Katten and Katten and Anor

[2019] FCCA 3369

FEDERAL CIRCUIT COURT OF AUSTRALIA

KATTEN & KATTEN & ANOR [2019] FCCA 3369

Catchwords:
FAMILY LAW – Parenting – Application by the maternal grandmother – of the Applicant’s mental health and her capacity to care for the child – the effect of the Applicant’s behaviour on the parenting capacity of the First Respondent – best interests of the child – time between the Applicant and the child ordered – supervised changeovers – non-denigration.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60C

Applicant: MS KATTEN

First Respondent: MS D KATTEN

Second Respondent: MR HANSEN

File Number: MLC 2246 of 2019

Judgment of: Judge Blake

Hearing date: 1 November 2019

Date of Last Submission: 1 November 2019

Delivered at: Melbourne

Delivered on: 21 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Howe

Solicitors for the Applicant: RRR Lawyers

Counsel for the Respondent: Ms Cullen

Solicitors for the Respondent: Irvine Lawyers

ORDERS

1. All previous parenting orders be and are hereby discharged.

2. The child, X, born … 2014 (‘X’), live with the First and Second Respondents.

3. The child spend time and communicate with the Applicant Maternal Grandmother:

   (a)For the first 3 months, for 2 hours on one Sunday per month at times as agreed between the parties but failing agreement from 11am until 1pm commencing on Sunday, 1 December 2019;

   (b)Thereafter, for 3 hours on one Sunday per month at times as agreed between the parties but failing agreement from 10am until 1pm commencing on 1 March 2020;

   (c)Commencing in the term 2 school holidays 2020, for 6 hours on a day and at times as agreed between the parties but failing agreement from 10am until 4pm on the first Monday of the holidays in odd numbered years and the second Monday of the holidays in even numbered years;

   (d)Commencing in the 2020/21 long summer school holidays for 6 hours on days and at times as agreed between the parties but failing agreement from 10am until 4pm on the first and third Mondays;

   (e)Otherwise as agreed by the parties.

4. Changeover occur at community+ Children’s Contact Service and that:

   (a)changeover be supervised by such service, and

   (b)all costs associated with the service be borne by the Applicant.

5. The parties forthwith do all things and sign all documents necessary to enrol with the community+ Children’s Contact Service to facilitate contact changeover in order 4 above.

6. The Applicant be permitted to send cards and gifts to X on his birthday and at Christmas.

7. Until further Order, the parties, their servants and agents be and are hereby restrained by injunction from:

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and

   (b)discussing these proceedings;

   to or in the presence or hearing of X and from permitting any other person so to do.

8. The Applicant be restrained by injunction from in any way involving X in any dispute between the parties or causing any other person to do so.

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

NOTATION:

A.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

B.This order has been amended on 25 November 2019 pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 2246 of 2019

MS KATTEN

Applicant

And

MS D KATTEN

First Respondent

And

MR HANSEN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the maternal grandmother (‘Applicant’) in regards to the child X, born … 2014 (‘X’). The Applicant seeks orders that she be permitted to, among other things, spend time with X.

2. The application is opposed by X’s parents, Ms Katten (‘First Respondent’) and Mr Hansen (‘Second Respondent’) (collectively, ‘Respondents’).  The Respondents oppose the Applicant spending any time with X.

3. For the reasons set out below, I have decided among other things, that:

   a)the Applicant should spend limited time with X; and

   b)all changeovers should occur at a supervised contact centre, the costs of such supervised changeover to be borne by the Applicant.

Background

1. X is five years of age.  He lives with his parents.

2. The First Respondent has a very acrimonious relationship with the Applicant.  The acrimony is deep seated and has extended over many years. 

3. A number of matters are effectively agreed, or not in dispute, between the parties.  Relevantly, these matters are:

   a)X is not at any risk of harm while in the care of the Applicant. 

   b)X is well cared for by the Respondents.

   c)X has a relationship with the Applicant.  The extent and depth of that relationship is documented in a report prepared by Ms A of the Family Contact Service.  Ms A in the lead up to trial had observed the Applicant with X.

   d)X has not spent any regular time with the Applicant since 3 October 2019, when she spent time with him at McDonalds under the supervision of Ms A.  

4. The Applicant seeks to re-establish regular contact with X.  She is not seeking that X live with her.  Her Amended Initiating Application seeks that she spend six hours every fortnight with X unsupervised.  She also seeks time with X on special occasions and during school holidays.  The Applicant says that she loves X and that she enjoys spending time with him.

5. The Respondents oppose any contact between the Applicant and X.  Time between the Applicant and X is opposed for the following reasons.  First, it is alleged that the Applicant has engaged in family violence against the Respondents, and in particular, the First Respondent.  Second, that the First Respondent’s parenting capacity is, or has the potential to be, diminished given the effect of the Applicant’s behaviour upon her. Accordingly, it is said that the Applicant’s conduct toward the First Respondent will affect the First Respondent’s capacity to properly care for X.

6. The issues that fall for consideration in respect of the present application are as follows:

   a)the mental health of the Applicant and whether she is capable of caring appropriately for X;

   b)the effect of the Applicant’s behaviour upon the First Respondent and, in particular, whether it diminishes, or has the capacity to diminish, the parental capacity of the First Respondent; and

   c)in light of the above matters, and having regard to the statutory considerations set out in the Family Law Act 1975 (‘Act’), whether the Applicant should be permitted to spend time with X.

Relevant Law

1. Section 60CA of the Act requires a Court making a parenting order to regard the best interests of the child as the paramount consideration.

2. Relevant to this particular matter are the objects of Part VII of the Act and, in particular, the principles underlying the objects set out at section 60B(2)(b) of the Act. Section 60B(2)(b) of the Act relevantly provides as follows:

   ‘(2)   The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   …

   (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);’

3. In determining the best interests of X, I am required to have regard to the factors set out in section 60CC of the Act. The primary considerations are set out in subsection (2). Of significance in this case is the consideration set out in subsection (2)(b). Under this subsection, the Court must consider ‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’. 

4. The additional considerations that I am required to take into account are set out in section 60CC(3). Of particular significance in this case are the considerations set out in subparagraphs (b), (d), (f), (j) and (k) of subsection 60CC(3). Subparagraph (b) is concerned, relevantly, with the nature of the relationship of the child with other persons, including any grandparent. Subparagraph (d) is in regard to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from his or her parents or any other child or other person with whom he or she is living. Subparagraph (f) is directed toward the capacity of each of the child’s parents to provide for the needs of the child. Subparagraph (j) is directed toward any family violence involving the child or a member of the child’s family. Subparagraph (k) is directed to situations where a family violence order applies, or has applied, to the child or a member of the child’s family and the relevant inferences that can be drawn from the order.

5. I turn now to deal with the evidence in this case having regard to the matters set out in sections 60B, 60CA and 60CC of the Act. Before doing so, I set out observations of the Family Consultant who has produced a report under section 11F of the Act.

The Family Consultant’s Report

1. The Family Consultant was not called to give evidence, or be cross-examined in the matter. The Court had before it the written memorandum that was prepared following the conduct of the Child Inclusive Conference on 7 August 2019 (‘11F Report’).

2. The recommendations of the Family Consultant contained within the memorandum are as follows:

   ‘FUTURE DIRECTIONS

   It is respectfully recommended the court considers:

   ·Ongoing litigation is unlikely to resolve the issues in this matter. The issues seem deeply entrenched in longstanding family relationship issues that are unresolved and thwart the parties reaching agreements about spend time in the course of everyday family life between X and his grandparents. Ongoing litigation may entrench the parties’ positions further and any financial or other stressors placed upon the parents may only serve to diminish their parenting capacity and in turn compromise X’s care. There is no suggestion from either party that X’s living arrangements should be changed, the issues revolve around spend time with the grandmother. There is no dispute X and the grandmother have shared a relationship.

   ·The parties may want to consider family therapy in an effort to resolve some of their issues, which may in turn enable them to reach some agreements about, spend time.

   ·The parents have shared parental responsibility.

   ·X lives with his parents.

   ·If X is to spend any regular ongoing time with his grandmother, which cannot be agreed upon between the parties, it may be beneficial for this to be structured and supervised. Any spend time arrangements should be cognisant of the impact this will have on the parents parenting capacity.

   ·The parties may consider Berry Street’s family recognition program, 3-4 times a year supervised by Berry Street.

   ·The grandmother is permitted to send birthday cards, Christmas cards and presents to X.’

3. I now turn to deal with some of the specific issues raised in this case. I will then address the factors I am required to consider under the Act.

The Applicant’s mental health and whether she has the capacity to care for X

1. In the 11F Report, the Family Consultant raised some issues in relation to the Applicant’s mental health. Those issues are as follows:

   ‘Mental Illness

   ·The grandmother suffers from anxiety, depression and PTSD, all of which she receives treatment for through a Psychiatrist she has regularly consulted. She says her mental health issues were exacerbated when she separated from her partner. She says she has sought treatment and she is stable.

   ·The parents report concern about the (sic) not only the grandmother has diagnosed mental health conditions but also underlying personality structures and her interpersonal relational style. They report concern she has “borderline personality disorder” and is a “narcissist”. They describe she has stalked and harassed them. She has written under a pseudonym to one of the father’s employers in (sic) and he has lost his job. She has written emails to one of the mother’s colleagues disclosing personal information. They allege she is not child focused and only concerned with her own needs. The grandmother said she was desperate to see her grandson and went through the mother’s Facebook page and sent pleading emails to some of her friends to help. She denies contacting the father’s employers, saying the parents have no proof of this.’

2. Subsequent to the 11F report, the Applicant visited and obtained a report from Dr B.  Dr B is a psychiatrist.  In his affidavit, Dr B deposes that he does not think that the Applicant satisfies the diagnostic criteria for Major Depressive Disorder, Post Traumatic Stress Disorder or any serious psychiatric illness such as Schizophrenia or Bipolar Disorder.  In his report, Dr B notes that the Applicant appears stable.

3. While the report of Dr B is generally positive for the Applicant, it is apparent from the face of Dr B’s report that his observations as to the behaviour of the Applicant are heavily qualified. For example, his observations were based upon a sole 75 minute interview.  He was not provided with any of the Court material, or any other material.  He states expressly that he cannot:

   ‘Based on a single psychiatric interview… Diagnose a Personality Disorder, but clearly Ms Katten has at least personality traits in the areas of dependency, emotional dysregulation as she can be volatile at times as well as perfectionism with stubbornness. 

   My diagnosis is of Adjustment Disorder with Mixed Anxiety and Depressed Mood, which is her emotional response to complicated relationships she has with members of her family of origin…’.

4. Dr B was not called for cross examination.  His evidence was therefore unable to be tested. 

5. On the basis of the evidence before, I find that the Applicant does not suffer from a diagnosed mental health condition. I am satisfied, however, that the Applicant suffers from an emotional dysregulation, that she can be volatile and that she suffers anxiety and depressed mood arising from her family situations. I make these findings based not only on the evidence of Dr B, but also on the observations of the Family Consultant and my own observations of the Applicant’s interactions with the First Respondent (discussed in further detail below).

6. I have found the Applicant suffers from the conditions described above. The next issue is whether those conditions mean her ability to care for X is compromised, or that she will place X at risk if she spends time with him. 

7. I am satisfied that the Applicant’s ability to care for X is not compromised by the conditions that she suffers from. I am also satisfied that X is not at risk of harm in the Applicant’s care. I have come to these conclusions for the following reasons.

8. First, it is conceded by the Respondents that X is not at risk of any harm from the Applicant while in her care. Second, there is no evidence of any risk to X arising from the Applicant’s conduct. Third, the evidence of the Respondents to the Family Consultant is that X ‘loved his grandmother and has an attachment to her.’

9. I am therefore satisfied the Applicant is able to care for X and does not present a risk to him.

The effect of the Applicant’s behaviour on the parenting capacity of the First Respondent

1. It is apparent from the affidavit material before me, and from viewing the parties in the witness box, that the Applicant and the Respondents have a very acrimonious relationship.

2. The First Respondent’s affidavit material annexed to it a range of communications from the Applicant to the First Respondent.  Those communications disclose that the Applicant speaks to the First Respondent in terms that can only be described as insulting, demeaning and degrading.  No child should have to endure the sort of communication that I have in this matter seen the Applicant visit upon the First Respondent.

3. The Applicant in the witness box accepted that she had sent these communications.  There is no doubt, in my view, that the nature of these communications constitute family violence visited by the Applicant upon the First Respondent.  While the Applicant acknowledged she had sent the communications, she demonstrated little insight into the effect such communications would have on her child, the First Respondent.

4. The evidence before the Court also discloses that the Applicant may have used these proceedings to cause further distress to the First Respondent.  I was taken to an email that suggests that the Applicant was fully aware that the First Respondent would be unable to access Legal Aid, while the Applicant would enjoy such access. That email concluded that the Applicant would fight to see her grandson ‘whatever the cost’.

5. I am satisfied, having observed the Applicant in the witness box, and having read the affidavit material, that the Applicant is a person of little insight into herself, or the way in which her behaviour may affect others. A similar observation was made by the Family Consultant that conducted the Child Inclusive Conference.  In the 11F Report prepared on 7 August 2019, the Family Consultant made the following observation of the Applicant at interview:

   ‘The grandmother presented at interview focused on her need to spend time with X and demonstrated little insight into how her current application may diminish the parent’s resources and what if any impact that in turn will have on X. She reported a view that the mother wanted her when she needed help and then discarded her. Of some concern was her view that regardless of whether or not ongoing litigation will “set them back”, or add pressure to the parents lives and financial situation, she will pursue the legal processes she views this as her last resort to spend time with X.’

6. It is difficult to cavil with a view expressed by the Family Consultant.  It accords with my own view and impressions of the Applicant.

7. The Respondents’ opposition to the Applicant spending time with X flowed from the behaviour of the Applicant recounted above. The Respondents effectively contended that making X available to see the Applicant would result in them having contact with the Applicant. That contact would inevitably lead to the Applicant inflicting further abuse and denigration upon the Respondents, and in particular, the First Respondent.  It was then contended by the Respondents, and in particular the First Respondent, that her mental health and capacity as a parent would suffer if she were subject to the abuse and denigration visited upon her by the Applicant. The consequence for the First Respondent would be that her ability to care for X would be affected adversely.

8. The evidence of the First Respondent that her mental and general health would suffer can be traced to three sources.  The first is a letter from a medical practitioner at the C Medical Centre Medical Centre.  That letter discloses that the First Respondent is suffering from stress and anxiety.  It notes that the First Respondent is 12 weeks pregnant, is going through lots of social and family issues, has been referred to a psychologist, and may need medication in the future if she is not coping well with just counselling.  The First Respondent in the witness box indicated that she had been to the psychologist once.

1. The second source of evidence is the 11F report.  The Family Consultant in that report discloses that the First Respondent is suffering from anxiety and that she has previously experienced depression.

2. The third source is the direct evidence of the First Respondent.  She deposes in her affidavit that if an order were made granting the Applicant time with X, she would suffer, among other things, an emotional and physical health impact.  She also deposes to the anxiety that she suffers, and the impact it may have on her current employment.

3. When all of the above is considered, I am satisfied of the following. First, I find the Applicant has engaged in significant verbal abuse and denigration of the First Respondent. I am satisfied that she has engaged in family violence toward the First Respondent. Second, I find that there is a real likelihood that, if the First Respondent is required to have contact with the Applicant, the Applicant will continue to abuse and denigrate the First Respondent. Third, I find that the First Respondent’s mental and general health will suffer if she is required to have contact with the Applicant.

4. A question that remains for consideration, having regard to the findings above, is whether the Applicant spending time with X will detrimentally affect the First Respondent.  There is not, in my view, any basis for a finding that the First Respondent’s health will suffer simply because the Applicant is spending time with X. As noted above however, there are risks if the First Respondent is required to have contact with the Applicant.

Other matters required to be considered under the Act

1. Counsel for the Applicant emphasised the language set out in section 60B(2)(b) and section 60CC(3)(f) of the Act. I accept that an important consideration in this matter is X’s ability to spend time with his grandmother. I also accept and take into account the fact that X has had an ongoing relationship with his grandmother, and that the relationship between them appears to be a warm one. These are powerful considerations that point towards the Applicant being given some time with X.

2. I accept that the First Respondent has been subjected to family violence from the Applicant.  X appears to have been exposed to at least one argument between the Applicant and the First Respondent (the incident at the ice skating rink, as deposed by the First Respondent).  It does not appear, however, that X has been exposed to behaviour that is anything comparable to the comments that the Applicant has directed toward the First Respondent in the documents that I have seen.  This is perhaps unsurprising given his young age.  I further observe that the 11F report notes that ‘X is at risk of exposure to ongoing family conflict’.  I accept that there is a risk of exposure to family conflict given the extent of the conflict I have seen in this family, particularly where the First Respondent and the Applicant are required to have contact with each other.

3. The 11F report discloses that X wishes to see his grandmother.  I do not give much weight to this given his age, but I take into account the observations of the Family Consultant that X went to his grandmother, interacted with familiarity with her, and separated from her without distress.

4. The position taken by the Applicant coming into the final hearing was that X should spend significant time with her each alternative weekend. In that context, the Respondents contended that, if it was ordered that X spend time with the Applicant, it would interfere with the time that he could spend with his siblings, and also his parents. It was further submitted that X’s father works up to 6 days a week and could only see him on Sunday.  The position taken by the Applicant coming into the final hearing was modified during the course of the hearing, and the final orders she sought bore little resemblance to the position advanced in the Application.  The amended position put by the Applicant is one that is more suited to the position of a grandparent. I regard it as important that X be able to spend quality time with his father and that to the extent X is to spend time with the Applicant, it should not be at the expense of him developing and enjoying a relationship with his father or his siblings.

5. A significant consideration in this case is the practical difficulty of the Respondents potentially needing to communicate with the Applicant, especially in relation to matters such as changeover.  It is clear to me that if any time is to be ordered, it can only be ordered on the basis that the Respondents not be required to have any contact with the Applicant.

6. It was also submitted by the Respondents that I should make an order that X spend no time with his grandmother on the basis that it was highly likely to lead to further proceedings. That may be the case.  It may also be the case that no further proceedings will arise if the Applicant is able to enjoy some limited time with X in circumstances where the First Respondent’s health is not compromised by the spend time arrangements.

Determination

1. I find that it is in X’s best interests that he have some contact with the Applicant. 

2. Having made that finding, in my view, time can only occur on the following basis:

   a)The time spent between X and the Applicant should be reasonable and reflect the relationship between a grandchild and a grandparent. 

   b)X can only spend time with his grandmother if it can be arranged in a manner that does not bring the Applicant into contact with the First Respondent.  The changeover arrangements I will make reflect this. All changeovers must occur at a supervised contact centre. Given the need for supervision, I will not order any telephone time or Facetime/Skype contact to occur because of the risks it poses in bringing the Applicant and the First Respondent into contact.

   c)I will make express orders preventing the Applicant from denigrating the Respondents to any person.

3. In my view, these orders strike the right balance.  They permit X to have a continuing relationship with the Applicant.  They do this, however, in a way that ensures that the Respondents do not have to come into contact with the Applicant, which in turn minimises the prospect of them (particularly the First Respondent) suffering from any significant effects of the Applicant’s conduct.

4. I deal finally with costs. The Respondents sought costs against the Applicant on the basis that they were successful. In my view, this is a matter where I ought not make any costs order. The Respondents sought that the Applicant be granted no time with X. I have not made that order, and therefore do not propose to award costs to the Respondents. The Applicant came to trial seeking significant spend time arrangements with X, only to modify those significantly at the hearing. That is not a basis for awarding any costs to the Applicant either.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Blake

Date:  21 November 2019