Mortensen and Parker

[2008] FamCA 76

FAMILY COURT OF AUSTRALIA

MORTENSEN & PARKER AND ANOR [2008] FamCA 76

FAMILY LAW – CHILDREN – Application by maternal grandmother for time with 14 year old granddaughter who lives with non-relative pursuant to consent orders between carer and child’s mother – child’s strong views resisting any contact with grandmother – grandmother’s incapacity to provide for the needs of the child – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mrs Mortensen

RESPONDENT: Mrs Parker

2^nd RESPONDENT: Ms K Mortensen

INDEPENDENT CHILDREN’S LAWYER: Turner Whelan

FILE NUMBER: SYF 4662 of 2003

DATE DELIVERED: 15 February 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Moore J

HEARING DATES: 5 May, 4 September 2007, 4 & 5 February 2008

REPRESENTATION

THE APPLICANT MATERNAL

GRANDMOTHER:

Appeared on her own behalf

SOLICITOR FOR THE 1^ST RESPONDENT: Ms Karagiannis

THE 2^ND RESPONDENT MOTHER: Appeared on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Turner Whelan

Orders

1. The application of the applicant grandmother, Mrs Mortensen, is dismissed.

2. The applicant grandmother is restrained and an injunction is hereby granted restraining her from

   (i)contacting the child … (“the child”) born … June 1993 either directly or indirectly;

   (ii)      contacting or attending the school attended by the child;

   (iii)     contacting or attending upon any counsellor consulted by the child

   save for circumstances in which the child has elected to contact or communicate with the grandmother. 

3. The applicant grandmother is retrained from instituting further proceedings for parenting orders related to the child without the leave of a judge. 

4. The application of the Independent Children’s Lawyer for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Mortensen & Parker and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4662 of 2003

MRS MORTENSEN

Applicant

And

MRS PARKER

First Respondent

MS K MORTENSEN

Second Respondent

REASONS FOR JUDGMENT

Proceedings

1. To be determined are the future arrangements for a child, a daughter, who is presently aged 14 years, having been born in June 1993. 

Parties

1. The applicant is her maternal grandmother, Mrs Mortensen (58), who has represented herself in the proceedings.  She presently lives in Melbourne but is intending to move to live in the … area of Sydney in the next couple of weeks.  She has had no face to face contact with the child since the end of 2001 but more recently has sent letters to her and she has communicated with the child’s school and her counsellor. 

2. The grandmother instituted these proceedings by an application filed in December 2006 although the orders she now seeks are to be found in a handwritten document [exhibit 3] tendered on the first day of the hearing.  Her proposals for contact with the child are intended to lead to the child’s residence with her in due course and, in the meantime, she proposes contact at her home to be established in Sydney for one weekend per month, one week during the school holidays except during the Christmas holidays when it would be two weeks, fortnightly telephone contact, and contact at other times as agreed. 

3. One respondent is Mrs Parker (74).  She is unrelated to the child who has been in her full time care since 2002 in circumstances to be outlined shortly at a time when she was living in Melbourne.  In 2003 she moved with the child to Sydney and the following year she instituted proceedings in the Local Court at Burwood seeking orders that see the child continue to live with her.  Those proceedings, between Mrs Parker and the child’s mother, Ms K Mortensen, concluded with consent orders in November 2005 which did continue those arrangements.  Their terms will be set out shortly.  The grandmother was not a party to those proceedings nor involved in them.  She and the mother were estranged for several years and did not re-establish their relationship until mid 2005 when, according to the grandmother, it was too late to take any part.  Mrs Parker lives with the child at E in a 2 bedroom flat.  Her financial support comes from the aged pension and allowances related to her care of the child.  She has several adult children.  She first met the child through her daughter, S, who was at the time in a gay relationship with the mother. 

4. Mrs Parker seeks the dismissal of the grandmother’s application.  She wishes to maintain the November 2005 orders which would govern the arrangements for the child’s contact with her mother and brothers.  She also supports the additional orders now sought by the Independent Children’s Lawyer [ICL]. 

5. The child’s mother, Ms K Mortensen (34), is also a respondent.  Being profoundly hearing impaired, she represented herself with the assistance of Auslan interpreters.  She lives in Melbourne, apparently with the two boys in her care, and perhaps with a current partner if that can be inferred from a passing remark she made in closing.  The child was born during a two year relationship she had with Mr L from whom she separated in 1994.  He appears to have had little or no involvement in the child’s life from that time and his current whereabouts are unknown.  The mother has two other children from a later relationship: M (11 - dob. …/7/96) and N (9 - dob. …/9/98).  The relationship with their father, Mr H, ended in 1999.  It is said the boys have been in the care of their father for a time but have now returned to live with their mother.  Over the past few years there has been little contact between the child and her mother and brothers. 

6. The mother did not file a formal response or an affidavit but she has actively participated in the proceedings throughout.  She does not agree with the orders her mother seeks.  Having taken into account all relevant considerations, and out of respect for the child’s views, she agrees to maintain with some minor modification the arrangements reflected in the November 2005 orders and therefore does not oppose the child continuing to live with Mrs Parker.  While those orders foreshadow the child going to Melbourne for visits at times agreed, the mother has become aware of the child’s anxiety about which she will alleviate by visits occurring only in Sydney until the child is comfortable with other arrangements.  She does not want her mother involved on any of those occasions.  About a year after the child came into her care the child disclosed to Mrs Parker that she had been sexually abused while in her mother’s care, that she told her mother about it, but her mother did not believe her.  It is said she remains upset and angry with her mother about this.  Made aware of the child’s feelings, the mother is willing to be involved in counselling with her about it – she says she empathises because it mirrors her own experience when she was a child – and Mrs Parker agrees to facilitate it if the child agrees. 

7. The orders sought by the ICL are to be found in exhibit 11.  The continuation of the November 2005 orders is not expressly stated, but that is the intent.  The additional orders sought are to prohibit the grandmother from directly or indirectly contacting the child or her school or any counsellor whom she consults.  The ICL also supports an order that no further proceedings about the child’s arrangements be instituted by the grandmother without the leave of a judge. 

Evidence

1. The evidence has come from the parties, from a variety of documents tendered in the course of the hearing, and from a Family Consultant [‘the reporter’] who prepared a report which she elaborated upon at the hearing. 

2. Much of the grandmother’s affidavit would be inadmissible if the rules of evidence were applied to it, but it has all been received and read.  Yet it attracts little or no weight because much of it is speculative, irrelevant, gratuitous and offensive in content; it is peppered with commentary about behaviour and morals which are presented as authoritative pronouncements drawn from psychology and sociology but unsupported by any apparent qualifications in those fields; opinions are advanced that would not even qualify as lay opinion; and there are statements rolled up with inbuilt assumptions which have no evidentiary support from elsewhere.  That said, the grandmother’s case is probably best relayed through her own words rather than by summary and therefore various passages from her material will be cited to demonstrate some of the points she wishes to make. 

3. While there were no submissions about it in closing, it is apparent the grandmother challenges the soundness of the assessments and opinions advanced by the reporter and that should be addressed. 

4. The reporter made the decision for various reasons not to interview or observe the child with the grandmother.  In part the decision related to the child’s views about it.  She told the reporter it would be ‘too stressful’ and ‘too soon’; she had expressed a clear and consistent attitude about not wanting to see her grandmother for some time; she identified stress as impacting on her physically, causing eczema outbreaks, she experiences her grandmother’s application as stressful and an interview with her would be quite stressful.  She has expressed consistent views over a long time to her counsellor who was also of the view that the experience of an interview with her grandmother would unsettle the child for some time.  Another consideration taken into account was the sense the child gave of an unhappy history with her grandmother in her discussions with the reporter.  Added to that, the decision was reinforced by the reporter’s assessment of the grandmother’s presentation and her opinion that the encounter would not be a positive experience for the child.  As I find, these considerations are appropriately child focussed and soundly based. 

5. Looking to her evidence as a whole, in my opinion the reporter undertook the task allotted to her in a competent and professional manner, she supported her opinions by reference to information available to her or assessments she made within the field of her expertise and experience, and she maintained an objective and child focussed perspective on matters she was obliged to discuss.  Her evidence is accepted as reliable and is consistent with the whole thrust of the evidence from all other sources. 

6. As for Mrs Parker’s evidence, the grandmother’s criticisms are many but perhaps it is sufficient summary to say she contends Mrs Parker to be duplicit and manipulative and capable of hoodwinking others about her motives and the true facts; hence, her evidence is to be seen in that light.  Yet there is nothing to support this and it is rejected.  Mrs Parker’s evidence has not been undermined from any quarter and it is accepted as generally reliable. 

Approach

1. The orders to be made fall for consideration under Part VII of the Family Law Act 1976.  The best interests of the child are the paramount consideration and best interests are to be determined by reference to such of the primary and additional considerations set out in s 60CC as are relevant to the facts.  They will be identified and the evidence evaluated against them shortly. 

Background

1. It has already been said that the child is steadfastly opposed to having any contact with her grandmother – she nominates the ages of 16 – 18 as a time she might be ready to reconsider her position – and she wishes to remain living with Mrs Parker whom she calls ‘Nan’.  She is aware her mother respects her position and her attitude towards contact with her mother is less implacable but her continued resistance is bound up in part with feelings about her mother’s unsupportive response to the sexual abuse disclosure some years ago.  The child continues to want to see her brothers. 

2. This year the child is in year 9 at High School and she is reported as having a number of interests outside her school activities.  The assessments of her progress at school, more particularly according to the records for 2006 and 2007, are varied but indicate she is not particularly strong academically though there have been improvements.  Over time there have been issues at school and at home and she has been supported with counselling at her school from 2004 and later through the local area health service.  The initial referral was about behaviour management and Mrs Parker was also involved.  The grandmother brings a critical interpretation to the records produced by the school and the area health service which will be outlined shortly, but for now it can be said there is no support for it on any objective analysis of the records and they raise no enduring concern for the child’s well-being. 

3. It comes as no surprise that the child might have experienced difficulties from the time she came into Mrs Parker’s care at around 9 years of age.  Her earlier history appears to have involved an unsettled and troubled environment.  For example, if the grandmother’s evidence is correct, her parents separated when she was 2 years of age and that relationship and separation was fraught with serious issues of substance abuse and violence by the father.  Again relying on the grandmother’s evidence, her mother’s next relationship was also problematic and the separation traumatic.  If some independent general indication of the children’s circumstances around the time of this separation is necessary, it can be found in a letter of 18 September 1999 from the Victorian Department of Human Services to the mother.  The letter refers to a protective investigation about all three children, an assessment was made of moderate risk to their wellbeing, it notes the mother’s report of the children’s exposure to domestic violence, it says concerns about the lack of appropriate supervision for the children had been substantiated, and the need for support identified.  The Department proposed to remain involved to ensure the support was received. 

4. From there the Department’s involvement is not clear but the following year, 2000, the child spent two extended periods of time living with her grandmother before her return to her mother.  The child retains little memory of her experience during these times but she did refer to being smacked by her grandmother in her discussion with the reporter about it.  The grandmother took this up in her affidavit and gave this account of the smacking:

   ‘Eg point 18 which say’s [the child] remembers a weekend with me where she was smacked. There was no such weekend.  [The child] was placed with me by DHS Melbourne for most of 2000 in two stages of several months each.  She had her own room next to a bathroom that included a toilet.  She was able to reach door handles.  However in the first of these stays, instead of using the toilet she chose to wet on the floor.  When asked why, she replied because she wanted to.  For that she had her bottom smacked with an open hand.  We progressed well from then on.’

5. In late 2001 the mother began her relationship with Mrs Parker’s daughter, S.  Again, if the grandmother’s evidence is correct, that relationship was also problematic and resulted in an intervention order for the protection of the mother and the children when they separated.  Before that, in 2002, the child was placed in the care of Mrs Parker who had moved to Melbourne from Sydney.  Initially the placement was for a short time but it was later extended. 

6. The grandmother is highly critical of Mrs Parker for this turn of events.  On her view of it, Mrs Parker manipulated the mother into allowing the child to live with her, motivated by the financial advantage that would flow to her from receipt of government benefits, a financial bonanza that has continued to motivate her to retain the child’s care over the many years since.  Mrs Parker was assisted in this goal by her daughter S’s manipulative and controlling behaviour, overbearing and isolating the mother while they were together.  Whatever influence S might have exerted, if any, cannot be the subject of findings here but all other indications point to it being a consensual arrangement at the time. 

7. Mrs Parker then moved to Sydney in 2003 with the child, and there is contention about this development, at least from the perspective of the grandmother who contends the mother did not consent to a permanent move and the trip to Sydney was to be for a holiday.  She maintains Mrs Parker misled the mother about her plans and Mrs Parker’s daughters were instrumental in a ruse to thwart the mother from taking the child back to Melbourne.  She sees the development as Mrs Parker having ‘misappropriated’ the child and she has pursued this wrongdoing in various directions over time.  She expresses her point of view this way:

   ‘For one mother to steal another mother's child by stealth or whatever means is much worse, and also illegal in Australia.  I am surprised our taxpayer funded courts so wholeheartedly supported it!  This does not reflect the community values our courts are charged to uphold.’  

   ‘It is illegal in Australia to abscond with another family's child even though the parent has a disability and would have difficulty in defending themselves against such an act through the legal systems.  This legality seems to have been totally ignored by this former New Zealand family.’

8. If the issue about what was intended by the move was agitated in the earlier proceedings I could not say, but the proceedings Mrs Parker instituted at the Local Court the following year suggests the child’s arrangements were not settled.  After those proceedings made their way to this court, an independent children’s lawyer was appointed, and all parties consented to the arrangements set out in the November 2005 orders which has to be seen as overtaking the issue.  The orders are in these terms:

   ‘1.      All previous orders are discharged.

   2. The child […] born […] June 1993 ("[the child]") shall reside with the applicant.

   3. The applicant shall have sole responsibility for decisions about the long term care, welfare and development of [the child], but shall use her best endeavours to consult the respondent about such decisions.

   4. The applicant shall do all things reasonably necessary on her part to facilitate contact between [the child] and the respondent and between [the child] and her siblings [N] and [M] including as follows:

   (a) by way of Short Message Service to the respondent's mobile telephone number;

   (b)      by letter;

   (c) by e-mail in the event that the parties have access to computerized communication facilities;

   (d)at such times as the respondent is in Sydney including overnight contact at the home of the applicant if accommodation is available there for the respondent, provided that the respondent gives not less than 14 days notice to the applicant and [the child] of her wish to have such contact and that [the child] agrees to have such contact;

   (e)In Melbourne for up to half of all school term holidays and up to 14 days in each December-January school holiday period, all such contact to be from lOam to 8pm, and provided that:

   (i)       [The child] agrees to have such contact;

   (ii) [The child] shall not stay overnight with the respondent and shall always be in the care of the applicant overnight;

   (iii) The respondent is to advise applicant of the dates when such contact can commence and conclude not less than 2 calendar months prior;

   (iv) The respondent shall provide to the applicant by way of Australian Money Order or bank cheque an amount equivalent to one half of the lowest available airfare for [the child] to travel to Melbourne and return to Sydney;

   (v) The applicant shall deliver [the child] to and collect her from the respondent's residence for the purposes of all contact pursuant to this Order.

   5.The applicant shall, upon receiving payment from the respondent pursuant to Orders 4 (e) (iv) above obtain return air tickets for [the child] and make all other arrangements necessary for [the child’s] ground transport and accommodation in Melbourne.

   6.The parties shall immediately advise each other in writing of any change of address or telephone number.

   7.The applicant shall within one calendar month of the date of these Orders do all things necessary for [the child] to obtain an address for Hotmail.

   8.Neither party shall denigrate the other or permit any other person to do so in the presence or within the hearing of [the child].

   9.Neither party shall verbally or physically assault or threaten [the child] or permit any other person to do so.

   10.Neither party shall permit [the child] to be brought into contact with [S] unless such contact is supervised by the applicant personally.

   11.The applicant shall advise any school attended by [the child] from time to time that the respondent may receive copies of school reports and information about the ordering of school photographs and such other information as would ordinarily be provided to parents, provided that any cost associated with the provision of such information shall be paid  by the respondent.

   12. In the event that [the child] suffers accident or illness requiring admission to hospital, the party having the care of [the child] at that time shall as soon as is reasonably practicable inform the other party and give all permission necessary for the other party to obtain information about [the child’s] condition and treatment.’

1. While the grandmother was not involved in the proceedings – she and the mother were estranged for several years until mid-2005 – she maintains the mother did not give real consent to the orders.  Rather, advantage was taken of her hearing impairment and the ‘effect this had on her credibility in the legal system especially as the matter was in NSW and [the mother] lived in Victoria’; the court did not question Mrs Parker’s ‘lies’ about the mother but simply accepted what she said as true; and the mother was prevented from defending herself and her daughter’s rights. By the time she and the mother’s estrangement ended it was too late for the grandmother to become involved; besides, lawyers were ‘colluding towards an outcome’ and she offers this commentary, referable to the independent children’s lawyer described as ‘obviously not of western culture descent and one wonders whether she was brought up to Australian values.  Her reaction when I had previously told her that [the child] was the result of a rape was that I did not really want a rebellious teen in my care.  Most Australian families would understand that our families care about the well being and safety of our children regardless.  The comment seemed to me strange at the time.’

2. None of this has any support including from the mother whose consent can be taken to have been given freely. 

3. Following the consent orders the grandmother did become involved and put her efforts into ‘retrieving’ the child and securing her return to her biological family, a matter of central importance to the grandmother, who feels her efforts have been ‘hampered by most Sydney systems people who have generally sought to foil us.’ ‘Systems people’ recurs in her case although it is not explained.  In any event, she maintains her attempts to speak by telephone to the child were rebuffed by Mrs Parker, described as rude and aggressive, and she has contacted and sought information from personnel at the child’s school and her counsellor.  She came to the view that the best way to ‘retrieve’ the child would be to become an applicant herself and so she instituted the current proceedings in December 2006. 

4. These and other developments can be conveniently discussed by reference to the various considerations relevant to an evaluation of the child’s best interests, both in the short and longer term. 

Best interests

primary considerations

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. This is a consideration of some importance in this case and has several strands to be taken in turn. 

2. First, the grandmother alleges the child is at risk of harm in Mrs Parker’s care.  She appears to be convinced she needs to be protected and says she is motivated by a strong desire to provide that protection, so too with others in her family, and assist her achieve her full potential with all the resources at the grandmother’s disposal, including her connections with the ‘media and senior politicians’.  The source of harm is said to come from several directions. 

3. There is her view that the child has been subjected to Mrs Parker’s violent temper.  According to the grandmother entries in the records of the counsellors, including admissions made by Mrs Parker, show her presentation to the world at large to be a masquerade and the child’s description of her to the reporter as ‘gentle’ to be the result of malign influence.  She adds:

   ‘While there may be a 'serious, gentle voice' subliminals can be a factor in such situations where the required response is known by both parties or consequences will follow.  From what I have observed of the age and experience of the officials in this matter there is no need to explain this in further detail.  They would be well aware.’

4. She has sought assistance about the child’s welfare from the Department of Community Services via their helpline as well as the Premier’s office but her efforts to protect her have been ignored by the Department and by the court. 

5. In the records of the area health service there are entries reflecting anger and frustration by Mrs Parker, discipline by use of physical means, and her concern about the impact of this on the child [see exhibit 10].  Indeed, the very purpose of the counselling was to address the child’s behavioural issues and to develop strategies to assist Mrs Parker to cope with them without outbursts.  The child’s counsellor confirmed to the reporter that there had been counselling about anger management but she related no concerns about the way Mrs Parker was managing and there never being any fears about the child’s safety.  The report of October 2004 by Mr U, psychologist with the health service at an earlier time, set out the presenting problems and an outline of the background before recording assessments, the intervention undertaken, the progress to that time, and the plan to continue providing individual therapy for the child and ongoing supportive counselling for Mrs Parker. 

6. That the child did have problems and Mrs Parker did have difficulty coping comes as no surprise in all the circumstances.  That Mrs Parker sought support and assistance for the child and for her herself is an indicator of her willingness to constructively address issues and her recognition of scope for self-improvement in the child’s interests.  There is no indication anger management is an ongoing issue and I am satisfied there is no risk of harm to the child as a result. 

7. The grandmother identifies another source of potential harm as the contact the child has with Mrs Parker’s daughter whom the grandmother maintains has Hepatitis C or HIV/AIDS contracted from her ‘former drug involved husband’ and the alleged drug and alcohol habits of members of Mrs Parker’s family, more particularly her children.  These are sweeping and unsubstantiated statements that find no footing in the evidence at all.  If such health issues were the fact the potential risk of harm would arise, but there is every reason to see Mrs Parker as capable of acting either of her own volition or acting upon professional advice to ensure that the child is protected from whatever the risks might be.  The reporter stood by her recommendations when the issue was raised by her, correctly in my view, and nor was there any contrary submission from counsel for the ICL on the topic. 

8. On the contrary, the ICL submits that the child would be at risk of harm from which she should be protected were she to have contact with her grandmother and this is advanced as one reason for an order for no contact and other orders prohibiting the grandmother from directly or indirectly contacting the child, her school or her counsellor, an outcome supported by the reporter’s opinion.  Being mostly related to the child’s reactions to communications from her grandmother and her memory of her experiences of time spent with her some years ago, I see the matters raised as more conveniently discussed amongst the considerations to follow. 

additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child’s clear and consistent view expressed over a long time has been not to have any contact with her grandmother, nominating the ages of 16 or 18 as the time she might review that decision.  Putting aside the many times she has expressed this view to Mrs Parker, she was clear in her attitude about it in her discussion with the reporter.  She is upset by her grandmother’s efforts to have her visit and then live with her.  The child does not experience her grandmother as interested in her or what she thinks or wants, she has not seen her for years, and the child says she ‘hardly knows her’.  Her attitude to her grandmother’s application: ‘I think it's stupid, she had years to get to know me and now it's too quick and I don't know her well.’  She told the reporter she is fearful of being taken away and not returned to Mrs Parker and the prospect of having to go to Melbourne heightens this fear.  She has expressed the same view about not seeing her mother until she is older when she may be able to ask her why things had happened to her and why her mother had not believed her.  She is aware her mother respects her view, unlike her grandmother.  All of this is consistent with the views the child has expressed to her counsellor, Ms M. 

2. The mother made it clear at the hearing that she respects her daughter’s wishes and, as already noted, she does not seek any order inconsistent with them.  As also already noted, she hopes she will be able to see the child according to the November 2005 arrangements and wishes to be involved with her in counselling to repair their relationship and re-engage with her daughter.  There are discussions currently going on between her and Mrs Parker about this. 

3. However, the grandmother sees what is said of the child’s views in quite a different light.  She regards them as an echo of Mrs Parker’s wishes and the result of her influence on the child, motivated by her own self-interest; for example, the grandmother says Mrs Parker would lose money each fortnight if the child returned to her own family and ‘would have to downsize her standard of living’.  She adds:

   ‘However it is not normally considered appropriate in Australia for this to be a reason to help oneself to some vulnerable person's child in order to obtain Centrelink benefits such a person would not otherwise have access to.  It is even less appropriate for systems people paid from the public purse to uphold community values, standards and principles to aid and abet such an activity.’

4. She says that when her government benefits go, Mrs Parker will have to find ‘a younger protégé in order to continue the standard of living to which she has become accustomed.’  As for the suggestion that the child will reconsider her decision when she is 16 or 18 years of age, the grandmother links that age to the expiration of Mrs Parker’s entitlement to government benefits.  Apart from considerations related to Mrs Parker’s finances, the grandmother maintains it would be more beneficial to the child to have contact with her before that age and contact should be introduced now because her ‘negative attitude is holding back her growth’.  In any event, she questions the weight to be given to the child’s views given the influence of Mrs Parker and that the child has been assessed by the reporter as less mature than her peers. 

5. It will be necessary shortly to raise other criticisms of Mrs Parker and her supposedly malign influence and motivations and it will suffice merely to say now that there is not the slightest foundation for these views or remarks. 

6. There is the question, however, of the weight to be given to the child’s views at the age of 14 ½ years and the best source of evaluating that is the evidence of the reporter on the topic.  In her opinion, while the child is less mature than most teenagers of her age, she clearly understands what is being proposed, her choice has been clear and consistent, and her position is a considered one.  Furthermore, any child would want to please the person to whom they are closely attached, as the child is to Mrs Parker, but the child’s attitude does not come from a desire to placate or please Mrs Parker.  Her views are her own, genuinely held, and strongly felt.  The child’s counsellor has the same opinion; namely, her views are not a distorted or her needs suppressed by the influence of Mrs Parker which is described as the same as that of any parental figure. 

7. This opinion can be regarded as reliable and well founded and therefore I reject as unsubstantiated and unwarranted any suggestion of overbearing or inappropriate influence by Mrs Parker to bring about the child’s attitude.  As I find, at her age and given their clarity and strength, her views attract considerable weight. 

(b)the nature of the relationship of the child with…parents….and others including any grandparent or other relative….

1. It is clear that the child has a close and loving relationship with Mrs Parker with whom she has lived now for almost 6 years.  This does not come only from Mrs Parker’s evidence of things the child has said to her.  It also comes from the child who spoke to the reporter positively and spontaneously about her life in Sydney as part of Mrs Parker’s family and with Mrs Parker whom she calls ‘Nan’.  This passage form the Family Report is a reflection of the child’s feelings:

   ‘When asked what helped her to feel better when she was upset or worried about something, [the child] replied "Nanny", and when asked what "Nanny" did to make her feel better she said she gives me "cuddles" and uses a "calm voice".’

2. The child is described as feeling secure and nurtured by Mrs Parker and that is accepted as a fitting description to their relationship. 

3. The child’s relationship with her mother is problematic. A probable contributing factor is the child’s experiences while in her mother’s care some years ago and the letter from the Department in 1999 gives a glimpse into some of the difficulties of those times.  A more certain contributor is her mother’s response to her disclosure of abuse, apparent from the hurt and angry feelings the child not unnaturally harbours still about it.  The child described to the reporter her life before she went to live with Mrs Parker as a ‘very bad time’ while living with her mother and that ‘things happened and she, (her mother), didn't believe me, that's the worst thing a mother could do.’  Another contributor is likely to be the relatively little communication and contact from her mother over the years, the child reporting that earlier on many of her letters to her mother and brothers were not answered.  One result is that relationships between the child and her brothers have fallen to the wayside. 

4. What the future holds cannot be foreseen, but there are positive indicators pointing to the prospect of re-engagement and repair of relationships.  Provided sensitivity and commitment to that are retained into the longer term, there would be a clear benefit to the child from being able to relinquish the burden of the hurt she currently feels and from having intact relationships with her family rather than being estranged.  This would be a significant development for her, if it can be achieved, as she moves towards independence and makes decisions as an adult about other relationships and wider life choices. 

5. To the extent it can be said the child currently has a relationship with her grandmother, it can only be described as negative.  The evidence establishes unequivocally that she experiences her grandmother’s efforts through these proceedings as disrespectful of her wishes and unmindful of her needs and letters denigrating her ‘Nan’ have upset her.  She related to the reporter having no memory of the things her grandmother had tried to remind her of, she does recall the smacking, and she feels acutely the potential of loss were she to be removed from her present circumstances. 

6. But the grandmother sees this as having been denied to her.  She urges the immediate introduction of face to face contact and her move to Sydney in the next few weeks is designed to facilitate that occurring and will, in her view, move things in the direction she proposes for the longer term.  She appears convinced that if contact were put in place the child would decide to embrace her biological family and her relationship with Mrs Parker would ‘wane naturally’ and the child will come to relate to her ‘at her own pace and in her own way’.  As the grandmother sees it and expresses it in her affidavit, the child’s re-bonding with her biological family, who present no risk of harm, would not be in the interests of Mrs Parker.  If the child wanted to continue some contact with the Parker family the grandmother would facilitate it and she would be civil to Mrs Parker when necessary.  However ‘once reality sets in to [the child’s] conscious thinking, she may decide of her own volition that she does not belong with them.’

7. It is very likely, however, that the grandmother’s confidence in a turnaround of this kind is misplaced.  The likelihood of it is a function of the grandmother’s capacity to appreciate the child’s needs and the ability to provide for them in a sensitive and respectful way and, regrettably, the evidence gives no cause for confidence in that. 

(e)the practical difficulty and expense of a child spending time with and communicating with a parent….

1. The implementation of the agreement between the mother and Mrs Parker will present some practical problems given the distance involved and the limited funds available for travel.  The difficulties and expense might be alleviated to some extent by a fresh commitment to communications by letter or email if it is available and the like.  Future agreed visits will very likely be facilitated by Mrs Parker to the extent she is able because she has done so in the past.  The child told the reporter that on a prior visit there had been no difficulties between her mother and her Nan. 

(c)the willingness and ability ……….to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. Despite the terms of the November 2005 orders, there has been a failure to maintain regular contact between the child and her mother and brothers.  The reasons for that are not particularly apparent and it would serve no real purpose to delve into possibilities.  That said, it seems likely the mother has had other pressures and responsibilities these past few years and so advantage has not been taken of the opportunities available through the orders, but renewed commitment may see a settled pattern of communication not only from her but from the boys who ought to be encouraged in that direction, as well as visits when they can be afforded. 

2. The grandmother, on the other hand, has a different explanation for this absence of her family.  As she puts it, ‘[the child] has been left thinking they had deserted her’ while they were simply ‘battling against the obstacles of the system’ whose ‘approach of not sharing information with the child has facilitated her current feelings of desertion.’  She tried to speak to the child by telephone but Mrs Parker was ‘domineering, rude and aggressive’ and she resorted to calling the child at her counsellor’s rooms.  She had concerns her letters to the child were being withheld by Mrs Parker and so she took up the counsellor’s suggestion that she write to the child there.  As it will be necessary to note shortly, however, the child has been distressed and upset by her letters. 

3. Before leaving the topic it ought to be said there is no support for any suggestion that Mrs Parker prohibits or inhibits communications the child wishes to have.  On the contrary, it can be concluded from what the child says of it and from records produced that Mrs Parker has encouraged and does support communications and contact that is consistent with the child’s wishes and in the face of the child’s resistance to it she has encouraged her to write in a respectful way to her grandmother. 

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(f)       the capacity of (i) …the child’s parents; and (ii) any other person (including any grandparent…) to provide for the needs of the child, including emotional and intellectual needs

1. It will be wholly apparent from what has already been said that a core issue is the capacity of the adults involved to provide for this child’s needs. 

2. Not a lot needs to be said of the mother’s capacity since there is no dispute between her and Mrs Parker about the future arrangements and nor does the grandmother’s application seek any order directly involving the mother.  Clearly there were serious shortcomings in her ability to provide for the child’s needs at an earlier time and they have continued since the child has been in Mrs Parker’s care.  Having said that, it is recognised that the mother now demonstrates a sensitivity and insight into her daughter’s position, she is respectful of her views, and she is willing to address issues in a constructive way which has the potential to lead to their re-engagement and an improvement in their relationship.  These are positive signs and if the resolve and commitment are sustained through working co-operatively with her and Mrs Parker a situation of significant benefit for the child may be the eventual result. 

1. Turning to the grandmother, counsel for the ICL submits she has a short sighted view of the child’s needs and is capable of focussing only on her own needs.  It has to be said that general overview is borne out by the evidence drawn from several directions.

   (a)In support of her case she offers much criticism of Mrs Parker’s character, background and motives.  For the most part what is said would run counter to the rules of evidence were they to be applied and it will be apparent from many of her statements already cited that they must attract little or no weight.  Their significance lies more in what they reveal of the grandmother’s attitudes and the consequent impact on the assessments relevant to the child’s well-being.  Some of this criticism has been mentioned already; for example ‘child stealing’ and ‘Centrelink fraud’ as well as her unsubstantiated statements about the health and habits of members of Mrs Parker’s family.  Other criticisms forming part of her care are to the effect that Mrs Parker presents a false front and not as ‘gentle’ as she may seems; for example, alleging she has been abusive to the child [Mrs Parker comes from New Zealand]:

   ‘It is also known that such people have one face for public society and another for the private family environment.  New Zealand culture has a particularly bad reputation for family abuse. (Source: 7:30 Report document -'Twins murder highlights bigger problem' attached)’

   (b)This kind of statement speaks for itself and requires no discussion.  But I am satisfied there is no merit in any of the criticisms made of Mrs Parker’s character or her motives in caring for the child or of the environment she provides. 

   (c)The grandmother’s case also propounds the view that the child is not doing well in Mrs Parker’s care.  School records, for example, show the child’s world to be a ‘tormented one’ where ‘she does not really fit’.  The records reflect signs of personal disturbance which are symptomatic of stress which she was not exhibiting when she was living with the grandmother back in 2000 and indicate she has ‘regressed’ in Mrs Parker’s care.  More particularly, the grandmother is referring to notations during 2006 about suicidal ideation, making phone calls in the early hours of the morning, and injuring herself by banging her head on a brick wall. 

   (d)It is true there are such references in the records but they need to be read in context, which this perspective disregards, to appreciate the import and weight to be given to them and how they were addressed at the time.  As for being symptomatic of stress, absent when living with the grandmother years ago and attributable to her current environment, the reporter was taken to it by the grandmother in cross-examination and she explained it satisfactorily.  Children under stress, she said, may show it in different ways at different ages and symptoms vary accordingly.  With the child’s difficult background and history, her current environment may possibly be a factor in her feeling stress but it may also be connected to difficulties in her past.  Also, her behaviour at school might have many explanations, one of which could be problems in her current environment, but there may be many things making her sad or confused or angry. 

   (e)On the topic of the child’s schooling, the grandmother has maintained a concern to be informed about it for some time.  In mid-2006, before she instituted the current proceedings, she contacted the school for information.  She was concerned school reports had not been received according to the November 2005 orders and she approached the school for copies.  She comments: ‘[Mrs Parker] was obviously feeling so totally in control and so that she had pushed us out of the picture.’  She provided a copy of part of the orders to the school for that purpose, although nothing in the order obliged the school to provide copies of reports to the grandmother, only to the mother.  No doubt the grandmother considered she was acting with the mother’s authority and in any event a copy of the report was duly sent. 

   (f)Were her eventual proposal to have the child live with her to come to fruition, the grandmother recognises the child would have to be enrolled at a school elsewhere near to her residence.  But she sees no difficulty for the child in leaving her current school; in her affidavit she says of the loss of that environment -

   ‘…would therefore have more of a negative effect on the school numbers and the aspirations of the headmistress than for [the child].  I believe for [the child] if she were to ultimately come and live with me and go to a new school without the trauma associations of the current one, the change would have the effect of a cleansing catharsis.’

   (g)The reference to the headmistress is a reminder that communications with the school took a rather unhappy turn which is apparent from a facsimile the grandmother sent to the headmistress on 8 May 2007.  Its tone and theme, unfortunately, is a style of communication the grandmother has employed in more than one direction in putting her case and that is best demonstrated by her own words:

   “Dear Mrs […]

   I was sorry not to have been able to speak to you yesterday afternoon on a matter of some importance to one of your pupils, my grand daughter [the child].  As you would be aware by now she has been misappropriated by an elderly person not related to our family and the matter is proceeding through the Family Court.  I urgently need to discuss a subpoena requirement with you in relation to this matter.

   As principal of the school you would be aware that you have a duty of care towards your pupils and that Australian values dictate that natural families are the ideal for a child’s best interests providing that their safety is not compromised.  You can, however, not be expected to know the background and psychological problems of the elderly woman who currently has care of [the child] as outlined in her psychologist’s report.

   As the successful proponent of the Commonwealth State Funding Review in 2001 I am aware that those who are paid from the public purse are accountable to the public for their actions.  This was a concept where even Hon Richard Egan, former state Treasurer of NSW had difficulty grasping the implications.  As principal of a school that is listed as 24^th in its region for excellence of student outcomes, where 1^st is the most excellent and 50^th is the lowest, I would expect that you too may not be aware of the implications for yourself and those with whom you are affiliated.

   In my more than eight years of high profile with the mainstream media I have learnt a great deal from researching my projects so let me explain.

   You would be aware of the recent public airing of the bad decision of the Iemma government in appointing Michael Coutts-Trotter, former drug dealer, as a high official within the NSW Education Dept.  This is obviously not a most desirable person to have in control of children and education, so it was in the public interest to know about this strange decision by the NSW govt.

   Because of the media’s high investigative skills especially when the public interest is in play, they also knew and made public that he is married to Tanya Plibersek, federal ALP Member for Sydney.  Such a revelation, damaging as it was to the Iemma govt, will of course be more so in a federal election year to Tanya Plibersek and the ALP.  It clearly illustrates the values of the ALP, the calibre of those with whom they closely associate and what the public interest can expect from an ALP run govt.  But people do need this information in order to consider their future votes carefully when deciding what sort of community they want to promote for their families and loved ones. 

   As you can see a bad decision can have far reaching implications.

   I would therefore expect that with your career ambitions you would not want to be seen as supporting someone who is emerging as a psychologically damaged misappropriator of children who learned her core values from another culture than our own.  There is also court evidence that she takes licence with the truth.  When this matter finally concludes you probably would not want to be seen as supporting such a person.

   In consideration of your career ambitions I have therefore taken the time to outline in sufficient detail for you to make an informed decision as to the best way to proceed in the interests of all concerned. 

   I will telephone again between 12pm and 1pm today and I trust we will be able to come to a cooperative arrangement with regard to the subpoena requirements.

   As the NSW Liberals are assisting with this matter and they also have a duty to protect the NSW public interest I will be sending a copy of this letter to Hon Barry O’Farrell.

   I look forward to speaking with you later this day.

   Yours sincerely

   [Mrs Mortensen]

   Maternal grandmother to [the child]”

   (h)On the topic of correspondence, it was mentioned earlier that the grandmother has written to the child at her counsellor’s rooms, a step taken because of her view that Mrs Parker was obstructing her communications with the child, which she relates this way:

   ‘It is surprising that the courts and public bodies such as legal aid, paid from the public purse to reflect community values would so blindly and emphatically support such a person as [Mrs Parker] in this endeavour.  [The child] would under current circumstances be completely unaware that any blockage had happened were Ms [Parker] to block correspondence. For that reason I feel justified in my decision to write via […] Clinic.’

   (i)In her correspondence to the child the grandmother has maintained her criticisms of Mrs Parker and relates other matters that are difficult to see as appropriate to the circumstances.  So it comes as no surprise to learn that the child has been quite distressed by the content her grandmother’s communications.  She identified the contact as a source of stress which manifests itself physically by inducing eczema outbreaks and says it distracts her at school.  Her counsellor describes her as being upset for a long time after receiving letters.  That is understandable as some of the content of the grandmother’s letter of 1 December 2007 will demonstrate:

   ‘…I understand you are nervous about seeing me again because of all the conflict it would stir up in you between wanting your own family and not knowing whether to trust it.  You have obviously been fed a lot of rubbish over the years from people much older & more clever than your tender years.

   However, I am still moving to Sydney in the new year.  I have a number of friends there like John Howard, Philip Ruddock, Tony Abbott, Brendan Nelson, Alan Jones from 2GB who has been wanting me on his radio program for years.  Then there is also Malcolm Turnbull and others.

   …..

   We are very worried about your long term welfare.  I know some things about [Mrs Parker] & her family which I am not allowed to tell you at this time.  I have told many other people without identifying [Mrs Parker] and they are all horrified and that such a thing as happened to you could happen in Australia.  The media around the country know too and are supporting me.

   At the moment [Mrs Parker] gets $200 a week, plus family allowance, more than she would if you were not with her.  I wonder if she spends that much on you each week.

   That will stop when you are 16 and reduce to $95 per week.  If she is struggling now with money, how will it be then & what will happen to you when she cannot afford to keep you any more?

   So you can perhaps understand now why I want to be nearby to make sure you are alright.

   I love you and care about you very much and always have….’

   (j)There can be no doubting the grandmother’s conviction that the chld was quite happy living with her during 2000, that re-establishment of contact will allow her to ‘relive the pleasure of those times’, she can give the child the ‘intellectual as well as emotional stimulation’ she has in the past, and she can open doors for the child which will stand her in good stead in life through her connections to the media and senior politicians.  Moreover, she would have the benefit of the grandmother’s own views about ‘Australian values’ which are reflected in various passages from her affidavit:

   ‘It would be in line with Australian values to allow [the child] the opportunity to renew her acquaintanceship and re-bond with her own family given the circumstances of deception under which she was removed.  [The child] has obviously suffered serious distress as a result and is still suffering.  It is my understanding that it is not the role of the court to cause such suffering nor to facilitate its needless continuation.’

‘The Australian taxpayer who funds our systems to uphold our values and standards as they would themselves manage them would, I believe, expect better. I know from the support I have had on the matter from the mainstream media and the larger community that this is so.’

‘[Mrs Parker] and her family have not displayed an understanding and acceptance of Australian values on this matter in return for the sustenance they have received from our country. I do not believe that [the child] will learn good values for her adult life from them and especially when taking into account their proven substance abuse habits.’

(k)In putting her case the grandmother also gives some emphasis to the need for the child to return to her biological family and to maintain her connection with her biological family.  She sees it as the responsibility of this court to see to that and she claims to have support from various sources of power and influence:

‘It is my understanding that it is the brief of the Family Court to keep natural families intact if at all possible. Our society is built around the family unit. The community including politicians and media share this view. Those in the system who are prepared to accept taxpayer dollars for their salaries have a duty to uphold community values. I have floated the dynamics of this matter, omitting the identifying details to comply with the Privacy Act, in circles across eastern Melbourne and also in Sydney. People who pay substantial taxes and know me well. Some from the millionaire belt. They will undoubtedly discuss the syndrome with the associates at the various clubs and associations to which they belong. All are horrified and distressed that such a thing could occur in Australian society. The media too around the country have an overview and current affairs programs continuously run parallel stories as they test and draw out Australian values on the topics.’

1. It should be apparent from all of this, and has to be said, that in her communications with the child the grandmother has demonstrated a lack of sensitivity towards the child’s needs and lack of insight into the likely impact of her own behaviour on the child; her conviction that contact with her would turn the child’s attitude around pays no heed to either the source or strength of the child’s views; her apparent belief that the child’s relationship with Mrs Parker would wane in that event lacks appreciation of the importance of that relationship for the child; and her assertion of the benefits to the child of exposure to the values she espouses and her perception of her place in the world are by no means certain to be embraced by the child. 

2. As the reporter pointed out, if the grandmother could acknowledge the child is content living with Mrs Parker and respect her wish not to see her at this point, that may lay the required groundwork for possibly developing a more positive relationship in the future.  And yet it is plain from the grandmother’s strongly argued case that she is very unlikely to adopt that approach and when there is added to that the unremittingly poor opinion she has of Mrs Parker which is unlikely to abate, the situation only allows of one conclusion; namely, the grandmother cannot be seen as being able to provide for the child’s needs. 

3. As for Mrs Parker she has taken responsibility for the child’s upbringing for some years now.  Obviously it has not all been easy, there have been problems.  But they have been addressed in a constructive way in appropriate settings with assistance from those qualified to contribute towards solutions.  Her statement to the reporter that the child is a very loving child who continues to struggle with moods and issues associated with her childhood is an indication there are still some problems.  But Mrs Parker has demonstrated a capacity to acknowledge the child’s needs and to take sensible steps to address them.  I am also satisfied Mrs Parker has a proper appreciation of the importance for the child of family.  The child told the reporter she is encouraged by ‘Nan’ to be respectful of her grandmother and call her ‘grandma’ rather than by her Christian name and that she has also tried to persuade her to write letters to her grandmother.  Mrs Parker told the reporter she wants the child to keep a connection to her mother so there is no large gap to bridge in the future.  Her support for positive relationships between the child and her mother and brothers is accepted.  Her view that this is more likely to be achieved if the child’s views were respected and they were to show a consistent interest in her is plausible.  I have not been left in any doubt that Mrs Parker has a proper attitude to her responsibilities and I am satisfied she is able to provide for the child’s needs. 

(d)      the likely effect of any changes in the child’s circumstances…..

1. The mother proposes a continuation of the child’s current arrangements with Mrs Parker with some modifications to which Mrs Parker is receptive.  What has been said already of this need not be repeated. 

2. The change the grandmother proposes is significant from the child’s perspective.  The evidence satisfies me that if the proposal were implemented the child would find the change distressing and unsettling and she would be fearful her living with Mrs Parker would be put in jeopardy.  The effect on the child would have entirely negative consequences, being against her strongly held wishes communicated to those whom she would undoubtedly perceive as responsible for putting her views to the court. 

3. In saying that, it is acknowledged that the grandmother has an unbending attitude about the need for contact between her and the child to be established notwithstanding what the child says of it.  As she sees it: the negatives in the child’s memory of life with her mother have been kept vivid in the child’s mind and the positives have never been reinforced; the family has moved on but the child is trapped in the trauma and suffering stress symptoms from the continuous negative and unrealistic images; she has not been helped by Mrs Parker and the court to dispel the stress manifesting itself in physical symptoms she never had when she lived with ‘us’; the trauma will not be resolved until she faces her fears and proves them false; contact once established will quickly allay her fears and negative memories and allow her to heal and move to the present day with the family rather than be ‘trapped’ in the stress of past events; for her own sake know her own roots which are not the negative image she holds causing her such distress:

   ‘She needs to heal her subliminal conflicts but appears to be currently caught in one of the 5 stages of grieving from the trauma situation she was plucked out of without passing through to the new life with the rest of us.  This trauma is obviously festering in her mind and tormenting her causing her physical stress symptoms such as eczema.’

4. There is no doubting the grandmother’s strongly held conviction about any of this but her certainty allows no room for any contrary perspective and unfortunately the whole of the evidence weighs against it. 

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The grandmother’s statement in closing submissions to the effect that if she is not successful here she will bring further proceedings prompted me to foreshadow to her an order providing for any further proceedings about the child’s arrangements to be listed before a judge in the first instance for the purpose of obtaining leave for her to continue.  With confidence in the merit of her cause, she sees no difficulty with such an order. 

Conclusion – best interests

1. It was the recommendation of the reporter and the submission of the ICL that there should be no orders obliging the child to see her grandmother and there should be orders prohibiting the grandmother from contacting the child, her school or counsellor directly or indirectly.  I am persuaded that outcome would be consistent with the child’s best interests.  That is supported by her own clear and genuine views and attitude and it has not been established that her grandmother has sufficient capacity to provide for her needs, as discussed.  It is accepted that maintaining for the child her connection to her biological family is a worthy consideration and weight has been given to that.  Of course a child benefits from having a loving and secure attachment to their own biological family, as the reporter observed, yet research establishes it is also important for a child to have emotional and psychological attachments maintained.  The child is psychologically and emotionally attached to Mrs Parker who has provided her with sound care and there is every reason to think that will continue into the foreseeable future.  It is also reasonable to think that her mother and Mrs Parker will do what they can to address the rifts in a manner consistent with the child’s interests. 

2. It might have been a case where some provision could have been made for the child to receive correspondence from her grandmother with a view to establishing the groundwork necessary for a change of heart, but this has been tested and failed.  The content of her grandmother’s correspondence bears that out.  She could not curb criticism of Mrs Parker who is the child’s primary attachment figure and carer and that will only distress and distract the child. 

3. It might also have been a case where some provision could have been made for the child to have contact with her grandmother if she is to spend time with her mother and brothers.  But that is completely out of the question.  The mother does not want it, for good reason, and such a scenario would put in jeopardy any prospect of the child and her mother re-engaging and taking their relationship in a more positive direction. 

4. Finally, I see the order prohibiting further proceedings without first obtaining the leave of a judge as essential to this child’s best interests.  There is now a history of litigation, with little interruption between the end of one round and the beginning of the other, stretching back to 2004.  This child will turn 15 years of age in several months time.  What has been said here ought to be sufficient to indicate the need to ensure she is not further unsettled by any further proceedings without the merit first being evaluated. 

ICL costs

1. Counsel for the ICL made in passing an oral application for the costs of the appointment of the ICL to be paid by the parties.  However, no submission was made in support of an order to that effect.  No doubt that is because it is recognised that this is not a case in which there could be found any justifying circumstances, as provided by s 1217(2), for departing from the primary rule pursuant to s 117(1) that each party is to pay their own costs.  That arises from the financial circumstances of all involved, amongst other obvious considerations.  The application will be dismissed. 

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: