Dayley & Anor and Abram
[2012] FamCA 497
•29 June 2012
FAMILY COURT OF AUSTRALIA
| DAYLEY AND ANOR & ABRAM | [2012] FamCA 497 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Paternal grandparents’ application for time to be spent with the child – Dispute between the mother and grandparents – Where the child’s father is deceased – Where there is a poor relationship between the child and the paternal grandparents – Where the mother is unable to communicate with the paternal grandparents – Where the mother has a personality disorder – Where on-going therapy is ordered for mother and child |
| Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 60CC(4)(b), s 65AA |
| Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 MRR v GR (2010) 42 Fam LR 531 |
| 1st APPLICANT: | Ms Dayley |
| 2nd APPLICANT: | Mr Dayley |
| RESPONDENT: | Ms Abram |
| INDEPENDENT CHILD LAWYER: | Hamish Cumming Family Lawyers |
| FILE NUMBER: | SYC | 6554 | of | 2009 |
| DATE DELIVERED: | 29 June 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 15 & 16 December 2011 and 14 February 2012 |
REPRESENTATION
| COUNSEL FOR THE 1ST & 2ND APPLICANTS: | Mr Tockar |
| SOLICITOR FOR THE 1ST & 2ND APPLICANTS: | Clinch Long Letherbarrow Pty Limited |
| COUNSEL FOR THE RESPONDENT: | Mr Levet |
| SOLICITOR FOR THE RESPONDENT: | James Maspero |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gersbach |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Hamish Cumming Family Lawyers |
Orders
The following parenting orders are made in respect of the child J born on … April 2004 (“the child”).
That insofar as such orders concern the applicant grandparents, all previous orders made in relation to the child be discharged.
That order 3 of the Orders of 12 August 2010 be discharged.
That Dr R, or such other clinical psychologist as recommended by her or Dr S (“the psychologist”) be appointed as the child's therapist and leave be granted to the Independent Children's Lawyer to provide to the psychologist a copy of these Orders.
That subject to the psychologist's availability and discretion, therapy with the child take place as follows:-
a)That as soon as practicable after the making of these orders, the Independent Children's Lawyer arrange a schedule of appointments with the psychologist to implement the therapy;
b)That those sessions initially be scheduled once per week for a period of six consecutive weeks commencing as soon as practicable;
c)That for the period of 6 consecutive week days provided for in order 5(b), and at such other time as the psychologist may direct, the Applicant grandparents (provided they are given 48 hours advanced notice of the relevant appointment time), collect the child from school at 3.00 pm on the day of each of the child's therapy sessions, or in the event the day is not a school day from the McDonalds restaurant nearest to the child’s residential address and deliver her to the psychologist. That at the conclusion of each therapy session, the applicant grandparents shall deliver the child to the respondent mother's home.
That as and from the first Friday after the child's sixth (6th) therapy session with the psychologist and thereafter every second Friday until 30 November 2012 the Applicant grandparents collect the child from school at 3.00 pm, or in the event the day is not a school day from the McDonald's restaurant nearest to the child's residential address, and deliver the child to the Mother's residence at 8.30 pm after each visit.
That the child continue to see the psychologist for a period of not less than 12 months commencing on the date of her first session for the frequency and duration as recommended by the psychologist.
That the applicant grandparents pay the psychologist's fees as and when they are due.
That save as set out in order 5(c) above and/or any direction by the psychologist, the respondent mother take the child to and collect the child from her therapy with the psychologist, or make all necessary arrangements to ensure the child's attendance at all therapy sessions at dates, times and locations as directed by the psychologist from time to time.
That save as directed by the psychologist, the respondent mother not be present during the child's therapy sessions.
If the respondent mother fails to take the child to her session with the psychologist as and when those sessions are scheduled, the mother shall forthwith notify the grandparents of her cancellation and the reasons for the cancellation. In the event of any cancellation, the paternal grandparents shall make an alternate appointment and collect the child from school and take her to that appointment, notifying the mother in writing of the date and time of the appointment.
That as and from 30 November 2012 the child shall spend time with the applicant grandparents as follows:-
a)During the school term, each alternate weekend from the conclusion of school each Friday until the commencement of school the following Monday;
b)During each of the Term 1, Term 2, and Term 3 school holiday periods, for one (1) week, commencing on the last day of the child's attendance at school and for seven (7) consecutive nights concluding at 4.00pm on the day after the seventh (7th) night;
c)In each Christmas school holiday period, for two (2) weeks, commencing at 9.00 am on 2 January each year and concluding a 4.00 pm on the day after the fourteenth (14) night;
d)In the event the child is to spend time with the applicant grandparents on Mother's Day or on the mother's birthday pursuant to these orders, such time be suspended.
That for the purpose of facilitating changeover, the child shall be collected and returned to school by the Applicant grandparents and if changeover is to occur on non-school day, then the child is to be collected and returned to the Mother's residence (save as for provided in order 5(c)).
That within seven (7) days of the date of these orders the mother authorise and instruct the school at which the child attends (or any school the child attends in the future) to:-
a)Forward to the applicant grandparents copies of all of the child's school photographs and reports at least twice per year, with the cost of same being born by the applicant grandparents;
b)Provide to the applicant grandparent notice of any 'end of year' or other such events in which the child is involved and to which grandparent would ordinarily be invited and/or attend and permit the applicant grandparent to discuss such matter with the school staff and attend such events.
That if the respondent mother intends to relocate the child's current residence or school enrolment or change either the mother's and the child's landline or mobile telephone number(s), the mother shall notify the paternal grandparents or solicitors in writing of any change twenty-eight (28) days prior to such occurring, or in the case of an emergency as soon as practicable after the change including in such notice details of the child's new residential address, school and/or landline and/or telephone number.
That each party be and hereby is restrained from:-
a)Denigrating the other or any member of the other's family to, or in the presence or hearing of the child;
b)Discussing these proceedings with or in the presence or hearing of the child.
That the respondent mother attend upon her general practitioner and obtain a mental health care plan for therapy with a clinical psychologist for management of mood instability.
That the respondent mother thereafter attend upon a clinical psychologist for 12 sessions, or such number of sessions as provided under the mental health care plan, of Cognitive Behaviour therapy for management of mood instability, noting that the mother's clinical psychologist shall not be the child's therapist.
That the respondent mother provide to her clinical psychologist a copy of these Orders together with a copy of the Report of Dr S.
That within 28 days, each of the parties pay the sum of $4209.70 (inclusive of GST) in respect of the Independent Children's Lawyers costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym DAYLEY & ABRAM 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 SYDNEY |
FILE NUMBER: SYC 6554 of 2009
| Ms Dayley and Mr Dayley |
Applicants
And
| Ms Abram |
Respondent
REASONS FOR JUDGMENT
The child J (“the child”) is 8 years of age having been born in April 2004. Her mother is Ms Abram. Sadly her father died in 2009.
Prior to her father’s death, the child had a close relationship with her paternal grandmother, Ms Dayley and her paternal step-grandfather Mr Dayle. Unfortunately after the child’s father passed away, the close relationship between the child and her paternal grandparents deteriorated very rapidly. The consequence for the child was that whereas prior to her father’s death she had been spending significant time with her grandparents, by September 2009 her mother stopped making her available to spend time with her grandparents. The mother is implacably opposed to the child having any relationship whatsoever with her grandparents.
Applications
The grandparents are seeking orders in the same form as those sought by the Independent Child Lawyer (“ICL”) with the addition of an order to the following effect:
That the mother provide to the grandparents from time to time certified current copies of the following:
· The child’s Medicare card
· The child’s Health Insurance Card and Health Benefit Fund number and
· The child’s vaccination record.
The orders sought by the ICL are to the following effect:
·That insofar as such Orders concern the Applicant Grandparents, all previous Orders made in relation to the child J, born in April 2004 (“the child”) be discharged.
·That Order 3 of the Orders of 12 August 2010 be discharged.
·That Dr R, or such other clinical psychologist as recommended by her or Dr S (“the psychologist”) be appointed as the child's therapist and leave be granted to the Independent Children's Lawyer to provide to the psychologist a copy of these Orders.
·That subject to the psychologist's availability and discretion, therapy with the child take place as follows:-
a)That as soon as practicable after the making of these Orders, the Independent Children's Lawyer arrange a schedule of appointments with the psychologist to implement the therapy;
b)That those sessions initially be scheduled once per week for a period of 6 consecutives weeks commencing as soon as practicable;
c)That for the period of 6 consecutive week days provided for in Order 4(b), and at such other time as the psychologist may direct, the Applicant grandparents (provided they are given 48 hours advanced notice of the relevant appointment time), collect the child from school at 3.00pm on the day of each of the child's therapy session, or in the event the day is not a school day from the McDonalds restaurant nearest to the child’s residential address and deliver her to the psychologist. That at the conclusion of each therapy session, the Applicant grandparents shall deliver the child to the Respondent Mother's home.
·That as and from the first Friday after the child's sixth (6th) therapy session with psychologist and thereafter every second Friday until the commencement of Term 3, 2012 the Applicant grandparents collect the child from school at 3.00pm, or in the event the day is not a school day from the McDonald's restaurant nearest to the child's residential address, and deliver the child to the Mother's residence at 8.30pm after each visit.
·That the child continue to see the psychologist for a period of not less than 12 months commencing on the date of her first session for the frequency and duration as recommended by the psychologist.
·That the Applicant grandparents pay the psychologist's fees as and are due.
·That save as set out in Order 4(c) above and/or any direction by the psychologist, the Respondent Mother take the child to and collect the child from her therapy with the psychologist, or make all necessary arrangements to ensure the child's attendance at all therapy sessions at dates, times and locations as directed by the psychologist from time to time.
·That save as directed by the psychologist, the Respondent Mother not be present during the child's therapy sessions.
·If the Respondent Mother fails to take the child to her session with the psychologist as and when those sessions are scheduled, the Mother shall forthwith notify the grandparents of her cancellation and the reasons for the cancellation. In the event of any cancellation, the paternal grandparents shall make an alternate appointment and collect the child from school and take her to that appointment, notifying the Mother in writing of the date and time of the appointment.
·That as and from the commencement of Term 3, 2002 the child shall spend time with the Applicant grandparents as follows:-
a)During the school, each alternate weekend from the conclusion of school each Friday until the commencement of school the following Monday;
b)During each of the Term 1, Term 2, and Term 3 school holiday periods, for one (1) week, commencing on the last day of the child's attendance at school and for seven (7) consecutive nights concluding at 4.00pm on the day after the seventh (7th) night;
c)In each Christmas school holiday period, for two (2) weeks, commencing at 9.00am on 2 January each year and concluding a 4.00pm on the day after the fourteenth (14) night;
d)In the event the child is to spend time with the Applicant grandparents on Mother's Day or on the Mother's birthday pursuant to these Orders, that such time be suspended.
·That for the purpose of facilitating changeover, the child shall be collected and returned to school by the Applicant grandparents and if changeover is to occur on non-school day, then the child is to be collected and returned to the Mother's residence (save as for provided in Order 4(c)).
·That within seven (7) days of the date of these Orders the Mother authorise and instruct the school at which the child attends (or any school the child attends in the future) to:-
a)Forward to the Applicant grandparents copies of all of the child's school photographs and reports at least twice per year, with the cost of same being born by the Applicant grandparents;
b)Provide to the Applicant grandparent notice of any 'end of year' or other such events in which the child is involved and to which grandparent would ordinarily be invited and/or attend and permit the Applicant grandparent to discuss such matter with the school staff and attend such events.
·That if the Respondent Mother intends to relocate the child's current residence or school enrolment or change either the Mother's and the child's landline or mobile telephone number(s), the Mother shall notify the paternal grandparent's or solicitors in writing of any change twenty-eight (28) days prior to such occurring, or in the case of an emergency as soon as practicable after the change including in such notice details of the child's new residential address, school and/or landline and/or telephone number.
·That each party be and hereby is restrained from:-
a)Denigrating the other or any member of the other's family to, or in the presence or hearing of the child;
b)Discussing these proceedings with or in the presence or hearing of the child.
·That the Respondent Mother attend upon her general practitioner and obtain a mental health care plan for therapy with a clinical psychologist for management of mood instability.
·That the Respondent Mother thereafter attend upon a clinical psychologist for 12 sessions, or such number of sessions as provided under the mental health care plan, of Cognitive Behaviour therapy for management of mood instability, noting that the Mother's clinical psychologist shall not be the child's therapist.
·That the Respondent Mother provide to her clinical psychologist a copy of these Orders together with a copy of the Report of Dr S.
·That within 28 days, each of the parties pay the sum of $4209.70 (inclusive of GST) in respect of the Independent Children's Lawyers costs.
The mother seeks orders that the application by the grandparents be dismissed and that there be no contact of any sort between the child and her paternal grandparents.
Background
The relevant background to this dispute is as follows.
The mother, now 36 years, and the father (sadly now deceased) commenced cohabiting in early 2003. As indicated above, the child was born in April 2004. The parents married overseas in November 2004. But the following month, namely December 2004, they separated.
There were serious difficulties between the parents following separation and they were unable to agree on parenting arrangements for the child. There was little time spent between the child and her father (and the grandparents) for approximately six months after separation.
Interim parenting orders were made by the Local Court in February and May 2005 and in July 2006. The details were not before me. But the child remained resident with her mother and started to spend time with her father regularly during daytime more than once a week.
Over a couple of months in approximately August/September 2005, the mother suffered some health problems and was hospitalised. The child then came into the care of the father and the mother’s sister Ms H. So from this time the child commenced spending time overnight with her father. The father was residing with his mother and step father at their home on the lower North Shore. They had been involved very much with the child’s care at times when she was visiting her father and they continued with their close involvement in this.
After the mother was discharged from hospital in September 2005 the father and the paternal grandparents continued to have the child in their care regularly, including on many overnight occasions. The difficulties between the parents continued particularly at times of changeover. It appears that from time to time each parent alleged that the other had abused them or been violent to them.
The parents divorced, their divorce becoming final on 25 May 2006.
In 2006 the mother commenced her relationship with Mr B, to whom she is now married. They had been friends for many years, reaching back to their attendance at the same high school.
Litigation about parenting matters continued between the parents and Associate Professor O, consultant psychiatrist was appointed as single expert to prepare a report to assist the parties and the Court. Professor O reported in September 2006.
In May 2007, when the child was spending time with her father and grandparents she was suffering from constipation. They took her to hospital and she received medical treatment including administration of an enema. The child stayed in hospital overnight with her father and grandparents also in attendance. Apparently the father had been endeavouring to telephone the mother to inform her about the child’s situation but was unable to connect with her until the following morning. The mother and Mr B attended at the hospital and appeared to have been affronted that the child had been admitted to hospital without the mother’s consent. The mother complained to hospital officers and immediately removed the child from the hospital apparently expressing the view that there was nothing wrong with the child.
In November 2007 the father ceased living with his parents and moved into his own accommodation.
On 28 May 2008 the mother gave birth to N, the first child of herself and Mr B.
The grandparents own a farm on the mid north coast. On several occasions each year the child would spend time with her grandparents and father on the farm. On some of these occasions the father would take the child to the farm in the absence of the grandparents. On some occasions the child’s young cousins would also join her at the farm.
In circumstances the details of which are not clear to me, this Court (Judicial Registrar Loughnan) made orders on 4 February 2009 to the effect that until 17 March 2009 the father spend time with the child each weekend from conclusion of school Friday until the commencement of school Monday on the basis that the nights be spent in premises also occupied by the grandparents or either of them. On 17 March 2009 these orders were continued except that the requirement for at least one of the grandparents to be present at night-times was no longer included.
On 28 April 2009 further orders were made including an order to the effect that the parents would commence a week about parenting arrangement as from Friday 8 May 2009. There was also an order to the effect that on days that were not school days, unless otherwise agreed changeover was to take place at a Police Station.
Further orders were made on 24 June 2009 in effect for the child to live with each parent for approximately 9 days of the July 1009 school holidays.
Apart from the ongoing conflict between the parents associated with these arrangements, the arrangements appear to have worked quite well. There is no issue that prior to the death of the child’s father the child enjoyed a close and loving relationship with the grandparents and stayed with them quite regularly.
As indicated above, sadly the child’s father died in August 2009. His death was sudden and unexpected, the cause having been cardio-respiratory failure.
A couple of days after the father’s death, the mother, Mr B and the child visited the grandparents’ home to collect some of the child’s belongings. The grandfather asked the child to stay for a sleepover but the child declined. The mother said that on that occasion and over the following days the child did not wish to speak with the grandparents.
The mother invited the grandparents to visit her family including the child on 19 August 2009. On the mother’s version, it would appear that the child was reluctant to be engaged by the grandparents on that and subsequent visits. Yet the grandmother said that on 19 August 2009 the child gave both grandparents big hugs and kisses and seemed happy to see them. I prefer the evidence of the grandmother to that of the mother.
In late August the child attended her father’s memorial service with the grandparents. When her mother arrived at approximately 4pm to collect her the child said that she did not want to go home.
The grandparents attended the mother’s home on 29 August 2009 for an arranged visit. The child was withdrawn and unresponsive to them and the mother and Mr B appeared to the grandmother to be less welcoming than they had been previously. The grandmother said that she could see an emotional change in the child. I accept her evidence.
Over the next few weeks there were some rather strained communications between the grandparents on the one hand and the mother, and Mr B, on the other hand. Mr B was asserting that the child did not wish to speak to the grandparents and did not want them to collect her from school.
The grandparents visited the child at her mother’s home on 25 September 2009. Things went particularly badly on that occasion. The mother asked the grandparents what they would like in terms of spending time with the child. When she asked whether they had a document setting out their wishes in this regard the grandfather presented the mother with a document which set out a framework of what they suggested might be possible arrangements for the child to continue to see them. The document was as follows:
Possible Paternal Grandparents (PGP) parenting proposals for [the child J]:
“Spending Time with [the child]”
About a third, say 130 days a year, scheduled by discussion on particular dates about 9 months ahead, but say
-first half of each school holidays
-two separate 10 day weeks during each school term
-some weekends including long weekends
-Christmas Eve, Christmas Day and [the child’s] birthday shared over a two year period.
Issue of new passport and permission for one overseas trip per year from 2010
PGP equal role in decision making for any matter related to and for [the child’s] benefit:
-School, school activities, and school fees; all [the child’s] school reports and merit etc., certificates copied to PGP
-PGP to be on school mailing list and receive all advices that go to mother
-Health matters – doctor, dentist, highest level of available medical, hospital, & dental benefit private insurance and shared payment of fees
Relationship Counsellor to assist
In late 2009 the mother and Mr B moved with the children to North Queensland. Apparently Mr B had learned that employment might soon become available at town G. Mr B also told Dr S that he and the mother moved from their Northern Beaches home abruptly because they had understood that there were court orders which required the mother not to change the child’s residence from the Northern Beaches.
The mother did not inform the grandparents that she proposed to relocate the child’s residence away from Sydney. The inference I draw is that prominent in the mother’s reasons for relocating was a desire to put more distance between herself (and the child) and the grandparents.
On 2 November 2009 the grandparents filed their initiating application. But they were unable to serve this on the mother because they did not know her whereabouts. An order for substituted service on the mother’s father was made and on 1 December 2009 the grandparents were notified that the mother was living at a specified address in Queensland.
On 18 November 2009 the grandmother made some intemperate and somewhat threatening telephone calls to the mother’s sister Ms H. I had the benefit of hearing recordings of the calls. During cross-examination the grandmother said that she regretted making the calls. She said that she made the calls at a time when she was consumed by grief about the death of her son and in circumstances in which she felt desperate because it appeared to her that she had also lost her grand-daughter.
On 10 February 2010 this Court (Cohen J) transferred the proceedings to the Rockhampton Registry and ordered preparation of a Family Report.
A Family Report dated 29 April 2010 was prepared by Family Consultant Ms K. The report included a recommendation that the child spend time with her grandparents, to be facilitated by an appropriately qualified therapist as approved by the Independent Child Lawyer. Ms K also recommended that the mother engage in therapeutic intervention to enhance her understanding of the child’s needs regarding her family identity.
In June 2010 the child E, the younger child of the mother and Mr B was born.
On 12 August 2010 this Court (at Brisbane) by consent transferred the proceedings back to Sydney. The orders included an order without admissions to the effect that the grandparents would not approach, or cause others to approach, the mother or the child. By this time the mother and Mr B had relocated their residence back to New South Wales residing at Mid North Coast town T.
On 9 December 2010 I ordered, in accordance generally with the recommendation in the Family Consultant’s report, that a Ms L be appointed as the child’s therapist to assist the child to endeavour to rekindle her relationship with her grandparents.
This therapy never really progressed, the therapist apparently taking the view from close to the outset, and after speaking to the mother, that it would prove too distressing for the child.
On 20 February 2011 I made orders for the preparation of a further Family Report. On 12 May 2011 all relevant adults and the child attended for the appointment for interviews by Ms M, the Family Consultant who was to prepare the Report. But the grandparents were unable to be interviewed with the child because Ms M was made aware of the existence of the order made at Brisbane under which the grandparents were not to approach the child.
On 29 June 2011 I ordered that Dr S be appointed as single expert to prepare a Report. I also discharged the Brisbane order which had been preventing the grandparents from approaching the child.
Dr S’s Report was released on 28 September 2011. I shall refer to it in some detail below.
Credit
The Paternal Grandmother
The grandmother answered questions in a responsive manner and she was prepared to make concessions. In particular she conceded that she and the step-grandfather could have acted in a somewhat more sensitive manner towards the mother in their demands for a relationship with the child. I shall refer to this again below.
I regard the grandmother to be a witness of the truth.
The Paternal Step-Grandfather
Mr Dayley did not wish to concede that, because the grandparents’ application was causing the mother to be stressed, it would be in the child’s interests for them to withdraw their application. So he declined answering questions about the subject of the mother’s stress. Apart from this, he answered questions in a responsive manner. At all times he was very courteous and respectful towards the questioners and the Court.
Dr S described the paternal step-grandfather as being somewhat sanctimonious in his manner. I must say, I regarded him as being more proper and careful in his approach to things generally, rather than being sanctimonious. Like the grandmother he was prepared to make concessions although possibly a little less so than the grandmother. He is very supportive of the grandmother in terms of her endeavour to facilitate a relationship between the child and the extended paternal family including himself.
I have no hesitation in regarding the paternal step-grandfather as a witness of the truth and accepting that his evidence can be relied on.
The mother
Unfortunately, the mother was a poor witness in my view. It was submitted by learned counsel for the ICL that her affect was one of detachment, that her evidence was given in an exaggerated way and that her presentation was that of a person with emotional problems. I accept these observations.
At one point during her cross-examination I felt the need to interject. This was at the point when the mother indicated that she was not prepared to accept the professional advice of more than one eminently qualified behavioural specialist to the effect that she was suffering from a personality disorder. The specialist had suggested that a specific course of assistance could be available to her. The mother indicated that she rejected that advice because she had the belief that she did not need assistance.
On being pressed the mother made it clear that she preferred to accept what she said was advice from her general medical practitioner. The mother conceded that her general medical practitioner had referred her to a psychologist but she had not bothered to act on the psychologist’s advice. The mother was entrenched in her opposition to acting in accordance with any of the specialist medical advice which had been provided to her. She gave me the impression that she saw events very much through the prism of opposition to the child being permitted to take any steps towards being able to have any relationship with her paternal grandparents or any other relative from her father’s side of the family.
The grandparents
Both Mrs Dayley and Mr Dayley are impressive people. Each of them is well educated, having attained tertiary qualifications. Each of them has a lot of experience in life.
Obviously they have a very deep love for their granddaughter. She is, of course, the tangible connection with their deceased son. They have a lot to offer the child in life. They are well established in life, also in a material sense, and are anxious to assist the child also in a material sense.
I had the impression that generally the judgment of each of them is sound. Unfortunately they were involved through their son in a rather complicated set of family dynamics in relation to the child’s mother. While arrangements were in place under which the child spent time with her father, which the grandparents became a prominent part of, such arrangements were not always free of difficulty. However, the mother and grandparents were able to maintain a good relationship. If the immediate issue was able to be resolved, I am confident that the affection which the grandparents previously had for the mother would return. The grandmother said that she liked the child’s mother from the moment they met. The grandfather was spontaneous and in my view honest, when he professed that he likes the child’s mother.
It is an enormous frustration to them that although they were able to be active and important contributors to the child’s welfare for the first five and a half years of her life, unfortunately that has now broken down badly. I have no doubt about their sincerity in wishing to assist the child in whatever way they can and to involve her particularly in all the richness that her extended paternal family could offer to her.
Unfortunately at a critical time for the family, namely immediately after the death of the child’s father and beloved son of the grandparents, things went awry. Each of the grandparents can now see that they made a grave mistake in the manner in which they endeavoured to negotiate with the mother a continuing regular involvement in the child’s life. They have had the benefit of much discussion about this matter with Dr S. With the benefit of hindsight, each of them is able to see that there were errors made at the time. But of course that was a time when they were grieving the loss of their son, the child’s father.
Expert Reports
There was an issue about the extent to which the Court would take account of the three reports by experts who have been involved with the family. Learned counsel for the mother pressed for the Court to take account of the reports by Family Consultant, Ms M dated 27 May 2011 and a report by Ms NN of Catholic Care. Each of these reports was favourable to the mother’s case. On the other hand, the report by Dr S clearly was unfavourable to the mother’s case. Ms M recommended that there be no orders for contact between the child and her paternal grandparents and Ms NN, who had been engaged pursuant to earlier orders to endeavour to undertake family therapy, found in the course of that endeavour she was unable to continue because she concluded in the face of enormous opposition and hostility from the mother that to proceed would be too damaging for the child.
It was submitted on behalf of the grandparents that the report by Dr S has overtaken the earlier reports. It was submitted that Dr S was engaged pursuant to an order for her appointment as single expert pursuant to Chapter 15 of the Rules and that copies of the other reports had been forwarded to Dr S to assist her in the process of preparing her single expert report. It was submitted further that, in any event, learned counsel for the mother had not formally included the earlier two reports amongst the material which he identified formed the basis of his client’s case. Nor did he inform the other parties that the mother would be relying on those reports prior to closing his case. It was submitted that in those circumstances, it would be unfair to the other parties for the mother to be now permitted to rely on those reports. I accept that submission.
But in my view, there is an additional basis for the Court to prefer to rely on Dr S’s report and not to give any real weight to the earlier reports. Firstly, in the case of Dr NN’s report, this is really just a matter of history in the proceedings about which everybody involved in the proceedings including Dr S and the Court are familiar. So far as the report by Ms M is concerned, her report is a somewhat different report from that of Dr S. It is the case that Ms M, like Dr S, had opportunity to interview all of the relevant adults and to involve the child although not with the grandparents. And it is clear that the report contains a careful evaluation of relevant matters in order to arrive at the ultimate conclusion and recommendation. But the reports of Ms M and Dr S are quite different. The significant difference is that Dr S’s exercise has involved a very careful assessment of the mental health issues involved for this family. After all, this was one of the main reasons for the order appointing her as an appropriately qualified person to undertake this task as single expert.
Amongst other things, Dr S has made qualified observations about the behavioural characteristics particularly of the mother, step-father and the child which are of enormous assistance in explaining the dynamics at play in this family and the reasons for such entrenched opposition by the mother to any involvement by the child with her father’s side of the family. This is a striking difference between the reports. I regard Dr S as appropriately qualified and experienced to have made the observations and recommendations in her report. I regard them as being most helpful.
In these circumstances, even if Ms M’s report had been admitted into the evidence in the mother’s case, in my view it would have little relevance except where matters contained therein were consistent with the observations of Dr S. For the above reasons, in my view the recommendations in Ms M’s report could no longer stand given the nature of Dr S’s more recent report.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
Some of the objects relate only to circumstances where the relevant child or children have two parents which is obviously not the case in these proceedings. I shall not refer to these.
Accordingly the legislative objects relevant in this case are to ensure that the best interests of the child are met by:
·Protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that the child receives adequate and proper parenting to help her achieve her full potential; and
·Ensuring that the mother fulfils her duties, and meets her responsibilities, concerning the care, welfare and development of the child.
A relevant principle underlying these objects is that (except when it is or would be contrary to the child’s best interests) the child has a right to spend time on a regular basis with … people significant to her care, welfare and development (such as grandparents and other relatives).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Clearly, as indicated by learned counsel for the mother, the first of the primary considerations can have no application in this case because, sadly, the child’s father is deceased.
In relation to the second primary consideration, there was no evidence of any neglect of the child or that she has been exposed to family violence or abuse. The mother alleged that the father had been physically violent to her (the mother) but there was no objective evidence to support her allegations.
Dr S gave consideration to whether the child has been exposed to psychological harm and I shall refer to this below.
The additional legislative considerations are set out in s 60CC(3) and I shall now refer to those which are relevant in this case.
Additional Considerations – s 60CC(3)
Sub-Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Dr S said that the child clearly expressed to her a wish that she wants no more fighting. Dr S said that during the assessment the child would not make eye contact with the grandparents other than fleetingly and the mother was only able to encourage her to come into the assessment at Dr S’s insistence. She said that the child did not permit herself to speak with the grandparents and seemed very scared that they would kidnap her.
Dr S said that there was no mention by the child of her father or extended paternal family and she could not bring herself to say anything positive about her father who she referred to as C, and believed that the child’s expressed view that she did not want to see her grandparents reflected her mother’s opinions. I am mindful of the submission made on behalf of the mother about this matter. But given the child’s young age and Dr S’s view that she has been strongly influenced by her parents, in my view, this Court would place only a small amount of weight on the child’s views.
Sub-Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
There is no doubt that the child has a close and loving relationship with her mother and also with Mr B and each of her siblings. But the child’s relationship, particularly with her mother, is somewhat psychologically challenging as Dr S has indicated.
Dr S said that although the mother should be the child’s main source of security, because the mother’s emotional state was so variable she experienced during the assessment that it was the child who was organising her mother’s emotions by use of reality checking. She said that at times the mother was quite intrusive in the child’s play giving the child unwanted attention while not actually participating in the child’s game. Dr S said that at one stage the mother seemed to blame the child for the mother’s sore back which irritated the child but she did not respond, suppressing her frustration.
Dr S said that her impression was that the child’s relationship with her mother was insecure and avoidant.
Dr S said that the child and Mr B have a friendly camaraderie, were on the same wavelength and a healthy secondary attachment has formed.
Dr S said that the attachment between the child and her brothers was secure.
On the other hand there is no question that until her father’s death, the child had a very close and loving relationship not only with her father but also with the grandparents. This is clear from Dr O’s Report. Dr O said that during her assessment the child seemed very settled, familiar and confident with her father and grandparents and that she was relaxed and playful. The mother told Ms K the Family Consultant in February 2010 that the child had a close relationship with her grandparents.
Dr S observed at the assessment that the child was acting out her mother’s anger that she had to attend the assessment. She said that the child did not permit herself to relax in the company of the paternal grandparents. She said that there was some fleeting eye contact but that the child’s behaviour was quite regressed and uncooperative although most of her anxiety dissipated after the first fifteen minutes. Dr S said that after the child returned from the bathroom she lay on her stomach on the floor, drew or played with the lego but she refused to speak which made any sort of assessment of her attachment very difficult. Dr S presumed that the child had a secondary attachment to her grandmother although the child was not permitting herself to show this.
In relation to the grandfather, Dr S said that the child made only fleeting eye contact and never relaxed. Dr S noted that it had been more than two years since their normal interaction and that the mother had heavily influenced the child prior to the assessment. Dr S said that nevertheless she believed that there was at least a secondary attachment by the child to her step-grandfather.
Sub-Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Although this legislative consideration is expressed in terms of two parents I propose simply to substitute the grandparents for the children’s father in my consideration of this. This is because this legislative consideration as it would have application between the mother and the grandparents is clearly relevant to the best interests of the child and could properly be considered under s 60CC(3)(m).
There is no question that the mother does not want the child to have any relationship with her paternal grandparents. This is clear from the terms of her application and from her stated position on numerous occasions during the hearing. The mother is supported in this view by Mr B.
Dr S made the following relevant observations in relation to this consideration. She said that the mother and Mr B believed that the grandparents do not deserve to have any contact with the child. They do not trust the grandparents and they appear to hate them. She said that the mother appears to have been successful in her attempt to wipe out in the child’s mind the memory of her father and paternal family despite the resources which they could provide for the child. Dr S observed that at the time of interview the family was living at town T. She said that on the one hand the mother was complaining about their financial needs and desire to provide a horse for the child whereas on the other hand the child’s horse was living on the grandparents’ farm only 35 minutes away.
Dr S thought that the mother would not facilitate any contact and that she would actually try to obstruct contact claiming that the child did not want to go, refused to go and that the mother was not able to make her go. Dr S said that she thought the grandparents had made a big mistake in their insensitive approach about the child’s parenting arrangements after the death of her father which has offended the mother, leaving her feeling insulted and that she was inadequate. Dr S considered that this has led the mother to vilify them, dig her heels in and refuse all contact.
On the other hand, Dr S thought that the grandparents would comply with any orders which the Court made. It appeared that since the father’s death they have never tried to remove the child from her mother and they have reduced the amount of time sought with the child very markedly from their original application. Dr S noted that the grandparents have retained the child’s toys, horse and her rooms available for her in their homes. She also observed that they would be very happy to drive the child back and forth between their farm and her home. In addition Dr S noted that the child has two cousins who would be available to play with her, one who is also very keen on horse riding.
I accept that given the benefit of hindsight and the very serious consequences which the initial demands by the grandparents have had in terms of their relationship with the child, that they would be careful to comply with Court orders. I have no sense that they would be acting in any way other than that of supporting the child’s relationship with her mother, step-father and siblings. The grandmother indicated during her cross-examination that if the Court’s decision went against what the grandparents were seeking that that would be something which they would just have to accept.
Sub-Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
Dr S noted that the child has been separated from the grandparents for more than two years and observed that there was no way of knowing how that separation had affected the child other than that she had forgotten the pleasant relationship that she may previously have had with them. Dr S said that the child was so persistent in her belief of what her mother told her was true about the grandparents wanting to kidnap her, that no interaction with them would be likely to be easy for some time.
Dr S went on to say that separation from her family would cause her anxiety. However she said that separation of the child from her mother for short periods of time should be easily acceptable by the child given that she already has sleepovers with friends. She said that given that the mother is the child’s main source of security, it would be hard for the child to spend overnight time at her grandparents’ home in the short term. Dr S said that she thought that given some time, the child could come to enjoy overnight stays, particularly if her female cousins were present and that they could go horse riding together during the day.
Dr S said that if the mother were to encourage the child to spend time with the grandparents in a similar manner to her encouraging the child to attend school, even if the child did not feel like going, she would go and learn to enjoy it. Dr S said, however, that she thought the mother would be unlikely to do this and that the step-father would act in a similar way.
Dr S also said that if the child was separated from her little brothers for any length of time that she would miss them and they would miss her greatly too.
Sub-Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
As learned counsel for the ICL submitted, the grandparents are prepared to pay for all required counselling for the child and for the costs of all travel involved in her spending time with them.
Sub-Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
As Dr S observed, the mother and the step-father are able to provide for the child’s material needs.
Dr S said that despite the mother’s lack of formal education, she encouraged the child to read every day, encouraged her in fantasy play and was delighted that the child appeared to be doing well at school. She agreed with counsel for the mother that the child’s intellectual needs were being actively promoted at home and that there were no deficiencies in her intellectual development. Dr S said the child had not been physically neglected.
She also said that given the mother’s emotional state which is highly reactive and anxious, the mother often required the attention of Mr B or the child in regulating her mood. She said that the mother’s parenting style was somewhat intrusive at times that at other times it would be somewhat relatively sparse given the amount of attention the mother needed for herself.
Dr S also said that the mother’s disregard of the child’s physical illnesses was worrying. She said that whereas the father had alerted the school by mail that the child required an inhaler for treatment of her asthma, there was a note written by a teacher saying that the mother had ceased the treatment three days later when she found out. Dr S expressed the opinion that this seemed to have been inappropriate because one would normally use a puffer for a couple of weeks after an upper respiratory tract infection. Dr S said that she was concerned that the mother had stopped the medication out of resentment for the father rather than consideration for the child’s health needs. The mother’s reaction to the May 2007 hospitalisation of the child was unreasonable and appears to have been consistent with her approach to the asthma issue. In my view the manner in which the mother managed the issue of the death of the child’s father with the child reflected somewhat negatively on her parenting capacity. Rather than supporting the child in opportunity to grieve the loss of her father, the mother appears to have celebrated the father’s death. As Dr S said, if we are to believe the mother’s rendition, the child had a new sense of freedom which she never previously had. Dr S said that this was more likely a projection of the mother’s own view and completely inappropriate in a 5 year old child who had just lost her father.
Dr S said that since that time the child has not been allowed to enjoy anything about her father or his memory. She said that instead, the child has had to suppress all her memories of him and the paternal grandparents. She said that the child’s survival has depended on this as it probably upset or enraged her mother if the child spoke about the father in a positive light.
Dr S said that similarly, the child’s rejection of her grandparents has been made mandatory by her mother’s need to demonise them. She said that the child has taken on her mother’s anxiety and anger and acted it out during Dr S’s assessment. Dr S said that the child anticipated the assessment with anxiety but whereas the mother tended to cry and externalise her anxiety, the child was an internaliser and kept things mostly quiet until she vomited according to her mother.
Dr S said that on the occasion of the assessment, the mother and Mr B fanned the flames of the child’s anxiety by reassuring the child that “Dr [S’s] here, you’re safe” which she said implied there was a reason for the child to be anxious in the first place.
In relation to the state of the mother’s mental health, Dr S made observations to the following effect.
The mother endured early losses: the murder of her maternal grandmother, the death of her step-father and then the suicide of her mother, while she was relatively young, all of which have undermined her personality development.
Dr S diagnosed the mother as having a Cluster B Personality Disorder which fulfilled the criteria of Borderline Personality Disorder, although she also has histrionic traits. Dr S said the mother also appears to have an Anxiety Disorder which was exacerbated by pregnancy and during her third pregnancy completely immobilised her.
In relation to the state of mental health of Mr B, Dr S said that he was very anxious and hypervigilent. She said that he had a number of paranoid ideas which did not reach delusional intensity although that might have been due to his acceptance as truth of some of the mother’s exaggerated stories.
Dr S said that living with the mother had caused Mr B to feel extremely anxious and never to feel safe, even in his own home. She said that this has undermined his self-esteem and his ability to parent – he admitted to feeling he could not adequately defend his family.
Dr S said that the indirect effect on the child was that the step-father’s increasing anxiety heightened the mother’s anxiety and did nothing to contain the emotional tension in the home. She said that this has had an effect on the mental state of all three children. She said that they would continue to live in fear even when this was only perceived and no threat existed.
Dr S said that Mr B’s belief that the grandparents have used their wealth against him and the mother and that they have malicious intent towards them and the child. She said that this is in effect denying the child the benefit of the grandparents’ financial resources, love and attention. She said that this would in turn put more pressure on Mr B to support the family financially and increase the stress on his marriage.
In relation to the grandmother’s capacity, Dr S said that the best way of characterising her personality was with Obsessional Personality Traits. Dr S said that grandmother tended to withhold emotions, was probably very organised as she had been a nursing sister. Dr S said that these personality traits resembled the child’s in a way, that is having control over one’s emotions and or impulses. She also said that such traits can be useful in order to gain higher education.
Dr S said that the mother’s fears about the grandmother being controlling might be true but she said that the positive aspects of the child having a relationship with the grandmother far outweighed any negatives. She said that this was because of resources that the grandparents offered for the child’s education, extra curricular activities, knowledge of her father’s history and paternal extended family were all important and helpful for the child’s emotional and social well-being.
In relation to the step-grandfather, Dr S said that she thought that the manner in which he had gone about endeavouring to obtain time with the child had been at times fuelled by his own anger of the mother. Dr S said however his frustration with the mother’s obstructions were understandable.
She said that the grandfather’s understanding of the child’s psychological state was probably superficial at best and although he understood that the child had been alienated against him and the grandmother she was not sure that the had a complete understanding of the difficulty it might be for the child to come to accept them again. Dr S said that there was a relentlessness about the grandfather’s attitude to the proceedings which she found somewhat chilling and at times thought he was trying to reclaim a precious object rather than a little girl.
I must say in my view this is somewhat of a harsh view. I had opportunity to observe the grandfather giving his evidence over some time and I do not have a view that he would be relentless and without heart in pursuit of his recovery of the grandparents’ relationship with the child. I am confident that he would understand the need for sensitivity and a lot of patience if there was to be appropriate opportunity for their relationship to be rekindled.
Sub-Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
This matter is not relevant.
Sub-Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This matter is not relevant.
Sub-Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Again, although this legislative consideration refers to the child’s parents I propose to substitute the grandparents for the father in this regard. In my view such matters are relevant to the best interests of the child.
Dealing firstly with the mother in this regard, I note that Dr S said that the mother clearly believed that she has the only legal rights to the child and that she disqualified the father due to his alleged violence, abuse and harassment. Dr S said that since the father’s death, the mother has written off the paternal grandparents and has endeavoured to avoid them by moving away.
Dr S said that when the mother and Mr B realised that the mother felt just as anxious in Queensland as she had in Sydney they moved again, this time to town T. I note that they have since moved back to Sydney as indicated above.
Dr S said that the mother seems to enjoy being a housewife and has no short-term plans of returning to the workforce.
Neither the mother nor Mr B have any belief that there ought to be any contact between the child and her grandparents at any time.
In the case of Mr B, Dr S observed that he spoke about the child in terms of her being his child or his daughter. This suggested to me that Mr B has in effect adopted the child as his daughter and is consistent with other observations which Dr S has made. These were that the child and Mr B have a friendly camaraderie and that she has a healthy secondary attachment to him.
Dr S said that the grandparents were very focused on the material, tangible elements of parenting. These were such things as time spent with the child, the trips, the horse, money for doctors and what they could provide for the child’s education.
She said that they were rightly upset that the mother appeared to have expunged the memory of their son from the child’s mind referring to him as C and remembering very little about him and nothing positive. Dr S said that the paternal grandmother is keen to reintroduce the child’s cousins and her father’s friends and their children to the child as well.
I must say I share Dr S’s view that the grandparents’ initial approach was inappropriate and has obviously had a very negative effect on the mother and ultimately on the child. Dr S said that there is a need for the grandparents to realise what a threat that they have posed to the mother and the effect that her anxiety is having on all three of the children. It appeared to me during the course of cross-examination of each of the grandparents that they had both come to realise the error in their original approach and the effect that this had on the mother and the family. Each of them is very clear that if they were to be given the opportunity of endeavouring to recover a relationship with their granddaughter that they would act in a sensitive and patient manner towards her and towards her mother.
I note that in response to a question which suggested that the grandmother wanted the child to come to her because grandmother regarded the child as part of her extended family, which I understood to be in a possessory sense, the grandmother responded as follows:
I see her as a beautiful little girl who has a paternal family for whom it would be nice for her to know.
Sub-Section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
There is no objective evidence of family violence.
Sub-Section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
There have been no family violence orders.
Sub-Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Litigation between the father initially, followed by the grandparents after his death against the mother has continued for almost the entirety of the child’s life. In these circumstances it would be difficult for the Court to have any confidence that any orders it made in favour of one or other party would be likely to be met with a cessation of the litigation. In particular, the mother and her counsel made it clear that if I was to pronounce orders other than those which she sought, she would vigorously pursue all available avenues of appeal.
Sub-Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
As indicated above Dr S gave consideration to whether the child was being exposed to psychological harm. Dr S said that this really related to the quality of the mother’s marital relationship and the attitude she demonstrated regarding the child’s deceased father and extended paternal family.
Dr S said that it appeared to be clear from the subpoenaed material that the mother has been quite obstructive about making the child available for contact with her father and that she had been relatively successful in isolating the child from her extended paternal family since her father’s death.
Dr S said that the mother has been so successful in obliterating the father’s memory from the child in any positive sense that the child calls her step-father “daddy”, that the child could not think of anything good to say about her father and said that she wanted nothing to do with the paternal grandparents or cousins whom she could not remember.
Dr S said that the mother appeared to consider that the paternal grandparents no longer had any rights concerning the child because of their past behaviour in allowing the father’s “abuse and harassment”. She said that the mother seemed to think that their ongoing attempts to obtain contact with the child amounted to harassment and the mother created a feeling in her home of impending danger so that the child now believed that her grandparents are a threat to her, causing her anxiety anticipating the assessment.
Dr S said that the anguish that the child experienced in the assessment room with her grandparents was as a result of the attitude that the mother has furnished to her, allowing the child to believe that the paternal grandparents wanted to take her away from her family.
Dr S said that the mother’s tendency to characterise people as all good or all bad supports this notion. Dr S said that the mother has the view that because the grandparents cannot be only supportive, therefore they can only be evil people with nefarious intentions. Dr S said that the grandparents are not without blame because of the somewhat insensitive manner with which they have dealt with the mother. She said that they have insulted the mother’s authority as a parent.
Dr S said that the anxiety expressed by Mr B in feeling unable to protect his family has not had a good effect on the child’s psychological state. She said that Mr B’s paranoid ideas that he and the mother were being followed by private investigators or other agents of the grandparents has clearly heightened the tension in the household and made the child feel perpetually unsafe.
Dr S also said that the child’s way of coping with her mother’s fantasising was to give her mother a reality check. Dr S said that the effect of this is that the child is in actual fact regulating her mother’s anxiety and emotional state rather than the other way around. She said that this does not allow for the child to relax and develop normally but rather that she remained constantly sensitised to her mother’s feelings and felt responsible for them.
As indicated above, Dr S diagnosed the mother as having a Borderline Anxiety Disorder with histrionic traits and Anxiety Disorder.
She said that other health care professionals had also made the diagnosis of Borderline Personality Disorder in relation to the mother. She said that her impression was that the mother had avoided treatment of her own mental health issues. Dr S noted that one of the recommendations in the report by Professor O was that the mother seek some psychotherapy, which is the validated treatment for such Disorder. She said that SSRI anti-depressants have also been shown to help in reducing anxiety and chronically low mood. She observed that however the mother’s distrust of conventional medicine would make it very unlikely that such recommendations would ever be followed by her.
Dr S observed that in the absence of treatment, notwithstanding the recommendation, nothing has changed in the mother’s way of relating. The atmosphere in her home has remained consistently fearful.
Dr S also thought there was some level of personality disorder affecting Mr B given his level of what she regarded as paranoid thoughts.
Dr S said that the mental state of the mother and Mr B was such that they have actually been supported by having an adversary. She said that the adversary used to be the child’s father until his death. She said that this position as adversary for the mother and Mr B had been taken over by the grandparents. Dr S believed that if the grandparents were removed from any relationship with the mother and Mr B the latter would strive to find another adversary and she was concerned that their marriage could fall apart.
Dr S was concerned that if the grandparents were removed then the child could become their replacement adversary. This was particularly because the child has a very different personality from that of her mother - “much more realistic and obsessional”. She said their very different personalities would be likely to clash during the child’s adolescence. But it was also because the personalities of the mother and Mr B have relied on them fighting together against some abuse. They would look for, unconsciously, an abuser and it could turn out to be the child. They could become quite emotionally abusive towards her.
Another serious concern of Dr S was that she regarded the child as a “dead ringer” to become depressed. This was because the child was an “internaliser” which predisposed her to depression along with the fact that she lost her father under age 10 years which she said statistically increased the risk of depression.
Dr S said that the mother has been anxious for virtually her entire life. She said that at times the mother’s anxiety has made her incapable of parenting the child and the boys such as when they lived in North Queensland. At that time Mr B had to take over the care of the children and also care for her.
Dr S said that the mother was in denial about the fact that she needs professional assistance with her mental health and that this is affecting her parenting of the child J and the boys.
Dr S said that during her assessment of the family not only was the child engaging in reality checking of her mother but the young boys were checking Dr S’s emotional state which was an indication to her that they are used to doing that with their mother. In addition, Dr S noticed that the toddler, E, went up to the child for some organisation of his emotions rather than to his mother.
Dr S said that the mother’s state of constant anxious paranoia has an effect on the child’s emotional development because she cannot feel that she is in a situation where her mother protects her. So the child misses out on a sense of security. Dr S said that the consequence for the child as she moves through life will be that she will develop a constant feeling of being on edge and anxious which will continue throughout her life because she is being brought up in an atmosphere of fear.
Dr S said that the mother’s unstable mood was having an impact on the child who, as indicated above, has learnt to try to help her mother modulate her mood. Sometimes the children were, first of all, expected to be vigilant about the mother’s mood (in case she were to become angry or cry), and that they might be unconsciously enlisted to assist her in settling her mood as Dr S found evident during her assessment.
In the light of the diagnoses and observations by Dr S, in my view there must be concern that the child’s current living circumstances involve some level of psychological risk for her.
Sub-section 60CC(4)(b)
There was a submission by learned counsel for the ICL that in the context of s 60CC(4)(b) of the Act the Court would note that the mother has done anything but facilitate the grandparents spending time with the child and communicating with the child.
I note that s 60CC(4) in effect requires the Court to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the parents has done the things set out in paragraphs (a) and (b) of the sub-section. Sub-section 60CC(4)(b) refers to the extent to which each of the child’s parents has facilitated, or failed to facilitate the other parent participating in decisions about the child, spending time with the child and communicating with the child.
In my view it is doubtful that that sub-section has any application to grandparents. I accept, however, the thrust of the submission in the broader context of it not being consistent with the child’s best interests for her mother not to have facilitated the child spending time, and communicating, with her grandparents.
Dr S’s Recommendations
Dr S said in all these complex circumstances the child’s best interests would be served by resuming her relationship with her grandparents and extended paternal family. She said that any attempt for there to be contact between the child and the grandparents or extended paternal family would have to be arranged with supportive counselling from a child psychologist to whom Dr S’s report should be made available and a gradual re-introduction implemented. Her recommendations were as to the following effect:
·That the child remain resident with her mother;
·That the child be picked up from school by the paternal grandparents one afternoon a week for six weeks to be seen for one hour by a clinical psychologist specialising in children to whom Dr S’s report had been made available. The purpose would be to reacquaint the child with the grandparents in the company of a health care professional (it would be more helpful to the child if her mother would collect her from school and deliver her to the professional, but Dr S considered this would be unlikely to occur). After six weeks with the professional, the grandparents could collect the child from school on a Friday afternoon and return her home at 8:30 pm;
·From the time that the child was 8 years, she could be collected from school by the grandparents on Friday each alternate weekend and taken for a sleepover weekend being delivered to school Monday morning;
·The child should continue to see the clinical psychologist for 12 months at the expense of the grandparents. If the child is not taken to the psychologist by the mother or step-father then they would have to pay for the cancelled sessions. The purpose of the clinical psychologist would be to undertake Cognitive Behaviour Therapy to assist with the child’s anxiety regarding contact with the paternal grandparents and understanding the situation at her mother’s home. The mother ought not be present during the psychology sessions apart from during the first assessment to give history;
·That the school send school photographs and copies of the child’s reports to the grandparents twice a year;
·If the mother and the child were to relocate to another town they contact the grandparents and make this known to them, the sanction being that the mother would lose her family allowance if she did not make such information available;
·That the mother attend her general practitioner doctor to obtain a mental health care plan for twelve sessions of Cognitive Behaviour Therapy with a clinical psychologist for management of her mood instability;
·That Mr B seek psychological assistance given his current state of anxiety and paranoia which is clearly distressing him. It is likely that he would respond well to a small dose of anti-depressant or from some supportive counselling (in the absence of the mother);
·That the mother seek psychiatric help if she has any future pregnancies as apparently she has an Anti-Natal Anxiety Disorder, which mediated by stress hormones crossing the placenta may lead to behavioural disorders in the infant later in life;
Submissions
Independent Child Lawyer (ICL)
It was submitted that the Court adopt Dr S’s recommendations these being consistent with what is required in the child’s best interests.
Dr S remained firm in her view that the child should spend time with her grandparents each alternate weekend and that opportunity ought to be found for her to renew her relationship with her paternal cousins.
It was submitted that if the Court accepted this position, then the real issue became how to address the mother’s clear opposition to the child having any relationship with her paternal grandparents and extended paternal family.
It was submitted that the mother has failed to take any step towards addressing the problems associated with her personality disorder as identified by certainly Drs O and S and that this has not been in the interests of the child.
It was submitted that the Court needs to take steps that would force the mother to cooperate in bringing about a renewal of the child’s relationship with her grandparents. This would involve minimising the extent of any reliance upon the mother to achieve this. It was submitted that the orders proposed by the ICL had been drafted with this in mind.
Turning to the objects of the legislation it was submitted that what the ICL proposed would go some way towards protecting the child from physical or psychological harm and being exposed to psychological abuse and that it would assist in achieving adequate and proper parenting to help the child achieve her full potential. Most significantly what the ICL proposed would address the principle in s 60B(2) of the Act that children have a right to spend time on a regular basis with persons significant to their care such as grandparents and other relatives.
Learned counsel also addressed the Court in relation to the various relevant considerations pursuant to s 60CC(3) of the Act.
Finally it was submitted that it would be easy for the Court to take the line of least resistance given the mother’s implacable opposition to the child having any relationship with her grandparents. It was submitted that such an outcome would not only fail to reflect the objects in the Act but be quite inconsistent with the best interests of the child. It was submitted that Dr S’s very strong opinion was that both in the immediate and long term it would be very important for the child to have a relationship with her grandparents and members of the extended paternal family.
The grandparents
Learned counsel for the grandparents adopted the submissions of the counsel for the ICL.
It was submitted that the mother has an implacable irrational attitude to the child having any relationship with her grandparents. It was submitted that Dr S was only too aware about this, that she recognised the likely difficulties in having compliance by the mother with orders that the child spend time with her grandparents, but notwithstanding that Dr S gave very clear and cogent reasons about why, on balance, and notwithstanding some likely short term pain, the long term gain from the child having a relationship with her grandparents and extended family would be worth it.
It was submitted that the concern that the mother might not comply with all court orders might have been overstated bearing in mind that previously, particularly when those orders related to the child’s father, the mother had a history of complying generally with the orders. It was submitted that the father and grandparents were able to have a relationship with the child and for a considerable period until the father’s death was spending frequent regular time with the child.
It was submitted that in fact what the mother has done was to use the opportunity provided by the father’s death to cut off any relationship between the child and his family.
It was submitted that if the mother would not cooperate then the Court should not be held to ransom and decline to put in place orders which Dr S has recommended would clearly be in the child’s interests.
Learned counsel then addressed the various relevant s 60CC(3) considerations including the fact that Dr S had said that separation of the child from her mother for short periods of time should be easily acceptable to the child and that whatever trauma and unpleasant experience which might initially flow would do so for a limited time and then things would improve.
The mother
Learned counsel for the mother submitted that the Court should accept the recommendation by Ms M in her report that there be no orders for the child to spend time with her paternal grandparents. I have already dealt with this matter.
It was submitted that the overwhelming evidence in the case is to the effect that both the mother and Mr B are most unlikely to be forthcoming in terms of facilitating restoration of any relationship between the child and her grandparents. The Court was reminded that if the decision goes against her application she will appeal and that once she has exhausted her appeal remedies, if she is ultimately unsuccessful she does not know what she would then do. Dr S expressed the view that the mother appeared to be unlikely to comply with any orders that the child spend time with her grandparents.
It was submitted that nobody asserts that it is in the child’s interest to remove her from her mother’s primary care. It was submitted that Dr S acknowledged that the child’s physical needs were being cared for and that her intellectual development is being appropriately attended to. The only criticism appears to be of an emotional nature.
It was submitted that the genesis of the difficulty with the grandparents continuing to spend time with the child was their initial demand in effect to be placed in a co-parenting position.
It was conceded that the mother has made it as hard as she can for any form of contact to take place. It was submitted therefore that things come down to whether the Court was going to embark upon a course which would involve the inevitability of an appeal and that if such an appeal were unsuccessful what might well then be involved would be a series of contempt orders.
It was submitted that in relation to the primary considerations under s 60CC(2) that the benefit to the child of having a meaningful relationship with both of the child’s parents cannot be read as extending to grandparents. I accept that submission. In respect of the need to protect the child from physical or psychological harm, it was submitted that there was no suggestion of physical violence and I have already referred to this.
It was submitted “for what they are worth” the views expressed by the child were that she did not wish to have anything to do with the grandparents. It was submitted that some weight should be given to this view on the basis that Dr S said that J was a child who was old enough to appreciate the significance of death and in respect of whom it was considered appropriate to carry out counselling, therefore she should be old enough to have her views considered.
It was submitted that the child does not have any significant relationship with either of her grandparents.
It was submitted that it would not be in the interests of the child to separate her from her siblings for significant periods.
The overall submission was that there are three problems. The first was said to be how any order for the child to spend time with the grandparents would be likely to impact on the mother’s ability to care for the children. It was submitted that she had difficulties when the family was living in Queensland and that stress relating to these proceedings was a factor in that. It was submitted that if matters continued down a long and litigated path would this adversely affect the mother’s capacity to care for the child. The second factor was said to be the impact on the child of being compelled to do something which her mother does not support and which she knows her mother does not support. The third factor was said to be somewhat related to the second because it related to practicalities. This was to the effect that how would the orders be given effect to when the mother does not support the orders. It was submitted that when confronted with this Dr S was unable to offer any realistic strategy other than to suggest that the Court would use its coercive powers.
The ultimate submission was that the Court ought not to blindly follow the recommendations of Dr S because Dr S had not thought her recommendations through. Rather it was submitted that the Court ought to adopt the more pragmatic approach adopted by both Ms M and Ms NN, the latter saying that she was not prepared to continue with counselling because of the practical situation she found herself in, namely, that it wasn’t supported by the child’s mother. The Court should act on the child’s expressed wish that she just wanted for the fighting to be over.
Discussion
This complicated case is not just about the desires of the child’s paternal grandparents to be able to spend time with her and contribute to her life. It is very much about the Court endeavouring to bring about a situation where the child can have proper opportunity for her appropriate development through her adolescence into adult life. This would in ordinary circumstances involve her in being able to renew and develop her links with her father’s side of the family and particularly with her cousins who are of a similar age.
It is true that the mother has been able to provide for the child in a material sense. She has been able to support the child in an intellectual sense. So there are clearly positive aspects about her capacity to parent the child.
But there are also some very serious negatives as indicated by Dr S and described above. The mother is not always emotionally available to the child because of her personality traits and her own needs. Dr S has described in detail as referred to above the likely long term negative consequences for the child’s emotional development and mental health.
The mother’s anxiety caused her to change the child’s residence and her schools several times. As Dr S said, this is not good parenting. Dr S described it as being impulsive behaviour to avoid the mother’s responsibility.
If the Court was to make orders for the child to spend time with her grandparents this would be consistent with those legislative objects which require the Court to consider the need to protect the child from psychological harm, ensure that she receive adequate and proper parenting to help her achieve her full potential and it would respect the principle that children have a right to spend time on a regular basis with people significant in their care, welfare and development such as grandparents and other relatives.
Restoration of the child’s relationship with her grandparents, if it could be achieved, would also provide a buffer against the vulnerabilities which Dr S has indicated flow, and will almost certainly continue to flow, in relation to the child as a consequence of the frailties of mental health of her mother and Mr B. Such an outcome was supported not only by learned counsel on behalf of the grandparents but also by the ICL.
But of course what would almost inevitably accompany such an outcome would be a continuation of the implacable opposition which the mother and step-father have shown without waver virtually since the death of the child’s father.
I do not propose to make a detailed return to the additional s 60CC(3) considerations to which I have referred in some detail above. Except to say, that in my view a weighing of those considerations together with the relevant primary considerations, in my view, clearly falls in favour of orders which would enable opportunity to be provided for the child to resume her relationship with her grandparents and extended paternal family.
As indicated above there were very strong submissions made by learned counsel for the mother against such an outcome. In relation to the submission that it is virtually inevitable that the mother will be most unlikely to cooperate with any step in the direction of restoration of the child’s relationship with her grandparents, this is not a matter which would ordinarily deter the Court from pronouncing appropriate orders.
I note that a similar suggestion was made to Dr S during cross-examination. Learned counsel for the mother asked the following question:
If you had a situation where someone was simply never prepared to comply with orders and would not cooperate with a regime of counselling, does there come any point at which you say this continued conflict and the instability it produces is not in the interests of the child?
Dr S replied as follows:
I don’t believe so, no. I think that the interests of the child involve both a mother and a father, even if the father has passed away. He’s still alive in her memory, but she hasn’t had a chance to think about him in a positive way, grieve over him in any substantial way or to get to know his friends or his family since his passing away. So I believe that that’s an important part of any child’s psychosocial development, and many mothers try to - when they have residence of their children - try and expunge the memory and contact with the other party and the extended paternal family, and it is not just my belief, but it’s – seems to be a generally held belief that that is unfair to the child, that the child has a right to know who their – both their parents are, and that the child - if left in a situation where they are not offered that information, they will come to try and find it out themselves anyway. It’s part of what a child needs to know about themselves, and mothers’ attempts to stop that from happening are fruitless, because the child will want to do it themselves anyway at some stage. Now, when they come to the realisation that their mother has actually prevented that from happening, it has enormous consequences on their primary relationship with the mother, and they have this terrible loss of innocence, that their mother, who they had always idealised and believed in, has actually been the one who stopped her from having contact with all these people who loved her from a distance and she wasn’t allowed to have any contact with.
Learned counsel then suggested that this would be a matter a child could deal with in adolescence or early adulthood. Dr S agreed but said “by that time all the damage would have been done.”
In the event that such a situation was to come about where the mother was to refuse compliance with orders and the Court was faced with an application for some enforcement action the Court would give due regard to what was appropriate in any such circumstances. It is true that further protracted litigation would not be in the interests of the child.
In relation to the submission that it would not be in the child’s best interests to separate her from her siblings for significant periods I am not persuaded that the evidence would support such a finding. In any event what the grandparents propose mainly involves alternate weekends and a maximum of two weeks during school holiday periods. It is difficult to see that there would be some serious effect on the child of separation from her siblings during such periods.
I turn to the submission that there would be three problems about orders as sought by the mother and the ICL. The first was said to be the likely impact on the mother’s ability to care for the children in the face of orders for time to be spent by the child with them. It was said that it is clear that the mother reacts poorly to stress and that this has an impact on her parenting ability. In my view what has to be remembered is that when this matter was specifically broached with Dr S, Dr S said that in any event there are many stresses in the mother’s life, that even if the grandparents were removed from the lives of the mother and the child, there would be many other stresses remaining which would continue to cause difficulties in terms of the mother’s parenting ability.
The second factor was the likely impact on the child of being compelled to do something which she knew her mother did not support. Dr S had given some consideration to such a matter. Her response was that when she saw the child during the assessment, initially the child was quite distressed but after fifteen minutes or so she settled and simply became angry. Dr S said that anger in such circumstances was not difficult for an appropriately qualified behavioural scientist to deal with. In these circumstances, in my view one could have some confidence that this concern would be able to be addressed by the child’s counsellor.
The third factor was the question of how the orders would be able to be given effect to when the mother did not support them. In my view this really relates back to the earlier matters and that ultimately if it turned out that the mother was in breach of the orders then one would presume that consideration would be given by the grandparents to bring some appropriate enforcement application.
I do not accept the submission that Dr S had not thought her recommendations through. Her report was very detailed and I was impressed with her capacity during cross-examination to withstand vigorous challenge to her observations and recommendations.
Dr S said in this most complicated scenario, it would be extremely helpful for the child to be able to have some connection with her father’s family, particularly with her cousins who are generally about her age. This would provide her with support at a time when Dr S thinks it is almost inevitable that the child will have a huge falling out with her mother and step-father.
But there are other positive aspects of her having a relationship with her grandparents. These are people who can provide not only the obvious love, care and material assistance which they are most keen to provide, but also a level of stability and normality in circumstances where such matters are wanting in the household of the mother and Mr B.
It is true, that as both Ms NN and Ms M and Dr S acknowledge any attempt at reintroduction of the child to her grandparents will be fraught with huge difficulty. This is a consequence of the mother’s state of mental health. Dr S was very clear that such is the predicament facing the child that it would clearly be in her interests to suffer some “short lived pain for long lived gain”. I must say, I accept Dr S’s recommendations about what is required to serve the child’s best interests.
School photos, reports and health documents
I agree that it would be in the child’s interests for her school reports and photographs to be provided to the grandparents, and for them to be notified about significant events.
I do not propose to order the mother to provide them with the health documentation sought by them because I consider that it would only further entrench the mother’s opposition.
Mother’s attendance on medical professionals
I propose to make the orders sought by the ICL in relation to these matters because of Dr S’s view about the importance for the child that her mother endeavour to address her emotional and psychological difficulties. In my view it is in the child’s interests that these orders be made.
Conclusion
In my view the evidence in this case as I have referred to it above clearly points to the best interests of the child being served by the restoration of her relationship with her grandparents and extended paternal family.
I propose to make orders along the lines proposed on behalf of the ICL.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 29 June 2012.
Associate:
Date: 29 June 2012