Longsdorf and Granger
[2010] FMCAfam 1423
•26 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LONGSDORF & GRANGER | [2010] FMCAfam 1423 |
| FAMILY LAW – Long running proceedings, significant distance between parents – extensive travel for young child – reports made to the Department of Human Services – allegations of abuse – assaults on mother from new partner in presence of the subject child and children from another relationship – significant involvement of paternal grandparents in subject child’s life and in these proceedings. |
| Family Law Act 1975, ss.68B, 60B, 61DA, 65DA, 65DAA, 60CC |
| Dylan & Dylan [2007] FamCA 842 |
| Applicant: | MR LONGSDORF |
| Respondent: | MS GRANGER |
| File Number: | CAC 1313 of 2008 |
| Judgment of: | Harman FM |
| Hearing dates: | 23 & 24 August 2010 and 22 November 2010 |
| Date of Last Submission: | 22 November 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 26 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Ms Reid |
| Solicitors for the Respondent: | Bankstown Legal |
ORDERS
The court notes the undertaking of Mr Longsdorf that he shall no later than 1 March 2011, permanently relocate his permanent place of residence to the [G] area, and these orders are made following and conditional upon that undertaken.
All prior parenting orders with respect to [X] are discharged.
[X]’s mother and father shall have equal shared parental responsibility for [X].
[X] shall live with her mother as follows:
(a)Until 10 April 2011, each alternate week from 10 am Thursday until 5 pm the following Sunday, commencing 2 December;
(b)Each intervening week, from 10 am Thursday until 10 am the following Saturday commencing 9 December.
(c)From 11 April 2011 – being the start of the April 2011 school holidays:
(i)each alternate week during school terms from 10 am Thursday and until 5 pm the following Sunday, commencing the second Thursday of each term;
(ii)each intervening week from 10 am Thursday until 10 am the following Saturday, commencing the first Thursday of each term;
(iii)for the second half of each short New South Wales school holiday period, from 10 am Saturday until 5 pm the following Sunday;
(iv)each alternate week of the Christmas school holiday period, commencing 10 am on Thursday 22 December 2011, and each alternate week thereafter, running from 10 am Thursday till 10 am the following Thursday.
That [X] shall at all times other than when living with her mother, live with her father.
That for the purpose of [X] living with her mother:
(a)[X] shall sleep at the home of the maternal grandparents, Mr and Mr H –
And I pause there to make clear that’s irrespective of whether separate accommodation is obtained.
Unless otherwise agreed between the parents, and provided that as and from the commencement of block school holiday time April 2011, [X][X][X]Mr Longsdorf
Ms Granger shall be entitled to travel with [X] for holidays, but subject to her firstly and seven days prior, advising Mr Longsdorf of that intention and of the address that she will be staying with [X], and the landline telephone number there connected, and Ms Granger shall not have any other adult except the maternal grandparents staying with her and [X] –
And again, I note it is adults, it does not stop [Z] and [Y].
Mr Longsdorf shall cause [X] to be delivered to the home of the maternal grandparents in [E].
For the purpose of [X] living with her father, Ms Granger shall cause [X] to be delivered to the home of the paternal grandparents in [G] –
So when they’re coming to Ms Granger, they’re delivered, when they’re returning to Mr Longsdorf, they’re delivered.
That in the event Father’s Day falls on a weekend when [X] is due to be in her mother’s care until Sunday, then time for that weekend shall instead conclude 10 am Saturday. In the event that Mother’s Day falls on a weekend when [X] is not due to be in her mother’s care until Sunday, time shall extend until 5 pm Sunday. Mr Longsdorf shall be entitled to contact [X] by telephone on the landline connected to the maternal grandparents’ home between 6 and 6.30 pm on each day that [X] is in her mother’s care.
That’s both to facilitate Mr Longsdorf’s communication, and also as a safeguard to ensure that is where she is.
Ms Granger shall be entitled to contact [X] by telephone on the landline connected to the paternal grandparents’ home between 6pm and 6.30pm each day she is in her father’s care.
Neither party shall denigrate or criticise the other parent or any member of the other parent’s family to or in the presence or hearing of [X], nor allow, cause or permit any other person to.
The parents are to keep each other informed of any medical problems or illness suffered by [X] whilst in their care, and shall inform the other parent if there’s a medical emergency concerning [X] contemporaneous with the event, such notice to include:
(a)sufficient detail to enable each parent to be fully consulted and advised with respect to any treatment options and to visit if hospitalised;
(b)any medication that has been prescribed for [X] and directions for use and the medication will travel with her;
(c)the current residential address, contact telephone numbers including both mobile and landline, and inform the other parent within 24 hours of any change;
(d)any other significant matters relevant to [X]’s welfare.
Each parent shall forthwith and on an ongoing basis do all things, sign all documents and give all contents, instructions and authorities necessary to allow and enable each parent’s details to be recorded with any school, preschool, day-care centre, counsellor or therapist that [X] is attending, and so as to allow each parent to liaise with any such provider, and to participate in any such education, activity or counselling as [X] is participating in, and this shall include liaising directly with any provider in order to obtain reports or copies of documents, newsletters or assessments.
[X] shall not be brought into contact, nor communicate with Mr F.
And I make very clear, for the purpose of that order, it is made pursuant to s.68B of the Family Law Act 1975, which means there is an automatic power of arrest without warrant if it is breached, and I will do it.
[X] shall at all times be known as [X] Longsdorf and for all purposes.
Any further application to be brought by either parent with respect to [X] is to be filed with registry and listed before me.
It is hoped that the Thursday to Sunday periods that [X] is in her mother’s care will correspond to the weekends when Ms Granger’s elder children [Y] and [Z] are in her care, but these orders are in no way conditional upon that being the case.
For the purposes of these orders regarding communication:
(a)the parents shall continue to maintain and use a communication book to deal with non-urgent information;
(b)any urgent information should be communicated by text message or phone, and either set of grandparents may communicate or receive information on behalf of either parent.
I direct that any further application to be brought by either parent with respect to [X] is to be filed in the Parramatta registry and listed before Harman FM, and I will deal with any issues that might arise.
All outstanding applications and responses are dismissed and removed from the list upon expiration of appeal period, and in the event that no appeal is lodged, all documents will be returned or destroyed and the usual order for attaching the pamphlets setting out the obligations created by the orders.
IT IS NOTED that publication of this judgment under the pseudonym Longsdorf & Granger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
CAC 1313 of 2008
| MR LONGSDORF |
Applicant
And
| MS GRANGER |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving completing parenting applications with respect to a child, [X] Longsdorf, although she is referred to throughout the documents by a number of different spellings of [X], in addition to being referred to by the surname of Longsdorf and also referred to as Longsdorf-Granger. As a consequence of this Court’s rules, which do not require the filing of a birth certificate, there is no way of corroborating the correct nomenclature. But in any event she will be referred to throughout these orders as [X] Longsdorf, which is the name most commonly used in the documents filed in the proceedings.
The proceedings, whilst they relate to [X], also involve two other children, being [Y] and [Z] with respect to whom there are no orders sought, but who are brother and sister of [X], and who are the children of the respondent in these proceedings and their father, Mr G.
The parties to these proceedings are [X]’s father, Mr Longsdorf, and [X]’s mother, Ms Granger. During the course of the hearing and particularly in submissions it was suggested that in reality the applicant and advocator in the proceedings was the children’s paternal grandmother, Mrs L, but of course Mrs L is not a party to the proceedings, although it is manifestly clear, both from the evidence filed and the quantity of evidence filed by Mrs L, that she has a keen and active interest in the proceedings, and has played a very significant and important role, at least in the last 12 months or so, in [X]’s life.
The Proceedings
These proceedings were commenced by Mr Longsdorf, [X]’s father and the applicant in the proceedings, in August of 2008. At that time his application was filed with the Federal Magistrates Court in Canberra.
The proceedings were subsequently, after a number of interim events, transferred to this registry of the Court, wherein further interim events occurred before the matter ultimately reached hearing before me. The matter was listed for two days of hearing, but ultimately occupied three very long days, but which ultimately concluded the evidence and submissions. Today is the fourth day of the hearing and on which day judgment is delivered.
There is a quantity of material filed in these proceedings. Following the application initiating proceedings filed by Mr Longsdorf, there is then a wealth of affidavit material in his case, comprising not less than three affidavits by Mr Longsdorf, not less than six affidavits by Mrs L, an affidavit – although filed and read into evidence but ultimately not relied upon – by Mr Longsdorf’s partner, Ms S, an affidavit by Ms W, an affidavit by Ms O, who is the ex-partner of Mr F, a person who was of some significance to the proceedings, although not a party, and also an affidavit by Ms J, a psychologist, who has been dealing with young [X].
In Ms Granger’s case there is a response and an amended response together with not less than eight affidavits by Ms Granger, two affidavits by Mr F being the mother’s then partner, an affidavit by the maternal grandmother, Mrs H, and also a witness, Mr G, being the father of [Y] and [Z], who was called to give evidence, and leave was granted for him to give oral evidence.
There was also a family report prepared by Mr J who was cross-examined during the first portion of the hearing, was commissioned to prepare an updated report, but ultimately did not for reasons that will become apparent. Mr J was not recalled when the matter resumed earlier this week.
There were also a quantity of documents tendered into evidence in the proceedings; by the mother being 10 exhibits, by the father being seven exhibits, and by the independent children’s lawyer being four exhibits. Accordingly the evidence that is before the Court is quite fulsome.
All of the witnesses whose affidavits were ultimately relied upon in the proceedings, with one notable exception being Ms O, have been called and cross-examined, and in the case of Mrs L and Ms Granger have been cross-examined twice, they having filed updated material during the three-month adjournment period between the first two days of hearing and the last day of hearing.
Orders sought
At the time that the proceedings were commenced and an application and response filed by each of the parties, the orders that were sought by each of them were somewhat different to those which ultimately were pressed at final hearing. Minutes of order, which were marked as Exhibits in the proceedings, respectively F1 and M10, were tendered during the trial.
The minute of orders proposed by Mr Longsdorf as the applicant, sought that he have sole parental responsibility, but subject to a number of conditions and pre-conditions, or in the alternative equal shared parental responsibility, again subject to a number of pre-conditions.
It was also sought that [X] live with her father and spend time with her mother as agreed, or failing agreement each alternate weekend from Friday to Sunday, for periods of five days during the forthcoming Christmas school holidays and thereafter and commencing third term 2011, for one half of short holidays and for two periods of seven days during the Christmas period. A number of other specific issues orders were sought relating to telephone communication, changeovers, restraints and conditions in relation to a number of matters, as well as orders specifically addressed to medical issues.
The minute of order ultimately relied upon by Ms Granger in her case sought an order for equal shared parental responsibility, although expressed as joint, that [X] live with her mother, spend time with her father in very much a mirrored image of the orders proposed by Mr Longsdorf, being each alternate weekend, and ultimately for some periods of time during school holidays in the future. Similarly, orders were sought with respect to changeovers and a number of specific-issues orders.
The orders proposed by the independent children’s lawyer in closing submissions could be described as broadly supporting, in most respects, the orders proposed by Mr Longsdorf.
Accordingly, the issues as presented by each of the parents and the orders proposed by each of them would see [X] living with one or other of them as a primary parent and spending time, which falls short of either equal or substantial or significant time, with the other. There are perhaps some good reasons for that of a purely logistical nature, noting that these parties live something in excess of two hours apart, being in the broad [B] area in Mr Longsdorf’s case, (and come 1 March 2011, next year), and certainly for [X] as a present reality in the [G] area.
History of proceedings
The proceedings as indicated were commenced before the Federal Magistrates Court in Canberra on 15 August 2008. The initiating application followed a period of about nine months during which [X] had remained living in her mother’s sole care and had had no time with her father.
After the proceedings were commenced and a response filed, orders were made by Neville FM by consent on 10 September 2008, which provided that [X] would live with her mother and spend periods of time with her father from 1 till 4 pm on two Sundays, thereafter alternate weekends Saturday to Sunday and referring to building up towards other periods.
Further interim orders were made, it is unclear whether they were by consent or otherwise, by Neville FM, on 10 December 2008, which provided for Mr Longsdorf to spend time with [X] on a building-up arrangement, and from April 2009 on a week-about arrangement.
It seems quite clear, although each of the parties in their evidence is not particularly clear as to the cause of it, that following those orders, that certainly the week-about arrangement did not commence immediately, as was envisaged, in April of 2009.
On 7 August 2009 further orders were made by Neville FM, including a declaration of paternity and the transfer of the proceedings to this court.
On 14 April 2010 orders were made by Dunkley FM which provided a number of procedural orders and listed the matter for further interim hearing on 15 June. Dunkley FM otherwise made orders for equal shared parental responsibility and provided that [X] would spend time with each of her parents on a week-about arrangement.
The orders for a week-about arrangement are somewhat unusual in the sense that the child was very young at that time, [X] being, at the time the order was made, just three years of age. The parties lived some two hours apart, but more interestingly the orders provided that Ms Granger’s time with [X] was to be supervised at all times by one or other of her parents.
On 15 June 2010 further interim orders were made, and on that date an independent children’s lawyer also appointed who has been of substantial assistance in the conduct of the proceedings. The orders made on 15 June, for reasons that will become apparent when the evidence is discussed, provided that [X] was to live with her father and was to spend supervised time with her mother. That supervised time was less fulsome than previously ordered and, importantly, proposed a restraint upon [X] being brought into contact in any form with Mr F and required each of the parents to keep the other advised at all times of their residential address and telephone number. Compliance with those orders has been a matter of some particular controversy between the parties.
The final interim orders in the proceedings of any note, although regrettably not the last orders made to date, were made by me on
24 August 2010 following the completion of the two days of hearing that occurred, and very late in the day on the second of those days. They were designed to get the parties through until the resumed hearing of the matter before me on Monday of this week. Those orders provided a continuation of [X] living with her father, spending alternate weekends with her mother, but on condition that [X] would sleep in the maternal grandparents’ home, there being two homes on the property, and that, by and large, one or other of the maternal grandparents would be present and that Mr F would not. That created some particular controversy as regards the evidence, and the parties have been at what one might describe as at loggerheads since the proceedings were adjourned part heard, and the matter was relisted on not less than three occasions during that period to address difficulties.
Chronology
The independent children’s lawyer has provided, as one would expect from a practitioner of the independent children’s lawyer’s experience and competence, a comprehensive and largely neutral chronology of events, and I propose to adopt that for the purpose of these reasons, and will, in considering the evidence, make clear the findings that are made that support a number of the allegations in the chronology to the extent that there is any controversy regarding them.
Mr Longsdorf was born [in] 1969 and is accordingly, presently 41 years of age.
Ms Granger was born [in] 1981 and is accordingly, presently 29 years of age.
[Y] and [Z], being the children of Ms Granger’s relationship with
Mr G, were born respectively [in] 2001 and [in] 2003, and they are accordingly nine and seven years of age.
To the extent that it is relevant for these parties, the relationship between Mr Longsdorf and Ms Granger commenced in or about March of 2006, although the parties, whilst unable to agree on nearly every factual issue, are able to agree that they did not at any time live together on a full time basis. That does not create any substantial issue as regards the Act, which is very clear in establishing rights for children – particularly in s.60B, dealing with the objects and principles of the Act– irrespective of whether parents are married, live together, or have never lived together.
On [date omitted] 2007, [X] was born. She will very soon turn four, and during her brief life, has had a significant number of changes and disruptions, which have no doubt impacted upon her at various times, and will for some little time, no doubt, continue to impact upon her. Indeed, the position that each of the parties, and indeed, their extended families, have taken towards the other and the attitudes that have now become somewhat entrenched, will continue to impact upon [X] for some further period of time.
In September 2007, these parents ended their relationship with each other. It also appears clear from the evidence, and it is conceded in Ms Granger’s evidence, that at the same time, in September 2007, she commenced her relationship with Mr F. In October 2007, Ms Granger gives evidence that she returned home to find that someone had gained entry to the home and defecated throughout it. It is strongly suggested and suspected by Ms Granger that Mr Longsdorf was responsible. Mr Longsdorf denies this, and to the extent that it might be relevant in the proceedings, the evidence is so unclear as to be unable to make any finding of fact in that regard.
On 6 February 2008, Ms Granger relocated from [G] to [T] to commence cohabitation with Mr F. That gave rise to a number of issues. Firstly, Mr G then commenced proceedings – in fact, proceedings had been on foot, but he filed a further application in the case seeking orders that the children be returned to [G], and/or that they come to live with him. Those proceedings progressed as far as a family report, but were then settled by consent orders. And that again is a matter of some controversy in the evidence, as Mr Longsdorf asserts that the children were removed by the Court from Ms Granger’s care as a consequence of her poor care of them and neglect, whereas it is quite clear that orders were made by consent.
Clearly, however, at that point in time, allegations were raised both by Mr G and by Mr Longsdorf, and by his family, that the children were not being adequately cared for. A number of those allegations were reported to the Department of Community Services, as they then were, and whilst no substantial investigation was undertaken, certainly some involvement occurred with the Department, and the Department did not take any action. Whether that is because they were aware that there were proceedings before a Federal Court or because they were not satisfied that there was sufficient evidence for them to take action is unclear, but certainly, their notes, parts of which have been tendered into evidence would give some support to Ms Granger’s position. Certainly the fact that orders were made by consent, irrespective of what motivated either parent in the proceedings involving [Y] and [Z], indicates that the matter was resolved without a court determination.
But the move to [T] caused those interim proceedings to be commenced and the move to [T] had a substantial consequence, at least on Mr Longsdorf’s allegation, of terminating or causing the termination of his time with [X].
Following relocation to [T] and about a month thereafter, Mr F and
Ms Granger left [T] and moved to Sydney, and took up rental accommodation at [S]. Whilst living there, and shortly after having moved there, it is suggested by Ms O in her evidence, which was unchallenged and accordingly is accepted, that Ms O was assaulted by Mr F in the presence of their children, [C] and [A]. Since that time,
Mr F has not spent any time of any significance or had any communication with those children, and it would appear that police were involved and an Apprehended Domestic Violence Order resulted.
In May 2008, final orders were made by consent, as I’ve referred to, as between Mr and Ms Granger, which provided for [Y] and [Z] to live with their father and spend defined periods of time with Ms Granger. That arrangement has continued.
On 29 May 2008 a final Apprehended Domestic Violence Order was made for the protection of Ms O and for [C] and [A] as regards Mr F, although that order has expired now and there is no evidence as to whether it was renewed. The evidence of Ms O would suggest that there is no communication, and as far as she is aware, Mr F does not know how to contact her or know her address.
On 15 August 2008, and particularly following a number of discussions between Mr Longsdorf and Mr G, and information provided to
Mr Longsdorf by Mr G and others, Mr Longsdorf commenced these proceedings. At the time he commenced the proceedings he filed an application, an affidavit, and a notice of abuse. The notice of abuse, without being critical of Mr Longsdorf, made a number of hearsay allegations and made a number of allegations which did not fall within the statutory definitions of either family violence or abuse, but in any event, certainly alerted the Court to the allegations that were contained.
Interim orders were then made, as I have indicated, on 10 September 2008 and further interim orders on 10 December 2008. In December 2008, at the time the further interim orders were made, being the orders that provided for a build up by April 2009 to equal shared care and week about arrangements, Mr Longsdorf applied for employment in [M], and in February 2009, in fact, commenced employment in [M]. Accordingly, for the past 18 months or so, Mr Longsdorf has lived in [M] during the working week, and has returned to [G] on some weekends, and the evidence is unclear and controversial as between the parties as to whether it was every weekend, every second weekend or something less.
Shortly after this, and on or about 21 March 2009, there was an allegation that the mother, whilst having [X], [Y] and [Z] with her in her care, was assaulted by her partner, Mr F. The mother denies that, although, for reasons that will become apparent when I return to discuss the evidence and findings of credit, I find that an assault indeed occurred at that time. That particularly relates to material that was tendered into evidence relating to counselling notes regarding [Y], whom it would appear was substantially affected by those events.
On 22 March 2009, and [Y] returned from time with her mother Mr Longsdorf was informed of the assault by Ms P, who was the partner of Mr G and the stepmother of [Y] and [Z].
On 25 March 2009, Mr Longsdorf spent time with [X], and then on
30 March, when she was due to return, he did not return her.
Ms Granger acted quickly, made an application to the Court seeking the immediate return of [X] to her care, and on 9 April, Lindsay FM dealt with that application and made an order which compelled [X]’s return by 5pm that day. Further orders were then made to reinstate a week about arrangement to commence from 26 April 2009, and a number of other orders made.
On 15 April 2009 a second notice of abuse was filed by Mr Longsdorf relating substantially to the above allegations of assault. In May 2009, Mr Longsdorf commenced his relationship with his present de facto partner, Ms S, who also has children who live with her.
On 15 July 2009, the proceedings came before the Court and were adjourned.
On 7 August the orders I have referred to were made relating to a declaration of parentage and transferring the proceedings to this Registry.
Shortly after this and on 19 September 2009 Mr F again assaulted
Ms Granger, this time whilst they were residing together, albeit for a brief period, at the [omitted] Caravan Park. After this assault and in October or November, Ms Granger moved to [R]. The evidence is controversial as to whether it was in fact a move by Ms Granger and Mr F, but quite clearly, very shortly after the move, if indeed they did not move together, they were residing at that accommodation.
In December 2009, Ms Granger was evicted from the premises at [R] for non payment of rent.
In January 2010 and following the production of documents on subpoena, Mr Longsdorf became aware of the assault that had occurred on 19 September 2009, and as a consequence, on 1 March 2010, an application in the case was filed by Mr Longsdorf seeking a radical change to the then arrangement, and seeking to suspend all orders, have [X] live with him, and spend supervised time with her mother. The application also sought restraints regarding Mr F having any involvement with [X].
On 14 April 2010, orders were made by Dunkley FM which provided, inter alia, for the appointment of an independent children’s lawyer, the beginning of trial directions, the ordering of a family report and, importantly, orders for week about time as I had referred to, but with the condition that Ms Granger’s time occur at the home of and be supervised by the maternal grandparents.
On 15 April 2010, the day after those orders, [X] began to attend sessions with Ms W, a senior early intervention teacher at the [G] and District Children’s Services, it being apparent at that time and indeed for some little time earlier that [X] was struggling with speech and a number of other fine motor skills.
On 13 May 2010, Mr F appeared in court and pleaded guilty to assaults – a number of charges of assault in relation to Ms Granger -and was sentenced to a two year good behaviour bond and an apprehended domestic violence order made.
On 15 May 2010, [X] commenced to attend periods of therapy with a psychologist, Ms J.
On 5 June 2010, family report interviews were held and very shortly thereafter and on 14 June 2010, [X]’s maternal grandmother telephoned Mr Longsdorf and said to him words to the effect:
Congratulations you’ve broken Ms Granger. Could you please come and pick [X] up?
Mr Longsdorf then collected [X] and she remained in his care and/or in the care of the paternal grandparents as a consequence of Mr Longsdorf working most of the working week away in [M] until the matter came before the Court the following day on 15 June and on that day orders were made which again varied arrangements for [X] and this time provided that rather than a week about care arrangement with supervision, that [X] would spend time with her mother for shorter periods of time and as agreed and subject to supervision. The matter was then listed for the final hearing dates of 23 and 24 August.
What subsequently transpired is that from 14 June until the matter came before the Court for hearing in August there was no time between [X] and her mother. Only after interim orders were made at the conclusion of the second day of hearing, did time resume. Although the evidence of the parties would suggest that whilst orders were in force for alternate weekend time, the time occurred at best five times and at worst three times during that entire period. And the evidence of the parties in that regard is of some significance and I will turn to it shortly.
In relation to the evidence, the applicant Mr Longsdorf, as I’ve indicated had filed three affidavits in his case. Each of those affidavits is read and Mr Longsdorf was cross-examined with respect to them. The first affidavit filed by Mr Longsdorf in August of 2008 referred to a number of complaints that had been made to the Department of Community Services in relation to all three children, not only [X], but [Y] and [Z]. It went on to suggest that indeed the children had ulcers in their mouths, red bottoms from worms, covered in scabs and scars from flea bites, had continuous urinary tract infections, sunken eyes, wrinkly hands and that [Z] looked like an 80 year old and that both children appeared distressed and malnourished.
Certainly the material produced on subpoena and tendered into evidence from the Department of Community Services would not support those observations. As to whether observations of that kind were ever made or not is unclear. But the Departmental material certainly does not corroborate those concerns. It was also indicated and alleged by Mr Longsdorf in paragraph 32 of his first affidavit that since the breakdown of his relationship with Ms Granger in September of 2007, some 11 months earlier:
Ms Granger has had a number of domestic partners. Ms Granger has been a member and very active on an Internet dating site RSVP.com. On that site Ms Granger looks for multiple sexual partners. Ms Granger has also been a member and very active on the Internet website Facebook as well as a number of other adult sites that are referred to including Adult Matchmaker.
It was also indicated by Mr Longsdorf at the time that the proceedings commenced that whilst they had never lived together, that he had spent substantial time with Ms Granger and she with him at each other’s homes and as a consequence he had spent time with [Y] and [Z] and following [X]’s birth, as much time with her as work permitted, although it was unclear how much time that had been in reality.
In the second of his affidavits, Mr Longsdorf updated his evidence but also then went on to raise a number of significant issues in relation to Mr F and indicated in paragraph 4:
I now understand a serious domestic violence incident occurred in September 2009 when Ms Granger was assaulted by her partner, Mr F. These events are particularised below and indeed there is then a discussion of what is alleged had occurred and which had been reported as indicated by Mr G’s partner Ms P.
There is no dispute, as I have indicated, on Ms Granger’s evidence that since September 2007 i.e. the time at which the relationship between Mr Longsdorf and Ms Granger broke down, that her relationship with Mr F had been on foot. And indeed, the existence or non-existence or subsistence more correctly, of that relationship at various times in the proceedings has been a matter of some significance.
Mr Longsdorf’s third affidavit, filed shortly prior to the trial in August 2010, raised a number of further updating concerns. Particularly following, what was referred to in his material as, [X]’s “abandonment by her mother in April of 2010”. It referred to the arrangements that have been in place in a sharing of [X]’s care between [M] and [G] and suggested that Mr Longsdorf intended to return to [G] if he could not make arrangements in [M].
Certainly by the conclusion of the evidence in the case an undertaking had been given to the Court by Mr Longsdorf which I propose to accept and base orders upon, that he will return to [G] as his place of residence no later than 1 March 2011 or in about three months time.
The third affidavit filed by Mr Longsdorf also for the first time raised a number of significant concerns in relation to [X]’s health. It deposed at paragraph 35 that she was attending regular appointments with a cardiac specialist, Dr S in Sydney as it had been discovered that she had small holes in her heart and a leaky valve. She has attended a number of further appointments since that time, although the communication difficulties between these parents have meant that each of them has not been as actively involved in matters that relate to [X] and her health and welfare when in the other’s care as they might have been.
It also referred to the conversations between Mrs H, the maternal grandmother, and Mr Longsdorf in April of 2010 when [X] returned to Mr Longsdorf’s full time care. It otherwise indicated a number of concerns particularly suggesting that whilst the children – all three of them – had been with Ms Granger, they had lost weight, were malnourished, had flea bites, skin rashes etcetera as reported in the earlier material. Importantly, it raised a concern that following the making of orders in April 2010 and some weeks after that in early May of 2010, that Ms Granger had “disappeared” and that no-one including Mr Longsdorf, his parents and Ms Granger’s parents had been able to contact her.
As a consequence it would appear and there is no issue with respect to their involvement, purely when and who instigated that involvement, that the police became involved in seeking to locate Ms Granger. Certainly the disappearance, as it is described in the evidence, occurred at a time when [X] was in Mr Longsdorf’s care. There are otherwise denials throughout that material of the allegations raised by
Ms Granger.
The substantial evidence in Mr Longsdorf’s case arises from the paternal grandmother, Mrs L, who has filed six affidavits in the proceedings. Each of those affidavits has been supportive of
Mr Longsdorf and critical of Ms Granger.
Some of those criticisms have been valid. Perhaps some of them have not or have at least somewhat exaggerated events beyond what might have been the case. There is suggestion in the first of the affidavits in August of 2008 that there were significant medical issues with respect to [X], but certainly the detail of some of those would appear to fall short of the description of significant relating to rashes and the like. And there is a suggestion that a case worker from the Department of Community Services who would have been involved in investigating allegations, had said to Mrs L:
[X] is at risk. We’d been informed that Ms Granger is working as a prostitute and has been warned by the police for prostituting.
There is no material tendered, although material has been subpoenaed from the New South Wales Police, which corroborates that concern. The affidavit material throughout the proceedings goes on to raise matters such as the domestic violence incidents, which have been referred to, and which will be returned to, as they are somewhat significant with respect to these proceedings; inquiries made to ascertain that at the time that Ms Granger and Mr F left the [S] property that they owed $4,788 in rental arrears, and as a consequence forfeited their bond of $1,920.
Similarly, there are allegations that when they left premises at [R] they were evicted for non-payment of rent, and not attending appropriately to the premises, that on one occasion Ms Granger was seen with inflamed sores around her jaw, and at the back of her legs, and noticeably thinner, supporting a suggest that drug use had arisen, not only by Ms Granger, but by Mr F; that the children, particularly whilst Ms Granger was living at [R] were sleeping on mattresses on the floor, and were not being appropriately cared for.
Further allegations arose as the material goes on. In relation to the May 2010 incident, when Ms Granger is suggested to have disappeared, and Mrs H, the maternal grandmother, is suggested to have contacted the Longsdorf’s to indicate her concerns, and seek some assistance, and that Ms Granger was, in the vernacular, not coping at that time. That would certainly appear consistent with what then transpired by June of 2010, when [X] returned to live full time with the Longsdorf’s.
It also suggested there have been a number of changes in [X]’s behaviour during the period – and a fairly substantial period of time that the parties had shared care, and that [X] had gone from being independent and confident, and a child who was described as good, to being quiet and docile, and that she was no longer as outgoing and buoyant as she had been and that following the termination of the week-about arrangement, and coming to live full time with the Longsdorf’s, that she was again settled, sleeping in her own bed, falling asleep immediately at night without fuss, that she was demonstrating apprehension regarding people interacting with her, particularly if anyone spoke in a firm voice, suggestive that she had been exposed to ongoing arguments and conflict between Ms Granger and Mr F.
It is suggested that on a number of occasions, and the evidence is quite frank and candid in that sense, that [X] had said, “Back mummy,” and when asked if she would like to go back to mummy replied “yes”, although she would settle soon, and would not be overtly distressed. There is also suggestion that in May of 2010 a former friend of
Ms Granger’s, Ms M, was spoken to by Mrs L whilst collecting items for [Y] and [Z], which had been left by Ms Granger with Ms M, and that Ms M had said of Ms Granger and Mr F, “They simply laid about all day doing nothing. Ms Granger took no steps to put her life back on track.”
It is suggested that assistance had been offered to Ms Granger regarding budgeting and the like, and Ms M opined, “Ms Granger did not do any of those things.” There was also suggestion that Mrs L had attended at the local court at [omitted], when Mr F pleaded guilty and was convicted of four charges of assault, and had made further inquiries in relation to aspects of Ms Granger’s life, which became, particularly during the adjourned period and the resumption of the matter on 22 November, somewhat significant, and to which I will turn very shortly.
The final aspect of Mrs L’s evidence of significance is that following the commencement of appointments with Ms J, the psychologist, who ultimately produced material in each parent’s case, that a conversation occurred between Ms J and Mrs L, and Ms J indicated:
My initial assessment of [X] having been very deprived during her first 20 months has not changed. She has tactile needs, similar to a young baby.
That opinion as expressed and reported is somewhat borne out by the affidavit filed by Ms J in these proceedings in June of 2010 at that time in Mr Longsdorf’s case. The affidavit was the subject of some cross-examination, and Ms J raised a number of concerns regarding a failure by [X] to developmentally thrive which, on Ms J’s evidence, caused some real concerns as regards the early period of her life and care.
During the adjourned period an appointment occurred as between Ms J and Ms Granger, and with observations of [X] by Ms J. It was not anticipated that a report would be produced by Ms J in that regard, because it had simply been indicated that if [X] was attending with a psychologist for some form of therapy that both parents should be involved.
However, the report was produced, and further oral evidence given by and cross-examination of Ms J. Ms J expressed a slightly more positive view of Ms Granger’s parenting and of this little girl’s relationship with her mother. However, ultimately her evidence remained largely unchanged, and she continued to express concerns regarding what had transpired in the early period, and particularly the first two years of this little girl’s life, when she was in her mother’s full-time care, that resulted in the developmental deficits which Ms J considers apparent today.
Ms W, similarly, as an early intervention teacher, had sworn an affidavit which raised some concerns, but which expressed that at the time of her report, June 2010, being remembered that that is a time when [X] was not seeing her mother, and was cared for entirely by the Longsdorf’s, was receiving some learning support, was attending an early intervention unit to help her get up to speed, as it were, and expressed the opinion:
I have absolutely no concerns for her well being whilst in the care of Mrs and Mr L.
That is perhaps somewhat counter-intuitive to Mr Longsdorf’s case that he seeks to be the child’s primary carer. However, quite clearly, and it is not a criticism in any fashion, the Longsdorf household, being
Mr Longsdorf and his extended family, have co-jointly provided care for this child, and I accept that the majority of that care has been provided by [X]’s grandparents, particularly of recent times, but from
1 March 2011, subject to Mr Longsdorf’s undertaking he will play, one would hope, a far greater role in that care.
Ms O’s evidence, which, as I have indicated, was unchallenged, and not the subject of cross-examination, paints a negative picture of Mr F as somebody who has difficulties with anger, does not pay child support, and engages in both verbally and physically abusive behaviour towards the mother of his two children with Ms O, and speaks to her in the presence of those children in terms such as, “Mr F said to me, ‘Do not start, you cunt,’ through gritted teeth.” I said, “That is great, talking like that in front of the kids.” Mr F said, “You do not know how much I feel like smashing you right now,” and it continues on in that fashion.
Inevitably, as a consequence of that behaviour, domestic violence proceedings were commenced. What is also clear from that evidence is that Ms O had been, and continues to be in contact with Mr G, and, whether directly or through Mr G, with the Longsdorf’s, and, accordingly, to the extent that throughout her case Ms Granger has suggested that she feels as though she is in the glare of a spotlight with everyone checking on her, there is perhaps some validity to that, the difficulty being, of course, that if one is checked up on and there is nothing to find, then that is a very real concern, whereas certainly, as regards Mr F, there are some significant deficits, which, thankfully for this little girl’s benefit, have come to light.
In Ms Granger’s case there are a significant number of affidavits filed. Ms Granger has herself filed eight affidavits. There are two affidavits by Mr F, although ultimately whilst he has not completed cross-examination at the conclusion of the matter on 24 August, he has not returned to the case. His affidavit evidence has not been formally withdrawn, and, in any event, would need to remain in evidence, and could not be withdrawn, as he was already commenced cross-examination. There is also an affidavit by Mrs H, the maternal grandmother, and, as I have indicated, oral evidence by Mr G.
Ms Granger’s evidence confirmed that asserted by Mr Longsdorf, that there was a relationship from about March of 2006 until September of 2007, although no full-time cohabitation. The allegations in relation to the home being entered, and defecation occurring are repeated. Mr F is referred to in the first of the eight affidavits, although it is not made clear when that relationship commenced, but by the fifth affidavit it is confirmed that the relationship was certainly on foot no later than September 2007, and accordingly corresponding with the completion of the relationship between Ms Granger and Mr Longsdorf. Nothing turns on that, other than to chronologically identify when that has occurred.
Ms Granger’s evidence at the time of her first affidavit in September 2008 indicates that from October 2007 she and Mr F were spending most weekends together, and that certainly by February 2008 she had moved to [T] to reside with him on a full-time basis, and in late March 2008 was living with him on a full-time basis in [S]. The evidence in Ms Granger’s case suggests from the very outset that her relationship with both Mr Longsdorf and his extended family was poor, but particularly poor with Mr Longsdorf.
Indeed Ms Granger’s oral evidence, both in August and in November, indicated that she has not really had any communication with
Mr Longsdorf since the termination of their relationship over three years ago, and does not see that that would happen any time soon. Her evidence was clear that all communications really occurred through Mrs L and not otherwise.
The allegations of neglect of children are denied by Ms Granger, although Ms Granger, to her credit, makes clear that the orders that were put into place in relation to [Y] and [Z] occurred after her relocation, although she euphemises somewhat by saying that the arrangement had been into place for some months, and she did not want to upset the children by changing it. Certainly, the arrangements that had been in place in relation to [X] have been far more disruptive and far longer lasting and yet, we have proceeding to a hearing.
Ms Granger concedes that she engaged in a number of social networking sites and again, nothing much turns upon that other than to grasp any possibility of an agreed fact in this case.
Ms Granger’s third affidavit suggests that since March 2008, she has lived with her partner Mr F at the [S] address – that affidavit being filed in August 2009 and having been sworn on 3 August 2009. Certainly by the date of the affidavit, Ms Granger and Mr F had long left [S] with the substantial arrears that I have referred to.
The fourth affidavit goes back and for the first time, raises complaints and concerns regarding alleged violence by Mr Longsdorf towards
Ms Granger. Ms Granger also raises concerns and allegations as to violence by Mr G towards her. And again, in frank and candid evidence, Mr G conceded that there had been violence in their relationship by he towards Ms Granger, although he indicated that she could be quite emotional and quite uppity and one can paraphrase his evidence by suggesting that they argued equally with each other and he suggests that Ms Granger gave as good as she got. But, that is not to excuse Mr G’s behaviour which he makes concessions about.
Ms Granger elaborates upon her feelings towards Mr Longsdorf and her inability to communicate with him and indicates at paragraph 25:
I still cannot bear to be the in the same room.
By the fifth affidavit, Ms Granger’s evidence begins to raise further allegations of violence regarding Mr Longsdorf, and talks for the first time about [X]’s speech delay, and suggests that this has arisen since leaving her care and as a consequence of not being in her care. I find that difficult to accept, although there is no clear evidence regarding when it was first observed or first suggested to have come on. But certainly by that time, the swearing of a trial affidavit in August 2010, the difficulties had been manifest for quite some little while.
An affidavit filed by Ms Granger and affirmed 15 September 2010 raised some disturbing evidence. At paragraph 12 it purported to produce a CD at what was suggested to be a changeover with respect to [X] on 12 September. It suggests that previous changeovers had been recorded and in the paragraphs 10 to 12, refers to:
[X] became to scream and cry for me, I waited for about 10 minutes and [X] continued to cry and scream hysterically. The noise made by the child and her resistance to the [Longsdorfs] was incredibly distressing to me and my mother. I believe that this experience every fortnight is very damaging to [X], because she believes she is losing her mother. At the last occasion I recorded the changeover on the Sunday. I produced to the Court a recording I made of the changeover Sunday 12 September 2010.
The evidence in relation to that CD, being of some 39 minutes and 6 seconds, and listened to for its entirety – it being an Exhibit in these proceedings, M5 – does not support that allegation. Indeed, it is quite clear from the CD that there is a child who is highly distressed, sobbing hysterically and exhibiting a passionate desire to remain with her mother, but the child is [Y].
It is suggested in subsequent evidence once that was raised, evidence by both Ms Granger and Mrs H, that indeed the recording is of [Y], but that the same thing happened half an hour later with [X], but that is not the subject of the recording. But that of course is not what the affidavit says or suggests. The other aspect that comes out of the CD recording is that very early in the distress of [Y] there is a passage – Ms Granger: “Are you going to go with nanny?” Mrs H being present and having driven up from the [B] area. [Y] says, “I’m staying here with you.” Ms Granger says, “What about [X]?” [X], there is the sound apparently of the car door opening, and it would appear at that time that [X], [Z] and Mrs H leave the car and are playing nearby. Certainly, latter portions of the CD suggest [X] returning to the car and saying to her mother, “Look what I found mummy, I found money,” and then going off. At all of those times she sounds quite happy. Whether [X] was, indeed, distressed half an hour later or not is simply not in evidence other than statements made during cross-examination and totally at odds with what is suggested by the CD.
In any event, Ms Granger then filed a further and final affidavit,
11 November 2010, which painted a picture of substantial difficulties in being able to arrange and enjoy time with [X] during the adjourned period from August to November, and as I have indicated, there is dispute as to whether there were five or three weekends during that time, but there should have been more.
One issue of particular concern in relation to that period of time is that the orders that I had made on 24 August had provided for a number of arrangements in relation to changeover and the presence and/or company of the material grandmother – who had been present in court on 24 August and indicated her availability to attend and assist with changeovers. Those orders provided that Mrs H was to be present on changeovers, but, if she was not able to be so present, that Ms Granger could give 72 hours notice of that fact, and would then be able to collect [X] on her own behalf and without her mother, provided that she was then spending time with the children [Y] and [Z].
The order in fact provided in its precise terms in the event that Mrs H is and will not be available to do so, that upon the giving of 72 hours of such fact to the father and/or paternal grandparents, then the mother shall, subject to that notice being provided and compliance with the balance of these orders, be entitled to collect and return [X] and provided that [Z] and [Y] are also attending that weekend. Certainly the intention of the order was not that [X] would not be provided unless [Z] and [Y] were attending. The intention of that order, and indeed an order made on the subsequent relisting during the adjourned period, was that as far as possible, the weekends for all three children would correspond.
But what transpired on one occasion is that less than 72 hours notice was given, and it would seem as a consequence, purely of that, the time was not made available, and that on a subsequent occasion, less than 72 hours notice was given, and as [Z] and [Y] were not also attending that weekend, again, [X] was withheld. In the context of the fairly limited time that was being spent, that is, at best, regrettable.
It is well known from present and current literature and research regarding parenting arrangements and harm caused emotionally to children as a consequence of conflict, that in fact – and arising from research from such noted experts in the field as Smythe, Bagshaw and Macintosh – that indeed, one of the greatest indicators of harm or potential harm to children arises not from any particular time arrangement but from rigidity and inflexibility and poor communication between parents, and the above events certainly represent a clear example of that.
The evidence of Mr G, whilst it was called in Ms Granger’s case, raised a number of concerns in relation to Ms Granger. Mr G gave his evidence entirely orally and was cross-examined.
He was asked whether telephone communication between [Y] and [Z] and their mother was occurring consistently. He indicated, “no, it is inconsistent, I sit on the phone waiting for her to ring”. When asked how did that effect [Z] and [Y], he said, “they are upset, sad, they do not know why she does not ring. Ms Granger says it is credit, I hope she will change her ways”.
When asked whether it had been suggested to him that Ms Granger was going to relocate to [G] he answered “yes, and [name omitted], [being the paternal grandfather] rang me, and said, ‘If she sorts her life out, gets a house, she will see the kids more regularly. It would great if she could get involved more’.” Indeed that was consistent with
Ms Granger’s evidence in her affidavit of May of 2010, wherein she indicated that her intention at that time was to relocate in the very short term to [G], but by August of 2010 that had changed, and a number of difficulties and reasons for the change of heart were suggested.
Mr G was otherwise asked whether, prior to April of 2010, time had been occurring consistently. He indicated, “It was not regular. It did not happen all the time. From October to December I did not have any address for her. I asked her for the address but she would not tell me. She did not have any time.” Whether the time did not occur because Ms Granger did not want it, or because Mr G withheld it for failure of an address, is unclear.
Mr F was cross-examined briefly, and it would be a fair summation of Mr F’s evidence that it was not credible, nor impressive. Mr F appeared affected by some intoxicant, although that was directly put to him and he denied it. If indeed he were not it would be suggestive of a most peculiar affect and attitude by him, as his evidence was given in a joking, glib and somewhat truculent, arrogant fashion. He was asked questions primarily to do with allegations of his violence towards Ms O and, more pertinently, towards Ms Granger. He denied the allegations. Indeed one could paraphrase his answers as being excuses given by him to try and correspond with some of the facts reported to the police, and is verified in exhibits before the Court, that material, being statements by Ms Granger and others having been tendered as part of the evidence in the Independent Children’s Lawyer’s case, and also material relating to counselling for [Y], who was present during the March incident, being part of the Independent Children’s Lawyer’s case Exhibit ICL1.
Notwithstanding that the most he could concede was that he had had his hands on Ms Granger and holding her, and that they had fallen together because he was hugging her, he was otherwise flippant about the entirety of those incidents, and denied any violence or wrongdoing on his part, notwithstanding that he had pleaded guilty, and been convicted of four counts of assault.
When asked whether he had told the police a true account of what had happened his response, somewhat chillingly, and very relevantly as it would transpire was, “We’ll be together until the day we die. I can guarantee you that.” He was then asked, “Do you want to marry
Ms Granger?” His response, “Yes, sooner rather than later.”
It was put to him that his version of what had occurred in relation to the alleged assaults was very different – in fact, vastly different to the versions that were given by other witnesses, particularly Ms Granger. His answer to that, “My version has always been to shield Ms Granger. She needs no follow on from these occurrences.” That has some relevance as it is suggested by Ms Granger in her evidence that the very same day that evidence was given by Mr F, and the proceedings concluded before this court, at a little after 7 pm, or if not the next day, that she communicated immediately to Mr F that their relationship was over.
It is a matter of some significance, as regards cross-examination of
Ms Granger, as to whether that relationship is in fact over, but, as has been the nature of the evidence in this case, the matter took a strange and peculiar turn at that point, and it is probably a matter of great significance as regards, not only the evidence, but findings of credit.
When the matter resumed this week Ms Granger was further cross-examined. During the course of that cross-examination a number of questions were put to Ms Granger regarding her being presently in a relationship with a Mr W. Ms Granger denied that. She said she knew Mr W. He was a family friend. She had stayed at his home with [Y] and [Z] on one weekend, but that otherwise that was as far as it went.
Ms Granger was then challenged with printouts of her Facebook page and questioned regarding a number of entries on that Facebook page. It is to be remembered that very early in these proceedings, and as far back as 2008, Ms Granger had raised concerns that people had accessed her accounts. That was in the context that Mr Longsdorf had suggested matters with respect to the sites to which I have referred, RSVP, Facebook, Adult Matchmaker and others.
Ms Granger did not deny any of them but asserted that any information had been illegally obtained by “hacking into her account”, to use the words of Ms Granger in her affidavit material. Ms Granger’s evidence when it came to these matters was somewhat telling, and I accept that Ms Granger’s version of what was occurring in relation to the Facebook page is incongruous and false. Ms Granger had suggested, when confronted with these allegations of a relationship with Mr W that that she and Mr W had no relationship at all, but in fact the entries that were put on there, which suggested a relationship, were a concoction between her and Mr W. She indicated, “What is on Facebook is not real.” She indicated that they knew that people were observing the page, and accordingly had sought to entice people into excitement, presumably, by putting on entries that would suggest a relationship that does not exist, and as a means of seeking to flush out the fifth columnists who were finding the information inappropriately. The difficulty with that assertion, however, is that it is contrary to the evidence that had been given by Ms Granger only a few minutes earlier.
What is more important, without for one moment seeking to turn back the clock to the Court of Star Chamber, and suggesting that I can see into Ms Granger’s soul, there was a palpable physical reaction by
Ms Granger, which I had put to counsel for Ms Granger in submissions as being the closest manifestation of being caught with one’s hand in the cookie jar that one could imagine. Ms Granger seemed genuinely shocked and affronted that this material was available in the public domain, notwithstanding the assertion that it had been put there deliberately. Without needing any expert guidance as to the interpretation of body language, it was quite clear to me at that point that Ms Granger had indeed been “caught out”. That gives me some comfort that her relationship with Mr F hopefully is over, because everything in the evidence regarding Mr F suggests that he is nothing short of a violent thug. The completely enmeshed relationship that
Ms Granger found herself in, however, for about two years or more with Mr F does not assist her case.
I am satisfied that, to the extent that it is suggested that there were assaults by Mr F upon Ms Granger in both March and September of 2009, that indeed those assaults occurred as described by [Y] in relation to March 2009, and as described by Ms Granger in her Police statement in September 2009, both of which involved nasty assaults by this man upon the mother of these children, whilst they were in a relationship together, and whilst all three children, at least in relation to the March 2009 event, were present.
It is suggested that [X] was asleep, but all of the literature regarding domestic violence does not differentiate between children physically observing or hearing domestic violence for it to impact upon them in a negative fashion, and certainly the observations of Mrs L, whose evidence by and large, and subject to some criticisms to which I will return, I accept are indeed consistent with this little girl having been exposed, not only to those assaults, but no doubt a great many arguments and loud raised voices between her mother and Mr F, and one can only imagine how confused she would have been seeing that occur, and trying to understand why somebody was yelling, screaming, and at times physically assaulting her mother, who she loves a great deal.
And I accept she does love her mother a great deal, and that her mother also loves her. But what is regrettable in relation to these incidents regarding Mr F is not simple. There are a number of complex issues that flow from Mr F’s involvement. Firstly, from at least February 2008, when Ms Granger left for [T], and then a month later for Sydney, I am satisfied that Ms Granger’s interest in her relationship, no matter what pathology underlied it, took precedence in her mind to her role as the mother of these three children. At the time of, or shortly after,
Ms Granger moving to [S], indeed to [T] at a time when there were orders that she was to live with the children in [G], I am satisfied that Ms Granger was quite content that the relationship with Mr F was prioritised, and more important then the relationship, at least with [Y] and [Z] at that period of time, and that this no doubt was some real impetus in why terms of settlement were so quickly produced in those proceedings with Mr G.
Next, it would appear that the relationship between Ms Granger and
Mr F was the subject of a great many untruths. At one stage references were falsified after being evicted from [S] to enable the accommodation at [R] to be obtained. And it was conceded by
Ms Granger – to her credit and when faced with documents which, in any event, put it beyond any doubt being documents produced by Australian Property Choice, Exhibit F7 – that she had manufactured these documents to obtain some advantage through deception that it was indeed so. That does not of itself impact in any way on
Ms Granger’s parenting, but it does suggest willingness and an ability to say what is necessary to obtain what one wants at any given point in time.
Next, Ms Granger has remained in the relationship with Mr F. The Court is not blind or ignorant of the literature regarding the circle of violence and the complex relationships that exist in relationships in which domestic violence exists. And I do not intend to be critical of
Ms Granger purely for not leaving the relationship, but what leaves me with a great sense of uneasiness is that Ms Granger, I am satisfied, misstated the status of that relationship on a number of occasions. At the time the family report interviews were conducted with Mr J it was suggested the relationship was terminated although they remained in touch. I am satisfied from Ms Granger’s evidence and concessions made in cross-examination the relationship was very much on foot at that time.
This was, to some extent, brought home by, during the course of the case, Ms Granger conceding she was still in a relationship with Mr F and, at the conclusion of the matter on a part-heard basis, seeking an order for preparation of an amended and updated family report to include Mr F in the interviews. My Chambers were subsequently contacted and that order discharged when it was indicated that the relationship with Mr F concluded. Certainly, I can accept, at least on some level, that evidence of Ms Granger that after she had seen Mr F in the witness box she saw:
A person that I did not know and that I was quite worried.
Indeed, the chilling comment made by Mr F that they would be together till death is not a comment that is heard regularly or with any comfort in this court. Indeed, it is somewhat pathological in its utterance. Whether that was intended or whether that was, in fact, what underlined the comment is unclear, but what is clear is that this was a relationship that had created substantial disaster in Ms Granger’s life for two years and, as a consequence, in this little girl’s life for two years being more than half of her life.
The inability to have prioritised [X]’s appropriate care arrangements over the relationship with Mr F is regrettable and I have no doubt
Ms Granger regrets it. But I cannot turn back the clock to September 2007 and have Mr F not enter Ms Granger’s life.
It has created chaos for Mr G’s household and the two children of that relationship, it has created chaos for Ms O’s household and the two children of that relationship and it has created chaos for [X], a chaos that at least for the last few months has been more settled. Although as a consequence of the somewhat rigid and rigorous interpretation of orders and, I am satisfied, the general willingness to accept that
Ms Granger will fail that relationship has also been somewhat undermined.
The difficulty also that I have with the evidence is that the arrangements that are in place at the moment see [X] being cared for by someone who is not a parent.
That is not precluded by the Family Law Act although it does prioritise the role of parents and it, in fact, suggests an arrangement that has been beneficial in most developmental senses for this little girl. And that is not, in any way, a criticism of Mrs L. She has stepped in at a time in life when most people would prefer to be getting on with hobbies, reading and general enjoyment of life to instead look after this little girl for whom, I am perfectly satisfied; she has nothing but love and a desire to care. If it is a criticism it is perhaps a criticism of
Mr Longsdorf who, whilst I accept it is a perfectly appropriate thing for a parent to want to be in employment – it is an important part of life and self-identity – could have persevered in trying to find employment closer to home than [M] where he has now been for the best part of, and by the time he returns in March next year will have been, for two years.
And to the extent that I have been critical of Ms Granger prioritising her relationship with Mr F above her relationship with each of these three children, I am also satisfied that Mr Longsdorf could have done more when he is faced with the difficulties that his daughter is faced with than turn to his parents. He could have put his money where his mouth was, as it were. He could have immediately left his employment in [M] – in fact, having taken that employment some weeks before a week-about shared care arrangement was to come into effect – and have returned to [G]. Notwithstanding that criticism, however, it is simply a reality of where the evidence in this case falls.
There remains the other issue and criticism raised by Ms Granger that people go out of their way to spy on her. It is put to me in submissions in Mr Longsdorf’s case that it is really an issue of intervention versus disclosure, and that unless people went out searching for this information Ms Granger would never disclose it. I am satisfied that is probably true, but I am satisfied Ms Granger would have some justification in feeling that she is indeed in the spotlight. But when litigation is pending before a court, indeed, parents and anyone else involved in the case are in the spotlight.
As regards issues of credit, they are matters that when I can avoid having to make such findings I do. But having regard to the present state of the evidence in this case I am obliged to accept, at least in relation to some salient points of the case, the evidence of one over the other.
And to the extent that that is so, I have some difficulty with the credit of Ms Granger. That is not to suggest that she cannot be a good parent, but I am satisfied that certainly in relation to two important aspects of the case she has been less than frank or truthful. The first of those relates to her relationship with Mr F and its existence at different times, and that the view I formed of Mr F as presently expressed, that is a matter of some real concern and I am satisfied that indeed for the period from February 2008 at least until the latter part of 2008 and the second assault in September 2009 that Ms Granger’s primary focus was not where it should have been with [X] and [Y] and [Z], but her relationship with Mr F for whatever reason.
The second aspect arises from the cross-examination on 22 November and the real tangible act of being caught out in relation to the Facebook page and the relationship which, I accept, is far more intimate with
Mr W than Ms Granger would have the Court believe. Certainly, the questioning that occurred regarding the various comments as acronyms made on the Facebook page caused more embarrassment and a look of dread and being caught out than I have ever seen on a witness’ face.
Having made those findings of credit, where there is an evidential issue I prefer the evidence and accept the evidence, certainly, of Ms O who is unchallenged, the evidence of Mr G who, whilst a witness in
Ms Granger’s case, was somewhat illuminating about the period in which the relationship with Mr F was full on, and the evidence of
Mrs L.
Although, with respect to Mrs L’s evidence – and I say it with the greatest respect because the words I have said regarding her love and care and commitment to this little girl are very genuine – but for all of the parties in this case – whether parties, witnesses or otherwise – all of the people involved in this little girl’s care – it would befit them all to seek to find some path forward that allows some greater trust and respect for each other’s role.
Ms Granger, I accept, has been anything but accepting or respectful of the job Mrs L has done at a time when she was the best-placed person to do it and has done a very good job. Again, that is perhaps understandable, but it is advanced by Ms Granger on a self-focused rights basis of, “I am the mother. I should be doing the job she is.”
But regrettably, for a big period during 2008 and 2009, that job just was not being done and certainly not being done to the extent that was required for a little girl of such tender years and vulnerability. And Mrs L has stepped in to do that and that is to her credit and needs to be recognised by all. But also, whilst Ms Granger has her shortcomings, she also has some benefits to offer this little girl and she needs to adjust perhaps some of her insights and behaviours as well to offer them as fulsomely as she might, but she does have things to offer.
The final portion of the evidence is Mr J’s report. Mr J indicates that all of the Longsdorf family have had significant involvement in [X]’s care; that indeed Mrs L has had the most substantial involvement in her care over the last significant period, and certainly the majority of 2010. He relates the history given by each of the parents, which is consistent with the largely agreed evidence. He otherwise though has a number of significant comments to make with respect to the case.
He reports, at paragraph 22, that Mr and Mrs L argued that it is in [X]’s best interests and the best long term developmental outcome to live with her father. That if she’s able to live in [G], she can maintain regular contact with her brother and sister and that is indeed true. It suggests that they frequently have afternoon tea and certainly the relationship between Mr G, his wife, and the Longsdorf family, is good, and probably far better than presently exists between the [H] family and Mr G.
The report is somewhat at odds with Ms J in that Mr J suggests that [X] relates positively to all of the adults in her life, that she appears to have a secure attachment, as demonstrated by her ability to pass between the various adults, and including with Mr J without any fear or anxiety. That again is at odds, perhaps to some extent, with Ms Granger’s evidence regarding changeovers. Notwithstanding – paragraph 42:
That notwithstanding the child’s apparent minor speech difficulty issue, is able to engage in conversation with her father.
Continuing:
That her close, warm, comfortable, enthusiastic interaction with both of her parents was observed.
Paragraph 44 – and he opines:
Consequently it was not possibly to discriminate between the parents in terms of the level of attachment and affection for each.
And that affection and attachment also extends, I should be very clear, to her paternal grandparents, and Mr J also recognised that this little girl has a good relationship with her maternal grandparents. The report, in its latter portions, concludes at paragraph 49:
It was not disputed that Ms Granger was [X]’s primary carer for her first 22 months. Consummately, the child would have developed a significant and an appropriate attachment to her mother. The child was provided with emotional security and consequently, the ability to adjust and then embrace an equal care arrangement which began in December 2008. Thus for the past 18 months, she has had the benefit of spending a significant part of her formative with her father and his parents and has added them to the circle of adults who love and care for her.
The final recommendation of the report is:
Should the Court determine that [X] would be at risk in her mother’s care, then Mr Longsdorf and his family emerged as very appropriate alternative carers. Should the Court determine that she is not at risk, then the child might remain with Ms Granger, given her role as the child’s primary care giver.
What is important is that since the report was written, and Mr J has not been recalled since his initial cross-examination, there have been substantial issues as to whether the relationship with Mr F is or is not on foot, and there are conflicting versions in Ms Granger’s case regarding that.
There has been the period where quite clearly Ms Granger was not coping with the shared care arrangement and as a consequence on or about 14 June, terminated that arrangement unilaterally, and returned this little girl, through her mother, to Mr Longsdorf and his family. And I am satisfied at a time when that was no doubt an emotionally difficult decision for Ms Granger to make, but perhaps made with less reflection upon and less insight into the impact of that upon this little girl and the very feelings of abandonment that Ms Granger’s affidavit material then suggests are beginning to manifest at changeovers.
I am not satisfied that there is a significant risk to [X] in her mother’s care. I am certainly satisfied that for the period of the relationship with Mr F, and whilst the evidence is unclear as to whether that relationship continues, that there was a real risk. On the basis that I accept that some form of relationship is happening with Mr W, it may be that it has ended, but I simply do not know.
And based on the credit matters to which I’ve referred I cannot be satisfied that the choices that Ms Granger makes in pursuing matters – and has made – in pursuing matters that are of some personal importance to her, whether for emotional, financial support or otherwise, as well as the prioritisation of pursuing that relationship, to some extent blind to the consequences on each of these three children, has created some chaos, if not some emotional harm in the past, and has the potential to continue to do so.
I am satisfied and comforted by Mr J’s report regarding this little girl’s relationship with Mrs H, that the arrangements that would provide for this little girl’s time with Ms Granger, and accepting Ms Granger’s evidence that she proposes at least in the short to medium term to stay living with or in very close proximity to her parents, should occur by [X] spending her time with her mother at the home of the maternal grandparents. But I do not propose to make orders that it be supervised by them or conditional upon the being present.
The Law
In turning to the law one is required to commence with the objects and principles as set out in s.60B. They provide:
That to ensure the best interests of children are met, ensuring the 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, protecting children from physical or psychological harm, ensuring that children receive adequate and proper parenting, and ensuring the children fulfil their duties and meet their responsibilities.
The principles underlying the objects are that children have a right to know and be cared for by both their parents, have a right to spend time on a regular basis and communicate with both their parents, and other people of significance to their care – and in this case there are a broad category of people. Parents jointly share duties and responsibilities, parents should agree, and children have a right to enjoy their culture – although that is not a matter of any great moment in this case.
I am urged by Mr Longsdorf to make an order for sole parental responsibility. That is a matter of some particular significance as s.61DA provides a presumption in favour of equal shared parental which in some circumstances does not apply and if it applies may be rebutted. Even if rebutted, it does not preclude the Court then making an order for equal shared parental responsibility. But, if rebutted, the Court is not required under s.65DAA to consider equal or substantial and significant time before moving to any other arrangement.
Ms Granger proposes that there be equal shared parental responsibility.
The presumption does not apply if there is a finding that the child has been abused by a parent or a member of that parent’s family or a finding of family violence. The presumption can be rebutted if there is evidence that suggests that it is in the child’s best interests that the parents not have equal shared parental responsibility.
This is a case in which I am satisfied, based on the matters I have referred to, particularly the evidence comprised within exhibits relating to the assaults March and September 2009 and find occurred, as I have indicated, as described in the exhibits of [Y]’s counselling appointments and in relation to September, Ms Granger’s police statement, that there has been family violence.
As Rose J has commented on a number of occasions once the finding is made the presumption does not apply. However, that does not preclude the Court making an order for equal shared parental responsibility and I propose to do so. But what it does mean is that I am not required to consider equal time or substantial and significant time pursuant to s.65DA. But similarly, that does not preclude the Court considering those matters and I propose to do so, both as I find it convenient to do so in this case, and secondly, lest I am incorrect regarding non-application of the presumption.
The court is required under s.65DAA to consider equal time and substantial and significant time before considering any other arrangement. That is considered in light of a dual test of what is reasonably practical and what is in a child’s best interests.
Dealing firstly with practicality under subs.5 of s.65DAA, it commences with a consideration of how far apart the parents live. These parents live about – at least as regards the Longsdorf household in [G], as opposed to Mr Longsdorf’s present Monday to Friday residence in [M], about 2 hours or a little more apart.
Ms Granger lives at her parent’s home, on her most recent evidence, if one were to accept that, but the orders I propose to make will compel her to be at her parents’ home whilst the child is in her care, at [E], near [B]. Accordingly, one must drive from there through [omitted] to get to [G], and the reverse on the other trip. To date, all travel has largely been undertaken by Ms Granger, as changeovers have occurred in [G]. Ms Granger urges the travel should be shared, and I accept that it should be to some extent.
How far apart the parents live, certainly if this child was of school age, would render any arrangement other than weekend and school holiday time impractical. However, this little girl is not of school age and will not be attending school for at least another 14 or 15 months, depending on whether she then starts in 2012 or now, possibly more – a period over two years.
I am also required in relation to practicality not just to consider real logistical issues but also the parents’ current and future capacity to implement an arrangement, the parents’ current and future capacity to communicate with each other, the impact that that arrangement would have on the child, and such other matters as the Court considers relevant.
Whilst Ms Granger and Mr Longsdorf do not, and have not, for nearly three years, communicated with each other, communication does occur through a communication book and by communication occurring between the two sets of grandparents, between Ms Granger and Mrs L, although that can at times be quite strained. But it does occur, at least on a level that on most occasions has met this little girl’s needs for information exchange, and thankfully, she is very young and there is less information to exchange than might otherwise be the case.
The ability to implement the arrangement would be dramatically problematic but for the undertaking by Mr Longsdorf to return to the [G] area by 1 March 2011 and the abundant assistance that each of these parents receives from their parents who all love this little girl dearly and one would hope that moving forward from today that this little girl will begin to be able to focus on the benefits that are available to her as a consequence of that love and the various, albeit it dramatically, different abilities that each of the adults involved have of meeting this little girl’s needs and bringing some meaning to her life.
In relation to what is in this child’s best interests pursuant to s.60CC I’m required to consider the primary considerations of:
(a)The benefit of [X] having a meaningful relationship with both of her parents; and
(b)The need to protect her from physical or psychological harm.
I’m satisfied that the harm that [X] has been exposed to in the past has been as a consequence of what I might euphemistically call
Ms Granger’s poor relationship choices and her poor prioritisation. She has prioritised Mr F over, at times, and I’m prepared to accept for the majority of those times perhaps unconsciously – [X]’s best interests and welfare.
There are certainly instances however where Ms Granger has been prepared to excuse, forgive and to conceal information regarding Mr F and his impact upon these children, where certainly Mr G has been far more cognisant of and has taken immediate action about, and I accept Mrs H has also had some concerns about.
I do not know what has caused Ms Granger to be so enmeshed with
Mr F and what aspect of their relationship was so thrilling or titillating as to make it so important, but one would hope that one would could take Ms Granger on her word that it is over. But without doing that I intend to make some orders in any event which will very specifically exclude Mr F and which will impose some constraints, not so much on Ms Granger’s time, but where it occurs and the other people who come into this little girl’s life.
I’m also required to consider the additional considerations which stand alone as considerations as identified by former Carmody J in Dylan & Dylan [2007] FamCA 842 and as well as informing and supporting the primary considerations.
In relation to views, I’m satisfied this little girl is not of an age or level of cognisance to place any weight upon any view expressed by her.
As regards the nature of the relationship, Mr J tells me that each of the parents and indeed Mr and Mrs L and Ms H has a good attachment and relationship with this little girl. I am satisfied – and whilst it may be a matter of some sanguine disappointment to Ms Granger – that indeed the relationship that this little girl has and has developed with her paternal grandmother, Mrs L, is a very important relationship which whilst the legislation prioritises parents is a relationship that cannot be ignored and must stand with that of Mr Longsdorf.
The willingness and ability of each of the parents to facilitate time is a criticism of both. There have been periods of time when both have turned off the tap for the other.
There has also been, as the matter has progressed over its two and a half years of life before the Court, a hardening of hearts which is not going to assist this little girl as she becomes more mature, grows older and becomes more cognisant of what is surrounding her. For the parents and for the other grownups in her life to be so hard towards each other, means that ultimately they are going to cut off part of the heart and part of the great benefits that they can each offer this little girl and one would hope that they can move forward. I routinely make orders directing parties towards some form of therapeutic assistance, but I do not propose to do so in this case.
This little girl is already engaged with one if not two services and each of the parents and each of the grownups involved, one would hope, have the skills and the capacity within themselves to soften their hearts for the benefit of this little girl so that she can receive the love and cooperation of all concerned, but if not, to at least search out those services without being mandated by the Court.
The likely effect of change – I am satisfied that there are positive changes that can flow to this little girl by having a more healthy and fulsome relationship with both parents and others and one would hope with some of the pressures lifted from everybody but particularly [X].
Practical difficulty and expense I have discussed, but whilst this little girl is not at school, practical difficulty and expense can be overcome by parents being put to inconvenience without it being a difficulty for [X].
[X] is a child who is growing up in rural New South Wales. A travel of two hours in most circumstances is regrettable for a child of this little girl’s age, but for country people it is just a fact of life. The reality is that for Sydney people who want to travel 30 kilometres, a two hour trip is a fact of life. But I think the time spent travelling is not necessarily lost. Time with a small child in a car can be rewarding of itself.
The capacity of each parent to provide – and I’m satisfied certainly that Mrs L has demonstrated a more than adequate capacity to meet this little girl’s needs. Each of the parents have demonstrated some shortcomings at different times. I am satisfied that Mr Longsdorf’s is well meant by pursuing employment and supporting his family.
I am satisfied that Ms Granger has been perhaps ill informed or perhaps even misled, but one would hope that she will now genuinely forget about her own adult relationships for a little while and focus on rebuilding a safety net for this little girl by a relationship with her mum.
As regards maturity, sex, lifestyle and background, that has some significance as this little girl is so small, so vulnerable and has had such a disrupted life. Since very shortly after her birth her parents’ relationship came to an end. At about the same time Mr F came into her life, if not at the same time, and there have been multiple changes of arrangements, of accommodation and otherwise. And I’m sure as each parent reflects on that past they will know that they could have done and should have done better.
The child is not, as far as I’m told, an Aboriginal or Torres Strait Islander child.
The attitude of each parent towards their responsibilities has been lacking at various times and Ms Granger has regrettably shown a preference for pursuing her relationship with Mr F and whatever it has brought her to the detriment of [X]. But I am satisfied that these proceedings, if nothing else, have been the kick in the butt that she probably needed to realise that [X], as a very tiny little child, needs nothing but support and stability.
Family violence is raised by everybody, and accordingly does not advance or resist any determination by this court.
There are no family violence orders in force.
Whether it is preferable to make orders that will avoid future proceedings, I cannot really address with any specificity.
I’m concerned that allegations may well arise between these parties and there is one additional order that I have not included in the orders that I’m about to publish which we will include before we provided them to each of these parents. It follows upon various articles and comments of Martinson J of the British Columbia Supreme Court, this is a case where I feel that if any application is to be made by either parent, at least within the next
18 months, it should be brought back to and listed before me. If there is then to be any application for disqualification or otherwise we’ll deal with it then. But a case that involves such an elaborate complex history, bearing in mind that these proceedings have been on foot for nearly all of this little girl’s life, warrants some judicial management and I propose to provide for that in accordance with Order 20 above.The other issue that is of some concern to me is that there is an established pattern of time between Ms Granger and her two children, [Y] and [Z], and that seems to be from Friday to Sunday.
I have turned my mind very specifically to whether I should limit periods so that the changeovers correspond, and I am satisfied that I should not. I am not making orders or determinations in respect to [Y] of [Z], and Mr G is not a party to these proceedings, and accordingly, I cannot make any order that binds him or that changes those arrangements.
Certainly, Mr G and the [Longsdorf]s are on speaking terms. It would seem that Ms Granger and Mr G are on better speaking terms than
Ms Granger is with the [Longsdorf]s, and if there is to be any adjustment, then that needs to be negotiated with respect to [Y] and [Z].I am not making orders with respect to them, nor do I propose to temper what I consider to be the best and most appropriate arrangements for [X], irrespective of whether either parent agrees with me based upon practical ramifications.
On the basis that there will be some sharing of time, however, I do propose to try as far as possible to have those periods overlap, at least in relation to as many changeovers as can be achieved, and so that people are not put to considerable expense and difficulty driving around. And in my mind, more importantly, [X] is not being transported backwards and forwards continuously to accommodate changeovers for her brother and sister.
I am also satisfied in relation to avoiding future proceedings, that the orders I am going to make have a real potential when [X] commences school to become impractical. It is certainly open to the parents to negotiate fresh arrangements. And indeed on the basis of the number of changes that have occurred, particularly in Ms Granger’s life over the last two years, I am not to know what the arrangements will be in Ms Granger’s life come this little girl starting school in either 2012 or 2013. But balancing what I think is the best arrangement for now versus what the parents may have to negotiate, or if they cannot negotiate, bring back to court, I am satisfied that I should make orders that will at least last for the best part of 2 years, and if it requires further review, regrettably, sobeit.
I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 1 June 2011
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