Kornel & Kornel
[2023] FedCFamC1F 377
•15 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kornel & Kornel [2023] FedCFamC1F 377
File number(s): DUC 27 of 2017 Judgment of: ALDRIDGE J Date of judgment: 15 May 2023 Catchwords: FAMILY LAW – PARENTING – Proceedings between the mother and the grandmother – Where the mother seeks orders for sole parental responsibility and no time with the grandmother – Where the grandmother seeks sole parental responsibility and for the children to spend time with the mother – Two children – Where one child has a disability – Family violence – Best interests of the children – Supervision – Where the mother and the grandmother have a dysfunctional relationship – Orders made for the children to live with the mother and spend limited supervised time with the grandmother. Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 158 Date of hearing: 13–15 February 2023; 30 March 2023 Place: Sydney Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Peacockes Solicitors The First Respondent: Litigant in person The Second Respondent: Did not participate Counsel for the Independent Children’s Lawyer: Mr Kelly Solicitor for the Independent Children’s Lawyer: Mason Mia & Associates ORDERS
DUC 27 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B KORNEL
Applicant
AND: MS C KORNEL
First Respondent
MR NOTH
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
15 MAY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The applicant shall have sole parental responsibility for X (DOB 2007) and Y (DOB 2016) (“the children”).
3.The children live with the applicant.
4.The first respondent will spend time with the children until X is 18 years old and Y is 14 years old (and thereafter if she wishes to do so):
(a)On the first Saturday of March, June, September, December for two (2) hours at such time as nominated by the applicant and to take place at a public location nominated by the applicant with such location to be no more than two (2) hours from primary of place residence of the applicant and
(b)At other times as agreed between the applicant and the first respondent in writing.
5.The first respondent’s time shall be supervised by an external agency (at her expense) unless the applicant deems that this is no longer necessary.
6.The first respondent shall be entitled to have sent to her copies of the children’s school reports and photographs (at her expense) and the applicant shall provide updated contact details of the children’s school to facilitate this.
7.Changeover shall occur at public location nominated by the applicant or as agreed between the applicant and any supervisor.
8.The parties are restrained from using physical discipline on the children or allowing any third party to do so.
9.The parties are restrained from discussing these proceedings with the children.
10.The parties shall not denigrate the other or members of the broader maternal and paternal family to the children or in the presence of the children.
11.The parties shall ensure that no third party denigrates the other or members of the broader maternal and paternal family to the children or in the presence of the children.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
These are parenting proceedings between Ms B Kornel (“the mother”) and Ms C Kornel, the maternal grandmother, who I will refer to as “the grandmother”. Mr Noth, the father of one of the children subject of these proceedings, has not participated in the proceedings for some time, and did not appear at the final hearing.
The interests of the children were represented by an Independent Children’s Lawyer.
The first of the two children subject of the proceedings is X, born 2007 – his father is a person who has played no role whatsoever in his life and is not party to the proceedings. Nothing more need be said about him.
The second is Y was born in 2016. Her father is Mr Noth.
D was born in 2021 and is the child of Mr E. The mother is due to give birth to another child who is also fathered by Mr E. These proceedings do no concern either of these children.
The mother and Mr E separated in 2022 after what the mother described as a number of serious assaults on her by Mr E, including a sexual assault. Mr E has been in custody in relation to those allegations since 2022 and the matters are yet to be resolved. Mr E has been refused bail on a number of occasions. He did not seek to be involved in the proceedings.
The mother sought that she have sole parental responsibility for the children, that they live with her and spend no time with the grandmother.
The Independent Children’s Lawyer (“the ICL”) sought orders along similar lines, save that, the children were to spend time with the grandmother for two hours on the first Saturday of every March, June, September and December, supervised by a supervision service (unless the mother deems it not necessary).
For her part, the grandmother sought that she have sole parental responsibility for the two children (X and Y), who were to live with her and spend time with the mother on the first Sunday of each month for two hours, with such time to be supervised by a supervision service, the grandmother or the City F police. In the alternative, in circumstances where orders were made that the children reside with the mother, she sought that the children spend time with her from 5.00 pm on Friday until 5.00 pm on Sunday, starting on the first Friday and the last Friday of each month. In addition to this, the grandmother sought a raft of other orders including times for phone access, time on special days and many orders directing the mother as to how she was to behave and care for the children.
Before dealing briefly with the relevant history of the matter, it is necessary to say something about each of the children, particularly X.
X
X was born in 2007, the mother having just turned 16 years old. The mother says that X was conceived following a sexual assault on her.
At some time before X was born, the mother was diagnosed with a mental health disorder, a diagnosis not supported in any of the material before me. She was prescribed medications which should not be prescribed to pregnant women as they are capable of causing significant birth defects, which is what in fact happened here. X was born with a number of difficulties which continue.
Ms G, who is an occupational therapist and rehabilitation consultant, is X’s case manager with the H Health Service. Ms G summarised X’s disabilities as:
[Omitted to comply with s 121 of the Family Law Act 1975 (Cth).]
Over time, X was also diagnosed with a medical condition caused by birth complications.
X was subsequently awarded a significant sum of money in damages, which is under the control of an independent trustee.
Ms G summarised X’s continuing difficulties as follows:
8. …
(a)Significantly higher levels of care above that required for a normally developing child from birth.
[…]
(d) Very significant developmental delay across all areas.
[…]
(g) Requirement for [mobility aids].
[…]
(j)[Conditions] impacting on his mobility. This means that [X] frequently trips and stumbles, bumps into things and falls over. This can cause scrapes and skin injuries and bruising on his legs.
[…]
(m)Severe speech and language delays […]. Requirement for speech therapy.
[…]
(q)Intellectual impairment and cognitive issues that severely impact his learning.
[…]
(s)Significant behavioural issues including verbal and physical aggression. Unfortunately, [X's] behavioural difficulties are increasing as he enters adolescence.
(t) Significant issues with emotional regulation.
[…]
(v)Significant issues in relating to his peers, very poor social skills, poor play skills and impaired ability to engage in social and leisure activities usually enjoyed by children of the same age. [X] has, and continues to be bullied at school, and [X] has also himself bullied other children.
…
(Affidavit of Ms G filed on 14 December 2020, paragraph 8)
As is apparent, X faces many difficulties. In addition X has a number of cognitive issues which were summarised as:
10. …
(a) A mild to moderate intellectual disability.
(b) Rapid cognitive fatigue.
(c) Poor attention and concentration. [X] is very easily distracted.
(d)Becomes overwhelmed easily and dislikes any learning or cognitive challenge.
(e) Language delays.
(f) Severely impaired adaptive living skills.
(g)Difficulties with conceptual reasoning and drawing abstract conclusions.
(h) Issues of working or short-term memory.
(i) Slow information processing speed.
(g) Difficulties being able to mentally manipulate information in his mind.
(k) Below expected problem solving.
(l)Delayed academic skills that fell within a kindergarten or five (5) year old child level.
(Affidavit of Ms G filed on 14 December 2020, paragraph 10)
X requires assistance with the following tasks daily and at school:
12. …
(a) Close supervision in the playground as [X] is at high risk of falls.
(b)Assistance to facilitate [X] to interact positively with other children, play, form friendships and to regulate his emotions and behaviour towards others.
(c)Social and emotional support as [X] develops social skills and friendships with his peers.
(d)If [X] falls and hits his head this could […] become rapidly life‑threatening.
(e)Keeping [X] on task - in the classroom he requires constant prompting to complete an activity.
(f)Encouraging [X] to participate in tabletop learning activities. [X] requires one to one intervention to participate in learning activities. [X] often avoids doing schoolwork by behaving badly when it is time to do reading or writing activities.
(g)High levels of additional assistance to learn numeracy, writing his name, letters and numbers and early reading skills.
(h)Additional supervision for mealtimes and some assistance with food packaging.
(i)Monitoring his fluid intake.
(j)Participating in sport and physical education.
(k)Participating in all areas of the curriculum such as: art, music, drama.
(l)Additional support on school excursions and other special events.
(Affidavit of Ms G filed on 14 December 2020, paragraph 12)
One of the consequences of these difficulties is that X falls often, and in doing so bruises himself, not only when he hits the ground, but when he falls onto objects. It is one of the complaints of the grandmother that she does not accept that all of X’s bruises are caused by falls and she remains adamant that he is bruised by other means and in particular, abuse at the mother’s hands or more likely, physical abuse by her male partners.
Other than for the grandmother’s assertions, there is no evidence before the Court that X is being hit by his mother or her partners. It is true that X is being bullied at school and this could be the source of some of the bruising. That is but a minor point raised by the grandmother.
The grandmother has tendered many photos of X’s bruising, often stripped to his underpants to reveal what she says must indicate bruises from other sources than falls. Unaided by evidence that is not an assessment I can make. The same proposition was put to Ms G, but I did not permit her to answer it because I considered, and Ms G agreed, that she did not have the expertise to tell whether a bruise was caused from a fall (including falling into an object) or from another source. However, Ms G did say that children such as X fall often, bruise themselves often and that looking at the photos she did not think that the bruising shown in them was remarkable having regard to X’s disabilities.
A central plank of the grandmother’s case against the mother, therefore, has not been made out.
The second difficulty is that X’s mobility aids rub the skin which then breaks down and leads to numerous infections. Indeed, one of these infections became so severe in 2022 that it required admission to hospital and surgery. That incident in particular, which I shall refer to in more detail later, and the general occurrence of sores and abscesses around the mobility aids is, according to the grandmother, caused or exacerbated by the neglect of the mother.
Ms G, whose evidence effectively was not challenged, says that the very nature of the mobility aids means that they are prone to rubbing the skin which can break down and then become infected. One of the ways to minimise this is for the aids to be frequently adjusted, particularly as X grows, so as to prevent rubbing. The mother lives in City F, NSW, where there is a great shortage of suitably trained physiotherapists (indeed physiotherapists generally it would seem) which means that the aids are not being adjusted as often as would be desirable, leading to an increased frequency of infections.
Also, X’s mobility aids break from time to time and have to be repaired as best as can be.
Ms G indicated that she had no concerns regarding the mother’s care and said that X’s limited access to therapist services has been caused by a lack of availability and living in a regional area, and not due to any neglect or lack of follow up on the mother’s part.
After his birth, X and the mother returned to Town J to live with the grandmother. They stayed there for the next eight years. It is not entirely clear who provided the care for X, but it has to be borne in mind, that the mother was only 16 at the time and did not get her driver’s licence until she was 22 or 23 years old. Therefore, the grandmother is probably not inaccurate when she says that she took X to his medical appointments. Certainly, until the mother obtained her licence, that had to be the case, but the mother said that she was required to pay the grandmother petrol money for each appointment and to buy lunch. She added that the grandmother effectively took over from her at these appointments and did the same with X’s school. That is to say, the grandmother was very controlling of X’s care.
That is consistent with the tenor of the grandmother’s case which was that he was properly looked after by her when he lived with her.
However, there is no reason to suggest otherwise, that the mother did not attend to at least her fair share of the care of X.
Eventually the mother moved from Town J to City F in 2015. At that time, X was attending K School. The grandmother insisted, notwithstanding that X was now living in City F, that he should still attend K School. The mother agreed and in addition took X to the grandmother’s house each morning and each afternoon. It is about a 45 minute drive from City F to Town J.
When the mother was pregnant with Y, she hired L Health Service to take X to and from school as she was unable to drive. Even after Y’s birth in 2016, the mother continued to take X to Town J as before. When she raised these difficulties, of juggling a newborn child and having to drive to and from Town J, the grandmother blamed the mother for being a bad parent.
In addition, in late 2016, X’s behaviour at school worsened and he was suspended. The mother found that M School would offer a full time carer to work with X and also had support in place which could facilitate speech and occupational therapy, which was not available at K School. She discussed the potential move with X’s occupational therapist, Ms G, and she said Ms G supported the change in school.
The mother enrolled X to commence at M School in early 2017. The grandmother did not react well to this news and in early 2017 the grandmother refused to return X to the mother’s care asserting the mother was neglectful to him. The mother informed the grandmother about appointments that X had on the following two days to have a mobility aid fitted and see a paediatrician. The grandmother did not take X to either appointment.
Orders were made on 2 March 2017 returning X to the mother.
In 2015, the mother commenced a relationship with Mr Noth.
In mid-2016, X told the grandmother that he had been sexually assaulted. The grandmother did not tell the mother about this disclosure. The mother only discovered this when she was informed by the school that X was displaying inappropriate sexual behaviour. It was only when the mother informed the grandmother about this that she was told that X had made such a disclosure.
X’s allegations were investigated by Joint Investigation Response Team (“JIRT”) and the Department of Families and Community Services (“FACS”) (as it was then known) and were found to be substantiated. The perpetrator was someone known to the mother, whom had been living at the mother’s home at the time. In response, the mother was required to make the perpetrator leave the home within two days, which she did, and arranged for X to reside with the grandmother until the perpetrator had left.
Notwithstanding the mother having followed an entirely reasonable response to the situation, the grandmother continues to assert that the sexual abuse was all the mother’s fault because she permitted inappropriate people to reside in her home. There is no evidence, however, that suggests that the mother had any reason to suspect that the perpetrator was a potential abuser until she became aware of X’s disclosures.
It is noteworthy that the grandmother did not tell the mother of X’s disclosures. Why she did not do so is entirely unexplained by the evidence. It is however consistent with the entirely dismissive view that the grandmother appears to have of the mother as X’s parent.
At this time, the mother had been regularly seeing a person called Mr N for about eight months. During the course of the JIRT and FACS investigation into X’s disclosure, the mother was informed that Mr N had been charged with sexually assaulting two relatives and an allegation had been made that he had sexually assaulted his daughter. Mr N confirmed that the allegations had been made and the mother asked him immediately to leave the home, which he did.
Again, the grandmother is critical of the mother for allowing inappropriate people into her home, but she does not identify any basis on which it could be thought that there was any question hanging over Mr N head until FACS released the information to the mother. The evidence is, that as soon as that occurred, the mother reacted appropriately.
As to X himself, Ms G observed:
37.[X] is often extremely difficult to manage at home and it is often challenging to get him ready for school and to school on time as a result of his behaviours. I am aware that at periods of time in the past, school attendance has been problematic. It is my opinion that this is a combination of [X’s] challenging behaviour, [Ms Kornel] having difficulties managing his behaviour at times, normal childhood illnesses, issues related to his complex disabilities such as skin breakdown from his [mobility aids], issues relating to his [medical equipment], fatigue related to his disabilities, and the requirement to attend medical and therapy appointments
38.[X] has been suspended from his primary school and his high school on many occasions due to his challenging behaviour. It is my opinion based on [over 25] years of experience with children with complex disabilities that [X’s] emotional and behavioural challenges are due to his […] disabilities, and not related to any abuse or neglect from his mother [Ms Kornel].
(Affidavit of Ms G filed on 14 December 2020, paragraphs 38–39)
When talking about the mother, Ms G said:
40.[Ms Kornel] is a young mother, whose education was interrupted by her pregnancy and [X’s] subsequent traumatic birth. It is my opinion that she is doing her best to care for [X] and his complex disability needs. She does not always understand the complex medical information given to her by doctors, but will ask for questions and clarification, and her actions on [X’s] behalf are always well intentioned.
41.To the best of my knowledge [Ms Kornel] has sought and arranged appropriate medical and allied health services for [X].
42.To the best of my knowledge [Ms Kornel] has not failed to follow up any referral or recommendation from a medical or allied health professional
(Affidavit of Ms G filed on 14 December 2020, paragraphs 40–42)
Finally, Ms G is a mandatory reporter and has never observed any abuse or neglect that would require notification.
There is no reason not to accept the evidence of Ms G. None of the material relied on by the grandmother persuades me that Ms G’s observations and opinions are not accurate and sound.
It follows that there is no basis to find that the mother is inadequately caring for X.
Y
Not surprisingly given X’s disabilities, he was the focus of much of the evidence and not Y.
Y seems to face no particular issues. There is no suggestion that she should be separated from her brother.
Neither the mother nor the grandmother were unduly concerned about the following contained within the grandmother’s affidavit:
3155.While [X] was sitting on the lounge quietly [Y] starts pulling down the back of her underwear asking [X] does he want to look at her bum-bum, I tell her to stop it, then she pulls down the front and tells [X] to lick her clit. I told her to stop or I would put her in her room, she then climbed on to [X’s] back and started jumping on it, which made him cry. I took hold of her hand and put her in her room for 10 minutes. After which I went in and explained to her why it was wrong in what she was doing, her answer was mummy lets me do it.
3156.The mother had been ringing during both days and I told her that [Y] was using the most filthy of language, being on loud speaker the mother told her off.
(Grandmother’s affidavit filed 8 April 2021, paragraphs 3155–3156)
This evidence is suggestive of at least two possibilities, one of which is that Y has been sexually assaulted in the manner she described or that Y has been exposed to sexual behaviour of that kind.
The mother’s explanation for this incident is that her sister uses the phrase “lick my clit” as a way of saying no in the manner in which some people would say “suck my dick”. The mother said this has become something of a phrase used in the home and that no doubt Y has picked it up from there. As to the pulling down of her pants, she says that little girls do that.
The grandmother’s complaint, as observed in paragraph 3156 above and as confirmed in her oral evidence, was in relation to the language used by Y and that she really had not considered the possibility of either a potential sexual assault on Y or that she had witnessed sexual activity.
For myself, I find such behaviour of a four year old child most remarkable. It suggests that the mother keeps poor boundaries between behaviour appropriate for adults and what children should experience. Whilst the mother might have a free and open attitude to sex, some care needs to be taken in exposing that to children, particular younger children.
Other than that, there are no particular factors to take into account in relation to Y.
The mother
A matter of concern is that the mother has had two long-term relationships with violent men.
Interviews with Dr P (the single expert psychiatrist) took place 2019 for the purpose of preparing a Family Report. The relationship with the mother and Mr Noth continued at that time, although it had become an on and off again relationship.
As noted by Dr P, there were episodes of family violence during that relationship, including Mr Noth threatening the mother with a heavy object. Mr Noth was also reported to be using an illicit drug regularly.
The relationship ended shortly thereafter and there have been threats of violence from Mr Noth and members of his family since. The mother’s evidence that Mr Noth has spent no time with any of the child since Apprehended Domestic Violence Orders were made against him in City F in early 2019 (Mother’s affidavit filed on 19 November 2020, paragraph 116).
The mother commenced a relationship with Mr E in 2019 and in 2021 their child, D was born. This too was a violent relationship.
In mid-2021, Mr E attempted to choke the mother and punched a hole in the wall of the home. The police were called but took no further steps. It seems clear that Mr E punched holes in walls on a number of subsequent occasions.
In late 2022, X was in hospital in Sydney for surgery. Whilst in Sydney in late 2022, Mr E smacked Y and according to the mother, she then took steps to end the relationship. Thereafter a number of severe assaults on the mother took place that day and the following day. As a result of those events, Mr E has been charged with a number of serious criminal offences and at the time of the hearing was still in gaol on remand awaiting trial.
Presumably, all this has taken place either in front of the children or at least while they are in the home. The mother sought to justify Mr E’s behaviour by saying that he had post-partum depression and post-traumatic stress disorder and whilst he took his medication his behaviour was fine. Whether that be true, or not, that is no justification for exposing the children to significant violence.
The alleged assault of late 2022 unsurprisingly, according to the mother, has affected both children detrimentally. Dr P suggested that the mother engage with Q Counselling so as to assist her in selecting safer partners.
The mother admits that she slaps the children as punishment, which in modern times is regarded as undesirable, but I am not satisfied that there is any conduct beyond that.
I accept that the mother has used drugs on occasion. I did not find her evidence that she had a drug forced upon her at all convincing. However, no one has pointed to recent drug use and a negative drug test points against it.
The maternal grandmother
The grandmother has a complex relationship with her daughter. While she says that she admires her daughter for dealing with many difficulties and that she has a great heart, nonetheless she believes she is not a fit mother to the extent that the children should be removed entirely from her care immediately.
It is fair to say that the grandmother is obsessed with the sexual behaviour of the mother and has been since the mother was a child. At the age of 12, the mother was taken by the grandmother to a doctor and insisted that the mother be examined to determine whether or not she was still a virgin (she was).
In these proceedings, the grandmother has prepared many, many affidavits. The directions made for hearing permitted her to rely on two. That did not stop her from filing many more affidavits and seeking to rely on them.
One of the two affidavits consists of 4784 paragraphs and 628 pages. For the most part, it appears to me to be the grandmother’s diary entries over a number of years reproduced in full with material that ranges from the banal to the lurid. The grandmother says she did this because Hannam J told her to “write everything down”. She did. Spread throughout the affidavit, in garish terms, is a recounting of the alleged sexual exploits of the mother. I do not know whether they are admitted or not. It would be onerous and burdensome for the mother to have to respond to such an affidavit paragraph by paragraph and accordingly I do not take any failure to deny any particular allegation as an admission by the mother.
Much of the affidavits of the grandmother, including the mother’s alleged activities, did not bear upon the children or the determination of what parenting arrangements was in their best interests. The disapproval of the mother’s private life is irrelevant to those matters as are her activities themselves unless an impact on the children can be demonstrated.
The only relevance of such behaviour is where that behaviour adversely affects the welfare of the children, which is the assertion made by the grandmother. Indeed, the grandmother’s premise is that the mother engages in her sex life to the extent that the children are neglected. As I have said already, that is not a matter that is open on the evidence.
Accordingly, as I explained to the grandmother during the hearing, the issue of promiscuity per se is not one of concern. However, taking all matters into account, including Y’s conduct referred to earlier, it is more likely than not that the children are at the least aware of aspects of the mother’s sex life and it is more probable than not that the children, particularly X, have been exposed to it indirectly or directly. That again is unfortunate and is poor parenting on the part of the mother. However, as I have indicated, there is no evidence that the children are neglected in the care of the mother.
Part of this affidavit, towards the end, seems to consist of letters written by her to a number of people, including her own lawyers at the time she had them.
The grandmother contends that the mother is not fit to care for the children to the extent that they should be removed from her and only spend very limited time with the children. It is blatantly clear that the grandmother has no respect whatsoever for the mother as a parent. She asserts the following which feature prominently in her affidavits:
·Promiscuity;
·Bringing a large number of men into the home;
·Entering into relationships with violent men and a child sex offender;
·Neglecting the proper care of X including but not limited to failing to take him to necessary medical appointments and the proper care and management of his mobility aids;
·Being violent to both Y and X and permitting others to be violent to them;
·Not providing proper daily care to the children and maintaining a “filthy” home;
·The mother has a mental illness;
·The mother is aggressive, particularly towards the grandmother.
The length and detail of the affidavit reflects a fixation on the life of the mother and X which appears to me to be most excessive.
One of the difficulties that would have faced the mother, and faces me in attempting to understand and give weight to the grandmother’s affidavits, is that they are drafted in a manner that makes them very difficult to follow. Dates are elusive and it is apparent that the grandmother was not present and could not have been present at many of the events described. The material in the affidavit must therefore be hearsay or surmise drawn from other matters. The source of the information is almost never provided. It is difficult to give weight to the grandmother’s written evidence.
Notwithstanding that, I do not suggest that the grandmother has invented evidence. I accept that she has recorded what she believes, as filtered by her own set views and beliefs.
Part of the longer affidavit, towards the end, appears to consist of letters written by the grandmother to various people including her own lawyers.
Promiscuity
It is most unusual and indeed very odd to be using such a heading in parenting reasons in 2023, but there it is – this was one of the foremost complaints laid against the mother by the grandmother. As I endeavoured to explain to the grandmother during the hearing, promiscuity has no relevance whatsoever to the present proceedings unless it can be shown that the mother’s conduct is having an adverse impact on the welfare of the children.
As to the latter, it is evident that the mother has a much freer attitude to sex and relationships than the grandmother would wish. She has had a number of relationships of greater or shorter length and it would seem possible that the children have been exposed to sexual activity. They certainly have been exposed to sexual talk as the earlier discussions make clear. It is not good for young children to be exposed to adult matters regarding sex.
There is, however, no evidence that suggests that the children are at any risk of harm in this regard.
The topic is relevant for another reason – the grandmother appears to be obsessed by it. Her affidavits are replete with details of the mother’s sexual exploits, all garishly described.
This is not a new phenomenon. I have already referred to the virginity testing.
As another, more relevant example, the mother took some explicit photos of herself, including her naked body and close-ups of her genitalia and sent them to a man she was seeing at the time.
As I understand the evidence, the mother’s sister used a computer where the mother’s Facebook was logged in, accessed the photos which were sent through Facebook messages and sent copies of the photos to the grandmother, who then annexed them to her affidavit. I directed that they be removed and advised the grandmother that the tender of the photos themselves was unnecessary and inappropriate. I added that as things stood, I could not see the relevance of the mother sending naked photos privately to someone to the issues in this matter. There was no evidence that the mother had sent the photos elsewhere, although the relevance remains questionable.
The grandmother was then cross-examined by counsel for the ICL who suggested to her that her use of the photos was inappropriate, disrespectful of the mother and likely to inflame the relationship between them.
Undeterred, the grandmother sought again to tender the photos in final addresses and added:
[GRANDMOTHER]: …It’s something that [the mother] has always done since she was about eight years old. She has always exposed herself to – to other people, to boys, men, males. So, yes, so – yes. Our relationship – [the mother’s] and my relationship has been pretty volatile throughout the years because of this.
(Transcript 30 March 2023, p.4 lines 18–21)
[GRANDMOTHER]: …I know she sleeps around and I know she’s promiscuous and that worries me. That scares me the hell to hear that, you know, she’s – she’s doing it again, and she’s going to keep doing it because she’s – it’s something that she has done since an early age.
(Transcript 30 March 2023, p.7 lines 44–47)
The grandmother said that she loves her daughter and is proud of what she has managed. That view is hardly consistent with what she says about the mother.
The grandmother’s focus on her daughter’s sexuality is most unhealthy and colours not only the relationship between them but also the children. As the grandmother herself says, the mother tells her things and the grandmother voices her opinion in front of the children.
Other views of the grandmother
In final addresses, the grandmother said that:
·There has been conflict between her and the mother for all the mother’s life, but that the mother has “always been the aggressor” (Transcript 30 March 2023, p.2 line 12);
·The mother’s house is unfit to live in;
·The mother has mental problems and
·The mother has brainwashed X who really does want to see her.
It may be accepted, due to a number of reasons, but including the breakdown of her parents’ relationship (which the grandmother said her was the mother’s fault) and subsequent events that the mother herself was a difficult child to bring up. That however, does not excuse the use of unusual punishments and the hitting of the mother with an object, simply because, as the grandmother said, there was really nothing else she could do. This is not an endorsement of the grandmother’s parenting skills.
There has never been any suggestion, other than for what is now accepted to be a wrong diagnosis for a mental health disorder, that the mother has mental health problems. The grandmother continues to assert that the mother has mental health issues.
In any event, whatever the cause, the grandmother has a dim view of the mother, especially as a parent. The evidence, establishes that events, including changeovers between them, can commence well enough, but soon deteriorate into fights in front of the children.
As I observed during the course of the grandmother’s cross-examination of the mother, it was an argument not questions and answers. It never improved.
The grandmother accepts this to be so as she suggests that changeovers take place at a police station.
The grandmother asserts that the mother’s home is unfit to live in. There is no other evidence to this effect.
The Department of Communities and Justice (“the Department”) has been involved. Only three areas of concern were recorded by them.
The first was that X’s school reported sexualised behaviour by X. The mother’s response was to buy him a “keep out” sign and a Zoo magazine, but both the school and the Department advised against this because it might increase the behaviour. The mother said, rightly, that this was a difficult issue for X and she was not sure what to do.
Tellingly, the other two matters involve the grandmother.
On one occasion, in order to relieve X’s constipation, the grandmother inserted her finger into his anus and removed faeces. This greatly upset X, who did not quite understand what was happening. It was reported to the Department who investigated it and recorded X’s adverse response.
In her evidence, the grandmother maintained her stance that she had acted properly and not in an inappropriate and invasive manner.
The second incident was that, notwithstanding that the mother had told the grandmother that X was capable of using his medical equipment in his genital area himself, the grandmother continued to do so when X was with her, or at least closely supervised him doing it. Again, this was unnecessary and misguided. As the evidence obtained by the Department from X’s doctor shows that X was capable of doing it himself.
This shows a lack of respect for X’s boundaries. Another example of this is the many photos that the grandmother has sought to tender of X’s bruises. In many of these photos, X is in his underpants, sometimes with them pulled down. The grandmother repeatedly mentioned an occasion when she saw two bruises adjacent to X’s anus which she said could not have been caused by X falling over. The grandmother did not explain how it was that she came to inspect X’s anus.
These matters taken together establish that the grandmother lacks the parenting skills to be a suitable carer for the children.
THE CONSIDERATIONS
This matter must be decided by determining what orders are in the best interests of the children. In determining those interests the Court must have regard to the matters set out in s 60CC of the Family Law Act 1975 (Cth).
It is helpful to commence that discussion with the comments of Dr P, who provided a Family Report dated 30 November 2019. It is therefore quite dated, but it seems that apart from Mr Noth leaving his relationship with the mother and Mr E arriving and, in turn, doing the same, little of substance has changed.
Dr P said:
The major concern from my perspective is the level of conflict and acrimony between the maternal grandmother … and [the mother] and which is having an extremely detrimental effect on [X’s] emotional wellbeing. The internecine dynamic has the danger of continuing to impact on the next generation. This is a matter which highlights the potential danger of intergenerational abuse and neglect and how this could continue to be transmitted through the next generation.
From the information provided, that with support, [the mother] could be a capable caring parent, however, there is a danger that she could be further undermined. It’s my view that the children should have the same amount of time with the maternal grandmother. If the maternal grandmother is not able to demonstrate support for the mother, it may be necessary to restrict or in extreme cases exclude her from the grandchildren’s lives.
(Family Report dated 30 November 2019, p.2)
Nothing in the evidence or the submissions of the parties leads me to take a different view.
X spent the first eight years of his life in a household with the mother and the grandmother and since then he has lived with the mother and spent significant time with the grandmother. The evidence, particularly of the mother, suggests that X is not as keen on seeing the grandmother as he used to be. However, there is no doubt that he has had a relationship with the grandmother which was of benefit to him. If it could be managed, it would be ideal for him to be able to maintain that relationship.
That will be difficult, for a number of reasons. The first is the conflict between the mother and the grandmother. The second is the grandmother’s lack of respect for appropriate boundaries and her invasive approach to parenting with which X is likely to resist more as he approaches adulthood.
There is no evidence before me that suggests that X has anything other than a loving relationship with the mother which is of meaning and benefit to him. It should be maintained.
The primary order sought by the grandmother would make it very difficult for the relationship to be maintained, which is a strong consideration against making it. The alternate approach sought by the grandmother would maintain the relationship.
Y is in a different position as she has never lived in the same household as the grandmother and obviously has a different, and most likely less attached, relationship with the grandmother.
Dr P formed the view that Y had a very strong attachment to her mother. Again, there is no reason to think that her relationship with her mother is not meaningful and of benefit to her.
As discussed earlier, the grandmother asserts that the children are the subject of physical and psychological harm whilst in the care of the mother. That discussion led me to conclude that the mother’s care of the children is, at the least, good enough. The evidence of Ms G persuades me that the mother’s management of X’s physical conditions has been appropriate, in accordance with medical advice and that sometimes services are difficult to obtain in City F. I do not accept that the major infections that X has suffered were due to the neglect of the mother. The use of a fishhook by the mother on one occasion to relieve pressure in a wound sounds more dramatic than it may be and speaks more of desperation than anything else.
I accept however, that the mother has entered into relationships with violent men and has maintained those relationships after the violence manifested itself, particularly in front of the children. Even in 2019, before Mr E arrived on and left the scene, Dr P remarked of the mother:
The one area of uncertainty is whether she can appropriately protect the children from inappropriate adults.
(Family Report dated 30 November 2019, p.37)
Unlike Dr P, I am able to form the view that the behaviour of those adults, particularly Mr Noth and Mr E, has led to a direct risk of harm to the children due to the violence that took place in their presence.
Those relationships have ended, but it would be of benefit to the children if the mother would seek some professional assistance in avoiding inappropriate partners.
Having said that, neither the children’s school nor the Department have raised any concerns as to the mother’s care of Y and, save for some incidents which cannot be regarded as major, the care of X.
The children will be safe enough in the care of the mother. There is nothing in her care of them that justifies or requires their removal from her.
The views of X must be weighed with some care because of his disabilities. X told Dr P that he would like to live with “Ma”, being the grandmother. However, Dr P discounted this statement not only because of X’s disabilities, but because X has been under enormous pressure to support the grandmother which is greater than he is emotionally and developmentally capable of managing (Family Report dated 30 November 2019, p.42).
The view was formed that X would be happy living with the mother or the grandmother provided he saw the other often.
According to the mother, X is now reluctant to spend time with the grandmother.
As recorded in the ICL’s Case Outline, the ICL spoke with X on 5 February 2023. X told the ICL that he would live with the mother, did not want to spend time with the grandmother, but smiled when he was asked about how he would feel if he were to spend time with her. No objection was taken to this evidence.
Again, limited weight must be given to this because of X’s disability, but the views expressed are consistent with the mother’s evidence.
After living with the mother solely for nearly eight years it is not surprising that X favours continuing to live with the mother.
There is no evidence as to the views of Y.
To the extent X’s views should be given weight, they support him living with the mother.
I have already discussed the nature of the relationship between the children, the mother and grandmother. It would be ideal if the relationships between them and the grandmother could be maintained, especially for X. However, events have taken their toll and the children have spent limited time with the grandmother since July 2022 and none since Christmas. The main reason for that appears to be the dysfunctional relationship between the mother and the grandmother and the continued conflict between them.
There is no evidence that directly deals with the effect of any change in circumstances on the children. It is clear however, that the impact of the children moving to live with the grandmother would be severe and a big upheaval in their lives.
For Y, this would mean that she would have to leave the care of her mother, with whom she has a strong attachment. She has only lived in the primary care of the mother. In the absence of a compelling reasons to move her residence, I cannot see how such a change would be in her interests either in the short-term or the long-term. There are no compelling reasons in this matter.
The position is less clear in relation to X, although he has now been living with his mother solely for nearly eight years. I also think that it is likely that X having grown much older, would be less likely to cope with the grandmother’s intense and intrusive style of parenting. He would require at the least, a period of adjustment, especially regarding his disabilities. There would be no benefit in a change of residence, only detriment.
There is no compelling reason that points to a change in residence.
This consideration strongly favours the children continuing to live with the mother.
The parties presently live about half an hour away from each other so there is no difficulty or expense involved in the children spending time with each of them. The mother, if given sole parental responsibility, would consider moving away from City F which would increase the difficulty and expense but if the orders are made as proposed by the ICL that would be minimised.
I have discussed at some length the capacity of the mother to provide for the needs of the children including their emotional needs. Whilst I have mentioned some areas of concern, it must be remembered that X’s care in particular, has been difficult because of his various needs. Apart from some relatively minor and not unexpected difficulties at school, no one save for the grandmother, has expressed any concern for the mother’s care of X or Y. She has also acted promptly and removed unsuitable persons who might pose a risk of sexual harm from the home as soon as she became aware of the risk. She has changed X’s residence and school appropriately and for good reasons.
Dr P quoted from a report prepared by Dr R, a psychiatrist, who prepared a report dated 1 March 2009. I do not know why the report was prepared and I can only rely on the material quoted by Dr P, which was:
[Dr R] on page 24 indicated that she did not believe that there was a picture of [a mental health disorder] as there was no history of [relevant symptoms]. However, [Ms Kornel] did have affect dysregulation and behavioural problems and “consistent with a background of abuse and violence”.
…There was a lot of domestic violence, “between her parents and subsequently her mother was involved in domestic violence relationships on another two occasions”.
(Family Report dated 30 November 2019, p.9)
This is consistent with the evidence of both the mother and the grandmother. It raises the real concern as to the capacity of the grandmother as a parent.
I have already discussed the fixated approach of the grandmother to issues that concern her and her overly intrusive style of parenting X. That adds weight to my concerns. The grandmother’s capacity to provide for the needs of the children, particularly their emotional and psychological needs is very much less than the mother.
Again, this consideration weighs very strongly against the primary orders sought by the grandmother.
The mother identifies as Aboriginal, but no other evidence was given as to this and it was taken no further at the hearing.
The attitude of the parties to the children and the responsibilities of parenthood is not a consideration that carries weight. I accept that both the mother and the grandmother believe that they are acting in the best interests of the children.
The issue of family violence needs no further discussion.
It remains to consider the toxicity of the relationship between the mother and the grandmother which has already been the subject of some discussion.
In his oral evidence, Dr P said that it is very difficult for the grandmother to overlook faults. Unfortunately, the grandmother considers that the mother has many.
X complained to Dr P in 2019 about the mother and the grandmother arguing, particularly as to his care (Family Report dated 30 November 2019, p.27). Indeed, a loud argument occurred in the waiting room that day. I have already referred to the arguments that occurred under the guise of cross-examination before me.
Dr P noted the intense conflict and severe hostility between the parties (Family Report dated 30 November 2019, p.40). He said in oral evidence that the toxicity remains unabated. The evidence of both parties shows this to be so.
The children should not be exposed to this conflict. It is of such a degree that it will be in the best interests of the children that there be limited contact between the parties.
The above considerations satisfy me that the children should remain living with the mother. There is no unacceptable risk of harm in her care, she has the greater parenting capacity and a change in residence would be detrimental to the children in both the short and the long term.
It follows that, as their daily care provider, the mother should have parental responsibility for them. The hostility between the parties and their toxic relationship precludes any possibility of shared parental responsibility.
The question then arises as to what, if any, time should the children spend with the grandmother. She seeks they spend from 5.00 pm on Friday to 5.00 pm on Sunday with her with changeover to occur at City F police station.
This is basically a reintroduction of the arrangement that has been previously imposed and has broken down. It would involve frequent contact between the mother and the grandmother which will result in conflict between the two of them. As I have said and as Dr P confirmed, this has a deleterious effect on the children and is to be avoided.
That conflict could be managed to a degree by the use of a professional service to effect changeover. However, that will not ameliorate the grandmother’s fixation on the behaviour of the mother and X’s care. Her inappropriate behaviour will continue.
Whilst I accept that the grandmother cares for the children and genuinely wants the best for them, the orders that she seeks are not, in my opinion, in their best interests.
CONCLUSION
The best interests of the children will be served by limited contact with the grandmother. They need to be removed from the toxic cloud of the dysfunctional relationship between her and the mother.
I am, for the reasons given earlier, not convinced that the grandmother has the capacity to care appropriately for the children, even for two days a fortnight.
It follows that I am satisfied that orders along the lines proposed by the ICL are in the children’s best interests. The grandmother should not be shut out from their lives but the contact, unfortunately, needs to be limited.
Whilst supervised contact for X might be considered inappropriate, it is justified by his cognitive difficulties. There is no basis for Y not attending with her brother, although she should be entitled to make her own decisions when she turns 14.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 15 May 2023
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