Coleman and Hindle and Ors
[2011] FamCAFC 8
•28 January 2011
Family Court of Australia
| COLEMAN & HINDLE & ORS | [2011] FamCAFC 8 |
| FAMILY LAW – APPEAL – From a Judge of the Family Court of Australia – CHILDREN – Best interests of the child – Where the maternal grandmother sought to challenge the findings of fact and the orders made by the trial Judge on the basis that the evidence presented by the parents, the Independent Children’s Lawyer and the Department of Communities (QLD) was fabricated – Where the maternal grandmother asserted that the trial Judge had demonstrated both actual and perceived bias through his conduct of the proceedings in accepting the evidence of the respondents over her own evidence and by making orders which could not be supported on the evidence – Where the maternal grandmother asserted that the adverse credit findings made against her and the maternal grandfather by the trial Judge were unsupported on the evidence – Where it was asserted that the trial Judge erred in restraining the grandparents from filing any further applications under the Family Law Act 1975 (Cth) in relation to the children – Where it was asserted that the orders made by the trial Judge did not uphold the intentions of the Family Law Act 1975 (Cth) as envisaged by Parliament. HELD – No demonstrated error that the trial Judge acted upon a wrong principle or that his Judgment was plainly wrong – No demonstrated errors by the trial Judge in his findings of fact, including credit findings, his application of the law or in the exercise of his discretion – No evidence suggesting that the trial Judge conducted the proceedings without regard to the principles of procedural fairness – Appeal dismissed. FAMILY LAW - COSTS – Despite the fact that the appeal was not an arguable case, no order as to costs granted on the basis of financial hardship and the poor health and well being of the grandmother |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 Cross v Beaumont (2008) 39 Fam LR 389 De Winter and De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Korban & Korban [2009] FamCAFC 143 MRR v GR (2010) 240 CLR 461 Neil v Nott (1994) 121 ALR 148 Norbis v Norbis (1986) 161 CLR 513 Re F: Litigants in person guidelines (2001) FLC 93-072 |
| APPELLANT: | Mrs Coleman |
| RESPONDENT: | Mr Hindle |
| SECOND RESPONDENT: | Ms Hindle |
| THIRD RESPONDENT: | Department of Communities (Child Safety Services) |
| INTERVENOR: | Mr Coleman |
| INDEPENDENT CHILDREN’S LAWYER: | Damien Carter, Carter Farquar |
| FILE NUMBER: | BRC | 1353 | of | 2008 |
| BRC | 5431 | of | 2008 |
| APPEAL NUMBER: | NA | 53 | of | 2010 |
| DATE DELIVERED: | 28 January 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, O’Ryan & Strickland JJ |
| HEARING DATE: | 29 September 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 April 2010 |
| LOWER COURT MNC: | [2010] FamCA 319 |
REPRESENTATION
| COUNSEL/SOLICITOR FOR THE APPELLANT: | Self-represented litigant |
| COUNSEL/SOLICITOR FOR THE RESPONDENT: | Self-represented litigant |
| COUNSEL/SOLICITOR FOR THE SECOND RESPONDENT: | No appearance by or on behalf of the second respondent |
COUNSEL FOR THE THIRD RESPONDENT: | Mr J. Selfridge |
SOLICITOR FOR THE THIRD RESPONDENT: | Crown Law |
| COUNSEL/SOLICITOR FOR THE INTERVENOR: | No appearance by or on behalf of the intervenor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr M. McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar |
Orders
The Appeal against the orders made by the Honourable Justice Watts on 22 April 2010 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Coleman & Hindle and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 53 of 2010
File Number: BRC 1353 of 2008; BRC 5431 of 2008
| Mrs Coleman |
Appellant
And
| Mr Hindle |
Respondent
And
| Ms Hindle |
Second Respondent
And
| Department of Communities (Child Safety Services) |
Third Respondent
And
| Mr Coleman |
Intervenor
And
| Damien Carter |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Coleman against orders of his Honour, Watts J, made on 22 April 2010.
Ms Coleman is the mother of Ms Hindle and the maternal grandmother of two boys, X and Y (“the children”) aged 12 and 8 respectively at the time of hearing. Mr and Ms Hindle are the father and mother of the children and are the first and second respondents. The Department of Communities is the third respondent. Mr Coleman, who intervened in the proceedings before his Honour, is the maternal grandfather of the children. The Independent Children’s Lawyer is Damien Carter.
For convenience, we shall refer to each of the parties respectively as the grandmother, the father, the mother, the Department, the grandfather and the ICL in our Reasons for Judgment. We shall also refer to the grandmother and grandfather collectively as the grandparents, and the mother and the father collectively as the parents, where appropriate.
The grandmother seeks to overturn his Honour’s orders of 22 April 2010, which provided for the children to live with their mother and spend time with their father. The orders included an order that the grandparents spend no time with the children and an order pursuant to s 118(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) prohibiting the grandparents from instituting any further proceedings under the Act for parenting orders, or any other orders, in relation to the children, without leave of the Family Court of Australia.
The respondents to the appeal are the mother, the father, the Department and the ICL. The grandfather did not independently file a Notice of Appeal, but filed written submissions of 24 September 2010 in support of the grandmother’s appeal. He sought and received leave to intervene and to make oral submissions. The mother did not appear but relied upon written submissions, and endorsed and supported the submissions made by the father, who appeared before us.
The respondents each opposed the appeal and sought to uphold the orders of his Honour.
The proceedings before his Honour
The trial proceeded over 8 to 19 March 2010 before his Honour. Judgment was delivered and orders entered on the record on 22 April 2010.
At trial, the parents, the Department and the ICL each sought an order that the children primarily live with their mother and spend time with their father as agreed between the mother and the father and also sought that the parents have equal shared parental responsibility for the children. The respondents also sought that the grandparents be prohibited from filing any future applications in relation to the children without leave of the Court.
The grandparents sought orders that they equally share parental responsibility for the children and that the children live with the grandmother in [G], New South Wales (NSW). The grandmother also proposed that the children spend time with the mother and the father (and with the mother’s partner, Mr W) “as agreed” between each of the parents and Mr W and the grandparents “on all or any school holidays (if required to do so) and on other occasions as the need arises”. The grandparents’ application descended into much greater particularity, but we consider that we have sufficiently captured the gravamen of their application.
Short Chronology
The grandfather is presently aged 61 years and the grandmother is 57.
The father is presently aged 36 years and the mother is 31 years.
The mother has an older sister, Ms C, and a younger sister, Ms A.
The parents’ relationship and cohabitation commenced in December 1995.
The first child, X, was born in 1996 when the mother was 16 years old.
In June 1998, the parents married.
The second child, Y, was born in 2001.
Between 1999 and 2000, the father stated that he and the mother were separated but were living together for the sake of the children.
In March 2001, the parents separated. They reconciled in October 2004, but separated finally in September 2005.
At the time of the hearing and of the appeal, the parents (although separated) enjoyed a good relationship with each other and with the mother’s partner, Mr W. The parents live in relatively close proximity to each other in Brisbane, Queensland. The grandparents reside in [G], NSW, which is approximately 900 kilometres from where the parents reside.
His Honour noted that during the period 1998 to 2005 that the parents and the children (when they were together), and the mother and the children (when the parents were separated) lived on and off, sometimes out of necessity, in the grandparents’ various residences.
Further Background
Orders of his Honour – 22 April 2010
His Honour ordered that the children live primarily with their mother (order 1), and that the mother and the father equally share parental responsibility for the children (order 2). His Honour also ordered that the children spend such time with their father as agreed between the mother and the father (order 3), and that the children not spend any time with their grandparents (order 4).
Order 5 imposed a restraint on the grandparents from attempting to contact the children “by any means”, which included at any location where the children might be. Order 6 imposed a restraint on the mother and the father from consuming alcohol such that they are no longer “legally able to drive a motor vehicle”, or illicit drugs while the children are in their care.
Orders 7 to 13 detailed arrangements for the communication of important information between the parents about issues affecting the children, such as a change of address or their health.
Order 14 required the grandparents to destroy all copies of photographs “that were taken by the maternal grandfather from the mother’s computer (whether they be in hard copy or electronic form)”.
Pursuant to s 118(1)(c) of the Act, his Honour restrained the grandparents from instituting further proceedings under the Act without leave of the Court, and pursuant to s 114(3) of the Act his Honour also restrained them from serving any application for leave subject to any further order of the Court (orders 17 and 18).
Reasons for Judgment of his Honour – 22 April 2010
At paragraphs 4 to 22 of his Reasons for Judgment, his Honour set out the various positions of each of the parties and the documents upon which they relied.
At paragraphs 37 to 43, his Honour detailed his findings with respect to the credit of the mother and the father. In essence, his Honour considered the mother to be an “impressive and credible witness”. His Honour was “impressed” with the father’s presentation, although he expressed some doubt as to whether the father would effectively give up smoking marijuana.
At paragraphs 44 to 66, his Honour made credit findings with respect to the grandmother. The majority of those findings are the subject of this appeal.
In relation to the grandmother, his Honour noted that she gave evidence over two days and that he had the opportunity of observing her over the first nine days of the hearing and hearing her on the last day. The grandmother was at all times self‑represented. His Honour described her as “…an intelligent but very difficult woman. At best she could be described as being single minded” (paragraph 44 refers). His Honour went on to say (in paragraph 44) that the 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.” She represented herself on appeal and conducted her appeal in largely the same manner.
At paragraph 45, his Honour noted Exhibit A, a letter from the children’s primary school which characterised the grandmother’s behaviour, inter alia, as “aggressive and threatening”.
At paragraphs 46 and 47, his Honour noted that the grandmother had been prescribed medication which had caused the grandmother to be “[irritable] and [demonstrate] aggressive behaviour”.
After describing the manner in which some of the trial had proceeded, his Honour concluded:
49.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.
The two examples referred to were as follows. The first related to the allegations made by the grandmother of sexual abuse by the mother towards Y. This matter was referred to by his Honour in paragraphs 156, 260 to 283, as well as in his consideration of the relevant matters pursuant to s 60CC of the Act. His Honour made a positive finding that abuse did not occur.
The second matter related to the grandmother’s truthfulness with respect to her knowledge of an order having been made in the Children’s Court on 11 November 2008. In essence, the grandmother submitted before his Honour that she had no knowledge of the orders made by the Magistrate on that date. For the reasons outlined in paragraphs 52 to 60 of his Judgment, his Honour found that the grandmother did have knowledge about the orders made by the Magistrate. His Honour referred to the transcript of proceedings of 11 November 2008 where the Magistrate made apparent reference to the grandmother interjecting during the delivery of her reasons and then the grandmother walking out of the proceedings.
At paragraph 59, his Honour found that the grandmother’s statement that she was unaware of where the children were living was inconsistent with the grandfather’s hiring of a private detective to ascertain the children’s address.
At paragraph 60, his Honour found that the grandmother’s “description of what happened in court was unreliable and did not accord with the official record. [The grandmother’s] description of what happened after court was inherently unbelievable”.
At paragraphs 61 to 65, his Honour made findings under the heading “Other unlikely evidence”. For example, his Honour found, contrary to the grandmother’s evidence, that the Department had not fabricated information “to cover up…[the fact that] the Department refused to acknowledge that the mother had abandoned the children on…5 March 2008 when she left both the children in a ‘drugged state from cannabis’”. His Honour was satisfied that while the father may have used “small amounts of marijuana” the children were not exposed to the father’s drug use. Reference was also made to the grandmother’s inconsistent evidence about the children not attending upon doctors since 2008, while at the same time relying upon subpoenaed records in her cross‑examination of the mother which demonstrated the contrary position.
His Honour made reference to the grandmother’s “bizarre” suggestion that the mother’s new partner Mr W had “tongue” kissed another man. His Honour stated (at paragraph 64) “there was absolutely no basis” for this allegation. At paragraph 65, his Honour found that the mother had a nude photograph of Mr W on her computer but that this was not pornographic.
At paragraph 66, his Honour relevantly stated:
66.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.
Turning to the grandfather, his Honour found that there were serious inconsistencies in the grandfather’s evidence about the alleged sexual abuse by the mother of Y, which seriously damaged his credit. His Honour dealt in some detail later in the judgment with the evidence and why he had ultimately made that finding. At paragraphs 67 to 73, his Honour made adverse credit findings with respect to the grandfather. This included that the grandfather had lied to a medical practitioner about the grandmother’s attendance at a psychiatric unit, and that the grandfather had put “five coloured mice” into the mail slot of a solicitor’s firm (having first purchased them).
In paragraphs 74 to 76 inclusive his Honour dealt with what he called “the Grandmother and Grandfather together”. It is important that we include these findings because these matters are relevant to the order his Honour ultimately made against the grandparents under s 118(1)(c) of the Act. His Honour said:
74.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.
75.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.
76.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.
His Honour recorded his general acceptance of the evidence of the mother’s two sisters. His Honour noted that Mr W did not give evidence at trial and that no real explanation for his absence was forthcoming. His Honour indicated that he had sufficient evidence from the Family Consultant to make “some assessment of the children’s relationship” with Mr W.
At paragraph 78 to 81, his Honour made findings about the other witnesses in the proceedings (Three professionals: Dr B (physician), Mrs F (a case worker attached to the Department) and Mr M (the Family Consultant)) and his Honour noted that they gave their evidence in an objective manner.
Overview of his Honour’s findings
At paragraphs 82 to 203, his Honour made findings of fact about the relevant history of the parties. His Honour also made particular findings with respect to certain matters under various headings set out hereunder:
1) At paragraphs 204 to 219, the “Maternal grandmother’s mental status”;
2) At paragraphs 220 to 222, the “Maternal grandmother’s criminal record”;
3) At paragraphs 223 to 229, the event “When the mother ran away in 1993 at age 13”;
4) At paragraphs 230 to 231, the issue of the children’s true parentage;
5) At paragraphs 232 to 233, the “Events of 16 March 2003”;
6) At paragraphs 234 to 241, the “Events of Tuesday 5 February 2008”;
7) At paragraphs 242 to 248, “[X] threatening to kill himself (6 February 2008);
8) At paragraphs 249 to 259, “‘Injustice’ of the original intervention’”;
9) At paragraphs 260 to 283, the “Shower Incidents”;
10) At paragraphs 284 to 288, the “Incident of 5 and 6 March 2008”;
11)At paragraphs 289 to 295, the “Incident of 11 November 2008”; and
12)At paragraphs 296 to 302, the “School reports” of the children.
At paragraphs 303 to 307, his Honour assessed the evidence of the father. At paragraphs 308 to 318, his Honour assessed the evidence of Ms C. Ms A’s evidence was assessed by his Honour at paragraphs 319 to 327.
At paragraphs 328 to 345, his Honour considered the evidence of the Family Consultant. At paragraphs 347 and 347, his Honour considered the evidence of an officer of the Department who was the children’s case worker.
His Honour’s consideration of the relevant sections of Part VII of the Act commenced at paragraphs 348 and continued through to 458. At paragraphs 459 to 506, his Honour gave reasons for the order that he made restraining the grandparents from the filing of further applications under the Act.
General findings of fact (paragraphs 88 to 203)
His Honour noted, at paragraphs 84 to 86, that a Registrar of the Court had received a death threat purportedly, on the Registrar’s account, from the grandmother. His Honour made no specific finding and drew no inference about this event.
At paragraph 87, his Honour stated that he made no finding about the grandmother’s purportedly “malicious” telephone call to a relative.
At paragraph 95, his Honour relevantly stated:
95. The grandmother was originally charged with an indictable assault, possession of an offensive implement, and remaining upon inclosed (sic) 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 (sic) 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.
At paragraphs 100 to 107, his Honour examined the circumstances that led to the mother no longer being in her parents’ care in 1995. This included noting that the mother and the grandparents were in significant conflict, which involved the grandfather physically abusing the mother on at least one occasion, and the mother using marijuana. An Apprehended Violence Order (AVO) was taken out by the mother against the grandparents in 1995, and was subsequently removed around April 1996. His Honour accepted the mother’s evidence that she no longer uses illicit drugs.
At paragraphs 108 to 137, his Honour detailed the history of the parties between 1996 and October 2002. Several notable incidents were recorded. These included:
· In May 1999 – an allegation that the grandparents had initiated proceedings maliciously alleging that the mother had been having sexual relations with multiple partners in front of X;
· In August 1999 – an allegation by the grandmother that X had been pushed down a hill in a trolley;
· In 1998 on X’s third birthday – an allegation that the grandmother had threatened to have the father “bumped off” if she was not invited to X’s future birthday parties;
· In April 2000 – an allegation that the grandmother had kicked the mother in the stomach, shouted words to the effect that she wished that the mother had been aborted, and the grandmother self-inflicted a cut upon her face as a means of framing the mother; and
· In April 2002 – the grandmother alleged that the Department of Community Services contacted her to take custody of the children who were purportedly neglected by their parents. At around the same period the grandmother suggested that X had “multiple” cigarette burns. This evidence was inconsistent with the medical evidence given by the attending physician Dr B.
Before us, the grandmother relied upon his Honour’s finding at paragraph 138, which we record hereunder:
138. 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.
At paragraphs 139 to 155, his Honour made several findings relevant to the period 2002 to June 2007. We highlight the following incidents and findings made by his Honour:
· In 2002 – the father had probably been in possession of “hash cookies” but did not feed them to the children, contrary to the grandmother’s evidence;
· Between 7 and 9 February 2003 – the father had not acted “inappropriately or without concern” for X’s broken arm, contrary to the grandmother’s evidence;
· In February 2003 – the grandmother purportedly moved with the children to R, Queensland against the wishes of the parents;
· On 16 March 2003 – the children were removed from the grandmother’s care following an incident whereby Y was seen unsupervised on a jetty and hanging over a balcony;
· On 17 March 2003 – the mother flew to Queensland to retrieve the children. At this time, the mother informed the Department of Community Services that the grandmother had been prescribed lithium. His Honour noted (at paragraph 143): “there is no evidence [the grandmother] was ever prescribed lithium … [b]ased on Dr [B’s] evidence my understanding is that Lithium is usually prescribed for bipolar disorder”;
· In February 2005 – the grandmother alleged that the mother had left the children alone for several hours; the mother denied this allegation;
· In November 2005 – the grandmother hit Y with a wooden spoon after his over zealous wrestling move caused X to turn “blue”;
· Between July and October 2006 – the mother developed a relationship with Mr O and the grandmother agreed that the children could live with the mother when she moved in with him, but subsequently they moved out in October 2006. The grandmother alleged that the mother moved out following an incident whereby she threatened Mr O with a pair of scissors. Following the grandmother’s failure to cross-examine the mother on this point, his Honour found that he was unable to make any finding about this incident.
Before us, the grandmother relied upon his Honour’s finding at paragraph 157, which we record hereunder:
157.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’.
At paragraphs 158 to 203, his Honour made findings relevant to the period October 2007 to November 2009. We highlight the following incidents and findings made by his Honour:
· In October 2007 – the mother removed the children from the grandmother and resided with the grandfather. At the grandfather’s subsequent request, the grandmother moved in with the mother;
· On 22 November 2008 – Y was taken to hospital to have pencil lead removed from his ear. The grandmother alleged, but his Honour was unable to find, that the mother refused to take Y to hospital;
· During the Christmas 2007/2008 period – the grandmother alleged that X and a school friend were ill-behaved, and that the mother’s sister threatened to “kill them”;
· During January 2008 – the grandmother made several allegations including, inter alia: that the mother told the children that their grandparents did not love them; that the mother encouraged the children to misbehave with their grandparents, and that the mother would “parade around” nude in front of X;
· On 5 and 6 February 2008 – his Honour made discrete findings in his Judgment at paragraphs 234 to 259. The Department was contacted on 6 February 2008 and the mother applied for a Domestic Violence Order the same day. Orders in favour of the mother were made in November 2008;
· On 12 February 2008 – the Department issued a “Temporary Assessment Order” because it had concerns about the children’s immediate safety following interviews conducted with the children. Proceedings were instituted by the mother and grandmother respectively for a Domestic Violence Order and a recovery order for the children on this day. The grandmother was advised of the Temporary Assessment Order on 13 February 2008;
· On 14 February 2008 – a recovery order was issued by Wilson FM. His Honour noted that this order was ultra vires as an order pursuant to a state welfare law was in place at the relevant time (see s 69ZK of the Act);
· On 19 February 2008 – the children were received by the Australian Federal Police and returned to the grandparents. On the same day, the mother recovered the children from the grandparents. The children were then placed in the care of their parents pursuant to the relevant provisions of the Child Protection Act 1999 (Qld);
· On 22 February 2008 – the Department was granted a Court Assessment Order, continuing until 21 March 2008. This order meant that the children were placed in the temporary custody of the Department (and were placed with their father). The grandmother was prohibited from having contact with the children. His Honour recorded (at paragraph 172): “The subsequent Department Investigation and Assessment dated 13 March 2008 concluded that the children were ‘in need of protection’ when under [the grandmother’s] care, and the assessment of 8 April 2008 said the children were ‘not in need of protection’ when under the parents’ care”;
· On 26 February 2008 – further mention of the Domestic Violence Order proceedings occurred and interim orders were made pending a hearing;
· On 5 March 2008 – the grandmother alleged to the Queensland police that the mother had sexually abused Y in the shower. His Honour made discrete findings on this allegation in his Judgment at paragraphs 260 to 283;
· Between March and June 2008 – the grandfather admitted visiting the children at their school on “three or four” occasions, submitting that the children were not “fearful, and expressed a desire to live with [the grandparents]”. The grandfather also alleged, and the mother denied, that the children had been left unattended in the school ground from 7:45 am;
· On 19 May 2008 – the Department obtained an interim Child Protection Order and the children were ordered to remain in the mother’s care
At paragraphs 180 to 186, his Honour recorded the procedural history of the matter in the Federal Magistrates Court of Australia and the Family Court of Australia.
Before us, the grandmother relied upon his Honour’s finding at paragraph 187, which we record hereunder:
187. 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.
His Honour noted at paragraphs 189 that a final Domestic Violence Order was made in favour of the mother, effective for a period of five years. The father and Mr W were also named as persons who have protection under that order. The grandmother’s cross-application for a Domestic Violence Order was dismissed, and her subsequent appeal was unsuccessful.
His Honour noted, at paragraphs 190 to 200, that the grandmother made several unsuccessful applications, inter alia, to have the ICL removed from the proceedings. The grandmother was ordered to attend upon, but did not attend upon, the Family Consultant for the purposes of the preparation of a family report.
On 23 October 2009, interim orders were made whereby the children were to live primarily with their mother and spend time with their father as agreed upon the cessation of the State Child Protection Order. The children were not to have contact with their grandparents by order of the Court. His Honour noted that the Child Protection Order ceased to be in effect on 11 November 2009, and that the Department had not been further involved since that time until the matter came on for hearing before his Honour in March 2010.
In relation to the grandmother’s mental health, his Honour found (at paragraphs 218 and 219):
218.…it is clear that there are aspects of [the grandmother’s] personality which are obsessive. It is my assessment that she has personality difficulties. I have no expert evidence from any expert which would support or deny a psychiatric diagnosis.
219.Counsel for the ICL submitted that on the evidence I was left to examine the actions of the maternal grandmother on the basis that she has full capacity and has acted as a sane human being in full control of her faculties. I am unable to fully accept that submission. Although there is no medical evidence which would allow me to reach any conclusions about the mental status of the maternal grandmother, it is still an open question as to whether or not the maternal grandmother has a disorder that might be able to be diagnosed by a consultant psychiatrist. It is clear that the maternal grandmother suffers from personality difficulties and vulnerabilities. I am unable to say, in the event that she submitted to seeing a psychiatrist for a sufficient number of interviews, what that psychiatrist’s diagnosis might be.
In relation to the grandmother’s criminal record, at paragraph 222, although noting that the grandmother had “no finding or criminal conviction arising out of the incident…on 24 February 1988” his Honour found that the grandmother had attended upon her former solicitor with a tomahawk with the intent of threatening him.
His Honour concluded, after assessing documentation from the Department of Community Services (NSW), that:
229.… in 1993 the mother was living in a household that was emotionally unstable and hostile. I also find at this time that the mother was subject to physical discipline in that household.
At paragraph 231, following what his Honour considered to be unwarranted submissions on the grandmother’s part, his Honour stated that he would “have no hesitation” making a declaration of parentage in the father’s favour.
In relation to the events of 16 March 2003, which involved Y being unattended at a jetty in Queensland, his Honour found (at paragraph 233) that, contrary to the grandmother’s assertion that the police had drawn a gun on Y, that this assertion was unsubstantiated. His Honour noted that an affidavit from a police officer stated that “the gun was removed from the holster but was not pointed at any person”.
In relation to the incident of Tuesday 5 February 2008, his Honour found that both children had been exposed to conflict on 3 and 4 February 2008 involving the parents and the grandparents. At paragraph 237, his Honour noted the evidence of the Family Consultant which was critical of all of the parties’ behaviour, in particular, the grandfather’s smacking of Y whilst he held his breath. His Honour also did not accede to the grandmother’s allegation that the mother had permitted the children to sleep with Mr W. Rather, his Honour accepted that (at paragraph 241): “it was appropriate for the mother to provide emotional support for the children, particularly [Y], on that night by taking the children in her bedroom and away from any further potential conflict”.
At paragraphs 242 to 248, his Honour detailed his findings about the incident where X stated, on 6 February 2008, at the age of 11 years, that he expressed suicidal ideation. At paragraph 243, his Honour recorded:
243. The mother says on that day she overheard the maternal grandmother tell the children that the mother does not love them and is planning on leaving them and that the mother was having sexual relations with many men and aborting the babies. The mother says she confronted the maternal grandmother who threatened to make allegations that the mother was sexually molesting [X]. The mother says she left the home with the children and made an application for a Domestic Violence Order against the maternal grandmother. The mother obtained a temporary Domestic Violence Order. The mother, her partner, [Mr W], and the children moved into the father’s unit on 6 February 2008. The mother and children attended initial interviews with the Department. The maternal grandmother had a theory that the only reason the mother went to the Department in February 2008 was in order to get them to fund the costs of the parenting case. I find that that was not the mother’s motivation for making a report to the Department on 6 February 2008. I find the catalyst for making that contact with the Department was the apprehension that the mother felt about the statement that [X] had made on that day that he wanted to kill himself.
And further, at paragraphs 247 and 248, his Honour found:
247.… I accept the mother’s evidence that she was greatly alarmed by [X’s] statement and in fact it provided the final impetus for her to make the break from her mother and to remove the children from the extremely conflict-ridden environment in which they were living.
248. It has been submitted that I should view what [X] said on this day as a “cry for help” from him. It was at least that. The mother at the time perceived it to be potentially more serious. At least the mother had sufficient insight to realise that it was a heartfelt cry by [X] for his environment to be changed. [The family consultant’s] view was that [X]’s statements (about self harm) reflected [X’s] extreme degree of emotional distress at the time.
At paragraph 249, his Honour noted that the grandparents had complained about errors in documents generated by the Department when the children were removed from their care. In particular, at paragraph 253, his Honour noted the grandmother’s complaint that the Department had assumed she had a criminal record, a mental illness, been known to the Department and that the grandparents used excessive discipline. His Honour dealt with those assumptions, noting, inter alia, that the grandmother did not have a criminal record or a diagnosed mental illness (but also noting, for example, that the grandmother had had “multiple involvements” with the police and “personality difficulties”). His Honour concluded at paragraph 259:
259. I find that no injustice was done to the maternal grandparents in February 2008, but that finding is a matter of only peripheral relevance to the decision I have to make. The past disputes between the mother and the maternal grandmother are only relevant so far as they inform me about the likely dynamics that will be in play if one set of orders are made as opposed to another set of orders. Otherwise, these proceedings are not a forum to re-litigate the child protection proceedings.
At paragraph 260, his Honour detailed that the grandparents had twice alleged that the mother had showered with Y and played inappropriately with his penis. After considering various inconsistencies between the grandparents’ written and oral evidence (paragraphs 261 to 282), his Honour indicated that he would make findings about the sexual abuse of Y in the context of s 60CC(2)(b) of the Act.
Given that the grandmother has focused part of her appeal on the apparent fabrication of evidence, we set out hereunder his Honour’s findings with respect to the incident of 5 and 6 March 2008:
284. On 5 March an anonymous call was made to the police by someone who gave false particulars complaining about activities in the father’s household (where the mother, [Mr W] and the children were at that time staying). I note that this anonymous call seems to have been made on the same day the maternal grandmother made sexual abuse allegations, to the police, about the mother. Whilst one might strongly suspect that the anonymous caller was the maternal grandmother, I am on balance unable to make a finding that that was so.
285. On 6 March at 9pm the police responded to the call. The mother and [Mr W] were at a concert.
286. Upon attendance at the house of the father, the police found the children safe in bed. The father co-operated and showed them where he kept a small amount of cannabis for his personal use, but said he had not used it in the presence of the children. The police officers informed the father that they would have to charge him, but rather than taking him to the station while the boys were asleep, gave him a slip and secured his promise that he would attend the police station the next day, which he did.
287. The maternal grandmother has developed a complex conspiracy theory and insists that the father was found by police smoking marijuana with the children there. She seizes upon some irregularities on the occurrence sheet which I find are typographical errors (5 March has been typed as 6 March but one of those typographical mistakes has been corrected by hand). Rather than accepting a minor clerical mistake in the occurrence sheet, the maternal grandmother has developed a theory that there has been a substantial cover up in which the Department has been involved. At paragraph 10 of her affidavit sworn 5 February 2010 the maternal grandmother says, inter alia:
“… the representative of the Third Respondent (the Department) [DY] has fabricated information in relation to both the intervener (the maternal grandfather) and the Second Respondent (the maternal grandmother). [LD] of the Third Respondent (the Department) has refused to acknowledge that the Applicant (the mother) abanded [sic] both the subject children on the evening of 5th March 2008 and left both children in a drugged state from cannabis.”
288.The maternal grandmother cannot let go of her view that the incident to which the father was charged occurred on 5 March and the children were with him, notwithstanding his sworn evidence and the evidence in the paginated bundle (Exhibit A). The only reasonable interpretation of this evidence is that the police went to the home on 6 March; saw the children were asleep; that there was no need for concern. The police noticed the bong and the smell of cannabis and interviewed the father there and then. He admitted to the police that he had used marijuana the day before between 4.30pm and 5pm. He said the children were not there at the time he smoked. The mother said that she and the children were at the library waiting for [Mr W] at that time.
Given the submissions made by the grandmother, it is also necessary to record what his Honour observed at paragraphs 289 to 295 of his Reasons with respect to the incident of 11 November 2008:
289. On 11 November 2008 the maternal grandparents attended upon the mother’s home and spoke to the children. This attendance took place by the grandparents immediately driving from a Court where Child Protection Orders had been made which in effect excluded them from seeing the children. The mother’s version of events is vastly different from the grandparent’s version.
290. The maternal grandmother claimed that she was not aware that the orders were made as she had left the Court building with a headache. The maternal grandmother claims she was in the car sleeping off the headache and awoke when the maternal grandfather pulled into the street of the mother’s home. This version of events was rejected by me earlier in the judgment.
291. The maternal grandfather reports that he had driven the maternal grandmother to the premises (without her knowledge), and he went to the door to ask if the children still wanted him to fight for them. The grandmother stayed in the car but the children ran out to her. The maternal grandparents say the children said that the child safety representatives made threats that they’d be split up if they didn’t say what their mother told them to, and that the parents hit them if they mention the grandparents. He says the children proclaimed their love for the grandparents saying “I cry for you every night Nonna”. When these statements were put to the children on 6 November 2009, they denied saying any such things.
292. The mother alleges the maternal grandparents attempted to take the children with them interstate. The mother says she was in the shower but the children had reported it immediately afterwards. She said the children were scared when the grandfather had come to the door asking if the boys wanted to come with them, to which [X] replied “I’m right thanks”. The children reported that, the grandmother had run to them, and that the children had said ‘no’ when the grandparents asked if the children still wanted the grandparents to fight for them. [X] locked the door when the grandparents left.
293. At paragraph 30 and 32 of [the Family Consultant’s] second report, [X] reports to [the Family Consultant] in an interview on 3 June 2009, his memory of what had happened on 11 November 2008, in the following terms:
30. [X] recalled that his grandmother had come to their front door at their home in November and “tried to get us in the car”. He told her that he wouldn’t go and when he told his mother she called the police. He then stated that he warned his grandmother to go before the police came. He thought that the incident had scared [Y].
294.Some of the above is not factually accurate as the mother did not call the police whilst the grandmother was in the vicinity, but [X] was clearly telling [the Family Consultant] that his grandparents had tried to get him into the car. [X’s] statement to [the Family Consultant] is more consistent with the mother’s version of what happened.
295.I accept the mother’s version of events on the 11 November 2008 that the maternal grandparents attended upon the home in order to entice the boys to come interstate with her.
At paragraphs 303 to 307, his Honour detailed the father’s evidence about the grandmother’s abusive behaviour towards the family. This included, inter alia, physical abuse and threats of violence to the mother at the grandmother’s hands, denigrating comments about the mother to the children and emotional manipulation by the grandparents to the parents for the procurement of money.
At paragraphs 308 to 318, his Honour detailed Ms C’s evidence about her childhood. His Honour concluded, at paragraph 318, that Ms C “[painted] a picture of the maternal grandparents providing a physically and emotionally abusive household. This is consistent with views expressed by [X] to the two experts who gave evidence in the case”.
At paragraphs 319 to 327, his Honour detailed Ms A’s evidence about particular events and conversations apropos the grandfather’s evidence about the molestation of Y by the mother. His Honour accepted Ms A’s evidence, contrary to the grandfather’s evidence, that the grandfather had not actually seen the mother molest Y, but had been advised by the grandmother of this subsequently.
His Honour outlined, in paragraphs 330 to 338, why he was unsatisfied with the grandparent’s purported reasons for not participating in interviews with the Family Consultant for the purposes of the preparation of the report.
The evidence of the Family Consultant was identified and summarised by his Honour in paragraphs 340 to 345. We set out those paragraphs hereunder:
340.The independent expert made the following comments regarding the Father:
340.1. That he spoke openly and amicably and his views correspond with those of the mother.
340.2. He sees the boys most weekends, staying the night at the mother’s house. His relationship with the mother’s partner is very friendly.
I note that this is not the current arrangement – the boys spend most weekends with the father at the father’s home. Only occasionally will the father spend the weekend at the mother and [Mr W’s] home.
340.3. He was positive about the children’s prospects under the mother’s care, and has seen improvement in the boys and the mother since the boys were removed from the maternal grandmother’s influence.
340.4. He did not want the maternal grandparents to be involved in the boys’ lives and finds it reassuring that the Department is still involved and could protect the family against the maternal grandparents.
341.The independent expert made the following comments regarding the Mother:
341.1. She described her living arrangements: the children and her partner live together in a four bedroom house. She has a ‘fantastic relationship’ with her partner who is currently unemployed but looking for work. He is therefore able to care for the boys, with whom he has formed a strong bond. The mother is working in aged care.
341.2. She has a good relationship with the father, who also has a strong bond with the boys and friendship with her partner.
341.3. [X] is attending high school and the mother feels he is developing socially although he lacks organisational skills. [Y] has an improved attitude to school and is making friends. She feels that both boys are now emotionally stable.
341.4. The mother has a negative attitude to the maternal grandparents and is upset when speaking about their allegations. She does not want the boys to have contact with them.
341.5. She says she has little contact with the Department.
341.6. She is optimistic about her life including her family, relationships with her partner and her former partner, and about work.
342.The independent expert made the following comments regarding the Mother’s partner, [Mr W]:
342.1. He is very positive about his relationship with the mother, the father and the children.
342.2. He is positive about his job prospects, but in the meantime is happy caring for the boys.
343.The independent expert made the following comments regarding [X]:
343.1. Once the children were reassured the grandparents would not be attending, they interacted freely and comfortably with the mother, father, and [Mr W].
343.2. [X] likes living with his mother better than with his grandparents and finds he is calmer. He does not want anything to do with his Grandparents and describes the abusive experiences he had with them. He confirmed they had tried to get him into the car and take him away.
343.3. He is very positive about his parents getting along so well, and also with the mother’s partner.
344.The independent expert made the following comments regarding [Y]:
344.1. [Y] similarly shows an improved attitude and reports that he loves school and playing with friends. He enjoys the relationship with his parents, and how well the parents get along.
344.2. He expressed that he does not want to spend time with his Grandparents.
345. The independent expert concluded that:
345.1. The care of the children has been stable under the current arrangements. The three adults are remarkably co-operative and trustful. Their good relations are beneficial to the children.
345.2. Both boys showed consistent opinions in this and previous interviews that they did not want to spend time with their maternal grandparents.
345.3. The dysfunctional relationship between the Mother and the maternal grandparents would impact negatively on the whole family should there be any contact.
345.4. Conclusion: any contact with the grandparents would destabilise the boys’ emotional security and the family’s stability. (emphasis in original)
At paragraphs 346 to 347, his Honour set out the evidence of Mrs F, a case worker with the Department. In summary, that evidence was supportive of the parents and critical of the grandparents with respect to their capacity to provide for the children’s needs.
His Honour’s considerations pursuant to s 60CC of the Act
His Honour’s consideration of the relevant matters pursuant to s 60CC of the Act commenced at paragraph 348. Given the extensive Reasons for Judgment his Honour gave to the matters agitated before him (paragraphs 348 to 458 refers) we summarise his Honour’s consideration of those factors as follows.
The primary considerations: s 60CC(2) of the Act
In his consideration of the statutory factors that he was required to take into account, his Honour observed that the first of the two primary considerations listed in s 60CC(2) of the Act applied only to parents. His Honour found that the children benefited from a “meaningful relationship” with each of their parents (s 60CC(2)(a) of the Act refers). Further, his Honour considered that if the orders sought by the grandmother were made, that would interfere with the relationship between the children and their parents.
His Honour found that there was a clear risk of psychological harm to the children if they were exposed to the conduct in the grandmother’s home (which fell within the definition of “family violence” contained in s 4(1) of the Act) (s 60CC(2)(b) of the Act refers).
His Honour found that the mother’s allegations of abuse against the grandmother were made out, in that the children had been disciplined by their grandmother with a wooden spoon.
His Honour found that the grandparents fabricated their allegations that the mother has sexually abused Y. His Honour made a positive finding that no such abuse had occurred.
His Honour found that the children were considerably affected by the conflict between the mother and the grandmother. His Honour concluded that the continuation of a regime where the mother and the grandmother shared care for the children would not be in their best interests.
The additional considerations: s 60CC(3) of the Act
His Honour found that the children had expressed clear and consistent views that they wanted to reside with their mother and spend time with their father. His Honour found that the children had negative views about their grandparents that were expressed as genuine. It is apparent that the views of both children were afforded considerable weight by his Honour in his determination.
His Honour found that the children have a good and loving relationship with their mother and their father, as well as the mother’s partner, Mr W. In contrast, his Honour found that the relationship between the mother and the grandmother was dysfunctional at best and abusive at worst.
His Honour found that the father and the mother were not willing to facilitate the relationship between the children and their grandparents.
His Honour found that the orders sought by the grandparents would remove the children from their schools, their friends, their church and their sporting clubs. Additionally, his Honour considered that there would be clear practical difficulties associated with the children living with their grandparents, some 900 kilometres from where their parents reside.
His Honour found that the grandparents would be able to provide for the children’s physical needs. His Honour expressed severe doubt as to the capacity of the grandparents to provide for the children’s emotional needs.
His Honour concluded at paragraphs 447 to 450 as follows:
447. 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.
448. 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].
449. 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.
450. 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.
At paragraphs 450 and 451, his Honour outlined reasons for his proposed orders. On the issue of whether there should be any communication between the grandparents and the children, his Honour reluctantly ordered, consistent with the applications of the mother and father, that any contact should be initiated only by the children, and that the grandparents should otherwise not have any communication with the children.
At paragraphs 453 to 458, his Honour considered the question of parental responsibility, including the matters identified in s 65DAA of the Act, which are expressed in “imperative terms” (see MRR v GR (2010) 240 CLR 461). After considering the question of reasonable practicability, his Honour concluded that (at paragraph 458.4) “the impact of any arrangement, whereby the children move between the two households, would, in the current circumstances, be devastating for the children”.
At paragraphs 459 to 506, his Honour considered the mother’s application pursuant to s 118(1) of the Act in relation to the conduct of the grandparents’ case.
At paragraph 470, his Honour relevantly stated:
470.…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.
Application in an Appeal – 23 August 2010
By way of Application in an Appeal filed 23 August 2010, the grandmother sought the transcripts of proceedings before his Honour between 8 and 29 March 2010, and an audio CD recording of the evidence given by the mother in cross-examination by the grandmother on 18 March 2010.
The grandmother also sought leave to issue a subpoena to [M] Police NSW to give evidence and produce documents.
At the commencement of the hearing we dealt with the grandmother’s application. She acknowledged that she could proceed with most of her grounds without transcript. We indicated to her that if it became apparent in the course of the proceedings that particular argument warranted transcript, then we would make an order for the provision of transcript. This did not eventuate. The same approach was taken in relation to whether the Court should provide an audio CD.
The grandmother withdrew her application for leave to issue a subpoena given that the documents sought were available, and with the consent of the respondents those documents were tendered to us and marked Exhibit “A”. Ultimately we were unable to discern how they were thought to assist the appellant.
Grounds of Appeal
By way of Notice of Appeal filed on 5 May 2010, the grandmother listed 18 grounds of appeal.
We have taken into account the grandmother’s grounds of appeal, her written submissions and her oral submissions to us on 29 September 2010. At the hearing before us, the grandmother also adopted the written submissions of the grandfather in reliance upon the grounds of appeal. In so far as the submissions of the grandfather related to the grounds of appeal promoted by the grandmother, we considered those submissions to be helpful. We invited the grandmother to address those submissions in that context.
There was significant overlap and confusion in the manner that the grandmother’s grounds were presented to us. We acknowledge that the grandmother had difficulty presenting her appeal as she is self‑represented. The grounds of appeal, however, are much more readily understood through a summary of the discrete complaints the grandmother makes against his Honour’s Judgment, as well as his conduct during the trial.
That summary is as follows:
1) That his Honour erred in accepting the evidence of the father, the mother, the Department and the ICL when it had been fabricated, and that his Honour had refused to investigate this behaviour;
2) That his Honour exhibited both actual and perceived bias towards the grandparents, particularly because the other parties did not produce evidence which supported their respective cases (and the orders that were ultimately made);
3) That his Honour’s orders did not uphold the intentions of the Act as originally envisaged by Parliament;
4) That his Honour made several erroneous findings about:
i)The grandmother’s purported criminal history;
ii)The grandmother’s purported conduct towards a Registrar of the Court;
iii)The grandmother’s mental health;
5) That his Honour’s findings with respect to the credit of each of the parties, particularly the adverse credit findings against the grandparents, were unsupported on the evidence;
6) That his Honour made erroneous findings about the events of: 11 February 2008, 12 March 2008 and 11 November 2008;
7) That his Honour erred in making an order that the grandparents be restrained from filing any further applications under the Act in relation to the children.
In her Notice of Appeal, the grandmother sought to set aside each and every order of his Honour made on 22 April 2010, and sought that a recovery order issue to the police to recover both children. In addition, the grandmother sought that the Director of Public Prosecutions and/or the Australian Federal Police “take action against the parties responsible for the criminal action conducted in these proceedings.”
We observe the orders sought by the grandmother seek to have the children simply restored to her without any regard to the present situation. She also continues to agitate for punishment of those whom she asserts have in some manner wronged her in the course of proceedings, particularly with procedural matters.
As we pointed out to the grandmother, were we to find the appeal to be successful on any of the grounds raised by her which related to his Honour making findings which were not open on the evidence or to failing to consider relevant evidence, we would not be able to re-exercise his discretion and the matter in any event would have to be remitted for rehearing. Both counsel for the ICL and the Department agreed that this would be the consequence of a successful appeal.
Written submissions of the grandmother – 29 September 2010
The grandmother substantially relied upon her written submissions handed up to us on 29 September 2010 in support of her appeal. This was a 33 page document.
Although this document sought to address the grounds, it did not provide a critical analysis of the findings of his Honour but again focused upon the matters which his Honour had described – in our view correctly – as peripheral matters and returned to the theme of justification of her assertions at trial, particularly in relation to past events.
A substantial portion of the grandmother’s written submissions related to matters that were either not properly before his Honour or were not properly included in the Appeal Books before us. No leave was sought to adduce fresh evidence in relation to a majority of those matters. Some of the matters contained in the written submissions were not, ostensibly, relevant to the grounds of appeal as we are able to discern them.
Accordingly, we do not propose to consider those matters that do not fall properly within the scope of the grandmother’s appeal. We propose to consider the grounds of appeal and as best we can discern the asserted errors into which the grandmother submits his Honour fell.
In attempting to deal with the grounds we are mindful of what the High Court has said in Neil v Nott (1994) 121 ALR 148 at 150, namely “A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.” We further note guideline 8 of the guidelines formulated by the Full Court of the Family Court in Re F:Litigants in person guidelines (2001) FLC 93-072 as to the approach the Court should take to a self‑represented litigant. Guideline 8 effectively provides that a judge should attempt to clarify the substance of the submissions of a litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated.
The written submissions of the grandfather, which the appellant adopted, were clearer but were no more focused on the present and future for these children than those of the grandmother.
The Department, the ICL, the father and the mother also provided written submissions. They endeavoured to deal with the appeal but, in summary, their submissions were to the effect that his Honour had addressed the relevant issues that were agitated; had considered and made appropriate findings in relation to those matters in a way which was fair to all parties; had considered the statutory requirements of Part VII of the Act; had made appropriate findings; and had ultimately made orders that were demonstrably in the best interests of the children.
As it appeared to his Honour, so it appears to us, that much of the grandparents’ evidence had little bearing on the task that his Honour had before him, namely to consider what parenting orders best promoted the interests of the children, both now and into the future.
The resolution of some of the matters raised by the grandparents was certainly relevant to some of the considerations his Honour had to take into account under the Act. In particular, the need to protect the children from physical or psychological harm, the relationship between the children and the relevant parties, and the capacity of each of the parents and the grandparents to provide for the needs of the children, including emotional and intellectual needs. In addition, his Honour was required to take the views of the children into account and both children expressed to the Family Consultant and Mrs F (the Departmental case worker) clear and consistent views that they wanted to continue to reside with their mother and spend time with their father and that they did not want to see their grandparents.
The conclusion reached by his Honour at paragraph 447 regarding the grandmother’s approach is consistent with the manner in which she conducted her appeal. She submitted that she had spent a considerable time raising the children, that the Department of Child Safety had improperly removed the children from her, that there was no basis upon which they should have done so and that the children should be returned to her care. Despite our attempts to get her to do so she could not focus upon the other relevant factors his Honour had taken into account, including the relationship between the children and their parents, their stability at the present time and their strong views to continue living with their mother, visiting their father regularly and not to see their grandparents. The grandmother’s approach, on appeal as it appeared to be at trial, was entirely focused on the past and the grievances she has against the Department and other witnesses.
Contrary to well established principles in relation to appeals from discretionary judgments, the grandmother was asking us to reach a different conclusion on the same material that his Honour considered in relation to issues that were agitated at the trial and was also seeking to defend her position in light of assertions made by the parents and other witnesses, referring to a plethora of evidence which she asserted would suggest that their versions were inaccurate and/or untruthful. She did so even though many of those matters formed no part of the conclusions reached by his Honour and in some cases, she maintained her criticism in the face of his Honour having accepted her version of the events.
An example of this was her attempt to refer to voluminous evidence that she was wrongly accused of having a criminal record. As we pointed out to her, his Honour did not accept the assertions that were made and at paragraph 220 made the following finding:
220. The maternal grandmother’s criminal record was discussed during the hearing. The maternal grandmother was keen for the court to be aware of the provisions of s 556A Crimes Act (NSW) (now s 10). This section allows a court to not record a conviction on the basis that the offence is found to have been proved but there are mitigating factors including the circumstances in which the offence occurred, that would mean it would be appropriate not to record a conviction. A number of matters with which the maternal grandmother was charged have been dealt with in this way. The maternal grandmother has appealed almost all findings made against her. I note the matters in relation to which offences have been proved against the maternal grandmother. It is not accurate to say that the maternal grandmother has a significant criminal record.
The grandmother pressed her submissions relating to the inaccuracy of the allegations without regard to his Honour’s findings, which largely supported her contentions.
Section 118(1)(c) order
In relation to the application under s 118(1) of the Act, his Honour found that tests two and three articulated by Roden J in Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 at 491 that proceedings are vexatious if they are brought for collateral purposes or are so obviously untenable or manifestly groundless as to be utterly hopeless, were made out in this case. His Honour made an order (order 16) pursuant to s 118(1)(a) dismissing the application of the grandparents and also made an order (order 17) against the grandparents pursuant to s 118(1)(c).
Although his Honour found that the best interests of the children was not a paramount consideration under s 118 of the Act, they were a “weighty” matter. Taking that matter into account, and the history of the litigation instituted and maintained by the grandmother in a range of jurisdictions (33 applications having been initiated since 2008), as well as the history of the grandfather’s involvement, his Honour made orders pursuant to s 118(1)(c) against the maternal grandmother and grandfather. Neither the written submissions nor the oral submissions of the grandmother addressed her ground of appeal in relation to this order. Thus, it has not been established that his Honour erred in making this order.
The grandfather in his submissions contended that the orders should not have included him because it was the grandmother, not him, who had been the litigant in the various proceedings mentioned by his Honour. His Honour was aware of this (paragraph 494) but concluded that the grandmother did not act independently of the grandfather (paragraphs 495 – 501). To prohibit the grandmother whilst leaving it available to the grandfather to commence proceedings without leave, in his name, would impugn the efficacy of the orders which were designed to protect the children from being involved in unnecessary litigation which his Honour found would be to their detriment.
Relevant Principles
This is an appeal from a discretionary judgment and the principles to be applied by us are well established: see House v The King (1936) 55 CLR 499; De Winter and De Winter (1979) FLC 90-605; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513; AMS v AIF (1999) 199 CLR 160; Cross v Beaumont (2008) 39 Fam LR 389; and Korban & Korban [2009] FamCAFC 143.
In determining an appeal in respect of a decision involving a discretionary judgment, there is a strong presumption in favour of the correctness of the decision. Before an appellate court reverses a decision of a trial judge founded upon the exercise of a judicial discretion, it must be satisfied that the trial Judge acted upon a wrong principle or the decision was plainly wrong so that his or her decision was no exercise of the discretion: House v The King; Gronow v Gronow (supra).
Conclusion
For reasons given, we did not deal seriatim with each of 18 grounds of appeal and confined our attention to what was contended for in the lengthy written submissions supplemented by oral submissions. The grandmother failed to establish that his Honour acted upon a wrong principle or that his Judgment was plainly wrong. The grandmother has not demonstrated any errors by his Honour in his findings of fact, including credit findings, his application of the law or in the exercise of his discretion. Nor has she demonstrated any procedural unfairness. Consequently the appeal must fail.
Costs
The ICL and the Department sought an order for costs in the event that the appeal was dismissed. The grandmother opposes such an order, as we perceive it on two grounds. The first is that her case was arguable. The second is that her financial circumstances are such that she could not afford to meet an order for costs.
Costs are governed by s 117 of the Act and are a matter for the discretion of the Court. We do not agree that the case presented was an arguable one. Having regard to the way the matter was conducted at trial and before us, it was never likely to succeed. However as far as we were able to discern from the grandmother, she is not well off financially and receives a pension of some kind.
Although we accept that in the case of Legal Aid in particular, resources are finite, counsel for the ICL and counsel for the Department represent institutions (both state and federal) which are better able to absorb the costs of the litigation than the appellant and we propose to make no order for costs.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, O’Ryan & Strickland JJ).
Legal Associate:
Date: 28 January 2011
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