Kardamov and Kardamov and Anor

FAMILY COURT OF AUSTRALIA

KARDAMOV & KARDAMOV AND ANOR

[2007] FamCA 1737

FAMILY LAW - CHILDREN - Best interests - with whom a child lives

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(1), 60CC (2)(a), 2(b), (3)(a)-(m), (4), (4A), 61DA, 65DAA

APPLICANT:

Mrs Kardamov (Snr)

FIRST RESPONDENT:

Ms Kardamov

SECOND RESPONDENT:

Mr Piper

INDEPENDENT CHILDREN’S LAWYER:

Adams & Associates

FILE NUMBER:

NCF

647

2005

DATE DELIVERED:

7 December 2007

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

FLOHM J

HEARING DATE:

28-31 May 2007, 1 June 2007, 26 October 2007 and 7 December 2007

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Mr I Duane

SOLICITOR FOR THE RESPONDENT:

Greg Tyler & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms J Byrne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Associates

Orders

That all previous parenting orders in relation to S born … January 2001 and J born … March 2003 (“the children”) are vacated.
That the children are to live with Ms Kardamov (“the mother”) and Mr Piper (“the father”) and they are to be responsible for the daily care of the children.
That the mother and the father are each to have responsibility for decisions relating to the major long-term issues for the children.
That the maternal grandmother Mrs Kardamov (Snr) (“the grandmother”) is to spend time with the children as agreed between the mother, the father and the grandmother.
That the grandmother may communicate with the children by way of letter, card or gift, with the mother and the father to assess the suitability of any item sent before passing it on to the children.
That the grandmother is not to file any further application for parenting orders pursuant to the Family Law Act 1975 without the prior leave of a Judge of the Family Court of Australia.
That the Independent Children’s Lawyer’s oral application that the grandmother pay half of the Independent Children’s Lawyer’s costs is dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.
That all outstanding applications are dismissed and removed from the Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 647 of 2005

MRS KARDAMOV (SNR)

Applicant

And

MS KARDAMOV and MR PIPER

Respondents

REASONS FOR JUDGMENT

INTRODUCTION

The children the subject of these proceedings are two boys S born in January 2001 and J born in March 2003 (“the children”). Their maternal grandmother, Mrs Kardamov (Snr) (“the grandmother”) wants the children to live with her. The children's parents, Ms Kardamov and Mr Piper oppose that outcome, and want the children to remain living with them.
If the grandmother is unsuccessful in her application for a change of residence she wants to spend time with the children each weekend and for part of each school holidays. However the parents are seeking orders that there be no face to face contact between the children and the grandmother. If she is successful in these proceedings, the grandmother is seeking orders that the parent’s time with the children be supervised and that they both undergo regular alcohol and drug testing.
This is, in many respects an unusual case. Whilst it is not unusual for a grandparent to be intervening in proceedings between parents in the Family Court, it is, in my experience, somewhat unusual that a grandmother should be seeking to change the residence of two young children who are living in an intact family with their biological parents and other siblings.

THE PARTIES' PROPOSALS AND THE ORDERS SOUGHT

The orders sought by the grandmother were sought in an Amended Application filed 25 July 2006. At the conclusion of the hearing the grandmother's position was unchanged.
The orders sought by the parents were sought in an Amended Response filed 8 August 2006. At the conclusion of the hearing the parents' position remained unchanged.
At the conclusion of the hearing the Independent Children's Lawyer sought orders which supported the parents' position.

THE RELEVANT LEGAL PRINCIPLES

Section 60B of the Family Law Act sets out the object of Part VII and the principles which underlie that Part. That section states:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) 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); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) [This sub-section is not relevant to these proceedings.]
Section 60CA of the Family Law Act states that in determining matters in which parenting orders are sought the Court must regard the best interests of the child as the paramount consideration. Section 60CC(1) states that in the course of deciding what is in the child’s best interests the Court must consider the matters set out in s 60CC(2) and s 60CC(3). Those sections are:
Primary considerations
S.60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
S.60CC(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Another aspect of the amendments which is relevant to this matter is the rebuttable presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility, see s 61DA, and in the event that an equal shared parental responsibility order is to be made then consideration must be given firstly to whether or not the child should spend equal time with each parent and if that order is not to be made then consideration must be given to the child spending substantial and significant time with each parent. However, the legislation makes it clear that in considering whether a child should spend equal or substantial and significant time with each parent, the Court must not make such an order unless it would be in the child’s best interests to do so and that such an arrangement is reasonably practicable.

THE RELEVANT BACKGROUND

The material contains a number of factual issues which will be addressed in the course of the judgment. The essential background of the case is as follows.
The grandmother was born in 1948 and is now aged 59 years. The father was born in 1981 and is now aged 27 years. The mother was born in 1984 and is now aged 23 years.
In March 2000 the parents commenced cohabitation. When the mother became pregnant with S the parents moved into the grandmother’s home and resided in that home with the grandmother and the mother’s sister E, who suffers from cerebral palsy and epilepsy and is in a wheelchair.
In January 2001 S was born and he is now aged 6 years. In April/May 2001 the parents and S moved out of the grandmother’s home. The grandmother spent time with S on a regular basis. In September 2001 the parents and S moved back into the grandmother’s home where they remained living until January 2002. In January 2002 the parents moved out of the grandmother’s home and moved into the paternal grandparent’s home. In March 2002 J was born and he is now aged 5 years.
In March 2002 the parents and the two children moved into a unit in regional New South Wales. At that time the father joined the Australian Defence Force.
In September 2002 the father received a posting to G with the Defence Force and the parents and the two children moved to G.
In March 2003 the mother telephoned the grandmother and informed her that she was having difficulty caring for the two young children. The grandmother suggested that the children live with her. The grandmother cared for J for a period of two weeks, at the end of which the mother took J back to G.
In September 2003 the paternal grandparents took J to the grandmother who cared for him for a couple of weeks. In October 2003 the father was posted back to T and the parents and two children again moved back to live with the grandmother. At this time there were significant problems in the relationship between the parents. In December 2003 the father moved to reside at the military base and the mother left the children in the grandmother’s care and went to G. The grandmother alleges, and the mother denies, that on the mother’s return to T the mother said she felt suicidal. At that time the mother obtained work doing door-to-door sales in T.
The mother alleges that in October 2004 the parents again separated. In January 2005 the mother obtained Department of Housing accommodation. The mother alleges, and the grandmother denies, that the grandmother refused to allow the mother to take the children to live with her in her new accommodation.
In May 2005 the parents reconciled and the mother removed the children from the care of the grandmother with whom they had been living for 12 months. This caused a significant incident and the police were involved. Since that time the children have lived with the parents, initially in the Newcastle area and recently at Defence Force accommodation at the military base.
In May 2005 the grandmother filed an Application in the Family Court. On 19 October 2005 Judicial Registrar Johnston made interim parenting orders including orders by consent in relation to the grandmother’s contact with the two children.
Since those orders were made the grandmother has made no effort to spend time with the children in person, by telephone or by cards or gifts. The grandmother filed an Application for Review of the Judicial Registrar’s orders.
In February 2006 the parents’ third child M was born and she is now aged 22 months.
In mid 2006 the parents and the children moved to reside at the military base at T.
The matter was listed for final hearing on 3, 4 and 5 October 2006. The hearing was vacated due to the grandmother’s non-compliance with directions for the filing of affidavit material.
The final hearing was listed for five days commencing 28 May 2007. The hearing was part heard and stood over to 26 October 2007. On that date the matter was again stood over part heard. The hearing concluded on 7 December 2007 and an oral judgment was delivered on that day.

THE MATTERS IN ISSUE BETWEEN THE PARTIES

(a) The grandmother contends that the orders sought by her are in the children's best interests because:
i)she was very involved in the children's care in their early years, being primarily responsible for the children's care whilst the mother resided with her and providing their sole care for about 12 months over the 2004/2005 period;
ii)the mother and the father accepted no responsibility for the children's care at a time when their lifestyle was characterised by drug and alcohol abuse, domestic violence and association with undesirable persons;
iii)the mother and father abandoned the care of the children to the grandmother to allow them to continue their own lifestyle referred to in (ii) above;
iv)whilst in the parents' care the children have been subjected to serious physical abuse, emotional abuse and possibly sexual abuse;
v)although the grandmother has not spent time with the children since about September 2005, the grandmother continues to have concerns about their care and is firm in her views that the parents' lifestyle and capacity to parent remains unchanged.
(b) The parents contend that the orders sought by them are in the children's best interests because:
i)the mother has been involved in the children's care, with the assistance of the grandmother, since the children's birth and has been their primary carer since May 2005;
ii)despite some intermittent relationship difficulties in the past the parents have been in a relationship for approximately six years. That relationship is now characterised by stability and mutual commitment;
iii)the parents did have difficulty coping with their children when they, and the children, were young and they sought assistance from both the maternal grandmother and the paternal grandparents, but the maternal grandmother refused to return the children to the parents when their relationship and lifestyle became more settled;
iv)the parents have matured and attained a responsible attitude to parenting. They have now demonstrated a capacity to meet all the children's needs;
v)after the children were removed from the grandmother, over the grandmother's protests, and were returned to the permanent care of the parents, the grandmother has sought to destabilise the parents' household by repeatedly initiating involvement by child protection authorities and initiating Family Court proceedings and other litigation. That destabilisation will continue in the future if the children spend time with the grandmother;
vi)the grandmother has chosen to have no contact at all with the children since about September 2005 and has demonstrated no commitment to maintaining and developing the grandmother/ grandchild relationship;
vii)by virtue of (vi) above and the grandmother obtaining an Apprehended Violence Order, the mother has been kept away not only from the grandmother but also from her sister, E, who lives with the grandmother. This demonstrates the grandmother's divisive approach to family relationships and her desire to punish the mother for reclaiming the two children;
viii)a residence order in favour of the grandmother will separate the children from their 18 month old sister, M. The grandmother does not seek any order that would provide M with an opportunity to spend time with the grandmother and her brothers and, indeed, the grandmother has sought no orders at all in her favour in relation to M.

APPLICATION OF THE LEGAL PRINCIPLES TO THE CIRCUMSTANCES OF THESE PROCEEDINGS

First I will deal with the primary considerations set out in s 60CC(2)(a) and (b).

The Primary Considerations

s 60CC(2)(a) – The benefit to the children of a meaningful relationship with both parents.

S and J, like all children everywhere, will benefit from a meaningful relationship with each of their parents. The parents say that the two children do have a meaningful relationship with each of their parents, living as they do with both their parents in an intact and happy family. They say that the children's relationship with their parents would be destabilised if the grandmother were to spend unsupervised time with the children.
The grandmother says that there could not be a meaningful relationship between the children and each of their parents in circumstances where the children are neglected, abused and exposed to domestic violence.
The challenge for the Court in this case is to determine which of those contentions are borne out by the evidence and whether a meaningful relationship with each parent can be both achieved and/or maintained and if so how. It seem to me that in this case, as in many others, that determination will be assisted by firstly considering the primary considerations set out in s 60CC(2)(b) and the additional consideration set out in s 60CC(3). Accordingly, I reserve my determination in relation to 60CC(2)(a).

s 60CC(2)(b) – The need to protect the children from physical or psychological harm, from being subjected to abuse, neglect or family violence.

The grandmother alleges that whilst in the care of the parents the two children have been and continue to be subjected to physical abuse, neglect, and have been/are exposed to family violence. She argues that there is a need to protect the children from the physical and psychological harm which flows to them from such abuse and neglect.
In determining whether or not the grandmother has made out her case I take into account all of the evidence on the issue, including the following unchallenged evidence:
i)that the parents on one occasion allowed a young couple to sleep on a mattress in J’s room when they were living in G, thus exposing the child to the possibility of witnessing sexual activity;
ii)that the parents on one occasion left the two children with babysitters who the parents later discovered had been using marijuana. That also occurred when the parents were living in G;
iii)there was an incident, also in G, involving the police being called, when a guest whom the father had asked to leave returned with “reinforcements”, i.e. a group of other men. The police, it is alleged, headed off an actual fight.
Taking into account all of the evidence, I am satisfied that in the early days when these very young parents had very young children there was a tension between wishing to continue their carefree teenage life and the no doubt unwelcome demands of responsible parenting. There are many indicators that at that time they were not coping with their domestic situation, including lack of stable accommodation and difficulties in their own relationships. They sought help, at times clearly delegating the day to day responsibility for the children’s care to the grandmother and clearly disappearing from the children's lives completely from time to time.
However, in relation to the latter, it is difficult to know whether it was the parent’s reluctance to be involved with their children’s care or whether it was easier to stay away from what appears to have been the grandmother's judgmental and rigid attitude to what she saw as the mother's and father's inappropriate conduct towards and neglect of the children.
I am satisfied that there was probably some inappropriate conduct and neglect of a minor nature but the overwhelming impression the Court has of the

pre-May 2005 period is that the parents, or when they were separated for a period the mother, chose to seek the grandmother's or paternal grandparents' assistance when she was not coping rather than attempt to “go it alone”. The latter course may well have led to serious neglect and abuse. A choice was made to avoid that outcome by seeking appropriate family assistance.
I am not satisfied that the grandmother has made out her case that the children currently need protection from the harm of abuse, neglect or domestic violence basing this contention as she does on the evidence of the quality of the parents' care of the children in the pre-May 2005 period. In reaching this finding I make it clear that I have taken particular account of the specific matters raised by the grandmother in her very thorough cross-examination of each parent and the specific matters raised by the grandmother with the child protection authorities and with the Court.
I know that the grandmother has been disappointed by the response, or what she sees as the lack of response, by DOCS and I am satisfied that this is based on the grandmother's genuine belief that the children did not receive appropriate care and, indeed, were subjected to abuse in their parents' care at the relevant time.
I am satisfied that the grandmother's genuine belief continues to this day and the grandmother cannot be swayed from her position, which includes the assertion that notwithstanding that she has known little about the parents' and the children's domestic situation since May 2005 continues to hold the view that there has been no improvement and that the passage of time and attaining maturity and stability has not improved the parents' sense of parental responsibility or their care of the children.
Despite the genuineness of the grandmother's view, when looked at objectively I am of the view that the grandmother has not made out her case on this issue.
In accordance with the requirements of s 60CC I treat those two considerations as the primary or most important issues.

ADDITIONAL CONSIDERATIONS

s 60CC(3)(a) – The children’s views

Given the children's ages, this is not relevant to these proceedings, a view clearly shared by the Court Counsellor who did not canvas even S’s views. It is clear that any observations made or recommendations made by the counsellor about this issue are based on the children's assessed relationships with various persons.

s 60CC(3)(b) – The children’s relationship with each of their parents and others.

In determining the quality of the relationship between the children and significant others, I take into account all of the evidence, including that contained in the Court counsellor's report in relation to the parents at par 33 of the Family Report, and to the grandmother and E at par 38 of the Family Report.
I am satisfied that the boys have a very close and loving relationship with their parents and with M.
I am satisfied that the children remember the grandmother and E with great affection.

s 60CC(3)(c) – Each parent’s willingness and ability to facilitate and encourage the children’s continuing relationship with the other parent.

As to the grandmother's willingness and ability, all of the evidence would appear to demonstrate that in the pre-2005 period the grandmother had no difficulty allowing or facilitating the mother spending time with the children provided that she was satisfied that the children would be properly cared for.
There is clear evidence that during that period, whenever the children were in the care of the grandmother and the father wished to see them, then that would be arranged between the mother and the father, as it is clear on the evidence that the grandmother was certainly not encouraging the involvement of the father in either the mother's or the children's lives.
However, I am satisfied that when, in 2005, the mother made it clear to the grandmother that she wanted the children returned to her and the father, the grandmother became less cooperative with the mother herself, refusing to allow the children to be returned to their parents.
Ultimately, the children had to be forcibly removed from the grandmother; by that I mean J was taken from the grandmother's home in her absence by the mother and a friend and the child protection authorities and/or the police directed the grandmother to hand S to the mother.
Following interim residence orders being made by the Court in the parents' favour and contact orders being made in the grandmother’s favour, each contact period thereafter was characterised by complaints by the grandmother to authorities about the parent’s care of the children. But there appears to be no evidence before me that there was any attempt by the grandmother to retain the children again in order to keep them away from the parents.
However, that does not mean, of course, that the grandmother would not have preferred to do that and I am satisfied that one of the reasons behind her continued attendance upon the child protection authorities was to obtain their support for her keeping the children in her care once again.
As to the mother's and father's willingness and ability to encourage the children's relationship with the grandmother, there is certainly no evidence that prior to May 2005 the parents did other than encourage the children to spend time with the grandmother. And, indeed, it was in that period that the relationship between the children and the grandmother developed.
When interim residence orders were made in the parents' favour there is no suggestion that the parents did not make the children available, as ordered, to see their grandmother in the period before October 2005. And thereafter it seems that the grandmother has not wanted to spend time with the children. Accordingly, it could hardly be said that the parents at that time showed an unwillingness or an inability to facilitate and encourage the children's relationship with their grandmother.
However, some two years or so later, it seems that now the parents have hardened their position towards the grandmother, now taking the view that it would not be in the children's best interests to spend time with their grandmother in the future.
In the intervening period there have been “olive branches” held out by the parents to the grandmother including the mother arranging for the children to send her a Christmas card at the end of 2005, but that resulted in an attempt by the grandmother to have that gesture classified as a breach of an existing AVO order.

s 60CC(3)(d) - The likely effect of a change to the children's circumstances.

Regardless of the children's somewhat itinerant existence and the variety of carers they had prior to about mid-2004, and that for one year thereafter the grandmother provided their primary care, from May 2005 to the present time they have been in the care of their own parent in a household joined about 18 months or so ago by a sister M. That is the environment and routine to which the children are now accustomed. They are attending school or preschool in the area where they live with their parents and no doubt their peer friendships revolve around those schools/preschools and their local area.
If orders were made as sought by the grandmother, there would be a physical change of home and school, a change from the routines in their home and school with which they are familiar but, more importantly, a change of their primary carer and a significant interruption of their relationship with each of their parents and their sister.
I am satisfied that would have a significant impact upon each of these children. There is no evidence before me on which I could find that it would have a positive impact on the children and no evidence which I could find that the children would cope with the change.

s 60CC(3)(e) -The practical difficulty and expense of the children spending time with and communicating with the parties.

This is not relevant to these proceedings.

s 60CC(3)(f) - The capacity of each parent and other relevant persons to provide for the children's needs including their emotional and intellectual needs.

There is no evidence before me to suggest that the grandmother does not have the capacity to provide, as a resident or contact parent, for the boys’ physical and intellectual needs. The Court, however, has a great deal of concern about the grandmother's capacity to provide for the children's emotional needs.
It appears to the Court that the grandmother has a fixed idea, even an obsession, about the parent’s, and in particular the mother's, capacity to meet the children's needs. That appears to be based on the mother's promiscuous and irresponsible conduct as a teenager which the grandmother believed, and she may well be right, involved the use of drugs and alcohol. The grandmother also believes that the mother’s permissive lifestyle has ultimately resulted in an unsatisfactory liaison with the father whom the grandmother clearly dislikes very much.
The grandmother cannot be persuaded to the view that many years later, the parents' first child now being six, that they have acquired a level of maturity which is consistent with a responsible attitude to parenting. The grandmother cannot acknowledge the stability of the parents’ relationship, reflected in the time they have been together; nor does the grandmother appear to take into account the fact that the father has been in secure employment with a government agency for in excess of four years.
The grandmother simply cannot be swayed from her fixed idea or obsession by “reality testing” or by the application of a common sense and non-confrontational approach suggested to her during the hearing, that is, to put the mother's and indeed the parents' conduct, immature and irresponsible as it may have been in the past, into some perspective and to give them credit for now achieving a more mature approach to their parental responsibilities.
I think that, in fairness to the grandmother, it must be said that in my view much of the criticism she raises about the young parents' conduct at the relevant time has been triggered by the mother confiding in her when things were going badly between the mother and the father. At those times, I am satisfied, when the parents had either separated or were simply not getting along, and there is undisputed evidence that their relationship was at times unstable and volatile, the mother would paint for the grandmother a black picture of the father in terms of his conduct towards her, his drinking, drug and other excesses, including sexual excesses, and the calibre of his acquaintances.
Much of what the mother told the grandmother may have been true and some may have been exaggerated. What the mother has, in her immaturity at the time, overlooked is that while she may, with each reconciliation, have been able to “forgive and forget” those things, the grandmother has not. The grandmother has been left with an indelible impression of a lifestyle totally inconsistent with responsible parenting.
Whilst the mother now denies almost all the statements relevant to this issue attributed to her by the grandmother, I prefer the grandmother's version.
Whilst the grandmother has not made out her case to the relevant standard that the children are currently at risk of any harm, there is ample material before the Court to explain why she has formed such strong views in the first place. The difficulty in the grandmother's case is that she cannot accept that the mother and the father have matured and moved on.
Much of the grandmother's evidence clearly demonstrates her continuing inability to give the mother any credit for any positive overtures towards the grandmother, such as the mother sending Christmas cards from the children to the grandmother in 2005 and more recently sending photographs of the children to E. The first of the above mentioned events was seen by the grandmother as a provocation on the mother's part because thereby the grandmother became aware that the children's surnames had been changed, and also because there was an AVO in place. And in the second incident, of the photographs being sent to E, the grandmother did not allow E to keep the photographs after she viewed them because, as she said, “I am the head of the house”. The grandmother saw both incidents as harassment by the mother and sought to rely on both to have the mother breached in relation to the then existing AVO.
The grandmother demonstrates no relief or happiness that the mother has found contentment in her relationship with the father and her growing family, choosing instead to cite the manner in which she found out about the mother's pregnancy with M as harassment of her by the mother, and seeing the mother's pursuing part-time employment as evidence that the parents' relationship is, to quote the grandmother, "as bad as it ever was", as well as seeing it as further evidence that the mother neglects young children by putting them into day care. The grandmother does not see, and by that I do not mean does not concede but genuinely does not see, that the financial drain of this case and probably the pursuit of permanent accommodation in circumstances where the grandmother has criticised the parents for the number of changes of residence to which the children have been exposed, might explain the mother's attempt to augment the family income.
The grandmother tells the Court that there is not one good thing she could say about the mother. I accept that as a completely truthful statement by the grandmother, albeit it that it is disappointing to hear.
The grandmother tells the Court of those aspects of S’s and J’s behaviour, when she saw them recently at the Court Counsellor's assessment, for the first time in nearly 18 months, which she says reflect continuing poor parenting. And yet the positive aspects of that reunion, that is the children's delight at seeing their grandmother again, were not raised by the grandmother.
If the grandmother is unsuccessful in her residence application she wants to spend time with the children every weekend. She frankly says to the Court that if, during the time she spends with the children in the future, there was what she considered to be any verbal or physical indicator of lack of parental care, or abuse, she would, without consultation with the parents, take the relevant child to her general practitioner. The grandmother specifically rejects the proposition that she would contact DOCS but of course the outcome would be the same in circumstances where a general practitioner is a mandatory report to DOCS of concerns about abuse. There is evidence of the observations of others, which I accept, in relation to the grandmother having been a regular user of mandatory reporters.
All in all, I am of the view that the grandmother's negative view of the parents, her fixed idea, or near obsession it seems to me, with that point of view and the manner in which she would act upon it is potentially emotionally abusive of the children.
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.
That, of course, is to say nothing of the impact upon the children of regular visits to a GP to report abuse by their parents. I say regular, because I am conscious of the fact that after the children went into the parents' full time care in May 2005 and the grandmother did have, I believe, weekly contact with them after that time, the evidence would indicate that on each occasion the grandmother had contact with the children she observed and subsequently reported incidents of abuse or neglect by the parents. There is no evidence before me to suggest that this conduct would not be repeated in the future.
I also take into account and accept the evidence of the Court Counsellor at par. 41 of the Family Report, including the material under the heading, How This Relationship Would Impact On Any Orders For The Children Spending Time With The Parties.
In relation to the parents' capacity to provide for the children's needs, there is no doubt that since J’s birth and until the parents' ultimate reconciliation their physical care of the children has certainly been characterised by a number of different addresses. I am satisfied that part of this was, in the early years of their relationship, attributable to a lack of stability in their relationship, a somewhat itinerant lifestyle, lack of money and failing on occasions to meet the standards of landlords and/or family members whose accommodation they were using. After the father started his training with the Defence Force, a number of the moves were attributable to that particular profession. Those periods were also characterised by the paternal grandparents and the maternal grandmother being asked to accommodate the young family from time to time. Accordingly, S in particular but also J have had a number of different homes.
It is true that they are in their third home since May 2005 when the children were returned to the parents' care. But I accept the evidence of the father that each home has been associated with his job in the Defence Force, that each home has been in the same area where the father has remained working since that time, that is the T Base, and that each move has been facilitated by the Defence Force in order to accommodate the expanding family. In other words, they have moved to upgrade each time within the same area.

I accept the evidence that their current accommodation, which is a brand new four bedroom home close to the father's work, is likely to remain their permanent home for some time in the future.
The evidence before me in relation to S’s school and J’s preschool satisfies me that the parents have the capacity to meet the children's intellectual needs.
In relation to the children's emotional needs, there is no doubt that, as referred to earlier in the Judgment, from the time of the mother’s first pregnancy the parents had some difficulty in reconciling their desire to lead single teenage lives with the new responsibilities of parenthood. No doubt there were times when they put their own desire to have some fun with their friends ahead of the children, but this case contains very sparse detail in admissible form of such occurrences and overall I am satisfied that with the help of the paternal grandparents and the maternal grandmother, to whom the young parents looked for assistance and respite, they have not neglected their children's emotional needs. There is clear evidence in the Court Counsellor's report that the boys appear to be happy, healthy well adjusted and well socialised boys and there are no indicators to the contrary.
While at certain times in the pre-May 2005 period I may not have been able to make such a finding, I am satisfied that at this time the parents have a superior capacity to the grandmother to meet the children's needs, including their emotional needs.

s 60CC(3)(g) – Issues relevant to cultural and lifestyle background of the children and the parties.

This is not an issue relevant to these proceedings.

s 60CC(3)(h) – Aboriginal or Torres Strait Islander heritage.

This is not an issue relevant to these proceedings.

s 60CC(3)(i) – The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parties.

The grandmother's attitude to the responsibility of parenthood has already been discussed in part in s 60CC(3)(c) and (f) above. In addition thereto 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.
The mother's and the father's attitudes to responsibility of parenthood have already been discussed in part in s 60CC(3)(c) and (f) above. In addition thereto I take into account and accept the contents of their affidavit in relation to the post-May 2005 period.

s 60CC(3)(j) - Any family violence involving the children or a member of the children's family.

The grandmother has made allegations that there has been domestic violence between the mother and the father and that there have been incidents of violence between the mother and another person at the home where the children were residing and between adult males at the home where the children were residing. All these incidents are said to be in the period prior to both children being returned to their parents’ care.
The grandmother has not made out her case to my satisfaction that there was domestic violence between the parents themselves but I am satisfied there was some physical altercations between young persons in the parents' home, probably including a physical altercation between the mother and a particularly aggressive female friend during the period which I have generally referred to as the early days of the parent's relationship.

s 60CC(3)(k) – Any family violence order that applies to a child or family member.

An AVO in place to restrain the mother from having any physical contact, etc. with the grandmother or E expired about mid-2007. The grandmother has attempted, unsuccessfully, in the Local Court to renew that AVO, an outcome confirmed on appeal in the District Court. Since then the mother has sought and obtained an interim AVO against the grandmother which the grandmother intends to defend from becoming final.

s 60CC(3)(l) – Order to avoid further litigation.

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 that 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.

s 60CC(3)(m) - Any other fact or circumstance that the Court thinks is relevant.

It is, in my view, important that I should place into this category the issue of the relationship between the parents and the grandmother. It is of particular concern to the Court Counsellor, who writes in the Family Report:
“39.    The nature of the current relationship between the Applicant and the Respondents. At present there has been no contact of any kind between the applicant and Respondents for over twelve months. [The grandmother] has an AVO against her daughter and states that she intends to extend it when it expires in a few months time. [The grandmother] rejected the idea of any counselling and is adamant she wants nothing to do with her daughter and [the father].
40.      Although [the grandmother] denies any feelings of hostility or anger towards the parents, her actions indicate otherwise.
41.How this relationship would impact on any orders for the children spending time with the parties. The children are too young to be aware of the reasons for the non-existent relationship between [the grandmother] and the parents. [The grandmother’s] negative and hostile attitude to the parents would certainly appear to have the potential to contaminate and confuse the children if they were to spend time in her care unsupervised. [The grandmother] appears to have quite rigid and inflexible opinions about [the father] and [the mother], despite some of the opinions not having a grounding in fact or reality, [the grandmother] persists in only thinking negatively about the parents and rejects any information that is contrary to this view.
42.      Any recommendation by the counsellor as to the therapeutic intervention that may assist the relationship between the parties into the future. [The grandmother] indicated that she would not be willing to be involved in any type of therapeutic intervention. This negative and non-constructive attitude is not indicative of a positive outcome.
49.[The grandmother] was an important person in the children’s early years and the children appear to remember her in a positive way. [The grandmother] potentially has something to offer the children, especially with regards to them having some contact with their Aunt [E] and other family members. Her negative behaviour towards the parents has the potential to be very damaging to the children and would appear to outweigh the possible advantages of any contact. Any contact with [the grandmother] should be at the discretion of the parents.”
I accept that evidence.
Those observations, made by the Court counsellor during his assessment in early 2007, have certainly been borne out by my observation of the adults during the course of this five day hearing. 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. She has even demonstrated that she is unwilling to soften that attitude even to allow a reconciliation between E and the mother, tragic in the circumstances where E, as a severely disabled woman, already has many hurdles to overcome. It seems that throughout her life E has enjoyed the love and support of her sister and she has now been deprived of this for a very considerable period of time, as well as having been deprived of the opportunity to spend time with her beloved nephews and to meet her niece because of the grandmother's decision in October 2005 to have nothing to do with those children unless she could obtain residence of them.

s 60CC(4) – Consideration of the extent of each parent’s fulfilment of their respective responsibilities as a parent.

This has been covered in the discussion pursuant to s 60CC(3)(c), (f) and (i) above.

s 60CC(4A) – The circumstances since separation.

This is not relevant to these proceedings.

s 60CC(2)(a) – The benefits to children of a meaningful relationship.

As indicated earlier, any discussions of how to achieve a meaningful relationship between the children and each of their parents should appropriately await findings on the additional considerations. Having concluded that process 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. The grandmother has continued to say throughout these proceedings that she was not here for the parents but here for the children. She demonstrated no insight into the impact upon the children of destroying the stability of the parents' home and, indeed, sought to raise unsuccessfully during the course of her cross-examination of the parents, the father in particular, issues such as one of the children's paternity and the father's alleged unfaithfulness to the mother. In my view, the raising of these issues was simply designed to drive a wedge between the parents themselves.
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.
Accordingly, I am of the view that the meaningful relationship that the children currently have with each of their parents would be at risk if the grandmother were to obtain the orders she seeks.

s 61DA - The presumption of equal shared parental responsibility when parenting orders are made.

The grandmother can alone, or with another or with others, have equal shared parental responsibility for a child. Accordingly, if the grandmother is successful in obtaining residence, such an order can be made in her favour. If the grandmother is not successful and the children remain in their current situation, the parents will, by virtue of their status as the children's biological parents, have equal responsibility for the children and no order to that effect needs to be made, although of course it can be made

s 65DAA - Whether the children spend equal time or substantial and significant time with each party in certain circumstances.

Having made my views clear in relation to the negative impact on the children if they were to spend time with the grandmother, neither equal nor substantial and significant time is not an outcome which is in the children’s best interests.

SUMMARY AND CONCLUSION

At paragraphs 50, 51 and 52 of his report, the Court Counsellor recommends that there be no change of residence for the children and that any time they spend with the grandmother is to be in accordance only with the parents' wishes.
A significant paragraph of the Court Counsellor's report is par 12, which raises the concerns which I have identified as the grandmother's fixed mindset in relation to the parents' attitude to the responsibility of parenthood, a view from which she cannot be swayed. I accept that evidence. It is clear to the Court that whilst ever she holds this view she poses a risk of significant psychological harm to the children and a risk of destabilising the children's current happy and fulfilling home in which they are developing appropriately.
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.
I know that the grandmother will be very disappointed by this outcome and will, no doubt, take the view that this Court, like other authorities, have simply failed to see the extent of the parents' irresponsible and abusive and neglectful conduct towards their children in the pre-May 2005 period and, according to the grandmother, up to the present time. Whilst the grandmother has been successful in demonstrating that there has in the past been an unstable period in the parent’s lives, assisted in that demonstration by there being a general lack of dispute about that fact, she has failed to convince the Court that there was anything like the extent of the dangerous and abusive behaviour she alleges. She has certainly failed to satisfy the Court that any such behaviour has an impact on the children now such as that would cause them either physical or psychological harm.
I repeat the observations I made earlier that the grandmother was told by the mother many negative things about the father and their lifestyle each time that the young parents separated, and by confiding in the grandmother the mother has provided the grandmother with an indelible impression of the parent’s family life.
I have absolutely no doubt that the grandmother is genuine in her belief and is not motivated in these proceedings simply to cause mischief to the young family. She believes wholeheartedly in what has become a crusade to demonstrate to the authorities, these Court proceedings being her last opportunity to do so, that she has been right in the application of her standards of the required behaviour of adults with young children and right in her assertion that the parents failed to reach those standards.
Persons of convictions and persons who have the courage of their convictions are, in many respects, to be admired. But it is my role to protect children from the fallout of strongly held convictions if it is appropriate to do so. I wish to make it clear that I make no criticism of the grandmother for trying to establish her case. However, she has been unsuccessful in doing so.
Finally, in the running of her case 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. I will not repeat here the remarks already made about the undesirability of that course from the point of view of the children and the stability of the household in which the children are living. However it is for this reason that I intend to make an order as sought by the Independent Children's Lawyer 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.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm.

Associate:

Date: 1 April 2008

[2007] FamCA 1737

7 December 2007

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