Dalton and Rudov and Anor

[2015] FamCA 898

FAMILY COURT OF AUSTRALIA

DALTON & RUDOV & ANOR [2015] FamCA 898

FAMILY LAW – CHILDREN – Application by maternal grandfather to spend time with and communicate with child – Application withdrawn and dismissed – Orders made that child spend no time with or communicate with the maternal grandfather as not in the child’s best interests – Injunctive order preventing maternal grandfather from approaching child’s school –

FAMILY LAW – COSTS – Orders by consent - order for costs made in favour of the parents and Independent Children’s Lawyer

Family Law Act 1975 (Cth)

APPLICANT: Mr Dalton

FIRST RESPONDENT: Ms Rudov

SECOND RESPONDENT: Mr Rudov

INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

FILE NUMBER: MLC 624 of 2014

DATE DELIVERED: 1 September 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 1 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dalton in person

COUNSEL FOR THE FIRST

RESPONDENT:

Ms Dellidis

SOLICITOR FOR THE FIRST

 RESPONDENT:

Stephen Farmer & Associates

COUNSEL FOR THE SECOND

RESPONDENT:

Ms Dellidis

SOLICITOR FOR THE SECOND

RESPONDENT:

Stephen Farmer & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

McGregor Solicitors

Orders

1. BY CONSENT the application filed by Mr Dalton (the applicant) on
   15 September 2014 is withdrawn and dismissed.

2. BY CONSENT the applicant pay the respondents’ costs of these proceedings, agreed at forty nine thousand dollars ($49,000), such costs to be paid within fourteen (14) days from the date of this order.

IT IS FURTHER ORDERED BY DETERMINATION

1. The applicant spends no time with the child B born 2011 (‘the child’).

2. The applicant have no communication with the child.

3. The applicant be and is hereby restrained from attending at any child care, kindergarten or school attended by the child.

4. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED

1. All extant applications other than any applications for costs be dismissed.

IT IS FURTHER ORDERED

1. BY CONSENT the applicant pay the costs of the Independent Children’s Lawyer to the Legal Aid Commission of Victoria of thirteen thousand dollars ($13,000) within fourteen (14) days from the date of this order.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The appointment of the Independent Children’s Lawyer be discharged effective twenty eight (28) days from the date of this order.

IT IS NOTED

1. Nothing in these orders prevents any arrangements for the child to spend time or communicate with the applicant in accordance with any written agreement entered into in advance.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 624 of 2014

Mr Dalton

Applicant

And

Ms Rudov
First respondent

And

Mr Rudov

Second Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Some, if not most, relationships between grandchildren and their grandparents add significantly to the lives of the grandchildren.  It is often important in their development and their growth.  In some cases, that may not be in the child’s best interest.  The Family Law Act1975 (Cth) (‘the Act’) makes it clear that grandparents may, from time to time, apply to courts exercising jurisdiction under the Act for orders under Part VII of the Act, provided always that it is in the best interests of the child or children.

2. B (‘the child’) has just celebrated his fourth birthday.  His parents Ms Rudov (‘the mother’), and Mr Rudov (‘the father’) (collectively ‘the parents’) are engaged in litigation with the child’s maternal grandfather, Mr Dalton, (‘the grandfather’), in this Court.  It was the case of the grandfather that orders ought to be made that the child spend five hours or more with him every second weekend, plus four days a year, plus other times as set out in his summary of argument, which is Exhibit A1.

3. The parents opposed that application and sought orders which I have made earlier.  These include: that the child spend no time with the grandfather and does not communicate with the grandfather, and that the grandfather be prevented from approaching this child’s school or the like.  An Independent Children’s Lawyer was appointed much earlier in these proceedings.  Her initial view was similar to that of the parents, except that her view was consistent with that of the Family Consultant, that the grandfather ought to be able to send presents, cards and letters to the child on his birthday and at Christmas.

4. This was an unusual case in terms of the way that it came to be heard and came to a conclusion.  Proceedings were commenced by the grandfather in January 2013 by way of an application in a case.  Clearly, that proceeding had no jurisdictional base, and it was subsequently dismissed by a judge of this Court.  However, that judge made orders to enable the expedition of a first return date of a substantive application, which was in fact filed on 4 April 2014.

5. Soon after the commencement of that substantive application, which was filed by the grandfather, the proceedings were discontinued and were brought to an end.  Some few months later on 15 September 2014, an application by the grandfather was filed in the Federal Circuit Court in Melbourne.  The matter was eventually transferred by that Court to the Family Court.  Directions were made for hearing, and, to the credit of all parties, most of those directions were complied with, or substantially complied with, in terms of filing affidavits, case outlines and the like.

6. The proceedings commenced before me on 31 August 2015.  Each of the parties’ case outlines was tendered in evidence, being Exhibit ICL2, Exhibit R1 and Exhibit A1.  The evidence of the Family Consultant was read into evidence and is Exhibit ICL1.  The grandfather was subjected to cross-examination on the morning of the second day, and after the lunch break expressed his desire to withdraw and dismiss those proceedings.  He said he did so because he was concerned for the wellbeing of the broader family, although submissions were made contrary to that approach.

7. Given that this matter had started a hearing, I took an adjournment to enable the grandfather to reflect on his position and to speak with counsel for the Independent Children’s Lawyer.  He did not change his mind, although it is clear from what he has said to me he believes that the orders which I made earlier do not meet the best interests of the child.  The grandfather consented to a costs order in respect of the parents’ costs but objects to a costs order in relation to the Independent Children’s Lawyer.  I will deal with that aspect of it when I have finished these reasons.

8. The grandfather is aged 61 and is apparently in good health.  He describes his occupation in various ways, including a semi-retired grandfather and other aspects.  The father is aged 34 and is a solicitor.  The mother is aged 29 and, as I understand it, commenced teaching last year, although I think her evidence shows that she is studying this year.  The child B was born in 2011 and has just celebrated his fourth birthday.

9. The parents married in 2009.  The mother was diagnosed with an eating disorder at age 16, and that has had and continues to have a profound impact on her life.  The father in 2006 was diagnosed with depression and anxiety and commenced attending on Dr C, a consultant psychiatrist.  The mother and grandfather have a difficult relationship, which is at times very close and at times quite apart. 

10. The child had reasonably frequent contact and communication with the grandfather up to 23 May 2013.  At that time, which the grandfather describes as “the event”, the mother, clearly with the support of the father, sought to terminate the time.  The mother’s evidence was that she wanted space and wanted to change the way things were occurring, to protect herself from what she saw as controlling behaviour by her father.  Interestingly, the child still spent some limited time with the grandfather during 2013 and that continued on and off through 2014 until shortly before the commencement of these proceedings.

11. The grandfather has had a close relationship with his daughter over a significant period of time. 

THE LAW

1. When determining orders the approach is governed by Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects of Part VII of the Act and the principles underlying them are set out in s 60B.

2. Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.

3. The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.

4. If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must consider the children spending substantial and significant time with each parent.  In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable.  If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).

5. The question of shared parental responsibility was not a relevant consideration in these proceedings as the application before the Court is for the grandfather to spend time with the child.   The real question in this case is why a child who otherwise has a loving relationship with his grandfather should not spend time with him, which I will discuss later in these reasons.

6. These proceedings were commenced after the 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do apply to these proceedings, and the provisions in force immediately before that date do not apply.

7. The evidence before me is:-

   (a)the grandfather’s affidavit filed 31 July 2015, together with the documents attached to the – which were attached to it, which I have removed and made Exhibit A2; 

   (b)the affidavits of each of the respondent parents; and

   (c)the other affidavits referred to in the respondents’ case outline, being documents 4 through to 10, which included:-

   (iv)affidavit of Dr D (father’s psychiatrist);

   (v)affidavit of Dr E (mother’s psychiatrist);

   (vi)affidavit of Dr F (mother’s psychiatrist);

   (vii)affidavit of Dr G (mother’s psychiatrist);

   (viii)affidavit of Mr O, psychologist;

   (xi)affidavit of Mr H, psychologist; and

   (x)Family Report of Ms I, Family Consultant, dated 13 August 2015.

8. As the grandfather has withdrawn from the proceedings, there was no need for the parties to be cross-examined, and their evidence was admitted as it stood. 

9. The Independent Children’s Lawyer relied upon the evidence contained in the affidavits of Mr H and Mr O, and the report of the Family Consultant.  That final report was released on 20 August last. 

10. There are findings of fact which I need to make.  The child lives with the mother and father, and has a secure relationship with them.  There is evidence from the Family Consultant, which I accept, that the child is primarily attached to his mother, and that the child has a very close relationship, perhaps attachment, to the father.  The Family Consultant says the child was warm and responsive to the grandfather when he met him on 4 August of this year.  Each of the parents have mental health issues, to which I have alluded earlier, but which, although they flare up from time to time, seem to be relatively well managed, and properly treated by their medical experts. 

11. The Family Consultant gave evidence in terms of her Family Report, and was cross-examined in relation to that report.  I generally accept the evidence of the Family Consultant as reliable evidence in this case.  I accept that the child presented as a friendly, happy, well-adjusted young child, with a close relationship to each of his parents; that the mother is under the treatment of two psychiatrists and attends appointments regularly; and that the father has engaged in regular therapy and obtains treatment.  The child’s needs are primarily met by his parents. 

12. The real question in this case is why a child who otherwise has a loving relationship with his grandfather should not spend time with him.  The assertion by the Independent Children’s Lawyer and the parents is that the relationship between the grandfather and the parents is such that it would not be in the best interests of the child.  I note the evidence of the Family Consultant that the parents are, and remain, open to time with the grandfather, but they need space. 

13. There is no evidence before me of the child being exposed to abuse or family violence.  There is evidence before me, in terms of the affidavits of the parties, that the grandfather is very focused on the child, and perhaps his (the grandfather’s) own interests more than the broader family interest.  There is some evidence given by the Family Consultant that the grandfather’s responses are somewhat disproportionate responses.  I am satisfied that this conclusion is well based on fact.

14. Given the evidence of the events shortly after the birth of the child, when the grandfather believed that he had been “banned for life” I think were his words, where the mother had written saying that was not the case and that she just wanted time.  His response was with very harsh emails which at that time were, to all intents and purposes, disproportionate to the issue that had arisen and, in many ways, it lacked insight into the impact on his daughter, whom he knew had significant psychiatric issues arising out of her eating disorder, and who had just given birth to her first child.  The grandfather persisted in requiring detailed explanations, and even some 18 months or two years later, was demanding apologies in relation to that. 

15. There was some concern that the grandfather’s obsession with the child may have been unhealthy, but it is the conflict with the parents and his inability to see that they are the primary factor in the child’s upbringing which is troublesome.  The Family Consultant says, and I agree, that the grandfather seems to see himself as central to that relationship, and he does.  He sees himself as being protective in relation to the mental illness which he sees is some significant debilitating factor in terms of the parents’ care of the child, and him to be the protective item.  He sees this as somewhat benign, but in the context of the material that has come before me, it is more than benign; it has been in many ways destructive.

16. The maternal grandfather sees himself as someone who is normal, and that has to be seen in the context of the view of the Family Consultant, which is supported by other evidence, that the parents are adequate in their parenting of the child.  In watching the grandfather giving evidence today, it seems as if he did not have a strong sense of the impact of his approaches on this family.  The Family Consultant said, and I quote:-

    94.The sad fact remains in this matter that there is a small boy unwittingly caught between people who love him and wish to protect him.  The issue remains that this is not about [the child’s] right to have a relationship with his grandfather, rather a right for him to have parents who are mentally and physically able to provide his ongoing care.  Unfortunately and tragically it appears this must be an either/or matter as it is most likely they are unable to co-exist.

    95.For that reason, it is the writer’s belief that the family unit of mother, father and child must be prioritised and because of the unfortunate set of circumstances it is recommended that [the child] will be better placed to have no contact with his grandfather in the foreseeable future.  It is also the writer’s belief that if [the grandfather] were able to engage in some therapy and gain insight into the impact of his behaviour, that then a pathway may open to resume this relationship.  This is more likely to occur if the issues are not litigated.

17. The grandfather’s approach in relation to the time with the child seems to be creeping:  when he gets one thing, he wants another, then another, and he is uncontained.  He is not able to be limited and, as I said, he sees his position as equal to, and perhaps at times beyond that of the parents.  A good, although relatively benign, example was the day at J beach shortly before 23 May, where the mother had made it clear she wanted the child returned, and the grandfather made an executive decision.  If that decision had been made out of need for a child to go to a hospital or a doctor, or to need some sort of urgent treatment, that would make sense, but when the mother had said, “These are the arrangements,” there was no reason why those arrangements ought not to be put in place. 

18. The Family Consultant was cross-examined in relation to her view that there was an intense and close and strong relationship which had existed between the mother and the grandfather in terms of her illness over a number of years.  The Family Consultant was aware of that assertion, and that the mother’s evidence was that, in some ways, she became responsible for the grandfather’s mental health.  That can be shown up in some of the emails in late September or early October 2011.  The grandfather talked about he and the child suffering.  He talked about the child’s needs to see him, and the child’s need of a relationship, when they were primarily his needs.

19. The grandfather gave evidence of his determination, and it is clear from all the evidence, to spend unsupervised time with the child, irrespective of the views of the parents.  The Family Consultant said the child would struggle in years to come in dealing with the difference and the conflict that would arise between the grandfather and the parents, and there could be consequences, such as further splits between the parents and the grandfather, and confusion in the child, give the context of the importance of the parents in his life, and the importance, if that occurs, of the grandfather in his life.  The Family Consultant said it would be hard for the child to withstand the views of the grandfather. 

20. The grandfather does not see himself as in need of significant treatment, and has declined to take that course, at least up to now.  He does not accept many of the views of the Family Consultant, nor many of the views of Mr H and some of the views of the other experts.  He is concerned, or seemed to be concerned, that the parents may have been turning the child against him, whereas the evidence in the family report of the child greeting the grandfather is indicative that the child has not been turned against his grandfather. 

1. The grandfather raised issues of accuracy in relation to the Family Consultant.  The first was that he does not have a drive and determination that he gets what he wants.  Having heard his evidence and listened to his cross-examination, I cannot accept his evidence in that regard.  It was significant that the grandfather said that he made a comment in relation to continuing the litigation but then limited that by saying it was subject to whatever reasons this Court published, and yet in his case summary it was clear that he was determined to go to another court if this Court did not support his views of the world.

2. I was particularly troubled by the exchange of emails contained in the mother and father’s Court Book, Exhibit R2.  I have dealt with those in the months of September and early October 2011 after the birth of the child.  The email that the grandfather sent the mother on 23 May 2013 was troubling.  I will not go into that in detail but I note the impact of the cross-examination of the grandfather in that respect.

3. That email was sent contrary to the wishes of the mother.  The grandfather could be excused for that, given the passing of time and the depth of his love for the child, and there is no doubt that he loves the child.  But the following day he received an email from his daughter saying that she did not appreciate getting the emails and that she would not be responding.  It was a short email and to the point.  What followed were a number of emails, one on 24 May 2013 which was unhelpful, another one on 26 May 2013 which was rude to the mother and extraordinarily lengthy, and then on 28 May another one was sent.  On 29 May another one was sent.  Then on 29 May the mother wrote a text to the grandfather saying:

   Hi. 

   This won’t be necessary until I contact you in the future. 

   Please do not send me any emails/texts in response.

   That was not shutting the door.  That was saying, it is clear from the context, “Give him space.” 

4. That was followed by a text the same day from the grandfather to the mother.  The mother responded:-

   Please stop harassing me.  If you don’t, I’m going to go the police and seek to obtain an intervention order.  I’ve asked you not to contact me.

   and then finished it with a polite, “Thank you.”

5. Following that email there were a series of emails back from the grandfather denying that he harassed her; an email on 5 June; an email on 12 June, an email again on 12 June; then an email on 12 June containing information, including grandparent’s rights or grandchildren’s rights; another email on 13 June and a further email on the same day sending an email to another member of the family.

6. On 13 June an email was sent in reply to the grandfather saying that the mother is extremely unwell and that the family was focusing on her recovery.  The response to that email from the father was an invitation by the grandfather to reread his emails, amongst other things and, again, a broad explanation and a request that he spend time with the child.

7. Again, the father invited the grandfather to take a step back by email of 16 June.  Going through the emails, it could only be described as relentless and the child continued from time to time to see the grandfather, but not on the basis that he wanted.  That is, on the basis of unsupervised time.  As I have said earlier, the affidavits of the parents were read into evidence and are part of the material before me. 

8. I am satisfied that the grandfather showed relentless determination to spend unsupervised time with the child, irrespective of the impact that it had on the child’s parents and the possible impact on the child into the future.  I am satisfied that that has the capacity to undermine the relationship between the parents and perhaps to undermine the ability of the parents to function as functional parents of this child.

9. The child has a broader relationship with the other family but the relationship with this grandfather has not, sadly, been in the best interests of this child.  Given the, and they can only be described as appalling, emails sent to the mother shortly after the birth of the child and the appalling emails sent to the mother after 23 May, including after the grandfather knew that the mother was unwell, was deeply troubling and deeply indicative.

10. The parents justifiably have concern that any boundaries imposed by this Court for the child to spend time with the grandfather will be unlikely to be respected.  Any arrangements they make ought to be by them in writing in advance and strictly as they choose, not as is impacted or forced upon them by a court.  I do not see that it would be in the child’s best interest in the evidence that is before me for the child to spend time with the grandfather other than in accordance with the wishes of the parents.  This will hopefully preserve that family unit and preserve a stable environment for the child.

11. I have to, of course, consider the relevant factors under section 60CC. I have probably done so in a general sense, however, I will try and deal with it in a particular sense.

12. Section 60CC(2)(a) is not applicable as the child will end up with a meaningful relationship with both parents, given the clear lack of dispute in relation to that circumstance. I am not satisfied on the evidence before me that the parents present a psychological or physical risk to the child in terms of abuse, neglect or family violence.

13. The child is at an age where any views expressed by the child are not such as to be given weight.  I have already discussed the nature of the child’s relationship with each of the parents.  The child has a very close relationship with the grandfather.  However, that relationship has issues to which I have alluded earlier.

14. The parents have adopted a sensible parenting arrangement.  The Family Consultant made no criticisms of any meaningful type in relation to the parents.  They have fulfilled their obligation to care for and maintain the child. 

15. The effect of the orders which had previously been sought by the grandfather would have imposed a terrible burden on the parents and, as I said, may have undone their role of parents and perhaps may have undone their relationship itself. 

16. The practical difficulty in terms of the child’s spending time with the grandfather is in terms of the matters that I have referred to before, that is, containment, and enables the parents to have some respite. 

17. I have made comment on the capacity to parent elsewhere. 

18. The child is a young child who otherwise is thriving, according to the Family Consultant.

19. The parents have adopted a sensible and child-focused attitude to parenthood and are treating their illnesses, which are, after all, merely illness, in an appropriate and sensible way. 

20. I am satisfied, given all of the circumstances in this case, that no such orders ought be made as sought by the applicant grandfather and I am satisfied, to protect the family unit as a whole, that the orders sought by the parents are in the child’s best interests.  Accordingly, I have made those orders.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 September 2015.

Associate:     

Date:              1 September 2015