HYLAND & HYLAND
[2019] FCCA 1691
•26 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HYLAND & HYLAND | [2019] FCCA 1691 |
| Catchwords: FAMILY LAW – Parenting – where the paternal grandmother seeks to be able to spend time with her grandchildren (11 and 9) – where the children have never been introduced to the paternal grandmother – parents remain happily married but have been estranged from the paternal grandmother since prior to the children’s birth – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 60(2)(b), 60CC(3)(a), 60CC(3)(b), 60CC(3)(d), 60CC(3)(d), 60CC(3)(e), 60CC(3(g), 60CC(3)(i). 61C, 65C(ba), 117(1).. |
| Cases cited: Potts & Bims and Ors [2007] FamCA 394 Kitsannis & Netopoulis & Anor [2010] FamCAFC 214 Aldridge & Keaton (2009) FLC 93-421 |
| Applicant: | MS HYLAND |
| Respondent: | MR G HYLAND & MS E HYLAND |
| File Number: | NCC 3757 of 2017 |
| Judgment of: | Judge Betts |
| Hearing date: | 20 May 2019 |
| Date of Last Submission: | 20 May 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 26 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Self-represented |
ORDERS
That the paternal grandmother’s application for parenting orders be dismissed.
That if any party intends to apply for costs:
(a)Within twenty-one (21) days, the party is to file, and serve the other party with, written submissions in support of such application;
(b)The other party is to file and serve written submissions in response within forty-two (42) days;
(c)The written submissions are to advise whether the parties consent to the costs application being determined in chambers, or whether they require that the proceedings be re-listed for further oral argument.
IT IS NOTED that publication of this judgment under the pseudonym Hyland & Hyland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3757 of 2017
| MS HYLAND |
Applicant
And
| MR G HYLAND & MS E HYLAND |
Respondents
REASONS FOR JUDGMENT
Background:
In these proceedings, the applicant paternal grandmother seeks parenting orders which will facilitate her having a relationship with two (2) of her grandchildren - [X] aged eleven (11) and [Y] aged seven (7).
Her application is vehemently opposed by the respondent parents, who remain happily married and who are otherwise raising the children in a healthy family environment. The unfortunate background to this dispute is that the parents had a significant “falling out” with the paternal grandmother back in 2007, following which they have since made a conscious and sustained decision not to involve her in their lives, nor to permit her to have any form of involvement with their children.
The falling out has extended to the father’s brother Mr S Hyland (“the paternal uncle”), his wife Ms H Hyland (“the paternal aunt”) and their two (2) children [C] and [D] who are of similar age to the children of these proceedings (“the paternal cousins”).
Despite the fact that these family members all live in close proximity in a small regional area, the children have never been introduced to the paternal cousins, the paternal aunt or uncle and have only had a few fleeting interactions with the paternal grandmother – one when [X] was very young and which the parents were unhappy about; the other more recently being a chance encounter in a park at which the paternal grandmother did not reveal her identity.
The children simply do not know about these other family members, nor apparently have they ever asked the parents about them.
The paternal grandmother is now seeking orders that she spend time with the children on a graduating basis. Initially she wishes to spend half a day with them on a fortnightly basis, graduating after a month to full days. She also wants to be involved in the children’s day-to-day life, including school pick-ups, assisting with homework, attending special days at school and having monthly sleepovers. She wants to be able to send gifts and letters to the children, together with obtaining copies of their school photographs and their reports.
In essence, the paternal grandmother wants the court to make orders which will create the opportunity for a meaningful relationship between herself and the children – and no doubt an opportunity for the children to get to know the paternal uncle, aunt and cousins as well.
The parents oppose each and every order sought by the paternal grandmother. Moreover, they seek that she pay their costs of the proceedings. They are deeply resentful of the paternal grandmother for taking them to court, and they feel offended about having to “justify” in the court their longstanding joint parental decision not to involve the paternal grandmother in their children’s lives. If it were possible, the litigation has only further hardened the parents’ attitude towards the paternal grandmother and in their mind affirmed the correctness of their original decision to disengage themselves from her.
Thus the central issue in this case is whether the court should make parenting orders in favour of the paternal grandmother, and if so, then what form those orders should take.
These proceedings:
Prior to instituting these proceedings, the paternal grandmother made various efforts over the years to try to mend bridges with the parents. Her efforts were wholly unsuccessful.
The parents having declined her requests to attend family dispute resolution, the paternal grandmother instituted these proceedings on 4 December 2017. I am satisfied that she came to this court as a last resort, it having become plainly apparent that the parents were never going to voluntarily facilitate any form of relationship between herself and the children.
There were no substantive orders made in the course of the proceedings for the children to spend time or communicate with the paternal grandmother in the interim.
A Family Report was ordered. This was prepared by clinical psychologist Dr E, a regulation 7 family consultant.
Pursuant to the trial directions, the matter ultimately came on for trial on 20 May 2019 at Newcastle. The parties were self-represented.
The paternal grandmother applied for the assistance of a McKenzie Friend, one Ms F. In support of her application, she tendered as exhibit “PGM-1” a bundle of documents confirming that she suffers from medical anxiety and visual impairment such that at times she is unable to read her own handwriting.
The parents did not oppose her application; the court granted it.
The court explained to the parties the general process of conducting a trial and in my view the parties probably conducted their cases as best they could.
One advantage of the parties being self-represented was that the court had the opportunity to see them in an “unvarnished” way. There was obvious high emotion on display at times, as evidenced by angry or emotional exchanges – most notably between the father and the paternal uncle who supports the paternal grandmother’s position and was called as a witness in her case.
Having seen the parties, I can comfortably conclude that the longstanding family rift is unlikely to be healed at any time in the foreseeable future. The emotional wounds run deep for all.
At trial, the parties understandably wanted to explain and justify their respective positions in terms of the family rift. The reasons for the rift were hotly-contested. The paternal grandmother suggesting that she had been “framed” or falsely made a scapegoat and she wanted to try to prove that she was not the person the parents painted her as. The parents suggested that they had excluded her from their lives because of her past insidious, manipulative and controlling behaviours towards them.
The court made it plain to the parties at the outset that the trial was not going to become a commission of inquiry into who was at fault for the family rift – and that instead the court’s focus would very much be directed at what orders (if any) would be in the best interests of the children going forward.
In the result, the cross-examination conducted by each side was quite limited; various disputed allegations made by one or other side’s witness/es passed each other “like ships in the night”. That said, much of the conflicting evidence of the parties in fact related to how the family rift had come about in the first place – with each side asserting that they were the victim of the other’s behaviour.
The trial was able to be concluded in half a day.
Documents and evidence relied upon:
At trial, the paternal grandmother relied upon the following documents:
a)her affidavit filed 14 May 2019;
b)the affidavit of the paternal uncle Mr S Hyland filed 8 November 2018;
c)the affidavit of the paternal aunt Ms H Hyland filed 12 February 2018;
d)the affidavit of Ms G field 7 May 2019;
e)the affidavit of Ms H filed 24 October 2018;
f)the affidavit of Ms I filed 30 October 2018;
g)the bundle of documents comprising exhibit “PGM-1” referred to earlier;
h)a Case Outline document which was marked as exhibit “PGM-2”.
The parents relied upon the following documents:
a)the affidavit of the father filed 1 April 2019;
b)the affidavit of the mother filed 1 April 2019;
c)the affidavit of the paternal grandfather Mr C Hyland filed 1 April 2019;
d)the affidavit of the maternal grandmother Ms J filed 1 April 2019;
e)a Case Outline document which was marked as exhibit “P-1”.
Additionally, the court admitted and marked the Family Report of Dr E of 6 July 2018 as exhibit “C-1”. The parties had previously agreed that the Family Report would be admitted into evidence without cross-examination of Dr E.[1]
[1] Order 11 of the orders of 9/11/18. Though not formally recorded on the face of the order, that particular order was made by consent
In arriving at a decision, I have had regard to all of the above material as well as to the oral evidence and submissions of the parties.
The Law:
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Pursuant to s.65C(ba) of the Act, a grandparent automatically has standing to apply for parenting orders in relation to his/her grandchildren. Thus the paternal grandmother has standing to bring her application notwithstanding the fact that the children do not know her.
Section 60CA provides that, when making a “parenting order” (as that term is defined in s.64B of the Act), the court is to regard the best interests of the child/ren as the paramount consideration.
Section 60B of the Act sets out the objects of Part VII and the principles underlying those objects. Most of those objects and principles are directed to parents of children. This is unsurprising, given that parenting proceedings ordinarily arise in the context of a parental separation.
In a case such as this one, where the parents remain happily married and are parenting their children in a mutually cooperative manner, most of the objects and principles in s.60B fall away.
The only relevant object of s.60B that remains is:
·“protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.[2]
[2] Section 60B(1)(b)
The only relevant principles that remain are that:
·“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)”; [3]
[3] Section 60B(2)(b)
and
·“children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).” [4]
[4] Section 60B(2)(e)
Section 60CC prescribes the various so-called “primary” and “additional” considerations to which the court must have regard in arriving at a “best interests” determination. The s.60CC considerations give practical expression to the objects and principles set out in s.60B.
The court does not intend to slavishly re-state the provisions of s.60CC herein. Instead, relevant s.60CC findings will be set out below.
The court does note however that, like s.60B, s.60CC is primarily directed at the issues that ordinarily arise in litigation as between parents of children. Most of the s.60CC considerations fall away in the context of the present application: see the unreported decision of Moore J in Potts v Bims & Ors [2007] FamCA 394 which has consistently been followed since. Her Honour held in that case that the use of the word “parent” or “parents” throughout the s.60CC considerations operated to exclude such considerations in the context of proceedings between a parent on one hand and a grandparent on the other.[5]
In Kitsannis & Netopoulis & Anor [2010] FamCAFC 214, the Full Court (Boland, O’Ryan & Bennett J) made the following observations:
“80.As to the two primary considerations in s 60CC(2) of the Act, and the additional considerations in s 60CC(3), Moore J observed in Potts & Bims at paragraph 8 that the use of the word “parent/s” in a number of the considerations operates to exclude them in proceedings between a parent and non-parent...
81.We observe that in Potts & Bims Moore J observed at paragraph 8 that it does not mean that “those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]”.
82.In Aldridge & Keaton (2009) FLC 93-421 the Full Court (Bryant CJ, Boland & Crisford JJ) at paragraph 112 adopted the observations of Moore J in Potts & Bims at paragraph 8 in relation to “the relevant legal principles to be applied when determining a parenting application which involves a non parent/s”. The Full Court observed at paragraph 111 that s60CC(2)(m) of the Act “gives a broad opportunity to a court to consider many diverse matters relevant to the welfare of a child, and may have particular relevance when dealing with an application by persons other than a parent”.
Overview of the family rift:
[5] Excluded are s.60CC(2)(a), s.60CC(3)(c), s.60CC(3)(ca), s.60CC(3)(e) and s.60CC(3)(i)
Before I turn to the evidence of the witnesses, it is useful to set out a brief summary of the family rift and its impact on the adults involved. I do so not to re-open old wounds or to attempt to apportion blame but rather to highlight the depth of the fracture lines in this family.
By way of brief overview, the father and the paternal uncle are the two children of the paternal grandmother and the paternal grandfather who separated many years ago. The paternal grandmother re-married Mr K and they then went on to establish a number of stores which were conducted as a family business. Both the father and the paternal uncle were involved. They each owned stores within the business and the paternal grandmother held an overall managerial/supervisory role.
The family business had run into serious financial difficulty by 2006/2007. The paternal grandmother and Mr K ended up separating. The family business ended up failing and all of the family members lost substantial money. The parents lost their house.
The rift set in around that time, although each party gives different reasons for it.
What follows is largely taken from the Family Report interviews.
The paternal grandmother’s perspective:
In part, the paternal grandmother blames a badly-managed family meeting for the rift. At that meeting, the father was desperately asking if he could borrow around $60,000 from her in order to keep his two stores afloat. She could not (or would not) assist and the paternal uncle, who was present, made the tense situation worse by talking to the father “in a condescending manner”. The paternal grandmother believes that the father was left somewhat broken emotionally as a result of this meeting and with hindsight she wishes that she had had the capacity to speak up and handle the situation in a more constructive way.
The paternal grandmother also blames the maternal grandmother (Ms J) for worsening the rift. The paternal grandmother had contacted the maternal grandmother following the above meeting, to seek her assistance in resolving the family issues. She wanted to hold a private meeting with the maternal grandmother.
The maternal grandmother would not become involved and the interaction between the two grandmothers worsened the situation.
According to the maternal grandmother’s affidavit, the paternal grandmother told her in this conversation that the father was “sick in the head.” The maternal grandmother communicated this to the parents.
The maternal grandmother’s affidavit also deposed that in two later phone conversations in 2007, the paternal grandmother accused her of driving a wedge between she and the father, as well as making a financial threat that “If I go down, I will see to it that [Mr G Hyland] and [Ms Hyland] go down with me and they will lose their business, their house and their marriage. I will see to it.” The latter threat was made at a time when the parents’ first child [X] had just been born, and when the parents were genuinely contemplating bankruptcy or insolvency given their financial situation.
The paternal grandmother’s complaint is that she never said to the maternal grandmother that the father was “sick in the head” nor did she make any financial threats. She considers that the maternal grandmother has unfairly “verballed her” to the parents, and she readily accepts that they would have been offended and upset about what the maternal grandmother had attributed to her. The “sick in the head” reference would have been particularly hurtful as the father had suffered a head injury as a young child, impacting his cognitive functioning.
The parents’ perspective:
The parents reject the suggestion that the relationship with the paternal grandmother failed as a result of any one particular meeting, event or discussion. They complain of a longstanding pattern of manipulative, controlling and undermining behaviour from the paternal grandmother towards them.
The father told Dr E that he and the mother began to realise over time that there was conflict within their marriage as a result of the paternal grandmother’s over-involvement. He believes that the paternal grandmother exerted control over the father and the paternal uncle through the family business, believing she knew what was best for them. The father complained that the paternal grandmother would, for instance, organise business meeting with the mother at which she would then raise family issues which she would ask the mother to keep secret. The father said that the mother was not initially used to that manipulative behaviour but over time she worked out what was happening and that the paternal grandmother was undermining their relationship. Having come to that view, the parents jointly decided to disengage from the paternal grandmother.
The financial problems then made things worse. Essentially the father accuses the paternal grandmother and uncle of offering him a mere $5,000 for his stores which he saw as an insult and a betrayal. He thought that they were attempting to profit from his misfortune. The business failed; he and the mother lost their house.
At paragraph 59 of the Family Report the father told Dr E that, following that betrayal, the only way for he and his wife to cope at that stage was to completely cut all ties with the family and then re-build their own lives financially and emotionally, a process which they found extremely difficult. The father told Dr E that, having forged a new life for themselves, he was not willing to go back and re-open all that old pain and anger.He had tried to cut that part of his life off and move forward. He also indicated to Dr E that he will do whatever is required to protect his children from ever experiencing the betrayal and manipulation that he considered he had been subjected to.
The mother complained to Dr E that the paternal grandmother had behaved towards them in a subtle but manipulative and controlling manner. For instance, the paternal grandmother would arrange monthly meetings with her on the pretext of being the store supervisor – but the meetings were in fact used to try and interfere or control their personal lives. This included counselling the mother to make decision/s that went against what the father wanted to do; instructing the mother on how to be a “good wife” (while telling her that the maternal grandmother had not been a good role model for the mother); and generally the paternal grandmother was interfering in their marriage and then compounding things by wanting the mother to keep their discussions secret.
The mother’s view is that the whole family business was characterised by lies, manipulation and bullying and that the family were then expected to engage in family activities over the weekend as if nothing had happened.
Like the father, the mother also considers that when finances were difficult, the paternal grandmother behaved in a financially “cut-throat manner” towards them. Her affidavit deposes that the paternal grandmother refused for instance to allow the parents to sign over their shop lease to a prospective buyer, thus leaving the parents under financial pressure and causing them further losses.
In late 2006/early 2007, having lost money due to the paternal grandmother’s actions or inactions, and being weary of the constant conflict with the paternal grandmother and paternal uncle, the mother made the decision to sever ties with them. Around that time, the mother fell pregnant with their first child, [X], and in the course of the pregnancy the mother developed (omitted), a stress-related nervous complaint, for which she firmly blames the paternal grandmother.
Observations about the evidence at trial:
The paternal grandmother:
As the applicant, the paternal grandmother was the first witness called to give evidence.
Her affidavit had spoken about the close and loving relationship she has with the paternal cousins, including the significant and positive role she plays in their lives as a grandmother. She wants to extend that same support to the children in this case; she wants to facilitate the children getting to know the paternal cousins and thinks that their presence will assist in getting the children to develop a relationship with her if the court makes orders in her favour.
The paternal grandmother’s affidavit also annexed a treating report from her psychologist which confirms that she has been deeply affected by the family rift. Though the paternal grandmother has at times suffered from depression, her treating psychologist expresses the view that there is nothing in the paternal grandmother’s presentation that causes her any concern as to the grandmother’s capacity to safely and sensibly look after the children.
When the paternal grandmother was called into the witness box, I indicated that as a matter of procedural fairness I would only allow one of the parents to cross-examine her, not both. The father nominated himself as the cross-examiner.
The father’s questions were an attack on the paternal grandmother’s credibility and motivations.
He asked her if she respected the parents’ decisions as to who should be involved in the childrens’ lives – she said that she would respect them “if the reasons were legitimate.” She reasoned that as the parties could not agree, then the court would have to decide as to the legitimacy of the parents’ reasons for excluding her.
She was challenged about the timing of the recent breakdown of her relationship with the paternal grandfather. At the Family Report interviews in June 2018, she had told Dr E that she and the paternal grandfather still had a reasonably strong, supportive relationship. The father suggested that this was a lie, that her relationship with the paternal grandfather had in fact broken down prior to those interviews taking place. She disagreed.
The father asked her about a June 2018 meeting between herself and the parents at the Shopping Centre L, instigated by the parents. The grandmother saw the parents’ invitation as a potential glimmer of hope for a reconciliation whereas the parents’ only intention in calling the meeting was to tell her in person to cease the litigation.
Unsurprisingly the meeting was a total disaster. In cross-examination the father suggested to the paternal grandmother that she had been standing over the mother – she denied it. In turn she accused the father of yelling at her and calling her “insane” on three occasions (which he denied.)
The questions and answers revealed the tragic dynamic that exists between the paternal grandmother and the parents. The children themselves barely rated a mention in what turned out to be little more than an exercise in point-scoring and attempted justification. But to be fair, that process was driven by the father’s questions of her.
Overall I am satisfied that the paternal grandmother did her best to answer the questions that were put. As to the June 2018 meeting between the parties, I doubt that anyone behaved in an entirely blameless manner. I accept that from her perspective the orders she proposes are what would be best for the children.
I am not however satisfied that her proposed orders are realistic or that she has fully thought through how such orders might work. For instance her parenting proposals constitute a significant acceleration from what she had earlier proposed in her interview with Dr E. Her attitude seems to be that things will simply “work out” if the court makes orders.
I will refer to the paternal grandmother’s interview with Dr E later herein.
Mr S Hyland (the paternal uncle):
Regrettably, Mr S Hyland’s affidavit primarily addressed the reasons for the family rift.
When he was called to give evidence, I permitted the paternal grandmother to ask him some questions-in-chief. I also asked him some questions.
In his oral evidence-in-chief he spoke of the paternal grandmother’s regular ongoing involvement with his children (the paternal cousins), telling the court that the children were “rapt” when spending time with her.
He rejected any suggestion that the paternal grandmother had behaved badly towards the parents or himself and he appeared sincere in his exasperation as to how the family rift had gotten to this point.
That said, his affidavit had made clear that he did not accept any responsibility for the family rift; both in his affidavit and in his brief evidence-in-chief he linked the rift to the past financial difficulties in the family business. He considers that the parents unfairly blamed the paternal family for their financial losses - rather than taking responsibility themselves. He said that it was time for everyone to “move on” for the sake of the children.
The paternal uncle was asked about his relationship with the paternal grandfather. His answers made it plain that their relationship is strained, as he described the paternal grandfather as “unreliable” and “inconsistent” in wanting to see his children – there being an obvious contrast with the paternal grandmother. Once again a family fracture line was evident.
Overall, while I am satisfied that the paternal uncle’s evidence was genuine, it only highlighted the present gulf that exists between the two brothers. Like the parents and to a lesser extent the paternal grandmother, the paternal uncle tried to take the moral high ground in relation to the causes of the family rift. He appeared to have little (if any) empathy for the fact that the parents have a very different experience and viewpoint from his.
Likewise, the parents were plainly not interested in the paternal uncle’s opinions or evidence. They chose not to cross-examine him at all – the only direct discussion between the brothers being an angry exchange in which the father told his brother that he was “not interested” in his opinions and that he could “make his own decisions”.
Overall, I accept that the paternal uncle’s evidence was truthful from his perspective. I also accept that he is close to the paternal grandmother and that she plays an important grandmotherly role to his children (the paternal cousins).
I will refer to the paternal uncle’s interview with Dr E later herein.
Ms H Hyland (the paternal aunt):
The paternal aunt Ms H Hyland had provided a particularly glowing affidavit as to the paternal grandmother’s care of their children. She clearly facilitates regular ongoing interaction between the paternal grandmother which is beneficial to all concerned. There is no question that she has always had a good relationship with the paternal grandmother, that she trusts the paternal grandmother with their children, and that the paternal grandmother is a much-valued member of their family.
Ms H Hyland also gave some brief oral evidence-in-chief and I asked her some questions.
In her oral evidence, she confirmed the ongoing regular interaction between her children and the paternal grandmother. Her children would like to meet their cousins but Ms H Hyland has explained that it isn’t possible at this time as the parties have been unable to reach an agreement. For her part she is open to family therapy if that would help.
She had previously made an effort to stay in contact with the parents over the years, for a time sending them photographs of her children and birthday presents but after discovering that it was a “one way street” she eventually stopped doing so.
She said that some five (5) years ago or so, she and her husband had been seated at a table with the parents at a birthday party for a mutual friend. Although awkward, the adults had all managed the situation satisfactorily. Notably, it was a one-off interaction that had effectively been imposed on them by the party organisers. There was no follow-up contact between the families; this chance meeting did not herald a thaw in relations.
She was also somewhat negative about the paternal grandfather as a grandparent although I sensed that she was consciously trying not to be unkind about him.
Unlike the paternal uncle, Ms H Hyland did not attempt in her affidavit to justify their family’s position in relation to the family rift.
I would record that I was impressed by Ms H Hyland as a witness. She did not have any obvious “axe to grind” against the parents and in my view she was entirely child-focussed in her evidence. She is not interested in re-hashing the past and only wants what she believes is best for the children. I am satisfied that, if time was to be ordered with the paternal grandmother, that the paternal aunt in particular would be helpful in trying to managing such a process. In my view she means well.
Ms G (Ms H Hyland’s mother):
Ms G provided an affidavit which spoke glowingly about the paternal grandmother. She was very positive in her evidence about the paternal grandmother both as a friend and as the fellow grandmother of the paternal cousins.
Ms G was not required for cross-examination and did not give any oral evidence.
In the circumstances I accept her evidence.
Ms H (the father’s cousin):
The father’s cousin Ms H provided an affidavit in which she deposed that when she was a teenager she had lived with the paternal grandmother (“Ms Hyland”) for a time and she speaks positively about that experience and about the paternal grandmother’s assistance in parenting her. Her own children (aged 6 and 4) spend time with the paternal grandmother and “love” doing so.
The father’s affidavit had suggested that when Ms H was a teenager she had left their family home because of the paternal grandmother’s “toxic environment of control and manipulation.” Ms H vehemently denied that in her affidavit.
Ms H was not required for cross-examination. I accept her evidence.
Ms I (paternal grandmother’s friend):
Ms I swore an affidavit deposing to the paternal grandmother’s many positive qualities as a grandmother, a friend, a positive influence and role model.
Ms I was not required for cross-examination. I accept her evidence.
The father:
The father’s affidavit deposed to the very happy family life that his children enjoy, and that the children have never been exposed to any family conflict in their home. They maintain a good relationship with numerous family members, including the paternal grandfather known affectionately as “gramps”.
The father’s affidavit recounts the circumstances leading to the family rift and squarely blames the paternal grandmother for it. He blames her for the conflict in the June 2018 meeting. In neither instance does he accept any responsibility for the difficulties and in general his affidavit displays a lack of empathy for the paternal grandmother.
His affidavit deposes that he and the mother see the paternal grandmother as nothing less than a “threat to their family unit” and that her involvement in their lives will cause them relationship disharmony and negatively affect their parenting and their home life. He and the mother want their children to have nothing to do with the paternal grandmother and will undoubtedly let the children know of their opposition to a relationship. He believes that any relationship will be stressful, confusing and frightening for the children.
The paternal grandmother cross-examined the father quite briefly.
She told him she wanted to reconcile with him and she asked him to explain why he was accusing her of being a liar or manipulative. Interestingly he was unable or unwilling to give her an exact answer as to why he made that accusation – saying that it all happened “12 or 15 years ago…I can’t recall the exact details…”
But then the father immediately went on justify himself by referring to the June 2018 meeting - accusing the paternal grandmother of lying as to what happened there. He also repeated his accusation that she “lied” about the timing of the breakdown of her relationship with the paternal grandfather.
The father did concede that it was “emotionally draining” to have no relationship with the paternal grandmother. But when pressed as to what the “problem” was with her, he responded that prior to the family rift, the paternal grandmother had always tried to exert “control” over them and that they had never been able to resolve the issues between themselves. He was “not prepared to do it anymore” and he explained that he had “no trust” in her.
In my assessment, the father was being honest in his answers. I consider that he has been emotionally “torn” over the years as a result of the family rift. He feels very hurt by what he perceives to have been the paternal grandmother’s actions over the years – including her decision to bring these proceedings.
In my view the father’s approach has been to simply “build a wall” between he and the paternal family. As a result of these proceedings he has had to revisit the reasons for building that wall - a process which he has found emotionally confronting and painful. He is unwilling (and perhaps emotionally unable) to even go back to that dark time in his life.
I will refer to the father’s interview with Dr E later herein.
The mother:
The mother’s affidavit deposes to the happy and settled life that the children have and to the extended family relationships that they presently enjoy. It goes on to refer in some detail to the causes of the family rift, some of the details of which I have set out earlier. As with the father it is plain that the mother sees herself as a victim of the paternal grandmother and paternal uncle’s behaviours and attitudes.
Her affidavit speaks of their decision to “move on” with their lives, without the paternal grandmother – and about how much better their lives have been since then. She deposes that in 2011, while she was pregnant with [Y], the paternal grandmother tried to instigate mediation. She was so stressed at that prospect – particularly having had (omitted medical condition) in the first pregnancy, that she went to her doctor who advised that any extra stress was inadvisable. Thus they did not agree to mediate.
Her affidavit complained about the paternal grandmother’s allegedly aggressive behaviour towards them in the court precincts. She says her family unit is threatened by the paternal grandmother and like the father she strongly objects to the paternal grandmother “having any sort of relationship with our precious children.”
At trial, the paternal grandmother said she did not wish to cross-examine the mother.
While she was in the witness box, I decided to ask the mother about the prospect of perhaps some “limited time” taking place between the paternal grandmother and the children. Her response was that the thought “turned her stomach… can’t trust this woman...it is unthinkable.”
I accept that the mother’s perceptions and beliefs are strongly and emotively held. She is unable or unwilling to see any positive side to the paternal grandmother.
I will refer to the mother’s interview with Dr E later herein.
Ms J (the maternal grandmother):
I have already referred to the maternal grandmother’s allegedly unhappy interactions with the paternal grandmother in the context of the family rift.
Most of her (short) affidavit deals with the family rift and is supportive of the parents’ actions.
The paternal grandmother said she would not cross-examine the maternal grandmother at trial - as she did want to “cross-examine a liar”.
Given the way in which the trial was conducted, I do not propose to make findings as to which grandmother’s evidence is to be preferred. I don’t think it is relevant or helpful to this family.
Mr C Hyland (the paternal grandfather):
Mr C Hyland’s (very short) affidavit essentially deposes that he has been “verballed” by the paternal grandmother in the Family Report interviews. In particular, he deposes that he had already fallen out with her prior to the interviews, having contacted her to admonish her for bringing these proceedings. He is extremely negative about the paternal grandmother’s character.
The paternal grandmother did not cross-examine him either.
Again I do not propose to make a specific finding as to the timing of when the paternal grandmother and grandfather had their falling-out. The fact is that they did – and it is a direct result of these proceedings.
The Family Report:
In my view, Dr E’ Family Report was thorough and insightful.
The only real limitation of the report arises from the fact that the parties agreed that the children not be observed with the paternal grandmother. Their views could not be sought as they do not know anything about her, the parents having completely shielded them from the family rift. The parents had merely told the children that they would be seeing a person “sort of like a doctor” and who was going to ask them questions and ensure that the family were all managing well.
The children’s interviews were unremarkable. They happily told Dr E about their home and school lives. They referred to relationships with extended maternal family members (including cousins at Town L) and they mentioned the paternal grandfather (“Gramps”).
As to the past, I have already referred to what the adults said to Dr E about the causes of the family rift.
As to the future, what the adults told Dr E is set out below.
The paternal grandmother:
She explained to Dr E that her proposal was in the children’s best interests because she has a lot to offer her grandchildren in terms of being a loving and supportive grandmother. She said that she wants to repair the family rift and she would like the children to have the opportunity to meet their uncle and aunt, and interact with their cousins.
Like myself, Dr E thought that the paternal grandmother appeared genuine in her desire to fix the family rift.
Significantly, the paternal grandmother told Dr E that she did not want to place the children at the centre of the family conflict. She did not believe that the parents would allow the children to become part of the conflict or that they would make it hard for the children to spend time with her if that was the court’s order.
The parents:
The father made clear his frustration and disappointment with the court process and the legal system. Dr E found him to be at times defensive and irritated and thought that he found the whole process degrading and unnecessary. The father very much considered that his “parental rights” were being violated and he was extremely concerned for the long-term impact on his family of an outcome that the parents did not agree with.
Notably, at paragraphs 62 and 63 of the Family Report, Dr E states:
“The family consultant asked the father how he will help the children negotiate this situation if the court orders time with the paternal grandmother. His response was surprising however he appeared to have given this thought and was genuine and steadfast in his view. He stated that “the children need to know that we don’t trust this woman. She is a liar and a manipulator. We won’t facilitate a relationship. We believe that it is detrimental to our children’s development and we will do what we can to ensure that it does not occur.
The family consultant asked the father what he thought the impact would be on the children if they are ordered to have time with their grandmother however are told by the parents that they should not trust her – implying that they are not safe. The father responded by saying that the impact on the children will be terrible. However, he clarified by saying the terrible impact will not be the result of him telling the children his true opinions, it will be from the court forcing the children to engage with an individual that the parents will have nothing to do with. The father reported that he will not lie to his children, and he will protect them by ensuring that the children do not place their trust in someone who will work very hard to undermine the parents. The father clarified this further by stating, “if we encourage this relationship, how do we then later tell the children not to believe what she says when she says things to the children that undermine our relationship with them? Our only defence is to protect them from believing her in the first place. We will make it clear to our children that we do not want this and are being forced by court orders”. The father than stated with what appeared to be great sadness and emotional burden “at the moment the children do not know about her, they do not know about the family conflict, they are well developing, happy, carefree children, why do I have to put them through this?”
The mother said similar things in her interview with Dr E and explained that, while at this stage the children have never asked about the paternal grandmother, they have been waiting for the questions. When they are asked, she says that the parents have agreed that they will tell the children “the truth”, and that they will portray the paternal grandmother as they perceive her but encourage the children to make up their own minds when they are adults.
In relation to the paternal uncle, aunt and cousins the mother told Dr E that it was too difficult for the children to have a relationship with them as it would expose the children to the paternal grandmother and to the family conflict. The mother reasoned that while it was sad that the children would not know their cousins, the risk to them getting to do so outweighed the benefits.
At paragraph 76 of the Family Report, the mother told Dr E that if the court ordered time to occur then she and the father would let the children know they did not approve. She was adamant that the only way to protect the children from the paternal grandmother was to prevent any relationship from developing.
At paragraph 77 of the Family Report, the mother told Dr E that the paternal grandmother was manipulating the court system; that her children were thriving and: “why should she and her husband have to bring the paternal grandmother back into their life when they have made a protective and considered decision with regards to how they want to raise their family. She stated that if they are forced to participate in time with the paternal grandmother it will cause enormous stress for the family and she is not sure if they are adequately equipped to manage this a second time. She stated that it was very hard on the family when they were involved with the paternal grandmother and they have had to rebuild. She stated that they do not want to go back and they do not want to put the children in the cross fire. She stated that she does not wish the paternal grandmother any harm she just wants to move on with their life and have the decisions they made for their family respected.”
The paternal uncle:
Mr S Hyland was also interviewed by Dr E and he confirmed his view that the financial breakdown of the family business had caused great strain and difficulty for everyone. However, his view was that the situation has since spiralled out of control and that the family rift should have been healed a very long time ago. He stated that it was very said for the children that the cousins do not have any relationship.
Dr E weighs up the advantages and disadvantages of the paternal grandmother’s proposal:
Dr E carefully weighed up the advantages and disadvantages of a court-ordered relationship.
She noted that the children had developed into confident and carefree children with important and appropriate parental and extended family relationships.
Dr E considered that, on the surface, it was likely that the paternal grandmother would have a great deal to offer the children in terms of unconditional love and a connection to the paternal family.
However, Dr E considered that the significant family rift made the situation more complex. She noted that while the paternal grandmother wanted to move on from the past, the parents did not agree and that an order that the children spend time would place the children into the middle of a very difficult conflict.
At paragraph 105 of the Family Report, Dr E sets out the impact on the children of the paternal grandmother’s proposal:
·The children will have Court Ordered time with the paternal grandmother that will commence slowly and gradually increase to overnight time. According to the parents’ position this will never result in a flexibly negotiated arrangement and so the adults will be required to follow Court Orders; the paternal grandmother suggested one overnight per month. [6]
·If the parents are able to encourage and facilitate this relationship for the children then the children will possibly be able to develop a strong and important relationship with the paternal grandmother and she will be another adult in the children’s lives who offer [sic] unconditional love and support. In addition, the children will also get to know their cousins and will likely develop strong and important relationships with them. The children will be connected to their paternal extended family and will potentially be able to join in on family celebrations.
·However, if the parents actively undermine the children’s relationship with the paternal grandmother as they have indicated they will do, then this will cause the children significant anxiety and distress as a result of having time with an individual who the parents have told them they are not safe with.
·However, even if the parents facilitate these relationships and choose not to provide the children with information regarding the family conflict, the children will still become aware of it, as the parents have indicated that they will not re-engage with the family themselves. This will result in questions arising for the children, and the answers to these questions no matter how diplomatically presented, will expose the children to the family conflict and likely result in confusion and internal turmoil for the children.
·Finally, if the parents’ allegations are correct, then exposing the children to the paternal grandmother will result in the children being placed at risk or harm as the paternal grandmother seeks to actively undermine the parents.
[6] The paternal grandmother’s proposed orders have since changed and she now seeks immediate unsupervised time as set out earlier in these reasons for judgment
At paragraph 106 of the Family Report, Dr E sets out the impact on the children of the parents’ proposal:
·The children will not have any time with the paternal grandmother which will result in the children not having the opportunity to develop a loving and supportive relationship with her, the paternal uncle and aunt and the children’s paternal cousins. They will miss out on all the benefits that being a valued member of an extended family can provide.
·However, they will also avoid being exposed to the significant family conflict and the distress that it may cause the children. In addition, the parents will avoid the distress that will occur if they are require to facilitate their children being in the care of an individual that they perceive will cause their family harm.
Ultimately Dr E recommended that the children not have court- ordered time with the paternal grandmother.[7]
[7] Paragraph 108
This was clearly a reluctant recommendation on Dr E’ part as she prefaced it with this observation:
“It is noted that the following recommendation is the best outcome for the children based on the current circumstances; noting that a far better outcome would be for the adults to mend the family rift and for the children to be free to develop and maintain relationships with all members of the family”. [8]
[8] Paragraph 107
I have found the unchallenged evidence in the Family Report of assistance in resolving this dispute. The attitudes displayed by the parties in the Family Report interviews were the same attitudes on display at trial.
Best interests findings:
The relevant primary consideration:
I do not consider that the paternal grandmother poses a risk of physical or psychological harm to these children by reason of abuse, neglect or family violence: s.60CC(2)(b).
The relevant additional considerations:
The children have not expressed any views: s.60CC(3)(a). It is in some ways quite extraordinary that the issue has not arisen before now given the children’s ages and given that that the paternal family members live quite close by. But for now the children remain blissfully ignorant of the dispute.
The children have a close and loving relationship with each of the parents which is appropriate, sound and secure. They have relationships with numerous extended family members, including the maternal grandparents, the maternal aunt and uncle, numerous cousins and second cousins on the maternal side, and the paternal grandfather: s.60CC(3)(b).
The children presently have no relationship with the paternal grandmother, or the paternal uncle, aunt or cousins: s.60CC(3)(b).
The likely effect of a change in the children’s circumstances was very much at the epicentre of this dispute: s.60CC(3)(d).
The paternal grandmother submits that the children would benefit from the opportunity to develop a relationship with her.
The paternal grandmother’s support witnesses also attest to her good character and to the potential benefits she offers to the children, if given the opportunity to develop a relationship with them.
I have no difficulty in accepting that the paternal grandmother is a loving and supportive person in the lives of those witnesses whom she has called in support of her case. She is a much loved and valuable grandmother to the paternal cousins and has a lot to offer them. No doubt those children benefit from their relationship with her.
The paternal grandmother could – by analogy – offer the same benefits to these children. But as Dr E observed, the situation for the children of these proceedings is a lot more complex.
The sad and undeniable reality is that the parents are adamantly opposed to the paternal grandmother playing any role in the children’s lives. Not only are they opposed to it, they consider that the children need to be protected from her manipulative and divisive ways. They are genuinely concerned about the negative impacts on their family unit, and on the wellbeing of the children, if the court makes orders facilitating a relationship between the children and the paternal grandmother.
In my view, the parents will scuttle such a relationship before it has a chance to get off the ground. Their perception that they will need to “warn” the children about her will inevitably cause the children confusion, anxiety and conflict – particularly where from the parents’ perspective it will not be the beginning of a thaw in relations. I have no doubt that the parents will deeply resent the court’s intrusion in their family life.
The fact that must be borne in mind is that the children already have a happy, stable and settled family life. Their parents remain in an intact relationship, which places them at a great advantage compared to the overwhelming majority of children the subject of orders of this court. Moreover, the children have been parented well; they are thriving.
The children also have plenty of loving extended family members in their lives. Regrettably this does not include the paternal grandmother, the paternal uncle, aunt or cousins.
If the parents were more accepting of the paternal grandmother, or if the children already had an established relationship with her, then the situation might be different.
But the sad fact is that the adults have been unable to reconcile their differences despite the passage of many years. It would be unreasonable to expect the children, who are entirely innocent and blameless, to be placed directly into the middle of that family rift. They are bound to become anxious and confused and in my view such a scenario places them at unacceptable risk of suffering emotional harm.
In short, I do not see a net benefit to the children in this court changing their present circumstances by making parenting orders in favour of the paternal grandmother. To do so would be an exercise in social engineering where the children would effectively be forced to act as the “bridge over the gulf” between these parties. Such an outcome would be most unfair to the children. I agree with Dr E that although there would be advantages, these are outweighed by the disadvantages.
There are no practical difficulties or expenses involved in facilitating time in this case, as the parties live close by: s.60CC(3)(e).
Theoretically, the paternal grandmother has capacity to provide for the basic needs of the children, noting that she is a loving and supportive grandmother to the paternal cousins. However, these children’s needs will be greater and different, and in my view it would be a very difficult task for the paternal grandmother to meet their needs in the face of the parents’ implacable and expressed opposition to her relationship with them. In fact it would be a diabolical challenge for the paternal grandmother to meet their needs in such circumstances; attempting it places the children at unacceptable risk of suffering emotional harm.[9]
[9] The paternal grandmother is also very much hurt by the parents’ attitudes and behaviours. In closing addresses she disparagingly referred to the parents returning a bangle she had gifted to [X] but she added that they “never returned money orders”. Moreover, her own affidavit spoke of the maternal grandparents being very good grandparents but then went on to accuse the maternal grandmother of “beguiling” the father into thinking ill of her – an insult to both. I do not raise these matters to be critical of the paternal grandmother but simply to point out that she has to deal with her own “emotional baggage”.
The children are otherwise happy, carefree and well-adjusted 11 and 7 year olds respectively: s.60CC(3)(g).
The parents have consistently and firmly denied a relationship between the children and the paternal grandmother in the exercise of their parental responsibility: s.61C. Their attitude, genuinely held, is that the children would be best not having a relationship with her. They see this as responsible and appropriate parenting on their part.
Though in some ways regrettable, their attitude is certainly genuinely held and its impact on the children has been real: s.60CC(3)(i).
There is potentially a risk of future litigation if the court makes orders in favour of the paternal grandmother. There would be a real likelihood of future contravention proceedings – it is not difficult to envisage the children expressing reluctance to go on court-ordered visits given the parents’ attitudes. In my view, such reluctance would in fact be “welcomed” by the parents.
The children presently have a carefree family life; they deserve better than to be put at risk of becoming embroiled in future rounds of litigation.
Conclusion and orders:
On all of the evidence, I have come to the conclusion that the paternal grandmother’s application must be dismissed. It would not be in the best interests of the children to enforce a court-ordered relationship at this time.
I had seriously contemplated making an order that the paternal grandmother at least be able to receive copies of the children’s school photographs - but the parents vigorously oppose even that. They see it as intrusive and do not for instance want the paternal cousins looking at the photographs and then potentially approaching the children in the future. This is a risk – if not a certainty – given how close by everyone lives. The parents cannot adopt a “head in the sand” approach indefinitely.
In the end however, I have come to the conclusion that it would be an order in the best interests of the paternal grandmother rather than the children. I do not see how the children would benefit from it in the absence of a relationship being ordered.
I also consider it inappropriate to make orders that the parents pass on gifts etc from the paternal grandmother as I do not believe they would want to do so, nor would it be appropriate in circumstances where the children remain ignorant of her existence and where there is no relationship.
I echo Dr E’ observation in paragraph 107 of the Family Report that a far better outcome than the present orders would be “for the adults to mend the family rift and for the children to be free to develop and maintain relationships with all members of the family.”
For these reasons, the court makes the orders set out at the commencement of this judgment.
In closing, the court will hear from the parties on the question of costs. However the court makes clear that it is unlikely to make a costs order against the paternal grandmother. Although unsuccessful, her application was brought in good faith and in circumstances where the parents refused to participate in mediation. The presumption in s.117(1) will not be lightly displaced in all the circumstances of this case.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Judge Betts
Date: 26 June 2019
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