Kalb & Causer

[2018] FCCA 1272

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALB & CAUSER & ANOR [2018] FCCA 1272

Catchwords:
FAMILY LAW – Parenting – best interests of the children – where Applicant maternal grandmother seeks sole parental responsibility – father to have sole parental responsibility – children to live with the father – children spend time monthly with maternal grandmother subject to elder child’s wishes – blatant breach of Court orders by the maternal grandmother – no orders as to time spent with mother who failed to participate in the proceedings.

Legislation:

Family Law Act 1975, ss.60CC, 62G

Applicant: MS KALB

First Respondent: MR CAUSER

Second Respondent: MS M KALB

File Number: DGC 2095 of 2016

Judgment of: Judge Hartnett

Hearing date: 12 April 2018

Orders made: 12 April 2018

Delivered at: Melbourne

Reasons delivered on: 21 May 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Southey

Solicitors for the First Respondent: Coombe Lawyers

The Second Respondent: No Appearance

ORDERS MADE 12 APRIL 2018

1. All previous parenting orders be discharged.

2. The children [X] born 2004 (‘[X]’) and [Y] born 2006 (‘[Y]’) (‘the children’) live with the father.

3. The father have sole parental responsibility for the children.

4. The maternal grandmother spend time with the children as follows:-

   (a)on the first Saturday of each calendar month from 10.00am to 6.00pm;

   (b)at such further and other times as may be agreed between the parties in writing.

5. Changeover for the purpose of the maternal grandmother’s time with the children take place at Town A McDonalds.

6. The maternal grandmother communicate with the children by telephone each Thursday between 6.30pm and 7.30pm with the maternal grandmother to telephone the father’s mobile telephone.

7. [X]’s time with the maternal grandmother be subject to her wishes.

8. The maternal grandmother by her servants and/or agents including the maternal grandfather be and is hereby restrained by injunction from:-

   (a)bringing the children into contact with the mother;

   (b)removing the children from the Commonwealth of Australia.

9. Otherwise the application of the maternal grandmother is dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2095 of 2016

MS KALB

Applicant

And

MR CAUSER

First Respondent

MS M KALB

Second Respondent

REASONS FOR JUDGMENT

Preliminary

1. These reasons support the making of orders by the Court on 12 April 2018. Statements of fact in these reasons are findings of fact on the balance of probabilities.

2. These proceedings commenced upon the Applicant maternal grandmother (‘the Applicant’) filing an application for parenting orders in July 2016. Those proceedings were originally filed in the Dandenong Registry of the Court, being a location close to where the grandmother resides in Town B.  It was a location not remotely close to where the Respondent father (‘the Respondent’) and the two subject children reside. They reside in Town A in the State of New South Wales. The children are [X] who was born 2004 and is now 13 years of age, and [Y] who was born 2006 and who is now aged 11 years. 

3. Over time, various orders have been made in these proceedings which have included a transfer of the proceedings to the Albury Registry of the Court; and orders for the Applicant to spend time with her grandchildren, which has included overnight time, regular telephone communication, and approximately one week of holiday time in each of the school holidays. 

4. More recently, however, the time spent by the children with the Applicant has decreased. This outcome has resulted from the then available evidence before the Court. The making of the earlier orders were informed in particular by a child-inclusive conference memorandum to the Court dated 20 December 2016. Thereafter, a family report prepared pursuant to s.62G of the Family Law Act 1975 (Cth) (‘the Act’) by family consultant Ms M, dated 20 February 2018, together with a further report dated 3 April 2018, again prepared by Ms M, have placed differing evidence before the Court which has assisted the Court in its deliberations. The 3 April 2018 updated family report was necessitated by the non-attendance of the maternal grandmother in relation to the preparation of the earlier report. An updated report was prepared to enable the maternal grandmother and her husband, Mr Kalb, the maternal grandfather, to be interviewed by the family consultant.

5. Largely informed by the expert opinion in each of these reports, the Applicant grandmother and the maternal grandfather's time spent with the children has altered and as stated earlier, decreased.  This has also occurred naturally as a result of the children settling into their Town A environment with their father; forming a stronger bond with him; and being given the stability he provides, which was absent in their lives when they resided with their mother. 

6. Ms M’s expert reports were introduced into evidence before the Court. The contents of those reports were not challenged by the parties. Despite this, the maternal grandmother saw fit to rely upon an amended initiating application, being a second amended application filed by her, wherein she sought, relevantly, that she have sole parental responsibility for the children; that they live with her; that their mother have access to them with the Applicant's supervision, and that the father have time spent with the children by agreement between the parties.  The Applicant also sought a curious order, being:-

   “That the father, Mr Causer, born 1953, now 65 yrs old, receives measures designed to improve communication between parties for the wellbeing of the children.”

7. The further amended application filed 16 October 2017 was not supported by the factual evidence before the Court. It’s pursuit occasioned stress to the father (it is most unfortunate that he had to engage in further litigation) and to the children, and showed a complete lack of insight on the part of the Applicant grandmother. The grandmother sought from the Court orders, which had no prospect of being made, and in circumstances where she has blatantly breached orders of the Court, and acknowledges those breaches without any remorse or insight as to her conduct.

8. Prior to the institution of these proceedings and on 14 January 2015, Justice Cronin in the Family Court of Australia at Melbourne made orders in proceedings between the parents of the children, wherein the father was the Applicant and the mother was the Respondent. The mother failed to participate meaningfully in those proceedings and did not appear on the trial. His Honour made final parenting orders that the father have sole parental responsibility for the children and that they live with him.  His Honour also made orders that any time spent with between the mother and children, and any communication had, be by agreement between the parents. The mother was in fact not spending any time with the children. The mother was restrained by injunction from removing the children from the Town A area where the children were then residing with their father. 

9. At the time of the proceedings in the Family Court of Australia, [X] was 10 years of age and [Y] was eight years of age.  His Honour noted that the father had made an application on 4 August 2014 in the local Court at Town A. The local magistrate made orders which included a transfer of the father's proceedings to the Family Court of Australia at the Canberra Registry.  Thereafter, the matter appeared to have been transferred to the Federal Circuit Court of Australia, and then ultimately back to the Family Court of Australia in Melbourne. This litigation history was no doubt onerous for the father. The Applicant nevertheless determined to pursue this further, unmeritorious litigation.

History Background

1. Following the mother and father’s separation, the children lived with their mother from about March 2012 to December 2013. At separation the parties were residing under the one roof in Melbourne.  The father then left the former matrimonial home and relocated to Town A, where he already had a home. The mother and children relocated to Town C. During the period which followed, the father spent time with the children approximately five to six times per year for about a week or so at a time.  He would travel to Town C and the children also would travel to Town A. That arrangement continued for a period of about 18 months. Thereafter, the mother and children relocated to Queensland without the knowledge or consent of the father.  The father did not see the children for about a six month period.

2. In 2013 the mother and children relocated back to Melbourne. The mother did not have a fixed abode, and was staying with family and friends.  It is around this time that she became involved with the organisation known as (omitted religious organisation). The father saw the children approximately each 8 weeks.  He became increasingly concerned about the mother's involvement in the religious organisation and also her lack of suitable accommodation for the children. He approached the mother and suggested the children reside with him. Agreement was then reached between the mother and father that the children would live with their father until the mother could source stable accommodation.  

3. When the father went to collect the children from the mother, by agreement with the mother, he recalled the children were staying with about four other adults. The father did not know who any of those persons were.  The mother had already left to travel to Queensland with people from the (omitted religious organisation) organisation.

4. The children remained living with their father from Christmas Eve 2013 until late February 2014 in Town A. The father enrolled the children in the local primary school.  On 24 February 2014, the mother forcibly removed the children from the father's care and disappeared with them, travelling across Australia for some two months, and temporarily residing in Sydney, Town D, Melbourne and Town E. During this time, the children did not attend school. 

5. The mother, according to the evidence of the maternal grandmother, suffers from depression. The maternal grandmother concedes that the mother became involved with an organisation called (omitted religous organisation) and that thereafter the mother relocated the residence of the children on a number of occasions, and ceased their attendance at school. 

6. On or around 28 April 2014 the father became aware that the children were with a Ms K. Ms K told the father that the mother had left the girls with her, and Ms K further stated that she had concerns for the children's wellbeing. 

7. On 5 July 2014 the father collected the children from Ms K in Town E and returned with them to resume their residence in Town A.  The children have remained with their father since, save for a period where the mother absconded with the children. 

8. Following the making of the orders by Cronin J in the Family Court of Australia in January 2015, the father agreed with the mother that the children would spend a holiday period with her.  However, she did not return the children to him as scheduled.  He was required to seek a recovery order, and location and publication orders were subsequently made.  The Australian Federal Police were not able to find the mother and the children for approximately three months. Eventually, the children were returned to the father’s care, around September 2015. The father told Ms M in interview with her on 18 December 2017, that the experience of the children being taken from his care without him knowing their whereabouts and the conditions in which they were living, was highly stressful and distressing for him.  He was conscious that the mother frequently spent time in Country A, and he was concerned as to whether the children were in the jurisdiction of the Commonwealth.

9. The father and children now live in a four-bedroom home. The father is presently unemployed but cares for the children before and after school, and otherwise whenever they are at home. They are at all times under his general supervision. The father is not assisted in his care of the children by their mother, or to any significant extent by the maternal grandmother, and nor has he been so assisted since the children came into his care in about July 2014.  The father does however have a number of friends, including parents of the children's peers in Town A, and long-term friends located in Melbourne, and Regional Area F, whom he can rely upon for any necessary assistance together with any assistance provided by his other adult children. 

10. The maternal grandparents currently reside in Town B although the maternal grandmother visits Country B fairly regularly, that being her place of origin. The Applicant maternal grandmother was born 1947 and she is aged 71 years. The maternal grandparents reside with their son and daughter-in-law and their three children.  The son, daughter-in-law and three children were not participants in any family report prepared by the family consultant, and there is no evidence before the Court from the maternal grandmother's son, nor her daughter-in-law.  

These Proceedings

1. In these proceedings the Applicant grandmother relied upon her amended application and affidavits sworn by her on 13 July 2016, 13 October 2017, 19 February 2018 and 11 April 2018. Additionally, she relied upon an affidavit sworn by the maternal grandfather on 19 February 2018. The father relied upon affidavits of evidence affirmed by him on 19 September 2016, 23 January 2018 and 10 April 2018. 

2. Following the Applicant grandmother's commencement of these proceedings, and during the course of the child-inclusive conference on 20 December 2016, both girls made positive comments about their father and his parental care.  They also expressed enjoyment about living in, and being part of, the Town A community. They both also expressed a desire to spend regular time with their maternal grandparents, with whom they reported warm emotional bonds.  The father acknowledged and promoted the children’s relationship with the maternal grandparents by entering into consent orders on 13 February 2017, which provided for the children to spend time with their maternal grandparents initially for a day period once each month, and thereafter progressing to monthly weekend time spent with from 10.00am Saturday until 4.00pm Sunday, together with weekly telephone calls and weekly school holiday periods.  Changeover of the children required travel for both the participating grandparents and father.

3. The Court orders made on 13 February 2017 and further orders made on 16 October 2017, specified that the maternal grandmother was restrained from bringing the children into contact with their mother.  The maternal grandmother also signed an undertaking to the Court to this effect on 13 February 2017. Regardless of the making of these orders, and the giving of the undertaking to the Court, the children's mother has been in attendance on a number of occasions that the children have spent time with their maternal grandparents. The maternal grandmother sees nothing wrong with this breach of the Court orders and her breach of an undertaking to the Court. Her evidence was that it is wrong to deny a mother time with her children if she wishes to have that time. Although the father sought an order in these proceedings, and indeed the Court made the order upon his application, that the Applicant grandmother not bring the children into contact with the mother, the Court has little faith in the grandmother complying with that order of the Court. The father has not brought any contravention application against the grandmother.  Understandably, he does not want to be further engaged in the Court process. The limitation of time spent with to a day period each month, together with changeover being in the Town A area, are practical matters which make it less likely that the grandmother will blatantly breach this order of the Court. 

4. The father was born 1953, and he is currently aged 64 years. The crux of the application from the maternal grandmother's perspective is that she has doubts regarding the father's parenting capacity given his age and other matters.  She considered seeking sole parental responsibility of the children in the factual circumstances of this case, and for the children to live with her, and not a loving parent, as “quite reasonable.” She says of the father that the father has provided for the children “a roof” and that he has “done his best”.  She qualifies that by referring to “his best” as relevant to “his capacity” which she considers significantly inferior to her own.  She alleged that the father “palms (the children) out to friends and/or strangers” without any factual basis for the making of such allegation.  The Court finds, in fact, that he does not. The grandmother accepts that the children are happy living with their father, but says of that, relevantly:-

   “To my understanding the children are happy living there ... they are allowed to do a lot of things ... there is no guidance and no discipline.”

   She says further:-

   “With all respect to him, this is all he has to offer .... They haven't been given other choices.  He's kept them away from us ... kept in Town A right from the beginning ...”

5. When asked under cross-examination how the girls would cope with a transition from Town A to Town B, and into a household which comprises elderly maternal grandparents, together with their son, daughter-in-law and three young children, the maternal grandmother said that the girls would cope “very well”.  This was despite the grandmother having read the further family consultant's report dated 3 April 2018 wherein at paragraph 47 Ms M says:-

   “It appears evident that Mr Causer has worked hard to provide [X] and [Y] with a stable and secure parenting experience.  During their two separate interviews with the family consultant, [X] and [Y] reported that they are happy and content living with Mr Causer and they wish to continue to live with him over the longer term.  [X] and [Y] enjoy living in Town A and their involvement in the community and their social networks are important to each of them.”

6. And further at paragraph 48:-

   “In addition, it would appear evident that [X] would be highly defiant about moving to live with Ms M Kalb in Melbourne and any attempt to force [X] to do so would be met with extreme resistance from [X] and would appear unlikely to succeed.  There has been no suggestion that [X] and [Y] be separated and, moreover, [Y] loves Mr Causer and she is happy and content with her life situation in Town A."

7. Ms M’s conclusion, that in her expert opinion both girls would experience a loss and there would “likely be adverse impacts on their wellbeing and good adjustment if they were moved to live with Ms M Kalb from Mr Causer’s care” was ignored by the Applicant.

8. [X] had told Ms M in the interview of December 2016 that her mother had been a very good mother to her and [Y] for several years, but that she had gone “downhill”.  [X] said she recalled being homeless and “living in a car” and “having to sleep in the bushes, not having any food and needing to seek food from charity outlets.” [X] told Ms M that as a family they moved around a lot and that her mother started leaving her and [Y] with people the mother barely knew.  [X] also recalled seeing a serious family violence incident involving her mother and her then partner. The maternal grandmother challenged the evidence as provided by [X] to Ms M and to her father. She did not concede that the children, prior to coming into their father's care, lived a chaotic lifestyle in the care of their mother. The Court prefers the evidence of [X] and of the father. Ms M did not doubt [X]’s description. That chaotic lifestyle the Court finds, included periods of homelessness, no formal education, neglect, transience, general instability, poor parental care, denigration of the father and emotional coercion.

1. [X], in contrast, said of her father that they have a strong bond, “we're really close” and she feels comfortable to talk to him about “everything”. She said of him “Dad listens and he supports me” and “we listen to each other”. She noted that her father had rules that she needed to comply with, but she said “I'm not going to abuse his trust in me.”

2. By December 2017, [X] had already expressed a preference to limit her time spent with the maternal grandmother, and she expressed to the family consultant Ms M a clear strong reluctance to continue to spend holiday periods with her maternal grandparents. That was because she was getting older and preferred to spend time with her friends in Town A.  She also found the experience of a week-long block highly stressful, because she and her grandparents ended up arguing “for a whole week”.  She noted that her mother was present during these periods and that she and her mother also entered into a conflictual dialogue. 

3. [Y] around this time, also said of her time spent in Town A “I like my life in Town A” and “I've made lifetime friendships”. She indicated that she wished to live with her father and that she did not wish to leave her friends and life in Town A, as she enjoyed it.  When asked about time spent with her grandmother she also indicated that there is a level of conflict between herself and her grandparents and mother in relation to the expression of their views about her father, that expression being negative comments which were difficult for her to hear. 

4. A feature of each of the s.62G of the Act family reports, was that it is evident that the maternal grandmother, and on the instances when the mother is present, the mother also, constantly criticises the father in the presence of the children. Additionally, the maternal grandmother consistently displays a lack of adherence to the parenting arrangements and seeks to alter arrangements, often at short notice, causing stress to the father. One example is her attending at changeover locations at a time later than that provided for in the relevant orders. When the grandmother picked the children up for the school holiday period in January 2018 she was about four hours late. Another is that historically she has not telephoned the children in accordance with the orders.

5. [X] is presently very angry with the maternal grandparents and in particular their pursuit of this litigation, and is presently unwilling to spend any time with the Applicant or her husband. Ms M’s evidence is that:-

   “At this present stage, due to [X]'s age and maturity and present strong views, in the family consultant's opinion, having orders that permit [X] to determine whether she spends time with Ms M Kalb may relieve Mr Causer of the burden of trying to compel the child to do so which is unlikely to be successful and would likely further entrench her position. The impression formed is that Mr Causer will do his best to try to promote a recovery in the relationship between [X] and Ms M Kalb.  However, as stated, much will depend upon Ms M Kalb's response to the situation and she would need to put her doubts to one side and try to positively accept [X]'s close and loving relationship with Mr Causer."

6. As a result of the expression of the children's wishes, and in particular [X], the recommendations of Ms M as at April 2018 were that the children spend time with their grandmother for one day each month, and that [X] spend time, according to her wishes. Otherwise Ms M recommended that arrangements be made for regular telephone communication between the children and their maternal grandmother. 

Conclusion

1. The father has provided a loving, caring, secure and safe home environment for the children. He has promoted the children's relationship with their mother and grandparents and has no apparent vindictiveness toward them.  Rather, he is committed to ensuring the children have enduring relationships with the maternal family members while protecting them from exposure to harm and maintaining a safe and secure home environment. This is despite the Applicant grandmother’s breach of orders of the Court and undertakings given to the Court, and her exposing of the children to highly derogatory comments made about the father in the presence of the children which, as should be obvious to her, adversely affect the children.

2. On the evidence before the Court, the best interests of the children are promoted by a dismissal of most of the Applicant grandmother's case. The father impresses as a thoughtful, caring and loving parent. He has particular insight into the needs of his daughters which is in stark contrast to that of the Applicant grandmother. The children's overall health, confidence and happiness has improved since they have been residing with their father, who has afforded them necessary stability. There is no evidentiary basis of the making of a sole parental responsibility order in favour of the Applicant grandmother. The father has the benefit of such an order rebutting the legislative presumption, as a consequences the earlier litigation between the father and mother. None of the s.60CC of the Act factors favour the Applicant, rather they all, where relevant, are provided for by the father. The children depend on him exclusively for their physical, emotional and financial well-being. His inclusive approach to the Applicant and maternal family members is commendable. He continues to extend the olive branch. The children are thriving in his care.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 21 May 2018