Danes & Danes & Anor

[2013] FMCAfam 281

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DANES & DANES & ANOR [2013] FMCAfam 281

FAMILY LAW – Parenting – application by maternal grandmother – problematic relationship between mother and maternal grandmother – maternal grandmother’s lack of insight into impact of her behaviour and current litigation on the mother – consideration of best interests of subject children – application of maternal grandmother dismissed – otherwise consent orders as between mother and father.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 64C, 65C, 65DAA

Oldfield [2012] FMCAfam 22
Church v T Overton & Anor [2008] FamCA 965
Russell [2009] FamCA 28
Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GRR [2010] HCA 4

Applicant: MS A DANES

First Respondent: MS C DANES

Second Respondent: MR BRAY

File Number: SYC 6705 of 2011

Judgment of: Foster FM

Hearing dates: 17, 18 & 19 December 2012, 21 February 2013

Date of Last Submission: 8 March 2013

Delivered at: Sydney

Delivered on: 28 March 2013

REPRESENTATION

Counsel for the Applicant: Mr Hodgson

Counsel for the First Respondent: Mr Greenaway

Solicitors for the First Respondent: Norwest Family Law

Counsel for the Second Respondent: Self Represented

Solicitors for the Independent Children’s Lawyer: Legal Aid Sydney

ORDERS

1. That the Application of the Applicant Maternal Grandmother be dismissed.

2. That the applicant spend time with and communicate with the children as agreed between the mother, the father and the applicant.

3. That the parties be restrained from subjecting the children to any form of hitting or physical striking and they shall use their best endeavours to ensure that no other person does so.

4. That the parties be restrained from using or being under the influence of any illegal drug or from being under the influence of alcohol to excess when the children are in their care.

5. That the parties be restrained from bringing the children into contact with any person who is using or is under the influence of any illegal drug or any person who has consumed alcohol to excess.

6. That the mother do all things necessary to engage in the Brighter Futures Program and continue to attend until such time as she and the children are discharged from the program and during the continuance of her engagement in the said program obey all reasonable directions given to her as to her engagement in the program or engagement in any other program or counselling as is recommended.

7. That the Independent Children’s Lawyer file and serve short submissions as to costs sought by the Independent Children’s Lawyer within 14 days from this date.

8. That each of the parties file and serve short submissions as to costs sought by the Independent Children’s Lawyer within a further 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Danes & Danes & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6705 of 2011

MS A DANES

Applicant

And

MS C DANES

First Respondent

MR BRAY

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These are proceedings in relation to the children [X] born [in] 2007 and [Y] born [in] 2009 (“the children”).

2. Proceedings were commenced by the applicant maternal grandmother by application filed on 1 November 2011.

3. In that application the applicant grandmother sought orders that in summary provided for the children to live with her, that she and the mother and father of the children have joint parental responsibility and that the children spend time with the mother and father as agreed between the parties. The applicant grandmother also sought various specific issue orders.

4. The first respondent to the application is the mother of the children and the second respondent to the application is the father of the children.

5. In her amended application filed on 10 December 2012 the applicant grandmother substantially amended the orders sought by her in that she no longer sought for the children to live with her but that the children have time with her as follows:

   a)on the first weekend of each month from 5.00pm Friday to 5.00pm Sunday;

   b)in odd years from 5.00pm Christmas Eve until 5.00pm Christmas day;

   c)in even years from 5.00pm Christmas Day to 5.00pm Boxing Day;

   d)on the Greek Easter weekend from 5.00pm Easter Thursday to 5.00pm Easter Monday;

   e)in the Christmas school holidays from 5.00pm Boxing Day until 5.00pm on 12 January;

   f)for such other periods as are agreed between the parties.

6. The applicant asserts that this change was a consequence of the release of the family report although she had considered it since contact with the mother and children in September 2012.

7. The applicant grandmother also sought orders in relation to time with the child [Z] born [in] 2011. This child is a child of the respondent mother's present relationship. The father of this child is not a party to the current proceedings and at hearing the applicant grandmother abandoned any orders sought in relation to this child.

8. At trial the applicant grandmother relied upon the following documents:

   a)amended initiating application filed on 10 December 2012;

   b)affidavit of the applicant grandmother filed on 10 December 2012.

9. The first respondent mother filed an amended response on 26 June 2012 and in that response the mother sought in summary the following orders:

   a)that the mother and father have equal shared parental responsibility in relation to the children;

   b)that the children live with the mother;

   c)that the children spend time with the father from 9.00am to 5.00pm one Saturday and Sunday each month and at such other times as agreed between the parties;

   d)that the father have telephone contact with the children each week between 6.00pm and 7.00pm and on other special days;

   e)that the father’s time be supervised by the paternal grandparents;

   f)that the father’s time be spent with the children in [T];

   g)that the children spend time with the applicant grandmother as agreed between the applicant grandmother and the mother.

10. At trial the mother relied upon her affidavits filed on 2 May 2012 and 26 June 2012 together with an affidavit from her present partner Mr M filed on 26 June 2012.

11. The respondent father filed a response on 10 January 2012 and in that response sought orders that in summary provided for:

    a)the mother and father to have equal shared parental responsibility for the children;

    b)that the children live with the mother;

    c)that the children spend time with the father one weekend each month from 4.00pm Friday to 5.00pm Sunday, during school holidays at the conclusion of terms 1, 2 and 3 for one week and for a period of three weeks during the Christmas school holidays, the Father’s Day weekend from 4.00pm Friday to 5.00pm Sunday and otherwise as agreed between the mother and father;

    d)that the children spend time with the applicant grandmother as agreed between the father and mother;

    e)the father also sought various specific issues orders that would facilitate the children's time and entitle him to information in relation to the children's progress.

12. At trial the father relied upon his affidavit filed on 7 December 2012.

13. The proceedings first came before the court on 20 February 2012 on the application of the applicant grandmother. On 9 March 2012 the court made a location order so as to facilitate the whereabouts of the mother and children being known in order that service could be effected.

14. On 29 March 2012 following service the proceedings were again listed before the court. On that date the mother appeared by phone and the father in person. Proceedings were adjourned to 3 May 2012 for directions or interim hearing if necessary. The mother and father were ordered to file and serve a response and affidavit in support of any orders sought by 27 April 2012. The parties were ordered to attend a child dispute conference with a family consultant on 17 April 2012 and the mother was granted leave to attend that conference by phone.

15. The matter was again before the court on 3 May 2012 on that date an independent children's lawyer was appointed for the subject children and proceedings were adjourned to 26 June 2012 for further directions.

16. On 26 June 2012 the matter was adjourned for hearing commencing Monday, 17 December 2012, a family report was ordered with release of that report requested by 26 October 2012 and the matter was listed for directions on 26 November 2012 to facilitate directions for trial being made. Otherwise the court ordered by consent that the applicant grandmother be at liberty to communicate with the children by card or letter and that the mother do all things necessary to bring such cards or letters to the children's attention and read the contents of such to the children in an appropriate manner.

17. On 5 November 2012 the family report was released by the court to the parties and the independent children's lawyer. On 26 November the court made trial directions and confirmed the matter for hearing commencing 17 December 2012.

Background

1. The oral evidence in these proceedings was given in the context of relationships that over a long period of time have been waxing and waning. There is no doubt that particularly the applicant maternal grandmother and the respondent mother have a relationship that is conflictual and emotionally charged. The court deals in detail with the nature of this relationship and its history in the reasons set out below.  As to the evidence of the applicant maternal grandmother and the mother the court is not satisfied completely that they presented to the court as witnesses of absolute truth. However with the overshadowing nature of their relationship, the lengthy history that was cross-examined upon and the adverse emotional underpinning of that relationship the court is not satisfied that in all the circumstances it should prefer the evidence of one as against the other.  The court is satisfied that mostly they were frank with the court and did their best to give evidence as to their recollections as accurately as possible. However the court is satisfied that the accuracy and reliability of their respective recollections was compromised by the emotional circumstances of their relationship and particularly the litigation in which they have found themselves.

2. The applicant grandmother is presently aged nearly 48 years. The applicant is now married to Mr W who is aged 47 years.

3. The subject children are aged five and three.

4. The respondent mother is presently aged 26.

5. The applicant grandmother has had a significant involvement in the lives of the subject children since the birth. That involvement came about by reason of the difficult circumstances experienced by the father and mother with two young children and as a consequence of the applicant’s interest in the welfare of the children.

6. The applicant gives detailed evidence of her involvement in the lives of the children and the mother and father. Her affidavit runs to some 221 paragraphs and in disturbing minutiae she deals with almost every aspect of her relationship with the children and the mother and father over the short lives of these young children.

7. The applicant grandmother makes trenchant criticism of the mother, her parenting capacity and the circumstances the children found themselves in during the continuation of the relationship of the mother and father.

8. The relationship between the mother and father commenced in 2006. When the mother fell pregnant with the eldest child in February 2007 she was living at home with the applicant grandmother. At this time the mother acknowledges that she was struggling with the pregnancy. She says that the applicant grandmother said to her "well if you can't handle it, I'll take the child".

9. With the impending birth of the child in late 2007 there was conflict between the mother and the applicant grandmother about the child's surname. The mother indicating that she would give the child the father’s surname and the applicant opposed that course alleging that the mother was disrespectful of her by not giving the child the mother's surname. This was a significant issue between the mother and the applicant during the mother's pregnancy. In October 2007 the mother and father obtained a rental property together at [N]. The mother did not give the applicant her new address in an endeavour to distance herself from the applicant for a period of time.

10. However the applicant was able to ascertain the mother’s address and attended at those premises uninvited. The mother describes her relationship with the applicant at this time as toxic with the applicant attending at the [N] property uninvited on a regular basis.

11. Following the birth of the child in November 2007 the mother remained at home caring for the child whilst the father was in employment supporting the household.

12. The father had a significant role thereafter in the day today care of the children.

13. In early 2008 the mother and father and young child stayed in the applicant’s home for a period of time. During this time they witnessed an incident between the applicant and her husband and observed them spitting in each other's faces.

14. The applicant asserts that the mother and father left her home by reason of unpaid rent due to the applicant notwithstanding they were young parents with a young baby.

15. Subsequently the mother and father lived at various premises and on occasions in the applicant’s home.

16. The mother says that from March 2008 over the next two years the applicant would babysit the eldest child almost on a weekly basis despite her objections. The mother says that she felt dominated by the applicant but notwithstanding that she perceived her to be a good grandmother.

17. In June 2009 the youngest child [Y] was born. During this year the mother asserts there were some domestic violence incidents between herself and the father although it is acknowledged that such incidents were instigated by both of them.

18. Following the birth of the youngest child the applicant did not babysit that child until the age of six or seven months but thereafter the applicant would assist with the care of the child on a fortnightly basis.

19. Again in December 2009 the mother witnessed a domestic incident between the applicant and her present husband and became concerned that whilst in the care of the applicant the children might be exposed to domestic violence. At this time the applicant said to the mother "[Mr W] and I have had some pretty bad fights".

20. In about March 2010 the mother and father separated. The father returned to reside at his parent’s home with both children. The youngest child remained in the father's care at his parent’s home until August 2010 and during this period the father enrolled the child in day care.

21. The mother asserts that she arranged for the father to mind the children at his parent’s home until such time as she was able to obtain her own independent accommodation. The mother and father agreed to meet each Sunday to spend time with the children together.

22. During this period the mother stayed with her sister for a few weeks and the eldest child was with her for about three days a week, with the father for two days and with the applicant for two days. The applicant placed the eldest child in day care without the mother's consent.

23. The mother also became aware that the applicant was attending at the father's home and demanding that she take the eldest child. This circumstance is confirmed by the father.

24. During this period there was an argument between the applicant and the mother during a phone call. The applicant criticised the mother’s parenting in circumstances where the mother replied that she was having difficulty obtaining rental accommodation as a single mother. The mother informed the applicant that she would be attending the applicant’s home to pick up the eldest child. The applicant responded words to the effect of "no I'm keeping her. She is more my daughter than yours… I'll see you in court, she's always been mine. Don't you dare come over."

25. That evening the mother attended at the applicant’s home with the police and recovered her daughter. It was at this time that the applicant first threatened court proceedings against the mother.

26. After the incident the mother did not permit the applicant to have contact with the children for several weeks but thereafter with the eldest child intermittently.

27. In about August 2010 the mother obtained a rental property at [omitted] and she occupied that property with both children in her care.

28. It was about this time that the mother's present partner, whom she had known since 2002, became engaged with the children and to the mother’s observation there were positive changes in the children now that she was more settled and in a regular relationship.

29. Mr M, the mother’s present partner is presently enrolled in a Masters course at [omitted]. His father is a self-employed businessman in [omitted], near [T]. His stepmother is a [occupation omitted] in [T] and his mother works for [omitted] in Sydney.

30. The mother says that the relationship with the applicant improved and to her observation the volatility in the applicant’s relationship with the husband had settled. She permitted the applicant to babysit from time to time.

31. The mother facilitated the children seeing the father each weekend from about 6.00pm on Friday until about 5.00pm Sunday.

32. Not long after this arrangement commenced the applicant commenced returning the eldest child to the mother on Sundays and the father would separately drop off to the mother the youngest child. The mother ascertained that the applicant would attend the father’s home on Saturday evening and demand the eldest child. This was against the mother's wishes as she believed that the children should be spending time together with their father.

33. Notwithstanding the mother's wishes the father continued to accede to the applicant’s demands in relation to the eldest child. The father asserts that he felt powerless in relation to the applicant demanding the child. The mother expressed her concerns to the applicant and the applicant was dismissive of her.

34. Thereafter the mother asserts that the applicant commenced to attend at the mother’s home on a regular basis uninvited. On one occasion the applicant arrived with "court papers" and demanded that the mother sign the papers saying "they state that I have rights and will have regular weekly contact with the children on the weekend". The mother refused to sign the documents.

35. Thereafter the applicant attended at the mother’s premises regularly with repeated requests for the mother to sign the documents. Ultimately the act applicant told the mother "I'll take you to court and then you'll have to sign the papers."

36. In September 2010 the applicant attended at the mother’s home. Present at the home was the mother, the children and the mother's present partner. The applicant demanded to see the children. The mother explained that they were otherwise engaged. The applicant commenced screaming at the mother to open the door and pounding her fists on the door, and threatened to kill the mother. The applicant's behaviour escalated to the extent that the mother threatened to call the police and did so. The applicant had left the mother’s premises. The police attended and advised the mother to take out an apprehended domestic violence order.  This incident is referred to in documents comprising Exhibit K.

37. Subsequently the applicant pressured the mother to withdraw the apprehended violence complaint. Ultimately the mother was apprehensive about attending court and did not appear and as a consequence the apprehended violence complaint was dismissed.

38. Subsequent to this incident the applicant did not contact the mother for some months but the applicant continued to impose on the father's time with the children. The relationship between the mother and the applicant gradually restored.

1. In November 2010 the youngest child was taken to hospital by the father. The child was later diagnosed with a broken collarbone. The applicant planted seeds of doubt in the mother’s mind as to the father’s conduct saying "I think [Mr Bray] has done something to [Y], you know how violent he is. I spoke with him and he sounds like he is hiding something". The mother understandably became somewhat cautious about the father.

2. In December 2010 the applicant commenced demanding time with the children. The mother asserts that when spending time with the children the applicant overindulged them with clothing and toys to the extent that the eldest child became critical of the mother referring to the applicant’s home as "that's where all my nice toys and clothes are" and "our house is yucky, it's too small". The child [X] commenced throwing temper tantrums on return from the applicant’s home with the applicant asserting that the child was exhibiting separation anxiety from her. The mother subsequently became concerned about the nature of the relationship between the eldest child and the applicant, particularly when the applicant said to the child "I am your mummy too".

3. In March 2011 the mother had managed to wean the eldest child off her dummy and bottle. The mother notified the father and the applicant of her success in this regard. However shortly thereafter the child returned from the applicant’s home with a dummy in her mouth and the child disclosed to the mother that the applicant had also provided the child with a bottle.

4. In April 2011 the mother moved in with her present partner and a male friend of her present partner in share rented premises in [omitted]. The mother did not provide to the applicant her address for about a month. Upon resuming contact with the applicant, the applicant once again raised the question of her making a court application for orders in relation to the children. The applicant said to the mother: "don't think of ever not giving me your address, [Mr W] works at [omitted], we’ll find you on camera. You can't run from me. I'll spend as much as I need to track you down. I've got a whole file and you, I'll have you prosecuted. This will go to court".

5. The applicant resumed spending some time with the children and the eldest child became more disparaging of the mother and her partner following time at the applicant’s home. The strong inference is that the applicant was denigrating the mother, her partner and the mother's circumstances to the child.

6. Subsequently in August 2011 the applicant alleged to the mother that the eldest child had disclosed that the mother's partner had smacked her on the head and violently attacked her and that the child did not want to go home as she was scared. None of the child’s alleged disclosures had been independently witnessed. Surprisingly the applicant returned the child to the mother's care.

7. In relation to these alleged disclosures by the child [X] the applicant made a notification to the Department of Family and Community Services (Exhibit L). In addition to the immediate complaint she asserted that the father of the children had been stopped from seeing the children, that the mother and her partner were marijuana smokers, that the eldest child had a speech delay and that she intended to have the child assessed and that the mother was suspected of having diagnosed depression. On a history check the department noted there had been 14 previous reports in relation to the eldest child between 4 November 2007 and 2 August 2011 and that such reports made complaints about medical treatment not being provided, psychiatric disability of the carer, domestic violence, the child being exposed to domestic violence and the emotional state of the carer. The strong inference is that all of these notifications have been made by the applicant.

8. The documents admitted into evidence from the Department of Family and Community Services show that on 15 August 2011 the applicant made a further notification to that department in relation to the youngest child [Y]. The applicant informed the Department that some time prior she had taken her concerns to the Family Relationship Centre and following the non-attendance by the parents had obtained a certificate permitting her to commence family law court proceedings. This was according to the applicant due to the father of the children being abusive to the mother.

9. The applicant asserted that the mother's new partner also displays emotional abuse. The applicant further asserted that the mother's current partner has withdrawn the mother from her family. The applicant also complained that a year previously the youngest child had a broken collarbone which was not noticed by the mother. She further complained that the mother was living in premises also occupied by a drug user, that her present partner uses marijuana and that the mother had previously used cocaine.

10. The applicant further asserted to the Department that the mother's present partner displayed emotional abuse, displayed anger by breaking things, would raise his voice and made threats to harm the mother if anyone takes the child away. She further complained that the mother left the children with people she did not really know. She asserted that the mother's partner had had a previous mental health breakdown and that the mother had paranoia.

11. It appears that upon reflective assessment the Department took no action in relation to the applicant’s notifications.

12. The relationship with the applicant was most strained at this time. The eldest child was having sleeping problems and behavioural issues after returning from time with the applicant. The mother became more and more concerned about the applicant's favouritism towards the eldest child.

13. In about June 2011 the children commenced to spend alternate weekends with the father. Then in July 2011 the mother informed the father that as the children were going to dancing school on the weekends he would not be able to spend time with them for about two months.

14. The father became concerned about his lack of time with the children particularly when he became aware that the applicant had seen the children. The father attended the Family Relationship Centre in [omitted] to try and facilitate mediation between him and the mother. The mother refused to participate in mediation telling him that she would never sign anything in relation to the children and wanted arrangements to be sorted out between them.

15. At this time the mother was nearing the end of her pregnancy with the child of her relationship with her present partner. They discussed together moving to [T] New South Wales to be nearer to her partner’s family that the mother perceived would be more supportive of her and the children than her circumstances in Sydney.

16. The mother’s relationship with the applicant deteriorated further. The applicant sought the mother’s consent to open bank accounts for the children and the mother refused. The applicant sought to take the children on holidays and the mother refused. In August 2011 therein issued SMS communication between the applicant and the mother and such communication reveals the disturbing mindset of the applicant.

17. In late August 2011 the mother, her partner and the children relocated to [T]. Once in [T] the mother contacted the applicant and the mother asserts that the applicant behaved in a hysterical manner when told that she would not be provided with the mother's address.

18. Subsequent to the mother's relocation with the children to [T] the applicant contacted the mother’s partner’s family members seeking to obtain information as to the whereabouts of the children. The applicant asserted to those family members that the children were in danger.

19. On 20 September the mother telephoned the father and advised him that she and her partner and the children had moved to Queensland. The mother refused to give the father her new address.

20. On 25 September 2011 the applicant attended at [omitted] police station seeking information about the mother's whereabouts. The applicant asserted that she had concerns as to the welfare of the children. The police contacted the Department of Family and Community Services that confirmed that a file had been created for the children although there had been no history of violence and there were no grounds for taking any action and that the Department had no fears for the children's well-being at that time. The mother when contacted by the police confirmed that she did not wish to have contact with the applicant nor to disclose her whereabouts to the applicant. (Exhibit K)

21. In November 2011 the father filed a missing persons report with the New South Wales Police Service (Exhibit K)

22. Regrettably in her move to [T] the mother failed to have regard to the interests of the children's father in maintaining regular contact with the children. However the mother and father subsequently implemented an arrangement that facilitated the children resuming their relationship with the father. The mother observes that the children settled well after the move to [T].

23. In April 2012 the mother contacted the father and on 18 May 2012 the mother facilitated the father having time with the children at his parents’ home. Since then the father has had regular contact with the children speaking to them by phone weekly.

24. In July 2012 the father had time with the girls in [T] and the relationship between he and the mother in relation to the children was on a much firmer footing. Thereafter the father has seen the children on a monthly basis and on occasions more regularly prior to hearing. The father expresses satisfaction with the arrangements that have been made between himself and the mother.

25. During the course of proceedings the issues as between the mother and father in relation to the father's time with the children were resolved by consent orders made on 19 December 2012. Those orders provide in summary:

    a)that the father and mother have equal shared parental responsibility for the children;

    b)that the children live with the mother;

    c)that the children spend time with the father during school term each alternate weekend from 5.00pm Friday to 5.00pm Sunday, half of school holidays as agreed between the mother and father, Father’s Day, each Boxing Day and at other times as agreed between the mother and father.

26. The consent orders also provided that the children spend time with the applicant as agreed between the mother, the father and the applicant.

27. About 7 December 2012 the mother and her partner and the children returned to reside in Sydney. They have taken a 12-month lease on a home in Sydney's northern suburbs. The father has had overnight time with the children at his parents’ home since their return to Sydney.

28. Prior to the mother and her partner returning to reside in Sydney there was an incident at their residence in [T] on 12 September 2012. As a consequence of that incident the mother was charged with common assault, damaging property and use of an offensive weapon to commit an indictable offence. Those proceedings are as yet unresolved. The mother gave evidence as to the circumstances of the incident in respect to which she was granted a section 128 Certificate. It is clear that the incident was regrettable but also clear that the mother and her partner have put the issue behind them.

NSW Police Service Documents

1. Documents produced on subpoena by the New South Wales police service were admitted into evidence as Exhibit K.

2. It is of note that:

   a)that on 8 April 2010 police attended the home at the applicant and her present husband as a consequence of a domestic violence incident between them;

   b)that on 27 March 2010 police attended the home at the applicant and her present husband in relation to a domestic violence incident between them. The police notes reveal a recent history of domestic incidents between the applicant and her husband of both verbal and physical nature the more recent being in late 2009;

   c)that on 6 September 2009 the police attended the home of the applicant and her present husband in relation to a domestic violence incident between them. On this occasion the eldest of the subject children was present in the household, asleep upstairs. On this occasion the applicant was advised by the police to leave the home and stay elsewhere overnight. The police and the observed that both parties appear to be slightly intoxicated;

   d)that on 5 April 2009 the police attended the home of the applicant and her present husband in relation to a domestic violence incident. The applicant’s husband was observed to be slightly affected by alcohol, smelt of intoxicating liquor and was unsteady on his feet;

   e)that on 16 August 2008 the police attended the home of the applicant and the husband in relation to a domestic violence incident. On this occasion the eldest of the subject children was in the household. The police observed that both parties appear to be slightly intoxicated;

   f)that on 25 April 2010 following an argument with the mother the applicant attended at [omitted] police station alleging that the mother was not a responsible parent and often under the influence of drugs. The applicant wanted the children to stay with her prior to the children going to the father’s. The police attended at the mother’s premises to find there were beds in the home for the children, plenty of food and clothing and nil concerns for the children's welfare.

The Family Report

1. On 17 April 2012 the parties attended upon a family consultant for the purposes of a child dispute conference. The subsequent memorandum was admitted into evidence as Exhibit E.

2. The memorandum noted that as between the mother and father there had been agreement in relation to the children's time with the father and that accordingly the prime area of dispute was between the mother and the maternal grandmother. At the time of the memorandum the maternal grandmother had no contact with the children since September 2011 and the mother requested that there be no orders with respect to the maternal grandmother spending time with the children.

3. There was noted a disagreement between the parties as to the extent of the maternal grandmother's involvement with the children historically.

4. The memorandum noted the maternal grandmother's suggestion that the mother could relocate to Sydney with the children and live in the maternal grandmother's home although presumably not with her current partner. The mother considered this proposal to be highly unrealistic in view of their problematic relationship and her perception of the maternal grandmother as a controlling person who wants to effectively take the mother’s place in relation to the children.

5. The memorandum notes that the maternal grandmother alleges, in summary, that the mother uses drugs as does her current partner, fails to supervise the children properly, has exposed the children to domestic violence in her past relationship with the father and in her relationship with her current partner, fails to protect the children from her partner who according to the maternal grandmother picks on the children and has significant mental health issues. The mother, it was noted, denied these allegations. The memorandum also notes that the maternal grandmother had made a child protection report.

6. Subsequently the court released the family report on 5 November 2012. The family report was prepared in the context of the mother at that time living in [T] with the children. The report writer noted that the agreement as to the children's time with the father as noted in the memorandum above had been implemented and had been in place for about six months.

7. Otherwise the report was prepared in the context of the applicant grandmother’s original application whereby she sought that the children live with her.

8. In interview with the applicant the report writer noted the applicant’s concern about the children living within the mother's present relationship with her partner Mr M. She had retained the services of two private investigators in an endeavour to find the mother after the mother’s unilateral relocation out of Sydney.

9. The applicant's own domestic circumstances involved an initial marriage where alcohol and domestic violence were a factor. It is clear from the police material before the court that the applicant’s present relationship also has the same hallmarks.

10. The applicant asserted to the family report writer that she and the mother are "very close" in spite of the difficulties in their relationship. The applicant was dismissive about the possibility that her current court action may adversely affect her relationship with the mother. It was the applicant's view that if the mother resided with her that she and her present partner would separate. The applicant described a vacillating relationship with her daughter, noting that only shortly prior to the report interviews she had travelled to [T] at her daughter’s request as a consequence of the serious incident that took place in the mother’s household in September.

11. The applicant asserted that the mother's current partner had bashed her black and blue when she was pregnant with her most recent child and she attributed the violence in the relationship between the mother and the father in these proceedings to the mother as being the instigator of most of the incidents. The applicant spoke very negatively about the mother's relationship with her present partner and that the mother had started hiding her relationship with the mother from her partner from the beginning of 2012. This assertion seems somewhat inconceivable as a consequence of the evidence referred to above. The applicant also asserts that the mother's partner is controlling of her and these proceedings.

12. The applicant contrary to the evidence at trial asserted that the mother's new partner was staying home full-time to help the mother, as she was unable to care for the children without his assistance. The applicant further asserted that the mother does not have a close relationship with either of the children and asserts that the mother has told her that both children were "not born of love". The applicant further asserts that the mother was never there for the children. The applicant acknowledged that she was aware that reports had been to the to the Department of Family and Community services in relation to the mother’s care of the children. This knowledge is not surprising as it was the applicant that made such notifications.

13. The mother on interview said she would rather that neither she nor her children had any contact with the applicant. She asserted a very difficult relationship with the applicant since she was 12 years of age. This assertion is supported by the police material in evidence.

14. More importantly the mother regarded the applicant as a compulsive liar and said she was emotionally dominating of her and often reduced her to tears. She felt that her mother was unsupportive particularly in relation to the mother’s complaint of inappropriate sexual behaviour by her maternal great-uncle when she was younger.

15. The mother expresses a sense of powerlessness in the context of her relationship with the applicant. She finds it difficult to stand up to her. She asserts that the applicant has wanted a parental role ever since the birth of the first child and the applicant has no respect for the mother as a parent. The mother also expressed disappointment that the applicant had endeavoured to turn her against the father by suggesting that he might present some risk of harm to the children with this occurring in relation to the broken collarbone incident.

16. Appropriately the mother conceded that the children had spent frequent amounts of time with the applicant although the mother was critical of the applicant’s tendency to favour the older child and to neglect the younger.

17. The father in interview described the applicant as "controlling and annoying" and her relationship with the mother as "up and down". He said that they would clash and there were times when they would not speak to each other.

1. Significantly he acknowledged that the mother's partner had a beneficial influence on the children. He thinks that by reason of having less time with the applicant the eldest child is now no longer having tantrums as she did previously and that both children seem to be more relaxed. To the father’s observation the children appear happy to be with the mother's partner and often run to him for reassurance and comfort, describing him as a great father figure for the girls.

2. The father also identified the disparity in the relationship between the applicant and each of the children.

3. The applicant’s present husband was interviewed and was disparaging of the mother’s present partner and the nature of their relationship. Regrettably he did not reflect upon the nature of his relationship with the applicant as demonstrated by the police records in evidence.

4. The mother's partner Mr M informed the report writer that he had known the mother for many years. He acknowledged that they argue because of the stress of the current proceedings. He acknowledged the more recent incident in their relationship and his willingness to attend relationship counselling with the mother.

5. He informed the report writer that in the early stages of his relationship with the mother he had encouraged her to repair her relationship with the applicant but that once the applicant had made allegations that he had assaulted the eldest child he "gave up".

6. He regarded the applicant as a compulsive liar and perhaps even "a semi-psychopath".

7. The children presented to the family report writer as healthy and well cared for children. The report writer observed that both appeared to be meeting their developmental milestones although the eldest child’s speech was at times a little hard to decipher. In observation there was nothing unremarkable.

8. However when observed with the applicant she made a number of comments about how much she loved the children including "who loves you this much" while holding her arms wide apart. The children failed to respond to this gesture. The applicant also asked the children a number of questions about what they remembered about what they have done with her previously.

9. In evaluation the report writer concludes that whilst there has been considerable instability in the mother's life it does not appear that the children are at risk of harm while in her care. The report writer noted that there was nothing in the subpoenaed material that suggested that the Department of Family and Community Services have ever held the view that the children are at risk of serious harm in their mother's care, although at times as conceded by the mother they have been exposed to domestic violence.

10. The applicant believes that the mother should separate from her present partner for the children's sake.

11. The report writer notes that it is evident that the mother has had major difficulties in her life from an early age and that these difficulties may relate to her exposure to family violence in her mother's household, her parent’s separation and sexual abuse. Her relationship with the applicant has been difficult and conflicted since she was a young adolescent and the mother seems to have found it hard to establish herself independently from the mother and seems to have turned to her for assistance when she has felt insecure or alone.

12. The applicant, observes the family report writer, seems to hold a rather conflicted view of her daughter that has existed for many years. On one level she appears to be supportive especially when her daughter is vulnerable but uses those occasions against her daughter.

13. It is clear from the applicant’s oral evidence that she has great difficulty in accepting that her daughter may wish to live her life independently of her and has no understanding of the nature of her daughter’s troubled relationship with her, asserting that her daughter’s concerns are due to some external force that is setting her up.

14. She did not see that she had done anything to warrant the parent’s opposition to her time with the children and conceded that her affidavit failed to say one positive thing about the mother yet conceding positive things in cross-examination. The applicant accepted that the allegations and criticisms in her affidavit of the mother would have had a damaging effect on the mother’s relationship with her, suggesting that some aspects were included on legal advice. The applicant asserted that her daughter was a liar in denying many of the applicant’s allegations and in her own evidence.

15. The applicant still professes concerns as to the mother, saying that the children need to be protected from various men in the mother’s life, that the mother does not react in a reasonable way and the mother needs to be protected because of her partner’s control of her and that she would do anything to keep her present partner. The applicant did not concede that orders sought by her as to the children were intrusive.

16. The report writer concludes that the applicant seems to lack insight into the effect that her input is having on her daughter’s parenting capacity. She seems to either not be aware of, or is choosing to ignore the effect that her action in seeking orders that the children live with her is having on her daughter.

17. The report writer notes that it is not in either the parents or the children's best interests that a grandparent’s involvement undermines a parent’s capacity. This is of particular significance in circumstances where the mother presents as a very vulnerable young woman.

18. Relevantly the report writer recommends that the children's time with the applicant be in accordance with the parent’s wishes.

The Family Report Writers Oral Evidence

1. In response to the Independent Children’s Lawyer the report writer said:

   You’ve said in your report that in the course of your assessment you identified a further issue, and that was the extremely poor relationship between the maternal grandmother and the mother.  Can you tell us how this impacts the relationship between the children and the maternal grandmother? ‑‑Well, if – I think, given the difficult relationship between the mother and the grandmother, that sometimes I think the grandmother may undermine the mother’s parenting capacity, and I think that’s – and that obviously affects the children, in terms of their relationship with their mother, and also their relationship with their grandmother, and so there’s a split, I think, that the grandmother may attempt to place between the children and their mother, and view her in a more favourable light than their mother.

   At the present time, the children’s primary attachment is with the mother;  do you agree with that?‑‑‑Yes, yes.

   And this undermining that you’ve described does threaten that attachment?‑‑‑Yes, it does.  Yes.

   We can assume that that would have serious consequences for the children on a long‑term basis?‑‑‑Yes, it would.

   Could you elaborate at all on that?‑‑‑Well, children’s – the  that  children have to their primary carer provides the basis of their future relationships, especially close personal relationships as they grow older, so that if attachments are undermined, or if they’re not secure, then that can make it very difficult for children to have positive relationships in later life.

1. The report writer gave evidence in cross examination of:

   a)the adverse impact on the mother of court ordered time for the children with the applicant;

   b)the applicant continually denigrating the mother and her parenting;

   c)the applicant’s inappropriate attempt to video the children whilst questioning them in an attempt to throw a poor light on the relationship of the mother and her present partner;

   d)the applicant’s lack of insight as to the consequences for the mother of her behaviour.

2. In cross examination by Counsel for the mother, that the court assumes was on instructions, the applicant showed little understanding or insight into the impact of her behaviours and indeed the course of the litigation on the mother.

3. Notwithstanding counsel for the applicant approaching his client’s case from different angles in cross examination of the report writer, the report writer remained steadfast in her recommendations.  

The Law

1. The following sections of the Family Law Act 1975 are relevant:   

   
   s.64B(2)(b):

   (2)   A parenting order may deal with… 

   ……………

   (b)  the time a child is to spend with another person or other persons;
   
   

   s.64B(6)(b)

   ……………
   ( b)  a parenting order that provides that a child is to spend time with a person is made in favour of that person;

   s.64C

   “A parenting order in relation to a child may be made in favour of a parent of the child or some other person.”

   s.65C(ba)

“ A parenting order in relation to a child may be applied for by:

……

(ba)  a grandparent of the child….

1. These sections indicate that the applicants have standing to bring the subject application.

2. As was observed by Coker FM in Oldfield [2012] FMCAfam 22 commencing at [110]:

   “………rather the starting point must be in this instance where the parents remain together, the provisions of section 43 of the Family Law Act. Section 43 is in these terms:

   PRINCIPLES TO BE APPLIED BY COURTS

   43(1)  The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:

   (a)the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

   (b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;

   (c)the need to protect the rights of children and to promote their welfare;

   (ca)the need to ensure safety from family violence; and

   (d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.

   I make reference specifically to that particular aspect of the matter, because section 43 is directive insofar as any court exercising jurisdiction under the Act is concerned and in its approach.  Section 43 notes that the court shall, in the exercise of its jurisdiction, have regard to the need to preserve and protect the institution of marriage as the union of a man and a woman, to the exclusion of all others and, additionally, to have regard to the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society and, specifically:

   …particularly while it is responsible for the care and education of dependent children.

   It is noteworthy that there is reference to the term, “family”, and in section 4 of the Act there is no specific definition of what constitutes a family……..

   I make reference specifically to this aspect of the matter, because the reference to the family unit (what is sometimes described as the nuclear family) is, in my assessment, the unit of society comprised of a man and a woman and the children of that relationship, whether they be adoptive children or the biological children of the parties.”

3. In Church v T Overton & Anor [2008] FamCA 965, Benjamin J made comment about whether or not grandparents have a special entitlement to see or communicate with grandchildren.

4. His Honour said commencing at [25]:

   “Do grandparents have special entitlements to see or communicate with grandchildren?

   25. The Family Law Act places parents in a special position in respect of their children.  The objects and principles (s 60B supra) clearly set out their importance.  The primary considerations (s 60CC(2) of the Act) weight the importance of a meaningful relationship between child and parent against the need to protect a child from harm.

   26. The Family Law Amendment (Shared Parental Responsibility) Act 2006 amended various sections of the Family Law Act in relation to parenting orders and made explicit reference to grandparents.

   27. On face value the amended Act does not invest grandparents with a special category of rights or position over and above other people who might be significant to a child’s care, welfare and development.  The only people in such a special category are parents.  The principles which support the objects of Part VII of the Act – the part dealing with children - refer to grandparents. Section 60B(2)(b) says:

   children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).

   28.    Grandparents are included with “other relatives” as an example of the class of people who may be able to establish that they are significant to a child’s care, welfare and development, and if that is the case and it is in the best interest of the child then the child has a right to see that grandparent.

   29.    The Explanatory Memorandum accompanying the 2006 amendments explained as to s 60B(2):

   “39. Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child's life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children.”

   30.    The legislation specifically empowers a grandparent to apply for a parenting order.  Section 65C of the Act states (emphasis added):

   “A parenting order in relation to a child may be applied for by:

   (a) either or both of the child's parents; or

   (b) the child; or

   (ba) a grandparent of the child; or

   (c) any other person concerned with the care, welfare or development of the child.”

   31.    Parenting orders can be made in favour of grandparents, who are given a specific inclusion in section 64B of the Act. This is not surprising as sometimes grandparents are the sole stable feature in the lives of some children.

   32.    Grandparents are also referred to section 65G of the Act, in which the legislature imposes some conditions upon a court if a residence order is to be made otherwise than in favour of a ‘parent, grandparent or other relative of the child.’ This gives grandparents some special significance in terms of parenting.

   33.    Of the 2006 amendments the Explanatory Memorandum said in respect of s60CC(3)(d) and 60CC(3)(f):

   “60. Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification. Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to grandparents or other relatives. The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child's circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship. New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives. This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents.

   62. Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification. Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents or other relatives. This provision provides that in determining the best interests of the child, the court should consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs. The amended paragraph 60CC(3)(f) recognises the importance of the relationships that the child has with wider family, in particular grandparents.”

   34.    In his second reading speech to the Bill in the House of Representatives on 8 December 2005 the Honourable Phillip Ruddock said:

   “The bill contains changes to better recognise the interests of children in spending time with grandparents and other relatives, who also play an important role in the raising of children.”

   35.    On the literal reading of s 60B if the particular grandparent is not significant to the child’s care, welfare and development it seems the child has no statutorily enshrined right to spend time with them on a regular basis.  Given the paramountcy of the child’s best interests, however, regular time might be ordered. Reading the totality of the amendments in the context of the explanatory memorandum it is clear that the legislature was endeavouring to acknowledge the importance of grandparents and other relatives in the lives of children.

   36.    Counsel for the grandfather submitted that the community is increasingly aware of the role and importance of grandparents in children’s lives and that this is reflected by the 2006 amendments.  He further submitted that whilst it would be unusual for a stranger who has had no relationship with a child to apply for a “time” order, it would not be unusual for a biological relative such as a grandfather to seek a parenting order for a child they had never seen, saying:

   They have a relationship with that child by virtue of their biological/genetic connection.  That connection is the cultural, family and genetic heritage of the child and the court should not lightly disregard the importance to the child of “knowing” their family background especially where that parent or grandparent has the capacity and is willing and able to provide that connection and care.

   37.     The independent children’s lawyer said in his closing submissions:

   There has been recognition of the role of grandparents for some time in the Family Law Act. It’s an implicit recognition of their role because they have been specified as people who can make applications but at no stage has the legislation given them any rights over and above any other person to make an application for contact, or indeed, for a parenting order. They are there as an example and no doubt the legislation had in mind bringing the particular position of grandparents as significant persons to the attention of the court, but the important words are “people significant to their care, welfare and development…

   38.    It is clear that the Act has been specifically amended to refer to grandparents at various points. The legislative intent is that interested grandparents should be specifically considered and recognised when determining which orders to make in the best interests of a child.

   39. In Sampson & Jacks [2008] FamCA 176, O’Ryan J said at [32];

   In my opinion, the importance of children having a relationship with extended family including grandparents was recognised even prior to the amendments made by the Family Law Amendment (Shared Parental Responsibility) Act 2006. A number of cases dealt with issues regarding applications by persons who were not biologically related to a child but were people significant to the care, welfare and development of a child.

   40. The Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interests.  However, any determination of the best interests of a child or children should be informed by the family dynamics between the children’s parent/s and grandparent/s. In that regard, the views of the parents are significant but not necessarily determinative.

5. His Honour further said commencing at [60]:

   60. If a court is satisfied that an approach to the upbringing of a child by a parent or parents in whatever way is contrary to that child’s best interests, then the court should interfere by putting in place appropriate orders. In the absence of substantive issues as to the child’s best interests, it is not the role of a court to peer over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all.

   61.  That is not to say that a parent who acts capriciously in isolating a child from a grandparent with whom the child had a meaningful relationship ought not be the subject of orders, nor should this derogate from the role of the many grandparents and relatives who have taken up the care of children in circumstances where the parents were unable or unwilling to care for them.

1. Her Honour Justice Ryan in Russell [2009] FamCA 28 considered exhaustively the impact of the 2006 amendments to the Family Law Act 1975 and whether they elevated parents over others in determining the child’s best interests and concluded at [141]:

   “Although the pathway and list of factors by which the Court determines a child’s best interests is somewhat altered under the present Part VII it is critical to the resolution of the parent’s submission that the Court must regard the best interests of the child as the paramount consideration.  Consequently the Court’s capacity and obligation to deliver individual justice for the child has not been compromised.  While the Court must consider the various rights, principles and factors identified in s 60B and s 60CC these remain subject to the child’s best interests.  The logic of the approach adopted by the Full Court in B v B: Family Law Reform Act 1995 (supra) to the significance of the best interests principle as the ultimate determinate applies with equal force to parenting cases decided under the current Part VII.  Thus in cases in which parents are parties those objects, principles and factors which refer to parents must be considered in so far as they apply to the child’s parents.  Those which apply to all parties apply to parents and non-parents alike.  Those which refer to other specific categories of people, for example grandparents, apply specifically.  However by virtue of s 60CC(3)(m) the Court may decide that s 60CC(3) factors which refer solely to parents, for example s 60CC(3)(c) ought to be considered having regard to other important people in the child’s life.  Another example might be that reliant on s 60CC(3)(m) the Court considers the benefit to the child of having a meaningful relationship with a grandparent who has been significantly involved in the child’s life.  This makes the various factors inclusive not exclusive.  By virtue of s 60CA the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act.  In a similar vein the Court’s capacity to rebut the presumption of equal shared parental responsibility where the evidence satisfies the Court that it would not be in the child’s best interests refutes any notion that the Act elevates parents above others in parenting cases decided under the present Part VII.    My conclusion that the 1 July 2006 Part VII amendments have not statutorily introduced a presumption in favour of parents accords with the conclusion reached by Young J in Davis v Davis & Anor (supra) and by O’Reilly J in Kay, Jasper and Green (supra).”

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act. The objects of Pt VII are to ensure that the best interests of the child are met by both parents having a meaningful involvement in their child’s lives; that the child is protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.

5. In determining what is in a child’s best interests the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary (sub-s.(2)) and additional (sub-s.(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

6. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless that presumption does not apply in circumstances of abuse, family violence or where it is not in the best interests of the child. This provision does not apply in the context of this matter and thus the provisions of s.65DAA are of no relevance.

7. The Full Court in Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GRR [2010] HCA 4 affirmed the legislative pathway.

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless that presumption does not apply in circumstances of abuse, family violence or where it is not in the best interests of the child. This provision does not apply in the context of this matter and thus the provisions of s.65DAA are of no relevance.

Section 60CC considered

1. Subject to the overriding principles and objects referred to above this matter falls to be determined by reference to the best interest considerations set out in s.60CC of the Act.

2. The court has had regard to all of the factors set out in the section, both the primary considerations and the additional considerations.

3. It is appropriate to have regard to the relevant additional considerations before returning to consider the primary considerations set out in section.

4. As to the subject children’s wishes in considering what weight should be given to the child’s wishes if expressed, the court has regard to the children’s ages and the overarching issues arising out of what can only be seen as the toxic relationship between the applicant and the child’s parents. The risk of the children being enmeshed in the conflict between the applicant and the mother is significant. In all the circumstances the court could afford little weight to any wishes even if expressed by inference or otherwise.

5. In considering the nature of the relationships that the children have with the parents it is clear that they have a primary attachment to the mother. The children’s relationship with their father has been restored following the mother’s temporarily relocation to [T] and orders have been made by consent as to the father’s time with the children. The children’s father considers that the mother’s partner represents to the children a beneficial and significant father figure.

6. The applicant’s relationship with the children for the reasons canvassed above can at best be described as problematic and at worst manipulative, obsessive and presenting a risk to the children’s well-being in the context of their primary relationship with the mother.

7. This factor clearly favours the orders sought by the mother.

8. The parents have taken a position that clearly evidences no willingness or ability on their part to facilitate or encourage the children’s relationship with the applicant unless by agreement. They seek an order that the application before the court be dismissed.

9. The applicant seeks orders that would see her have the ability to become again involved in the children’s day-to-day lives. The impact of the reigniting of her relationship with the children and the significance of any time with the children as it impacts upon the parents, particularly the mother is of great concern to the report writer and to the court.

10. The applicant maternal grandmother lacks insight into her own personality and behavioural issues as they impact upon the relationships in her life, particularly with perhaps the most important figure in the lives of the children, the mother. The court is satisfied that the applicant has no ability to empathise with the needs of the mother and of the children.

11. It is of concern that should the applicant have some form of relationship with the children restored by court order the impact upon the relationship between the mother and the children would be that the parental capacity of the mother is adversely affected and compromised to the detriment of the children.

12. As to the likely effect of any changes in the children’s circumstances the children at present have no time with the applicant save for what appears to have been some coincidental contact. A change in this circumstance that sees a resumption of some form of contact with the applicant presents as contraindicated for the children. The children will on all indications again become immersed in the relationship issues between the applicant and primarily the mother. The reporter writer expresses concerns as to the adverse impact this will have on the mother and in oral evidence regrettably strongly supports there being no time with the applicant.

13. There is no question in the context of the present proceedings that there is any practical difficulty and expense in relation to the children spending time with and communicating with the applicant. However this matter is to be determined by other considerations.

14. In terms of capacity to provide for the needs of the children including emotional and intellectual needs there is no serious issue in this regard as to the mother, her partner and the father.

15. The applicant has resiled from her application that the children reside with her. Inherent in that position is a concession by her that the children should reside with the mother in her present circumstances.

16. However as to the applicant’s capacity in this regard the court has grave reservations, particularly in considering the evidence of the family reporter and the factual matrix of the relationship history between particularly the mother and the maternal grandmother. As opined by the family report writer it is clear that the applicant maternal grandmother lacks insight into her own personality issues and reflective capacity so as to appropriately consider the issues raised by her own conduct and emotional responses insofar as they impact upon the children and more particularly the mother.

17. The court is satisfied that there is a strong prospect that a resumption of the relationship between the children and the applicant would be a negative for the children.

18. As to maturity, sex, lifestyle and background issues the court notes that the children are of tender years with developing attachments and psychological responses to social and emotional circumstances and stressors.  The impact of these issues is considered in the context of the court’s consideration of other relevant considerations.

19. There are no relevant indigenous issues for the court’s consideration.

20. Whilst issues of violence in a domestic sense have been the subject of evidence the court is not satisfied that this consideration is to be afforded any significant weight in determining these proceedings. The applicant seeks no order as to residence and parenting issues as between the mother and father were resolved by consent.

21. The mother has demonstrated an appropriate attitude to the children and to her responsibilities of parenthood in that she has been perceptive as to the issues raised by the conduct and emotional responses of the applicant. She has been perceptive as to the damaging effect of the applicant’s conduct as it impacts upon the mother and the prospect of that impacting adversely upon the children and the mother’s household. It is of note that the parents themselves resolved to cease the children’s time with the applicant, a cessation of time that in considering all of the evidence was appropriate.

22. The applicant on the other hand has shown little insight into the cumulative effect of the background circumstances, her relationship with the mother and her determination it appears at all costs to restore her relationship with the children notwithstanding that such a restoration may have significant adverse impact upon the mother’s household, the mother and the children themselves.

23. In the context of these proceedings it is difficult for the court to contemplate whether orders can be made that would be least likely to lead to the institution of further proceedings in relation to the children.

24. The primary considerations are firstly the benefit to the children of having a meaningful relationship with both of the children’s parents and by reason of the application of section 60CC(3)(m) the court can consider this also in the context of the children’s relationship with the applicant. The second primary consideration which looms large in the context of these proceedings is the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

25. The importance of the children’s relationship with the parents in particular in the context of the mother’s intact household with her partner is significant. The court refers in this regard to the observations made above. The court has significant concerns as to the likely impact of the children having time with the applicant in circumstances where it is abundantly clear that such could have an adverse effect upon particularly the mother both emotionally and psychologically. The family reporter expresses concerns that as a consequence the mother’s parenting capacity will suffer and thereby the children will suffer. Whilst the concerns and the prospect of an adverse impact upon the parent’s household can not be expressed in absolute terms the strong possibility that such a circumstance would ensue requires the court to proceed with caution.

26. As to the children’s relationship with the applicant the court notes the well-settled view and that in the context of a “meaningful relationship” the court is to consider that relationship not in temporal terms but in terms of the value of that relationship to the children. The evidence before the court is indicative of the prospect of there being a superficial, controlling and manipulative relationship between the children and the applicant that causes the court to have serious concerns as to the children having any relationship with the applicant absent agreement with the parents and on their terms. The reasons for this concern are referred to above and particularly arise from the evidence of the family reporter.

27. The applicant contended that the restoration of the relationship with the children by reason of court orders would in some way provide a protective overarching for the children. Implicit in this submission is the ongoing criticism by the applicant of her daughter’s parenting and her daughter’s domestic circumstances. The court in all of the circumstances rejects this contention and is of the view that such a contention only reinforces the court’s view as to the applicant’s lack of insight into her past behaviours and her relationship with the mother to the extent that the court considers that the applicant is devoid of empathy in relation to the mother and her circumstances. The applicant’s contention in this regard was rejected by the family report writer.

28. It is clear that in considering the need to protect the children that there is a risk as referred to above of the children particularly the eldest child being subjected to improper influence by the applicant maternal grandmother in such a way as is likely to impact on the children in psychological terms adversely.

29. This risk is exacerbated by the further risk that the children having contact with the applicant will place inordinate emotional and psychological pressure on the mother in such a way that will diminish the mother’s parenting capacity so as to compromise her relationship with the children. This risk is of significant concern to the court and was appropriately considered by the family reporter in the context of her evidence.

30. The Independent Children’s Lawyer in submissions seeks orders in that in summary provide for:

    a)that the applicant to spend time with and communicate with the children as agreed between the mother, the father and the applicant;

    b)that the parties be restrained from subjecting the children to any form of hitting or physical striking and they shall use their best endeavours to ensure that no other person does so;

    c)that the parties be restrained from using or being under the influence of any illegal drug or from being under the influence of alcohol  to excess when the children are in their care;

    d)that the parties be restrained from bringing the children into contact with any person who is using or is under the influence of any illegal drug or any person who has consumed alcohol to excess;

    e)that the mother engage in the Brighter Futures Program and continue to attend until such time as the mother and children are discharged from the programme.

31. The court is satisfied that such orders are in the best interests of the children.

32. The court is mindful of the words of Benjamin J referred to above:

    In the absence of substantive issues as to the child’s best interests, it is not the role of a court to peer over the shoulders of functional parents and second-guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all……    That is not to say that a parent who acts capriciously in isolating a child from a grandparent with whom the child had a meaningful relationship ought not be the subject of orders…….,

33. The parents, particularly the mother in this matter has not acted capriciously or without thought. The circumstances leading to their decision as to the children’s relationship with the applicant has clearly derived from a long and complex pathway referred to in these reasons.

34. It was contended by counsel for the applicant that the provisions of the Act as amended specifically provide for orders to be made in favour of grandparents if no agreement can be reached. With respect to counsel that submission ignores the overarching considerations as to the best interests of the children. Each matter of course turns upon its own individual facts and a reference to previous decisions where orders may have been made as to children's time with grandparents are of little utility to this court in determining an appropriate outcome having regard to the best interests of the subject children.

35. The court is required to make such orders as are in the best interests of the children and it has carefully weighed the considerations set out above. The course adopted by the court is one supported by the Independent Children's Lawyer

36. The court is satisfied that it is appropriate to dismiss the applicant’s application and to make orders as sought by the Independent Children's Lawyer.

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Foster FM

Associate: 

Date:  28 March 2013