Horton & Reid
[2024] FedCFamC2F 1705
•2 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Horton & Reid [2024] FedCFamC2F 1705
File number(s): ADC 1480 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 2 December 2024 Catchwords: FAMILY LAW – PARENTING – Final hearing – Three children aged almost 15, 12 and 10 years – Where the applicant is the maternal grandmother and the first respondent is the mother – Where the second respondent father has not engaged in the proceedings to date – Where the applicant maternal grandmother seeks time spending with the children – Applicant maternal grandmother alleges the children are at risk in the first respondent mother’s care – Where the first respondent mother opposes the application – Views of the children – Consideration of best interests – Where the Court considers that time spending with the applicant maternal grandmother is not in the best interests of the children – Orders for cards and gifts. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 64B, 64C, 65D
Family Law Amendment Act 2024 (Cth)
Cases cited: Cao & Cao (2018) FLC 93-880
Fitzwater v Fitzwater [2019] FamCAFC 251
Fox & Percy (2003) 214 CLR 118
Housing Commission of New South Wales v Pastoral Company Pty Ltd [1983] 3 NSWLR 378
Illes & Nelisson [2022] FedCFamC1A 97
Keane & Keane [2021] FamCAFC 1
Kozma & Bielen [2022] FedCFamC2F 1250
M v M (1988) 166 CLR 69
Momcilovic v The Queen (2011) 245 CLR 1
Division: Division 2 Family Law Number of paragraphs: 133 Date of hearing: 20, 21, 22 November 2024 Place: Adelaide Counsel for the Applicant: Self-represented Counsel for the Respondent: C. Harris Solicitor for the Respondent: Phoenix Family Law Solicitor for the Independent Children's Lawyer: S. Lewis-Dermody ORDERS
ADC 1480 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HORTON
Applicant
AND: MS REID
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
2 DECEMBER 2024
THE COURT ORDERS BY CONSENT THAT:
1.The mother have sole parental responsibility for the children X born in 2009, Y born in 2012 and Z, born in 2013 (‘the children’).
2.The children live with the mother.
AND THE COURT FURTHER ORDERS THAT:
3.All previous parenting orders be discharged.
4.The children spend time with the father as agreed between the mother and father in writing.
5.The children spend time with the maternal grandmother on times and dates as agreed between the mother and the maternal grandmother in writing.
6.The time referred to in paragraph 5 herein shall be subject to the children’s wishes and with the mother to facilitate such time if sought by any or all of the children to her.
7.The maternal grandmother is at liberty to send the children cards, letters and gift vouchers of equal value up to four (4) times each year, to be posted to the mother’s postal address being PO Box …, Suburb B in the State of South Australia and the mother is to ensure that such items are passed onto the children.
8.The maternal grandmother is restrained and an injunction is hereby granted restraining her from raising, evidencing, conversing with or discussing these Court proceedings and any documents arising therefrom and the topics of family violence, coercive control or alienation with any or all of the children during any time spending or in compliance with paragraph 7 herein.
9.The mother do keep the maternal grandmother updated as to any change in the postal address referred to in paragraph 7 herein.
10.The maternal grandmother and the mother be restrained and injunctions are hereby granted restraining each of them from:
(a)Posting on, using or engaging on any social media platform, regarding each of the parties, the children, their relationships and any legal proceedings; and
(b)Encouraging any third party to refer to each of the parties and the children and any legal proceedings involving the parties and the children by the use of social media.
11.Within twenty-eight (28) days from the date of these Orders, the Independent Children’s Lawyer shall meet with the children to explain these Orders and to provide them with a copy of the maternal grandmother’s email address.
12.The appointment of the Independent Children’s Lawyer be discharged following her meeting with the children as provided for in paragraph 11 herein.
13.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
The proceedings concern competing applications between the Applicant Maternal Grandmother, Ms Horton (‘the maternal grandmother’), and the First Respondent Mother, Ms Reid (‘the mother’), in relation to the mother’s children, namely X born in 2009, Y born in 2012 and Z born in 2013 (collectively referred to as ‘the children’).
The primary issue in dispute is whether the maternal grandmother should spend time with the children, subject to their wishes or at all.[1]
[1] No issue was taken as to the standing of the maternal grandmother to bring the application; section 64C of the Family Law Act 1975 (Cth).
The children are now aged nearly 15, 12 and 11 years respectively. The children have spent no time nor communicated with the maternal grandmother since April 2020.
The Second Respondent Father of the children is Mr C (‘the father’). The Court is satisfied that the father is on notice of these proceedings and has been given adequate opportunity to appear before the Court.[2] For reasons that are not known, the father has elected not to participate in these proceedings.
[2] See the Affidavits of Service filed on behalf of the maternal grandmother filed 20 July 2022 and 8 August 2022 respectively, and the Affidavit of Service filed on behalf of the mother on 21 July 2022.
The parties’ competing applications proceeded to Trial on 20, 21 and 22 November 2024. These are the Court’s reasons arising from the Trial.
DOCUMENTS RELIED UPON AT TRIAL
The maternal grandmother filed an Outline of Case Document on 13 November 2024 which sets out at Part B that she relies upon the following documents:[3]
(1)Maternal Grandmother’s Orders Sought filed 2 February 2023;
(2)Trial Affidavit of Ms Horton filed 29 October 2024; and
(3)Notice of Child Abuse, Family Violence or Risk filed 6 April 2022.
[3] Some documents sought to be relied upon were not allowed. For example, unsworn and unsigned “character references” from the maternal grandmother’s family members.
In addition, the maternal grandmother tendered and relied upon Exhibits A1 to A3 inclusive.
The mother filed Outline of Case Document on 18 November 2024 which sets out that she relies upon the following documents:
(1)Response to Initiating Application filed 14 June 2022;
(2)Trial Affidavit of Ms Reid filed 9 October 2024;
(3)Tender Bundle filed 9 October 2024;[4]
(4)Family Assessment Report of Family Consultant, Ms D, dated 13 December 2023; and
(5)Affidavit of Service filed 21 July 2022.
[4] Save and except for “Exhibit MSR-9” which was struck out at Trial.
The Independent Children’s Lawyer filed an Outline of Case Document on 14 November 2024 which sets out that she relies upon the following documents:
(1)Family Assessment Report of Family Consultant, Ms D, dated 13 December 2023; and
(2)Written Closing Submissions tendered as an aide memoir on 22 November 2024.
In addition, the Independent Children’s Lawyer tendered and relied upon Exhibits I1 to I5 inclusive.
ORDERS SOUGHT
The Applicant Maternal Grandmother, Ms Horton
In Draft Consent Orders incorrectly filed on the maternal grandmother’s behalf as an ‘Amended Application for Final Orders’ on 2 February 2023, she sought final orders in the following terms:
1. That the children [X], born [in] 2009, and [Y], born [in] 2012, and [Z], born [in] 2013 (the children) live with the First Respondent;
2. That the Children spend time with the Applicant:
2.1.One Wednesday afternoon per fortnight from the end of school to 8:00pm;
2.2.On the alternate week from the end of school on Friday to midday the following Saturday;
2.3.At all other times when the First Respondent is working and the children are not attending school.
3. The First Respondent shall:
(a)notify the children’s schools that the Applicant is at liberty to obtain school newsletters, school reports, school notices, and school photographs;
(b)do all things necessary to authorise the provision of this information by the children’s school to the Applicant, with any associated cost to be paid by the Applicant;
(c)notify the Applicant of events at the children’s schools to which grandparents are usually invited including but not limited to school sports carnivals, concerts and assemblies;
(d)facilitate telephone and online communication between the Applicant and the children on any day until 8pm.
4. The First Respondent shall be restrained and an injunction be granted restraining her from:
(a)abusing, denigrating or threatening the Applicant or allowing any other person to do so;
(b)physically disciplining the children or allowing any other person to do so;
5. In the event of any future disputes, the parties attend community-based mediation in the first instance;
6. Any other orders this Honourable Court deems fit.
The First Respondent Mother, Ms Reid
In her Response to Final Orders filed 14 June 2022, the mother seeks final orders in the following terms:
1. That the children, [X] Born [in] 2009, [Y], born [in] 2012 and [Z], born [in] 2013 do live with the Mother.
2. That the said children spend time with the Father as agreed between the Mother and the Father in writing.
3. That the Maternal Grandmother be at liberty to to (sic) provide the said children with gifts and cards, on the following conditions: (a) the cards and gifts are to be posted to the Mother’s place of residence; and (b) the mother is to be satisfied as to the appropriateness of the gifts and the contents of the cards; and (c) the gifts are to be limited to vouchers only and of equal value for each of the children.
4. That the Maternal Grandmother do pay the Mother’s costs.
5. Such further or other Orders as deemed appropriate by this Honourable Court.
ISSUES IN DISPUTE AT TRIAL
The issues for determination at Trial are summarised as follows:
(1)Whether there should be any time-spending between the maternal grandmother and the children; and
(2)Whether any conditions should attach thereto.
The maternal grandmother did not seek orders for parental responsibility nor live with. Those orders were the subject of a consent minute agreed to by the parties and the Independent Children’s Lawyer.[5]
[5] See Exhibit I5.
BACKGROUND
The following background is not controversial.
The maternal grandmother is aged 60 years and has six children, one of whom is the mother herein. She is unemployed, does not hold a driver’s license and receives assistance from a “Job Coach.”
The mother is aged 33 years and has five children. She works fulltime as a supervisor and is now in a relationship with Mr E.
In addition to the children the subject of these proceedings, the mother has two younger children from her relationship with Mr F. The mother and Mr F lived together for about five years before finally separating in early 2023. They have two children together, namely G and H, now aged five and three years respectively.
I accept the mother’s evidence that she and Mr F have an amicable co-parenting relationship, and that G and H live between them by agreement. I also accept the mother’s evidence that a contributing factor to the demise of her relationship with Mr F was the pressure of these proceedings and the allegations made by the maternal grandmother in relation to Mr F.[6]
[6] See the Trial Affidavit of Ms Reid filed 9 October 2024 at paragraph 55.
The father is aged 35 years. His personal circumstances are not known. He spends no time with the children, having last spent time with them in 2018.[7]
[7] See the Trial Affidavit of Ms Reid filed 9 October 2024 at paragraph 27.
In friendlier times, the maternal grandmother and the mother have lived together for varying periods. In particular, the mother lived with the father and maternal grandmother for 10 months after the birth of X and again for several years after the mother separated from the father. It is the maternal grandmother’s evidence that she provided support to the mother and the grandchildren during these periods. The mother’s evidence is that she considered the maternal grandmother’s involvement with the children to be intrusive but that she tolerated the maternal grandmother because of concerns that the maternal grandmother would be otherwise homeless.
In early 2018, the mother formed a relationship with Mr F.
The mother’s evidence is that her already tenuous relationship with the maternal grandmother deteriorated significantly upon commencement of her relationship with Mr F as the maternal grandmother was required to find alternate accommodation.
In late 2018, the maternal grandmother made a notification to the Department for Child Protection (‘the Department’) that Mr F was hurting the children, that he was controlling of the mother and the children, and that Mr F had tormented X by calling him “a girl” and objecting to X’s use of a “night light.”[8]
[8] See Exhibit I4.
In late 2018, the maternal grandmother made a notification to the Department alleging that Mr F was “grooming [Z] as he prefers her and is not physically violent towards her.” Further, that Mr F provides drinks to X which “taste like water” but makes X sick.[9]
[9] See Exhibit I4.
In early 2019, the maternal grandmother made a notification to the Department alleging that Mr F was being physically and emotionally abusive towards the children and had caused injury to X including carpet burn, that Mr F had given X a “nipple cripple” and that the children’s emotional presentations had deteriorated since Mr F had lived with the family.[10]
[10] See Exhibit I4.
Upon invitation from the maternal grandmother, the parties attended mediation in August 2019 and reached a Heads of Agreement (‘the Agreement’).[11] The Agreement allowed for time spending between the maternal grandmother and the children each Wednesday after school to 5.30pm, and at other times as agreed. The Agreement was subject to certain conditions including that the maternal grandmother not provide the children with food or any liquid other than water without the consent of the mother. The Agreement was never made into a Court Order.
[11] See the Trial Affidavit of Ms Reid filed 9 October 2024 at “Exhibit MSR-I”.
There is no dispute that the parties did not adhere to the strict terms of the Agreement.
On her own admission, the maternal grandmother breached the Agreement on two occasions and provided the children with snacks without the mother’s consent. The mother allowed Mr F to collect the children from the maternal grandmother’s home, resulting in the maternal grandmother requesting welfare checks on the children at the mother’s home.
There is no dispute that in this period the relationship between the mother and the maternal grandmother became strained even further due to:
(a)The maternal grandmother providing the children with mobile telephones, against the mother’s wishes;
(b)The maternal grandmother walking past the children’s schools during recess and lunch breaks and calling out to the children. The mother saw this as an attempt by the maternal grandmother to have informal time with the children. The maternal grandmother denied this in her evidence claiming that she was walking to the shops; and
(c)Further police attendances at the mother’s home for welfare checks instigated by the maternal grandmother.
In August and December 2019 respectively, the parties attended further mediation and reached agreement.
In May 2020, the mother ceased the time spending arrangements. The maternal grandmother agreed in her evidence that the visits ceased because she was told that the children did not wish to see her.
In December 2020, the parties and the children attended a Child Inclusive Family Dispute Resolution Conference. An experienced Child Expert, Dr J, interviewed the children. An agreement reached was for the maternal grandmother to deliver gifts for the children via her solicitor.
In February 2021, the parties and children attended a further Child Inclusive Family Dispute Resolution Conference. Dr J again interviewed the children. An agreement was reached for the maternal grandmother to provide gift cards of equal value to the children. The maternal grandmother gave evidence that she last sent a gift card in late 2022 or early 2023.
In September 2021, the maternal grandmother and the mother attended at a Family Dispute Resolution Conference at N Services which had been initiated by the maternal grandmother. The parties failed to reach an agreement.
On 6 April 2022, the maternal grandmother issued these proceedings by way of an Initiating Application for Final Orders.
In early 2022, the maternal grandmother made a notification to the Department alleging that Mr F drinks alcohol to excess and becomes violent when drunk.[12]
[12] See Exhibit I4
On 2 November 2022, a Child Impact Report prepared by Ms K, Family Consultant, was released by the Court.
On 13 December 2023, a Family Assessment Report prepared by Ms D, Family Consultant, was released by the Court. Family Consultant Ms D recommended that the children spend time with the maternal grandmother subject to their wishes and with the maternal grandmother at liberty to forward cards, gifts and letters to the children.[13]
[13] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraphs 53 and 54.
In August 2024, the parties attended a Judicial Settlement Conference. No agreement was reached.
EVIDENCE
All parties bear the onus of establishing their respective cases on the balance of probabilities.[14] In these reasons, findings of fact are made on the balance of probabilities based on the demeanour and evidence of each of the parties.[15]
[14] Evidence Act 1995 (Cth) s 140.
[15] Evidence Act 1995 (Cth) s 140.
I have read all of the documents upon which the parties have relied, and the exhibits tendered during the hearing. I am not required to refer to every piece of evidence nor refer to each argument or submission relied upon by the parties.[16] A written Judgment is not a transcript of the Trial. I have endeavoured to reach my factual conclusions based on contemporary materials, objectively established facts and on the apparent logic of events.[17]
[16] Housing Commission of New South Wales v Pastoral Company Pty Ltd [1983] 3 NSWLR 378, 385-386.
[17] Fox & Percy (2003) 214 CLR 118, [31].
The Maternal Grandmother, Ms Horton
The maternal grandmother gave evidence at Trial. She was courteous to the Court and well prepared.
It is the maternal grandmother’s case that she observed a change in the children’s behaviour in 2018, around the time that the mother commenced a relationship with Mr F. These changes included X having a “clenched jaw”, behaviour described as “relief sighing” and shaky voices. The maternal grandmother did not consider that there might be any other explanation for the children’s alleged behaviour changes observed by her in 2018, other than her view that they were caused by exposure to family violence allegedly perpetrated by Mr F. It is her view that Y’s “neurodiversity and ADHD diagnosis” are attributed to the alleged trauma inflicted by Mr F.
It was her unwavering view that the children were at risk in the mother’s care and that her “alienation” from the children was as a direct result of their fear of Mr F who allegedly perpetrated family violence.[18]
[18] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 19.
The maternal grandmother acknowledged that interventions by the Department and the South Australian Police did not identify any issues of concern, describing her allegations in oral evidence as “the unpopular truth.” The maternal grandmother stated that she could “see coercive control at play” describing an occasion when Mr F had indicated that they would all go to bed early and another occasion when Mr F had “made” X eat vegetables that he did not like.[19]
[19] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 23.
The maternal grandmother described discussing her concerns with her then solicitor who had informed her to stop reporting allegations to the Department.[20] On telephoning the police, the maternal grandmother was told to contact the Child Abuse Report Line. Initially, the maternal grandmother suggested that she had made the notifications to the Department because she is a “mandatory reporter.” Later in her evidence, the maternal grandmother agreed that she had not undertaken any courses in child safety at the time the notifications were made in 2018 and 2019 and that she was not a mandated notifier at all.
[20] The maternal grandmother gave evidence that she has had four different solicitors act for her since 2018/19 before self-representing in 2024.
The maternal grandmother described wanting to hold the mother and Mr F “accountable” for breaching the Agreement. She described herself as “a stickler for the rules.” Whilst acknowledging that having the police attend at the children’s home may be traumatising for them, she saw nothing wrong with doing this because, in her view, the children were being abused and she was “their voice.” She denied that the police had told her to stop making reports but described speaking with one police officer who was very annoyed at her about another welfare check, describing afterwards that the police officer had told her the children were “fine.” She described receiving mixed messages from the various police officers that she spoke with to report the breaches of the Agreement. It is her view that she has not been “believed or heard by many in the system.”
The maternal grandmother agreed that she had signed a Notice of Child Abuse, Family Violence or Risk filed on her behalf on 6 April 2022 which contained an allegation in relation to Mr F drinking alcohol to excess which she conceded had never actually seen. Despite agreeing that the content is not true, the maternal grandmother agreed that she had signed the said Notice, blaming her then solicitor for doing so.
She described doing “some research” believing that the children appeared “traumatised”. The maternal grandmother acknowledged that the Department had investigated her concerns and ultimately closed their investigation.[21]
[21] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 24.
The maternal grandmother stated that she had requested a welfare check from the police each time the mother had broken the Agreement. This occurred on about five different occasions and on each occasion the police had informed her that “everything was fine.”[22] It is her firm view that the children want to spend time with her, but she considered that the children might be “too scared to say otherwise when DV is at play.” [23]
[22] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 26.
[23] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 32.
The maternal grandmother has been unemployed since at least 2020. She described spending a lot of time on the internet in the past six years researching topics of family violence. The maternal grandmother agreed that she would post daily (or more) on her social media page, sharing with other users, posts about alienation, trauma, coercive control, family violence and anything that “resonates” with her. The maternal grandmother agreed that she was connected on her page with about 30 different interest groups, all primarily to do with alienation and family violence. She described herself as now being an “advocate for victims.”
The maternal grandmother considered that she is “very familiar in the dynamics of family violence” explaining that she had spent the “last five years researching some of the things that did not make sense to [her].”[24] In her view, the children were refusing to spend time with her because they had been influenced by others to say that in order to “stay safe.” She did not accept the children’s stated wishes not to see her, believing that the children had been “coerced” to say such things. The maternal grandmother was able to express this opinion because she understood the dynamics of “coercive control and DV”.[25]
[24] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 32.
[25] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 35.
The maternal grandmother gave evidence that she had researched the children’s “symptoms” online and by speaking with her social worker, Ms L, who had allegedly confirmed the maternal grandmother’s assessment of the children’s “symptoms” in the absence of ever having met the children herself.
On several occasions in her evidence, the maternal grandmother confirmed that in her opinion the mother is “a good mum.” Further, she acknowledged that the children had stated at interview that Mr F was a “good stepdad” and that he had not abused them.
The maternal grandmother acknowledged that the mother and Mr F had separated but still considered that the subject children are at risk of abuse because Mr F is “still around” assisting to co-parent the younger children, G and H. The maternal grandmother considered it unlikely that the allegations made by her and the stress of these proceedings had contributed to the final separation between the mother and Mr F. Rather, the maternal grandmother considered that she had broken “the cycle of abuse” and that it was better for “her grandchildren” because Mr F had moved out. The maternal grandmother considered that her actions had saved the family from a “tragedy.” This evidence ignored the fact that her two youngest grandchildren, G and H, now live without their father and mother as an intact family unit. At the age of five and three years respectively, they are now required to move between two homes in a shared care arrangement.
The maternal grandmother confirmed in her evidence that she was not currently seeking time with G and H, acknowledging that she has no relationship with them and has never even met them. The maternal grandmother complained that she had not been invited to the children’s baby showers or “gender reveals.” Despite this, the maternal grandmother stated that she would consider bringing an application to spend time with G and H in the future even if she is ultimately unsuccessful in securing orders to spend time with X, Y and Z. The maternal grandmother agreed that if such an application was brought, it would impact on the mother describing herself as “damned if I do and damned if I don’t.” She does not consider that G and H are at risk in Mr F’s care because “they are his biological children.”
The maternal grandmother agreed that there was nothing that the mother could say or do which would change her view. She agreed that her personal views did not align with the Department and police enquiries, nor with the children’s stated views at numerous interviews.
It is the maternal grandmother’s hope that the mother will “soften and come back to us” acknowledging that the mother has not accepted invitations to Christmas gatherings and family events.
If successful in securing orders for time spending at Trial, the maternal grandmother was not sure what she would do if the children did not comply given their stated wishes not to see her. One option might be to call the police.
The Mother, Ms Reid
The mother gave evidence at Trial. She presented as a forthright and determined person.
The mother maintained that her relationship with Mr F had broken down following persistent allegations made by the maternal grandmother. She described having a positive co-parenting relationship with Mr F post-separation despite her mother’s interference in their personal affairs.
The mother observed that she had not heard from the maternal grandmother when G and H were born. Nor had the maternal grandmother sought any information about them despite also being her grandchildren.
The mother was adamant, in her view, that the children wanted nothing to do with the maternal grandmother. Should the children ever express a wish to see the maternal grandmother, the mother said she would arrange it. She described the children as being “bored” during earlier visits. Now, the children socialise and have other plans.
The mother denied that Mr F had broken a hand punching a wall. Rather, this had occurred moving furniture.
The mother denied that Mr F had ever been violent to her. She said that the only contact she had with the police was to report the maternal grandmother threatening to take the children
The mother agreed that she had given away or sold “bags” of toys given to the children by the maternal grandmother because the items were age inappropriate.
The mother said that she was unaware of X having bruising from a “nipple cripple” and denied witnessing Mr F throw X toward the ceiling.
The mother denied instructing X and Y to not talk about Mr F to the maternal grandmother.
The mother admitted sending the maternal grandmother angry messages when she had threatened to remove the children from her care. She did not deny calling her mother “psychotic” or a “demented old lady.” She said that X had expressed embarrassment by the presence of his grandmother at the school fence which the mother thought had occurred about “20 times.”
The mother recalled six separate occasions when the police at attended at her home to undertake welfare checks at the request of the maternal grandmother. She described her embarrassment at having up to four police officers enter her home to check on the children with some of the visits occurring in daylight hours, visible to her neighbours in the street. The mother described the maternal grandmother’s behaviour as “relentless harassment” and at one point, had considered obtaining an Intervention Order against her own mother.
The mother stated that the children’s decision not to see their maternal grandmother was their own. The children were said to have a close relationship with their paternal family including having holidays away.
In response to a question by the Independent Children’s Lawyer, the mother agreed that she could think of nothing positive to say about her mother. She considered that her complaints about the grandmother’s upbringing of herself and her five siblings was justified based on lived experience which she did not want her own children exposed to. Her complaints encompassed topics such as hygiene and allowing the children to consume inappropriate foods, describing the grandmother’s coffee table as “covered in lollies.”
The mother agreed that at one point she, Mr F and the children had moved to Suburb M, a distance some length away from the maternal grandmother to put a physical barrier between their respective homes.
The mother considered that her mother was jealous of Mr F moving in with her and the children and that the problems started from there.
The mother described Y as becoming overwhelmed when stressed. Y has been referred for art therapy and the mother is still saving up enough money to have her assessed for Autism.
If the children expressed a wish to speak with the maternal grandmother, the mother said that she would contact her via their respective mobile telephones or via messenger. She stated that she would continue to monitor the content of any cards for inappropriate content which to date had not been problematic because the cards simply identified the sender and the recipient. The last time the children received a card from their “Grandma” was about two years prior.
The mother stated that if orders were made for face-to-face time, she would try her best to have the children comply but that she would “not be forcing the kids into the car.” The mother described X as being very vocal against seeing the maternal grandmother. If X and Y did not attend, then the mother considered that Z would not go on her own.
The mother agreed that her relationship with her mother was “unsalvageable” and stated that she had no hope for it ever being repaired.
The mother described now being in a settled relationship with Mr E. Mr E is a tradesperson. He is the father of three children. They commenced cohabitation about one month ago. Mr E was present accompanying the mother during the currency of the Trial but did not give evidence.
Family Consultant, Ms D
Regulation 7 Family Consultant, Ms D prepared a Family Assessment Report dated 13 December 2023 (‘the Family Report’). Family Consultant Ms D gave evidence and was cross-examined at Trial.[26]
[26] The parties and the three children had been interviewed in 2022 by Family Consultant Ms K for a Child Impact Report dated 2 November 2022. The report of Family Consultant Ms K was not considered by the Court or accepted into evidence due to the objection made by the maternal grandmother and Family Consultant Ms K was not made available to give evidence at Trial.
Family Consultant Ms D interviewed the parties and the three children. The children were collectively interviewed after they expressed a preference to engage with Family Consultant Ms D together. No observed interaction with the maternal grandmother was undertaken following a review of the documents.[27] Conversely, the children were observed to have a comfortable and positive relationship with their mother.
[27] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at page 3.
At interview, each of the children spoke clearly and responded to questions asked of them in a manner not suggestive of influence.[28] The children were aware that they were to be interviewed to express their views, specifically as to the question of spending time with the maternal grandmother (whom they referred to as “Grandma”).
[28] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 13.
X described previous time spending with his Grandma as “pretty boring.” X and Z agreed that their Grandma had bought them things including all three of them, a telephone. The children were unable to recall why or when they had stopped spending time with the maternal grandmother. X considered that it may have been because “…she thought we were being abused… she kept calling the cops.” X stated that he had “no idea” why the maternal grandmother might think that he and his siblings were being abused, speculating that maybe the maternal grandmother “did not like [Mr F] or something.” All three children firmly denied being hurt by Mr F with X stating that he had been “a good stepdad.” X and Y specifically recalled police attending at their home on somewhere between three and seven separate occasions.[29]
[29] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 40.
The children were firm that they did not wish to spend time with the maternal grandmother and if they changed their minds, were confident that their mother would facilitate this happening.[30] The children’s opposition to time spending with their maternal grandmother was confirmed in Family Consultant Ms D’s oral evidence. It was her view that the children’s stated opposition to time spending over a long period of time should be respected, particularly given their ages.
[30] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 42.
Family Consultant Ms D was of the view that there was little evidence to support the maternal grandmother’s views that the children were at risk in the care of the mother. Rather, concerns were raised about the maternal grandmother’s “fixed views” that the children were victims of abuse. The maternal grandmother’s refusal to accept the children’s stated views raised concern about the potential negative impact on the children’s wellbeing should they be directed to spend time contrary to their stated wishes. Specifically, the maternal grandmother’s fixed views about their lived experiences and a dismissal of their views about their relationship with her, was said to have the potential to harm the children’s emotional and psychological wellbeing. [31]The maternal grandmother stated to Family Consultant Ms D that “(my) fixed narrative is the unpopular truth.”
[31] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 51.
In her oral evidence, Family Consultant Ms D explained that she did not have confidence in the maternal grandmother’s ability to restrain herself from expressing her views about the mother, Mr F and other co-related topics if given the opportunity to do so. I agree with Family Consultant Ms D’s evidence on this topic.
Family Consultant Ms D did not support the reunification of the children with the maternal grandmother nor any orders for specific time spending. She considered that a continuation of an arrangement for cards, gifts and letters would be appropriate and an order for the mother to facilitate time should the children request it.[32] Family Consultant Ms D did not support the children attending separately if Z was to be considered differently given her younger age and stage of development. She considered that separating the children could lead to stress and worry for the children.
[32] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 52.
As to the relationship between the maternal grandmother and the mother, Family Consultant Ms D agreed that the parties did not trust one another and were unable to communicate.
Family Consultant Ms D was confident that if the children expressed a wish sometime in the future to see the maternal grandmother, then the mother would facilitate it. The children will have the maternal grandmother’s email address, and she is on a public profile on social media and therefore easy to find should the children ultimately decide to reach out to her in the future.
Family Consultant Ms D described the mother as emotional and worn down by the litigation. If time was ordered Family Consultant Ms D considered that there would be a likely increase in her stress levels which could in turn impact on the mother’s parenting. Any orders for time would see the mother trying to “force” the children to see their grandmother over their stated views and this in turn could undermine the children’s relationship with their mother.
LEGAL PRINCIPLES
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (‘the Act’). The Family Law Amendment Act 2024 (Cth) (‘the Amendment Act’) came into effect on 6 May 2024 and made substantive amendments to the previous Act which apply to these proceedings. In determining parenting matters under Part VII of the Act the Court must still regard the best interests of a child as the paramount consideration.[33]
[33] Family Law Act 1975 (Cth) s 60CA.
The objects and principles of Part VII are set out at section 60B:
60B Objects of Part
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Because sections 60CA and 60B refer to the best interests of the child, the Court must consider section 60CC which specifies how the Court determines what is in a child’s best interests:
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
In contemplating the foresaid matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that current or has previously applied to a child, or a member of the child’s family.[34]
[34] Family Law Act 1975 (Cth) s 60CC(2A).
Section 60CG of the Act further requires a Court when considering what parenting Order to make to ensure that whatever Order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence Order.
Orders in respect of children are regulated by Part VII of the Act. A ‘parenting order’ is defined at section 64B of the Act. The Court may make such parenting order as it considers proper.[35]
[35] Family Law Act 1975 (Cth) s 65D(1). And within the context of the objects of the legislation namely to ensure that the best interests of a child are met, including by ensuring their safety and to give effect to the 1989 Convention on the Rights of the Child and the fifty-four articles set out therein
I now turn to consider the matters in section 60CC(2) of the Act.
(2)(a) What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
Pursuant to subsection 60CC(2)(a) the Court must have regard to that arrangement which would promote the “safety” of a child and those who have care of the child.[36] “Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning.[37] The Oxford English Dictionary[38] defines the noun `safety’ as:
[t]he state of being protected from or guarded against hurt or injury; freedom from danger.
[36] Whether or not a person has parental responsibility for the child.
[37] Momcilovic v The Queen (2011) 245 CLR 1, [56].
[38] Definition of `safety’ in M.Proffitt (Ed.), Oxford English Dictionary. Oxford University Press.
The Court is drawn towards the view that ‘safety’ of a child and its carer means, in this context, protecting that child and carer against hurt or injury or danger, whether physical or psychological, arising from historic or ongoing acts or behaviours. It includes protection from fear. It is not the complete elimination of prospective hurt, injury or danger, but rather making such order as affords the child and its carer the most optimal protection from these harms or potential harms.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.
The assessment of risk, or the existence of indicators of potential harm, is an evidence-based conclusion referable to the statutory framework and is not discretionary.[39] The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not.[40]
[39] Illes & Nelisson [2022] FedCFamC1A 97, [84].
[40] It is not always necessary to make a positive finding that past conduct occurred when assessing the future risk in a particular case. If a positive finding of past conduct is to be undertaken, there must be a proper evidentiary basis for any such finding which meets the standard in section 140(2) of the Evidence Act 1995 (Cth)
The central task of the Court is to assess the risk of harm posed to the child and to determine what orders should be made to ameliorate that risk. Intrinsic to that process is the need to assess the strength of the evidence from which it is said the risk should be inferred.[41] Inconsistencies and anomalies can reduce the weight given to evidence.[42]
[41] Cao & Cao (2018) FLC 93-880, [46].
[42] Cao & Cao (2018) FLC 93-880, [56].
The Court’s function is discharged by examining the evidence carefully to determine whether it establishes an unacceptable risk of harm.[43] Some risk arising to a child’s safety may be capable of amelioration by further order of the Court.[44] A risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not.[45]
[43] The test embraced by the High Court of Australia in M v M (1988) 166 CLR 69, [25] expressed as a means of balancing, out of an effort to prioritise a child’s interests, the risk of detriment to the child of abuse and the possibility of benefit to the child from parental access.
[44] Keane & Keane [2021] FamCAFC 1, [84]; Kozma & Bielen [2022] FedCFamC2F 1250.
[45] Fitzwater v Fitzwater [2019] FamCAFC 251, [148]-[149] (Austin J) as endorsed by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97; Cao & Cao (2018) FLC 93-880, [36].
In this case, I am satisfied that the children’s safety would be at risk if exposed to the maternal grandmother’s fixed views about Mr F and their mother. This is not to say that the children’s physical safety would be in jeopardy. Rather, I consider that the children’s psychological and emotional safety would be compromised if time spending was ordered by the Court.
The maternal grandmother holds fixed views about the children’s welfare. There is no independent evidence to support those views. The maternal grandmother has been informed of those views by undertaking Google searches, engaging with like-minded people on social media and seeking the advice of persons who have never even met with the children.
Given the opportunity to do so, I have little difficulty in finding that the maternal grandmother will expose the children to her “unpopular truth” (as she described it). Despite giving evidence that the mother is a “good mother”, I find that the maternal grandmother will use any opportunity to undermine the mother’s care of the children by discussing past events and gathering evidence that will support her public mandate, namely that her grandchildren are the victims of child abuse, coercive control and alienation.
The evidence of Family Consultant Ms D was that the children’s exposure to the maternal grandmother’s “fixed views” would detrimentally impact on their emotional and psychological wellbeing.
The maternal grandmother has maintained her views despite evidence from the Department and the police which do not support her position. There have been no Departmental investigations. The welfare checks by police stated no concern. There are no criminal convictions or charges or incidents involving the mother and Mr F. The authorities charged with protection of children in this State do not support the maternal grandmother’s stated concerns.
The mother and Mr F are now separated. I accept the mother’s evidence that her relationship with Mr F ended due to the stress and ongoing interference in their household by the maternal grandmother. Despite the cessation of their relationship, the maternal grandmother still asserts that the children are at risk from Mr F because they would see him from “time to time” when the mother and Mr F must come together in their care of G and H. The maternal grandmother considered that the mother fears Mr F because she is an “ongoing victim of family violence.” My impression of the mother is the opposite. The mother gave clear, articulate and forthright evidence about her relationships with Mr F and the maternal grandmother. She appeared to struggle at times in her evidence in trying to constrain herself when speaking about her mother. The mother did not present as a “victim” at all.
The risk to the children’s emotional and psychological safety is further heightened by the fact that the maternal grandmother considers herself to be a “mandatory reporter.” The evidence is unclear on whether this is correct. Regardless, the maternal grandmother believes it to be true and gave evidence that she takes this role seriously. I agree with the submissions made by the Independent Children’s Lawyer that the maternal grandmother will continue to make reports to the Department and to the police if she considers the subject children at risk or displaying “signs of trauma.”
(2)(b) Any views expressed by the child;
The mother says that the children have been consistent in not wanting to spend time with the maternal grandmother since at least 2020.
Although the Child Impact Report of Family Consultant Ms K is not admitted to evidence, it is non-contentious that the children refused to meet with the maternal grandmother at that time. The dispute is in relation to the reasons for the children not meeting with Family Consultant Ms K.
No observation took place between the children and the maternal grandmother for the purpose of Family Consultant Ms D’s Family Report in December 2023. Family Consultant Ms D confirmed that the children were interviewed together and that they were firm in their view that they did not want to spend time with the maternal grandmother.[46] Family Consultant Ms D confirmed during cross-examination that the children were given the opportunity to meet with their “Grandma” on the day of interview but that they did not want to see her.
[46] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 42.
Family Consultant Ms D concluded that it would be likely that the children would refuse contact with the maternal grandmother.[47]
[47] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 42.
The Independent Children’s Lawyer met with the children at her office on 24 July 2024. The children did not want to express any views in terms of whether they spend time with the maternal grandmother. They all indicated that they did not want to write to her. X indicated that he did not want to receive any gifts from his Grandma.
The Family Report was prepared 11 months ago and at that time Family Consultant Ms D expressed a view that even if time were ordered that it is “very likely” that due to the children’s ages they would refuse contact.[48]
[48] See the Family Assessment Report of Ms D, Family Consultant, dated 13 December 2023 at paragraph 52.
At Trial, the maternal grandmother confirmed her evidence that she does not accept the reported views of the children. The children’s views have been consistently stated at interview to two Family Consultants and to Dr J at two separate child inclusive mediations. The maternal grandmother believes that the children have been influenced or coerced by the mother and/or Mr F. There is no evidence before the Court to find that the children have been adversely influenced or coerced by others to express the repeated views that they do not wish to spend time with their maternal grandmother. Rather, the children’s views appear to have been influenced by their lived experience.
In my view, the children are at an age where their views should hold weight. X is now almost 15 years old and will likely ‘vote with his feet’ in any event. It is unlikely that the children would agree to separate to see their grandmother. This was considered unlikely by Family Consultant Ms D in her evidence.
The children are respectively aged almost 15, 12 and almost 11 years of age. In the circumstances of this case, their firmly held views expressed on multiple occasions over many years should be given significant weight.
2(c) The developmental, psychological, emotional and cultural needs of the child;
Y has ADHD and associated behavioral issues which impacted on her education and school attendance. The mother is waiting to have her assessed for Autism.
The maternal grandmother does not accept the ADHD diagnosis despite not having seen the child for four and a half years and now having considered the mother’s evidence. She retains concerns that Y’s behavior is a sign of “trauma.”
The mother’s evidence included the children’s school reports. There are no concerns in relation to behavioral issues, academic record or attendance for the children X and Z.
The Independent Children’s Lawyer holds no concerns in relation to the mother meeting children’s developmental and psychological needs.
The Court accepts the submissions made by the Independent Children’s Lawyer.
2(d) The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
Not relevant.
2(e) The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The maternal grandmother does not have a relationship with her grandchildren and has not seen or spoken to them for about four years. The mother and the Independent Children’s Lawyer share concerns whether it is in the children’s best interest to spend time with the maternal grandmother given her fixated views and the impact those views may have on the children. There are concerns that any time spending orders would not be in line with the overarching objects to ensure the safety of the children.
I see no benefit to the children having a relationship with the grandmother. There is no evidence upon which a finding could be made by the Court that it would be safe to so.
2(f) Anything else that is relevant to the particular circumstances of the child.
There is no functioning relationship between the mother and the maternal grandmother. Their relationship at Trial appeared irreparably damaged. The mother wants no contact with the grandmother.
Family Consultant Ms D’s view was that any orders for time spending would likely increase the mother’s stress levels. Family Consultant Ms D gave further evidence that:
… it would be very, very difficult for the children to have a relationship with the maternal grandmother if she does not have a relationship with the mother.
The potential for any time spending order to negatively impact on the mother and her care of five children is a matter I bring to account in the final orders at Trial.
I consider that there is a high probability that the grandmother will recommence notifications to the Department and the police if time spending was ordered. In circumstances where the maternal grandmother believes herself to be a mandatory notifier and a “stickler for the rules” (in her words), it is likely that whatever the children say to her about what goes on in their mother’s home, will be the subject of scrutiny and conjecture by the grandmother. She will not bring an objective view to any statement made by the children. The grandmother views their presentation and behavior through the prism of her firmly held view that they are the victims of family violence.
It is a matter of serious concern to the Court that the grandmother gave evidence that she will consider bringing an application to spend time with H and G even if this current application is unsuccessful. She has never met those children and shown no interest in them since they were born. Based on the evidence at Trial, I consider that any such application would be harmful not only to the children but also to the mother.
CONCLUSION
For all the above Reasons, I consider that the best interests of the children will be met by the making of orders as set out at the commencement of this Judgment.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 2 December 2024
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