Fliss & Kierson

FAMILY COURT OF AUSTRALIA

FLISS & KIERSON AND ANOR

[2008] FamCA 101

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – paternal grandmother, as primary caregiver, seeks orders permitting relocation to Sydney with child – mother opposes relocation and seeks that child live with her – mother refuses to accept diagnosis of schizophrenia and refuses to take medication – child has expressed wishes in support of paternal grandmother – child to live with parental grandmother – permission to relocate granted – limited time spent with mother, supervised by father, ordered.
APPLICANT:	MS FLISS

FIRST RESPONDENT:	MR KIERSON
SECOND RESPONDENT	MRS KIERSON

INDEPENDENT CHILDREN’S LAWYER:

MS JULIE STARK, SOLICITOR

FILE NUMBER:

BRC

1812

2007

DATE DELIVERED:

8 February 2008

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

29 – 31 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Moore of Counsel appeared for the Applicant Mother

SOLICITORS FOR THE APPLICANT:

Towns-Wilson Lawyers

FIRST RESPONDENT:

Mr Kierson appeared on his own behalf

COUNSEL FOR THE SECOND RESPONDENT:

Mr Hiscox of Counsel appeared for the Second Respondent Paternal Grandmother

SOLICITORS FOR THE SECOND

RESPONDENT:

Harvey & Associates, Solicitors

Orders

IT IS ORDERED THAT:

The child, …, born … February 2000 live with the Paternal Grandmother.

The Paternal Grandmother and the Father to have sole responsibility for the short term and long term care, welfare and development of the child.

The Mother to spend supervised time with the child:

a. for three (3) hours in daylight hours during the months of March, June, September and December of each year in Sydney or such other venue as the Mother and the Paternal Grandmother may agree, with such contact to be at times and dates as agreed in writing between the Mother and the Paternal Grandmother;

b. any such contact time as provided for in 3(a) to be supervised by the Father.

The Paternal Grandmother is permitted to relocate with the child from South-East Queensland to the Sydney area.

The Mother is at liberty to forward gifts and correspondence to the child from time to time.

The Paternal Grandmother is to provide the Mother’s legal representatives with a current postal address and to advise in writing within seven (7) days of any change to such postal address.

Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1812 of 2007

MS FLISS

Applicant

And

MR KIERSON

First Respondent

MRS KIERSON

Second Respondent

REASONS FOR JUDGMENT

I am asked to make orders in relation to the future care of a child, a girl, born in February 2000. The applicant is the child's mother. She, in her application to the Court seeks orders that ultimately the child live with her after increasing periods of time of contact. In any event, she opposes the application by the paternal grandmother for relocation.
The first respondent is the child's father. He is not legally represented. He supports orders sought by his mother, the child's paternal grandmother.
The child has lived with the paternal grandmother for in excess of five years. The paternal grandmother was legally represented throughout the course of the hearing as was the mother. The Court has been assisted by the appointment of an independent children's lawyer who arranged for the preparation of various reports, who appeared through counsel and was able to make detailed submissions and recommendations.
In the applicant’s case, the only witness was the mother herself. For the paternal grandmother she gave evidence on her own behalf and called evidence from the maternal grandfather. He prepared a very detailed affidavit. He had come up from Victoria for the purpose of giving evidence. In the paternal grandmother's case evidence was also called from a Dr W, a paediatrician in private practice in Sydney. He had treated the child over a period of time prior to the paternal grandmother moving to South-East Queensland about two years ago.
The father gave evidence. He had filed an affidavit. I have treated the father as a witness in the paternal grandmother's case as he really didn't seek individual orders in his favour. He simply supported his mother's position. I was originally asked to rely on an affidavit of Ms D who had provided a statement in the paternal grandmother's case but I was informed there was no intention to call her and, accordingly, I will disregard any statements annexed to affidavits by that person.
In the independent children's lawyer's case, evidence was called from Dr P, a psychiatrist in private practice in south-east Queensland. Other medical witnesses were Dr C, a psychiatrist in private practice in Brisbane who did an assessment of the mother and the paternal grandmother; Dr S, a paediatrician attached to the Royal Brisbane Hospital who has a private practice; Dr J, who, at one stage had been the mother's general practitioner practising in the south-east Queensland district. All of those medical witnesses gave evidence by phone link-up.
Two social workers have prepared reports. Mr B, a social worker, had prepared two reports and, Ms T, a family consultant social worker attached to the Family Court prepared a report of 25 January this year.
In addition, the independent children's lawyer, relied on reports or affidavits from Mr L, the child's teacher, and Ms H, a contact centre supervisor from the Contact Centre, and Ms N, a psychologist. There was also an affidavit with the report annexed from a Ms M, who is a psychologist in south-east Queensland. All of those documents were admitted without the necessity for cross-examination.
The matter proceeded over three days, on 29, 30 and 31 January. At the conclusion of the hearing the independent children's lawyer sought orders that there be no time spent between the mother and the child and, in the alternative, if there was to be any time spent, then it was to be limited time, supervised by an independent person.
RECORDED : NOT TRANSCRIBED
The independent children’s lawyer also submitted the Court should permit the paternal grandmother's application to relocate from South-East Queensland down to Sydney, and the mother could re-apply to vary the terms of contact when she could establish she was compliant with medication and could establish that her condition had improved as a result of such compliance.
The paternal grandmother sought an order that she be permitted to relocate; that the child live permanently with her; that the mother have limited supervised contact in Sydney with such time to be supervised by the child's father.
The father's position, although he has at all times supported his mother's stance, varied slightly at the conclusion of the hearing. He submitted that the mother should be somehow compelled to take her medication. I do not accept the Court has the power to force people to take their medication. He further argued the mother's compliance with her medication should be monitored and, until she is proven to be compliant with her medication, there should be no time spent. He did not demur from the suggestion that he supervise time the mother spends with the child if the Court was to so order.
The mother, for her part, sought orders that the Court should refuse the relocation. She submitted the Court should order the child remain at her current school and the mother have regular time with the child, supervised by the father. She argued the Court move of its own notion (although there was no application to this effect) to make an order prohibiting the mother from attending the school. I assume this was because of some evidence that the school authorities had concerns about the mother being in the vicinity of the school when she was not authorised to be there.
I turn to consider the critical issue of the mother's mental state. During the hearing a considerable body of evidence was devoted to this subject. There was evidence from five medical practitioners, two psychiatrists, Drs C and P; two paediatricians, Dr W in Sydney and Dr S in Brisbane; and one general practitioner, Dr J; hospital files from the Bankstown Hospital in Sydney and the La Trobe District Hospital were also produced and admitted into evidence. Those files would indicate the mother had been admitted to the Bankstown Hospital, initially as a voluntary patient but subsequently as an involuntary patient. The diagnosis was she suffered from schizophrenia.
As I understand other evidence before the Court, particularly from the applicant's father, this was in accordance with a diagnosis made at a time when the mother had spent a period in France and had had been admitted to a hospital or an institution in that country. A similar diagnosis is made in the file of the La Trobe Hospital in approximately August 2001. That was an involuntary admission. In Dr C’s report at page 10 he has this to say about the mother's medical history:
“It would appear that her symptoms became florid after the birth of [the child] and certainly the description of her behaviour is suggestive of the development of a psychotic illness. It would appear in these circumstances that schizophrenia or a schizophreniform psychosis is the appropriate diagnosis. The former is more accurate given the length of time.”
The doctor goes on to say:
“Unfortunately the records from Bankstown were not available but the history of a voluntary and then an involuntary admission with the prescription of Risperidone certainly suggests an on-going psychotic process, and the use of Aurorix in these circumstances does not suggest the use of any potent anti-depressants. Indeed, I thought that this lady's description of her depression was completely unconvincing. I thought she was a poor historian who was seeking to deny any significant problems whatsoever. This is despite the fact that there is an overwhelming history of significant issues. During two extended interviews [the mother] was completely unable to address any of these issues. She was completely unable to address the issue of her mental health, had no insight, and I think the chances of her receiving appropriate treatment on a voluntary basis are nil.
In these circumstances one would have express grave reservations about contact. I'd be inclined to agree with Mr [B] -
that is the social worker:
- that this lady, in order to have contact with her daughter, needs to show evidence of on-going treatment by a consultant psychiatrist and some indication from that psychiatrist that this lady is complying with treatment. Clearly, this will be very difficult for her to accept particularly, as in my view, she has no insight and tends to externalise blame for all of her problems.”
Dr P saw the mother in relevantly recent times. He provided a report dated 19 July last year. That was tendered as exhibit 3. On balance I find that the diagnosis of schizophrenia is likely to be the more accurate one. Over the period of some seven years three psychiatrists in totally different settings have made this diagnosis. Dr P diagnoses a form of schizoidal personality. If anything, that diagnosis is less helpful to the applicant's case. If the diagnosis of schizophrenia be correct, it is amenable to treatment with appropriate anti-psychotic medication. Such medication would lessen the number and intensity of psychotic episodes experienced by the mother. There are schizophrenic support groups within our community. Many people who have this condition are able to spend very useful lives within the community structure.
As I have noted, if Dr P’s diagnosis be correct, the mother's condition is in the nature of a personality disorder where she manifests symptoms of schizophrenia, but such a condition is not treatable with anti-psychotic medication. Dr P based his diagnosis on the fact that there was insufficient evidence as to the number and duration of psychotic episodes.
The evidence from the father, the maternal grandfather, the paternal grandmother, together with hospital records and other sources, particularly what happened in France, would indicate that there have been on-going psychotic episodes over a considerable period. The reality is it does not greatly matter what name is given to account for the applicant's behaviour. The behaviour has, on a concerning number of occasions, not been conducive to the formation of an appropriate mother/daughter relationship.
I accept the medical evidence, particularly as recited by Dr C, to which I have made reference, that the mother does not display any insight into her condition. In the course of cross-examination she was not accepting of the diagnosis of schizophrenia. She claimed she had never been advised to take anti-psychotic medication. The evidence of Dr P would indicate otherwise. The applicant has, at no time, sought a prescription of anti-psychotic medication in order to be compliant with the recommendations made to her.
I turn to consider the suggestion that the reason the child is not willing to attend to spend time with the mother is as a result of the respondent grandmother's overtly or covertly alienating the child from the mother's affection. The evidence for this is to be found in a number of sources. The principal one is the report of Ms M, a psychologist. That report is dated 8 June last year. It is annexed to an affidavit by Ms M sworn on the same date. She saw mother and child on six occasions between 11 April 2007 and 31 May 2007. In paragraph 2 of the report she says:
“The six sessions began with the establishment of a positive relationship between mother and daughter which appeared to be a happy occasion for both participants. [The child] was comfortable in her mother's company and mutually participated in giving and receiving physical and verbal affection. Both [the mother] and [the child] found it easy to communicate with one another, with [the mother] asking her daughter about her school life, friends and interests.”
I note in paragraph 4 of the report Ms M records that the child declined to accept gifts from her mother on the basis:
“Nana might smack me.”
The child informed her mother she was told by her Nana not to accept food or drink offered by her. During the course of the second session the child commenced to speak of incidents in Victoria in August 2001. The child was less than two years of age at that time. I find it unlikely she would have a direct recollection of such events.
Under the heading "General Observations of [the mother]" Ms M notes:
“[The mother] was genuinely pleased to see her daughter and show her physical and verbal affection. Her conversation was about her daughter's current life, especially in relation to school, friends and other interests. She did not attempt to obtain information regarding [the child’s] life with her paternal grandmother or her father. She generally maintained this positive aspect in conversations with her daughter, even when her daughter was challenging her with accusations of past negative experiences.”
Paragraph 30:
“[The mother] maintained emotional control throughout all the contact sessions, even though it was apparent that she found [the child’s] accusations distressing and bewildering at times. Although [the mother] cried after the last three sessions, she did so after [the child] had left. She recovered after several minutes and was able to leave for home.”
Paragraph 31:
“During the times I had contact with [the mother], I did not observe any evidence of thought disorder, delusional thinking, paranoid ideation, lack of empathy, hostility, unusually elevated mood or heightened activity, marked anxiety or depression, despite the considerable distress she must have felt at times, [the mother] maintained an equitable attitude towards [the child] even when her daughter forcefully and quite aggressively accused her mother of physical abuse.”
Under the heading "Summary of Opinion" at paragraph37 she says:
“[The child] was torn between having a relationship with her mother and a relationship with her paternal grandmother with whom she resides. [The child’s] behaviour towards her mother was clearly not an expression of her own feelings towards her biological mother. The truth or otherwise of [the child’s] allegations revealed to her by her grandmother is not a reason to stop future contact between mother and daughter.”
Paragraphs 39 and 40:
“Future supervised contact between mother and daughter at a contact centre should be monitored by the Court whilst [the mother] undertakes psychiatric treatment. [The mother] has made an appointment with Dr P, a psychiatrist at […], although without bulk billing this may prove difficult for her financially. [The mother] has yet to explore the possibility of Medicare bulk billing with Dr [P].”
Paragraph 40:
“Provided [the mother] maintains regular contact with a psychiatrist and, considering her present demeanour, I can see no reason for supervised contact not to continue in the future. The success of this contact lies with [the paternal grandmother] and her son, [the father], and the attitudes they convey to [the child] about seeing her mother.”
It is somewhat unfortunate that Ms M was not called as a witness. I would have to seriously question the statement made in paragraph 37 which I have quoted, that the truth or otherwise of the child’s allegations revealed to her by her grandmother is not a reason to stop future contact between mother and daughter. I would have thought that was a very subjective opinion expressed by the psychologist.
The observations made by Ms M are in marked contrast to the observations of Dr C made on 13 February and 15 March 2007. He saw the mother a little over a month prior to Ms M first seeing her. Dr C’s observations of the mother are in the following terms. Page 9:

“She was casually dressed, clearly a fragile lady who was disorganised, blunted and inappropriate. She was a poor, vague, waffly and imprecise historian. Endeavouring to pin her down to details only led to further problems and her history was vague and impressionistic. Her behaviour during the interview was inappropriate. She was at time agitated, fidgeting and had difficulty in concentrating. Eye contact fluctuated. She was generally guided and mildly hostile. There was evidence of clear hyper-arousal. Her speech was at times halting and almost monosyllabic. There was no disorder of the form of her thought and I do not think she had formal thought disorder. Her thought content reflected both anxiety and depressive symptoms. She denied any specific delusional beliefs. Her affect showed quite marked lability and it was congruent with her mood which seemed to be one of mild to moderate depression. No clear perceptual disturbances were noted when I saw her and I thought she had no insight. Her cognition appeared intact.”

At page 10 of the report the doctors says:
“As best as I can understand it, she has had little if any treatment since effectively the hospital admission. It would appear that her symptoms became florid after the birth of [the child] –”
and I have previously made reference to the observations that Dr C has made about the mother's medical history in that regard:
At paragraphs 37, 39 and 40, as I have said, the report of Ms M was to the effect she could determine no evidence of depression. Dr C clearly thought she was mild to moderately depressed. I am unable to explain the variants in the reports of the psychologist and psychiatrist but, on balance, I am inclined to accept the report of Dr C. He is a specialist medical practitioner. He was engaged in an objective fashion by the independent children's lawyer to carry out an assessment of both the paternal grandmother and the mother. Ms M, on the other hand, was engaged, as I understand it, largely in a therapeutic process of having the positive role of supervising time between the mother and daughter. I appreciate she was fully cognisant of the need to be able to report on that aspect.

I have regard to the affidavit of Ms H from the Contact Centre. Her affidavit annexes a report of 30 November 2007. In that report she refers to the mother attending for an intake interview on 4 August 2006:
“She presented as a concerned parent wanting to have contact with her child after not having seen her for some time. [The paternal grandmother] was interviewed on 21 October 2006, and she showed significant signs of distress during the interview, such as crying, shaking and speaking with a very distressed tone in her voice. She expressed grave fears at the thought of [the child] having any contact with [the mother] -
and then it says:
After due consideration a decision was made to reject the application as it was felt that supervising this family might be beyond the capacity of this centre and both parties were informed of this decision.”
However, the mother produced some records from other centres and persuaded the Contact Centre to accept her and the first visit was scheduled for 11 November 2006. There were no visits in the period 11 November 2006 through to 23 June 2007. There was very little questioning or no questioning on this aspect during the course of the trial. There was a Court event on 13 June 2007 when the parties appeared before a Registrar.
The next scheduled contact visit was 7 July 2007 and contact did take place at the contact centre. Exactly why it commenced after a delay of over seven months was not made clear. On that occasion the child was recorded as saying:
“Nana said you can't live with us. Nana says I can't play with you. Nana said that you lie. Nana said I can't eat any of your food.”
The child begged the supervisor not to tell Nana that she had played with her mother on the basis that her Nana would be very upset.
There were no visits in the period 18 August 2007 through to 8 December 2007 predominantly because the paternal grandmother cancelled those appointments for various reasons or failed to attend.
The other witness who deals with this aspect of whether the paternal grandmother has been deliberately or inadvertently alienating the child from the mother's affections is Ms T. At paragraph 37 of her report she records the mother informing her that the child reacts differently towards the mother if she is aware the paternal grandmother is not around. This would possibly explain the reports of Ms M, but for the fact, as I understand the evidence, the paternal grandmother was not around nor was the child around at the time of the assessment by Dr C.
The account given by the mother to the family consultant, Ms T, confirms the views expressed elsewhere, that the mother is a poor historian, minimises her problems and displays little insight into her mental state. At paragraph 51 the paternal grandmother cited financial reasons as the main reason for seeking relocation and that was also a significant factor for the mother in opposing relocation that she was concerned about the cost of living in Sydney being higher than in South-East Queensland. At paragraph 56 Ms T records the paternal grandmother as saying:
“[The paternal grandmother] continues to ask the Court that any visits that [the child] have with her mother be supervised. She proposes that [the father] supervise such visits in a park as this is a more natural environment and there is play equipment that [the child] and her mother could use. [The paternal grandmother] did not, however proffer any concrete plans for future visits.”
In relation to the relocation issue the mother is adamant that she will not move to Sydney if the Court permits the paternal grandmother to move there with the child. The paternal grandmother suggests otherwise, namely that it is almost certain that the mother will follow them to Sydney as there is a pattern of this occurring in the past. In paragraph 59 of Ms T’s report she records

the paternal grandmother as saying that:
“If [the mother] was on her anti-psychotic medication it would be all right for such visits not to be supervised.”
Certainly the mother has been getting this message from various report writers and here it is in writing, albeit very late in the piece, from the paternal grandmother saying, "You can have unsupervised contact if you want to, but you’ve got to take anti-psychotic medication." There was no indication, during the course of the fairly lengthy time she spent in the witness box, that she was amenable to such a suggestion.
At paragraph 67 of the report, Ms T records:
“[The paternal grandmother] indicates she does not speak negatively about [the mother] and that to the contrary, 'I constantly ask [the child] would she like to go and see her mum?’ [The paternal grandmother] states that the consistent reply is, 'No, I don't want to.’ [The paternal grandmother] perceives that the reason may be, 'I think she's just scared of her mother and she doesn't want to get upset.’ [The paternal grandmother] asserts that 'There is nothing that I'd like better if [the child] said she would like to go and see her mother.”
I have to record that the grandmother's evidence is, to some extent, supported by statements which have been annexed to her affidavit, friends of hers who have witnessed her trying to cajole the child into attending at the contact centre.
The picture that emerges is very confusing. To use the vernacular, the waters of evidence are very muddy indeed. Ms T, in the course of her evidence, withdrew a suggestion in her report that the paternal grandmother had not followed appropriate medical advice to give the child anti-depressant medication.
Dealing with the child's wishes at paragraph 80 she records the child as saying:
“I really want to stay with my Nana.”
She then went on to state:
“'I wish we had a house’. I asked who she'd like to live with in this house and she replied, 'My dad and nana’. I asked [the child], 'What about mummy?’ And she replied, 'Mummy boy didn't look after me at her house. She was hitting and pinching me.”
The conclusion to be drawn is that the paternal grandmother, despite her protestations, has from time to time reinforced memories in the child of the treatment she received from her mother. This can only be unfortunate and to the detriment of the child.
At paragraph 105, having recorded the fact that the mother refuses to take any

anti-psychotic medication and only sees the need to take an anti-depressant, Ms T says:
“As such, it's a contraindication for her having [the child] live with her, and also for any times that she spends with [the child] to be unsupervised. I am therefore unable to support any application by [the mother] that [the child] live with her or that any times that she spends with [the child] be unsupervised.”
Paragraph 106:
“Another difficulty in this matter is that on the basis of uniformly negative and sometimes judgmental comments made by [the paternal grandmother], and the comments and behaviours demonstrated by [the child], I think it likely that any on-going traumatic memories being expressed by [the child] are the result of on-going reinforcement of these memories by her grandmother and perhaps her father.”
I have to say that on balance, whilst I've indicated the waters are muddied, I think I have to agree with Ms T’s opinion in that regard. At paragraph 107:
“[The paternal grandmother] denies any possibility that her fears and perceptions of [the mother] are being conveyed to [the child] even at a non verbal level. On the basis of comments made to the writer by [the child] I think it's suggestive that some of [the paternal grandmother’s] fears and judgments are being overtly conveyed to [the child]. I think it also likely that some of her views and attitudes are being conveyed by tone of voice or by non verbal reactions. It is generally accepted that the vast majority of communication is conveyed at a non verbal level.”
Paragraph 108:
“On the basis of some comments made to the writer, it is my opinion that [the child] has a clear perception that she should not only stay away from her mother, but that she should not eat anything that her mother offers her and that she believes that [the paternal grandmother] would not be happy if she knew her granddaughter was accepting the contents of [the mother’s] shopping bag. [The child] graphically demonstrates within the writer's presence her fear of what [the mother] might be taking out of a plastic bag. In that case it was almonds.”
I note that in Ms T’s report, although she recommended against relocation for the reasons set out in her report, in the course of her oral evidence she altered her opinion.
I turn to briefly consider the evidence of the paediatricians: Dr W of Sydney, his curriculum vitae is set out at exhibit 8. It is a very detailed curriculum vitae showing a medical practitioner with outstanding qualifications. He has written letters in the form of reports on 3 September 2003, 22 October 2003, 24 December 2003, 15 July 2004, 2 September 2004 and 16 May 2005. They are all annexure C to the relevant affidavit. The doctor consistently records how much the child improves over the period she has been in the paternal grandmother's care. He is very forceful in recommending the mother only have supervised time with her daughter. In a letter of 2 September he records that there have been six contact visits between mother and daughter as at that time, and that evidence certainly was not challenged when Dr W gave his evidence.
Dr S provided a report of 27 March 2007, which is exhibit 14. I have had regard to that report. I have no reason to doubt the testimony of any of the medical practitioners other than my comments about the opinion expressed by Dr P.
I turn to consider the report of Mr B. He provided two reports, 3 February 2007 and 20 August 2007. Annexure 15 is the report of Ms R of 15 December 2006. This is one of the reports to which I have made reference. She is a friend of the paternal grandmother and she says:
“On 11 November -
presumably 11 November 2006:
- I was present at [the paternal grandmother’s] home when she attempted to take [the child] to the contact centre to see her mother. [The paternal grandmother] attempted to make the visit appealing by reminding [the child] that she could play with all the toys, she'd be there, and that there would be other people there to talk as well. [The child] looked terrified and ran to the kitchen bench and clung to the counter top as [the paternal grandmother] attempted to take her by the hand. [The child] was crying and begging [the paternal grandmother], 'Nana, say [name] doesn't have to go. Say [name] can stay home, nana’. This behaviour at no time resembled a wilful child wanting her own way. Her behaviour alarmed me and looked like terror and had the same effect on my eight-year-old granddaughter […] who was saying to [the child], 'It's all right [name]. Grandma, she's scared. Why is she so scared? [Paternal grandmother], why are you scaring her?’
She records:
After some time we were able to calm [the child] and I took the girls outside to play.”
It was at that stage that the paternal grandmother called the contact centre and called off the visit
There are indications such as this where the paternal grandmother, whilst wary of the mother for a variety of reasons, has not been as negative towards the child spending time with the mother as the mother would have the Court believe and as other evidence would indicate. One of the grandmother's concerns is that her home was vandalised. She is firmly of the belief that it was the mother who was responsible.
The factors which lead me to conclude that the paternal grandmother has been promoting a relationship is that the mother has had contact with the child at various times in both Sydney and South-East Queensland. The paternal grandmother is on record as not opposed to an order for future contact. In fact at a time when the independent children's lawyer was recommending no contact, counsel for the paternal grandmother was saying yes, there should be limited contact in Sydney supervised by the father.
The paternal grandmother consented to a suggestion by her counsel during the course of the trial that the mother, father, maternal grandparents, paternal grandmother and the child have lunch together. I am more than satisfied that counsel for the paternal grandmother would not have made that suggestion without the specific instructions and permission of his client. The letter of Ms R, to which I have made reference, would indicate it is not always a straightforward case of having the child attend. It does not seem to be a straightforward case of the child being deliberately alienated from her mother.
I will consider the balance of the evidence when assessing the factors pursuant to s.60CC which I am required to take into account. Those factors are divided into primary factors and secondary factors. The primary factors are in the following terms: The Court has to consider, in determining what is in the child's best interests, the benefit to the child of having a meaningful relationship with both of the child's parents. At the same time the Court has to have regard to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. These provisions clearly provide that the benefit for a child having a relationship with a parent must be considered along with the need to protect the child from risk of abuse of any form.
The three most relevant expert witnesses in this matter to my mind are Dr C, Mr B and Ms T, a psychiatrist and two social workers. The social workers, particularly Mr B, had experience with this matter over a considerable period of time. All are firmly of the view the mother should only have limited supervised time with her daughter. This was the fall-back position adopted by the independent children's lawyer.
I am leaving aside at this point in time the evidence and the positions taken by the paternal grandmother, the father and the maternal grandfather, although I have had regard to the evidence that they have given. I am firmly of the view that it is preferable to look at the objective evidence from the independent people such as social workers and medical practitioners, hospital records and things of that nature, and that is the evidence upon which I place the greatest weight.
There is a good deal of evidence of communications between the mother and father being unpleasant at times, rude, offensive and hostile. I do not propose to attribute fault in relation to such conduct.
In relation to the additional considerations, the first matter I have to take into account, is any views expressed by the child. The Court obviously has to take into account the age of the child - the child turns eight soon. As I have mentioned, there is some evidence the child has been both overtly and covertly influenced by the paternal grandmother, but the bottom line is the paternal grandmother, on the available evidence, is the only realistic option as the primary carer. If she has openly influenced the child against her mother, it is regrettable indeed, but at this point in time the reality is the damage has been done.
I have to consider the nature of the child's relationship with each of the child's parents and with other persons, including any grandparent or other relative. There is evidence that the child is able to relate adequately with her mother on occasions if the paternal grandmother is absent, at least for part of the time. I refer to the notes from the Contact Centre and from Ms M, and there was also a contact centre from the Sydney area. I accept the child has a good relationship with her father. I find that the mother's behaviour, on occasions, borders on the bizarre. One relevantly minor aspect of that is she gave a seven year old girl a plastic baby dish and spoon as a Christmas present. I would have thought such a gift was more appropriate for an 18 month old or a two year old rather than for a seven year old girl attending school. That gift is to be found as exhibit 12. I note at the same time she gave the father some Star Wars toys with what she thought were significant messages scrawled on the package.
I have to consider the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship. I have made reference to the exchange of insulting text messages to be found in exhibits 1 and 12. Exhibit 1 is tendered by the mother and it only has the SMS messages sent by the father with particular reference to text messages sent on 28 September 2007. One can observe that they appear to have been sent with considerable regularity but in response to text messages he had received from the mother. The mother does not disclose the text messages that she was sending and it would have been a useful piece of evidence to have if one is to place any weight on exhibit 1.
I note that the father is prepared to supervise whatever visits the mother may have with the child. There was a visit before Christmas last year and, by all accounts, though there was some comment on the mother's behaviour, it appears to have had some positive aspects.
I have to consider the likely effect of any changes in the child's circumstances. The paternal grandmother wishes to relocate to Sydney. I will make reference to the relevant issues shortly. The reality is the child has been with the paternal grandmother since being taken off the mother in about August 2001. The child is clearly closely bonded to the paternal grandmother. Ms T noted, paragraphs 111 and 113 of her report:
“It is my assessment that [the child] has a strong reciprocal attachment with her grandmother and within the context of [the child] having already experienced a disrupted attachment from her mother and perhaps an emotional abandonment by her father, it would be particularly damaging to [the child] to be removed from her grandmother's care. A further disrupted attachment would have long term ramifications for [the child’s] emotional development.”
Paragraph 113:
“Not only does [the child] have a need to not have a further disrupted attachment from the one person she believes that she can count upon, but she also has a need to ideally enjoy an on-going relationship with her mother and, if this is not possible, opportunities to ultimately develop compassionate understanding why this is not possible. The best person to assist her in this regard is a person whom she believes she can rely upon and who is motivated by her best interests. It is well documented that often children who have been physically abused by a parent, nevertheless continue to love that parent despite the abuse. If [the child] sustains such abuse over a period of time it could be anticipated that she also experienced significant emotional trauma, recovery from which would take significant time. Even though [the child] was under three at the time and would not have had expressive memory at that age, she would nevertheless have sensory memories that are retained in her psyche.”
I accept the force of Ms T’s assessment, though I do not accept her observation that the child may have been emotionally abandoned by her father. I do not think that is the case at all.
I have to also consider the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs. The mother was insistent that she wanted her daughter to know that she had fought for her. I accept the mother has devoted her life to furthering a relationship with her daughter. Unfortunately, she has not done the one thing which could lead to a dramatic improvement in her relationship with her daughter, and that is accept the advice of specialist doctors and commence taking anti-psychotic medication.
As I have previously noted, there are many citizens diagnosed with schizophrenia who are able to lead fulfilling lives within our community. I will record for now and prosperity, as the mother has asked, that she, the mother, has done all in her power to have the child placed in her care other than to take the anti-psychotic medication which has been recommended to her. I accept that it is the mother's wish that she could have the child in her care. It is the decision of the Judge which has prevented this taking place. I intend to accord with the recommendations of the experts and the independent children's lawyer and place the child with the paternal grandmother.

I have to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents. The paternal grandmother deserves commendation for the sacrifices she has made in her care of the child since 2001. She has taken the child to general practitioners, paediatricians and speech pathologists. She has attended to her educational needs. By all accounts the child has improved significantly during this period of time. Virtually anything that was within the paternal grandmother's power to do for the child, she has done, and I am sure the child, in the fullness of time will appreciate that when somebody needed to undertake that function she was there to do the job.
The father supports his mother in her wish to continue to care for the child. He will be there to support and I have no doubt that he will be as good as his word. I accept he also is devoted to the child’s welfare.
I have to consider the issue of any family violence. I have noted the paternal grandmother's concerns that her property has been vandalised. She lives in an outer suburb. She says no other properties in the street were damaged, whilst her house had been damaged on a number of occasions. She suspects the mother. The mother denies this. I am, on that evidence, unable to make a finding. One is entitled to one's suspicions. However, in the context of the case I am certainly not critical of the paternal grandmother for refusing to disclose her current whereabouts and she was not required to do so.
I turn to consider the issue of relocation. The relevant authority is the decision of A v A 26 FLR-382. In that decision the Court sets out the reasons, the methodology or the process by which a Court will decide whether to permit relocation. It is a three stage analysis. The relevant competing proposals, and then for each of the relevant factors under s.60CC, to which I have referred. And then the ultimate issue is the best interests of the child, but one of the relevant factors is the freedom of a parent to move. On the basis of the prior steps of analysis the Court will determine and explain why one of the proposals is to be preferred having regard to the principle that the child's best interests are the paramount but not the sole consideration.
It is important to have in mind that none of the parties bears an onus either in favour of moving or opposing a move. The child's father has remained in Sydney. To permit relocation will result in the child being reunited with her father. The father and the paternal grandmother propose to reside together. The father's house in Brisbane has been repossessed since late last year, about October or November. The paternal grandmother has been living with friends since that time. The paternal grandmother says she has extended family in Sydney with whom the child has engaged previously. The paternal grandmother has removed the child from the school the child has previously been attending. The paternal grandmother says she has accommodation available in Sydney. That is to be found at exhibit 9.
A further advantage to her being allowed to relocate is that there will be no duplication of rent. She will be able to live with her son. She says if contact is to be for limited periods, the mother's wishes should not carry significant weight. Why should the paternal grandmother remain in Brisbane to allow the mother to see the child on very limited occasions?
In the mother's case it was argued that the child was well settled at school and the Court should order the child continue to attend this school, that the child's needs would best be enhanced by providing stability of education. Whilst generally that would be a factor, the Court cannot force the paternal grandmother to live in a particular suburb, so if she was to remain in Brisbane and she was living in another suburb it would follow, as night follows day, that she would send the child to a school in that catchment area and not be forced to bus the child across the city simply to ensure there was no change in the child's education.
The mother says that Sydney is more expensive than Brisbane and because of her poor financial circumstances she would be unable to make the move. As I have said the paternal grandmother is cynical of the mother's claims in this regard. Having regard to the mother's need to relate to her daughter, I believe it is likely, in the event that the Court does permit the move to Sydney that the mother will soon follow. This is not a case of the child living with the mother in Brisbane or the paternal grandmother in Sydney. If the Court does not permit relocation the paternal grandmother intends to remain with the child in Brisbane.
For reasons soon to be summarised, I propose to order that the child reside with the paternal grandmother with limited contact to the mother as recommended in the alternative proposal by the independent children's lawyer, and that recommendation accords with the evidence of Mr B and Ms T. I see little point in requiring the paternal grandmother to remain in Brisbane when she clearly wishes to move back to Sydney and has telling reasons to do so. I have just enunciated those reasons.
The position may be otherwise if the mother was accepting of the diagnosis made by the medical practitioners, indicated a preparedness to take appropriate anti-psychotic medication and was able to convince the Court that she should be seeing the child, either every weekend or alternate weekends. That is simply not the case.
I propose to make orders, as I have said, that the child live with the paternal grandmother for the following reasons: The paternal grandmother has been the primary caregiver for the child for the past five or six years. The child is clearly bonded to her. I accept Ms T’s observations, which I have quoted at paragraphs 111 and 113 of her report, that it would be particularly damaging to the child to remove her from the paternal grandmother's environment particularly where she was removed from the mother's care back in 2001. Such a result of making an order that the child live with the paternal grandmother accords with the child's wishes. Such a result accords with the recommendations of the independent children's lawyer, such a result accords with the recommendations of the various experts, medical and social workers. Such a result accords with the wishes of the father.
Because of her medical condition the mother is not able to offer the child the stability the child desperately requires. The evidence of the child's treating paediatrician in Brisbane, Dr S, is to the effect relocation would have no major adverse reaction on the child. As I have said, the paternal grandmother no longer resides in the catchment area of the child’s previous school. It is not reasonable to require her to move into that catchment area or to bus the child across Brisbane to attend the school. The end result is the child will have to change schools regardless, and whether it is to a new school in Brisbane or in Sydney, would appear to be irrelevant.
I turn to consider the issue of what time the mother should spend with the child. If contact is to take place, all the reliable evidence indicates that the mother's time with the child should be supervised. I have to consider who would be an appropriate supervisor. Should it be an independent supervisor or should it be the father who has volunteered? Mr B suggested that time between the mother and child should be limited to about four visits a year for daytime visits of only a few hours duration. Mr B’s evidence was not contested in cross-examination.
The independent children's lawyer was of the view there should be no contact until the mother demonstrated compliance with the recommended medication. Whilst there is weight to that view, the likelihood is the mother will continue her bloody minded approach that she does not need it and that she is the best judge of all that. In the circumstances, the view that I take is, it is in the child’s interest to have some on-going contact with her mother so that she is a presence in her life.
The paternal grandmother, to her credit, made a submission that an appropriate order was for some limited time to be monitored by the father. The father made a favourable impression on me. He appeared to have a rather passive nature and a somewhat naïve manner at times. When he cross-examined the mother the exchange between the two quickly became quite heated with the applicant being the far more forceful person, in my view.
I would assess the mother as being quite intelligent, albeit her intelligence manifests itself in a bizarre fashion at times, and her intelligence is limited by the fact she lacks insight into the consequences of her medical condition. In association with her intelligence she demonstrated a superior air vis-à-vis the father.
I propose to order that the mother have three hours contact in daytime hours in the months of March, June, September, December each year on a date and at a venue to be agreed in writing between the mother and the paternal grandmother. Such time is to be supervised by the father.
RECORDED : NOT TRANSCRIBED
There is no evidence of the availability of contact centres in Sydney. To get a privately funded professional supervisor would be out of the financial means of both parties. The mother's time with the child, if it is spent in a park, has the possibility of it being quality time.
It is sad indeed that the Court has to make such limited orders for time between mother and daughter, but that is in accordance with the evidence before the Court. I do not make up the evidence. I have to make my judgment based on the evidence. As I have said, the most reliable evidence comes from the independent experts, particularly the social workers. In the event that the mother was to be able to satisfy one and all that she has had a change of heart, and in the interests of forming a relationship with her daughter she is prepared to take the medication, regardless of the side effects, the position can be revisited in the future.
As I have said I propose to order the father be the supervisor. The father has appropriately supervised in the past. The father's position in relation to the mother is they are able to communicate. There is little likelihood of the mother and paternal grandmother being able to communicate on a civil basis. The mother does not express the same degree of hostility towards the father as she does to the paternal grandmother.
In the course of these reasons I have not made specific reference to the evidence of the mother, the paternal grandmother or the maternal grandfather. I do not propose to consider their evidence in detail. As I have said, the matter is best determined by reference to the more objective evidence. I record that, generally speaking, I found the paternal grandmother to be a credible, impressive witness. I accept, as I have noted, her genuine fear of the mother.
I was not impressed with the mother's evidence. As I have said, her main difficulty is she has no insight into her condition and is a poor historian generally.
The maternal grandfather, I note, was most reluctant to be involved in giving evidence against his own daughter but felt it necessary to do so for the child's sake. He had obviously gone to a great deal of trouble to present his detailed material to the Court. I was really unable to form an overall view of that witness and have placed little weight on the material that he presented.
For the reasons given I propose to make the following orders.
ORDERS DELIVERED
Those orders operate immediately. The orders I will issue forthwith so they can take effect. I do conclude by urging the mother to attend on any psychiatrist, I think Dr ... was recommended by Dr P. She can go back to Dr C, have a talk and to consider there is no conspiracy. These people have her best interests at heart. I am more than satisfied of that and if she could only do that her position could improve enormously.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 8 February 2008

[2008] FamCA 101

8 February 2008

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Family Law

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Jurisdiction

Natural Justice

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