Deniz & Anor & Yilmaz

[2018] FamCA 1058

FAMILY COURT OF AUSTRALIA

DENIZ AND ANOR & YILMAZ AND ANOR [2018] FamCA 1058

FAMILY LAW – CHILDREN – With whom a child spends time – Where the paternal grandparents seek to spend time with their grandchildren – Where the mother is opposed to the children spending any time or communicating in any way with the paternal grandparents – Where the father and mother were previously involved in court proceedings which involved a five day trial – Where the children have not spent time with their grandparents for about six years but historically had a very close and loving relationship with them – Where the Court adopts the findings in an earlier decision of this Court, pursuant to s 69ZX(3)(b) of the Family Law Act 1975 (Cth), which found that neither paternal grandparent posed an unacceptable risk of harm to the children – Where the Court makes an order for the children to spend time with the paternal grandparents.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

M & M (1988) 166 CLR 69

APPLICANT: Ms I & Mr H Deniz

1st RESPONDENT: Ms Yilmaz

2nd RESPONDENT: Mr Deniz

INDEPENDENT CHILDREN’S LAWYER: Ms Stamford

FILE NUMBER: PAC 4311 of 2010

DATE DELIVERED: 7 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Parramatta

JUDGMENT OF: Carew J

HEARING DATE: 19 - 21 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Morley

SOLICITOR FOR THE APPLICANT: Sarah Bevan Family Lawyers

FOR THE 1ST RESPONDENT: Self-represented

FOR THE 2ND RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Todd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stamfords Solicitors & Conveyancers

Order

(1)Mr H Deniz and Ms I Deniz (“the paternal grandparents”) do all things necessary to engage in family therapy with Mr AA, Psychologist of the BB Group, …Sydney, telephone …, or such other therapist as is recommended by Mr AA if he is not available to conduct their family therapy (“the therapist”), for the purpose of restoring the relationship between the paternal grandparents and their grandchildren, B born … 2007 and C born … 2008 (“the children”), and re-introducing the children spending regular time with the paternal grandparents. 

(2)For the purpose of the family therapy:

(a)       The mother is encouraged to engage in therapy but is not required to do so.

(b)       The paternal grandparents are responsible for organising CC Contact Service (“the contact service”) to transport the children to and from family therapy appointments and to pay any fees invoiced from the contact service.

(c)       Each of the paternal grandparents will engage in the family therapy by attending all appointments requested by the therapist and each will do all things necessary to ensure that the children attend for all appointments as requested by the therapist.

(d)       The mother is restrained and an injunction hereby issues restraining the mother from preventing or hindering the children from attending all appointments.

(e)       Each of the paternal grandparents and the mother (if she involves herself in the family therapy) will comply with all requests and recommendations made by the therapist in the course of the family therapy.

(f)       The paternal grandparents will be responsible for all costs of family therapy.

(3)Commencing at the time recommended by the therapist, but in any event no later than 3 months from the date of this Order, the children will spend time with the paternal grandparents as follows:

(a)       For a period of 6 months, from the conclusion of school (or 3.00pm if not a school day) to 7.00pm each alternate Friday, supervised by the contact service.

(b)       Thereafter for a period of 9 months, commencing on the second Saturday after the last occasion pursuant to paragraph 3(a) has occurred (or should have occurred) from 9.30am to 7.00pm each alternate Saturday.

(c)       Thereafter, on the second weekend (where the weekend is defined as commencing on a Friday) of the month from the conclusion of school (or 3.00pm if not a school day) on Friday to the commencement of school (or 9.00am if not a school day) on Monday.

(d)       From 1 January 2021, for 2 occasions of one week holiday in each calendar year, being 7 consecutive nights, to occur only during school holiday times, and not to both occur in the same school holiday, the paternal grandparents to give the mother notice in writing of the dates they elect to have such holiday time with the children no later than 2 months prior to the start of any such elected occasion.

(e)       At such other times as may be agreed in writing from time to time between the mother and the paternal grandparents.

(4)For the purpose of changeover pursuant to paragraph 3(b) to 3(e), except where changeover is to occur at school:

(a)       The contact service will collect the children from the mother’s home at the commencement of the period of time and transport the children to the paternal grandparents at a location of their nomination.

(b)       The paternal grandparents will return the children to directly outside the mother’s home at the conclusion of the period of time, but they must remain in their car and not engage in any communication with the mother unless initiated by her.

(5)In relation to the contact service:

(a)       For the purpose of paragraph 2, the contact service is specifically authorised to transport the children to and from appointments, whether to or from their school or home.

(b)       For the purpose of changeover at other times when the contact service is involved, the contact service is specifically authorised to collect the children from school or the mother’s home and transport the children to a location of the paternal grandparents’ nomination at the commencement of time and to transport the children to school or the mother’s home at the conclusion of time.

(c)       To the extent permissible by the contact service, the mother is not required to provide any further consents or directions beyond this Order for the engagement of the contact service for both transport arrangements and supervised time.

(d)       The paternal grandparents will do all necessary things to engage the contact service for both transport arrangements and supervised time.

(e)       The paternal grandparents will be responsible for all costs of the contact service.

(6)The paternal grandparents are each restrained from allowing the children or either of them to come into contact or communication with the father, Mr Deniz, at all while the children are in their care, including during the occasions supervised by the contact service.

(7)The paternal grandparents are each restrained from providing to the father by any means whatsoever information as to the mother and children’s residential address or mobile telephone numbers or the school or schools being attended by the children.

(8)The mother and each of the paternal grandparents are restrained from making any derogatory remarks about any of the parties to these proceedings, including the father, in the presence of the children or either of them.

(9)The mother and each of the paternal grandparents are restrained from allowing the children or either of them to remain in the presence of, or within the children’s hearing of any other person who is making derogatory remarks about any of the parties to these proceedings, including the father.

(10)Within 5 days the mother will advise the paternal grandparents through their solicitors of her residential address and mobile telephone number and within 5 days thereafter the paternal grandparents will advise the mother of their residential address and each of their mobile telephone numbers and thereafter each of the mother and the paternal grandparents will keep the others advised within a reasonable time of any change to their residential address or mobile telephone number.

(11)Paragraph 11 of the Orders made on 17 April 2013 be discharged.

(12)The paternal grandparents are hereby authorised to request and receive copies of the children’s school reports from time to time with any cost associated with the provision of the reports to be borne by the paternal grandparents.

(13)The paternal grandparents may provide a copy of the children’s school reports to the father, but such that all means thereon of identifying the school being attended by either child is erased therefrom.

(14)The mother is authorised to provide to Ms DD, or any therapist or counsellor engaged by her, a copy of the Confidential Psychiatric Report dated 7 April 2017 prepared by Dr EE and a copy of this Order and these Reasons for Judgment.

(15)The mother is restrained and an injunction hereby issues restraining her from taking the children to see a counsellor other than one recommended by the therapist referred to in paragraph (1) hereof.

(16)The mother must notify the paternal grandparents and the paternal grandparents must notify the mother about all significant medical issues affecting the children, such notification to be made promptly and in the case of an emergency as soon as reasonable practicable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4311 of 2010

Ms I & Mr H Deniz

Applicant

And

Ms Yilmaz

First Respondent

And

Mr Deniz

Second Respondent

REASONS FOR JUDGMENT

1. Ms I and Mr H Deniz are the paternal grandparents of B born in 2007 and C born in 2008. Their application is for B and C to spend time with them. The children currently live with their mother, Ms Yilmaz and she opposes the application. The children’s father, Mr Deniz, lives in Turkey and has taken no part in these proceedings. The paternal grandparents have not spent time with the children for about six years.

proposals

1. The paternal grandparents propose that the time they spend with their grandchildren be reintroduced with the assistance of a family therapist over a period of up to three months before moving to supervised fortnightly day time for a further three months. This is then to move to monthly weekend time, during the day, for a period of nine months, followed by monthly weekend time commencing after school Friday and finishing at the commencement of school on Monday. It is then proposed that the children spend two periods of one week holiday time with the paternal grandparents each year commencing in January 2020.[1]

   [1] For the precise form of order see the Further Further Amended Application filed by leave on 21 November 2018.

2. The mother is opposed to the children spending any time or communicating in any way with the paternal grandparents.

3. The independent children’s lawyer recommends that the children spend time with the paternal grandparents along the lines proposed by the paternal grandparents save that it is recommended that the family therapy period be extended to six months and the supervised period be extended to nine months and that there be no holiday time.[2]

   [2] For the precise form of order see exhibit 3.

issues

1. The following issues have been identified as particularly relevant to the determination of the application:

   a)Does the mother have the capacity to facilitate a relationship between the children and the paternal grandparents?

   b)What harm, if any, will the children suffer if they do not have a relationship with the paternal grandparents?

   c)What harm, if any, will the children suffer if they have a relationship with the paternal grandparents against the wishes of the mother and, if the children will suffer harm, can that harm be ameliorated by the graduated reintroduction process sought by the paternal grandparents?

background

1. The mother and father were in a relationship from 2004 until 20 August 2010. The relationship was marred by family violence.

2. Prior to the parent’s separation the paternal grandparents were significantly involved in the care of the children. Initially, after B’s birth they looked after her in order to provide respite for the mother. Then, from the age of about six months they commenced to have B overnight. By the time she was two years old she was spending several nights per week with the paternal grandparents. The mother maintains that the time B spent with her grandparents largely occurred without her consent.  

3. Dr EE is a psychiatrist who has provided expert evidence in the case before me and she makes a valid observation of the dynamic between the paternal grandparents and the mother. She opined:

   Given their assertive demeanour, education, parenting experience and concern for their impaired son, I have little doubt they, at times, unwittingly caused [Ms Yilmaz] to feel overruled by them.

4. The father and mother were involved in court proceedings which involved a trial over five days commencing in November 2011 and concluding in March 2013.[3]

   [3] The matter was adjourned to enable the preparation of a forensic psychiatric and family report.

5. The children were still very young when their parents separated in August 2010. Yet when the children saw their paternal grandparents in 2011 and 2012 the close relationship and affection remained. When asked about the relationship during submissions, the mother described it as “fake”. I reject that submission. Exhibit  2 contains detailed observations made by the supervisors of the children’s time with the father and paternal grandparents in 2011 and 2012. It seems the first occasion of supervised time (involving the paternal grandparents) took place on 20 November 2011. B was observed to run to the paternal grandfather with her hands up in the air. She hugged her grandfather and turned back to the supervisor and her father and smiled. Both children laughed loudly when the grandfather kissed C on both cheeks. B wrapped her arms around her grandmother and buried her head in her lap. C joined in the greeting. On 17 December 2011the children were observed to squeal with excitement as they ran to hug their grandparents. On 31 March 2012 the children ran to their grandparents and greeted them with kisses and hugs. On 15 April 2012 the children ran to greet their grandparents and cuddled them tightly. A particular exchange between the grandmother and B is noted as follows:

   [Ms I] [the paternal grandmother] told [B] and [C] she loved them. [B] told [Ms I] she was not allowed to say that because her Mum said so. [Ms I] told [B] “but I do love you very much, what should I say?” [B] told [Ms I] “you can only say I love you and nothing else.”

6. Whether or not the mother said such a thing to B (and I make no finding that she did) B had a perception that her mother held that view. On 5 May 2012 the children shared homemade lentil soup made by their grandmother. The description of the family sharing a meal together is very touching. On 26 May 2012 the children appeared excited as they screamed out “grandpa” as he approached. The children held their grandfather’s hand. B then ran to greet her grandmother and hugged her around the waist and told her she missed her. It appears the children last spent time with their grandparents on 23 June 2012. The description of the time demonstrates the continued warm and caring relationship between the children and their grandparents.

7. On 17 April 2013 his Honour Justice Loughnan delivered judgment. His Honour’s conclusion is relevant to the background of this current proceeding between the paternal grandparents and the mother:

   219.It is agreed that the children will live with the mother. The mother is afraid of the father and any time between the father and the children would cause great anxiety in her. There is a rational basis for the mother’s fears. If there was to be time between the children and the father, the mother needs that time to be professionally supervised. The father will not countenance any supervision. As a result there will be no orders for the children to spend physical time with the father.

   220.There is a loving attachment between the father and the children. It is to be hoped that, with the link maintained through communications, at some time in the future, circumstances will support a resumption of time between the children, their father and members of the paternal family.

8. It is common ground that the link has not been maintained.

9. The paternal grandparents made a few attempts to engage with the mother in order to see their grandchildren but their attempts were thwarted. On one occasion they sought permission to give a gift to each of the children at their school. The mother opposed that course. When the grandparents were told they could come to the school to attend an Easter hat parade the mother kept the children away from school and later withdrew the children from the school. On another occasion they attended at a park in the hope of being able to provide a gift to their granddaughter for her birthday. They did not approach the children but the mother approached them and told them to leave, which they did. The father’s brother went to the mother’s home with his young son on two occasions. The first occasion seems to have been reasonably successful in that all the children played together. On the second occasion he was refused entry.

10. The paternal grandparents commenced proceedings in 2015 in the Federal Circuit Court and the proceedings were transferred to the Family Court on 18 September 2017. Regrettably it has taken until November 2018 (even with an expedited hearing) for their application to be heard. 

11. An Order for the preparation of a family report was made on 22 July 2016. The report of Dr EE dated 7 April 2017 is included in the material before me as Exhibit 1. Attempts were made by the parties to arrange family therapy as recommended by Dr EE but progress stalled when the mother’s lawyers were unable to obtain instructions. Approximately two months prior to this being communicated by the mother’s lawyers to the family therapy practice, the paternal grandparents filed an amended initiating application seeking an order that the children live with them.

12. On the first day of trial the paternal grandparents withdrew the application for the children to live with them but pressed for an order the children spend time with them.

13. Unfortunately the mother’s access to legal aid was withdrawn the week before the trial was due to begin. The matter was stood down for her to speak to the duty lawyer and an application for an adjournment was made on the mother’s behalf. There was some confusion about whether or not the mother was seeking an adjournment until the following morning or alternatively for a period of four to six weeks (said to be the time it would take for an appeal against the withdrawal of legal aid to be provided). In any event the application for an adjournment (other than to the next morning) was refused and reasons given.

14. The mother has a history of mental illness including depression and acute anxiety dating back to the relationship with the father. In the most recent psychiatric assessment of the mother by Dr EE in March 2017 the mother was assessed as an “impaired, isolated parent raising the children alone.” It would have been preferable to have an updated report from Dr EE particularly to further assess the children. However, the prospect of further delay even with expedition would place inordinate stress on the children and the parties.

1. The mother offered the following reasons for opposing the children spending time with the paternal grandparents:

   a)The maternal grandmother physically harmed B by slapping her and causing a blood mouth;

   b)The paternal grandfather sexually abused B;

   c)The paternal grandparents cannot be trusted to abide by an order (sought by them) not to bring the children into contact with the father;

   d)She fears they will harm the children particularly if they spend overnight time with them.  

2. The first two matters were the subject of a previous trial in this Court in 2013. After a five day hearing the trial judge rejected the allegations that either paternal grandparent posed an unacceptable risk of harm to the children. In particular Loughnan J said:

   148.Ultimately no finding is sought, nor is one available, to the effect that [B] was sexually abused. It was ultimately conceded in the mother’s case that I could not find that there is an unacceptable risk of abuse. The single expert, [Mr O] was not satisfied that a sexual assault occurred and pointed out inconsistencies in the reasoning revealed in the JIRT investigation.

   …

   153.I agree with the position ultimately adopted in the mother’s case. On that material I could not find that there is an unacceptable risk of sexual abuse of the children from the paternal grandfather.

3. Section 69ZX(3)(b) of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court may, in child related proceedings, “adopt any recommendation, finding, decision or judgment of any court.” The independent children’s lawyer and the paternal grandparents submit that the findings made by Loughnan J should be adopted by this Court. I propose to do so for the following reasons:

   a)The evidence relied upon by the mother in the 2011/2013 trial was in greater detail than contained in the one affidavit relied upon by her in the proceedings before me;

   b)The trial judge identified with particularity all of the relevant evidence;

   c)The trial judge had the benefit of hearing the mother and the paternal grandparents cross-examined about the allegations;

   d)The trial judge had the benefit of a forensic expert’s report that raised concerns about the inconsistencies in the evidence relied upon by the mother and provided evidence about alternate reasons for B’s alleged conduct observed by the mother; and

   e)The mother conceded (through her counsel) that the evidence did not support a finding that the paternal grandparents posed an unacceptable risk.

Applicable legal principles

1. Part VII of the Act sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[4] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[5]

   [4] See Family Law Act 1975 (Cth) s 65D.

   [5] See Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[6] The paramount issue for the Court is to determine what is in the best interests of the subject children in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” on each and every factual dispute.[7]

   [6]Baghti & Baghti [2015] FamCAFC 71.

   [7]M & M (1988) 166 CLR 69, 76.

3. The objects and principles of Part VII of the Act are set out in ss 60B(1) and (2) and those sections make it clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.

4. Section 65C permits a grandparent to bring an application for a parenting order.

5. In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).

6. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents (not an issue in these proceedings) and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent (in this case the mother) and the paternal grandparents, the likely effect of any changes, the capacity of each parent (in this case the mother) and the paternal grandparents to provide for the intellectual and emotional needs of the child etc. (s 60CC). In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

8. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[8]

Does the mother have the capacity to facilitate a relationship between the children and the paternal grandparents?

[8]Banks & Banks (2015) FLC 93-637.

1. As noted above, Dr EE is a psychiatrist who provided a report to the Court in this case. Dr EE obtained her medical degree in 1977 and became a fellow of the Royal Australian and New Zealand College of Psychiatrists in 1987. She has held various staff positions with a number of hospitals and has been in private practice in supportive and exploratory psychotherapy; child and family psychiatry since 1990 (until 2015). Dr EE has prepared family reports in contested parenting cases since 1987 and has also been an authorised clinician in the Children’s Court since 2001. Dr EE’s evidence was very helpful and I accept the opinions expressed by her.

2. Despite Dr EE’s assessment that the mother is vulnerable to “decompensation” from the next stressor/trauma she recommends the reintroduction of the children to their grandparents. In order to manage what might be anticipated to be the mother’s reaction to such an order a number of things have been recommended by Dr EE and/or proposed by the independent children’s lawyer and paternal grandparents.

3. Firstly, the introduction is to be managed by an experienced family therapist (hopefully with the mother’s involvement). Secondly, at a time assessed to be appropriate by the family therapist but not later than three months from the commencement of the family therapy, the children would spend supervised time with the grandparents on alternate Fridays from after school to 7pm and after three to six months the time would be extended to one weekend each month unsupervised. Thirdly, the mother would not be involved in the delivery or collection of the children to and from family therapy but rather an independent person would attend to the changeovers from school and return them to the mother’s home until the weekends commence when all changeovers would be from school by the grandparents. Fourthly, the grandparents would be restrained from bringing the children into contact with the father. Fifthly, the mother would undertake ongoing counselling to assist her through the process.

4. Dr EE opined that when she saw the mother in March 2017, her “mental health was probably at its worse and raised concerns about how disorganised and disintegrated she can become.” Dr EE met with the mother’s niece who was able to provide some valuable insights into the mother’s functioning. The mother’s presentation at interview was noted to be in “marked contrast to how she sounded in a telephone conversation two weeks later, when [Ms Yilmaz] seemed anxiety free and spoke coherently.”

5. The mother presented in a way similar to that described by Dr EE (during the face to face assessment in March 2017) when refusing to take an oath or affirmation or be cross-examined in the proceedings before me. The mother spoke very softly or indicated that she could not or would not speak. She appeared quite distressed and invited the Court to do whatever it thought was appropriate. The mother invited the Court to take guidance from God. Not long thereafter the mother found her voice and was reasonably articulate for the balance of the trial although at times tangential. Having initially avoided all eye contact with the paternal grandparents the mother turned to look at the maternal grandmother, in particular, while pointing at her and accusing her of slapping B. Her earlier reticence towards the paternal grandparents was no longer evident.

6. Dr EE opined that the mother needed to acquire “the skills to manage her inevitable anxiety if Orders are made for the children to spend time with their [paternal grandparents].” She recommended an assessment by a psychiatric trauma specialist, Dr FF, and ongoing treatment. Unfortunately, the mother has not been assessed and has not undertaken further therapy. During the trial the mother expressed a desire to renew her therapeutic relationship with Ms DD (a psychologist she had been seeing at some point prior to her assessment by Dr EE).

7. During her submissions the mother’s main focus was on the father and his conduct towards her in the past and her lack of trust in the paternal grandparents keeping the children away from the father in the future. The mother described as “fake” the many reports of the children enjoying their time with the paternal grandparents during the period of supervision in 2011 and 2012. I disagree. As noted above the detailed observations made by the supervisors over that period demonstrate a close, loving and comfortable relationship between the children and the paternal grandparents. The children are observed to show spontaneous affection to each of their grandparents and were clearly delighted to be in their company. That is of course a long time ago.

8. Although the mother maintains her opposition to the children spending time with the grandparents, I consider it significant that despite her opposition in the past and her belief that the children had been physically and sexually harmed by them, she did facilitate the children spending supervised time with them in the period November 2011 to June 2012.

9. While I expect the mother would find an order for the children to see their grandparents difficult to accept, I consider that the proposed order would address and assist in overcoming the impediments to the mother’s capacity to facilitate the children spending time with the applicants. She will comply with an order that the children spend time with the paternal grandparents as she did so in the past.

What harm, if any, will the children suffer if they do not have a relationship with the paternal grandparents?

1. Accepting as I do the general proposition that children benefit from having a relationship with extended family when it is safe to do so, I turn to consider what harm may befall these children if they do not have that opportunity.

2. Dr EE commented that B and C are “concerning” for the following reasons:

   •they are parented by their single, socially isolated mother who presented with significantly compromised mental health at this assessment. Historically, there is evidence she has had periods of emotional distress (and possibly dysfunction) throughout their lives.

   •they hold fears and negative views of their paternal family, which are not entirely based on reality. They are not having these perceptions tested by ongoing interactions with their PGPs [paternal grandparents], uncle and cousins

   •they spent their early years in a household in which their father perpetrated intimate partner violence on their mother. Of note, was [B’s] emotional response to my reference to him while with [Ms Yilmaz]. However, when seen by herself, she made some thoughtful comments about him

   •they have lost their relationships with their paternal grandparents, who had previously been very involved with them and were probably attachment figures for them

   •they are worried about their mother, which shows their empathy. However, it is a developmental concern if they are preoccupied with her welfare and take care of her.

   [as per original]

3. As already noted, Dr EE recommends that the children spend time with the grandparents. In her report she went so far as to recommend that the children staying with the mother be conditional upon her facilitating that time.  

4. The detriment to the children in not having a relationship with the paternal grandparents, according to Dr EE, include compromising their sense of identity both within the Deniz family and also within their Turkish culture. The children would continue to be unable to balance the overly negative views of the Deniz family held by the mother with the reality of the close and loving relationship they once had with their grandparents. The children would continue to have limited role models from whom they can obtain support academically, socially, culturally and recreationally.

5. Importantly, Dr EE opined that a significant advantage to the children having a relationship with the grandparents would be that the children would have available to them responsible adults in the event the mother’s mental health “decompensates” as it has done in the past.

What harm, if any, will the children suffer if they have a relationship with the paternal grandparents against the wishes of the mother and, if the children will suffer harm, can that harm be ameliorated by the graduated process sought by the paternal grandparents?

1. It is apparent (from Dr EE’s evidence) that the children bear a burden of concern for their mother’s wellbeing and are acutely aware of her opposition to them spending time with their grandparents.

2. According to Dr EE the children have an enmeshed relationship with the mother. In her view, this “role reversal appeared evident in several of [B's] comments: she would not want to see her grandparents "if it makes my Mum feel uncomfortable" and she was "worried if they would make my Mum upset". She appeared otherwise open to the possibility of contact with them.”

3. Dr EE would clearly have preferred to see the mother and children again before giving her evidence and it is a pity that could not have occurred but as stated earlier one has to balance the preference for updated material with the inevitable delay to a finalisation of the proceedings and the impact of further delay on the children and the parties. In any event, Dr EE maintained her opinion that the children should spend time with the grandparents despite speculating that it is a “highly likely” scenario that the children will refuse to go to family therapy and will become “more active participants in the chaos.”

4. Whether or not the children spend time with their grandparents Dr EE considers that “they will continue to be primarily focussed, centred around a mother who has some impairments and this will harm them in all aspects of their development.”

5. The paternal grandparents submit that an order for the children to spend time with them will provide a safety valve for the children so that if things deteriorate in the mother’s household help can be offered. If the mother continues to retreat into isolation the children will be significantly prejudiced as seen by the children’s poor school attendance in recent years. I accept that submission.

6. The independent children’s lawyer submits that an order for the children to spend no time with the paternal grandparents does not render a benefit as it does not relieve the children of the burden described by Dr EE of their heightened concerns for their mother’s wellbeing. I accept that submission but it is a question of whether an order for time will make matters worse for the children.

7. On balance, I consider the benefits to the children spending time with their paternal grandparents outweigh any detriment. The children previously had a close and loving relationship with their paternal grandparents and will have the opportunity of receiving support from them in the future. I am satisfied that the paternal grandparents have the children’s best interests at heart. Although there is likely to be additional pressure for the children with an order for them to spend time with their paternal grandparents (at least initially), I consider that the harm can be ameliorated by making an order of the type recommended by Dr EE, with the added provision of third party involvement to collect and deliver the children from family therapy. 

other matters

1. The independent children’s lawyer and the applicants differed on several paragraphs in their respective proposed orders. I turn to consider those differences and explain why I have adopted one or the other or neither.

2. The independent children’s lawyer sought the addition of the following paragraph in the minute of order sought by the grandparents:

   (2)(f) The parties must follow all requests and recommendations of [Mr AA] or “the therapist” in respect to family therapy and in accordance with the provisions of s 68B of the Family Law Act 1975 (Cth) are prohibited from causing the children to attend upon any other practitioner or therapist other than as recommended by the therapist.

3. The applicants submit that as an earlier paragraph in the proposed minute of order makes it clear that the mother’s involvement in family therapy is to be voluntary this paragraph appears to be contrary to that intention. No submissions were made by the independent children’s lawyer on this point, but it seems to be intended to address two matters. Firstly, if the mother involves herself in the therapy she should be required to abide by requests and recommendations of the therapist and secondly, the mother stated a wish for the children to see the same therapist that she proposed returning to. I do not intend to make an order requiring the parties (which would include the father) to follow all requests and recommendations but I do propose to make an order that binds the mother (if she involves herself in the family therapy) and the paternal grandparents. It should be noted however, that the order I propose to make requires the commencement of the children’s time with the grandparents away from therapy in no less than three months. Any recommendation by the therapist to the contrary would conflict with the order and the order is to prevail unless agreed otherwise. I consider there is some benefit in restraining the mother from taking the children to some other therapist unless recommended by the family therapist. The mother indicated during her submissions that the children had seen the same counsellor that she had seen, Ms DD. I do not consider that to be ideal for the children. If the family therapist considers they should see a counsellor he or she may recommend an appropriately qualified person. I do not see a need to make an order preventing the grandparents from taking the children to another therapist because they do not have any authority to retain a therapist for the children other than as provided in the order I propose to make.

4. The applicants propose that the supervised time (other than with the therapist) occur for three months from the conclusion of school until 7pm on each alternate Friday and then they propose time moving to unsupervised daytime on every second Saturday of the month for a period of nine months followed by one weekend per month from Friday to Monday. The independent children’s lawyer proposes that the supervised alternate Fridays occur for six months.

5. Dr EE recommended that initially the children spend time only with the family therapist (and this is not in contention) but within three months commence overnight time with the grandparents. The applicants do not press for such a quick progression which is sensible given the considerable time that has now passed since Dr EE’s assessment and her comments about how the children may react.

1. It is my intention to give the children the best possible chance of being able to be re-united with their grandparents and there is a greater prospect of success if the mother is comfortable about the children’s safety. Accordingly, I consider it prudent to adopt a more cautious approach and require the supervised alternate Fridays to occur for six months.

2. The applicants propose that from January 2020 the children spend two occasions of one week’s holiday with them in each calendar year. The independent children’s lawyer opposes such an order.

3. The order I propose to make will extend the proposed commencement date for holiday time by one year. I consider it reasonable for the children to have the opportunity to spend some holiday time with their grandparents and extended family but I will commence the time from the beginning of the following calendar year, namely from 1 January 2021 to give the children and the mother sufficient time to adjust to the paternal grandparents spending regular time with the children.

4. Paragraph 11 of the order made on 17 April 2013 requires the mother to provide copies of the children’s school reports to the father. It is common ground that the mother has not done so. The paternal grandparents seek the discharge of that paragraph and propose that the mother be required to provide them with the children’s school reports which they will then provide to the father thus relieving the mother of the requirement to do so. Although their application to discharge that paragraph was only added to the order sought by them during the trial, and thus not on notice to the father, I am satisfied that he would not be prejudiced by what is sought by his parents. I say this because he is in regular contact with them and he has a greater chance of receiving the school reports if the responsibility for providing same rests with his parents. In my view the more efficient way to achieve the outcome sought by the applicants is to authorise the children’s school to provide the grandparents with copies of the children’s school reports at their cost and for them to provide redacted copies to the father.

5. Both the applicant and the independent children’s lawyer propose that the order include a requirement for the mother to engage in ongoing therapy. It seems likely that this order is proposed in response to the mother’s stated intention to do just that i.e. re-engage in counselling with Ms DD. The independent children’s lawyer has added a requirement for the mother to obtain a mental health plan to aid in the provision of that assistance. Again, the mother indicated her intention to do so. In my view there is little point in making an order that a person engage in therapy. If it is to be successful, therapy needs to be voluntary. In any event the mother has stated that she intends to do that which is sought of her. I strongly encourage her to do so. It will no doubt be of assistance to her children, as well as herself, if she does undertake ongoing therapy as recommended by Dr EE.

6. The applicants propose an order requiring the mother to inform them of the name of her therapist and enable them to confirm the mother’s attendance at her appointments. The mother historically has felt overborne by the grandparents and Dr EE refers to their manner as being assertive which may have unwittingly caused the mother to feel overruled. In those circumstances I do not propose to require the mother to provide the applicants with the information sought by them.  

7. Finally the paternal grandparents have sought an order enabling them to telephone the children at all reasonable times. No evidence is before me about this issue. No submissions were made about it and the expert did not include it in her recommendations. I do not propose to make the order sought because it may be regarded by the mother as an unwarranted incursion into her home. It is also likely to place the children in an invidious position, knowing as they do, their mother’s opposition to them communicating with their grandparents. 

conclusion

1. I propose to make an order for the children to spend time with the paternal grandparents. While they have not spent time with them for about six years they historically had a very close and loving relationship with them. The mother’s allegations that the children are at risk of harm from the grandparents were the subject of judicial findings after a five day trial ending in 2013. On the evidence before the Court (which was more extensive than the evidence relied upon by the mother in the current proceedings) a finding of unacceptable risk was not open. I have adopted that finding in these proceedings (as permitted by s 69ZX(3)(b) of the Act).

2. The mother suffers from high anxiety and at times struggles to cope. The children have an enmeshed relationship with her according to Dr EE, whose opinion I accept, and they carry the burden of being overly concerned for her mental health. Whether or not an order as sought by the paternal grandparents is made, that burden is likely to be present.

3. In the hope of giving the children’s chance at being reunited with their grandparents the best prospect of success, Dr EE recommended it occur in a structured way via a clinical intervention with a family therapist. Concurrently it is hoped that the mother will avail herself of support from a mental health physician, preferably following a psychiatric assessment. The idea of the family therapy is to facilitate a graded exposure to the reality of the children spending time with the paternal grandparents and no harm coming to them.

4. In an attempt to overcome Dr EE’s prediction that the children may refuse to attend family therapy, the order proposed by the independent children’s lawyer and the applicants to introduce an independent person to be involved in the collection and delivery of the children to and from family therapy will be adopted. This will remove the mother from the scenario at least in the context of relying upon her to deliver the children to family therapy or being present at the time of collection. If the mother is absent at those times it may make it easier for the children to involve themselves in the process.  

5. The mother is encouraged to avail herself of specialist mental health assistance preferably from her previous therapist in whom she expressed some confidence and willingness to re-engage.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 7 December 2018.

Associate: 

Date:  7 December 2018