Matlock and Burrell and Ors

[2017] FamCA 706

FAMILY COURT OF AUSTRALIA

MATLOCK & BURRELL AND ORS [2017] FamCA 706

FAMILY LAW – CHILDREN – best interests – where the father has not participated in the trial – where orders were made in the absence of the father – where the paternal grandmother seeks orders that the child spend time with her – order that there be no order for the child to spend time or communicate with the father or paternal grandmother – order that in December each year the maternal grandmother shall cause to be sent to the paternal grandmother a brief communication containing two recent photographs of the child pertaining her educational progress and her state of emotional and physical health.

Family Law Act 1975 (Cth)

APPLICANT: Ms Matlock

RESPONDENT: Mr Burrell

SECOND RESPONDENT: Ms Burrell

THIRD RESPONDENT: Ms B Matlock

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: BRC 1515 of 2011

DATE DELIVERED: 24 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 21, 22, 23 and 24 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whitchurch

SOLICITOR FOR THE APPLICANT: Samantha Ward Pty

THE RESPONDENT: No Appearance

THE 2^ND RESPONDENT:

In Person

COUNSEL FOR THE 3^RD RESPONDENT

SOLICITOR FOR THE 3^RD RESPONDENT :

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Brennan
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid

Ms Swart

Roger O’Halloran & Co

Ms Brennan

Victoria Legal Aid

Orders

By Consent it is Ordered

1. That the interim orders made the 28th October 2015 in paragraphs 5-14 be discharged.

2. That there be no orders for the child C born … 2009 to spend time with or communicate with the first named respondent father and the second named respondent paternal grandmother.

3. That in December each year commencing in December 2017 the third named respondent maternal grandmother shall cause to be sent to the second respondent a brief communication containing two recent photographs of the child the child and information relating to her educational progress and her state of emotional and physical health.

4. That the second respondent paternal grandmother notify the solicitors for the third named respondent maternal grandmother Roger O’Halloran & Co in writing in the event of  any change of address for the purpose of forwarding the brief communication referred to in paragraph 3 herein.

5. That otherwise all extant applications be dismissed.

6. The order for the appointment of the Independent Children’s Lawyer be discharged.

7. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

The Court notes

1. That the orders made in paragraphs 2, 3 and 4 of the orders made the 28th October 2015 shall continue in full force and effect.

2. The parties acknowledge the evidence of Ms F Psychologist and the Family Report writer Ms. G was that any further attempts to re-introduce the child the child to the paternal grandmother should not occur until the child is older and has greater emotional maturity.

3. The parties resolved the proceedings by consent at the conclusion of evidence.     

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matlock & Burrell and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: BRC 1515 of 2011

Ms Matlock

Applicant

And

Mr Burrell

Respondent

And

Ms Burrell
Second Respondent

And

Ms B Matlock
Third Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Today is the fourth day of the final hearing before me, in relation to the future parenting arrangements in respect of the child C (“the child”), who was born in 2009 and is aged eight years.  The proceedings are between the applicant mother, Ms Matlock; the respondent father, Mr Burrell (although he has not taken any part in the trial before me this week); the second respondent, Ms Burrell, who is the paternal grandmother; and the third respondent, Ms B Matlock, who is the maternal grandmother.  The issue before the Court is what time, if any, the child should spend with her paternal family.

BACKGROUND

1. The background to the dispute is as follows.  C is the child of a relationship between the applicant and the respondent which commenced in 2008 with separation occurring in about December 2010.  It was a relationship of approximately two years duration.  At that time, all parties were living in Queensland. 

2. There are a raft of allegations as to violent and inappropriate conduct said to have been visited upon the mother by the father during the course of that relationship. There are allegations that the father was both verbally and physically abusive.  There are allegations that such conduct by the father occurred with either the support or encouragement of the paternal grandmother.  I note that the paternal grandmother denies that allegation.

3. There is a history of domestic violence orders obtained by the mother, and the maternal grandmother, against the father.  It is common ground that the mother was hospitalised in 2010 as a result of injuries which she says were sustained at the hands of the father.  She sustained serious injuries. 

4. There appears to be no dispute between the parties that during the first couple of years of the child’s life the paternal grandmother was actively involved in the child’s care.  She supported and protected the child during that period, the evidence being that because of the violence and drug abuse within the household of the child’s parents that the paternal grandmother was the protector and carer of the child for periods of time.

5. The paternal grandmother’s evidence was that she never saw the father perpetrate violence against the mother.  Nonetheless, she ultimately conceded that, but for her intervention, the child was at significant risk in her parents’ care during that period. 

6. Following the separation between the mother and the father, the child remained in the paternal grandmother’s care.  It is clear that there is a dispute about the circumstances of that arrangement.  Ultimately, the mother filed an application in the Family Court in Brisbane seeking a recovery order.  An order was made for the child to be returned to the mother’s care in March 2011.

7. In April 2011, orders were made on an interim basis for the child to live with the mother, and there were orders for the child to spend time with both the father and the paternal grandmother. 

8. In 2012, the mother, maternal grandmother and the child relocated from Queensland to H Town, in Victoria.  In 2012, the mother suffered a significant deterioration in her health.  She was admitted to a psychiatric unit, and there have been ongoing health issues for her since that time.  She has had significant periods of hospitalisation as a result of mental health issues through the course of these proceedings; that is, between 2012 to date.

9. In 2013 the proceedings were transferred from the Brisbane registry of this Court to this registry.  The matter was placed in my docket in 2014, with the view that the matter should have been concluded in that year. 

10. Following the matter’s allocation to my docket, the father was incarcerated.  Although he had previously participated in the proceedings, due to his incarceration he ceased communication with this Court, with the lawyers involved in the proceedings on behalf of the parties, and indeed there seemed to be very little communication between he and the paternal grandmother.  That caused a significant delay in the progress of this matter.  It ultimately came on for a final hearing before me in October 2015.

11. That trial proceeded for three days.  There was evidence from the mother, the applicant in the proceedings, and also the maternal grandmother.  The questions of with whom the child should live and who should be responsible for exercising parental responsibility were issues that were agreed upon between the parties during the course of that hearing.

12. On 28 October 2015 I made final orders with respect to the allocation of parental responsibility and with whom the child should live.  Those orders provide that the child live with her maternal grandmother and mother, and that they together share equally parental responsibility.  They further provide that in the event that the mother resides independently of the maternal grandmother that the child live with the maternal grandmother, unless otherwise agreed between the mother and the maternal grandmother. 

13. At the conclusion of those proceedings, I also made interim orders to enable attempts to reintroduce the child to the paternal grandmother, there having been an interruption of that relationship since the child’s relocation to Victoria in 2012.  That reintroduction was to occur with the support of Ms F, a psychologist who was to engage in therapeutic counselling to assist the parties and to support the child’s reintroduction with the paternal family.

14. Those orders also made provision for supervised time to occur at the D Contact Centre on four occasions per year.  Although not all of those orders were fulfilled, it is clear from the evidence that I have heard this week that there was engagement with Ms F.  She has provided ongoing counselling support for the child.  She also met with the paternal grandmother, and there was an attempt by her to facilitate a reintroduction between the child and the paternal grandmother in December 2015.

15. To say that that reintroduction was unsuccessful would be an understatement.  The evidence from Ms F as to what occurred during that reintroduction (to which I will refer later) was both upsetting and disturbing.  It is clear from the evidence of Ms F that the child is a little girl who carries with her heavy burdens.  The genesis for her difficulties is not clear, and I am not in a position to make any findings with respect to those matters.  Nonetheless, it is clear that the child has experienced significant trauma in her life, and that she requires support and care to enable her to fulfil her potential, and Ms F is assisting her in that process.

16. There was a further attempt at time at the D Contact Centre in September 2016.  On the face of the material produced, being a letter from the Contact Centre, which is Exhibit ICL1, it would seem that was a more positive experience for the child.  However, there were significant reservations expressed by the workers at that Contact Centre as to benefits for the child in pursuing attempts to reintroduce her to the paternal family; ultimately a further appointment which had been arranged did not proceed due to the child’s reluctance to spend time with her paternal grandmother.

THE HEARING

1. The hearing before me commenced on Monday, 21 August 2017.  At the commencement of the hearing, the father did not appear.  As a result, he was contacted by telephone to ascertain what his intentions were with respect to these proceedings.  The father indicated to the Court that he remained in Queensland, and that he had not travelled to Victoria for the purposes of this hearing.  Further, he confirmed that he had filed no material in the proceedings in compliance with my trial directions. 

2. The father informed the Court that he was suffering from depression and anxiety, that he had no legal representation and that he had no application to make to the Court.  The other parties to the proceeding, that is the mother, the maternal grandmother and the paternal grandmother all sought that the matter proceed in the father’s absence.  The father was invited to respond to that application and indicated that he had nothing to say.

3. Having regard to the long history of the proceedings, the fact that there had been a significant delay in the proceedings in order to provide the father with an opportunity to participate, that the father had been present when original trial directions were made, that he appeared by telephone when the matter was listed for final hearing, that he had filed no documents in compliance with my orders, and given the indications made by him during telephone communication with him on the first day of the hearing, I considered that it was appropriate that the matter proceed in his absence.  The father has taken no further part in the proceedings. 

4. I have, over the past three days, heard evidence from the maternal grandmother, the paternal grandmother, Ms F, and Ms G, who is the Family Consultant in the proceedings. 

5. The evidence of the maternal grandmother indicates that she is very heavily burdened by the history of the family.  She alleges that she has suffered considerably as a result of the domestic violence which she says occurred between the mother and the father.  She also says that she too has been subjected to that violence.  She says that she is extremely fearful of the paternal family and what they are capable of.  All of the evidence supports the view that she is a devoted grandmother and carer to the child.  She has ensured that the child has all of the supports necessary.  She has actively engaged with Ms F to support the child.

6. The child attends a private school.  The assessment of Ms F is that the school is an excellent environment that is attuned to the child’s needs and is providing for her educational needs and is also supporting her in her social and emotional development.  In addition to the provision of such schooling, the maternal grandmother described a range of extracurricular activities in which the child is engaged, which are assisting her in her development.  Activities such as tennis, music, art are pursuits in which the child has been engaged whilst in the maternal grandmother’s care, and by all reports she is thriving with that support.

7. The paternal grandmother also gave evidence.  It is clear that she has great love and devotion to the child.  Were that not the case, she would not be presenting to the Court and seeking orders as she has.  The paternal grandmother, in her evidence, is very much focused on the child’s history and the role that she played in the child’s early years, particularly when she was vulnerable in the care of her mother and father.  My impression of the paternal grandmother’s evidence was that she suffers an enormous conflict between her loyalty to her son and her desire to protect him, but also in her desire to have a relationship with the child.  The paternal grandmother’s evidence was that she had never seen her son commit acts of violence against the mother.  Nonetheless, I am satisfied that it is likely she was aware that violence was a feature of the relationship between the mother and the father and that the child was exposed to that.  She conceded as much when she gave evidence to the effect that she had cared for the child in order to protect her from that environment.

8. The evidence of Ms F as to her observations of the child’s reintroduction with the paternal grandmother, that reintroduction occurring on 15 December 2015, was compelling.  She described the fear that the child experienced when informed that she was to meet with the paternal grandmother.  She described the child as exhibiting symptoms akin to post-traumatic stress disorder.  She described the child placing four fingers in her mouth and dribbling uncontrollably, with tears pouring down her face. 

9. It is clear, from Ms F’s evidence, that this was also a distressing experience for the paternal grandmother, but the behaviour of the paternal grandmother was difficult to contain within that setting.  Ms F describes that she had to repeatedly ask the paternal grandmother to remain seated, that the paternal grandmother’s voice escalated during the meeting as she urged the child to remember her and the time that they had together when in Queensland. 

10. The opinion of Ms F was that there would be no benefit at this time to the child in continuing to persist to reintroduce the paternal grandmother to her.  The child has deep-seated difficulties.  Indeed, Ms F expressed the view that the child would benefit from a full psychiatric assessment to better guide the supports that she requires to fulfil her potential.  I accept that evidence. 

11. Ms F’s view that there should be no time between the child and the paternal grandmother is echoed by the Family Consultant, Ms G, who has prepared two detailed and comprehensive Family Reports in the course of these proceedings; the first of those reports on 9 October 2014, the second report on 24 February 2017.

12. Ms G also gave evidence during the course of the proceedings.  She too gave clear evidence as to the difficulties that the child faces.  She was clear in her recommendations that, at this time, it would be contrary to the child’s best interests for her to spend time with the paternal family.  Her impression of the paternal grandmother was that she was really self-focused and had poor insight as to the child’s needs.  It was her view that the better course would be for the paternal family to step back at this time, rather than press their applications.  She noted the history for the child, the difficulties that she has faced in a social context, sleep difficulties, night terrors and issues at school.  Those matters, to a large extent, have been relieved in the counselling sessions with Ms F, through play therapy.

13. Ms G expressed concern that there was the potential for a regression in the child’s behaviours if she were forced to spend time with the paternal family at this time.  Ms G’s view was that the priority at this time needs to be to create stability for the child.  That is, emotional and psychological stability.  She considered that those steps were necessary in order to ensure the health of her relationship with her primary caregivers.  I accept that evidence.

14. This morning, the parties were to provide their closing addresses.  The Independent Children’s Lawyer indicated to the Court that she would be seeking orders, the effect of which would be that the child spend no time with the father or the paternal grandmother.  Given that she had had no opportunity to discuss or inform the parties of her views prior to the commencement of Court today, I stood the matter down to enable counsel for the Independent Children’s Lawyer to inform the parties of the position taken by the Independent Children’s Lawyer at the conclusion of the evidence. 

15. The parties have had discussion this morning and they now present to me a minute of order, the effect of which will be:

    ·to provide a continuation of the child’s living arrangements;

    ·orders that the child spend no time with the father or the paternal grandmother; and

    ·that there be a requirement that the maternal grandmother provide to the paternal grandmother information about the child on an annual basis, in December each year, that information to include details of her educational, emotional and physical health, as well as two photographs.

16. That minute has been signed by all parties.

17. The paternal grandmother has had the orders read to her by the interpreter and she has confirmed to me that she has understood each of the orders sought and that she gives her consent to those orders.  It is a credit to the paternal grandmother that she has been able to give that consent.  It informs me that she has, difficult as it is, heard the evidence given by the experts, and has accepted the recommendations of those experts.  It shows the Court that, notwithstanding concerns expressed as to her insight up until now, she has been child-focused in making the concession that she spend no time with the child.

1. I am satisfied, having regard to the history of the matter and having regard to the evidence of the experts who have been engaged in this matter, that the orders, as contained in the minutes signed by the parties are appropriate and in the child’s best interests.  They protect her from psychological and emotional harm and give her the opportunity to have a settled life, without the spectre of Court proceedings and conflict ongoing.  There can be no doubt that these proceedings have been a significant pressure on each of the parties involved; the mother, the maternal grandmother and the paternal grandmother.  It has been stressful and difficult for each of the parties, but the burden that the child has carried has been far greater.  These orders will relieve her of that burden and enable her to live a life without the conflict.  They are orders that will give her the opportunity to fulfil her potential.

2. I therefore make orders in the terms of the minute that is signed by the parties.

   RECORDED:  NOT TRANSCRIBED

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 24 August 2017.

Associate: 

Date:  24 August 2017