Coleman and Hindle and Ors
[2010] FamCA 319
•22 April 2010
FAMILY COURT OF AUSTRALIA
| COLEMAN & HINDLE AND ORS | [2010] FamCA 319 |
| FAMILY LAW – CHILDREN – Best Interests – With whom the children live – dysfunctional relationship between maternal grandparents and parents – where the children are to spend no time with nor communicate with the maternal grandparents FAMILY LAW – VEXATIOUS LITIGANTS – orders made under s 118(1)(c) FLA and s 114(3) FLA |
| Acts Interpretation Act 1954 (Qld) s 38 Child Protection Act 1999 (Qld) s 82(2) Family Law Act 1975 (Cth) ss 4; 60B, 60CC, 61C, 61DA, 65DAA, 69VA, 69ZT, 114, 118, Part VII Supreme Court Act 1970 (NSW) s 84 |
| Attorney General (NSW) vBhattacharya [2003] NSWSC 1150 Attorney General (NSW)v Wentworth (1988) 14 NSWLR 481 Darwin and Darwin [2008] FamCA 588 Donnell & Dovey (2010) Fam CAFC 15 Lindberg & Scott (2009) FamCA 465 MRR v GR (2010) 263 ALR 368 Sinclair-Small & Sinclair [2008] FamCA 1056 |
| APPLICANT: | Ms Hindle |
| 1ST RESPONDENT: | Mr Hindle |
| 2nd RESPONDENT: | Mrs Coleman |
| 3rd RESPONDENT: | Department of Communities (Child Safety Services) |
| INTERVENOR: | Mr Coleman |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Carter |
| FILE NUMBER: | BRC | 5431 | of | 2008 |
| DATE DELIVERED: | 22 April 2010 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 8 - 19 March 2010 |
REPRESENTATION
| APPLICANT: | In person |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Balzamo |
| SOLICITORS FOR THE 1st RESPONDENT: | Bridges Family Law Specialists |
| SECOND RESPONDENT | In person |
| COUNSEL FOR THE 3rd RESPONDENT: | Mr Selfridge |
| SOLICITOR FOR THE 3rd RESPONDENT: | Crown Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Lawyers |
Orders
The children X born … October 1996 and Y born … October 2001 (“the children”) live with the mother.
The mother and father have equal shared parental responsibility for the long term care, welfare and development of the children.
The father spend time with the children at all reasonable times as may be agreed between the father and the mother.
The children spend no time with the maternal grandparents.
The maternal grandmother, Mrs Coleman, and the maternal grandfather, Mr Coleman, are restrained from attempting to contact the children by any means including by contacting or attempting to contact the children or either of them at their home, their school, their place of worship, or their sporting clubs or requesting or encouraging any other person to do so.
Neither the mother nor the father shall consume alcohol to the extent that they are no longer legally able to drive a motor vehicle nor shall either the mother or father use any illicit drugs when the children are spending time with them.
Neither the mother nor the father shall denigrate or allow any other person to denigrate the mother, father or maternal grandparents to or in the presence of or in the hearing of the children.
The mother and father inform each other of all medical practitioners involved in treating or caring for the children from time to time.
The mother and father be entitled to receive at their own request and expense any and all information relating to the health, education and welfare of the children including but not limited to any details of any illness suffered by the children and treatment required, any school reports, newsletter, notification of parent/teacher interviews, photograph order forms and details of any disciplinary matters. This order shall constitute an authority to each of the children’s medical practitioners, allied health professionals and schools to provide the information outlined in this order.
The mother and father be at liberty to attend any school or extra-curricular activities to which parents are invited including but not limited to parent/teacher interviews, assemblies, concerts and sports days.
In the event of the children becoming seriously ill or injured whilst in the care of the mother or the father, that the parent who has care of the children will notify the other parent as soon as possible and in any event within twenty four hours.
In the event the children are prescribed medication or a particular form of treatment which is required to continue into a period when the other party or parties will be caring for the children, any medication or treatment is to be sent by the mother or father with the children together with a description of the condition for which it is required and the appropriate dosage or method of treatment.
The mother and father inform each other and keep each other informed of any changes to their telephone numbers and addresses within twenty four hours of such change occurring.
The maternal grandfather and the maternal grandmother do all things to ensure that copies of any photographs that were taken by the maternal grandfather from the mother’s computer (whether they be in hard copy or electronic form) be destroyed.
The order, that the children’s interests in the proceedings are to be independently represented by the Independent Children’s Lawyer, be discharged.
The applications brought by the maternal grandmother and maternal grandfather be dismissed.
Pursuant to s 118(1)(c) Family Law Act, the maternal grandmother and maternal grandfather shall not institute any further proceedings under the Family Law Act for parenting orders or any other orders in relation to the children without leave of the Family Court of Australia.
Pursuant to s 114(3) FLA, subject to any further order of the Court, the maternal grandmother and the maternal grandfather shall be restrained from serving upon any party in these proceedings any application for leave to institute any further proceedings under the Family Law Act for parenting orders and/or any other orders in relation to the children.
IT IS NOTED that publication of this judgment under the pseudonym Coleman & Hindle & Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: BRC 5431 of 2008
| MS HINDLE |
Applicant mother
And
| MR HINDLE |
Respondent father
And
| MRS COLEMAN |
Second respondent maternal grandmother
And
| DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) |
Third respondent
And
| MR COLEMAN |
Intervenor maternal grandfather
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
INTRODUCTION
The parties have been fighting in court over the children for a long time. There were court applications in 1999 and 2002. From 12 February 2008 the parties have been locked into litigation about the children, in the state courts (going all the way to the High Court); in the Federal Magistrates Court and in this court.
As a result of a protection order under state welfare law, since February 2008 the children have to some extent been insulated from the litigation which has raged between the parties to these proceedings. The extent of that litigation has been fuelled by the single minded efforts of the maternal grandparents, and in particular, the maternal grandmother. The maternal grandparents are serious and experienced self represented litigants. Whilst the maternal grandmothers can point to a history of having some part in the children’s lives, at times an important part, the relationship between the maternal grandparents and the parents is now so dysfunctional that I have to consider whether the best that can be done for the children is to give them some peace and quiet.[1]
[1] Offering children respite from continuous litigation is a notion referred to by Rourke J in H & S (Unreported, Family Court of Australia, 9 October 1997)
I have to decide what final parenting orders should be made in relation to X born in October 1996 (“X”), aged 13 and Y born in February 2001 (“Y”), aged 9 (“the children”) under the Family Law Act 1975 (“FLA”).
The parents, the Independent Children’s Lawyer (“ICL”) and the Department of Communities (Child Safety Services) (“the Department”)[2] all seek an order that the grandparents not file any future application for parenting orders in relation to the children, without the court’s leave (pursuant to s 118 FLA (or alternatively Rule 11.04 Family Law Rules)).
[2] I note that the Queensland Department of Communities (Child Safety Services) had a name-change from Department of Child Safety during the course of the matter. For the purposes of this judgment, all further reference will be made simply to ‘the Department’.
ORDERS SOUGHT
The mother filed an application for final parenting orders on 17 June 2000. The father filed a response, seeking the same orders on 18 August 2008. The maternal grandmother’s Response filed 25 August 2008 seeks vastly different orders. The ICL crystallised the orders he sought during final submissions.
Independent Children's Lawyer
Given that the mother, father and the Department substantially agreed with the orders sought at the end of the hearing by the ICL, I first set out the orders which he sought:
1. That the children [X] born […] October 1996 and [Y] born […] October 2001 (“the children”) live with the mother.
2. That the mother and father have equal parental responsibility for the long term care, welfare and development of the children.
3. That the father spend time with the children at all reasonable times as may be agreed between the father and the mother.
4. That the children shall spend no time with the maternal grandparents.
5. That neither the mother or the father shall consume alcohol to excess or use any illicit drugs whilst the children are in their care nor will they be affected by alcohol or illicit drugs whilst they are spending time with the children.
6. That neither the mother and father shall denigrate or allow any other person to denigrate the mother, father or maternal grandparents to or in the presence of or in the hearing of the children.
7. That the mother and father inform each other of all medical practitioners involved in treating or caring for the children from time to time.
8. That the mother and father be entitled to receive at their own request and expense any and all information relating to the health, education and welfare of the children including but not limited to any details of any illness suffered by the children and treatment required, any school reports, newsletter, notification of parent/teacher interviews, photograph order forms and details of any disciplinary matters. This order shall constitute an authority to each of the children’s medical practitioners, allied health professionals and schools to provide the information outlined in this order.
9. That the mother and father be at liberty to attend any school or extra-curricular activities to which parents are invited including but not limited to parent/teacher interviews, assemblies, concerts and sports days.
10. That in the event of the children becoming seriously ill or injured whilst in the care of the mother or the father, that the parent who has care of the children will notify the other parent as soon as possible and in any event within twenty four hours.
11. That in the event the children are prescribed medication or a particular form of treatment which is required to continue into a period when the other party or parties will be caring for the children, any medication or treatment is to be sent by the mother or father with the children together with a description of the condition for which it is required and the appropriate dosage or method of treatment.
12. That the mother and father inform each other and keep each other informed of any changes to their telephone numbers and addresses within twenty four hours of such change occurring.
At the commencement of the hearing, the ICL indicated that there would be no difficulty with an order that the maternal grandparents could communicate with the children by letters, cards and gifts. In final submissions, however, counsel for the ICL indicated that on reflection, after hearing the evidence, such communication should only be in response to a communication by the children to the maternal grandparents or either of them and should be addressed to the children through the father. The father would then “vet” the communication to ensure that it was appropriate and would not cause distress to the children or the mother or any of them. Both the mother and father oppose this order being made. The Department initially indicated they generally supported the orders sought by the ICL and did not comment when counsel for the mother indicated that they oppose this particular order being made.
Further, in final submissions, counsel for the ICL, having regard to the fact that the maternal grandparents had engaged a private inquiry agent to locate the children’s address and then on 11 November 2008 attended the children’s home, and that during the hearing they had contacted the children’s Parish priest, the ICL sought an additional order to order 4 set out above seeking an injunction in the following terms:
The second respondent, [the maternal grandmother], and the intervener, [the paternal grandfather], are restrained and an injunction issues restraining them, their servants and agents from contacting or attempting to contact the children or either of them at their home, their school, their place or [sic] worship, or their sporting clubs.
The ICL also sought an order that the order that the children’s interests in the proceedings are to be independently represented by the ICL be discharged.
The ICL also joined the mother in making an application for an order under s 118 FLA or alternatively under rule 11.04 Family Law Rules (“FLR”) that required the maternal grandparents to seek the leave of the court before bringing any further parenting proceedings.
Mother
In her Initiating Application, the mother sought the following final orders:
11.1.the children will live with the mother; and
11.2.That the mother and father have sole parenting [sic] responsibility for the day to day care, welfare and development of the children whilst in their care;
11.3.That the mother and father have joint parental responsibility for the long term care, welfare and development of the children;
11.4.That the children spend time with and communicate with their father at all such times as may be agreed to between the parties but failing agreement, each weekend from 5:30pm Friday to 5pm Sunday.
11.5.That the mother will deliver the children to the father’s residence at the commencement of visits and collect them from the father’s residence at the end of visits.
11.6.That this order is an authority for both the mother and the father to obtain any schooling or medical information about the children.
11.7.The mother and the father are both at liberty to attend the children’s school and extra-curricular activities.
11.8.That the mother and the father inform one another of any serious illnesses or medical emergencies relating to the children as soon as practicable.
During final submissions, counsel for the mother adopted the position of the ICL, except that the mother opposed any order that would enable the children to communicate with the maternal grandparents. The mother also wanted order 5 as sought by the ICL expanded so that the reference to consumption of alcohol to excess was better defined so that it was related to the prescribed concentration of alcohol with which an adult could legally drive a motor vehicle.
The mother wished for an additional order that copies of any photographs that were taken by the maternal grandfather from the mother’s laptop computer (whether they be in hard copy or electronic form) be destroyed. The grandfather agreed to that order being made by consent. The grandmother did not agree to that order being made.
As already indicated, the mother also seeks an order under s 118 FLA or in the alternative under Rule 11.04 FLR, that required the maternal grandparents to seek leave before bringing any further parenting proceedings.
Father
The father originally sought exactly the same orders as the mother originally sought with the following addition:
That no contact be allowed between the children and their maternal grandparents.
In final submissions, the father supported the mother’s position. In doing so, he opposed the application by the ICL that he be required to vet communication from the maternal grandparents in circumstances where the children had communicated with them. He indicated, to the court, however, that he would comply with any responsibility that was created by any order against him to deal with written communication from the maternal grandparents.
The Department
The Department was wholly supportive of the application made by the mother at the commencement of the hearing. The Department was also support of the final position taken by the mother as set out above.
Maternal grandparents
The maternal grandmother initially sought final orders in the following terms:
18.1.That the two children communicate with their father once a month and as otherwise arranged between the father and the maternal grandmother for school holidays and special occasions.
18.2.That the two children live with the maternal grandmother, who will have maternal responsibility for their care, welfare and development.
18.3.That the children be allowed supervised time with the mother as agreed by the maternal grandmother.
18.4.Costs.
During the hearing, the maternal grandmother amended her position and along with the maternal grandfather, sought orders in the following terms:
The second respondent and the intervener propose the following orders be made:
1.That the second respondent grandmother and the intervener grandfather have equal shared parental responsibility for [X] born […] October 1996 and [Y] born on […] February 2001 (“the children”) and that a “final parenting order” be made to reflect that situation;
2.That the children live with the second respondent grandmother and the intervener grandfather at [G] in the State of New South Wales.
3.That the children shall spend time with their respective mother and father and with Mr [W], as agreed between the second respondent grandmother and the intervener grandfather, the applicant mother, the first respondent father and Mr [W] on all or any school holidays (if required to do so), and on other occasions as the need arises;
4.That the children shall communicate either directly or indirectly in any manner or by any means available to them with either/both the applicant mother, the first respondent father and with Mr [W];
5.That the court does not make any “final parenting order” in favour of either the applicant mother, the first respondent or of Mr [W], giving either [sic] of them any equal shared or several parental responsibility for either of the children;
6.That the children be actively encouraged by the second respondent grandmother and/or the intervener grandfather, to communicate with both the applicant mother, the first respondent father and with Mr [W], if they so desire, either by written or electronic means (including phone calls and emails);
7.That whilst the children are in the care of either the second respondent grandmother and/or the intervener grandfather, that the applicant mother, the first respondent father or Mr [W] will not be denigrated or defamed in any way whatsoever and likewise that the same would apply to the applicant mother, the first respondent father and Mr [W] not denigrating or defaming either the second respondent or the intervener in the presence of the children;
8.That the applicant mother pays the costs as agreed or assessed of the second respondent grandmother and the intervener grandfather in these proceedings;
9.That the third respondent pay a proportion amount towards the costs of the second respondent grandmother and the intervener grandfather, as agreed or assessed.
In the event that a “final parenting order” is made in favour of the applicant mother, the following orders be made:
In respect to the second respondent grandmother:
10.That an order be made that allows the second respondent grandmother to communicate with either or both children by means of either telephone calls, emails, letters or cards and that gifts can be sent and received by both children on occasions of their birthdays, celebratory occasions and such-like events in their lives;
11.That the second respondent grandmother be allowed to have either or both children visit at her home at [G], NSW, during such times as agreed upon in respect to school holidays, and other occasions where the children may wish to visit her;
12.That no order be made in respect to any section 118 order being sought by the applicant mother.
In respect to the intervener grandfather:
13.That in the event that the second respondent grandmother is not allowed to have any communication either directly or indirectly with the children, that in the alternative, the intervener grandfather be allowed to communicate either directly or indirectly with both children as in the terms mentioned below;
14.That an order be made that allows the intervener grandfather to communicate with either or both children by means of either telephone calls, emails, letters or cards, and that gifts can be sent and received by both children on occasions of their birthdays, celebratory occasions and such-like events in their lives;
15.That the intervener grandfather be allowed to have either or both children visit at the home of the intervener grandfather at [G] NSW or any other place he may reside at in the future;
16.That the intervener would make an undertaking to the court that he will not use any physical actions against either child for the purpose of disciplining either child, nor will the intervener use any language considered to be swearing whilst around either child;
17.Any other or further orders that the court deems fit to make.
The holidays referred to in order 3 as sought would be New South Wales school holidays. Order 3 requires the mother, father, the mother’s partner Mr W, the maternal grandmother and the maternal grandfather to reach agreement.
In relation to order 15 above, the maternal grandfather does not specify in his application for this order how it would be implemented without the maternal grandmother being present, although there was some general discussion as to how an order might be drawn to achieve that result.
DOCUMENTS READ
The following documents were read:
22.1.Initiating application filed by mother 17.6.08
22.2.Response filed by father 18.8.08
22.3.Response filed by grandmother 25.8.08
22.4.Notice of Child Abuse by mother 29.1.09
22.5.Notice of Child Abuse by grandmother 20.4.09
22.6.Mother’s affidavit filed and sworn 11.2.2010
22.7.Mother’s affidavit filed and sworn 26.2.2010
22.8.Mother’s affidavit filed and sworn 5.2.1010
22.9.Father’s affidavit filed and affirmed 16.10.09
22.10.Father’s affidavit filed and sworn 8.2.2010
22.11.Maternal grandmother’s affidavit sworn and filed 15.2.2010 - this is the maternal grandmother’s primary affidavit. It annexes a number of other affidavits that she had previously sworn.
22.12.Maternal grandmother’s affidavit sworn and filed 11.3.2009
22.13.Maternal grandmother’s affidavit sworn 27.04.09 and filed 28.4.2009
22.14.Maternal grandmother’s affidavit sworn and filed 10.11.2009
22.15.Maternal grandmother’s affidavit sworn 5.2.2010
22.16.Maternal grandmother’s affidavit sworn and filed 8.2.2010
22.17.Maternal grandfather’s affidavit filed 8.2.2010
22.18.Maternal grandfather’s affidavit sworn 19.2.10 filed 22.2.10
22.19.Affidavit of Ms F sworn 4.2.10 filed 5.2.10
22.20.Affidavit of Mr M sworn 16.10.10 filed 19.10.2009
22.21.Affidavit of Mr M sworn and filed 2.3.2010
22.22.There were exhibits A to WW. Exhibit A was a paginated bundle of copies from various documents produced under subpoena of 390 pages.
SHORT CHRONOLOGY
The maternal grandfather, Mr Coleman, was born in 1949 (and is aged 60).
The maternal grandmother, Mrs Coleman, was born in 1953 (and is aged 56).
The father, Mr Hindle, was born in 1974 (and is aged 35).
The mother’s older sister, Ms C, was born in 1976.
The mother, Ms Hindle, was born in 1979 (and is aged 30).
The mother’s younger sister, Ms A, was the third child born to the maternal grandparents. I am unaware of Ms A’s birth date.
The parents’ relationship and cohabitation commenced in December 1995.
The first child X was born in October 1996 (he is aged 13 years). The mother was 16 years old when X was born.
In 1998 the mother and father married.
The second child Y was born in February 2001 (he is aged 9 years).
Between 1999 – 2000 the father says he and the mother were separated but living together for the sake of the children.
In March 2001 the parties separated.
The parents reconciled in October 2004.
In September 2005 the parents again separated.
CREDIT
Mother
The mother was not present after the second day of the trial. She had provided through her counsel, a letter from her employer (Exhibit C) which implied that her employment may be in jeopardy given the large number of days that she has already had to take off work arising from multiple pieces of litigation involving her mother. The mother was adequately represented by counsel on the days when the mother was not physically present during the hearing.
The mother presented to me as a woman who had overcome adversity. She is currently in a stable relationship but was realistic about the statistical rate at which relationships break down in Australia. She is currently in stable full time employment and is conscientious about wishing to retain her position. She wished not to be in a position ever again where for financial reasons she was not independently able to provide for her children.
The mother impressed me with the evidence she gave. She was not intimidated by the maternal grandmother’s questioning of her but she was clearly emotionally affected by it and as the questioning proceeded, that effect became more obvious to me. The questioning to which the mother was subjected is covered more thoroughly later in the judgment.
On the whole I found the mother to be an impressive and credible witness.
Father
The father appeared as a self represented litigant. I had the opportunity of observing him in the witness box and also at the bar table.
When he was giving his evidence he gave answers in a straightforward way. At no time did I form the view that he was attempting to avoid a question or that he was answering a question in other than a straightforward manner. He gave me no cause for concern that he wasn’t telling the truth. At one point towards the end of his cross examination by the grandmother he became angry with the line of questioning. He apologised for his reaction to me. His emotional response to the questions being asked was understandable. There is a considerable lack of goodwill between the father and the maternal grandparents. When asking questions, the father did so in an intelligent and relevant way.
Overall I was impressed with his presentation to me during the ten days of the hearing. I have no doubt that the father has smoked marijuana for a considerable period of time and I treat with some caution his pledge to have given up the use of the drug, although I have no doubt that what he says is a statement of his current genuine intentions.
Grandmother
The maternal grandmother gave evidence over two days and I had the opportunity of observing the maternal grandmother over the first nine days of the hearing and hearing her on the last day. She is an intelligent but very difficult woman. At best she could be described as being single minded. The maternal grandmother would not be easily deterred from continuing a line of questioning even after it had been made known to her that that particular course was not advancing her case in any way. On a significant number of occasions the maternal grandmother responded to a successful objection against a question she asked with the comment, “But it is relevant your Honour; I should be allowed to prove my case”.
The letter from ST primary school dated 7 March 2008 (pages 181 through to 183 of Exhibit A) records that the school had concerns about the number of phone calls made by the maternal grandmother to the school. At paragraph 27 the school notes that the maternal grandmother’s phone calls were characterised in the following way:
(a)the information provided to the school by the maternal grandmother not always appearing to be an accurate reflection of current court orders;
(b)the maternal grandmother presenting as aggressive and threatening staff at the school;
(c)the maternal grandmother not being able or willing to accept the school’s position.
The maternal grandmother on a number of occasions sought to explain some of her more outrageous behaviour by reference to her medical condition from time to time or the effect of medication prescribed for her.
She provided a medical certificate from Dr B dated 5 June 2009 which indicated that she had been prescribed Preduicone and had taken it for three days. She had reacted to that medication and it had caused irritability and aggressive behaviour.
On many occasions the maternal grandmother intently focused on minor errors in documentation, rather than focusing upon simply answering the question that she was being asked. For most of her oral evidence, the maternal grandmother did not make concessions easily. A question which should have been answered concisely often triggered a long and rambling statement about matters that were only vaguely connected in some way with the original question.
The maternal grandmother has formulated in her mind a particular version of events. Some things which the maternal grandmother asserts as fact are inherently unbelievable. On other occasions I find that the maternal grandmother was deliberately not telling the truth. I give as examples two pieces of important evidence demonstrating this.
Allegations of Sexual Abuse
The maternal grandmother makes allegations that the mother is a paedophile and that on two occasions she observed the mother in the shower with Y and the mother was playing with his penis.
This issue is dealt with in detail later. It is clear that there are a number of substantial inconsistencies within the maternal grandmother’s evidence on this topic. These inconsistencies substantially damage the maternal grandmother’s credibility. She was not telling the truth when making these allegations.
Events of 11 November 2008
The second important example of the suspect evidence given by the maternal grandmother is about the events that took place whilst she was in court on 11 November 2008 and whilst she was being driven away from the court on that day (to a destination which turned out to be the residence at which the children lived). The grandmother gave some inherently unlikely evidence about what had happened on 11 November 2008.
The maternal grandmother claimed that she had left the Children’s Court on 11 November 2008 before she was aware of what order had been made in those proceedings. She maintained this assertion throughout the proceedings before me. However, the maternal grandfather deposed that the maternal grandmother had come out of the court and told him “she is making orders”. The transcript before the Children’s Court on 11 November 2008 shows the maternal grandmother left after she was told orders were going to be made and what the effect of the orders would be and further, the maternal grandmother told the Magistrate that she would appeal.
Exhibit X is a transcript of the final day of the hearing before the Magistrate in the Children’s Court on 11 November 2008. At page 5 of the transcript, the Magistrate indicated to the maternal grandmother that she had heard enough evidence to make a decision under the Child Protection Act and indicated to her that she was trying to explain. The maternal grandmother interrupted and said:
RESPONDENT: Well, then I will be appealing your decision ----
BENCH: I know that?
RESPONDENT: -----this afternoon, your Honour, because you’ve breached every rule of the Child Protection Act.
The maternal grandmother then asked the court when she could have a copy of the order. As the learned Magistrate attempted to give her reasons, the maternal grandmother interjected by saying “your decision will be overturned”. At that point the Magistrate notes (and it is recorded in the transcript) that the maternal grandmother left the court room.
The transcript demonstrates conclusively that the maternal grandmother’s assertion that she did not know what order had been made was a deliberate lie. She knew very well what order the Magistrate was going to make about the children on that day.
When challenged about this in her oral evidence, the maternal grandmother said that the appeal judge found that she had left before the orders had been made. The judgment of the appeal judge is “annexure EFH7” to the mother’s affidavit filed 5 February 2010. At page 6 of the judgment, paragraph 29, His Honour says the following:
“The Magistrate did not undertake a detailed analysis of the evidence. That was no doubt partly because of the appellant’s interruptions while the Magistrate was endeavouring to deliver her reasons. However, the appellant left the court during the delivery of the Magistrate’s reasons so there was an opportunity to give more extensive reasons without interruptions.”
The statement by the maternal grandmother in her oral evidence that the judgment of the appeal judge found that she had left before the orders were made is not supported by the statement made by His Honour in his judgment.
Upon leaving the Courtroom, the maternal grandmother claimed she was unwell with a headache, did not speak to her husband as she left the court room building, was unaware as to how he knew an order had been made and that she slept in the car. She says she woke up in what she called the cul-de-sac, which was the road in which the children were living. She said she was unaware of the address at which the children were living, notwithstanding her husband had acquired that information through the employment of a private inquiry agent.
I find that the maternal grandmother’s description of what happened in court was unreliable and did not accord with the official record. Her description of what happened after court was inherently unbelievable, particularly when she told me under oath that she was unaware of the address to which her husband was heading after the court event. The maternal grandfather insisted in final submissions his wife did not know where he was going. I cannot accept that is true.
Other unlikely evidence
I discuss below the serious but unsubstantiated claims by the maternal grandmother that the Department fabricated information to cover up what the maternal grandmother asserts to be a fact in her sworn affidavit of 5 February 2010 (at paragraph 10) that the Department refused to acknowledge that the mother had abandoned the children on the evening of 5 March 2008 when she had left both the children in a “drugged state from cannabis”. There is not one scintilla of evidence to support the assertion that the children were in a drugged state from cannabis on 5 March 2008 and there is certainly absolutely no evidence that the Department attempted to cover up anything. I accept Mrs F’s evidence that the Department investigated the circumstances in which the father was charged on 6 March 2008. They were satisfied at that time that the father used small amounts of marijuana for his personal use at times and places when the children were not exposed to that activity.
The maternal grandmother stated in her evidence and in paragraph 18 of her affidavit filed 24 February 2010 that the children had not been to the dentist or doctor since 2008. However, during the course of her cross examination of the mother, the maternal grandmother referred to documents that had been subpoenaed from Medicare and asked the mother questions about the doctors to whom the boys had been taken. Notwithstanding her questioning in relation to why they had been taken to different surgeries, at no time did the maternal grandmother correct her previous evidence.
The examples given above are not the only examples of where the maternal grandmother has made assertions that are totally without any foundation on the evidence before me.
Other evidence by the maternal grandmother was just bizarre. One notion seemingly held by both the maternal grandparents but particularly the maternal grandmother related to inferences to be drawn from Exhibit L which was a photograph of Mr W and a friend visiting from the United Kingdom. The photograph was taken when they were with the children in Sydney. Both men are poking their tongues out at one another whilst obviously posing for the photograph. The maternal grandmother is seriously convinced that either shortly before or shortly after this photograph was taken the men were “tongue kissing”. The maternal grandfather seemed complicit in this attitude given that he had firstly downloaded this photograph from the mother’s laptop computer and arranged for it to be printed and forwarded to the maternal grandmother for the purposes of presenting it at the hearing. There is absolutely no basis for the belief that the men had, or were about to, tongue kiss. The maternal grandmother questioned a number of witnesses about the photograph, including Mr M, without any joy. Mr M correctly expressed the opinion that it appeared to him that the men were simply “having fun”.
The maternal grandmother also tendered another photograph that had been downloaded from the mother’s computer, being a nude photograph of Mr W. It was said that the photograph could have been accessed by the boys as it was asserted that they had access to their mother’s laptop computer. The maternal grandmother described the photograph as pornographic. Whilst it is a nude photograph, and no doubt the boys may have been surprised to find it had they accessed the mother’s photo folder on her laptop, I would not describe the photograph as being pornographic. It might be that the mother could be criticised for not placing some password protection upon this photograph in her laptop but it goes without saying that the maternal grandfather had no permission from the mother to download this photograph from the mother’s computer.
I conclude that I can have little confidence in the maternal grandmother’s credit and I find that where her evidence directly conflicts with the evidence of other witnesses on a particular matter, I prefer the evidence of the other witnesses unless I indicate otherwise.
Grandfather
The inconsistencies in the paternal grandfather’s evidence about the alleged sexual abuse by the mother on Y seriously damage the maternal grandfather’s credit. These serious inconsistencies are dealt with later when I discuss the “shower incidents”.
The maternal grandfather has two charges for dishonesty. He explained these arose out of the same series of defalcations (some part of the defalcation was not picked up when he was first charged). He says (and I find it is inherently unlikely to be true) that when first charged he did not realise that the charges did not include all the individual acts of deceit that had been perpetrated by him.
Untruthful letter written to a doctor
In the hearing before the Children’s Court on 26 August 2008, Dr R gave evidence on behalf of the maternal grandmother. During that evidence part of a letter that the maternal grandfather wrote to Dr R in 1991 was read onto the record.
It was in the following terms:
“Dear Dr [R], from [Mr Coleman], Re: [Mr Coleman] and [Mrs Coleman]. As you will recall on Friday 30 August 1991, I attended a consultation with you around midday. During this consultation I indicated to you that [Mrs Coleman] and I have separated since 24 August 1991 and that I was now living in […]. I also indicated to you that I believed that [Mrs Coleman] was acting in a way which indicated that her actions toward me were irrational and that her conversations to me were also irrational. I believe that I also mentioned that it was my view that the visit that [Mrs Coleman] attended to with Professor [K], at Prince of Wales Psychiatric Unit, was a time that I felt that [Mrs Coleman] was acting quite calm and rational and therefore felt that he had not seen [Mrs Coleman] when she did act distressed and irrational. I believe that I have stated to you that I felt that [Mrs Coleman] was, in my view, still having manic depressive psychosis syndrome.”
The maternal grandfather agreed that he had written such a letter. It was his evidence however that he had lied to Dr R, both in their consultation on 30 August 1991 and in the letter that he had subsequently written Dr R. He asserted that he had made up the allegation that the maternal grandmother had attended with Professor K at Prince of Wales Psychiatric Unit and that he had made up the other matters relating to the maternal grandmother’s behaviour. The maternal grandfather asserts that he wrote the letter to Dr R containing substantial untruths in order to gain the advantage or, as he put it, to “score a point”. Accepting that that is true, it shows a propensity on behalf of the maternal grandfather to say whatever he believes might suit his purpose at any particular time.
There is no indication that the maternal grandfather has any difficulty with his mental status. I accept the submission made by counsel for the ICL that he is of full capacity. It is in those circumstances that I view the letter that he wrote to Dr R and view his evidence that it was he who placed five coloured mice through the mail slot of a solicitor in a premeditated way (involving him acquiring the mice from a pet shop).
I also found as unreliable evidence given by him as to how he said he measured a distance of 101 metres aware from the mother’s home on 11 November 2008 whilst the maternal grandmother was in the motor vehicle with him. He said he did so by using electronic equipment (the trip metre) in his motor vehicle and initially gave the impression that he had done so in a precise way. When it was pointed out to him that he would not have been able to do that without breaching the DVO order that the maternal grandmother not come within 100 metres of the mother’s home, he gave evidence that he had done it by measuring from another point. His explanation in that regard was totally unsatisfactory and I formed the view that he was not telling me the truth at that time.
Grandmother and Grandfather together
The maternal grandmother and the maternal grandfather were not any ordinary self represented litigants. In the mother’s affidavit of 5 February 2010, a total of 33 Applications are listed as being initiated by the Maternal Grandmother since 2008. These Applications relate to contraventions, Child Protection Orders, Domestic Violence Orders, interim and final Orders, and appeals in the Family Court, Queensland District Court, Queensland Court of Appeal, NSW Supreme Court and even the High Court of Australia. In the current proceedings alone (for final orders), the mother records 11 Applications in a Case made against her - all of which were dismissed, and two appeals – both dismissed.
The fact that the grandparents were separate parties provided some forensic advantage to them. They were able to cross examine one another and at times during this process, if one got an answer “wrong” the other would suggest the correct answer. As indicated during the hearing, I place little weight on an answer corrected in this way.
Together, the maternal grandmother and maternal grandfather are a formidable combination. At one point the maternal grandmother described the maternal grandfather as “the voice” and herself as “the hand” (the maternal grandfather was giving his evidence by electronic means and the maternal grandmother was present in court). Although that statement was made in the context of tendering a particular document, it described the way the two of them combined forces to run the litigation. The maternal grandfather was more focused and precise in the words he used. The maternal grandmother relied on her intimate knowledge of the huge volume of paper that has been generated in the litigation concerning the children to find a trigger for her to ask questions on some particular (and usually minute and peripheral) point.
Both the mother and Ms C have made separate allegations about witnessing acts of dishonesty by the maternal grandparents but I make no findings about those matters.
Ms C
Ms C is the eldest daughter of the maternal grandparents. She swore an affidavit for the Children’s Court proceedings on 28 March 2008. That affidavit was relied upon by the mother in these proceedings. Ms C gave evidence by electronic means. I was generally impressed by the way she gave her evidence, although there were some matters of detail where she indicated her memory was not clear.
Ms A
Ms A is the youngest daughter of the maternal grandparents, and the mother’s younger sister. It seemed to me that there was less animosity shown by the maternal grandmother in her questioning of Ms A than in the questioning of her other two daughters. Ms A responded to the questions she was asked in a straight forward manner. She made some concessions when being questioned by the maternal grandmother. Overall I found that she gave her evidence without any apparent guile.
Lack of evidence from Mr W
The mother did not adduce any evidence from her current partner Mr W. In most circumstances that would be a significant gap in her case. No real explanation was offered as to why Mr W was not made available, notwithstanding I made a comment about it the lack of this evidence early in the hearing. At the end of the day however I have sufficient information from Mr M to make some assessment of the children’s relationship with Mr W.
Dr B, Mrs F and Mr M
I find that each of the professionals called as witnesses gave their evidence in an objective manner.
CHRONOLOGY
Throughout the hearing of this case there was extensive questioning in relation to historical matters. Quite different versions of some of these matters were given by the maternal grandparents on the one hand and by the mother and her witnesses on the other. In general terms I accept the versions given by the mother, her witnesses and the father where they conflict with evidence given by the maternal grandparents. I do not intend to make specific findings in relation to some matters.
The number of allegations made in both directions emphasises the totally dysfunctional relationship that exists between the maternal grandmother and the mother. Two examples will suffice.
There is hearsay evidence that Registrar Turner (the docket registrar for this case) received a death threat from a woman she believed to be the maternal grandmother. Registrar Turner said she recognised the maternal grandmother’s voice having had many conversations with her on the telephone.
In response, the maternal grandmother alleges that the mother has an ability to impersonate her voice on the telephone and that the maternal grandmother believes the mother made this telephone call to Registrar Turner in order to discredit the maternal grandmother.
I make no finding, nor draw any inference one way or the other as to whether or not the maternal grandmother made this call, but as I have said, these allegations highlight the dysfunctional relationship between the mother and the maternal grandmother.
The second example relates to an assertion made in the mother’s case that the maternal grandmother made a malicious telephone call from court to a relative to tell a particular person that a young relative was terminally ill when that was not so. The maternal grandmother gave an explanation as to the content of that telephone call putting a far more benign gloss upon the content of the call and her motivation for making it. I make no specific finding as to whether or not the maternal grandmother was acting in a malicious manner when she made this telephone call.
I now set out historical matters in respect of which there is:
88.1.No controversy;
88.2.A difference between the evidence of the mother and her witnesses on the one hand and the evidence of the maternal grandparents on the other hand; and
88.3.Allegations made by the maternal grandparents.
Where there is conflict between the evidence given by the mother and her witnesses and the evidence of the maternal grandparents, I accept the version given by the mother and her witnesses unless I indicate otherwise. In relation to the allegations made by the grandparents, I do not accept those allegations unless I indicate specifically that I do. Any statements that appear uncontroversial should be taken as findings of fact.
The maternal grandfather, Mr Coleman, was born in 1949.
The maternal grandmother, Mrs Coleman, was born in 1953.
The father was born in 1974.
The mother was born in 1979.
Because of notes in the Department’s files about the maternal grandmother’s criminal record, the maternal grandmother was insistent her criminal record be examined. The most serious offense for which the maternal grandmother has been charged arose out of an incident on 24 February 1988 when the maternal grandmother left her home with a tomahawk and went to the offices of her former solicitor, Mr CD, with the tomahawk in her possession.
The grandmother was originally charged with an indictable assault, possession of an offensive implement, and remaining upon inclosed lands. In 1990 the DPP decided not to proceed with the assault charge. The second charge was dismissed at trial. The only offence proven against the maternal grandmother was remaining on and behaving offensively on inclosed lands (the solicitor’s office). The proven offence did not lead to a conviction of the grandmother as the matter was dealt with under s 556A of the Crimes Act. The proved offence was nevertheless appealed by the maternal grandmother. On appeal, the order dismissing the appeal and upholding the Magistrate’s finding was accompanied by an order by the District Court for the destruction of the tomahawk. The maternal grandmother again appealed to the New South Wales Court of Criminal Appeal. That court found the order in relation to the destruction of the tomahawk was ultra vires and could not be severed from the order in relation to the Magistrate’s finding. Consequently, the order under s 556A Crimes Act was quashed along with the order for the destruction of the tomahawk. The result was that the maternal grandmother had neither any finding nor any conviction against her arising out of the incident on 24 February 1988. But the quashing of the finding was on a technicality. I find that the maternal grandmother had gone to her former solicitor’s office with a tomahawk on this occasion.
The maternal grandmother made allegations of rape against her former solicitor. The police investigated the allegation but did not lay any charge. The maternal grandmother brought a civil action against the solicitor. The maternal grandmother told me that the solicitor’s defence was that any act had been consensual. The civil action was resolved without the maternal grandmother receiving any amount by way of compensation but her barrister was paid.
About the time of the incident with Mr CD, a number of coloured mice were placed through the letterbox in the front door of his office. A little time was spent during the hearing exploring who was responsible. The mother and her older sister remembered being in the motor vehicle when their mother carried out this operation. Both the maternal grandfather and the maternal grandmother said the paternal grandfather did it and that he acted alone. I do not reach any concluded view about who actually put the mice through the solicitor’s mail slot but I find that even if the maternal grandmother was not there, she was complicit in it happening.
There has been a departmental involvement with this family (mother/maternal grandmother) since the early 1990s and long before the children were born.
In 1993 the mother, aged 13, left the home. The circumstances surrounding this event differ significantly in the mother’s evidence as compared to the maternal grandmother’s evidence. I discuss what happened in more detail later.
The mother alleges in 1995, at the age of 15, she was removed from the maternal grandparents’ care and stayed with her older sister, Ms C. The maternal grandmother agrees that the mother left home in September 1995 but says it was after being abusive to the grandparents.
At the request of the NSW police, a two year AVO was granted for the protection of the mother against the maternal grandmother in December 1995. The maternal grandmother alleges that this was in response to the mother’s attendance at a police station on 25 September 1995 to complain that the maternal grandparents wouldn’t let her see her friends. She was apparently advised that she could do what she wanted as she was 16, and to file for an AVO in order to get social security money.
In October 1995, after the mother had run away but before the AVO was made, the grandparents applied to obtain information about the mother’s whereabouts from DOCS. The application was described by Young J as “a rather unusual application” and the Application was dismissed.
The maternal grandmother questioned the mother about the contents of a letter written by the mother in September 1995, when she was 15 years of age (Exhibit D) the night after she ran away. It is clear from the letter that the mother was quite depressed at the time. She says in the letter that she has been stoned all day long on marijuana and “I am actually trying to move a bit higher. Pot just isn’t hitting me hard enough. I wish something would just come along and blow me away for ever”. The mother was using marijuana at the time. I accept her evidence that she did not use any harder drugs. The letter ends with “PSSS I hate living at home”. I accept the mother’s evidence that that letter was written half of her lifetime ago and she had now reached a level of maturity at the age of 30 which she did not possess when she was 15. The letter the mother wrote when she was 15 was used against the mother in the 2002 proceedings at St James Local Court when the maternal grandmother obtained a custody order for the children in her favour. I accept the mother’s evidence that she now does not use illicit drugs and in fact hates them. Dr CK gave evidence in the Children’s Court (Exhibit R) that 85 percent of people who use illicit drugs in their teens usually have no cognitive, psychological or psychiatric ramifications of that drug use whatsoever.
Annexure E-9 to the maternal grandmother’s affidavit sworn 30 March 2009 (which is annexure DD to her main affidavit) is an affidavit which the maternal grandmother said was written out by the maternal grandfather but which the maternal grandmother acknowledges she swore on 15 October 1995. It was sworn in the context of Supreme Court proceedings against the NSW Police Service by the maternal grandparents. The affidavit addresses future issues at that time in relation to the mother’s capacity and seems to be responding to an assertion that the maternal grandparents had acted in an abusive manner towards the mother. In that affidavit the maternal grandmother deposes to the fact that:
“My husband (the maternal grandfather) in a disciplinary manner struck [the mother’s] face with his open hand. He told [the mother] to calm herself down, but she did not listen to him. [The mother] looked towards me and called me a number of very abusive names which I found to be very offensive. My husband again struck [the mother’s] face with an open hand in a disciplinary manner.”
Given that the affidavit is in the maternal grandfather’s handwriting, I infer that he behaved in this manner towards the mother. The mother was 15 years old at the time of the incident.
The maternal grandmother says that the mother moved into a house in 1995 with the father, another male and another female.
The parents’ relationship and cohabitation commenced in December 1995. At that time the mother was 16 and the father was 21.
In April 1996 the mother and father resided with the maternal grandparents and the mother’s younger sister. The AVO against the maternal grandparents was removed.
The child X was born in October 1996.
The mother, father and X moved to into their own house in the same suburb in late 1996.
The mother, father and children moved in with the maternal grandparents in 1997 after a fire at their home. They had no other option at that time.
In October 1997 it was X’s 1st birthday. The maternal grandmother alleges the maternal grandparents were not invited to the home of the paternal grandparents for the birthday.
In early 1998 the mother moved to another suburb with the father and X.
In June 1998 the mother and father married.
In June 1998 the maternal grandfather moved in with the mother and father after his separation from the maternal grandmother. The father says the grandmother called their home at all hours. Unable to secure a land-line due to bad credit history, the maternal grandmother used the mobile that the mother had provided her for use in emergencies (regarding younger sister, or great grandmother). The father says the maternal grandmother’s mobile bill for that month was $790 which the mother had to pay.
In October 1998 the maternal grandfather moved back in with the maternal grandmother, followed by the mother and X in February 1999. The maternal grandparents separated once more from February 1999 to October 1999.
The maternal grandmother says that she was not invited to X’s 2nd birthday in October 1998.
The father says the mother, father and X moved to another suburb in March 1999.
The maternal grandmother alleges that the mother and father refused to seek medical attention for X in May 1999. I am unable to find any corroboration for that allegation in any of the evidence I have been given.
In May 1999 the maternal grandmother went to court to gain custody of X asserting the mother was sleeping with other men in front of X. The court case was dismissed. The father says the maternal grandmother admitted to him that the purpose of the proceedings was to ‘get at’ the mother. I take that to mean the maternal grandmother was trying to upset the mother.
The maternal grandmother alleges that on 15 August 1999 the mother and father put X in a shopping trolley and pushed him down a hill in it. The maternal grandmother alleges that X sustained a head injury and that the father failed to seek medical attention for X for 5 days. The father says he was in the children’s seat of a full shopping trolley when it tipped – it was an accident. He said he took X to the hospital and there was no injury. After hearing the evidence of the father, I find that he afforded X adequate attention at this time.
The father says that the maternal grandmother acted inappropriately at X’s 3rd birthday and was asked to leave. She later called the father and told him if he ever did that again she’d have him “bumped off”.
At one of the children’s birthdays, the maternal grandmother conceded that she had not been invited. Her reaction to that was to obtain a dinosaur costume and to attend the parent’s premises uninvited.
The maternal grandmother says the father, mother and child moved in with the maternal grandparents in November 1999.
The maternal grandmother says the maternal grandfather and she separated for a few months once more from February 2000.
On 1 April 2000 the mother and father allege the maternal grandmother kicked the mother in the stomach in front of X stating that she “hated [the mother], that she had always regretted having [the mother] and that she wished she’d had an abortion like [the mother] had, because then she wouldn’t have such a disgusting bitch of a daughter”. The maternal grandfather told me that the maternal grandmother would not have said this as she is a member of anti-abortion movement. The mother and father allege the maternal grandmother cut her own face and alleged to the police that the mother did it. The mother was questioned by the police. The police were satisfied the injuries were self-inflicted by the maternal grandmother after examining the mother’s hands, which were unwashed yet showed no signs of blood, and contacting the mother’s younger sister.
In 2000 the mother, father and X moved to another suburb.
The child Y was born in February 2001. The mother was 21 years old at the time of Y’s birth.
The mother said that after Y’s birth the maternal grandmother started pressuring her to obtain parenting benefits for the maternal grandparents. When the mother refused the allegations began.
The maternal grandmother says the mother suffered from postnatal depression after the birth of Y, and so the maternal grandmother cared for him in March 2001.
The mother says March 2001 was the date of separation between her and the father. The mother says she moved in with the maternal grandparents into a residence in Sydney.
The maternal grandmother says that the maternal grandparents moved to another suburb in February 2002.
The maternal grandmother says the mother was taken to Hospital on 12 April 2002 for fever and headaches. The maternal grandmother says she was contacted by DoCS when staff and patients see that X was wearing the same clothes for 4 days and was hungry. The maternal grandfather collected the mother and the children on 16 April 2002.
The maternal grandmother says that the children attended upon Dr B on 19 April 2002, where she alleges cigarette burn marks are found on X. In oral evidence, Dr B confirmed only one old burn-mark which the father explained as being a result of X accidentally running into him when the father held a cigarette down by his side with contact being made between the cigarette and X’s arm. The maternal grandmother seemed to retain the conviction that there were multiple cigarette burns notwithstanding Dr B’s oral explanation of his notes.
The maternal grandmother says that in August 2002 the maternal grandparents, mother and children move to another suburb.
In October 2002 the maternal grandmother and the mother had an argument about the mother taking the children to Queensland for a holiday. The mother says she then left the home to stay with her elder sister, where she found the maternal grandmother’s sealed application for custody of the children in the pram. She had not otherwise been served with the document.
The maternal grandmother says that the mother moved out of the home on 13 October 2002. The mother and the father say she was kicked out.
On 21 October 2002 an order was made in the Local Court Family Matters Sydney granting primary care of the children to the maternal grandmother. The father was to have “contact” alternate weekends and the mother was to have “contact” subject to the maternal grandmother’s discretion. The father admits he supported the maternal grandmother’s application because he was told by the maternal grandmother on 18 October 2002 that the mother was planning to take the children to Queensland. He now regrets the role he played. The mother says the orders were made in circumstances where she was unable to find accommodation after being kicked out of the maternal grandmother’s house, had no time to prepare her argument, and had no representation or knowledge of the availability of Legal Aid. I accept that at that time, the mother felt that she was unable to resist her mother’s application for custody of the children and consented to that order being made. I accept the mother’s evidence that for a significant period of time she did not believe that she could seek to have final parenting orders changed. That understanding was reinforced by statements made to her by the maternal grandmother from time to time.
In 2002 the maternal grandmother says that she and daughter Ms C were drugged when they unknowingly ate a ‘mole-cake’ (a hash cookie) from Y’s stroller. She alleges that the father said he’d made the cookie for Y. Ms A does remember having a cup of tea with a cookie and feeling ‘a bit strange’. The father denied ever making hash cookies. I find that probably the father was in possession of such cookies, but do not believe he fed them to the children.
On the weekend of 7 to 9 February 2003 the children went to stay with their father. They were taken to one of the father’s friend’s houses and an older boy pushed X, breaking his arm. The maternal grandmother says that no medical attention was sought. The father explained that X could move his arm – so he initially thought it was hurt but not broken. He thought it happened on the Sunday. Doctor B’s notes show that medical attention was sought on Monday 10 February, and that it was verbally reported that they had been to the emergency department. I find that the father did not act inappropriately or without concern for X’s injury.
The mother alleges on 15 February 2003, against the wishes of the parents, the maternal grandmother moved with the children to R, Queensland. The maternal grandmother said she assumed the mother was moving up there too as she came up with the idea initially. The father says the maternal grandmother told both he and the mother that she could do what she wanted because she was the guardian.
On 16 March 2003 Y was seen unsupervised on a jetty and hanging over a balcony.The maternal grandmother accepts that Y had been able to get out of the house when he was a bit over two years of age and was on a jetty over water near the home in which the maternal grandmother was residing with him. The maternal grandmother’s explanation was that she went to the toilet for a short period of time and Y got out. There are also other complaints at that time that Y was hanging over the balcony. The maternal grandparents attempted to lead evidence that would indicate that that was not physically possible but I am not convinced by that evidence.Police attended the property on 16 March 2003 and a police officer was required to remove his gun from the holster when confronted with the maternal grandmother’s aggressive canines. This is detailed later in the judgment. The children were removed from the grandmother.
I accept the mother’s evidence that she received a call on 16 March 2003 from the Department stating that the children will be placed in foster care if she did not come to Queensland. The mother flew to Queensland on 17 March 2003 to retrieve the children. Interviews were undertaken by the Department, where the maternal grandmother was described as ‘hostile’. The mother informed the department that the maternal grandmother had been prescribed lithium for mental health issues. As I discuss elsewhere, there is no evidence the maternal grandmother was ever prescribed lithium, although her neurologist once suggested it to her general practitioner. Based on Dr B’s evidence, my understanding is that Lithium is usually prescribed for bipolar disorder.
The maternal grandmother says the mother moved back to Sydney on 25 April 2003.
The mother alleges in May 2003 she left the home to find accommodation while the maternal grandfather moved in with the maternal grandmother (although separated) to care for the children. The mother says she made 15 to 20 weekend visits to see the children.
The maternal grandmother says that the mother flew to Brisbane on 8 August 2003 to attend the ‘Brisbane ECKA’ and returned to Sydney that night. She says the mother also visited for the long weekend in October 2003, Christmas 2003, and for Y’s 3rd birthday in February 2004. The maternal grandmother had made an allegation that the mother had given Y an unsafe present but I can make no finding about that.
The mother alleges she was unable to find accommodation and moved back in with the maternal grandparents and the children in May 2004. The maternal grandmother said this followed the mother losing her job in Sydney and that the mother only got a job in Queensland in August 2004.
The mother, father and children moved into their own home in December 2004.
The maternal grandmother says arrangements were made in February 2005 for the maternal grandparents to oversee the children getting to school in the morning when it is discovered the mother left them alone from 4am to 8:30am. The parent’s denied that there was inappropriate supervision of the children at that time.
In September 2005 the parents again separated and the children returned with the mother to the home of the maternal grandparents.
The maternal grandmother says that in November 2005 the children were applying WWF wrestling moves to each other when Y (aged 4 ½) attempts to choke X (aged 9). When X apparently turned blue, the maternal grandmother hit Y with a wooden spoon to make him let go.
In about July 2006, the mother developed a relationship with a Mr O. The maternal grandmother agreed that the children could move with the mother into a new household with Mr O. The maternal grandmother makes various allegations about the period from July to October 2006: that the mother and Mr O would fight constantly, and the mother would not give the children breakfast and lunch money. In October 2006 the mother moved out of Mr O’s home. The maternal grandmother alleged that this was after an incident where the mother threatened Mr O with some scissors. The maternal grandmother failed to put this allegation to the mother in her questions. When I raised that with the maternal grandmother she said she hadn’t done it because she knew her daughter would ‘just deny it’. On that basis I am unable to make any finding about the circumstances in which the mother and Mr O separated in October 2006.
The maternal grandmother says that in February 2007 Y was reprimanded due to his practising of wrestling moves on class-mates. She also alleges that the mother told Y that the police would take him to gaol.
The maternal grandmother says that in March 2007 X was placed onto a behavioural program when he injured other children with his yellow belt karate moves. The maternal grandmother says X was just coming to the aid of another child being bullied but the mother did not support X in this claim and instead left him in the behavioural program.
The maternal grandmother alleges that when the maternal grandfather went to Sydney to assist his other daughter in June 2007, the mother refused to help with the parenting of the children, instead getting a job with long hours with a friend and forcing the unlicensed maternal grandmother to drive her to the ferry stop. The mother apparently lost this job in July when she made accusations about the shop-owner’s daughter.
The maternal grandmother alleges that she witnessed the mother playing with Y’s penis in the shower in July 2007. This incident is dealt with in detail later in the judgment.
The maternal grandmother alleges that on 11 August 2007 the mother told the children to jump from the moving car because the accelerator was stuck. There was nothing found to be wrong with the car. The father’s version of the incident is that the brakes on the maternal grandfather’s car were broken and it was heading towards water, and the mother told the boys to jump as her ‘first instinct’.
The mother alleges in October 2007 she removed the children from the maternal grandmother and resided with the maternal grandfather. The maternal grandmother then moved in with the mother at the request of the maternal grandfather. This was supposed to be a temporary arrangement of six weeks.
The maternal grandmother says that Y was sent home on 22 November 2008 when he got lead from a pencil lodged in his ear. The mother refused to take him to hospital. The maternal grandfather took him to hospital the next day when the school called. I am unable to find that the grandparent’s accusation that the mother has acted inappropriately was made out.
The maternal grandfather alleges that Mr W, the mother’s current partner arrived from the UK between October 2007 and February 2008 and resided at the maternal grandparents’ house. He says this was only intended to be a temporary arrangement.
The maternal grandparents, the children, and X’s friend Z stayed with the mother’s sister Ms C for the Christmas period of 2007/2008. The maternal grandmother says: Z was forced upon them by the mother; the friend Z was a bad influence on X and the two boys were ill-behaved; and the mother’s sister Ms C apparently threatened she would ‘kill them’ due to their behaviour. Ms C denies this and says that she asked the grandparents to leave because of their own abusive behaviour.
The maternal grandmother makes various allegations relating to January 2008: that the mother told the children the grandparents didn’t love them, but loved the money they received; that the mother told the children they didn’t have to do what the grandfather said; that the mother would parade around in front of X with no clothes on; that the mother would let the children watch inappropriate television; that the mother would threaten the children that they would not see their father if they did not say they loved her; that the mother forced X to enter the bathroom to fetch and return her toothbrush when the grandmother was showering.
The maternal grandmother says that X was throwing up all night on 4 February 2008 and I accept that this was so. The maternal grandmother also alleged that the mother refused to look after X at this time and I am unable to make a finding about that allegation.
Significant events took place on 5 and 6 February 2008 which are discussed in greater detail below. The Department was contacted on 6 February 2008. The mother also applied for a Domestic Violence Order on this day. Interim orders were made and the final hearing was concluded in the mother’s favour in November 2008.
On 12 February 2008 the Department issued a Temporary Assessment Order (“TAO”) based upon concerns the Department had in respect of the children’s immediate safety, having carried out interviews. Also on this day a domestic violence order naming the maternal grandmother as the respondent and the mother as the aggrieved was made, with the children named as associates. The maternal grandmother filed an Application for Recovery Order on this day.
The maternal grandmother contacted the Queensland Police on 5 March 2008 to make allegations that the mother sexually abused Y in the shower. These allegations are explored later in the judgment.
On 13 February 2008 the Department notified the maternal grandmother of the Temporary Assessment Order.
The application for Recovery Order was dealt with on an ex parte basis on 14 February 2008 and FM Wilson made that order. The order was ultra vires given that an order under a state welfare law was in place at that time.
On 19 February 2008 the maternal grandparents took the children from their school in the company of the Australian Federal Police pursuant to the Recovery Order. The maternal grandfather said the children were pleased to see them and relieved to be going home with them. The maternal grandmother alleges the children said how much they loved the grandparents, that it was hard living with their mum and her boyfriend, and that it was their Dad’s fault that the grandmother had to use the wooden spoon.
At 4pm on 19 February, on the advice of the Department of Child Safety, the mother recovered the children from the maternal grandparents pursuant to the Temporary Assessment Order. The maternal grandfather said this was done forcibly as the children did not want to go. The mother says she was not acting with force but the maternal grandparents were physically pushing her. The children were placed in the care of the parents under s 82(2) of the Child Protection Act 1999. The maternal grandfather says he served documents filed 13 February 2008 on the mother on this occasion. The mother says he threw something at her car but she is not sure what. The mother drove straight to the police station. During that time she received a text message from her brother-in-law saying that the AFP had a warrant for her arrest. The mother and the boys stayed at the police station until it was confirmed that this was not so.
At the police station the children reported that the maternal grandmother hit them with a wooden spoon. The mother says this happened on 1 January 2008. The maternal grandmother led evidence at the hearing that this was not possible because she was travelling on that day. It is possible that the children got the date wrong. I accept however the general assertions as to the physical discipline they experienced at the hands of the maternal grandparents. The maternal grandmother did admit that on one occasion she used a wooden spoon. She asserted that she did not own a wooden spoon, but found one on the floor at her residence. I find that evidence inherently unbelievable.
The Department was granted a Court Assessment Order (“CAO”) on 22 February 2008, to continue until 21 March 2008. Under that order, the children remained in the temporary custody of the Chief Executive, and were placed with the father. The maternal grandmother was to have no contact. The subsequent Departmental Investigation and Assessment dated 13 March 2008 concluded that the children were ‘in need of protection’ when under the maternal grandmother’s care, and the assessment of 8 April 2008 said the children were ‘not in need of protection’ when under the parents’ care.
There was a further mention of the domestic violence proceedings on 26 February 2010 and interim orders were made pending a hearing.
The maternal grandparents employed a private inquiry agent to ascertain the whereabouts of the children. During the hearing the maternal grandfather claimed privilege in relation to communications between he and the private inquiry agent.
On 5 March 2008, the maternal grandmother, apparently for the first time, made sexual abuse allegations against the mother to the police.
Also, on 5 March 2008 an anonymous caller, giving false particulars and purporting to be from the same residential units in which the father lived, made a complaint about the activities going on inside that household. On the following day, 6 March 2008, the police attended. At that time the father was charged in relation to having marijuana and implements for the use of marijuana in his possession. The mother and Mr W were at a concert at the time. This event is described more fully elsewhere.
The maternal grandfather admits to visiting the children at their school on three or four occasions between March and June 2008. He submits that the children were not fearful, and expressed a desire to live with the maternal grandparents. He suggests that the parents had left the children unattended in the school grounds at 7:45 when playground supervision only began at 8:15. The mother denies this.
The mother and Mr W moved out of the father’s home in April 2008.
On 19 May 2008 the Department obtained an interim Child Protection Order and the children are ordered to remain in their mother’s care.
On 17 June 2008 the mother filed an initiating application in the Federal Magistrates Court seeking orders that the children live with her and spend time with the father. That order is supported by the Department.
The application is listed before Federal Magistrate Baumann on 22 July 2008. The mother alleges the maternal grandmother attended by telephone without first obtaining leave.
On 18 August 2008 the father files a Response agreeing with the mother’s application and seeking a no contact order with the grandmother.
On 25 August 2008 the maternal grandmother files a Response seeking the children live with her and have supervised time with the mother and father.
On 10 September 2008 Federal Magistrate Wilson granted leave to all parties to inspect documents produced under subpoena.
On 15 October 2008 Federal Magistrate Wilson made orders transferring the matter to the Family Court of Australia and appointing an ICL.
The maternal grandmother files a response on 5 November 2008.
On 11 November 2008 a Child Protection Order was made in the Children’s Court at Brisbane for a period of twelve months granting short term guardianship to the Chief Executive. The maternal grandmother was in court when the order was made. It is the position of the maternal grandfather that on that day he had in mind s 38 of the Acts Interpretation Act (Qld) which he interpreted as meaning that the order did not become effective until 12 November. The maternal grandfather misunderstood this section of this Act, which refers to a period of time in an Act, not an Order. Moreover, there were still interim orders that would have applied had the grandfather’s interpretation been correct. It is curious that a self-represented litigant would have in their mind a relatively obscure section of the Acts Interpretation Act when making what was in my view, a fairly spontaneous decision to drive to the home where the children were. The reference to the Acts Interpretation Act demonstrates the highly litigious attitude of the maternal grandfather, who I find on many occasions has acted as an agent for the maternal grandmother.
On 11 November 2008 the grandparents attended the house of the mother and the children. There are significant differences in the accounts given by the maternal grandparents and the mother. These are discussed in detail in the next section.
On 17 November 2008 a DVO was granted on a final basis in favour of the mother and the children against the maternal grandmother for a period of five years (I note that the actual order seems to indicate that it expires in November 2014 which would mean it is a six year order. It appears clear from paragraph 7 of the decision of the learned Magistrate that she intended that the order be in place for a period of five years). Additional persons are named on that document including the father and Mr W as persons who have protection under that order. The maternal grandmother’s cross-application for a domestic violence order was dismissed.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents
The investigation and assessment conducted by Ms SP CSO dated 8 April 2008 (annexure H to Ms F’s affidavit) makes it clear that both parents have worked and engaged with the Department and have addressed all concerns raised in relation to the children. The Department overwhelmingly support the parents and agreed to a cessation of the State welfare order in November 2009.
Again, this subsection relates only to parents but consideration of these matters is able to be made under subsection 60CC(3)(m) FLA. I accept in the past the maternal grandparents have made sacrifices for the children and at times have been the sole carers of the children. For reasons already stated, I am of the view that the maternal grandparents, notwithstanding their declaration that they are only pursuing this litigation on behalf of the children, are actually at this time not focusing on what is in the children’s best interests and as such are not demonstrating appropriate attitudes to the children and to the responsibilities of “parenthood”.
The mother asserts that the maternal grandmother has on occasions told the boys that the mother was a slut and that she had killed babies. The reference to killing babies arises out of the assertion that during her adolescence the mother had more than one abortion. The maternal grandmother is Roman Catholic and I take it from some of the questions asked during the hearing, has strong views about right to life issues. I accept the mother’s assertion that the maternal grandmother has said things of a derogatory nature to the children about their mother.
The maternal grandmother asserted during the hearing that the mother wanted the children to give evidence in court. The mother denied this and I accept that the mother at no time wanted the children to give evidence in a court room and that her understanding was that the children would be interviewed by appropriately trained professionals and that evidence about their views would be given by appropriate trained professionals.
Any family violence involving the child or a member of the child’s family
I accept the mother’s evidence that she witnessed physical family violence between her parents when she was growing up.
Ms C talked about her mother’s behaviour in the household while she was growing up. She gave evidence that her mother would have very significant mood swings. She said her mother would scream at her and she would not know what she had done wrong and that that behaviour by her mother was something that regularly happened.
Ms C generally corroborates the mother’s assertions of the use of physical discipline in the household. She remembers her father first scaring her with his belt by making that flapping noise before he hit her with it. She remembers a fight between her parents which involved a knife and she thought an ambulance being called but it was more likely the police.
The maternal grandfather conceded that there were regular loud arguments between Ms C and her mother. Ms C had an abortion when she was about 16 years of age and received a belting in the kitchen because of it. She remembers getting hit up against the fridge. She left home and went to a youth hostel. The maternal grandmother sat outside the youth hostel in a motor vehicle holding her hand on the horn. Whilst the maternal grandfather denied that a horn was used outside the youth hostel I am prepared to accept Ms C’s evidence in relation to that. Ms C obtained a domestic violence order against her mother at this time.
I have already referred to the use of physical discipline by particularly the maternal grandfather, which I find was abusive.
The mother admitted that she used physical discipline in relation to the children to some extent when they were younger but denied it was anything near like the level of discipline used by the maternal grandparents.
There was also some evidence that there was an altercation between the maternal grandfather and the father. This led to an apprehended violence order being made in the grandfather’s favour. The incident was not sufficiently serious for the father to have been charged with assault.
Family violence orders
As already mentioned, after proceedings which the maternal grandmother contested, a final Family Violence Order was made against her in November 2008. An appeal against that order by the maternal grandparents was dismissed by the District Court in October 2009. A copy of the protection order is BFH5 to the mother’s affidavit sworn 5 February 2010. The persons protected by the order are the mother, the father, Mr W and the two children.
The mother did not take out domestic violence proceedings against the grandfather because although she believes that he will do the maternal grandmother’s bidding, he is not himself such a threat of interference into her life.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is trite to say that any further proceedings would be detrimental to the best interests of the children. It is also probable, given the attitude and track record of the maternal grandparents, that they will not easily accept an order which does not allow some face to face time with the children. There have been an inordinate number of applications in this matter and the child protection matter (33) as referred to in the affidavit of the mother.
This particular matter is not a weighty matter. I have been asked to consider making an order under s 118 FLA and I will deal with that application later in my reasons.
Conclusion about best interests
The maternal grandmother (assisted by the maternal grandfather) has undertaken a systematic approach analysing peripheral issues that have little or no probative value to the matters that guide my decision. The maternal grandmother is focused on obtaining vindication of her position, exoneration from any “blame” as to the circumstances in which her family now finds itself, and a wish that what she perceives is the Department’s heavy handed attitude in February 2008 be called to account.
The most damaging evidence against the maternal grandmother is the false allegations that she has made against her daughter in relation to her daughter sexually abusing Y.
I find the children must be protected from the conflict from which they could suffer psychologically in the future. An order which requires the children to spend time in both households would expose the children to ongoing conflict between the adults, would be abusive and the children must be protected from it.
It would not be in the interests of the children to make orders that did not accord with their wishes. I have referred above to the practical difficulty of implementing any order that X see his grandparents as the implementation of that order would require X to be physically taken to see his grandparents. I have also referred to the duress that Y would feel if an order was made that was contrary to his wishes.
Proposed Orders
The mother does not ever envisage having contact with her mother again. The mother opposes, as does the father, being put in a position where they have to deal with correspondence that is being sent from the maternal grandparents. I find that the relationship between the parents and the maternal grandparents is so poisonous that the order in relation to letters and cards suggested by the ICL (which is a continuation of the interim order made by Murphy J), is not an appropriate order to make in the children’s best interests on a final basis. I have concluded that the children are entitled to some peace and quiet and I, with some reluctance, also conclude in the circumstances of this case that that can best be achieved by agreeing with the wishes of the mother and father. The suggested condition would trigger the ability of the maternal grandparents to send that correspondence if the children contact the maternal grandparents. In my view that condition creates a temptation for the maternal grandparents to attempt to engineer some circumstance which would allow them to say that the children had contacted or attempted to contact them. The parents would then be in a position of dealing with the correspondence from the maternal grandparents, with the possibility of the maternal grandparents asserting that the parents had not dealt with the correspondence in an appropriate way. It is best to eliminate those types of risks in the circumstances of this case. The children, if they choose to do so, when they are adults, will be free to make contact with the maternal grandparents if they then choose.
The mother sought an order that all hard copies and electronic copies of photographs downloaded by the maternal grandparents from her computer be destroyed by the maternal grandparents and it is appropriate that that order be made.
PARENTAL RESPONSIBILITY
The maternal grandparents seek an order for equal shared parental responsibility in their favour (between the two of them). The mother and father seek an order for equal shared parental responsibility (between the two of them).
Section 61C FLA provides that each of the parents of a child who is not 18 has parental responsibility for the child. Section 61DA FLA provides that 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.
Section 61DA(4) provides that 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.
In the event that the court makes an order for equal shared parental responsibility in favour of the parents, then s 65DAA FLA provides that I must consider equal time or in the alternative substantial and significant time. Given that the parents make a joint application as to the time the children should be with each of them, then I do not have to consider that issue any further.
This case is in fact a relocation case. The High Court in MRR v GR — (2010) 263 ALR 368 has recently commented upon the approach to be taken in relocation cases between parents. The High Court indicated that proper consideration has to be given to s 65DAA and in particularly s 65DAA(5) FLA.
That section does not apply in this circumstance because the parties seeking the relocation are grandparents. The matters however to be taken into account are still instructive and at this point I record the following:
458.1.The parties live 900 kilometres apart.
458.2.The current and future capacity of the parents on the one hand and the grandparents on the other hand to implement an arrangement for the children spending substantial and significant time with the other I find to be negligible.
458.3.The capacity of the parents on the one hand and the maternal grandparents on the other hand to communicate with each other and resolve difficulties that might arise and implement some arrangement where the children move from one household to another I find to be negligible.
458.4.I find that the impact of any arrangement, whereby the children move between the two households, would, in the current circumstances, be devastating for the children.
SECTION 118(1) FAMILY LAW ACT
Section 118(1)(a) to (c) of the FLA provides:-
The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:-
(a)dismiss the proceedings;
(b)make such order as to costs as the court considers just; and
(c)if the court considers appropriate, on the application of a party to the proceedings - order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
The word “proceedings” is defined in s 4 FLA as follows:
Proceedings means a proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connection with a proceeding.
Consequently, s 118(1)(c) FLA is an option if the “cross proceedings” of the maternal grandparents are frivolous or vexatious and those proceedings are dismissed.
The aim of the section is to prevent the initiation or maintenance of proceedings that are an abuse of the processes of the Court. The words “frivolous” and “vexatious” are not defined by the FLA.
An Explanatory Guide (accompanying but not forming part of the FLR) provides the following explanation of the words “frivolous” and “vexatious”:
frivolous— not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless (see also vexatious).”
“vexatious, in relation to an application — having no reasonable prospect of success (see Section 118 of the Act for the court’s powers in relation to a vexatious case; see also frivolous).
It can be seen, the words “frivolous” and “vexatious” are related in that, by definition, a frivolous application is a vexatious application.
Mullane J in Darwin and Darwin [2008] FamCA 588 said:-
16 “Frivolous” is defined by the Macquarie Dictionary as “of little or no weight, worth or importance”, “Not worthy of serious notice”, or “characterised by lack of seriousness or sense”.
17 The mother’s case is not that the father’s application is frivolous. From the evidence it appears she relies on the ground that it is “vexatious”.
18 “Vexatious” is defined by the Macquarie Dictionary as “something that vexes” and “vex” is defined as “to irritate, annoy, provoke, make angry”, “to torment”, “plague, worry”, and in the sense use of legal actions is defined as “instituted without sufficient grounds, and serving only to cause annoyance”.
In Sinclair-Small & Sinclair [2008] FamCA 1056 Dawe J generalised by saying:-
27 It is not frivolous of a father to seek to spend time with his children.
Her Honour went on to consider whether, in that case, the application was vexatious and found that it was not.
In Attorney General (NSW)v Wentworth (1988) 14 NSWLR 481, at 491, Roden J set out a test for determining whether proceedings are vexatious, in the context of s84 of the Supreme Court Act 1970 (NSW), as it then was. This test has been widely cited and applied (see for example, Mullane J in Darwin and Darwin [2008] FamCA 588 at paragraph 20). Roden J set out the test as follows:
I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
4. In order to fall within the terms of s 84:
(a)proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);
(b)the proceedings must have been “habitually and persistently” instituted by the litigant.
In relation to paragraph 4(a), s 84 Supreme Court Act 1970 (set out earlier) contains a condition precedent that a person has to have “habitually and persistently and without reasonable ground instituted vexatious legal proceedings”. That is not a requirement of s 118(1) FLA. The fact that a current proceeding is vexatious is sufficient.
It might correctly be argued that the maternal grandparent’s application is not frivolous in that it cannot be said that the application is of “little importance” or “not worthy of serious notice”.
However, I find, for reasons already discussed and in the circumstances of this case, that the continuation of this litigation is not in the best interests of the children and irrespective of the motive, the maternal grandparent’s application is so obviously untenable or manifestly groundless as to be utterly hopeless. In the alternative I have also found that the maternal grandparent’s motivation for filing this application is for the collateral purpose of rerunning litigation which was initially heard in the Children’s Court and then went through three (or possibly four) layers of appeal culminating in the refusal of a special leave application by the High Court. I find the application by the maternal grandparents has been instituted and continued without reasonable ground.
Consequently, both tests 2 and 3 as stated by Roden J are satisfied in this case and I find that the proceedings the maternal grandparents have maintained and pressed before me are vexatious and that an order dismissing the proceedings pursuant to s 118(1)(a) FLA should be made.
Having determined that the current applications by the maternal grandparents satisfy the requirements of s 118(1)(a), all parties apart from the grandparents seek that I make an order under s 118(1)(c) against the maternal grandparents.
I accept what Whealy J said in Attorney General in and for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 (10 December 2003) that:
6. ....it is permissible to have regard to proceedings in other courts where, for example, those proceedings have authoritatively resolved the particular issue against the person instituting the proceedings. (Re Cameron (1996) 2 QDR 218 at 224; Ramsey v Skyring (1999) 164 ALR 378 at 389-390). Those proceedings themselves, even though they be manifestly hopeless and plainly vexatious, cannot however be taken into account as litigation which itself satisfies the pre-conditions. It may nonetheless be permissible to consider the nature and extent of that other litigation as relevant to the issue of discretion.
As Cronin J pointed out in Lindberg & Scott, an order under s 118 does not restrict the freedom of the grandparents to access the court. Rather, it means that the mother and father and the Department do not have to be involved in any further substantive litigation between the grandparents and themselves relating to the children until the court gives the grandparents leave to institute further proceedings.
When exercising the discretion pursuant to s 118(1)(c) FLA, I am able to take into account the history of previous unsuccessful litigation.
As already mentioned, the grandparents challenged the result in the Children’s Court all the way to the High Court and did so unsuccessfully. Paragraph 103 of the mother’s affidavit sworn 5 February 2010 sets out the applications or hearings the maternal grandmother has been involved in since February 2008 relating to the children and family violence in various courts. There were 33 applications or appeals listed. Apart from the maternal grandfather giving leave to intervene and the maternal grandmother being successful in resisting two applications under s 118 FLA, the maternal grandmother has been unsuccessful in every other application.
Part of that number of 33 have been numerous interlocutory applications in this matter. The extensive list is set out in a printout from the Family Court’s portal (Exhibit UU).
It is not controversial that this matter came before Murphy J for the first time as the Magellan Judge on 29 January 2009.
On 11 March 2009, the grandmother filed an application which sought a stay of the proceedings and for suppression orders to be made against all parties preventing the release and use of any medical documentation pertaining to her. She also asked for an order that the interviews arranged by Mr M (for the preparation of a family report) be delayed.
On 17 March 2009, Murphy J dismissed the maternal grandmother’s application. In doing so, he made orders requiring the grandparents to attend upon Mr M to participate in interviews for the purposes of preparing a family report. Murphy J also made directions allowing the maternal grandmother to “provide to Mr [M[ ahead of any interview….such documentation as she considers appropriate….so as to give to Mr [M] a picture of those medical and other matters which she considers relevant and accurate”. The parties were also given leave to inspect all documents produced pursuant to subpoena.
On 29 April 2009 Murphy J dismissed two of the maternal grandmother’s applications. The maternal grandmother unsuccessfully appealed Murphy J’s dismissals of her applications and the Full Court dismissed that appeal on 5 March 2010.
Justice Warnick on 29 September 2009 dismissed five orders sought in an application by the maternal grandmother for an extension of time to an appeal and ordered that the maternal grandmother pay the costs of and incidental to the father’s, the Department’s and the ICL’s costs. I was told that His Honour foreshadowed that it might be difficult to enforce such an order. I was also informed that, although it is not noted on the orders (Exhibit TT) that an application was made pursuant to s 118 FLA against the maternal grandmother and His Honour declined to make that order.
On 9 October 2009 Murphy J dismissed two further applications by the maternal grandmother. Those applications related to X giving evidence in the proceedings. The maternal grandmother did not file an appeal from the orders dismissing those two further applications by her.
On 22 and 23 October 2009, Murphy J again determined a number of applications made by the parties. The maternal grandmother appealed those orders and the Full Court also dismissed that appeal on 5 March 2010.
On 11 November 2009, Murphy J heard the maternal grandmother’s application for a stay of his earlier orders made 23 October 2009. That application was dismissed. An order was also made on that day that a transcript be provided to the parties at no cost.
On 12 November 2009 the grandmother made an application to the Full Court to adduce fresh and/or new evidence to be adduced in the proceedings. That application was also dismissed before the Full Court.
There have been three orders for costs made against either of the maternal grandparents or both of them.
There have been two previous unsuccessful applications pursuant to s118 FLA brought against the maternal grandmother. I have mentioned the one brought before Warnick J on the occasion of the maternal grandmother’s unsuccessful application to appeal out of time against procedural orders. The other was brought before Murphy J and is the subject of a discussion in the Full Court’s decision delivered 5 March 2010 at paragraphs 134 through to 140.
As Murphy J pointed out, when dealing with the mother’s application that was filed 6 October 2009 pursuant to s 118 FLA, an application under this section is an application of a various serious nature, given that it is an order restricting on an unfettered basis, access to courts in this country.
It is important to note that the prior application pursuant to s 118 FLA before Murphy J was brought in relation to an interlocutory application in circumstances where there had yet to be an assessment and whether or not the substantive proceedings brought by the maternal grandparents in relation to the children could in fact be found to be proceedings which attracted the provision of the section. Similarly, although I have only a scant account of it, the application before Warnick J for leave to appeal out of time, was dealt with by Warnick J in similar circumstances (that is, in the context of considering an interlocutory application). I do not by these comments mean to infer that s 118 FLA could not in a particular case be attracted in the context of an interlocutory application but simply note on two occasions in this case it was not.
The hearing of this matter was listed for seven days but took ten days. The reason for the time to conduct the hearing related to:
491.1.The maternal grandmother’s focus on peripheral issues relating mainly to what the maternal grandmother perceived to be injustices perpetrated upon her by, particularly the Department of Communities and the police.
491.2.The inability of the maternal grandmother to focus on what was in the boys’ best interests today.
The amended Notice of Abuse complains about 15 people. This notice encapsulates in one short document, the inherent problem the maternal grandmother poses. She has been able to generate a litany of mostly irrelevant complaints against multiple parties; most of which she cannot substantiate.
I have commented earlier about the abusive nature of the maternal grandmother’s questioning of the mother, typifying their dysfunctional relationship.
It is unclear to me as to how much the maternal grandfather has been involved in the actual history of appeals from the interlocutory applications. He did not become an intervener in these proceedings until an order was made as a result of an Application he filed on 24 September 2009.
I form the strong conclusion however that he does not act independently of the maternal grandmother in these proceedings. At the end of the day their final applications for joint applications (although I acknowledge that the maternal grandfather sought orders in his own right should the joint orders be not successful). The submissions that the grandparents made under s 118 FLA were joint submissions. It is appropriate in the circumstances when exercising discretion in this matter, to take into account the behaviour of the maternal grandmother when assessing the future position of the maternal grandfather in respect of the s 118 FLA application.
The maternal grandfather indicated that he was well aware of the terms of s 60CA and s 60CC FLA. At the commencement of the trial I had been provided with an outline of argument by the mother that set out the mother’s arguments under the relevant headings under s 60CC FLA. Notwithstanding a number of occasions when I asked the grandparents to focus on those matters, there was in fact little focus by the grandparents during the hearing of the evidence on the matters that I need to consider when making a decision about the best interests of the children.
Both grandparents have been and are serious litigants in other courts.
The maternal grandmother has been involved in litigation since 1988 (against a Bank, a large financial services company, the State of Queensland, the child protection proceedings, litigation with landlords - to name some of the actions in which she has been involved). There have been two further occasions (other than the litigation involving X and Y) where either the maternal grandmother or maternal grandfather have pursued litigation all the way to the High Court.
I have mentioned one example of how the maternal grandparents can interpret court process to their own advantage. It was put to both the grandparents that the order made on 11 November 2008 excluded them from going to the home of the mother and the children. The maternal grandfather quoted s38 of the Acts Interpretation Act to argue that he was free to do so given that in his view that part of the Act Interpretation Act means that the order that had been made on 11 November 2008 did not come into effect until 12 November 2008. I have already indicated that the maternal grandfather has misinterpreted what this section of the Acts Interpretation Act means (it only applies to time limits in legislation, not to Court Orders).
As counsel for the ICL pointed out during submissions, if it was the case that the Queensland statute provided that an order made on one day did not come into effect until the next day, then in the circumstances of this case the temporary order that was discharged at the same time the final order was made would remain in place until the final order came into force. There is no logic in the assertion made during the trial that a legal lacuna had created a window of opportunity which allowed the maternal grandparents the ability to visit the children.
In my view it is likely that any future litigation between the parties in relation to the children will only be to the detriment of the children. I find that it will place increased and undue pressure on the mother and consequently of her ability to function in a normal manner as parent of the children. To a lesser degree it will place similar pressures upon the father. X is also at an inquisitive age and it is unrealistic to expect that, notwithstanding the parent’s best endeavours to keep the existence of future litigation from him, he will come to know about it to some degree, and that will unsettle and distress him.
As I have said previously, there are some cases where the best thing you can do for the children is to give them a bit of peace and quiet. This is one of those cases.
While the best interests of the children are not a paramount consideration under s 118 of the FLA, they are a weighty matter.
For all these reasons, I find that it is appropriate to make an order under s 118(1)(c) of the FLA against the maternal grandparents.
The mother, supported by the father, the ICL and the Department, in the alternative made an application under rule 11.04 FLR. That rule is slightly different in wording from s 118(1) FLA. I would have also made an order under that rule had I not found that an order under s 118 FLA was appropriate in the circumstances of this case.
Consistent with the reasons already expressed whilst s 118 explicitly provides that leave has to be obtained before the filing of any application for parenting orders, the service of that application upon the mother and father and the requirement that they attend court to oppose any leave application will itself cause distress. Consequently I intend, pursuant to s 114(3) FLA to restrain the maternal grandparents from serving any application for leave to file further proceedings upon any of the parties to these proceedings, unless the court first allows that to happen. The intent is that before the parties in these proceedings are engaged in any way in any future process, the Court on an ex parte basis would assess whether or not the papers seeking leave to file proceedings should be served upon the parties to the proceedings. The maternal grandparents, if making any future Application for Leave, will need to first, on an ex-parte basis, satisfy the court that the Application for Leave to institute proceedings should be served upon the parties. Alternatively, it may be that given the circumstances and history of this case, the Application for Leave could be summarily dismissed without further worrying the parties to this litigation, particularly the parents of the children.
I certify that the preceding five hundred and six (506) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 22 April 2010
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