FARRAND & MAHDI

[2020] FamCA 875

FAMILY COURT OF AUSTRALIA

FARRAND & MAHDI [2020] FamCA 875

FAMILY LAW – CHILDREN – With whom a child spends time – Where the maternal grandmother has made an application for monthly time with the children – Where the children have been living with their father and have spent no time with the maternal grandmother for two years – Where the children’s mother is deceased – Where, following the mother’s death, the maternal grandmother made numerous allegations to the coroner and the police that the father was involved in the mother’s death – Where the maternal grandmother’s negative views of the father pre-dates the mother’s death – Where the maternal grandmother does not have the emotional capacity to protect the children from her negative views of the father – Where the father has not alienated the children against the maternal grandmother – Where it is likely that the father’s major depressive illness would recur if the children were to resume contact with the maternal grandmother – Where there is a complete lack of trust between the parties – Where the risk posed by the maternal grandmother cannot be ameliorated by supervision – Where the maternal grandmother will be restrained from contacting the children but will be permitted to send gifts and cards to the children on special occasions, with the father to be at liberty to vet them – Where the maternal grandmother’s application is dismissed.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
M & M (1988) 166 CLR 69

APPLICANT: Ms Farrand

RESPONDENT: Mr Mahdi

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 11658 of 2018

DATE DELIVERED: 16 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 10, 11 & 14 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Zufic

SOLICITOR FOR THE APPLICANT: L & S Lawyers

COUNSEL FOR THE RESPONDENT: Dr Brasch QC

SOLICITOR FOR THE RESPONDENT: Murdoch Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Order

1. All previous parenting Orders be discharged.

2. The Amended Application (as further amended with leave) filed by the applicant maternal grandmother, Ms Farrand, on 13 August 2020 be dismissed.

3. The maternal grandmother be restrained and an injunction hereby issues restraining the maternal grandmother from contacting or attempting to contact or to communicate with X born … 2011 and Y born … 2012 (“the children”) other than as provided by this Order.

4. The maternal grandmother be restrained and an injunction hereby issues restraining the maternal grandmother from contacting or attending any school at which the children attend, any outside of school hours care provider, and any medical and allied health practitioner on whom the children attend for treatment, about the children.

5. The maternal grandmother be restrained and an injunction hereby issues restraining the maternal grandmother from contacting or attempting to contact or to communicate with the respondent father, Mr Mahdi other than as provided by this Order.

6. The maternal grandmother be at liberty to post to each of the children a gift and a card on each of their birthdays, and at Christmas and Easter each year by posting same to the father’s address with the father to be at liberty to vet any gift or card received.  

7. The father shall provide to the maternal grandmother a written update about the children’s welfare including a recent photograph of each child on one occasion each year commencing in 2021.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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 Farrand & Mahdi 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 BRISBANE

FILE NUMBER: BRC 11658 of 2018

Ms Farrand

Applicant

And

Mr Mahdi

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Ms Farrand is the maternal grandmother of two children, X aged nine and Y aged seven. Mr Mahdi is the children’s father. Sadly, the children’s mother died in mid-2018 in circumstances described by the Coroner in early 2019 as follows:

   … I find there were no suspicious circumstances in relation to [the mother’s] death, including any involvement by a third party.

   … [The mother suffered] heightened psychological distress … as a consequence of the stroke [on … 2015].

   … her relationship with [the father] and the health of both her children [were] … significant stressors in [the mother’s] life.

   I find that [the mother] died from multiple organ failure due to mixed drug toxicity.

   Accordingly, I find it a reasonable conclusion that the mixture of alcohol and numerous pharmaceutical drugs consumed by [the mother] prior to her death, contributed to poor decision making, with a tragic loss of life outcome.

2. Unfortunately, but perhaps understandably, the maternal grandmother could not accept that her daughter had died in such circumstances and prior to the Coroner’s decision, she set about providing extensive material to the Coroner accusing the father of involvement in the mother’s death.

3. The Coroner took into account all of the material provided by the maternal grandmother, including articles highlighting evidence that is commonly missed in ‘suicide’ cases. There was an extensive investigation involving multiple agencies including the Domestic & Family Violence Death Review Unit. The latter reported to the Coroner that:

   … the Unit did not identify any recognisable characteristics of domestic violence and family violence between [the father] and [the mother]. Additionally, there were no formal reports of domestic and family violence, threats of suicide, close to or prior to [the mother’s] death.

   The recommendation was that no further investigations be undertaken.

4. After their mother’s death, the children continued to see the maternal grandmother until 9 September 2018, but have not seen her since then.

5. The maternal grandmother remains very critical of the father and continues to invite suspicion about the father generally.

6. While I have no doubt that the children historically enjoyed a relationship with their maternal grandmother, I regret that I am unable to be satisfied that recommencing a relationship with their maternal grandmother at this time is in their best interests. It is nevertheless important that they know that they do have a maternal grandmother who loves them and for that reason I propose to permit her to send a card and a gift to the children on special occasions, namely, each of the children’s birthdays, Christmas, and Easter. The father will nevertheless retain discretion about whether the cards and gifts are appropriate to pass on to the children. My reasons are explained below.

Proposals

1. At the conclusion of the trial, the maternal grandmother was granted leave, without opposition, to amend the order sought by her. In short, she proposes that she initially communicate with the children by telephone once each week for three months, then spend supervised time with the children for two hours each fortnight for three months, and then commence to spend unsupervised time initially for a day only and then after three months for the last weekend of each month.[1] The maternal grandmother abandoned her application for equal shared parental responsibility and for weekly overnight time and extensive holiday time.

   [1] The precise terms of the order sought by the maternal grandmother is set out in exhibit 8.

2. The father opposes the maternal grandmother spending time or communicating with the children. His application to restrain the maternal grandmother removing the children from the jurisdiction is not pressed if the injunctions sought by the independent children’s lawyer (“ICL”), and adopted by him, are made.[2]

   [2] The precise terms of the order sought by the father is set out in his amended Response filed 28 February 2019 save that paragraph 3 thereof is not pressed.

3. The ICL recommends that the children spend supervised time with the maternal grandmother on four occasions each year but otherwise be restrained from contacting the children or the father.[3] The caveat to this recommendation is that if the maternal grandmother is found not able to be trusted to refrain from exposing the children to her negative views about the father, even in a supervised setting, then an order for no time should be made.

   [3] The precise terms of the order recommended by the ICL is set out in exhibit 6.

Issues

1. The parties settled a list of specific issues relevant to the determination of what, if any, time the children should spend with their maternal grandmother. Those issues are as follows:

   (1)Does the maternal grandmother have the capacity to contain her emotions and negative views of the father so as not to cause harm to the children?

   (2)Has the father alienated the children from the maternal grandmother and, if so, what is the impact of that on the children?

   (3)What is the likely impact on the father’s parenting capacity if the children spend time with the maternal grandmother against his wishes, and are the father’s views about the maternal grandmother reasonably and genuinely held?

   (4)What is the impact of the parties’ complete lack of trust on their ability to communicate effectively, or at all, and to support a relationship between the children and the other party?

background

1. Before considering the identified issues, it is helpful to set out some background and also the legal principles that apply in all cases involving a parenting order.

2. Ms B Mahdi was the children’s mother. She and the father were in a relationship from 2007 until her untimely death in 2018. They married on … 2010. There are two children of their union, X born … 2011 and Y born … 2012 (“the children”). X is legally blind in his right eye and Y undergoes regular checks for a condition that may impact her vision and hearing in the future. Y suffered burns to her arms when she was two years of age. The children are otherwise in good health.

3. The maternal grandmother and the mother migrated to Australia from Country C in 1989. The maternal grandmother is 61 years of age and has been a public servant for about 25 years.

4. The father is 49 years of age and employed as a professional. He is of Country D descent. He is in a relationship with Ms E but they do not live together. Ms E has two children of her own who spend alternate weeks with her. The children appear to have a positive relationship with Ms E.  

5. Prior to the mother’s death, the maternal grandmother had a meaningful relationship with the children and it is likely that the relationship would have continued but for the maternal grandmother’s allegations suggesting that the father was responsible for the mother’s death, and what the father interpreted as interference and undermining of his parenting.

6. The maternal grandmother and the mother’s father are divorced. The father and the children nevertheless maintain a relationship with the mother’s father in Country C and other members of the Country C community here in Australia.

Applicable legal principles

1. Every proposed parenting decision requires application of the relevant parts of Pt VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[4]

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

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The time a child is to spend with another person or other persons; and

   b)The communication a child is to have with another person or persons.

3. The Court is not required to make findings of fact on every factual dispute raised by the parties.[5] The paramount issue for the Court is to determine what is in the best interests of the subject child 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.[6]

   [5]Baghti & Baghti [2015] FamCAFC 71 at [63].

   [6]M & M (1988) 166 CLR 69 at 76.

4. The objects and principles of Part VII of the Act are set out in ss 60B(1) and (2) and relevantly s 60B(2)(b) and (e) refer to the children’s right to spend time on a regular basis with, and communicate on a regular basis with, people significant to their care welfare and development such as grandparents and the right to enjoy their culture including the right to enjoy that culture with other people who share that culture.

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

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

7. The best interests of the children are determined by reference to primary considerations, which in this case requires me to consider in particular the need to protect the children from physical or psychological harm, and additional considerations including any views expressed by the children, the nature of the relationship between the children and the father and the maternal grandmother, the likely effect of any changes including the likely effect on the children of any separation from the maternal grandmother, the capacity of the father and the maternal grandmother to provide for the intellectual and emotional needs of the children, the maturity, sex, lifestyle and background of the children and the father, any family violence, whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings and any other relevant matter. (s 60CC). In considering the primary consideration the Court must give greater weight to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

8. 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.

9. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

10. 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.[7]

Does the maternal grandmother have the capacity to contain her emotions and negative views of the father so as not to cause harm to the children?

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

1. The maternal grandmother’s negative view of the father pre-dates the death of the mother. She did not approve of the marriage and “begged [the mother] not to marry [the father] using all possible arguments”. She did not approve of his Country D background. She interfered in the relationship between the father and the mother and ignored their pleas for her to respect their parenting decisions.

2. It is perhaps understandable, given that background, that the maternal grandmother would reject the non-suspicious circumstances of her daughter’s death, particularly when the maternal grandmother said that when she last spoke to the mother, she was happy and talked about future plans. One can readily understand the terrible grief the maternal grandmother experienced, and no doubt continues to experience, and a wish to find answers to explain the inexplicable. One might even understand the maternal grandmother harbouring suspicions about the father having regard to her poor opinion of him. However, the maternal grandmother’s behaviour, including making extraordinary allegations against the father without any reasonable foundation, and her intrusion and undermining of the father’s relationship with the children, combined with her extraordinary lack of insight, cannot be neutralised by a simple acknowledgement that she is a grieving mother.  

3. The relevant chronology commences on … 2018, the day the mother’s life support was switched off. The maternal grandmother was at the hospital with the father and, in the father’s presence, sought to persuade the social worker in attendance that the children should stay with her. The social worker was unconvinced.

4. On the next day, or shortly thereafter, the maternal grandmother received a document from police relating to the mother’s death. The document indicated that the death was a ‘suspected suicide’. Elsewhere in the document it indicated that the death was ‘suspicious’ but also that the death was ‘not violent or unnatural’.

5. The maternal grandmother spent time with the children on the weekend of … and … 2018. As the father’s sister and other family members were coming to his home on the morning of … 2018, the father asked the maternal grandmother to return the children at 8.30am. When the children had not returned by 10.30am, the father telephoned the maternal grandmother and asked her to return the children immediately. The maternal grandmother did not return the children until 12 noon, telling the father when he asked why she had not returned them as requested - “We are not soldiers.”

6. On the next day, … 2018, the maternal grandmother attended the father’s home unannounced. The father had a beer in his hand and the maternal grandmother said:

   Busted … is this how you care for my grandchildren? Is this how you mourn my daughter’s death, I am going to report you to the police.

7. The father assured the maternal grandmother that he had only had half a beer with a male friend who was also present. The maternal grandmother then proceeded to tell the father she had been told things about him by police but refused to elaborate. As the children were in the house, the father suggested they go outside to talk but the maternal grandmother refused and said to the father:

   You are a controlling little man, you controlled my daughter, but you will not control me.

8. X asked the maternal grandmother if she was angry and why she was shouting.

9. Uninvited, the maternal grandmother had brought dinner for the children. The father already had dinner planned. The father asked the maternal grandmother to leave but she responded:

   The house is half my daughters, I have every right to be here.

10. The father had to repeat to the maternal grandmother that the children did not eat meals in front of the television. She insinuated that the father did not care if the children were cold. The maternal grandmother issued directions to the children, seemingly ignoring the presence of the father. She also ignored the father’s requests to leave.

11. The maternal grandmother was domineering and accusatory of the father, and sought to undermine him in front of the children. The father nevertheless invited her to join them for dinner. In response to the father’s enquiry if she was alright or wanted to talk, the maternal grandmother responded:

    The only thing we need to talk about is access to my grandchildren, we need to make some arrangements.

1. The father suggested that the children spend one sleepover a week with the maternal grandmother. The maternal grandmother scoffed at the offer. (How different things may have been if the maternal grandmother had accepted what was, on any view, a very reasonable offer).

2. The maternal grandmother later accused the father of “violently attacking” her on … 2018. He had not done so.  

3. On the next day, … 2018, the father contacted the maternal grandmother to see if she wished to attend the crematorium after the funeral which was planned for … 2018. In response, the maternal grandmother sent a text message saying:

   My sister called from Country C and said there is a picture of Ms B Mahdi on facebook with the text she is the victim of Islam. Can you check and let me know please?

4. Although never really explained, the maternal grandmother seemed to suggest that there was some suspicion that because the father’s family were from Country D, the mother may have been a victim of Islam, although the father is not Muslim. Nevertheless, the father politely responded that although he was not on Facebook, he would check and let her know. The maternal grandmother attended the funeral and spent time with the children.

5. On … 2018, the following text messages were exchanged between the father and maternal grandmother:

   [The maternal grandmother]: Hi Mr Mahdi, My family in Country C is very suspicious about Ms B Mahdi’s death. They want to know about the details about the autopsy report. What would you like me to say?

   [The father]: Ms Farrand, you can tell your family whatever it is you think is right. I have only told her father that she had a heart attack/cardiac arrest.

6. Later that day the following further text messages were exchanged:

   [The maternal grandmother]: I’ve just read the coroner’s report (Form 1). Instead of helping Ms B Mahdi who suffered from depression, you bestially attacked her. How can you live with it? How can you face her children and her mother? I pray that justice will be served and you will rot in jail. I am under police protection now.

   [The father]:  Ms Farrand, in light of your last text I am withdrawing the offer for you to come over to dinner tonight. To be absolutely clear you are not welcome here tonight. Further visits will need to be discussed at a later date. Please do not contact me again today.

   [The maternal grandmother]:  Do not fear Mr Mahdi, what’s on Form 1 is for yours and my eyes only. I don’t intend to share it with anyone. I had to tell you how I felt after reading the report. I would like to keep a cordial relationship with you for the sake of many people and tragic circumstances. Perhaps we will discuss things later, when the time is right.

7. Nothing in the Form 1 (which it seemed to be conceded was the document received on … 2018) justified the maternal grandmother’s accusations nor was the maternal grandmother ever under police protection.

8. The maternal grandmother’s lack of empathy as to the impact on the father of sending such a message is truly astounding.

9. On 27 June 2018, the maternal grandmother asked to spend time with the children but the father declined because he had made arrangements to take the children to the beach for the school holidays and suggested that they spend time with her when they return. That same evening, the father received a distressed call from one of his sisters who told him that the maternal grandmother had called her and made accusations that the father was violent and questioned the upbringing of the children, suggesting there were too many men in the father’s house.

10. Upon his return from the beach, the maternal grandmother spent time with the children for the whole day on 13 July 2018. While the children were with the maternal grandmother, the father received a visit from police who informed him that they had been contacted several times by the maternal grandmother with allegations of the father being drunk, of killing the mother, and depriving the maternal grandmother of access to the children.

11. That same evening, after the children returned to the father, X was being particularly defiant and when the father told him he had had enough the child became upset and said “[Ms Farrand] (the maternal grandmother) said that I should stand up to you”.

12. Also on 13 July 2018, the maternal grandmother recorded a conversation with the children wherein she asked leading questions of X, suggesting that the father had smacked him and asking him if it hurt. She also asked if the father smacked Y and whether X was scared of the father.

13. On 15 July 2018, the maternal grandmother left a message for the children on the father’s answering machine.

14. In a written statement provided to police on 16 July 2018, the maternal grandmother invited suspicion that the father might be sexually molesting Y.

15. On 22 July 2018, the maternal grandmother left messages on the father’s answering machine requesting updates about the children and also sent a text to the father asking when she could next see the children and expressing a hope that the father would reply to her text message “this time”.

16. On 23 July 2018, the father responded very politely, even apologising for not responding to her last text message, but pointing out he had been a little busy. He provided information about the children’s activities and counselling. The father referred to X telling him that the maternal grandmother had told him he should “stand up to” the father. He pointed out that such comments were not helpful and caused unnecessary angst in his home. In response, the maternal grandmother accused the father of doing everything he could to keep the children away from her and that she had told the children to keep asking to see her. She said she had recordings to prove it.

17. On 27 July 2018, the father acknowledged that the children’s relationship with all their grandparents was important and suggested that the children spend one day each month with the maternal grandmother. (One might have thought the offer was generous, particularly in the circumstances of the maternal grandmother’s accusations and conduct.)

18. On 28 July 2018, the maternal grandmother responded in the following terms:

    Dear Mr Mahdi, in your last message you omitted words such as grief, love & maternal family. Things at all levels have changed & I have evidence for it. What you are doing is wrong. Come to your senses, it is not too late. Your actions are hurting people closest to [the mother’s] heart. Show human feelings

19. On 29 July 2018, the father was informed by the children’s godfather, who had been a mutual friend of the father and mother before her death, that he had been contacted by the maternal grandmother who asked him to provide details of telephone conversations between himself and the father on the night of the mother’s death. The maternal grandmother told him it was important to the ‘investigation’.

20. On 30 July 2018, the father received a letter from the maternal grandmother’s lawyers. The content of that letter demonstrates, in my view, the completely unreasonable attitude taken by the maternal grandmother at a time when the children had only just lost their mother and the father, his wife. For example, it complains about the children not being made available to see the maternal grandmother including when the father took the children on a trip for the school holidays. When she did not hear from the father in the time frame she expected she contacted police. The letter also contains the maternal grandmother’s complaints that the children had a playdate with another family and went out on a boat. The maternal grandmother invites co-operation from the father in the same breath as informing him of her “concerns about the children possibly seeing and hearing events within their home and immediately prior to [the mother’s] death, those concerns have been communicated to the Police; and in turn [the maternal grandmother] has been advised to contact Child Safety; which she has done”. This sentence is immediately followed by a disingenuous expression of regret about things she said to the father immediately after the mother’s death. The letter concludes by informing the father that court proceedings will be commenced if he does not respond. The timing and content of the letter is breathtaking and again demonstrates the maternal grandmother’s complete lack of empathy for the father and the children.

21. The maternal grandmother spent time with the children on 12 August 2018, again for the whole day.

22. In a text message from the maternal grandmother to the father on 13 August 2018, she urged him to order some healthy food for the children from the tuck shop which she would reimburse him for. Unsurprisingly, the father interpreted this message as suggesting he was not providing the children with healthy food.

23. The maternal grandmother pressed the father for more time with the children and the father responded on 15 August 2018 as follows:

    [Ms Farrand], I have now received three messages from you in the three days since you saw the children on 12 August. You have elected to put this matter in the hands of lawyers, and we will be attending mediation on 24 August. As you are aware I have offered you contact on the basis of one day per month.

24. Despite a mediation being scheduled to take place on 24 August 2018, the father received an email from the maternal grandmother on 20 August 2018 in the following terms:

    Hello [Mr Mahdi],

    I hope you are well.

    My family in [Country C] and I would like to receive some of [the mother’s] personal belongings including the gifts she brought from my sister [Ms G] during her recent trip to [Country C]. All clothing and jewellery pieces that [the mother] owned are of a sentimental value to us and we would very much like to keep them.

    Please do not throw anything away, just pack the items for us and I will collect them when picking up [the children] next time.

    Thank you in advance

25. On 22 August 2018, the maternal grandmother made a complaint to the Department of Child Safety, Youth and Women (“the Department”) alleging, among other things, that the father was a murderer, controlling, and treats the children badly such that they cannot express themselves and are isolated. The Department’s assessment of the concerns includes the following:

    … During notification checks with QPS, the department was advised that there is in fact an investigation therefore details can't be disclosed however QPS are not concerned for the children in the care of the father which suggests that the father may not in fact be a suspect. The notifiers (sic) information suggests that the mother had not disclosed being a victim of domestic violence prior to her death. There are concerns that the father may have at times used some rough handling with the children or that he is controlling and limiting their contact with others however this family are experiencing significant grief and loss and the father may at times be struggling with his role as a single parent. There is no information to suggest that the children have experienced significant harm due to the actions or inactions of their father and pre-notification checks with the school have identified no concerns for the care of the children before or after the loss of their mother. The children are seeing a psychologist and are well supported in their school community. …

26. The parties attended mediation on 24 August 2018 but no agreement was reached.

27. Despite there being no agreement, the maternal grandmother attended the father’s home to collect the children on 26 August 2018. The father informed her that there had been no agreement for her to have the children and that, in any event, the children were both unwell with temperatures. The father nevertheless invited the maternal grandmother to spend some time with the children, but as soon as the maternal grandmother saw X she said she was going to take him to the cinema and told him she had lots of food for him at her place. The father reiterated that the children were not leaving the house and pointed out that the maternal grandmother should not undermine him. The maternal grandmother left but returned later with food for the children. The father permitted her to spend about an hour with the children. Later than evening, the maternal grandmother sent the father a text message asking for ‘makeup time’.

28. On 30 August 2018, the maternal grandmother requested to spend time with the children on 2 September 2018 (Fathers’ Day) from 9.00am until 6.00pm and asked if the children could call her that night. The father responded by informing the maternal grandmother that the children would be spending Fathers’ Day with him but that he would get them to call her that night and they would see her on 9 September 2018. The father facilitated a telephone call between the children and the maternal grandmother on 30 August 2018.

29. On 6 September 2018, the father emailed the maternal grandmother requesting her to desist saying to the children during phone calls that if the father was “nice” he would let them see her. He described such comments as unacceptable as he felt her reference to him needing to be “nice” was denigrating him. The father also informed the maternal grandmother that contact with her caused him great anxiety, “particularly given your vitriol and upsetting comments and actions since [the mother’s] death” and requested that she refrain from contacting him. He nevertheless said he would expect her to collect the children from him on 9 September 2018 as arranged.

30. The maternal grandmother spent time with the children for the whole day on 9 September 2018. When the father was tucking the children into bed that night, Y started to cry and said she was dumb and that the maternal grandmother only talked to X because he is smart. She also said that she had been locked in a room by herself and X agreed Y had been, but said it was because she was probably naughty. The issue about the maternal grandmother favouring X over Y had been a long time concern for the father and mother.

31. The father says he became increasingly concerned about the maternal grandmother’s interventions and accusations, which in turn increased his stress and anxiety. The father describes experiencing chest pains and increased heart rate that he had not experienced before. As a result, and in order to protect the children from any emotional and psychological harm, the father says he made the difficult decision to stop all contact with the maternal grandmother. He also applied for a protection order against the maternal grandmother relating to her persistent contact and a temporary protection order was granted on 4 October 2018.

32. On 11 October 2018, the maternal grandmother commenced parenting proceedings in the Federal Circuit Court of Australia and on 2 November 2018, the maternal grandmother gave an undertaking to the court not to contact the father. On the basis of the undertaking, the father discontinued his application for a protection order.   

33. Despite the undertaking not to contact the father, the maternal grandmother sent numerous gifts and cards to the children even after the father asked her to desist. While the content of the cards might be interpreted as mere expressions of love; given the background, it is also open to interpret them as the father has, i.e. as seeking to undermine, in the children’s eyes, his decision to stop contact. The cards and gifts also invite the interpretation that X continues to be the favoured one. Additionally, one of the gifts, a cake (for the maternal grandmother’s birthday), required the father to be at home at a particular time to receive delivery, an indication that the father had to do as the maternal grandmother directed.   

34. In or about November 2018, the maternal grandmother engaged the services of a private investigator who contacted various friends and acquaintances of the father who reported back to the father. Both the friends and the father were distressed by this intrusion. 

35. Over many months prior to the release of the Coroner’s findings in February 2019, the maternal grandmother embarked upon a mission to establish the guilt of the father and she sent copious material to the Coroner, including recordings of the maternal grandmother’s ‘readings’ with a clairvoyant and a psychic who purported to confirm that the father had murdered the mother. The maternal grandmother’s allegations and/or insinuations about the father and some of his friends were wide ranging, including the following:

    a)The father has “males” in the house and “drinking [is] going on”;

    b)The child, Y, “often hides in bedrooms and masturbates”;

    c)The father “threw” the mother out of the house on the night she died, knowing that she suffered from depression and was suicidal;

    d)At the time of her death, the mother had bruising on her that “looked similar to the ones I saw on her arm a few years ago when [the father] hit her during an argument”;

    e)The area where the mother was found “is the area where [the father] used to take his dog for long walks”;

    f)On … 2018, when the maternal grandmother visited the father and children the father “was drunk with his male friend”. The father “started moving towards me but his friend held him”;

    g)“I fear for my life, if something ever happens to me, it will be from [the father’s] hands”;

    h)A mutual friend of the father and mother (Mr H) has a girlfriend of Asian origin. “I am concerned about the unhealthy relationship between Mr H and my granddaughter Y”;

    i)Another mutual friend of the father and mother, (Mr J) “is gay but loves children”;

    j)The father “never loved my daughter”;

    k)The father “didn’t even know how old his wife was because he never cared”;

    l)“The position in which [the mother’s] body was found indicates that she was thrown or placed on the ground”;

    m)“Perhaps [the children] saw what happened and that is why [the father] keeps them away from me”;

    n)“My gut feeling … tells me that my daughter died in the house and her body was taken to the river”;

    o)“I fear for the safety of my grandchildren”; and

    p)“I request that… [the father] is put through an independent aka Polygraph examination to detect his lies”.

36. The allegations made by the maternal grandmother against the father and his friends were vicious and without foundation. They were rejected by police and the Coroner. Nowhere in the maternal grandmother’s evidence in chief is there any apology expressed to the father.

37. While the maternal grandmother expresses a wish to put the past behind her, her evidence in chief contains absolutely nothing positive about the father or his parenting capacity. To the contrary, the maternal grandmother describes the father as having an “authoritarian parenting style” and says he rarely showed affection to the children or played with the children and accuses the father of causing bruising to the mother many years ago. She refers to a conversation she allegedly had with the father in 2015 where she accused him of physically hurting the mother and his alleged response acknowledging that he had hit the mother because she was drunk and in bed with another man. The maternal grandmother even expresses her displeasure at not having been asked to give her consent to the discontinuance of the mother’s life support interventions. 

38. It is difficult to comprehend why the content of the maternal grandmother’s evidence in chief is so incredibly negative when she is not seeking to challenge the father as the primary carer for the children, and ostensibly hoping to salvage her relationship with the children.

39. It is submitted on behalf of the maternal grandmother that there is no evidence that the maternal grandmother shared her opinions about the father’s alleged involvement in the mother’s death or the parent’s relationship with the children in the three months after the mother’s death and that, in those circumstances, it cannot be found that the maternal grandmother would share her negative views of the father with the children.

1. However, the maternal grandmother’s opinions about the father are not limited to those two matters about which the above submission is made. The maternal grandmother’s negative views about the father are wide ranging, as demonstrated by the copious complaints made to third parties and her evidence at trial. The maternal grandmother even sought to raise doubt about the authenticity of a draft letter from the mother to the maternal grandmother and the mother’s diary notes which the father said he had found on the family computer. The maternal grandmother volunteered during her cross-examination that she had retained an expert to prove these documents were fabrications.

2. Contrary to her protestations, it seems that the maternal grandmother has not moved on. Her attempts to undermine the father as a parent are long standing and she has exposed the children to those views on occasion, as discussed above. The maternal grandmother even recorded her telephone conversations with the children for evidence gathering purposes.

3. A long time has passed since the maternal grandmother spent time with the children and one might have hoped that her presentation during the trial would provide some level of comfort that her vitriol towards the father had dissipated. Sadly, nothing about the maternal grandmother’s evidence at trial and the manner in which she gave her evidence gave me any reason to think that the children would not be exposed to her negative views if given the chance. The maternal grandmother was dismissive of the father’s response to her past behaviour, suggesting basically that he should get over it. What was particularly striking about the maternal grandmother’s demeanour and responses during cross-examination was the complete and utter lack of empathy or insight. Such a lack of empathy and insight increases the risk of harm to the children were they to spend time with the maternal grandmother because she does not have the sensitivity to see the potential for harm. While I can accept that the maternal grandmother would not intentionally expose the children to her negative views of the father, and may have the intellectual capacity to recognise the potential for harm, in my view, she does not have the emotional capacity.

4. My conclusion is also informed by the opinions expressed by the family report writer, Ms K, who interviewed the maternal grandmother most recently on 14 August 2020. In her report she said, among other things:

   71. … it was apparent that the grandmother continues to hold strong to her negative views that the father is not [to] be trusted and she questions his capacity to parent his children. Hence the report writer is concerned that the grandmother's on going negative thoughts towards the father, will inform her feelings and her actions, and thus [the maternal grandmother] will be at risk of subconscious bias and this will inadvertently impact on her behaviour and comments to the children, that could negatively impact and undermine their relationship with their father.

   72. It is anticipated that should the children become aware of the animosity between their father and their grandmother, this will cause them great consternation and may compel them to experience a division of loyalties. It is anticipated that at some point the children will question the origins of the father's and grandmother's dispute and this may lead them to question the incident of their mother's death These complex adult issues, (if exposed to them), may place the children at risk of experiencing complex grief with respect to the loss of their mother, and a loss of trust and a sense of family harmony amongst the significant adults in their lives.

5. The final comment I would make about this issue is to confirm that in forming my views about the maternal grandmother’s capacity to protect the children from her negative views, I have had regard to the fact that the maternal grandmother has attended 21 sessions with a psychologist, Ms L, to assist her with her ongoing grief and to gain strategies to assist her to move forward. Unfortunately for the maternal grandmother, Ms L’s report confirms my conclusion that the maternal grandmother lacks insight because she reports the maternal grandmother saying that she has never previously exposed the children to her negative views whereas I have found the opposite. 

Has the father alienated the children from the maternal grandmother and, if so, what is the impact of that on the children?

1. Inexplicably, the maternal grandmother maintains her allegation that the father has alienated the children from her. Her counsel frankly concedes that the only evidence to support this allegation is the fact that the children have not seen the maternal grandmother for two years.

2. The uncontroverted evidence is that, despite the maternal grandmother accusing the father on … 2018 of “bestially attacking” the mother and stating that she hoped he would “rot in jail”, the father facilitated the children spending time with the maternal grandmother until 9 September 2018. Further, during the family report interviews on 14 June 2019 the children spoke fondly of the maternal grandmother despite it being some nine months since they had last seen her.

3. The evidence does not support the maternal grandmother’s allegation that the father has alienated the children from her. The fact that the maternal grandmother pressed this allegation despite there being no evidence to support it is reflective of her lack of insight into the impact of her own behaviour and her role in the father’s decision to end the time the children spent with the maternal grandmother.   

What is the likely impact on the father’s parenting capacity if the children spend time with the maternal grandmother against his wishes, and are the father’s views about the maternal grandmother reasonably and genuinely held?

1. The father demonstrated extraordinary patience with the maternal grandmother after the death of the mother. Despite him mourning the tragic loss of his wife and trying to manage the grief of his children, the maternal grandmother embarked upon the most appalling mission to prove the father’s guilt. The absence of evidence did not prevent the maternal grandmother from accusing the father of attacking the mother and expressing a wish that he would rot in gaol.

2. The maternal grandmother appears to be in denial about the significant personal challenges the mother endured prior to her death and the impact this is likely to have had on the father. As the mother’s medical records confirm, she struggled with alcoholism although did her best to remain sober. She was a member of Alcoholics Anonymous. She suffered from depression, which became worse after suffering a stroke in late 2015. A significant stressor for the mother was the discovery of X’s loss of vision in one eye and the possibility of Y having sight and hearing issues because of a rare disorder. The mother also experienced feelings of guilt surrounding the injury to Y’s arms when hot tea spilt on them. After her stroke, the mother reported a deterioration in her mood and her treating doctor was concerned about her chronic mood disturbance and elevated levels of anxiety and stress. It was assessed that her anxiety and depression were taking a significant toll on her personal life.

3. Having regard to the mother’s many challenges, it is completely plausible that the father experienced his own challenges when trying to manage full time work, parenting, and assisting the mother. I have no doubt it was a very difficult period in his life.

4. The likely impact on the father of contact with the maternal grandmother against his wishes must also be considered in the context of the history both he and the mother experienced with the maternal grandmother.

5. The father describes his observations of a very troubled relationship between the mother and the maternal grandmother (corroborated by other witnesses) but in particular, involving the maternal grandmother’s persistent intervention in their parenting of the children. By way of example, in one message sent by the mother to the maternal grandmother on 2 July 2014, the mother asked the maternal grandmother to respect her parenting decisions and to refrain from giving the children whatever they requested. In particular, the message said:

   … It’s not about you and the enjoyment you get from giving them whatever they want and whatever stops them crying. This is destructive and selfish behaviour. … It would also be helpful if you could finally see me as an adult, capable of caring for my own children. There is no need to constantly ask me if I am looking after my children and how. … it’s not good for the children to see you undermine me. If you can’t respect me as their mother it will be very difficult to maintain a healthy relationship with you as their grandmother. The presents and food you left are very lovely but will have to go back. … You have a narcissistic personality disorder. Your mother has a narcissistic personality disorder. I am working hard not to perpetuate this cycle and have a great book … that may or may not help you understand …

6. The maternal grandmother responded on 6 July 2014:

   … You carried things too far this time. What you have written about your grandmother and your own mother is insulting and humiliating-it deserves sueing (sic) for defamation of character. Your hatred and bullying behaviour makes the life of people around you miserable and must stop. I’m going to seek legal advice and file request for [the children’s] visits. High time you pay the consequences for your cruel, shamelesr (sic) spiteful words and actions. …

7. In another text message from the maternal grandmother to the mother, she threatened to disinherit the mother.

8. In a further example, I note the contents of the following text message from the mother to the maternal grandmother in 2015:

   10 April 2015 9:18am

   … We are only asking you to respect us as parents to these children so that we could maintain a good relationship between us.

9. The father informed the maternal grandmother in 2018 that he found her interventions stressful and anxiety provoking. She did not stop. He describes the physical impact of dealing with the maternal grandmother e.g. tightness in his chest and racing heart rate. Understandably, he ultimately felt he had no choice but to cease contact.

10. The father sought psychological assistance and his treating psychologist, Dr M says in her report dated 27 February 2020:

    [The father] presented with significant symptoms of depression and an ongoing grief reaction to his wife's death. [The father] reported symptoms including and enduring low mood, lack of interest in activities, negative cognitive thought processes, hopelessness, sleep difficulties, lack of motivation and irritability. His functioning was significantly impacted by his symptoms. He fulfilled the criteria for a major depressive episode. …

    Factors that are impacting [the father’s] mood state and experienced  anxiety include the transition to being a single father, the grief associated with the death of his wife, the concern and worry regarding the potential involvement of [the maternal grandmother] in his and the children's life and the ongoing pressure (both emotionally and financially) of ongoing court proceedings.

11. Dr M predicted that the father’s “mood state would worsen” if “contact commences between the children and [the maternal grandmother]” and that the father “would continue to experience a protracted grief reaction”.

12. The maternal grandmother’s response to this evidence was to suggest that the father is malingering and that he is in fact resilient. The reliance placed by the maternal grandmother on an innocuous observation by Dr M that the father’s response to a personality test indicated a level of exaggeration is rather telling. Despite Dr M’s explanation during cross-examination that the response related to a validity indicator and was not clinically significant, and despite Dr Varghese’s opinion that clinical assessment is far more important than self-reporting, the maternal grandmother maintained during submissions that the father was exaggerating his symptoms.

13. Since commencing on anti-depressants the father’s mood has improved, but Dr M opined that if there is no sincere change in the maternal grandmother’s views, the father’s condition would likely regress and his major depressive illness would recur, if contact between the maternal grandmother and the children were to resume. Ms K concurs with Dr M’s opinion and I accept their evidence.

14. In considering the impact on the father of a resumption of contact between the children and the maternal grandmother, I must also take into account the fact that the father has not only had to cope with a very unwell wife prior to her death, but then with her tragic death and managing not only his own grief but that of the children’s. By all independent accounts he has done a sterling job with the children who are now presenting as happy and content but of course they have experienced, and no doubt will continue to experience, difficulties from time to time. The father encourages the children to talk about the mother and their feelings and Ms K opines that the father’s response to the children’s grief is entirely appropriate. X certainly has presented with some concerning behaviours but the father sought out and took appropriate advice. The father is supported by family and Ms E. Things seem to be going well for him and the children. The father also had to endure the outrageous allegations made by the maternal grandmother and being involved in these proceedings at not only great personal cost but also great financial cost. The father has discovered so much more about the maternal grandmother’s groundless accusations as a result of these proceedings. It is hardly surprising that he now rejects utterly the prospect of the children being reunited with the maternal grandmother, particularly having regard to her evidence and demeanour at trial.

15. The children need the father to be functioning, attentive, and loving. I am not prepared to put their welfare at risk by reintroducing the maternal grandmother into their lives.    

What is the impact of the parties’ complete lack of trust on their ability to communicate effectively, or at all, and to support a relationship between the children and the other party?

1. The lack of trust between the father and the maternal grandmother continues. They have no capacity to communicate effectively and neither of them can support the other’s relationship with the children.

2. It should be observed though that the father was supportive of the maternal grandmother’s continuing relationship with the children until her behaviour became untenable.

What parenting order is proper?

1. It is ironic that the maternal grandmother is now seeking an order to spend one weekend per month with the children. The father offered the maternal grandmother an ongoing weekly sleepover with the children over two years ago but she scoffed at his offer. Meanwhile, each party has incurred legal fees of almost $250,000.

2. It is tragic for the children that they cannot have the maternal grandmother in their lives. I have no doubt that she loves them and would have a lot to offer them, including teaching them about their Country C heritage. In an ideal world they would most certainly have an ongoing relationship with her, but having found that she does not have the capacity to protect the children from her negative views about the father, and the likely impact on the father of a reintroduction of the maternal grandmother into their lives, regrettably, the children will not be able to have an ongoing relationship with their maternal grandmother.

3. Despite my findings, I have given serious consideration to the ICL’s conditional recommendation that the children spend time with the maternal grandmother on four occasions each year, supervised at a contact centre. Ultimately, I have come to the conclusion that such an order would not be in the children’s best interests. Firstly, I am not persuaded that supervision would ameliorate the risk of harm posed by the maternal grandmother because once something is said it cannot be unsaid i.e. the damage would be done. The risk of harm to the children in such circumstances, and in circumstances of merely becoming aware of the animosity between the father and the maternal grandmother, has been identified by Ms K in her report as set out above. Secondly, the father’s mental health and parenting capacity is directly related to the thought of any ongoing relationship with the maternal grandmother no matter how limited. While direct contact could be avoided with appropriate orders, the father would still have to confront the anxiety and stress of the maternal grandmother potentially saying something to the children that would undermine his role as parent and, in turn, that raises the real prospect of the father’s condition regressing and a recurrence of his major depressive illness.  

4. As the father already has parental responsibility as the sole surviving parent there is no need to make any order about parental responsibility, including that the children live with him.

5. The ICL submits that the maternal grandmother should be enjoined from contacting the father, the children, the children’s school, their after school care providers, and their doctors. I was not taken to any evidence that the maternal grandmother has sought to contact the father, the school, after school care or doctors, but given her comments to Ms K to the effect that she will never give up, and having regard to her continuing views about the father, I consider it necessary for the children’s protection to grant the injunctions sought.  

6. While opposing an order permitting the maternal grandmother to provide gifts and cards to the children on special occasions and also an order requiring the father to provide limited information about the children to the maternal grandmother, including a photograph of each of them occasionally, the father’s Queen’s Counsel candidly conceded it would be difficult to resist such an order if the father retained the right to vet any gift or card, and if the maternal grandmother were restrained from contacting the father and the children other than in that limited way. Accordingly, I propose to make provision in the order for those matters.

I certify that the preceding one-hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 October 2020.

Associate: 

Date:  16.10.2020