Kirk and Kirk and Anor (No 2)
[2018] FamCA 983
•26 November 2018
FAMILY COURT OF AUSTRALIA
| KIRK & KIRK AND ANOR (NO. 2) | [2018] FamCA 983 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where one child has been living with the grandmother and one child has been living with the mother – Whether the children should both live in the primary care of the mother – Whether current arrangements should continue – Where there is a history of conflict between the parties – Where serious allegations have been made historically regarding abuse and family violence – Where the parties are hostile to each other and have no ability to communicate – How much time the children should spend with each of the parties – Independent Children’s Lawyer supports both children living with the mother. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(3) 69ZT |
| Andrew & Delaine [2009] FamCAFC 182 Mazorski & Albright [2007] FamCA 520 |
| APPLICANT: | Ms Kirk |
| 1st RESPONDENT: | Ms B Kirk |
| 2nd RESPONDENT: | Mr Dudley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 687 | of | 2016 |
| DATE DELIVERED: | 26 November 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 10 - 14 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Ross |
| SOLICITOR FOR THE APPLICANT: | B C O’Leary and Associates | |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr McQuade | |
| SOLICITOR FOR THE 1ST RESPONDENT: | Dixon Gallasch Pty Ltd |
| COUNSEL FOR THE 2ND RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE 2ND RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Horvat |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
UPON NOTING that B born … 2008 shall spend no time with the grandmother until 10 December 2018
Orders
That the mother have sole parental responsibility for B born … 2008 (“B”) and C born … 2014 (“C”) (collectively “the children”).
That the children live with the mother.
That as and from 10 December 2018 B spend time with the grandmother as follows:-
(a) During school term:-
(i)On each alternate weekend from the conclusion of school (or 3 pm if a non-school day) on Friday to the commencement of school (or 9 am if a non-school day) on the following Monday;
(ii)In the intervening week from the conclusion of school (or 3 pm if a non-school day) on Thursday to the commencement of school (or 9 am) on Friday.
(b)For one half of the short end of term holidays and for one half of the Christmas long school holidays to be taken on a week about basis.
That C spend time with the father as follows:-
(a)During school term and to coincide with the weekend that B spends with the grandmother:-
(i)On each alternate weekend from 6 pm Saturday to the commencement of school (or childcare/early learning) (or 9 am if a non-school day) on Tuesday;
(b)For one half of the short end of term holidays and to coincide with the time that B spends with the grandmother and for one half of the Christmas long school holidays to be taken on a week about basis.
That the children spend time with the parties on special occasions as follows:-
(a)The children spend time with the mother on Mother’s Day between 5 pm on the Saturday preceding Mother’s Day until 5 pm on Mother’s Day;
(b)On Father’s Day C shall spend time with the father between 5 pm on the Saturday preceding Father’s Day until 5pm on Father’s Day.
That the children spend time with the parties at Christmas as follows:-
(a)In 2018 and in each alternate year thereafter the children will spend time with the mother between 3 pm on 24 December until 3 pm on 25 December and with the grandmother as to B and the father as to C between 3 pm on 25 December until 3 pm on 26 December;
(b)In 2019 and in each alternate year thereafter the children will spend time with the grandmother as to B and the father as to C between 3 pm on 24 December until 3 pm on 25 December and with the mother between 3 pm on 25 December until 3 pm on 26 December.
The children spend time with the grandmother and the father at such other times as agreed between the parties.
That the mother shall authorise any school at which the children attend to provide copies of school reports, school notices, school newsletters and school photographs of the children (at the expense of the grandmother and the father) to be provided to the grandmother as to B and the father as to C and such other information as they may request.
That the grandmother and the father are restrained and injunctions are granted restraining each of them from taking the children or either of them to attend upon any medical practitioner other than with the mother’s authority or in the circumstances of a medical emergency.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kirk & Kirk and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 687 of 2016
| Ms Kirk |
Applicant
And
| Ms B Kirk First Respondent And
Second Respondent |
REASONS FOR JUDGMENT
Introduction
The proceedings between Ms Kirk (“the grandmother”), Ms B Kirk (“the mother”) and Mr Dudley (“the father”) relate to the future parenting arrangements for B born in 2008 (“B”) and C born in 2014 (“C”) (collectively “the children”).
Mr D is B’s biological father. He did not participate in the trial and has been removed as a party. C is the only child of the mother and father.
The current living arrangements for the children spending time with each party are determined by the order made 8 March 2016 which provides for B to live with the grandmother and for C to live with the mother.
B spends time with the mother each week from the conclusion of school on Thursday until 5 pm on Saturday. C spends time with the grandmother each week from 10 am Sunday to 12 noon on Monday and with the father from 12 noon until 4 pm on Monday and from 10 am until 4pm on Tuesday.
The father lives with the grandmother. The effect of the orders is that C spends time in the grandmother’s home from 10 am Sunday until 4 pm on Monday and then during the day on Tuesday.
The mother lives in rented accommodation and while she has re-partnered, he does not as yet live with her.
The mother lived the majority of her life in the grandmother’s home. She moved out of the home on a final basis on 12 January 2016 following an altercation. B remained in the care of the grandmother following the incident and C remained in the care of the mother.
The grandmother was born in 1959 and was 59 years old at the time of the trial. She lives in a home with her two adult children Ms G Kirk (“the aunt”) and Mr H Kirk, the father, and B. The grandmother receives a government pension as she is unable to work due to scoliosis and arthritis.
The mother was born in 1987 and was 31 years old at the time of trial. She is presently engaged in home duties. She has previously worked in hospitality. The mother re-partnered with Mr E in February 2015. Mr E is the father of the mother’s child J born in 2017 (“J”). J is not a subject child in the proceedings.
The father was born in 1966 and was 52 years old at the time of trial. He is employed as manager and works on weekends. The father has no other children and has not re-partnered.
The proceedings were first commenced by the grandmother’s Initiating Application filed 1 March 2016.
The Court is assisted by the appointment of an Independent Children’s Lawyer (“ICL”).
Orders sought
By her Summary of Argument and Case Outline Document filed 10 September 2018 the grandmother seeks orders that she and the mother have equal shared parental responsibility for B. She seeks that B lives with her while C lives with the mother. In terms of the children spending time with each of the parties the grandmother proposes that B spends time with the mother from the conclusion of school Friday until 5 pm on Saturday of every week and that C spends time with the grandmother and the father from 10 am Sunday to 4 pm Tuesday each week. Upon C commencing school in 2020 it is proposed that there be one additional night added either being Saturday or Tuesday night.
The mother joins the ICL in seeking the orders outlined in the ICL’s Case Outline Document filed 10 September 2018. It is proposed that the mother has sole parental responsibility for the children and that the children live with the mother. It is proposed that the children spend time with the grandmother each alternate Sunday from 10 am until 5 pm and that C’s time with the father occurs during this same period while the father remains living at the home of the grandmother. If the father secures his own accommodation it is proposed that he spends time with C each alternate Saturday from 10 am to 5 pm.
By his Summary of Argument and Case Outline Document filed 10 September 2018 the father seeks that he and the mother have equal shared parental responsibility for C and that C lives with the mother. He seeks that C spends time with him and the grandmother from 10 am Sunday until 4 pm Tuesday each week, and upon C commencing school in 2020 he proposes that time be extended to include Tuesday overnight.
Documents relied upon
The grandmother relies upon the following documents:
a)Amended Initiating Application filed 27 August 2018.
b)Trial Affidavit filed 27 June 2018.
c)Affidavit of the aunt filed 29 June 2018.
d)Affidavit in Reply of the grandmother filed 27 August 2018.
e)Affidavit in Reply of the aunt filed 27 August 2018.
f)Summary of Argument and Case Outline Document filed 10 September 2018.
The grandmother sought to rely upon the Affidavit of Ms K filed 27 June 2018 however the Court was advised on the third day of trial that Ms K was not able to attend at trial to give evidence and consequently the grandmother no longer seeks to rely on that affidavit.
The mother relies upon the following documents:
a)Amended Response filed 29 August 2018.
b)Trial Affidavit of the mother filed 9 August 2018.
c)Trial Affidavit of Mr E filed 13 August 2018.
d)Outline of Case Document filed 7 September 2018.
Mr E was not required to give evidence at trial.
The father relies upon the following documents:
a)Affidavit of the father filed 9 August 2018.
b)Summary of Argument and Case Outline Document filed 10 September 2018.
The ICL relies upon the following documents:
a)Family Assessment Report dated 12 July 2016 (“the first report”).
b)Family Assessment Report dated 24 March 2017 (“the second report”).
c)Affidavit of the ICL filed 26 February 2018.
d)Family Assessment Report dated 2 August 2018 (“the third report”).
e)Case Outline Document filed 10 September 2018.
Evidence
As a preliminary matter, I canvased with counsel and Mr Dudley their attitude to the application of s 69ZT(1) of the Act. I explained to Mr Dudley the significance of the section and thereafter all agreed that the provisions of s 69ZT should apply.
The historical position adopted by the grandmother and the father was that the mother and Mr E have acted inappropriately with B and that the child was at an unacceptable risk if left in their care. It was alleged that if the mother did not pose a direct risk to the children, at the very least she failed to protect them from Mr E.
Their position had altered and neither the grandmother nor the father maintained that the mother or Mr E posed any physical risk to the children, but B may be at risk of emotional harm if she was to transition to the mother’s primary care.
In those circumstances I did not consider that the provisions of the Evidence Act 1995 (Cth) should apply.
There is a high level of tension and conflict between the mother and the grandmother. The conflict is such that the grandmother has not asked to meet the mother’s third child J because she considers the mother will refuse. They are deeply mistrustful of each other and communication between them is tense and strained.
The mother accepts that her relationship with the grandmother and her siblings is fractured. She has little confidence that the parties would be able to reach joint agreements.
It is an unfortunate reality that the children have been exposed to the ongoing conflict between the parties.
The grandmother
The grandmother no longer asserts that the mother or Mr E pose a risk of sexual abuse to either of the children, but in particular B.
She conceded that C should live with the mother and agreed that the mother does and will take appropriate care of C.
Her concession does not extend to B. She seeks that B remain in her care. She holds concerns that the mother is not able to appropriately manage B’s medical conditions such as asthma, recurrent tonsillitis and eyesight problems.
She acknowledged that in June 2018 she still thought that C would be better off with her and that the mother would not be capable of adequately caring for either child. Her rationale for her change in attitude is based upon her observations that C has been better in her presentation whilst in the substantial care of the mother. The child still makes the odd complaint about Mr E, but nothing that could be considered substantial or major. C makes no complaint about her mother or how she is looked after.
The grandmother was asked to consider an email from a police officer at the Salisbury Police Station sent to Mr F, Child and Adolescent Mental Health Service (“CAMHS”) worker advising that on 30 November 2017 the grandmother had attended at a police station alleging that at an interview with Mr F the child had alleged that the mother was going to “blow her away for Christmas”. The police officer considered that the grandmother believed the threat to be of substance.
The police officer recorded the following:-
[The grandmother] is quite open about the fact that she wants full custody of [B] and doesn’t want her daughter [the mother] to have any contact with her, so she may be a little biased in her reporting of things.
The grandmother did not resile from the accuracy of the email and agreed that B was present and that the child was made to make the statement personally. She asserted that she had taken B to the police on the instruction of Mr F.
B and the grandmother saw Mr F on 29 November 2017. His notes of the session were put to the grandmother, and in particular that whilst the statement had been made, no context had been given by the child.
Allegations had been made to B’s school counsellor which was sufficient for a mandatory report to be made. B told the grandmother of her discussion with the counsellor which resulted in a contact with Mr F by telephone on 28 January 2018 and an in person appointment on the following day.
A feature of the proceedings has been the ongoing residence of the father in the home of the grandmother. He has separate but modest accommodation and it is his expressed intention to remain at her home for the foreseeable future. The grandmother appears comfortable with the current arrangement and does not expect that there will be any change in the living arrangements.
The communication between the parties remains virtually non-existent. The grandmother did not discuss with the mother that the father would move into her premises. There is some contention as to whether the mother discovered where the father was living either from the first family report or from a Court hearing. In any event, no information was provided by the grandmother.
Paragraph 25 of the third report records that the grandmother:-
…was again confrontational upon arrival and appeared hostile and angry towards the Consultant, which appeared evident to the children. She attempted to engage in adult conversation in front of the children and struggled to respect the Consultant’s request that she refrain from speaking on such issues in the presence of the children. …
It appears that the grandmother was concerned about the recommendations of the family consultant in the first report that C live with the mother.
She denied that the children were likely to have picked up that she was angry and does not accept that she was unable to refrain from speaking about adult issues in front of them.
The grandmother wanted to show the family consultant some materials but was not able to do so.
It appears that the concern of the family consultant was not the content of the narrative but rather, the grandmother’s lack of insight as to how her anger and confrontational attitude may have impacted upon the children, but in particular B.
There appears to be a level of fragility in respect of B’s presentation. The observations of interaction in the first report were of B engaging happily with the grandmother, the father and her aunt and uncle. Her interaction “appeared natural and familiar and enjoyed by all”.
In contrast, B’s interaction with her mother was inexplicably marked by anxiety and distress. At [58] the family consultant observed that:-
… B was nervous to walk past her mother in the waiting room, clinging to her aunt’s hand. She also expressed a preference not to engage in a play session with her mother at all. B cried and once again nestled into her grandmother (and at other times her aunt) for comfort and support.
The grandmother was not able to speculate about why B may have been reluctant to engage with her mother but agreed that her affidavit described a number of occasions when B was frightened of the mother.
The more recent observations by the family consultant of interaction between the mother, Mr E and the children was positive. With some reluctance, the grandmother accepted that there appeared to have been an improvement in the relationship, but there remained little doubt in her mind that B would not easily cope with a transition to the mother’s primary care.
The grandmother conceded that there was a close sibling relationship and attachment between the children. She was asked to consider whether it was fair for the children to be separated from each other and her response was that her concession that C should live with the mother was based upon an absence of recent allegation of neglect, sexual assault or physical assault. B however continues to suffer from a suite of medical conditions including asthma, poor eyesight and severe tonsillitis. She agreed that the mother was not in any way responsible for these medical conditions, but did not consider that the mother would be able to appropriately cater for B’s medical needs.
The obvious difficulty for the grandmother is that in conceding that C’s best interests would be served living in the primary care of the mother, it is difficult to maintain an argument that the mother would not be able to appropriately care for B.
Paragraph 72 of the third report records that following the observation of the children’s interaction with the mother and Mr E, they returned to the grandmother, the father and their aunt. The family consultant recorded that the grandmother looked angry and stern and did not greet the children warmly, but with an obvious unhappy demeanour. The grandmother proceeded to rearrange B’s hair from a neat tight plait, shake out her hair and then comment on how wet it was, and that this would be unhelpful for her asthma. She then made an observation of C’s hair, saying that her hair was “as hard (from being wet) as cement”. Under questioning, the grandmother conceded that her criticism of C and B’s hair may have been taken by her as a criticism of their mother.
It was a feature of the evidence of the grandmother that she seemed reluctant and at time unable to compliment or recognise any positive aspect of the mother’s parenting, in particular in relation to B.
At [13] of the third report the family consultant refers to a report from Mr F that documents his involvement with the family since 2016. A short summary is that over this period Mr F reports that both the grandmother and father “had continued to raise allegations about the mother and her partner and their care of the children”.
The grandmother agreed that she and the father have continued to raise allegations with Mr F, the police and relevant child protection authorities. To date there has been no corroboration of any of her concerns.
The grandmother remains concerned as to the stability of the relationship between the mother and Mr E and ultimately acknowledged that there was no need for any restraint on Mr E coming into contact with either B or C in the mother’s absence. The grandmother was aware that B had told Mr F that she was frightened her mother might hit her. There is no evidence that this has occurred and the implication is that any fear by the child of her mother has been engendered by the grandmother.
She admitted that she has frequently asked B whether she would like to live with her mother and her consistent response is that she would like to stay with the grandmother.
The notes of Mr F are annexed to the affidavit of the ICL filed 26 February 2018. The note of the session on 13 February 2018 is a response to a question put to Mr F by the ICL in the following terms:-
Were you told by the child [C] on the 13th of February 2018 that her mother [the mother] had been kicking her and left bruising? What was told to you and by whom? Were you shown a bruise? What did you observe?
The response is as follows:-
13 February 2018 Met with [B], [the grandmother], Step father [the father] and half-sister [C] on 13/12/2018 (sic). [B] voluntarily showed a note written on a mobile phone that she refuses to go to her mother’s house because she tells things about my family. Upon specific inquiry [B] was unable to elaborate and with some prompting from [the grandmother], [B] reported an incident that occurred at her mother’s house where [Mr E] was left with [B] and [C] while [the mother] (mother) attempted to get [J] ([B’s] half-brother) to sleep. [B] reported that [Mr E] became angry and roared at them because they had made too much noise and woken [the mother] and J. [B] reported that [Mr E] had attempted to restrained (sic) [C] (sic) by holding her by the wrist very tightly. In the session [B] was engaged in gymnastic exercises and referenced [the grandmother] for support, though at times would interrupt conversations between [the grandmother] and the clinician. …
On 15 December 2017 Mr F’s notes record an allegation by B that she had seen Mr E touching C on her genitals whilst changing a nappy. This visit occurred at the request of the grandmother and a notification was made.
The grandmother was not able to assist in understanding the circumstances of the allegation made by B. It was put to her that she was prompting the child to make allegations. Whilst that proposition was denied, the grandmother agreed that she had involved the police and had allowed the aunt to speak to B about the allegation.
A practice had developed whereby the child was interviewed on video by the grandmother on her return from the mother. The grandmother was told to delete the videos and to stop the conduct and she has apparently ceased any videotaping or interviewing of the child since 20 April 2016.
The conduct of the grandmother and the father escalated significantly on 18 February 2018. On that day the mother received a phone call from SA Police asking her to come to the Suburb L Police Station. They interviewed Mr E and the mother was informed that the grandmother had alleged Mr E had sexually abused C and that the child had been genitally examined by a paediatrician. The clear medical diagnosis was that there was no sign of any sexual abuse but rather that C suffered from a mild case of vulvovaginitis.
B was also interviewed and she reported that she had seen Mr E putting cream on C’s vagina.
The police took no action, nor was there any further investigation by the Department for Child Protection.
The mother’s concern was that the grandmother had acted in concert with the father to allow C to be the subject of an invasive medical genital examination.
On 20 February 2018 the mother was informed via a text message sent by the father that C would not be returning to her care because it would not be safe to do so.
The mother brought a recovery application and orders were made on 8 March 2018 that placed the children in the mother’s care until 10 am on 24 March 2018.
Whilst the grandmother now accepts that there was no substance to their concerns that Mr E had sexually assaulted C or that the mother had failed to protect the child, she was not prepared to concede that the allegation had been concocted either by the father or her.
The evidence of the grandmother was unconvincing. She had no answer for the evidence of the paediatrician that C had not been sexually abused but rather, suffered from a routine common inflammation and irritation of the vulva. Even though the grandmother was armed with this information she took steps to withhold the children from the mother and brought an application seeking orders that would have suspended the children’s time with the mother and Mr E.
I find that the grandmother was prepared to react with alacrity to any suggestion that implied the mother was not protective of the children. The grandmother was the source of a number of unfounded notifications made not out of an abundance of caution but rather to deliberately disrupt the mother’s relationship with B whenever it appeared that there was an improvement.
The grandmother did concede that despite her misgivings there was nothing that would indicate that either the mother or Mr E had sexually abused either of the children.
B currently attends primary school. Her attendance in 2018 has been poor. The grandmother’s response is that the child has suffered from major tonsillitis and is awaiting an appointment with a paediatrician. B’s presentation has also been compromised by asthma but she could not explain how the condition prevented B from attending school on 35 days in the first two terms. Simply put, that represents 7 weeks of absence out of 20 available weeks of attendance.
No evidence was presented in respect of B’s alleged asthma or to support the further claim that asthma contributed to B’s poor health. Medical certificates obtained by the grandmother were of little use. They did not record any significant detail and simply advised that B was “not fit for her normal duties”.
The grandmother agreed that from time to time she withheld B from the mother because she did not believe that the mother had the specialised medical equipment to treat the child’s asthma.
Of more immediate concern is the evidence that the grandmother has of recent date asked B on a number of occasions whether she would like to live with her or her mother. The most recent discussion was a few days ago.
It was revealed that B was given a mobile telephone by the grandmother that did not have a SIM Card but could still make emergency 000 calls. The reason given by the grandmother was that the child should be able to ring in case of an emergency. The implication is that the child may experience an emergency in her mother’s care. Her explanation for the provision of an emergency call-enabled phone was unsatisfactory. I find that the grandmother promoted to the children that they should be alert in respect of the possibility of physical or sexual assault by the mother or Mr E. Whilst she is now hopeful that the children are no longer at risk, I find her remarks to be disingenuous. It was put to the grandmother that she was unhappy with the judgment suspending her time and she considered that the report of Mr F was instrumental in the Court removing the children from her care and that of the father. It is recorded that the grandmother thought that CAMHS had betrayed the trust of her and the children and that she had received no support from the legal system, the police or any other organisation involved in the children’s safe placement.
As at her evidence, the grandmother was still of the view that B’s life might be in danger if the child was placed in the mother’s care.
The grandmother denies that she promoted B to be fearful of her mother. I find that the conduct of the grandmother was intended to engender B to be fearful of the mother and Mr E.
Under cross examination by counsel for the ICL, the grandmother stated that her concern was not the mother’s ability to care for the children, but rather the stability of her home. The mother relies upon Mr E for financial support and the grandmother considers that the mother is promiscuous and would likely form another relationship.
The grandmother agreed that she had introduced B to her father without the mother’s knowledge or consent. She met him at a shopping centre and he asked to see B. The grandmother agreed to it and they met at a shopping centre.
It is clear that the grandmother intended to promote the relationship between B and her father without any regard to the mother’s position. I find that the grandmother had no intention of telling the mother that B was seeing her father. The mischief that arises from the grandmother’s conduct is that after B had started to develop a relationship with her father he was apparently no longer interested in seeing her.
With the wisdom of hindsight, the grandmother now agrees that it was unwise for her to have introduced B to her father. It is difficult to assess what effect the grandmother’s behaviour in introducing the child to her father has had on her. It is unlikely to be to her benefit to have rebuilt a relationship with her father and then for him to cease any contact or communication.
Mr F has been replaced by Ms M at CAMHS. The reason for the change was that it was perceived that B was no longer comfortable with Mr F. There is no objective reason why that should be so. I find that the grandmother did not consider that Mr F was supportive of her relationship with B or rather more to the point, appeared supportive of B’s relationship with her mother.
Ms M has seen B on about three occasions. There appears to be no case management plan and at present before there can be any provision of any therapeutic assistance Ms M needs to finish an assessment process. The grandmother acknowledged that B thinks her mother hates her. I find that there has been no effort made by the grandmother to dispel the child’s misapprehension that she is not loved by her mother.
There is little doubt that the state of communication between the mother and the grandmother is poor. It is unlikely to improve, particularly given the more recent allegations by the grandmother involving Mr E and the mother.
The grandmother thinks that the children will cope and survive by being separated and her concern is that if an order is made B will not comply with it.
Ms G Kirk
Ms G Kirk is the children’s aunt. She has never visited the children at the mother’s home and does not think that she would be welcome. Messages and phone calls that have been made or sent have been ignored.
The aunt reports that B has told her of recent date that she does not want to see the mother and does not like Mr E.
The aunt was complicit in taking B to the police in respect of the allegation that C had talked of Mr E applying cream to her vulva. She asserts that she is now satisfied that no abuse has taken place, but she does not regret her action. She still does not think much of the mother and is clearly highly supportive of the grandmother.
She does not agree that the mother is able to care for C and certainly not B. She and the grandmother have disagreed on this aspect. She believes that the mother has a drug problem and she alleges that she has photographs that at least suggest the mother is from time to time drug affected.
The aunt has attended on 12 occasions to support the children during their interaction with CAMHS.
Mr F
B was referred to Mr F by Dr N (Psychiatrist) presenting with nightmares and clingy behaviours following her being witness to the altercation that occurred on 12 January 2016 between the mother and the grandmother.
Dr N provided a letter to the grandmother’s solicitor dated 18 February 2016 in response to an email seeking a report about B’s condition. In this letter he confirms that B attended CAMHS for an assessment on 15 February 2016. He wrote:-
There is insufficient information to be precise but [B] is presenting at least with an Adjustment Disorder and possibly with PTSD or more subtle, enduring distortions of personal development. It is too early to say whether removal of [the mother] from the home will solve her problems or whether additional therapy may be required so I am managing the case expectantly, waiting to see how things unfold..
Mr F is a psychologist in the employ of CAMHS who treated B from September 2016 until March 2018.
In March 2018 the grandmother lost confidence in Mr F and filed a complaint with CAMHS. Subsequently B’s treatment was transferred to Ms M.
Mr F provided a report to the ICL on 26 February 2018 ahead of the interim hearing listed for 27 February 2018. The grandmother attended his office on 1 March 2018 and asked him to correct the report claiming that there were errors in the report that were inconsistent with her affidavit. Mr F told the grandmother that his report was accurate and he declined her request.
B and the aunt were present on 1 March 2018 and Mr F recalls that B said to him that he had put her and C in danger. B told him she heard that from the grandmother.
It is the grandmother’s position that she asked Mr F to fix mistakes in the report, but she was not asking him to amend the report. She accepts that she told Mr F that B’s life may be in danger but she denies that she spoke to B on this topic.
On 6 March 2018 the grandmother and the father met with the manager of CAMHS. The meeting was with reference to the grandmother’s complaint about Mr F. The manager made a case note of the meeting: “I found [the grandmother] to be rambling and only just coherent; oblique distress.” She agreed that she spoke with the manager in relation to her complaint and that she was distressed but denied the remainder.
The following exchange occurred between counsel for the mother and the grandmother:
Q:and what he then says is “I could not pin down specific complaint about the report except that [Mr F] left out the diagnosis of PTSD.”
A:No there was that and there was other mistakes in there as well and I did talk to him about it.
Q: He goes on to say “My feeling is that it just wasn’t condemning enough of the mother and supportive enough of [the grandmother].”
A: No it wasn’t, I told him what had happened and what was …
Q: And that was your complaint, that it didn’t condemn the mother enough and it didn’t support you enough?
A: No, he’s wrong because I walked in I spoke to him and we sat down and had a conversation on the diagnosis which I was told to go and look up, and I did, by [Mr F], and the other bit was about the mistakes that were in the report and I asked him if there was any chance the report could be amended to fix what [Mr F] had made mistakes in and his words were “no.”
Q And...
A: And I left because I got upset and he finished talking to [the father].
While reference was made to enquiries into whether B was experiencing Post-Traumatic Stress Disorder (“PTSD”) per Dr N’s initial theory, the purpose of the consultations undertaken by Mr F was to help B to negotiate the transitions between the grandmother’s home and the mother’s home. Mr F was at no time providing services in respect of PTSD and B has not received a diagnosis of PTSD.
Mr F considered that B had a variable presentation and held conflicting loyalties – he considered that B tries to please both the mother and grandmother. B presented as “over-bright” which Mr F considered a reflection of “a long-standing habit of pleasing others and masking her own insecurities.”
The grandmother provided a history to Mr F including information that the mother had a “history of instability” related to child sexual abuse, was “volatile” throughout her life, that she had assaulted the grandmother and that she suffered from Post Natal Depression.
Mr F reached a point with B that without the full support of the grandmother he could not continue with the sessions.
He considered that the grandmother did not want B to spend any time with the mother and it was notable that in any circumstance where B made a broad allegation she was not able to provide any context, particulars or other information that might lend credibility to the complaint.
As discussed, B’s referral to CAMHS was predicated upon the grandmother’s history of B experiencing nightmares and clingy behaviour following the alleged assault on the grandmother by the mother.
The summary of the grandmother’s concern is recorded in the note of 5 September 2016:-
…met with [B], Maternal grandmother (MGm) [the grandmother], Step fat[h]er [the father] and younger half-sister C. [The grandmother] reported that [B] was frightened that [B] will be in trouble from mother [the mother] if [B] discloses information about her treatment while in her mother’s care. [Mother] has also threatened [the grandmother] (no further elaboration). [The grandmother] concerned about neglect and lack of parental supervision while [B] is at her mother’s. [The grandmother] reported that there was a deterioration in [B’s] behaviour as the week progresses and the closer to the access day approaches. [The grandmother] reported that it takes [B] a few days to adjust when she is back at [the grandmother’s] house – she is withdrawn and tends to be snappy. Discussed additional support for Maternal grandmother to help with the demands /caring for [B] including accessing her own counselling through a GP mental health plan.
At the end of his involvement with the family, Mr F could not say that his involvement with the child had produced any beneficial outcome.
His evidence supports a finding that the extensive therapeutic intervention is unlikely to have been required. The issues of concern were not matters raised by B or reasonably inferred from her behaviour, but rather, upon the flawed and distorted history provided by the grandmother. When Mr F reached a conclusion that B was unlikely to be at risk in the mother’s care, the grandmother took steps to attempt to discredit him.
There appeared to be no recognition by the grandmother that therapy for its own sake and without a focus and proper management plan including an assessment of when no further therapy is either necessary or warranted, the grandmother was not capable of protecting the child from further emotional or psychological harm, but rather considered the therapy to be a potential weapon to be used against the mother.
It is likely that the therapeutic process was based on false assumption and a history distorted by the grandmother’s mischievous intent. I accept the evidence of Mr F. He was an impressive witness and where his evidence differs from that of the grandmother, his evidence is to be preferred.
Ms M
Ms M became involved with B and her family from May 2018. She is a social worker and has met B on five occasions in the presence of the grandmother. She was involved in four sessions but one session did occur with B in the absence of the grandmother on 6 September 2018. She has also met B’s aunt.
Ms M was still undertaking an assessment of B’s needs in order to better consider the appropriate therapeutic intervention. The grandmother gave a further history of difficulties that she had with the mother and talked of her struggle with the Court process.
Ms M considered that she was able to offer B a safe space to share her feelings about the conflict.
She conceded that most of the information came from the grandmother and in particular her report that B will kill herself “if she has to live with [Ms B]”.
She did not make a mandatory notification because she considered that the statement lacked any context. Her only concern was that the child was clearly affected by the conflict between the parties.
Ms M’s evidence provided the Court with little assistance. Given the matters raised by Mr F it is not easy to understand how an early assessment could not have been made to determine whether further therapeutic intervention was warranted.
Mr Dudley
Mr Dudley is the father of C. He is employed as a manager and it is a feature of his employment that the two busiest days of the week fall on Saturday and Sunday.
He complains that the orders sought by the ICL propose that he spends time with C on weekends, but if that were to occur then he would not be able to see C given that he returns home at 6 pm. The father also recognised that he had not made any provision for school holidays, but thinks that he might be able to take off the necessary time.
He candidly admitted that he now holds no concerns in respect of either the mother or Mr E’s ability to care for the child, but concedes that he was prevailed upon to make a complaint of sexual abuse of C against Mr E.
He consented to the genital examination following a request by the grandmother. He accepts that he should not have done so and that it was likely to have been a harmful exercise for the child.
Notwithstanding that the grandmother had promoted a concern surrounding B’s alleged comment that she would kill herself, he considered that there was no substance to it and was no more serious than if the child had said “I will kill myself if I don’t get a milkshake”.
Left to his own devices, he considered that he would be able to communicate with the mother. They were able to negotiate handover and he believed that the communication would be improved if handover did not occur at a police station. He acknowledges that at present there is no direct communication or conversation between the mother and the grandmother.
There was an openness and candour about the father’s evidence. It was apparent that he realised and regretted that he promoted an allegation that Mr E had sexually assaulted C. Whilst he did not go so far as to admit that it was a concoction, he did have reservations about the medical procedure and the examination, but it was only at Court that he realised he had “made a mess of it”.
He accepts without reservation that C had not been the subject of any abuse.
The tenor of the father’s evidence is that he was persuaded to promote allegations that the mother was not a protective parent and the children were not safe in her care. There is no evidence upon which such a contention could be founded and accordingly I find that he was persuaded and/or suborned by the grandmother.
It is a reasonable observation of Mr F that the father took a back seat in terms of the therapeutic sessions and was prepared to accept that he had been in error in his involvement with the grandmother’s campaign to vilify the mother.
It is difficult to assess whether the father has had an epiphany or realises that he must to some degree distance himself from the grandmother’s conduct and the subsequent consequences.
The mother
The mother was asked to consider why B had told the family consultant that she did not want to live with her if it was untrue. The question was not the subject of an objection and whilst it should have been, the mother’s response provides a convenient summary of the differing attitudes of the parties to B’s uncertain presentation. The mother does not think that B means what she says.
She considers that the proceedings have not helped the relationship between the parties and if any weight can be attached to B’s utterances, then it is to confirm the mother’s concern that the grandmother has integrated B into the parenting conflict and the child’s presentation is consistent with an expression of divided loyalty.
The mother conceded that when she lived in the grandmother’s home B’s care was shared. She agreed that in 2009 she suffered from depression and received assistance from various health professionals. For a significant period of time the mother acknowledges that the grandmother assisted her in B’s care and as a result there is now a strong bond between them.
The history of care reflects the significant involvement of the grandmother, particularly when the mother had employment that kept her away from the home for extended periods. In 2013 her employment required her to be two weeks on and one week off. It is self-evident that the care undertaken by the grandmother for B was critical.
There was a substantial period when the mother’s health was poor and she suffered from medical complications. The treatment was of extended duration and the grandmother provided the primary care for B during this time.
At one point the mother considered it appropriate to sign over B’s care to the grandmother. There is some dispute as to the underlying reason for her decision. The grandmother alleges that she had a new relationship and her attention was focused on her new boyfriend and not B. The mother rejects that proposition and contends that she had medical issues of such gravity that she thought she may die.
She acknowledges that whatever the basis, the grandmother did a good job looking after B and that at that time she had no concerns.
The mother moved out of the grandmother’s home when C was 14 months of age.
The involvement of Mr E has been a matter of some contention between the parties. He stayed with the mother from time to time during the period that she lived in the grandmother’s home. It appears that the grandmother and Mr E had a fractious relationship.
The mother did agree that Mr E had yelled at B and used the words “get your head out of your fucking arse”.
The mother acknowledged that she intervened and had told Mr E that he should stop yelling at the child notwithstanding that B had apparently been rude to him.
She accepted that B was distressed by the incident.
The mother and the grandmother still harbor significant resentment arising from the circumstances in which the mother left the home in 2016. There was an argument between the parties and after they had arrived at the grandmother’s home she alleges that the mother punched her to the right side of the face. The mother contends that the grandmother had attacked her. Photographs that purportedly show the bruising and the result of the physical altercation with the grandmother were denied by the mother.
It is likely that there was an altercation and whilst the evidence does not enable me to determine who was the perpetrator, I am satisfied that significant injury was occasioned to the grandmother as appears in the photograph.
Of greater moment however are the longstanding consequences of that altercation. The relationship between the mother and the grandmother has broken down completely and it does not appear that there is any real likelihood of a reconciliation occurring.
The mother was referred to a record of her remarks at [46] of the second family report. The mother agrees that at that time she was unsure as to the Court orders that she would seek and contemplated that a possible option would be a week about arrangement for B between her and the grandmother. The orders now sought are restricted to one day per fortnight.
The mother was not able to set out any strategy in terms of how she would manage any distress or anxiety that may be experienced by B if she pined to spend more time with the grandmother. The mother’s position was firm. Notwithstanding any difficulties that B may experience, there should be no extra time, nor was she prepared to consider a more expansive arrangement in terms of B’s shared care.
I was left in little doubt that the mother retains an intense dislike for the grandmother.
The mother remains angry with the grandmother for having promoted allegations of sexual abuse and she further considers that her relationship with B has been undermined by B referring to the mother as “Mum” in her home, but in the grandmother’s home the mother is referred to as “Ms B”.
The parties are not agreed as to the ongoing medical arrangements for B. She suffers from asthma and it is likely that B will need appropriate medical supervision and management. Each of the parties seek that B should attend a different surgery.
The poor communication between the parties is reflected in the paucity of information passing between the parties in the communication book. The mother’s position is that she considers only that which is required should be recorded and she wants as little to do with the grandmother as possible.
B is currently enrolled in a local primary school. This school has a Year 12 level and the mother commits to B remaining until the conclusion of her secondary education.
On 9 July 2017 B was admitted to hospital consequent upon a diagnosis of asthma. The grandmother had taken the child but did not tell the mother. She became aware of the child’s attendance on the following day. She asked for a discharge plan because the note in the communication book said nothing about asthma. The mother then tried to obtain information from the surgery at which the child attended. The note in the communication book as prepared by the grandmother was limited in its detail.
The mother contacted her solicitor to ascertain more information about the child’s attendance and the ongoing management plan.
The evidence of the grandmother is that she considered the information, whereas the mother’s mistrust of the grandmother was only heightened by the paucity of information.
The Family Consultant
The family consultant saw the family as recently as 30 July 2018.
She holds concern for the children’s ongoing exposure to the high level of conflict between the parties.
The orders proposed by the ICL were put to the family consultant and it was her consideration that there was merit in the proposed orders. She holds concern about the mother’s ability to meet the needs of three children simultaneously but this concern does not outweigh her concerns regarding the ongoing conflict between the parties.
The family consultant was “unclear” on what would be best for the children in this matter; she has concerns about the parenting style of both the grandmother and the mother.
At the time of the first report B had a primary attachment to the grandmother, but also had a meaningful attachment to the mother.
The family consultant considered that B’s relationship with the mother could be repaired. Her observations of B’s connection with the mother were that their relationship was of a natural and spontaneous nature.
If her relationship with the mother was undermined by a person B perceived to have influence, such as the grandmother, it could possibly fracture further.
The family consultant had no confidence in the ability of the grandmother to support B’s relationship with the mother.
She considered that whoever had the primary care of B should have sole parental responsibility given the inability of the parties to co-parent.
Whilst conceding that there was some merit in the orders sought by the ICL the family consultant was still of the view that B should live with the grandmother and spend time with the mother each week from after school Friday until 5 pm Saturday.
The proposal of the grandmother and the father in relation to C was broadly in line with her recommendations.
The family consultant recorded that each of the parties retained concerns as to the others ability to parent. At [44] of the third report the family consultant records that the mother considered B was “very scared” of the grandmother and such was the poor level of attachment that at handovers the grandmother was ignored by B.
The grandmother considered that C often did not wish to return to her mother, and struggled with handovers.
The mother considered that since she had been obliged to force C to return to the grandmother and the father’s care following the invasive medical procedure in February 2018, C’s relationship with the mother seems to have changed and she now exhibits “meltdowns”. Her view was that “whatever they did to [C], they’ve broken her”.
B’s presentation to the family consultant was complex. She initially presented as shy and reserved. It was noted that she separated easily from her mother and Mr E. She repeated certain allegations to the family consultant which prompted her to form the opinion that B’s disclosures were an accurate representation of her thoughts and feelings.
She enjoyed attending school and had some understanding as to the cause of her high level of absenteeism being related to her ill health or having to attend CAMHS.
B was complimentary of the grandmother and had no criticism of her time with her.
There were some concerns as to B’s remarks of the potential volatility of the relationship between the mother and Mr E. She was apparently able to overhear arguments and she considered that she and C were exposed to her mother and Mr E fighting. C appeared to have some insight as to the dispute between her mother and the grandmother.
B was clearly upset at the manner in which the grandmother and the mother referred to each other. She attributes the use of the word “slug guts” as her mother’s reference to the grandmother and knew that the grandmother had called her mother “a whore”.
The family consultant recorded that B wanted to remain living with the grandmother and was content to do so because “we go do fun things, like go out for dinner, go to the park, watch movies, go to parties, and at mum’s only sometimes” did she do these things.
In the second report the family consultant formed the view that there did not appear to be a strong, loving and secure attachment between B and the mother. That observation was to some extent revised in the third report where the family consultant observed B to refer to her mother as “mum” and Mr E by his first name.
At [70] of the third report the following appears:-
…The children appeared relaxed, playful and spontaneous in their play and this was shared equally with both their mother and [Mr E]. At times [Mr E] and [the mother] struggled to remain attentive to, and engaged with [the children] in their play, given [J’s] highly active and inquisitive play and need for active supervision. Other times however, [the mother] was seen to cuddle [C] in her lap whilst sitting on the floor sharing in play, and engage in play and free flowing discussion with [B]. … [B] did not appear in any way uncomfortable in the presence of [Mr E], however her interactions did not suggest a strong bond.
At the end of the play session the family consultant observed that B appeared “mindful of [the grandmother], [the aunt] and [the father] being nearby in the adjoining room.” She hugged her mother, ignored Mr E, unlike C who happily engaged in affectionate interaction with the mother and Mr E.
The family consultant considered that there had not been an awakening by the grandmother as to the need to restrain her preference to openly criticise the mother. There was still open hostility between the parties and the family consultant considered that the father had also lost his neutrality. Of prime concern is that someone needs to be B’s primary carer.
The family consultant was asked to consider why B was still feeling unsafe with the mother. Her evidence was that it may simply be a reflection that B is more familiar in the home of the grandmother and also placed weight on the complaints by B of her observations of the mother and Mr E arguing loudly. Anger, yelling and arguments between the mother and Mr E may well provide the child with a stark difference between the two households.
Whilst the family consultant could see that there may be merit in orders as sought by the ICL, in particular given that there was no evidence that Mr E or the mother presented as an unacceptable risk, she remained concerned that the orders sought may have a negative impact on B. She is likely to miss the grandmother and if there is to be a transition of care to the mother, this must be done with a level of sensitivity to the child’s needs. There must be a retention of some overnight component in the grandmother’s home.
If B is to remain in the primary care of the grandmother then there is no reason why she should not spend more than one night per week with the mother.
The family consultant was asked to reflect upon the proposition that the grandmother had conducted a campaign to denigrate the mother to the children. This had occurred by allegation and purported disclosure having been made to police, Child Protection Services and a range of other people who have become involved with the family.
The family consultant agreed that this was a potential difficulty, particularly if there did not appear to be any change to the grandmother’s view of the mother. B was clearly loyal to the grandmother and she was required to navigate two worlds. It is likely that she has formed the view that she needs to tell the grandmother what she thinks she wants to hear.
There was a concession that the allegations of abuse have done great harm to B, in particular the conduct of the grandmother as referred to in [72] of the third report was considered to be confronting for the family consultant to observe.
Ultimately, the family consultant considered that the grandmother lacked insight as to her behaviour and did not think much about it. She did not seem to have the capacity to reflect upon her behaviour.
If it continues and the grandmother is not able to cease her denigration of the mother then the likely adverse impact on the children, but in particular B, may well increase exponentially,
The family consultant was clearly conflicted but still held to the view that B remained more firmly attached to the grandmother in terms of her view that it was a safe and secure environment than to the uncertain elements of the mother’s home.
In considering the weight to be given to the evidence of the family consultant, I have regard to the decision of Andrew & Delaine [2009] FamCAFC 182 where the Full Court considered the treatment and weight to be given to the recommendations of a family consultant:-
[72]It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight. Departure from an expert report in such circumstance requires careful consideration by a trial Judge. However, the ultimate decision still must be that of the trial Judge. The weight to be given to a family report was explained by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819 as follows:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e)Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child’s welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court’s investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
…
Accordingly, whilst potentially persuasive and to be afforded significant weight, the recommendations of the family consultant are but one factor that I must bring to account.
Parenting considerations
The children currently spend time with each of the parties pursuant to an order made 8 March 2016. B lives primarily with the grandmother and C lives with the mother. B spends two days each week with the mother and C spends one day each week with the grandmother and two afternoons with the father.
The mother now falls in with the proposal of the ICL as set out in her Case Outline Document.
The possible parenting permutations are made more complex by the father submitting that given he works each weekend the orders proposed by the ICL, if made, would in reality result in him spending very little time with C.
In addition, consideration was not given to school holidays although the father at least made a late application that he spend extended time with C during holiday periods.
The parties are not agreed as to parental responsibility. The grandmother seeks equal shared parental responsibility in respect of B and supports the father’s application for a similar order with C. The mother seeks sole parental responsibility.
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3). I am mindful of the directions contained in s 60CC(2A) and in particular the focus by the mother of what she considers the potential emotional and psychological harm to the children by the attitude of the grandmother with the support of the father directed to undermining the children’s relationship with the mother and Mr E.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they are identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the children’s best interests.
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the children having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm.
(5)Have regard to the additional considerations under s 60CC(3).
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) is to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Meaningful relationship
The aims and objects of the Act are to ensure that the best interests of a child or 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.
It must be remembered that the grandmother is not to be considered as the parent of either child and the father is not the parent of B. Accordingly, the provisions of s 60CC will apply differently to the grandmother’s relationship with B and the orders that she seeks in relation to C.
I am however mindful of the wide discretion that arises from a consideration of s 60CC(3)(m).
In Mazorski & Albright [2007] FamCA 520 Brown J considered the definition of the term “meaningful” and observed:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …
A meaningful relationship is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
B has lived primarily in the care of the grandmother for a number of years. There is little doubt that B is strongly attached to the grandmother. She is less attached to the mother. The grandmother contends that the mother either was not able to look after B or did not wish to do so and placed the child in her care. Since that time she has discharged her obligations in respect of the proper parenting of B and that has resulted in the clear evidence of the family consultant that B is both emotionally attached to her grandmother and feels more comfortable in her care. B’s relationship with the mother is developing.
The mother argues that the impediment to the full restoration of a loving and close relationship with B has been the conduct of the grandmother consisting of false allegations that the children were at risk in the mother’s care. She considers that unless B transitions to her primary care, the Court can have no confidence that the grandmother will support their relationship.
The grandmother and the father agreed that C’s best interests would be served in the mother’s primary care. That has happened and at trial no evidence was presented to suggest that the mother’s care and parenting of C has been inadequate. The observations of the family consultant lends support to the determination that C is not a child at risk and has thrived in the mother’s household acknowledging the involvement of Mr E.
The orders sought by the ICL are predicated on the importance to the children of them having a meaningful relationship with the mother.
The mother and the ICL are not convinced that a meaningful relationship between the children and the grandmother is as important.
The mother gives only tepid support to C’s relationship with her father. Whilst at times the father gave the appearance of wanting to distance himself from the more malevolent conduct of the grandmother, the evidence supports a finding that the father’s changed attitude towards the mother and her ability to parent the children comes very much on the heel of the hunt and may well be a stance born more of strategy than genuine acknowledgement.
Nonetheless, the orders promoted by the mother and the ICL are in recognition that the father’s relationship with C is important. As discussed, the father’s circumstances are complicated by his work arrangements and his intention to continue to reside at the grandmother’s home. The father’s evidence and the observations of the family consultant support a finding that his parenting considerations are subordinate to those of the grandmother. When the children are in her home she makes all of the decisions in respect of B and with the tacit consent and acquiescence of the father, the same applies to C.
Protection from harm
There is no current allegation that the mother presents a physical risk to the children. The grandmother and the father have resiled from all allegations of sexual abuse.
The mother and the ICL raise the risk to the children of psychological harm by their exposure to the denigrating and derogatory conduct of the grandmother and to a lesser extent, the father.
The ICL contends that there is a co-dependent relationship that has developed between the grandmother and the father exacerbated by the strong support by the grandmother from the aunt.
The adverse view of the mother by the maternal family including the father is not restricted to language or the toxic nature of the grandmother’s home towards the mother. Allegations have been made that each of the children have been abused by the mother and Mr E. The ICL highlights the assertions by the grandmother that the mother has emotionally abused C, neglected her medical care and allowed Mr E to put alcohol in her feeding bottle and failed to protect her in respect of a sexual assault allegedly perpetrated by Mr E.
The grandmother had also alleged that Mr E was sleeping with B in her bed, hugging her and kissing her. B was alleged to have been pushed into a cupboard with the mother and Mr E laughing at her.
No evidence was presented in respect of any allegation that the mother and Mr E either jointly or severally were the perpetrators of emotional and/or physical harm directed towards the children.
The grandmother had also alleged that Mr E has abused illicit substances and both he and the mother suffer from ongoing and untreated mental health issues which have the prospect of causing harm to the children.
Both the mother and Mr E have been accused of assaulting the children, with an allegation that the children have presented with marks consistent with having been burnt by a cigarette. Over and above the allegation that the mother generally neglects the children’s healthcare and is not protective of them, the more florid assertion is that the mother has told the children that she would buy a gun and shoot them.
The grandmother does not now press any of these allegations other than the broad contention that B’s health considerations are such that the mother would not be able to adequately manage her treatment and medication requirements. There is also the uncertainty that the mother’s care of the children, but in particular B, may well be diminished by her focus on her recently born child with Mr E.
At the commencement of the proceedings it was acknowledged that there would be no evidence presented to support the various historical allegations that had been made by the grandmother and the father. It was also conceded that C should remain in the primary care of the mother. The grandmother’s opposition to the mother’s proposal for B’s future parenting is more to do with her concern that the mother will not adequately manage B’s health needs, but also the uncertainty as to the effect on B of transitioning to the mother’s care following a long period of primary care by the grandmother.
The family consultant noted [78] of her third report that:-
… no allegations have been substantiated with respect to physical or sexual abuse of the children in their mother’s care. No new information obtained through this assessment process added weight to the concerns.
The family consultant did recognise that the children may be at risk of “unnecessary investigation” by the grandmother. This reference relates to the evidence of the grandmother and the father requiring C to be exposed to a genital examination based upon a false allegation that the child may have been the subject of sexual assault by Mr E.
The family consultant was concerned that B may have been subjected to an environment in the mother’s home consisting of yelling, tension and verbal conflict between the mother and Mr E. A further difficulty for the children in terms of their exposure to conduct which may have adverse psychological or emotional impact upon them is the ongoing and unrelenting conflict between the mother and the grandmother. The evidence provides no support for the prospect of a better relationship developing. Whilst there was some consideration given to whether the father may be a moderating influence, whilst he appeared to be more receptive to the restoration of a better relationship between the parties and more civil communication taking place, he appeared to be entirely under the thrall of the grandmother. His involvement with the genital investigation of B is significant. I do not however consider that the matter stands or falls upon the weight to be given to that one incident. It was symptomatic of a larger narrative by the grandmother that up until effectively the first day of trial she considered that the children were at a high level of risk in the mother’s home and had been subjected to serious physical assault by the mother and physical and sexual assault by Mr E. As discussed, all of these allegations were not supported by the evidence and proved to be baseless.
The evidence of the family consultant acknowledges the risk of emotional harm to the children by the negative approach adopted by the grandmother towards the mother. Whilst not a matter of direction, the consideration of the family consultant that the father may well prosper in his relationship with C were he not to remain in the grandmother’s home highlights the level of hostility that exists between the mother and the grandmother.
During the course of the evidence the grandmother’s counsel considered that she had sufficient instruction to explore the mother’s tragic history as a child of having been the victim of extensive and horrific sexual abuse. It appears that the motivation for the questions were predicated on an assertion by the grandmother that because the mother had been the victim of sexual abuse B and C were also at risk of sexual abuse in the mother’s home in that because of her own experience the mother may not be appropriately protective of the children.
Whilst the line of questioning was barren of any merit, it highlighted the grandmother’s insensitivity towards the mother.
In summary, the mother contends that the grandmother’s attitude towards her will not change and this has the potential to be picked up by the children and for their wellbeing to be adversely affected. For her part, the grandmother considers that B is of fragile emotional stability and given that she does not wish to live with her mother may suffer emotional or psychological harm if forced to do so.
Children’s wishes
C is to remain in the mother’s primary care and the only outstanding issue is the extent to which the child spends time with the grandmother and the father. The family consultant did not record nor consider that any weight should be given to C’s views.
B did express a strong view to remain living with the grandmother.
In interview she was asked to consider the consequences of the parenting proposals of the parties. Paragraph 65 of the third report sets out B’s initial response:-
In the attempt to illicit (sic) [B’s] views on different possibilities of future parenting arrangements she was asked how she would feel if it was decided that she lived week about with her mother and grandmother. [B] looked sad, quietly said “I don’t know”. She then explained she would be “happy with one week with Nanna but kind of sad and kind of happy with one week with mum”. She explained she would be sad in her mother’s care “because I’d miss Nanna, but happy because I’d be with [C]”. She added that she wanted to live with [C] more than she wanted to live with her mum.
At [66] of her third report the family consultant recorded subsequent remarks of B where she expressed that she did not like sleepovers in her mother’s home and that she did not feel happy sleeping away from her grandmother.
Noting that the discussion with B took place on 30 July 2018, [68] of the report records that when in her grandmother’s care she was able to spend time with her father “[Mr D]” and her “other sister [O]”. The evidence supports a finding that the unilateral actions of the grandmother to introduce B to her father without notice to or the consent of the mother, should be considered as unwise and ultimately is not to B’s interests given the lack of any future commitment by her father.
At [82] the family consultant considered that B was “naturally aligned” to the grandmother. She was observed to be “genuinely happier in her grandmother’s care and clear in her desire to remain living in her primary care”. The family consultant considered the concerns about the grandmother’s approach to parenting, but ultimately gave significant weight to B’s wishes in her recommendation that her primary care remain with the grandmother.
The ICL and the mother do not consider that the same level of weight should be given to B’s wishes and contend that whilst B has expressed a clear preference to remain with her grandmother, she lacks the maturity to understand that her interaction with her mother and her becoming enmeshed in false disclosures promoted by the grandmother is a serious countervailing consideration.
The nature of the children’s relationship with important adults
B is emotionally attached to her grandmother and less so with the father. Of recent date, B’s relationship with her mother and to a lesser extent Mr E appears to be placed on a more certain footing. There is a confidence that is developing between B and her mother and whilst B does not wish to remain in her mother’s primary care, there is no suggestion that she does not wish to see her. In the observed interaction the family consultant considered that the children in each parties’ care was indicative of a strong connection with both the mother and grandmother.
It is important to the children that they maintain an ongoing relationship with all of the parties involved but in such a way that the potential for risk that has been identified is minimised and balanced with the other relevant factors, noting the Court’s obligation is to give greater weight to the considerations as set out in s 60CC(2A).
The likely effect of any changes in the children’s circumstances
C is already in the mother’s primary care. There appears to be no issue or complaint in that respect. C enjoys her time with her mother and has formed an increasing and beneficial relationship with Mr E. She remains attached to her father and the grandmother.
B does not wish to leave the grandmother’s primary care.
The family consultant gave consideration to the sibling connection and formed the view that the children “shared a close and loving sibling connection and that it was important for B to remain connected to her sister through regular time spent together. It was positive that this sibling connection was supported by all parties involved.”
It is recognised that there is a significant age difference between the children, but at this stage and at least for the foreseeable future the evidence supports the maintenance of the sibling relationship. If proper to do so, the children would be advantaged by spending as much time together as is possible.
The orders sought by the grandmother and the father, supported in part by the family consultant, would have B and C together from Sunday 10 am until Tuesday 4 pm of each week. Other than that period, B would be in the care of the grandmother and C would be with her mother.
The family consultant considered that some consideration may be given to C’s time with her father being extended by a night when she attains school age and if and when the father obtains separate and independent accommodation.
I consider that significant weight should be given to the benefit to the children of maintaining their sibling connection. I do not consider that the recommendation of the family consultant achieves that outcome.
The capacity of any other person to provide for the needs of the children
There is no complaint that the mother is not able to provide for C’s needs. The mother contends that she is also able to provide for B’s needs. That proposition is the subject of strong dispute by the grandmother.
The grandmother considers that B suffers from asthma having been diagnosed from the age of two years. B is required to use a nebuliser from time to time. Other medication is often required to deal with infections. The grandmother contends that the mother was often resistant to administering B’s medication. The evidence of the grandmother is that there is a history of her attending to B’s medical needs and when confronted with what she considered to be the mother’s inaction, solicitor’s letters and medical certificates were provided. On 11 August 2016 she provided all of the necessary medical information and medication to enable the mother to treat a wound to B’s thumb whilst in her care. The grandmother formed the view that the mother had not followed the management plan, did not change the child’s bandage and allowed the wound to get wet.
Her complaint goes beyond the mother not following her directions. She contends that the mother failed to act upon the advice of doctors following a medical appointment on 18 August 2016.
The concern of the grandmother is that the mother neglects the children. On 3 November 2017 the grandmother alleges that the mother applied sunscreen to B’s face in circumstances where the mother knew, or should have known, that B was allergic to sunscreen.
B also suffers from conjunctivitis. There is a particular medication that is effective for B. The grandmother alleges that the mother refuses to use it and in a note dated 1 July 2017 writes:-
“No worries will get report sent to [Dr N] at [P] Medical Centre. So in the future if [B] needs medication and you have to get it over the counter I would like a doctors note written to say she needs it no names or doctors names on the medication I will NOT be giving it to her. All good. Signature of [Ms B Kirk] 1/7/17.”
The mother denies that she ignores the medical needs of the children. She argues that no evidence has been presented that C is not being adequately cared for and the difficulty with B is not the mother’s attitude to medication or B’s treatment per say but rather, the enmity between the mother and the grandmother together with the aunt has either impacted upon B or is likely to in the future. There is mistrust between the parties and it seems that unless the need for a medical treatment plan or medication is not the subject of a doctor’s instruction, each of the parties place little weight upon the statements of the other.
The evidence does not support a finding that the mother wilfully ignores the medical needs of B or is negligent or neglecting of them, but supports a finding that shared parental responsibility has had an adverse impact on the children and must be considered as a risk.
Parental responsibility
Any determination in respect of parental responsibility must be determined on the basis of what is in the best interests of the children.
The parties have little or no ability to communicate with each other. The ICL strongly submits that the relationship between the grandmother and the mother is unlikely to improve.
The evidence from the family consultant is that the relationship is toxic and the mistrust appears to be deepening.
The grandmother is not able to explain the basis for her concession that the mother and Mr E no longer present as an unacceptable risk of harm to the children. The history of serious allegations against the mother and her partner are not easily swept aside. The Court can have no confidence that either the mother or the grandmother would seek a consensus with the other as to major issues affecting the children. Difficulties have already arisen in respect of the provision of a stable health environment for the children and the grandmother has demonstrated that her dislike for the mother is covered by a thin veneer of preparedness to compromise.
The evidence supports a finding that whatever benefit may have been available to B from her involvement with Mr F and CAMHS counselling was entirely undermined by the grandmother’s conduct in seeking that Mr F amend his report to reflect poorly on the mother and when he was not prepared to do so resulted in a complaint about him and the resultant change in counsellors.
The grandmother did not seek the mother’s input in reintroducing B to her father.
The communication book has been an unsatisfactory exercise.
The evidence does not support a finding that equal shared parental responsibility will benefit B.
The circumstances in respect of C are not so complicated. C lives in the primary care of the mother and spends time with the father although by his own admission, it is limited to the hours when he is not working.
The father seeks equal shared parental responsibility and significant time with C.
Whilst it appears at first instance that the father may well adopt a more reasonable approach in dealing with the mother, the content of his evidence as to his concerns in respect of the mother’s care of C is unlikely to engender a cooperative approach between the parties. He does not believe that the mother administers C’s asthma medication and contends that she allows the child to watch “R Rated” movies. When C returns from the mother’s care she appears to the father to be agitated.
The father is very much allied to the cause and presentation of the grandmother. Whilst he regrets his decision now, he was highly supportive of the application seeking to suspend C’s time with her mother on the basis that she had been the subject of sexual assault by Mr E.
I agree with the assessment of the family consultant that the prospects of better communication are more likely to occur between the mother and the father than with the grandmother. It must be said that any reasonable visage now presented by the father comes from a very low base of strident allegation that the mother is not able to properly parent and protect the children and left to her own devices, would allow their physical and sexual assault.
CONCLUSION
There is merit in the submission of the ICL that the children should remain living together as much as is practicable and given the previous conduct of the grandmother may well be an indicator that her campaign against the mother has not yet run its course, the preferred option is that the children should be in the primary care of the mother.
The orders sought by the father should be tempered by his continued residence in the home of the grandmother, but of greater importance is a clear finding on the evidence that he was complicit in the grandmother’s denigration of the mother.
I am however of the view that the orders sought by the mother and the ICL do not give the evidence of the family consultant sufficient regard in terms of the time that B should spend with the grandmother and C should spend with her father, noting that there is something in his submission that his present work arrangements would not enable him to spend any time at all with C.
I propose that following a settling in period with the mother, during which the grandmother’s time with B will be suspended, the children should live with the mother and spend time with the grandmother as follows:-
(a)As to B, each alternate weekend from the conclusion of school Friday to the commencement of school on Monday and overnight on the intervening Thursday; and
(b)As to C, with the father from 6 pm on Saturday night to coincide with the weekend that B is with the grandmother to the commencement of school /or pre-school on the following Tuesday and each alternate weekend thereafter.
Whilst school holidays were an afterthought, there appears no reason on the evidence why the short end of term holidays should not be shared and the Christmas school holidays to be on a week about basis.
The mother is better suited for the primary care of the children, but it is important that they maintain an ongoing relationship with the grandmother as to B and the father as to C.
It is reasonable that orders be made to regulate the arrangements over the Christmas period.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and sixty nine (269) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 26 November 2018.
Associate:
Date: 26 November 2018
0
2
1