Kantner & Salzer and Henderson
[2009] FMCAfam 342
•20 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KANTNER & SALZER and HENDERSON | [2009] FMCAfam 342 |
| FAMILY LAW – Children – best interests – family violence. FAMILY LAW – Children – grandparents. FAMILY LAW – Application to vary orders – Rice & Asplund. |
| Family Law Act 1975, s.60CC, Part VII, ss.60CC(2)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(f), 60CC(3)(g) Federal Magistrates Act 1999, s.17A |
| Gotch & Gotch [2009] FamCAFC 3 Miller & Harrington [2008] FamCAFC 150; (2008) FLC ¶93-383; (2008) 220 FLR 300; (2008) 39 Fam LR 654 Rice & Asplund (1979) FLC ¶90-725; (1978) 6 Fam LR 570 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598; (1993)11 ALR 545; (1993) 67 ALJR 886 |
| Applicant: | MS KANTNER |
| First Respondent: | MS SALZER |
| Second Respondent: | MR HENDERSON |
| File Number: | MLC 5593 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 5 March 2009 |
| Date of Last Submission: | 5 March 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Heinz & Partners |
| Counsel for the First Respondent: | Mr Curtain |
| Solicitors for the First Respondent: | Sarah Lia |
| Counsel for the Second Respondent: | No appearance by or on behalf of the Second Respondent |
ORDERS
The application filed 20 June 2008 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kantner & Salzer and Henderson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Melbourne |
MLC 5593 of 2008
| MS KANTNER |
Applicant
And
| MS SALZER |
First Respondent
| MR HENDERSON |
Second Respondent
REASONS FOR JUDGMENT
The applicant is the paternal grandmother of [X] born in 2005. Pursuant to orders made by Federal Magistrate Walters on 7 May 2007 in proceedings between the applicant, the mother and an Independent Children’s Lawyer, the grandmother was permitted to communicate with the child by means of ‘cards, letters and gifts not more frequently than once per month’.
The orders of 7 May 2007 also provided for the mother to attend upon a counsellor nominated by the Independent Children’s Lawyer for the purpose of non-reportable therapeutic counselling and support with respect to the issues arising out of the proceedings. The Independent Children’s Lawyer was also permitted to provide affidavit material and professional reports in relation to the proceedings to the counsellor prior to counselling commencing.
On 23 May 2008, the applicant applied in the Magistrates Court of Victoria at Ballarat for orders discharging Federal Magistrate Walters’ orders and seeking orders for personal contact with the child at the Ballarat Contact Service initially for 2 hours per fortnight but increasing to one weekend per month, and for the mother to inform the paternal grandmother as to her residential address and telephone number.
The respondent asks that the application be dismissed, relying upon Rice and Asplund (1979) FLC ¶90-725.
Background
The applicant grandmother was born in 1961 and is now 47 years of age. The father of the child was born in 1979 and is now 29 years of age. The mother was born in 1987 and is now 21 years of age. The mother and father had a relationship for only around 2 years.
On 21 March 2005, the father had attempted to injure the mother using a motor vehicle. He was sentenced for this offence on 12 August 2005.
On 18 April 2005, the father entered the maternal family home, attacking the maternal grandmother and maternal grandfather with an axe. As a result of the attack, the maternal grandmother suffered a fractured skull and deep laceration to her forehead, and the maternal grandfather lost a portion of his ear (bitten off by the father during the attack). On 5 May 2006, the father was sentenced to 9 years imprisonment as a result of the attacks. The child was not born until August 2005, some months after the attack on the maternal home.
On 10 October 2006, the maternal grandmother died as a result of a condition unrelated to the attack, although the attack reduced her quality of life in her last years.
It is apparent that the relationship between the mother and the paternal grandmother is very poor. There are considerable allegations made by each that one has abused or ignored the other. Having regard to the axe attack by the father, it would be surprising if the relationship between the mother and parental grandmother was not poor.
At the time that the consent orders were made, there were opinions from a clinical psychologist. On the 24 April 2007, the psychologist undertook an assessment of the paternal grandmother, concluding:
Opinion:
At this stage supervised access between [the grandmother] and [the child] is unlikely to be helpful in sponsoring a positive relationship. [The grandmother] would be better advised to be patient and wait until [the child] is capable of understanding what may be required of him and has both the psychological and emotional skills to cope with possible access. At such time that access will probably need to be engineered carefully in terms of supervision, time spent on access and its frequency. (emphasis added)
On the 30 April 2007, the same psychologist undertook an assessment of the mother, stating
Summary and Conclusions:
[The mother] answered all questions put to her fully. In doing so she portrayed a relationship with [the father] that, while initially relatively uneventful, became increasingly violent. Despite this, she attempted to save the relationship. After the couple returned from Queensland to Victoria, they agreed to live with [the mother’s] parents until after the baby was born. In addition, [the mother] stipulated that if during this time [the father] left, then she would not continue with the relationship. After he left her parents’ house, [the father] became increasingly violent, resulting in the incident on 21 March 2005 when he was arrested. He was released on bail and, according to [the mother], [the grandmother] failed her bail undertakings and [the father] continued to harass the family, finally breaking into the house and assaulting her parents with an axe. [The mother] denies a close relationship with [the grandmother], whom she views as irresponsible, as failing to protect her and as condoning [the father’s] behaviour toward her. Since [the father’s] conviction the only contact, according to [the mother], has been threatening and abusive.
[The mother] understands that the access to [the grandmother] is argued around the right of a grandchild to spend time with a grandparent. She indicated that she understood the importance of grandparents in a child’s life. In this count she believes that [the child] has access to such relationships because he lives with his grandfather and both [the mother’s] grandmothers are alive and act as grandparents to [the child]. [The mother] said that [the child] has access and good relationships with a number of family members, friends of family and any of their offspring. She wondered what benefit he could have from a grandmother who was antagonistic to [the mother] and was likely to expose him to violent and abusive people. She was also concerned that [the grandmother] might abscond with [the child].
[The mother] expresses very clearly that she does not trust [the grandmother] and feels threatened by [the grandmother] and her family. She is very concerned about the safety of [the child] if he is allowed access to [the grandmother], because he is likely to be exposed to other members of the family who she also views as complicit with [the father].
[The mother] argues that her son is a healthy, happy child who lives in a safe and loving environment. This appeared to be the case in the brief observation of the arrangements she had made for the interview, and the impression of a child that was appropriately active in the company of another under supervision of an adult friend.
I have met [the grandmother] (16 April) and understand her argument. However, my impression was that between [the grandmother] has not considered how [the child] might react to a stranger. In addition, I am concerned that the existing tensions between the families are likely to be picked up by [the child], regardless of what is said or not said to him by either parties. According to [the mother], [the child] has access to an extended family and presumably understands these relationships as a two year old. It is unclear how he will understand the requirement to meet someone else without the support of his mother. As I understand it, if there was to be supervised access in a Child Contact Centre, [the child] would not be attended by his mother, largely because of the continued animosity between [the mother] and [the grandmother]. The benefits of right to access, from [the child’s] point of view, are likely to be doubtful.
Opinion:
It is my opinion that the right to access to [the grandmother], [the child’s] paternal grandmother, must be viewed from the point of view of a two year old child. As I understand it, the Amended Family Law Act, 1975, says that the child has a right to spend time with the grandparent. At the age of two, [the child] is unable to understand that right. Under the current circumstances, given his age and understanding and the current family tensions, [the child] is unlikely to be able to fully benefit from access to his paternal grandmother. (emphasis added)
Whilst there were no findings forming the foundation of the consent orders, (and none would be expected) it is nonetheless appropriate to commence considerations in this application on the basis that the consent orders were the appropriate parenting orders to be made with respect to the grandmother as at the date those orders were made.
The Current Application
The paternal grandmother, in her current application, relies upon passages from the psychological reports and says:
12. That in light of the recommendations contained in the subsequent Psychological Reports, I consented to Orders that did not provide for any face-to-face time with [the child] as the reports made it clear that [the child] would not be able to understand or benefit from such an arrangement at that time. The Orders permitted me to maintain a relationship with [the child] by way of sending cards, gifts and letters to him which I did on a monthly basis. Annexed hereto and marked “SJK2” is a true copy of the Orders.
13. That there was a notation to the Orders which provided as follows:
“The Applicant Grandmother affirms and restates the contents of paragraphs 42-45 (inclusive) of her Affidavit sworn 27 April 2007”
Annexed hereto and marked “SJK3” is a true copy of my Affidavit sworn 27 April 2007.
14.That paragraphs 42-45 of my Affidavit sworn 27 April 2007 refer to my:
(a) Sadness and regret at the deterioration of my relationship with the mother;
(b) Desire to build a relationship with the mother;
(c) Desire to meet and be involved in [the child’s] life;
(d) Acknowledgement of the horrifying incidents of March 2005 which were perpetrated by my son;
(e) Understanding as to the mother’s ill-feelings towards me and my desire to restore our relationship.
The paternal grandmother refers to orders requiring the mother to engage in non-reportable therapeutic counselling, which the mother only commenced since the most recent application was filed; however, the mother has now commenced that course of counselling. The course of counselling will not be reportable, as provided for in the orders.
The paternal grandmother also says that the mother relocated with the child after the final orders were made and a number of packages sent to the child were returned to her, on the basis that the child had left the address and was at an unknown address. The paternal grandmother annexes what she says are copies of the postal records; however, they only show the stamps and the ‘return to sender’ stickers, not the addresses she placed on the items.
The mother, in her responding affidavit, provided evidence of the redirect service put in place with Australia Post and says that on a number of occasions the paternal grandmother had insisted upon using the father’s surname for the child, rather than the surname that the child uses. For this reason, it seems apparent that the postal redirect would not have included packages without the child’s correct name. The mother also gives an example of a certificate provided by the grandmother referring to the child using the father’s surname. The paternal grandmother has not filed any further material addressing this question. It appears to me, on the material presently before me and the state of the evidence, that it is difficult to conclude that there is an arguable case that the mother has not complied with the orders relating to postal material. It also appears that the grandmother has continued to use the father’s surname for the child despite the obvious emotional issues it would enliven.
The substance of the grandmother’s current case as argued is set out in paras.23 to 32 of her affidavit filed 4 December 2008 as follows:
23. That when the Orders were made in May 2007, [the child] was 21 months old.
24. That if the matter is listed for final hearing at the Ballarat sittings of this Court in March 2009 [the child] will be 3 years and 7months of age.
25. That by March 2009, almost two years will have elapsed since the previous orders.
26. That [the child] will have matured significantly since the Orders were made in May 2007 and should now have the ability to understand relationships, feelings and language and an emerging individuality which he did not have at the time the previous Orders were made.
27. That with the effluxion of time, and the assistance of counselling, I believe that there should have been significant changes in the Mother’s life (including her capacity to accept and support the right of [the child] to know me and benefit from a relationship with me), since the Orders were made in May 2007.
28. That I have continued to communicate with [the child] by way of gifts and letters to the PO Box provided to me since the interim hearing in August 2008.
29. That I do not believe that the mother participated in the therapeutic counselling referred to in the Orders made in May 2007.
30. That I believe the mother’s relocation and failure to notify anyone in relation to this reflects her desire to completely exclude me from [the child’s] life.
31. That I believe it is important and in [the child’s] best interests to know and have a relationship with me and I believe that he is now of sufficient age and understanding to be able to appreciate and benefit from face-to-face time with me.
32. That I am willing to develop this relationship slowly, gradually and carefully to ensure [the child’s] best interests are promoted and prioritised.
During the course of argument, Counsel for the grandmother also tendered a paper written by Mr Vincent Papaleo, an experienced clinical psychologist in Victoria, who has a great deal of experience in family law matters. In particular, Mr Papaleo describes the 3-5 year age range in developmental terms as follows:
3-5 Years:
The process of becoming increasingly separate continues into preschool years. Children by this stage have a better developed ability to understand language, relationships and feelings, and overall their cognitive development has advanced. By becoming increasingly able to maintain a mental image of the comforting parent when separated for long periods of time and because they have been able to establish a stable, internal representation of their attachment figures, they are now able to launch into the world without the caretakers constant presence.
The developmental thrust during this stage is towards the establishment of greater separation. Children during this stage of development show a greater negativism as part of their emerging individuality. Testing of limits and containment by parents become an essential part of establishing a sense of the child’s own security, amidst a need for external control to assist with the beginning of the establishment of impulse control. The development of language becomes particularly important insofar as issues of residence and contact are concerned, and the child now starts to understand concepts such as time relationships, the repetition of which helps a child sustain themselves through the contact period. They begin to understand the concept of being away for a number of sleeps, and language provides them a medium through which the other parent becomes aware of what did and did not occur during the contact and the child’s’ feelings about this. Towards the end of this stage, there is also the emergence of magical thinking, which reflects the child’s belief that what they say and they think can have an impact on what happens in the environment around them. There is also a growing interest in peers, school and activities outside of the family, and the beginnings of a greater identification with the same sexed parent. (emphasis added)
The paternal grandmother did not provide any evidence specifically addressing the potential of a child of this child’s age to be able to understand what might be required of him under the orders she proposes and whether or not a child of that age could be expected to have the psychological and emotional skills to cope with the consequences of such orders in a case such as this. It does not appear to me that the general paper of Mr Papaleo addresses that question in the context of the issues in this case which involves extraordinary levels of violence.
Similarly, the paternal grandmother’s material does not address the concerns raised by the psychologist in her second report, as follows:
I have met [the grandmother] (16 April) and understand her argument. However, my impression was that [the grandmother] has not considered how [the child] might react to a stranger. In addition, I am concerned that the existing tensions between the families are likely to be picked up by [the child], regardless of what is said or not said to him by either parties (sic). According to [the mother], [the child] has access to an extended family and presumably understands these relationships as a two year old. It is unclear how he will understand the requirement to meet someone else without the support of his mother. As I understand it, if there was to be supervised access in a Child Contact Centre, [the child] would not be attended by his mother, largely because of the continued animosity between [the mother] and [the grandmother]. The benefits of right to access, from [the child’s] point of view, are likely to be doubtful.
The legal principle that must be applied is set out in Rice and Asplund (1979) FLC ¶90-725 at 78,905 when Evatt CJ said:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the application that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p.75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should be best served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
The most recent decision of the Full Court dealing with the issues that arise in cases such as this is Gotch & Gotch [2009] FamCAFC 3. In that decision the Full Court reiterated the comments in Miller & Harrington [2008] FamCAFC 150 at [69] and following, which makes clear that, in considering an application such as this, the relevant considerations under Part VII of the Family Law Act apply, notably including the requirement that the paramount consideration be the best interests of the child.
It is appropriate to first consider the grandmother’s case at its highest, to determine if she has a prima facie case that there is a sufficient change in circumstances to justify further proceedings, see Gotch at [3]. This question must be considered through the prism of Part VII of the Family Law Act. Naturally, the child’s best interests are paramount and the relevant considerations described in s.60CC.
Ordinarily, a relationship between a child and grandparent is a special one that brings great benefits to a child. Most adults retain treasured memories of grandparents through their lives. This is a factor that weighs heavily in this case. However, there are other factors that weigh heavily in this case.
The child in this case is still not of an age where one would ordinarily expect that he could understand the issues and tensions face to face contact would bring. There is nothing to suggest that the child is now able to understand any requirement to meet the applicant without the support of his mother (see the psychologist report). In the absence of expert evidence it is difficult to see that the development of a child in the 3-5 year old stage could be sufficient to show that a change to the existing orders was warranted on the basis of his developmental stage. The capacity to start to understand concepts such as ‘time relationships’ and ‘magical thinking’ can not be equated with understanding the emotional issues that will flow from the orders sought by the grandmother in a case such as this. As a result, there remains risk of psychological harm to the child (s.60CC(2)(b)). The child has no relationship with the grandmother at present (s.60CC(3)(b)).
The child’s primary carer is unwilling or unable to facilitate a relationship as a consequence of the horrific violence by the father (s.60CC(3)(c)). There is likely to be an effect of confusion for the child if there is contact at this time, although also relevant is the loss of the relationship with the paternal grandmother at this time if orders are not made (s.60CC(3)(d)).
There is a distinct lack of evidence that the grandmother now has capacity to meet the child’s needs (s.60CC(3)(f)), the focus of her affidavit being entirely on the mother without any self assessment addressing issues in the previous reports about her.
For the purposes of this application I note that the extent to which the mother is psychologically unable to cope with contact could only be fully ascertained through assessment and cross-examination of the mother in the proceedings (see generally the comments of the High Court in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598; (1993)11 ALR 545; (1993) 67 ALJR 886). As a result, I have not taken into account the claim that the mother could not cope with contact, for the purpose of this application.
The material does not show a prima facie case that the child will have the maturity to understand the emotions that contact are likely to involve, nor the explanations that will be needed to describe the relationship (s.60CC(3)(g)).
This is a case where extreme violence was perpetrated by the father. Even if the paternal grandmother has shown a demonstrable rejection of the father’s behaviour, he remains her son and closely related to her. As a result the mother’s rejection of the father’s family cannot be simply dismissed as irrational or specious in the context of this case (ss.60CC(3)(i) and (j)). It may be that the terrible long term impacts of the father’s extreme violence will affect not only the victims of his axe attack but the child and many of the child’s extended family, including the child’s mother and paternal grandmother, for the rest of their lives. This is not to suggest that any relative should be punished for the conduct of the father, but to acknowledge that the emotional impact and consequences of this horrific behaviour do extend well beyond the father and those the subject of the physical attacks.
It does not appear to me that the grandmother has shown a prima facie case, even taking her case at its highest, to show that it is necessary or proper, nor in the best interests of the child, for the matter to be relitigated. If I am wrong in this respect, it is nonetheless a case that should be determined summarily having regard to s.17A(2) of the Federal Magistrates Act, as having no reasonable prospects of success on the material before me, even ignoring the mother’s claims as to the potential impact upon her of any orders, having regard to the High Court’s comments in Webster v Lampard.
I therefore dismiss the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Robin Smith
Date: 20 April 2009
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