all acts and things and provide all necessary authorities to provide that the mother’s email be included in each of the children’s schools authorising the mother to receive all emails, circulars and notices that parents receive in the normal course.

Discussion: Grandparents

In Marvel v Marvel (No. 2)[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later, at paragraph [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the children, can apply for parenting orders.
It is clear having regard to the circumstances of the child both historical and at present as referred to above, that the applicant is concerned with the care, welfare and development of the children.
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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.
The presumption does not apply where:
(a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
(b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
(c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
This discrete matter, however, involves non-parent grandparents.
The Full Court in Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428 and Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.
Consideration of the applicant as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is, therefore, appropriate to apply the relevant considerations in respect of the applicant by way of application of s 60CC(3)(m).
It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53; (2013) FLC 93-539 at [43]:
… there is 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). …
The Full Court in Yamada & Cain [2013] FamCAFC 64 said:
19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents.
…
21.It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …
…
25. In Donnell, the Court went on to say … [at [101] and [102]]:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. …
As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.
Finally, the Full Court in Yamada & Cain (supra) said at [27]:
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

The Additional Considerations: s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. Regard has been had to all, but the relevant considerations to the present determination are as follows:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
The children presently reside with the father. There is no objective evidence as to the children’s views and by reason of the fraught history of this matter such views would in any event need to be weighed as against the subjective issues referred to in the reasons for judgment of Hannam J referred to above.
(b) the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
The nature of the children’s relationships with the father and mother are subject to the current orders referred to above. They need not be repeated here. The children it is agreed had a good relationship with the maternal grandparents before moving to live with the father. That relationship has continued in part since then. Yet the grandparents’ involvement and particularly that of the maternal grandfather sees an alignment with the mother and conduct that demonstrates little reflective capacity in the grandparents to focus on the welfare of their grandchildren who are in a settled circumstance. It was sought to undermine that circumstance and create inappropriate emotional pressure on one of the children. It is thus appropriate to ensure that any ongoing relationship with the grandparents is in an appropriately controlled situation.
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child and to communicate with the child;
The grandparents enjoyed an earlier close relationship with the children. They have, it seems, sought to remain engaged with the children notwithstanding the children have moved to reside with the father. Yet there is disquiet that such engagement is in part motivated by their alignment with the mother. The grandparents’ capacity to act in child focused ways in the future must be doubted unless their time is properly supervised so as to protect the children from psychological stressors.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children are settled in the father’s household and have had some ad hoc engagement with the grandparents. The grandparents seek orders as to time that is disruptive of the children’s lives each alternate weekend and otherwise. Such disruption is not in the children’s best interests at the present time and represents a risk to the children of inappropriate contact with the mother who resides in the grandparents’ home. The fact of her residence in their home was not the subject of evidence by them and demonstrates a disturbing lack of frankness by them with the Court.
(f) the capacity of each of the child's parents; and 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;
This consideration highlights the lack of reflective capacity in the grandparents as to the children’s best interests, in particular, in relation to their residence with the father and the need to avoid stressors on the children. A full consideration of their capacity in this regard will need to await the single expert report and a full final hearing.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The conduct of the grandfather gives rise to concern particularly as to the consequences of his intervention with the child at the swimming carnival and the distressing events that followed including the misguided conduct and inappropriate intervention of Mr JJ. The grandparents have clearly aligned with the mother and sought to undermine the children’s relationships with the father, their primary carer.
(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;
These are interim proceedings. The orders to be made consider the children’s present circumstances and their best interests into the immediate future.
As noted above, these additional considerations facilitate consideration of the best interest factors conveniently in relation to the grandparents.

The Primary Considerations: s 60CC(2)

The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Whilst this consideration focuses on parents, the benefit to the children having “meaningful relationships” with the grandparents is fraught with underlying concerns, as referred to above that at present undermine the value of such relationships. It is appropriate that the relationships on that basis cannot be something that is meaningful to the children, save in circumstances where time with the children is supervised in a protective way.
The second primary consideration is the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. In applying the considerations set out in subsection 60CC(2), the Court is to give greater weight to this consideration.
This is a significant issue for these children. The grandparents’ conduct detailed above has led the oldest child to be spoken to at school, be the subject of late night police attendances at her home, be interviewed at school by a Department case worker and be interviewed electronically at home. The child was distressed by her own conduct and the false assertions made by her. She apologised and the father asserts that she has moved on and is now well settled.
Otherwise, the other children have been present at the police attendances and themselves interviewed by the misguided and or misled Department case worker.
The ICL, as detailed above, seeks that the maternal grandparents have unsupervised time with the children and that they be restrained from permitting the mother being present during such time. The ICL, otherwise, proposes restraints on the grandparents discussing these proceedings with the children. Such proposed orders leave inherent risks in respect of the conduct of the grandparents particularly having regard to the subterfuge engaged in by them with the oldest child that has had significant ramifications for all of the children as discussed above. It is considered that it is in the best interests of the children that the risks sought to be alleviated by the further orders sought by the ICL be addressed by the more simple mechanism of imposing supervision either in a contact centre or within the community.
Otherwise, the imposition of supervised time should preclude the possibility of any further notices of risk being made by the maternal grandparents to the Department. Clearly, if there is an issue of concern that arises then it would be readily apparent to the supervision centre or supervisor who is expected will take appropriate action.
By reason of the above matters, it is in the best interests of the children that the protection of the children is facilitated by their present living arrangements continuing undisturbed and the grandparents having time with the children under supervision. The grandparents should be restrained from contact with the children, otherwise, and be restrained during supervision from bringing the children into contact with the mother.

Orders will be made accordingly.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 August 2020.

Associate:

Date: 3 August 2020