Katten & Katten (No 2)
[2022] FedCFamC2F 377
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Katten & Katten (No 2) [2022] FedCFamC2F 377
File number(s): MLC 2246 of 2019 Judgment of: JUDGE MCNAB Date of judgment: 29 March 2022 Catchwords: FAMILY LAW – application by grandmother for enforcement of and a variation of spend time orders with grandchildren – orders not followed by mother – whether it is in the best interests of the child to enforce prior orders or make fresh orders – application dismissed. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3). Cases cited: Aldridge & Keaton (2009) FLC 93-421
Blaze & Anor & Grady & Anor (2015) 54 Fam LR 172
Bonner & Chandler [2021] FedCFamC1A 81
Church & Overton & Anor [2008] FamCA 953
Maldera v Orbel (2014) FLC 93-602
Valentine & Lacerra & Anor (2013) FLC 93-539
Division: Division 2 Family Law Number of paragraphs: 79 Date of last submission/s: 9 November 2021 Date of hearing: 11 November 2021 Place: Melbourne Counsel for the Applicant: Mr G Devries Solicitor for the Applicant: Marcou and Associates Pty Ltd Counsel for the First Respondent: Mr A Lovering Solicitor for the First Respondent: Hartleys Lawyers The Second Respondent Appeared in person ORDERS
MLC 2246 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KATTEN
Applicant
AND: MS K KATTEN
First Respondent
MR HANSEN
Second Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
29 MARCH 2022
THE COURT ORDERS THAT:
1.The final parenting orders made 21 November 2019 be discharged.
2.The parents (First and Second Respondents) have equal shared responsibility for the child X born 2014 (“the child”)
3.The child live with the First Respondent Mother.
4.The child spend time and communicate with the Applicant Grandmother as agreed between the parties in writing.
5.The amended application filed 16 April 2021 otherwise be dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Katten & Katten has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab
INTRODUCTION
The applications that come before the Court are the Applicant Maternal Grandmother’s amended initiating application filed on 16 April 2021 and the First Respondent Mother’s amended response filed on 6 May 2021.
On 21 November 2019, the Court made final orders (“Final Parenting Orders”) in relation to the Grandmother spending time with the child, X born 2014 (‘the child).[1]
[1] Katten & Katten & Anor (2019) FCCA 3369 per Blake J.
The Grandmother is currently 55 years old and is a pensioner.
The Mother is 29 years old and is engaged in home duties. She also has the care of another child, Y born 2020. The Grandmother is no longer pursuing orders in relation to Y.
The Second Respondent Father is 36 years old and his occupation has not been disclosed. The Mother and Father separated on a final basis in or around December 2019.
Judgment was given on 23 February 2022 in an interim application (“the Second Judgment”) to determine whether the Mother’s application to set aside the Final Parenting Orders should proceed having regard to the consideration arising from Rice & Asplund.[2] Orders were made on 23 February 2022 granting the Mother leave to proceed to seek to obtain the orders set out in her amended application. Trial affidavits were served which did not add materially to the evidence considered in the Second Judgment. The additional evidence was an affidavit sworn by the Applicant’s sister Ms H.
[2] Rice & Asplund [1978] FamCAFC 128.
The background that was referred to in the Second Judgment is relevant to this judgment and I set it out below for ease of reference.
BACKGROUND
After commencing a relationship and cohabitation in or around 2013, the Mother and Father separated in around 2014. In 2019 the Mother and Father recommenced their relationship (noting the child was born 2014).
Pursuant to [3]-[5] of the Final Parenting Orders the Grandmother was to spend time and facilitate changeover with the child as set out below:
3. [X] 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 from 10am until 4pm on the first and third Mondays; and
(e) otherwise as agreed by the parties.
4. Changeover occur at [G 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 [G Contact Service] to facilitate contact changeover in order 4 above.
The Respondents to the initial application in March 2019 were the child’s parents who were at that stage in an intact relationship.
In reaching the decision of the first judgment of Blake J. delivered on 21 November 2019 (“the First Judgment”), his Honour at [5]-[7] noted by way of background the following matters including the spiteful and acrimonious relationship between the Mother and Grandmother:
5.The First Respondent has a very acrimonious relationship with the Applicant. The acrimony is deep seated and has extended over many years.
6.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].
7.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.
The First Judgment makes reference to evidence contained in a report prepared by a Family Consultant after a Child Inclusive Conference and a psychiatric report made on the Grandmother. At [16] his Honour extracted the recommendations from the Family Consultant contained within the section 11F Report following the Child Inclusive Conference (copied exactly):
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 [J Families’] family recognition program, 3-4 times a year supervised by [J Families].
•The grandmother is permitted to send birthday cards, Christmas cards and presents to [X].’
The First Judgment also refers to concerns raised by the Family Consultant in relation to the Grandmother's mental health and it subsequently contains a psychiatric report from Dr B. In regard to that his Honour stated as follows at [18]–[20] (copied exactly):
18.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.’
19.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.
20.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…’.
His Honour at [28]-[32] considered the impact of orders on the Mother including that the Grandmother may have used the proceeding to cause her distress:
28.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.
29.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.
30.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’.
31.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].’
32.It is difficult to cavil with a view expressed by the Family Consultant. It accords with my own view and impressions of the Applicant.
His Honour also made findings at [37] about the consequences continued contact with the Grandmother would have on the Mother:
37.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.
His Honour at [43]-[44] also canvassed the difficulties faced by the Mother if any orders were made for the child to spend time with the Grandmother and the risk of further proceedings if such order was made:
43.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.
44.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.
In light of all these misgivings and concerns, his Honour noted at [41] that he did not place great weight on the child's disclosure to the Family Consultant that he would like to see the Grandmother given the child’s young age. The Family Consultant noted that the child interacted with familiarity with the Grandmother and separated from her without distress.
OUTLINE OF EVIDENCE
Procedural History
The concerns that were expressed in the First Judgment regarding the ongoing tension between the parties and the risk of further litigation have come to pass. On 9 September 2020 the Grandmother issued an application seeking the following orders:
1.The Final Federal Circuit Court Orders of 21 November 2019 remain in full force and effect, save for the following amendments:
a.Order 2, be amended to read ‘The children, [X], born … 2014 (‘[X]’) and [Y] born … 2020, live with the first respondent mother.’
b.Order, be discharged and amended to read ‘Changeover to occur in the foyer of the [Suburb D] Police Station (Address: [E Street, Suburb D]), or as otherwise agreed between the parties in writing.’
c.Order 5, be discharged.
d.Order 6, be amended to read ‘The Applicant be permitted to send cards and gifts to [X] and [Y] on their birthdays and at Christmas.’
2.Any other orders deemed appropriate by the Court.
The Grandmother supported her application with an affidavit sworn on 9 September 2020. By that affidavit, the Grandmother asserted that the Mother had failed to comply with the orders that required her to enrol with the G Contact Service (“the Contact Service”) to allow her time with the child to commence.
The Grandmother also gave evidence that she became aware that the Contact Service was closed on Sundays and therefore could not provide the changeover service.
Upon the advice from a community's legal service, the Grandmother sent the Mother an SMS suggesting that the Suburb D Police Station could facilitate changeovers as an interim measure. There was further correspondence between the Grandmother's legal representatives and the Mother but no agreement was reached regarding a venue for changeover.
The Grandmother sought to initiate mediation with the Mother through the Victoria Legal Aid Dispute Resolution Service but the Mother refused to participate. The Grandmother also gives evidence about highly derogatory Facebook posts made by the Mother the day after the First Judgment was delivered.
Significantly, the Grandmother also deposed that since 21 November 2019, the Mother gave birth to a second child, Y, born 2020. The Grandmother had requested to spend time with that child. That request was refused. She also noted that the Mother and Father had separated and that the Mother was living in rented accommodation with the children and the Maternal Great Aunt.
The Mother filed a response to the grandmother's application on 1 December 2020 and by that response sought orders relevantly that the Final Parenting Orders be discharged. The orders sought by the Mother are set out as follows:
1.That the parents have equal shared parental responsibility for the Children, [X] born … 2014 and [Y], born … 2020.
2.That the children live with the Mother.
3.That the Final Orders dated 21 November 2019 be discharged.
4.That there be no order for the children to spend time with the Applicant Grandmother until such time as:
a.The Applicant Grandmother enrols and completes an Anger Management Course and provides proof of completion of the program to the Mother’s solicitor.
b.That the Applicant Grandmother completes family violence counselling and provides proof of completion to the Mother’s solicitor.
5.That the Applicant Grandmother forthwith do all acts and things necessary to undergo a psychiatric assessment by such person nominated between the respective solicitors in writing and a report of the assessment be made available to the other parties within 7 days of the report being made available and it is requested that this be funded by Victoria Legal Aid.
6.That if in the future that Children are to spend time with the Applicant Grandmother it be supervised at a nominated contact centre as agreed between the parties.
7.That for the purpose of the Applicant Grandmother’s supervised time the parties do all such things necessary to enrol in the nominated Contact Service.
The Mother filed an affidavit in support of the response. I refer to the Mother’s trial affidavit filed on 22 October 2021 (“October 2021 affidavit”) as that incorporates the matters raised in her earlier affidavits. By that affidavit, the Mother denied contravening the order in relation to enrolling with the Contact Service and states that she was advised that the Contact Service was unable to facilitate supervised changeover on a Sunday. Given that the orders provided for the time to be spent on a Sunday, the Mother explained there was no point in signing up for a contact service which could not provide the services required under the orders.
The Mother did not agree to have the changeover at the Suburb D Police Station, citing in the October 2021 affidavit at [14] that a police station is not an appropriate venue for changeover. The Mother raised concerns that the police were not aware of the background between the parties and that attending the police station could be confusing for the child.
The Mother does acknowledge however at [25] of the October 2021 affidavit that the Final Parenting Orders had not been followed stating:
“However, I believe that if the final orders were enforced, this would be detrimental to both myself and for [X]”
In the October 2021 affidavit, the Mother raised concerns in relation to the Grandmother's conduct, in particularly that the Grandmother had been seeking to pass on presents that she had purchased for the children on an almost weekly basis.
The Mother also raised concerns regarding family violence, where she alleges that she was being surveilled by the Grandmother watching the property where she was living. The Mother claims there were instances where the Mother drove past the property looking in. It is contended that the Grandmother has continued to send messages to the Mother which distresses her. I note that the history of family violence perpetrated by the Mother has been acknowledged in the First Judgment.
The Grandmother's mental health remains a significant concern to the Mother, which she says subsequently impacts on her capacity to care for the child. The Mother gave evidence that the Grandmother recently sent messages indicating that the Mother and her siblings had been abused as children by her Father (the Maternal Grandfather). The Mother maintains that there is no basis to those allegations.
The Mother gave evidence in relation to the changes that occurred within the family since the Final Parenting Orders were made. It is stated at [71] in the October 2021 affidavit that following the 2019 proceedings, the Father and her separated on a final basis and that they now live separately. That was not the case when judgment was delivered in 2019.
The Mother and Father continue to co-parent, with the children living with the Mother during the week and spending time with the Father on weekends. Specifically, the Father currently cares for the children between Friday evening and Sunday afternoon, with the Mother attending for the child Y for one night over the weekend as she is still young and relies on the Mother overnight. The Mother asserts that time with the Grandmother would undermine these arrangements and routines which have been put in place.
The Mother also stated that the child participates in a range of extracurricular activities such as sports. At the time of swearing the October 2021 affidavit, these activities had been interrupted by COVID-19 restrictions.
In an earlier affidavit sworn on 1 December 2020, the Mother at [43] states that during the Mother's pregnancy with the child, the Grandmother had sent abusive messages including that:
She (Grandmother) “hoped I died from the pain of childbirth”.
The Mother claimed this formed part of the long history of abusive messages that she had received. Whilst the abusive conduct on the part of the Grandmother was canvassed in the First Judgment, this particular instance of the Grandmother's behaviour does not appear to have been specifically addressed.
The Grandmother by her trial affidavit dated 5 November 2021 (“Grandmother’s trial affidavit”) refers to what she states as the Mother's blatant disregard to the Court orders. The affidavit evidence attaches a disparaging Facebook post made by the Mother in relation to the Final Parenting Orders. The Facebook post stated:
What’s the worst that could happen after spending 10k to defend my right as a parent? Let me think… doing it all for nothing and having the other side win!! I could have had a car that fuking works by now I could (have) been enjoying life instead of struggling I’ve spent the whole year working my ass off with nothing to show for it!! I didn't put myself here to loose (lose)
Other strongly derogatory remarks were made by the Mother and clearly shows she was unhappy with the Final Parenting Orders made by the Court and the cost of obtaining legal representation.
The Grandmother deposes that she has sought to engage in dispute resolution with the Mother and also sought to arrange suitable changeover and supervision venues so that she could see the child. The Grandmother states that she has not seen the child since 3 October 2019 when she saw the child under the supervision of the Family Contact Service. The Grandmother also gives evidence that she is attending upon a psychiatrist and CASA for counselling.
By way of the Grandmother’s trial affidavit, the Grandmother suggests that she does have a relationship with the Mother, or alternatively, is capable of having a relationship with the Mother. There is limited contact through the sharing of recipes and communications via Facebook. That there is any such relationship is denied by the Mother.
Evidence at the Final Hearing
Both the Grandmother, Mother and the Father gave evidence at the trial. Ms H’s affidavit sworn 3 March 2022 was admitted without her being required for cross-examination.
At the commencement of the hearing, each of the Counsel for the Grandmother and Mother submitted that the Court would be assisted by a Family Report to ascertain the views of the child. It was submitted that the proceeding ought to be adjourned in order to do this. This submission was made notwithstanding that the Mother indicated clearly to the Court that she wanted the matter to proceed on the day without an adjournment.
I refused the application to adjourn the hearing and to order or Family Report on the grounds that I did not believe that a Family Report would assist me in making a decision or, alternatively, that benefits of any assistance were outweighed by the prejudice to all parties caused by a further adjournment of the matter and a delay in the proceeding. I indicated that if through the course of the hearing it became apparent that a Family Report was necessary, I would adjourn the matter at the point to obtain a Family Report.
Under cross-examination the Grandmother gave evidence that she intended making an application in the future to see the child, Y. She said that she had never met Y and that she would seek further orders for the children, including Y and Ms H’s child for spend time including overnight time. It was made plain that she did not intend to rest with the orders that she was seeking in her application in relation to the child, X.
The Grandmother acknowledged the relationship she has with her daughters was from her point of view irreparably damaged.
The Mother gave evidence of matters in relation to long-standing conflict between the Grandmother, the Paternal Grandfather and each of her three children. The Grandmother is estranged from all three of her children and it appears from the evidence she gave that there has been a highly fractured relationship with the Mother since the Mother was about 13 years of age.
The Grandmother did give evidence that at times she had played a role in the child’s life by assisting the Mother in particular at a point when the Mother was travelling to a regional city in order to work. The overall impression given by the Grandmother was that the family life between her, the Paternal Grandfather and all the children was highly conflictual and there were matters raised in relation to significant family violence and sexual violence. The Mother gave evidence that her mental health issues which were canvassed in the First Judgment remain ongoing and that the Grandmother continues to consult mental health professional for treatment.
The relevant evidence given by the Mother was that she would continue to disobey any order that was made by the Court for the Grandmother to spend time with the child. She stated that she did not wish to seem disrespectful but she was adamant that such an order would not be in the best interests of the child. The Mother referred to the ongoing manipulation and destructive behaviour by the Grandmother over many years and stated that she had no confidence that this would not continue into the future. A theme in her evidence was the financial hardship that the costs of the previous proceeding had caused her and she expressed concern about ongoing litigation with the Grandmother (as foreshadowed by the Grandmother in her evidence).
The Father had previously not participated in the proceeding and he was present in Court to support the Mother. An application was made by the Father for the matter to be stood down or adjourned as he sought to obtain legal advice. The Court refused that application on the basis that the Father had had every opportunity to seek advice prior to the final hearing date and that in any case he was in common cause with the Mother.
A request was made by Counsel for the Grandmother to question the Father even though he had not filed any affidavit and had not participated in the earlier hearing. That request was granted and the Father answered questions put to him. The Father indicated initially to the Court prior to the evidence being taken that he opposed any orders allowing the Grandmother to spend time with the child. When questioned by Counsel for the Grandmother, he did say that it may be a good thing if the Grandmother could spend time with the child or that there was some relationship between her and the Mother. The Father qualified those statements by saying he did not think there could be a relationship between the Mother and Grandmother.
I took this evidence to mean that on an aspirational level it was a good thing for a child to have a relationship with his or her Grandmother. However in this case he felt it was not possible because the previous behaviour of the Grandmother and the depth of conflict between the Grandmother and Mother was too great. He did state that the range of activities that the child X could participate in were limited by the lack of financial resources being brought on by the cost of the first proceeding.
The orders now sought by the Grandmother relate only to the child X and seek for the Grandmother to spend time with the child in a supervised setting on an ongoing basis. In considering this matter I assume that the child may enjoy spending time with this Grandmother as he did previously in a supervised setting which was subject of the previous judgment.
CONSIDERATION
This matter was the subject of a final hearing on 11 November 2021. The parties relied upon their trial affidavits and their outlines of case, which I refer to. At the final hearing the Mother sought the following orders as set out in her outline of case filed on 8 November 2021:
(1)the parents have equal shared parental responsibility for the child;
(2)the child lives with the Mother;
(3)the Final Parenting Orders be discharged; and
(4)the child spends time with the Grandmother as agreed between the parties.
Paragraph [44] of the First Judgment indicates that his Honour contemplated that there may be further proceedings arising from the Final Parenting Orders, if orders were made for the child to spend time with the Grandmother.
His Honour also sought to fashion orders whereby the parties may have no contact with one another to avoid the stresses arising from communication, which was acknowledged to be likely.
In considering this application I have regard to what was said recently in Bonner & Chandler [2021] FedCFamC1A 81 per Austin J. at [22]-[23]:
22.The magistrate’s reliance upon the cited portion of Church was indeed misplaced because that part of Benjamin J’s judgment was later expressly disavowed by the Full Court in Valentine & Lacerra & Anor (2013) FLC 93-539 at [42]–[43].
23.The Full Court has repeatedly affirmed that, in child-related proceedings, the parents of the subject children do not enjoy superiority over any other person who is keenly interested in the children’s welfare, though the status of parenthood does require careful consideration in the application of s 60CC of the Act because some factors pertain only to parents (Maldera v Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra at [42]–[43]; Aldridge & Keaton (2009) FLC 93-421 at [42]–[61], [75]–[81] and [83]).
In the decision which was the subject to appeal, the primary Judge had made reference to and gave approval to the following passage from the decision of Benjamin J in Church & Overton & Anor FamCA [2008] 953 where his Honour said at [59]:
60.It is not the role of the court to peer over the shoulders of functional parents, and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner, and consider whether a better approach is not to make no order at all.
During the course of the hearing relevant to the Second Judgment, I referred the parties’ legal representatives to that passage in Church & Overton. Given the clear statement from the Full Court in Bonner & Chandler, I do not rely on that decision when considering this matter.
Statutory Considerations
My task is to determine whether the orders sought by the Grandmother are in the best interests of the child. I am guided by the Full Court in relation to the proper approach to these types of matters. I set out in full the objects and principles in relation to ensuring the best interests of the child pursuant to section 60B of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) and section 60B(2) are set out as follows:
(1)The objects of the Part are to ensure that the best interests of the 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;
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(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;
(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);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(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).
These legislative principles, as noted by Kent J in Blaze & Anor & Grady & Anor (2015) 54 Fam LR 172 at [101]-[115], focuses on the rights of children, and the ensuing duties, responsibilities and obligations of parents under section 60CA in determining whether to make a particular parenting order. The Court must regard the best interests of the child as the paramount consideration.
Primary Considerations
In terms of the primary considerations under section 60CC(2) of the Act, I have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
The parents of the child are now separated and the time that the Father spends with the child may be affected by orders requiring that the child spend time with the Grandmother. This may therefore impact on the quality of the relationship between the Father and the child. I note that to their great credit the parents have a cordial relationship and act cooperatively in relation to their parenting responsibilities.
s60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
If the Court was to impose the orders sought by the Grandmother, it is highly likely that the child will be exposed to further family violence between the Mother and Grandmother. Given the acrimonious relationship between the Mother and Grandmother, any level of interaction between the parties is fraught and may give rise to a significant adverse impact on the child and both parties. The parents are acting cooperatively and that is particularly important having regard to the objects which I set out above and because the Grandmother cannot be described as a person who has been “keenly interested” in the welfare of the child: she has spent limited time with the child over the years because of her estrangement from the Mother. Returning to the objects of section 60B, in particular section 60B(2)(b), the Grandmother is not a person who has been significant to the care, welfare and development of the child.
Secondary Considerations
In terms of dealing with the matters that I must have regard to under section 60CC(3), to the extent that I have not already done so, I have regard to the following relevant considerations:
s60CC(3)(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;
I acknowledge the findings of the First Judgment that the child expressed an interest in seeing the Grandmother but I do not place a great deal of weight in this given the child’s age and that he has not spent time with the Grandmother since 2019.
s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);
This has been canvassed. The child has a close relationship with each of his parents and a limited relationship with his Grandmother although he already knows who she is and enjoyed seeing her in the context of the Child Inclusive Conference.
s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
This is not an issue.
s60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
This is not an issue.
s60CC(3)(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;
This is not an issue regarding the Grandmother as the child has not been living or spending time with her. As noted, orders requiring the child to spend time with the Grandmother may result in the Father spending less time with the child.
s60CC(3)(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 children’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is not an issue.
s60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs;
In my view, the evidence and the prior findings point to the Grandmother’s limited capacity to deal with the emotional needs of the child and her behaviour presents risks.
s60CC(3)(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;
This is not an issue.
s60CC(3)(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;
This is not an issue.
s60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
This is not an issue.
s60CC(3)(j) – any family violence involving the child or a member of the child's family;
This issue has been canvassed.
s60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
This is not an issue.
s60CC(3)(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 that child;
This is a central consideration. The enforcement of the Final Parenting Orders or making of new orders that provide for the Grandmother to spend time with the child or children are unlikely to operate without a great deal of acrimony. The level of acrimony and very high level of stress this situation brings on cannot be in the best interests of the children. I note that orders were made by the Court for the parties to attend the Family Dispute Resolution Service prior to the final hearing. That process was unsuccessful.
s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.
I see no significant benefit for the child in enforcing the Final Parenting Orders against the Mother. The disruption and the financial and emotional cost to her and the child is too significant if that was to happen. The Mother has clearly not sought to make the previous orders work and the Court does not approve of that or condone such conduct. However, that conduct must be viewed against the background that was set out in the First Judgment and have regard to the question of whether enforcing the Final Parenting Orders or making new ones will benefit the child. The risks of harm as a result of ongoing litigation outweighs the benefits to the child seeing the Grandmother. Since the Final Parenting Orders were made there has been further aggravation of the tension between the Grandmother and the Mother which suggests that the high level of conflict will continue if further orders are made.
CONCLUSION
The difficulty I have with the application and making orders sought by the Grandmother is that in circumstances where there is such high ongoing conflict between the Mother and Grandmother as well as other members of the family, it is most unlikely that these orders will work to the benefit of the child. The parties will be placed in a situation of ongoing conflict and it has been admitted by the Mother that she is not prepared to have the child spend time with the Grandmother because of her concerns about the Grandmother’s behaviour. There are legitimate reasons for the Mother to hold those concerns for the reasons which are outlined in the previous judgment. The Grandmother’s lack of capacity to get along with the Mother and her siblings is apparent when the correspondence between the Grandmother and Ms H are read. The threat of further litigation by the Grandmother only serves to aggravate the tensions between the parties.
For these reasons, I will make orders in the terms set out above.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 29 March 2022
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