Hammond and Nave
[2018] FCCA 2743
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAMMOND & NAVE | [2018] FCCA 2743 |
| Catchwords: FAMILY LAW – Grandmother seeking time with grandchildren – father dead – uncommon grandmother and child relationship – in and out of the children’s lives – grandmother critical of mother – poor relationship between the two adults – no trust – best interests of children to only have communication with grandmother. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Re: F Litigants in Person Guidelines (2001) 161 FLR 189 |
| Applicant: | MS HAMMOND |
| Respondent: | MS NAVE |
| File Number: | MLC 1072 of 2017 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 21 & 22 May 2018 |
| Date of Last Submission: | 22 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 September 2018 |
REPRESENTATION
| The Applicant appeared in person | |
| The Respondent appeared in person | |
| Counsel for the Independent | Ms Elleray of Counsel |
| Solicitor for the Independent Children’s Lawyer: | Kenna Teasdale Lawyers |
ORDERS
THE COURT ORDERS ON A FINAL BASIS:
That the children:
[X] born 2004;
[Y] born 2006; and
[Z] born 2008 (“the children”),
live with the mother.
That the mother has sole parental responsibility for the children.
That the paternal grandmother be at liberty to forward to the children or any one of them postcards, letters, cards and gifts on special occasions to an address nominated by the mother.
That the mother advise the paternal grandmother forthwith of her postal address and any changes to her postal address.
That the Order of Judge Curtain dated 7 June 2017 appointing the Independent Children’s Lawyer be discharged.
That otherwise the paternal grandmother’s application be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hammond & Nave is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1072 of 2017
| MS HAMMOND |
Applicant
And
| MS NAVE |
Respondent
REASONS FOR JUDGMENT
Introduction
We see many sad cases in our Courts and this unfortunately, is one of them.
The Applicant is the paternal grandmother to three children where historically and currently they do not have a close, loving or typical relationship. The parents separated in December 2010, and the children remained in the primary care of the mother. The mother and father were involved in litigation under the Family Law Act 1975 (Cth) (“the Act”) for around four and half years before entering into final parenting orders by consent in June, 2015. The paternal grandmother supported the father’s case.
Tragically, on 2016 the father was murdered in violent circumstances. The Applicant paternal grandmother commenced legal proceedings on 7 July 2017, seeking the following final orders:
“1. That the children [X] born 2004, [Y] born 2006 and [Z] born 2008 spend time with the applicant as follows:
a) On a fortnightly basis one weekend commencing after school Friday and returning before school Monday during school term,
b) One half of the school term and summer holidays
c) By Telephone at all reasonable times
2. Such other orders as the honourable court considers appropriate.”
I note she did not seek any interim time with orders.
Background
The Applicant paternal grandmother was born on 1950, and is therefore aged 68 years. She is retired and lives in Suburb A.
The Respondent mother was born on 1974, and is aged 44 years. She is employed as a (occupation omitted) at a (employer omitted) and lives in a de facto relationship at Town 1.
The mother had a 13 year relationship with the father, Mr P, and they had 3 children:
a)[X] born 2004, (aged 14 years);
b)[Y] born 2005, (aged 13 years); and
c)[Z] born 2007, (aged 10 years).
There is clear evidence that the mother, during her relationship with the father, was subjected to significant and serious domestic violence at the hands of the father. Moreover, the father and paternal grandmother from time to time had a number of verbal disputes, and a strained relationship.
The mother said in a s.11F report dated 27 July 2017, that the children had not spent any significant time with the paternal grandmother for three years, save for the ‘odd occasion’ in the period around the father’s funeral. They have never spent overnight time with her and there were a number of periods where they did not spend time with her at all. It appears that she has ‘come and gone’ in and out of the children’s lives.
In the same report, the paternal grandmother says that she does not like the way or agree with the way the mother parents the children. She complains that they have too much freedom and watch inappropriate content on their electronic devices. She alleges that the mother has engaged in alienating behaviour in relation to the father’s and paternal grandmother’s relationship with the children.
In the conclusion of the above report it says:
“The mother is the primary caregiver and is faced with the ongoing responsibility of caring for the children; as such any Orders should be cognisant of supporting her parenting capacity and not diminish it in any way. The grandmother whilst known to the children has not featured as a significant caregiver and has come in and out of their lives. Whilst there may be a number of reasons for this it appears the grandmother’s views are somewhat tied in with previous reports, concerns and views of the father, and much of the time she spent with the children was dependent upon her relationship with him at any given time. The father’s tragic death seems to have added another layer of complexity and loss for this family at this point in time.
The grandmother does not appear to have an everyday, easy and close grandparent relationship with the children. Given the ages of the children, their current family circumstances and the diminished relationship between her and the mother it is unlikely the type of grandparent relationship she is seeking will be possible in the near future.
The children have experienced multiple losses in their lives thus far, loss of their family unit, exposure to conflict between the parents, ongoing litigation between their parents, several interviews for Family Reports and now the tragic loss of their father. It is the view of the writer that further proceedings and interviews are not likely to assist the children at this point in time.”
After hearing from the mother, the paternal grandmother and Family Consultant Ms B, I found these comments to contain significant truths, although they were from an earlier report and the author was not cross-examined.
The paternal grandmother and mother appeared in person and I assisted them as best I could pursuant to the case of Re: F Litigants in Person Guidelines (2001) 161 FLR 189.
Material Relied Upon
Applicant paternal grandmother
a)Application filed on 7 February 2017;
b)Two Affidavits:
i)Sworn and filed on 7 July 2017;
ii)Affirmed and filed on 6 October 2017; and
c)Notice of Risk filed on 7 February 2017.
(note: I made earlier trial directions for the paternal grandmother to file further material and to provide an Outline of Case document but she did not comply with these Orders).
Respondent mother
a)Response filed on 1 June 2017;
b)Two Affidavits:
i)Sworn and filed 1 June 2017;
ii)Sworn on 20 October 2017 and filed on 21 October 2017; and
c)Notice of Risk filed on 1 June 2017.
(note, I also made earlier trial directions for the mother to file further material and an Outline of Case but she did not comply with these Orders).
Independent Children’s Lawyer
a)Outline of Case filed on 15 May 2018;
b)Department of Health and Human Services report dated 24 February 2017;
c)A s.11F report dated 27 July 2017, authored by Family Consultant D;
d)A further s.11F report dated 21 September 2017, authored by Family Consultant Ms B.
The Applicant’s Evidence
The Applicant paternal grandmother presented as being unsophisticated and having limited insight into the needs and emotional vulnerability of her grandchildren and their mother. She appeared to have little understanding of the need to emotionally support the role of the sole remaining parent of the children. She gave the impression of not being child focused. She appeared to be concerned about her needs being met.
When in the witness box she had difficulty giving unambiguous and clear answers to simple questions. She appeared to have clear reservations about the mother’s ability to provide a safe environment for the children. She was often too critical of the mother’s role.
The Respondent mother’s Evidence
As a clear victim of significant and serious family violence at the hands of the father and being involved in over 4 years of litigation with him, she was understandably annoyed with the paternal grandmother in bringing these proceedings. She was sensitive to the fact that the paternal grandmother supported the father in his litigation against the mother.
The mother’s evidence was often helpful and where the mother and the paternal grandmother could not agree, I preferred the evidence of the mother.
Family Reports
There were two short reports pursuant to s.11F of the Act. The first was authored by Family Consultant D and dated 27 July, 2017 and the second authored by Family Consultant Ms B and dated 6 October, 2017.
The author of the first report was not cross-examined primarily because the children were not interviewed on that occasion. Therefore, that report has to be read in the context of the evidence of the author not being tested. In relation to the report authored by Ms B she attended Court and was cross-examined. I found her report and Court evidence very helpful.
Relevant Legal Principles
S.60B(1): The objects of this Part are to ensure that the best interests of children are met by:
(b)that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(c)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(d)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(e)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
S.60B(2): The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the children are the paramount consideration.
In Section 60CC criteria is laid out for the Court to determine what is in the children’s best interests and in particular sub-sections (2) and (3). Sub-section 60CC(2) requires an assessment of the primary considerations where relevant. In sub-paragraph (a), it is the benefit of the child having a meaningful relationship with both of the child’s parents (my emphasis). In this case that is not a relevant issue given this is a dispute between the mother and the paternal grandmother. Sub-paragraph (b) requires the Court to consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In the context of this case there is no suggestion that these children are at risk of physical abuse, neglect or family violence at the hands of the paternal grandmother. However, given the strained and poor relationship between these adults, the lack of emotional and psychological support for the mother and criticism of the mother, there is a risk of psychological harm being an issue for the children if they spend regular time with the grandmother.
In relation to the additional considerations in section 60CC(3) I will deal with each in turn as follows:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
For the purpose of her report dated 6 October 2017, Family Consultant Ms B interviewed the children. At page 3 she says of [X] the following:
“[X] is a thirteen year old boy who attends Town A High School in grade eight. [X] is reported to be attaining average grades academically, having improved greatly in the current academic year, having struggled the previous year as a result of the challenging family circumstances in losing his father. The mother reports that [X] is a capable and intelligent child who is considered not to apply himself as he could.”
Subsequently she interviewed [Y] and said as follows:
“[Y] is twelve year old boy who attends Town 2 Primary School in grade six. [Y] is reported to be attaining above average grades academically and is considered to be an intelligent child. [Y] is reported to have a keen interest in (sports) and plans for a local team, training twice a week. [Y] will commence (sports) when (sports) season finishes. The mother reports that [Y] did not have a positive relationship with his father and did not spend time with him as per the orders reached by consent. [Y] is reported to be a defiance and outspoken child who clashed with his father and ultimately refused to spend time with him.”
As to [Z] she said the following:
“[Z] is a nine year old boy who attends Town 2 primary school in grade three. [Z] is reported to have been assessed by a paediatrician and diagnosed with having ADHD, which is particularly apparent in his poor concentration capacity. [Z] is medicated for this condition which is reported to greatly assist in enabling him to concentrate in the school environment. [Z] is reported to be attaining in line with peers and has a stable and positive friendship group in school and is a social and outgoing child. [Z] is reported to have no real memory of the paternal grandmother from involvement in their earlier life, and as such refused to spend time with her following the brief period of contact that occurred in 2016. [Z] had an awareness of the paternal grandmother seeking to spend time with him. [Z] stated “I wanna stay with mum. She is everything to me. I don’t want to see her. I don’t like her because she is related to dad. Dad has done bad things are maybe she will too”. “
When cross-examined Ms B said that [X] expressed a stronger wish than both his younger brothers not spend time with the paternal grandmother and that a primary consideration for the expert was the children’s emotional wellbeing and stability. She confirmed she described [X] as being articulate, intelligent, insightful and mature for his age.
At page 4 of the second report the Family Consultant said:
“The children have all expressed a strong wish not to spend time with the Paternal Grandmother. Given the extent of the children’s adverse life experiences to date, it would not be in their best interests to disregard their views and for time to occur against their wishes.”
Based on the evidence of the Family Consultant, it is my view that these wishes are a significant factor in this case and particularly [X]’s, given he is now 14 and a half years of age. Although these wishes were expressed when he was 13 years, I put significant weight on what he told the expert and her assessment of them. Their views cannot be ignored.
(b)the nature of the relationship of the child with:
(i)each of the child's parents;
The children have a close and loving relationship with their mother. There is no doubt in my mind they see her as a significant and important person in their lives. She is the sole surviving parent and as such, that relationship with the children should be nurtured and protected.
(ii)other persons (including any grandparent or other relative of the child);
At the fourth page of her report dated 6 October 2017, Ms B says that the paternal grandmother does not appear to have an existing “meaningful” relationship with the children, and would be seeking to develop a relationship with them. In my view it cannot be said that this lady has enjoyed a typical grandmother-child relationship in the past with these three children. The evidence shows that her relationship with them was spasmodic, irregular and never substantial. It is a tentative relationship currently and it is clear from the children’s views that they do not seek a close and warm loving relationship with her.
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
The mother has taken every opportunity that I could gauge wanting to be involved with the children in decision making, spending time with them and communicating with them. This sub-section it should be noted, along with (ca), (e), (g) and (i) only talks of “parents”.
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
It appears to me that the mother has fulfilled her duty to support the children as best as she can in all the circumstances.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents;
The father is no longer available to the children and the loss of the mother in their lives would be a further tragedy. The role of the mother in nurturing, protecting and supporting these children must be supported. If these children were separated from the mother for more than a short period, it would have a very negative effect on their emotional, psychological and general wellbeing.
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In relation to the paternal grandmother, given the current poor relationship that the children now have with her, the effect on the children of any separation from her would not have a significant effect on their emotional or psychological wellbeing. It appears that there is not a close and loving relationship with the paternal grandmother and whilst the mother would support a relationship should the children seek it in the future, currently it would not be a significant vacuum in their lives should they not have a regular, substantial and significant relationship with this lady.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Not relevant.
(f)capacity of:
(i)each of the child's parents;
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother is clearly the most important person in their lives, particularly given she is the surviving parent. She provides the emotional and intellectual support that these children enjoy in her care. This is apparent from the two family reports.
In relation to the paternal grandmother, there is a question mark about her ability to promote the emotional and intellectual needs of these children given her attitude to the mother and the role of the mother in the children’s lives. In both reports, she appears to be critical of the mother in her care of the children.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
In her Affidavit sworn and filed 1 June 2017 at page 2, the mother alleged that she was terrified of the father against whom she obtained an “indefinite” Intervention order. She went on to say that… “having Ms Hammond in our lives would be like inviting Mr P back into our lives and I don’t believe I can personally deal with that...” She goes on to detail that [X] and [Z] require counselling from a psychologist giving their emotional vulnerabilities and at page 3 said… “We have not had enough time to heal. This Court process will only open-up old wounds…” None of this was successfully challenged.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has demonstrated a positive attitude to parenting these children and is sensitive to their needs. The Department of Health and Human Services Report contained an investigation, amongst others, dated 21 July, 2014 which said:
“Concerns were raised for the safety and wellbeing of [X] as it is reported he had been going home alone after school every day and during school holidays whilst his brothers attend after school and holiday programs. Follow up occurred with the school. The school confirmed that the mother is supportive, engages well with the school and is appreciative of the support the school have shown. There are no concerns for the children’s presentation. The school will raise the concerns with the mother, discuss that it is not appropriate and discuss a safety plan with the mother if [X] is going home by himself. Closed at intake.”
(j)any family violence involving the child or a member of the child's family;
These children and particularly the oldest [X], must have heard and/or seen the family violence that was inflicted on the mother. This is a factor that may affect their views of their grandmother. Family violence does not seem to be a future issue in their lives between the mother and the paternal grandmother save for any potential psychological damage that may be visited on the children should the paternal grandmother have time with the children and continue to be critical of the mother’s role in the children’s lives.
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
Whilst there is no allegation in relation to the paternal grandmother the history of family violence inflicted on the children and the mother by the father is relevant to this case, as evidenced in the following reports. The Applicant grandmother admitted on day 2 of the Trial he… “was violent, angry; not a nice man.”
From the S.11F Report of Family Consultant Ms B dated 6th October, 2017.
“Family Violence”
· The mother reported that she was subject to significant family violence by the father over the course of their relationship and following their separation. The mother reported that this included significant physical, emotional and sexual violence. The mother described that the father physically assaulted her on many occasions, to include having attempted to strangle her / hit her and thrown buckets of cold water over her as examples. The mother described that the father sexually assaulted her by raping her during the relationship. The mother described that she obtained an intervention order against the father in the context of separating from him as he tracked her movements and smashed windows of a property she intended to move into with the children. The mother reported that an “indefinite” intervention order was granted to protect her and the children from the father.
· The mother reports that the father’s contact with the children following their separation was initially supervised as a result of the risk of family violence, progressing to a period of suspension due to ongoing concerns in relation to continuation of family violence, and then was agreed between the parents to occur ultimately unsupervised each alternate weekend. The mother described the family law proceedings to have been highly stressful time due to her ongoing contact with the father, having been significantly traumatised as a victim of family violence.”
From Department of Health and Human Services Report, dated 24 February 2017:
“During the investigation [on 17 January 2011] there were clear disclosures made by the children regarding witnessing family violence against their mother both verbal and physical on more than one occasion. There were concern for [X] who gets choked and or physically assaulted by Mr P [the father] because he is slow getting ready for school there is a clear case to substantiate physical and emotional abuse by Mr P [the father] towards the children on the grounds of C & E and additional concern if Mr P [the father] should have unsupervised access with his children until he has been assessed regards (sic) his psychological stability.
Case closed with the mother demonstrating that she is a protective person by taking appropriate action to leave a violent relationship and seek support for her children and herself.
Concerns were raised [on 15 August 2012] in relation to [Y] after he disclosed that his father strangles him. It was assessed that the disclosure was in relation to historical events that had been investigated by child protection following the report on the 17/1/11. During the past investigation concerns were substantiated with the father recorded as Person Responsible for Causing Harm after investigation obtained a clear disclosure by children that [Y] gets choked and or physically assaulted by Mr P [the father] because he is slow getting ready for school. Case closed with the mother being assessed as protective and had accessing (sic) appropriate services for herself and her children.”
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I propose to make Orders in relation to these children, the mother and paternal grandmother that are least likely to lead to further proceedings.
(m)any other fact or circumstance that the court thinks is relevant.
“The mother indicated at interview she regards the children have “been through enough” and does not want them to be subjected to unnecessary interviews. All children sought assistance through victims of crime after their father’s death. The mother reported in her view [X] was the closest to his father and has struggled with events surrounding his father’s death. She says he is more settled and is seeking support from a psychologist. She reported [Y] is progressing well and [Z] is currently consulting a psychologist to manage anxiety. She says in conjunction with events surrounding his father’s death [Z] is diagnosed with ADHD and he too has experienced the previous year as difficult. He is on medication and under the care of Paediatrician.” (Third page of report of Family Consultant D, dated 27th July, 2017).
Another fact of significance in this most unusual case is that the mother is very mindful of the behaviour of the paternal grandmother in supporting her son in his years of litigation with the mother. In my view the evidence discloses that this has destroyed any trust and working relationship they may have previously enjoyed.
Equal Shared Parental Responsibility
I note that the Applicant did not seek an order pursuant to s.61D of the Act. To remove any doubt, I will make an Order for the mother, the sole surviving parent, to have sole parental responsibility for these children.
S.65DAA Factor
This also has no relevance to this case given that this section refers to equal time or substantial and significant time with each parent. This is a dispute between a paternal grandmother and a parent.
Conclusion
As I noted earlier, the first s.11F report on the third page under the heading of ‘future directions’ said:
“The mother is the primary caregiver and is faced with the ongoing responsibility of caring for the children; as such any Orders should be cognisant of supporting her parenting capacity and not diminish it in any way. The grandmother whilst known to the children has not featured as a significant caregiver and has come in and out of their lives. Whilst there may be a number of reasons for this it appears the grandmother’s views are somewhat tied in with previous reports, concerns and views of the father, and much of the time she spent with the children was dependent upon her relationship with him at any given time. The father’s tragic death seems to have added another layer of complexity and loss for this family at this point in time.
The grandmother does not appear to have an everyday, easy and close grandparent relationship with the children. Given the ages of the children, their current family circumstances and the diminished relationship between her and the mother it is unlikely the type of grandparent relationship she is seeking will be possible in the near future.”
Although the author of this report was not cross-examined, I found these comments to be accurate and helpful after reading the parties’ material and observing and hearing from the mother, paternal grandmother and Family Consultant Ms B.
The Family Consultant raises significant issues in relation to the importance of the mother in the children’s lives and the need not to undermine her role. I note the second s.11F report on the third page also says:
“The children have all expressed a strong wish not to spend time with the Paternal Grandmother. Given the extent of the children’s adverse life experiences today, it would not be in their best interests to disregard their views and for time to occur against their wishes. It is of utmost importance that the children are supported to regain emotional safety, security and stability within the context of their immediate family system to minimise the likelihood of future adverse emotional / psychological health and wellbeing. It is not considered that any Court ordered time between the children and the paternal grandmother would benefit the children at this point in their lives, and may serve to cause the children further emotional distress. The mother is also likely to be adversely impacted upon any ongoing litigation, which could impact upon her parenting capacity, particularly her emotional wellbeing and availability to the children.
It appears that the mother would be able and willing to support the children developing a relationship with the paternal grandmother into the future, were this to be in line with their wishes. It may be of benefit to the children for the paternal grandmother to be supported to maintain contact with the children through providing letters and gifts on special occasions.”
When the grandmother was cross-examining the Family Consultant she asked… “Are you concerned that if the children were in my presence, they would not be safe?---I guess safe in the sense of their emotional safety is what I had referred to in my report. And I think from meeting the children, they express quite a strong view not to spend time in your presence. So that would be to disregard their views, and I think that would impact on their emotional wellbeing. So I wouldn’t say unsafe – that’s quite a large kind of statement, but I don’t think it would in their best interests. I don’t think it would be best for them.”
I was further concerned about the poor relationship between the mother and the paternal grandmother. Currently they have no effective communication and or contact. This is not helped by the paternal grandmother’s criticism of the mother and her negative view of her parenting skills.
I am also mindful of the mother’s comment to the second report writer that ongoing time with the children by the paternal grandmother would cause her distress and prevent her… “from emotionally stabilising in the context of a complex family history.”
I asked the Family Consultant the following question…
“Could you do me the favour of going to page 3, under the heading “Future Directions” – I think it’s page 4, actually – sorry – under the heading “Future Directions”. You say this on the fourth point down. Ms Hammond, you might want to listen to this. You say this. This is one, two, three lines in:
It is of utmost importance that the children are supported to regain emotional safety, security and stability within the context of their immediate family system, to minimise the likelihood of future adverse emotional, psychological health and wellbeing.
Now there, Ms B used the expression, “It is” – well, words:
It is of the utmost importance that the children are supported to regain emotional safety, security and stability.
Is the word “regain” – when you saw them, were they in some sort of emotional transition and that they were troubled children? Why did you use the word “regained”? In other words, I’m trying to put that in context, if you can assist me?---I think in particular with the eldest child, [X], I was concerned at the level of knowledge that [X] had around some very adult themes and issues that wouldn’t be appropriate for a child of his age - - -
For example?---For example, his comments towards the end of the interview – I remember, to this day, he said, “The world’s not a good place. Murder, rape and thieving goes on”.
Yes, that was a bit of a shock to me, I’ve got to say, for a child so young?---So I guess – so a child of [X]’s age, at 13, which he was at the time, you would not expect that kind of comment to be made in a, you know, normal – you know, similar child of that age. So for me, there was – there was a sense that [X] has been exposed to a lot of trauma in his life as a result of a number of difficult circumstances and incidents. And, essentially, he – my sense was that he’s going to need support and time to recover from those experiences of trauma.
He’s seen a lot of negative things, and it’s impacted on him in an adverse way?---Yes, your Honour.”
I also note that the mother said that… “both she and the children…” would like to be able… “to move on” with their lives and ongoing contact with the paternal grandmother would prevent this from happening.
When one considers the most unfortunate and unusual facts of this tragic case and the relevant law, I am satisfied on balance that the grandmother’s proposals are not in the children’s best interests. It is my judgment that there would be greater disadvantages for the children than advantages in currently having frequent and regular time with the paternal grandmother. I note the Independent Children’s Lawyer opposed an order providing children time with the grandmother.
However, I will not prevent communication between the children and the paternal grandmother. This will maintain an ongoing opportunity for the children, should they choose to do so, to seek out their grandmother in the future and have some contact.
I also accept the writer’s opinion in the second report where she says that… “The mother would be able and willing to support the children developing a relationship with the paternal grandmother into the future, were this to be in line with their wishes”.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Date: 27 September 2018
Key Legal Topics
Areas of Law
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Family Law
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