Kardamov and Kardamov and Anor

[2014] FamCA 103

FAMILY COURT OF AUSTRALIA

KARDAMOV & KARDAMOV AND ANOR [2014] FamCA 103

FAMILY LAW – PRACTICE AND PROCEDURE – Where the maternal grandmother seeks leave to file an application in relation to parenting orders of the mother’s children – Where the matter was previously finalised and the maternal grandmother was restrained from filing further applications without leave of the court – Where the application for leave is dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Kardamov Snr

1ST RESPONDENT: Ms Kardamov

2ND RESPONDENT: Mr Piper

FILE NUMBER: BRC 7232 of 2011

DATE DELIVERED: 17 February 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 17 February 2014

REPRESENTATION

FOR THE APPLICANT: Ms Kardamov Snr in Person

SOLICITOR FOR THE 1ST RESPONDENT:

Mr Bien

David Grant & Associates

FOR THE 2ND RESPONDENT: No Appearance

Orders

1. The Application in a Case filed 7 June 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kardamov & Kardamov and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7232 of 2011

Ms Kardamov Snr

Applicant

And

Ms Kardamov

1st Respondent

And

Mr Piper

2nd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 7 December 2007 her Honour Justice Flohm (who used to be a Judge of this Court) delivered judgment, or at least made final orders in respect of parenting proceedings that she had heard prior to that date over many days. Those parenting proceedings were a little different from the usual parenting proceedings that come on a day-to-day basis before this Court in that it was an application by the maternal grandmother of a number of children for orders that those children live with her or, in the alternative, that they spend time with her on a fortnightly basis and at other times. 

2. The respondents to the application were the mother and the father of the three children, S, J and M. Those children were the children of the respondents, Ms Kardamov and her partner at the time, Mr Piper. They were born in January 2001, March 2003 and February 2006. The children were at that time, about 8 years of age, nearly 7 years and nearly 2 years of age. Justice Flohm effectively dismissed the maternal grandmother’s application. She made final parenting orders that the children live with their parents. Relevantly, she went on to make orders that the children spend time with their maternal grandmother only as agreed between the mother, the father and the maternal grandmother. She also made an order that the grandmother is not to file any further application for parenting orders pursuant to the Family Law Act without first obtaining the leave of a Judge of this Court.

3. Relevantly, in her Reasons for Judgment, of course as she was required to, she expressed some reasons for making the orders that she did.  In particular, Flohm J said a lot of things about the maternal grandmother.  I am going to read into this decision that I make today some of those things.  For example, Justice Flohm said, in paragraph 73 on page 22:

   I am satisfied that the grandmother has a limited capacity to meet the children’s emotional needs and in the current circumstances of this case there is no evidence that the grandmother’s attitude is likely to change.  Her continuing suspicions about the parents’ care of the children and her readiness to involve outside authorities has the potential to destabilise this young family yet again and the grandmother seems entirely unaware of the harm that would flow to her grandchildren if this were to occur in the future.

4. She also says at paragraph 84 on page 25:

   …I take into account the divisive nature of the grandmother’s attitude to the parents at this time, and by divisive I mean the way in which the maternal family has been divided because of the grandmother’s ongoing litigation.

5. At paragraph 89 on page 26, her Honour said this:

   It is clear on the evidence that the grandmother is obsessed with the parents’ conduct and what she sees as its impact upon the children in the period prior to May 2005.  She is not convinced that in the period since the parents have changed.  It is hard to predict what lies ahead in terms of litigation but I have a feeling of disquiet that the grandmother, if unsuccessful in these proceedings, will not be deterred by the outcome, or the findings on which that outcome is based, from continuing to litigate and continuing to focus on the pre-2005 period when the parents conducted themselves in a manner of which the grandmother did not approve and a manner which she has been able to demonstrate to the Court on occasions justified her disapproval.

6. She goes on in paragraphs 91 and 92 to say:

   … It is hard to say whether the grandmother’s attitude towards the parents, which could only be described as a poisonous attitude, is based, as they assert, on a desire to punish them, the mother in particular, or on a desire to be proven right in relation to the appropriate standard to be applied to the parenting of young children.

   I am satisfied that it is probably a combination of both and I am satisfied that, whatever the motive, there has been no softening of the grandmother’s attitude.  …

   That “attitude”, as I have just reflected, her Honour described as a “poisonous attitude”.

7. At paragraphs 95 and 96 on page 28 her Honour said:

   … I am satisfied that if the grandmother, whilst she maintains her current opinion of and attitude to the parents, were able to exert any influence upon the children either directly or by involving them in medical examination and/or child protection authority investigation, that has the real potential to compromise the children’s current meaningful relationship with each of their parents.

   I have no doubt that the grandmother will not hesitate to undermine the current stability of the parents’ home which they share with their three children, and would have no regret if the outcome of her interference was to see the contentment in that household shattered, even by the shattering of the parents’ relationship with each other. …

8. At paragraph 97 her Honour goes on to say:

   In many respects, the grandmother is a potentially dangerous influence upon the children and a potentially dangerous de-stabiliser of the children’s currently happy home.

9. She went on in paragraph 103 in her Summary and Conclusion to say:

   I do not intend to change the children’s residence and I intend to ensure that the opportunity for the grandmother to have any influence on the children or their upbringing is very restricted indeed.

10. Her Honour said in paragraph 108 that:

    …the grandmother has demonstrated a position described at various parts of this judgment as obsessive, which has caused the Court disquiet as to the grandmother’s future plans for re-litigating the same issues. …

11. For that reason her Honour made the order that was sought by the Independent Children's Lawyer in that case that the filing by the grandmother of any future application for parenting orders must be preceded by the obtaining of leave by a Judge of this Court to do so.

12. The matter is back before this Court now, just over six years later, with the grandmother bringing an application for leave to be allowed to re-litigate or re-open parenting proceedings.  The maternal grandmother filed her Application in a Case seeking such leave on 7 June 2013.  Another Judge of this Court determined that it was appropriate that the grandmother’s application be served firstly on the mother and the father, rather than heard and determined ex parte and that is why it has taken now as long as it has from the filing of the application for it to be listed for hearing.  In the meantime, the mother of the children has been served and the father of the children has been served and the mother is here before me today represented by a solicitor and opposes the application by her mother, the maternal grandmother, to be given leave to commence parenting proceedings in respect of these children yet again.

13. The father has not appeared today but has filed an affidavit. In that affidavit, he says that he supports the mother’s application, thus presenting a united front of opposition against the maternal grandmother being given leave to reopen proceedings.  Of relevance, though, is the fact that a year or so after the litigation the parties did separate and the father himself has re-partnered and is now living in South Australia and the mother living in Queensland. There is also another child that figures in the proceedings now, the mother has a fourth child named B who was born in September 2009, almost two years after those proceedings that Justice Flohm determined were decided. 

14. When asked this morning what parenting orders she would be asking this Court for if leave was granted to her to commence parenting proceedings, the maternal grandmother informed the Court, quite readily and without hesitation, that she would be seeking an order for all four children of the mother to be living with her. She then went as far as saying that she would be seeking an order in respect of an unborn child that the mother is now pregnant with, to live with her.  No doubt she means after that child is born. 

15. The evidence upon which the maternal grandmother relies is in her affidavit filed on 7 June 2013 and then a fresh affidavit that she filed on 13 February 2014 which is essentially a response affidavit to evidence of the mother that was filed.  The affidavit that the maternal grandmother relies upon is lengthy, about 13 pages long, with 290 paragraphs, in very small font and with no spacing between the paragraphs. It is clearly written and prepared by the grandmother herself.  It contains a long narrative of allegations. In summary, they can be described as allegations against the parenting capacity of the mother in this case.

16. As I understand the evidence, in the years between Justice Flohm’s decision in late 2007 and 2011, the mother of the children still took the children to visit and spend time with the grandmother from time to time, notwithstanding Justice Flohm’s orders.

17. In the middle of 2011, the mother took the three children to their grandmother’s place to spend holiday time with her. At the end of that time, the mother went back to the grandmother’s home to again collect the three children to take back into her care, only to find that the grandmother had moved away from the residence, taking the children with her intending to keep them in her care, without any notice to the mother.  Such factual circumstances are often described as “holding the children over after a holiday visit”.  The mother then set about obtaining a recovery order from the Court, which she did and ultimately the recovery order was executed and given effect to by police. Police took the children into their custody and handed them back over to the mother’s care in accordance with the orders. 

18. The grandmother’s case before the court today for a re-opening is essentially based on much of the material that she raised before Justice Flohm, but, in particular, on matters that she says arose in her observations and care of the children in that period of time that she had them with her when she held them over.  In essence, she raises allegations of abuse of the children - physical, sexual and emotional abuse at the hands of their mother and at the hands of others whilst in the care of their mother. 

19. These are all allegations that the grandmother raised at the time with the State departmental authorities responsible for the welfare of the children and with the police in the State of New South Wales where she was living.  She also raised them with lawyers who she was seeking to obtain the services of through the New South Wales Legal Aid Office.  As I understand it, she was unable to get satisfaction from any of those people that she engaged, namely, Police, welfare department officers, Legal Aid office and lawyers.  

20. The application now being considered was ultimately prepared by the grandmother based on all of that material that came to her knowledge, she says in 2011. It was only filed though in June 2013, nearly some two years after those things allegedly came to her attention.  She has not seen the children since September 2011 and is really unaware of the current status of their wellbeing and their circumstances. Her daughter, the mother of the children, has chosen clearly not to communicate with her or allow the children to communicate with her or spend any time with her since she recovered them from her mother’s care back then. 

21. It is clear on the material that I have read and referred to, and it is clear from the exchange between me and the maternal grandmother this morning that she is satisfied that she did indeed take her complaints and particularly her allegations of concerns that the children had been and were being sexually abused, physically abused and emotionally abused in the care of their mother, to the appropriate welfare authorities.  It is clear, though, as she said to the Court this morning, she is unhappy and dissatisfied with the outcome of those notifications and complaints to welfare authorities, believing that they were not properly investigated. 

22. I am told by the mother through her affidavit evidence and instructions she gave to her solicitor in Court this morning that were conveyed to me, that following the period of time the children were with the grandmother in 2011 and then back in her care from September 2011 onwards, she was indeed subjected to departmental investigation about the care of her children. These investigations included visits to her home by departmental officers.  The last of those visits was in December 2011, the Court was told. 

23. I know nothing of the nature of the investigation that was conducted by the Department but I can, I believe at least, be satisfied that there has been investigation and that the outcome of the investigation was that these children were left in the care of the mother indicating, at least, a degree of satisfaction on the part of the Departmental investigative authorities in respect of the level of care that the mother was providing for the children. 

24. I am not satisfied on the evidence that the maternal grandmother put before me that there is any reason to believe that the matters of fact found by Justice Flohm to exist in respect of the maternal grandmother’s attitude to her daughter and her daughter’s parenting and the interfamilial relationships have changed.  Nothing that the maternal grandmother puts before me persuades me that the children’s best interests in this case, and, after all, that is what I am statutorily bound to consider as the paramount consideration in this determination, warrants the re-visitation at this point in time of parenting issues where the maternal grandmother seeks again to agitate for parenting orders that the children of her daughter live with her instead of with their mother.  I appreciate that she has concerns about her grandchildren, that she clearly loves them and would very much like to play a part in their lives, especially as she moves towards the twilight of her own life and as they rapidly move towards adulthood. 

25. However, the nature of the relationship between the maternal grandmother and the mother and indeed the father of these children is clearly a very poor and virtually non-existent one.  I do not even begin to unravel how that has come about or why or who is principally responsible or whether one person can be blamed and the other one cannot, but what I do note is that until the maternal grandmother withheld the children from their mother and raised all these allegations against their mother, the children were spending, what looked to be from the photos the grandmother showed the Court, some happy times with their maternal grandmother.  It seems that the maternal grandmother’s own actions may be very significantly responsible for the mother’s determination to not have any relationship with her own mother and to stand in the way of the children having a relationship with their maternal grandmother. 

26. I am not satisfied that the children’s best interests are served at this stage of their lives by again subjecting them to a bitter parenting dispute in this Court between their parents who, although separated, are at one and united in their  position, and their maternal grandmother who has previously been before the Court and agitated many of the same issues to such an extent that a Judge of this Court determined she should not be allowed to do so again in the future without the leave of the Court.

27. I am not convinced that leave should now be given and I will not be giving it.  I dismiss the maternal grandmother’s Application in a Case filed 7 June 2013.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 February 2014.

Associate: 

Date:  4 March 2014