N and L-S - [2004] FMCAfam 436

FEDERAL MAGISTRATES COURT OF AUSTRALIA

N & L-S

[2004] FMCAfam 436

FAMILY LAW – Children – contact – where paternal grandparents seek contact with grand daughter – mother opposes contact – where father convicted of sexually assaulting step-daughter – child previously enjoyed good relationship with her grandparents and harbours desire to see them – assessment of risk of harm – consideration of whether contact would undermine mother’s capacity to care for children – child’s best interest paramount consideration – daytime contact ordered.

Family Law Act 1975

B and B: Family Law Reform Act (1997) FLC 92-755
M v M (1988) 166 CLR 69
A v A (1998) FLC 92-800
Briginshaw v Briginshaw (1938) 60 CLR 336
JG and BG (1994) FLC 92-515
Patsalou and Patsalou (1995) FLC 92-580
Blanch v Blanch and Crawford (1999) FLC 837
H v W (1995) FLC 92-598
R and R Children’s Wishes (2000) FLC 93-3000

Applicants:

J G N and R M N

First Respondent:

M M L-S

Second Respondent:

A M N

File No:

PAM4978 of 2003

Delivered on:

4 November 2004

Delivered at:

Parramatta

Hearing date:

5 August 2004

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr A. Corish

Solicitors for the Applicant:

Staunton & Thompson

Counsel for the First Respondent:

Ms K. Reynolds

Solicitors for the First Respondent:

Goldrick Farrell & Mullan

Second Respondent:

In person

ORDERS

The applicant grandparents have contact with Diana born in 1998 as follows:
(a)On the first Sunday of each calendar month;
(b)Commencing 5 December 2004 from 10 am until 2 pm, which contact will continue until March 2005;
(c)Commencing the first Sunday in April 2005 from 9 am until
5 pm;
(d)By letter, card and gift on special occasions; and
(e)At such other times as the grandparents and mother may agree.
Contact changeover shall take place at Wollongong Railway Station. The mother or her nominee shall deliver the child to the grandparents at the commencement of contact. The grandparents shall return the child to the mother or her nominee at the end of contact.
During contact the grandparents are restrained from bringing the child into contact, whether personally or in any other fashion, with A M N. This is an order for the personal protection of the child.
The mother is at liberty to provide a copy of the court counsellor’s report to any counsellor that she, Georgia or Diana may attend.
In the event that the father receives a re-trial in relation to his conviction concerning Georgia, contact is suspended four weeks prior to the trial, which suspension continues until two months after the re-trial is concluded.
During contact the grandparents are restrained from discussing the father’s criminal conviction and their opinions relating to it.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings shall be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

PAM4978 of 2003

J G N & R M N

Applicants

And

M M L-S

First Respondent

And

A M N

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by R M N and J G N “the grandparents” for contact with their six-year-old grand daughter Diana (not her real name). Their son, A M N, is Diana’s father. A M N and Diana’s mother, M M L-S, separated in July 2002 after Diana’s older half sister Georgia (not her real name) told her mother that Diana’s father had sexually assaulted her. From that time other than contact on Christmas Eve 2002 until they participated in the Family Report process the grandparent’s have not had contact with Diana.
The father denies that he sexually assaulted Georgia. After a five-day trial in the District Court of New South Wales he was convicted of aggravated indecent assault of a minor. There is no doubt that the mother believes that Georgia has been sexually abused. All parties agree that Georgia believes she has been sexually abused. Diana understands that her father has been naughty towards Georgia in some unspecified way
The grandparents wish to resume contact with Diana. The mother opposes their application. She makes a number of serious allegations about the grandparents’ capacity to create a suitable environment for contact. The mother does not believe she personally could cope with the grandparents exercising contact with Diana, fearing that they would include the father in contact and in doing so expose Diana to an unacceptable risk that she may be sexually abused. The grandparents accept that Georgia made an initial disclosure to the mother concerning the father. However they believe that she has misinterpreted and embellished Georgia’s remarks. Essentially, that behaviour which had an innocent explanation has been turned into something far more sinister.
This case is not about whether the father sexually assaulted Georgia. He has been convicted of doing so and, unless his appeal succeeds, a jury has determined that fact. For the purpose of this hearing the court did not examine the evidence upon which the conviction was proved.
On 22 June 2004 the family report was released. Ms Silvia Martin, child and family counsellor, prepared the report. Ms Martin recommended, “That, unless otherwise agreed, Diana have contact with her paternal grandparents on one day each three weeks, this to be in the nature of an outing. The grandparents might consider including their other grandchildren in order to facilitate a continuing relationship between the grandchildren. That the mother be obliged to deliver to Diana, all cards, gifts and correspondence from the paternal grandparents. Telephone contact with the grandparents once a week”[1]
[1] Exhibit A
During her oral testimony the court counsellor explained that Diana’s enjoyment of contact is likely to be influenced by her mother’s attitudes towards contact and the grandparents. Essentially, that if the mother was openly hostile to contact and exposed Diana to her negative opinions concerning contact this would detract from its benefits. The court counsellor explained that the entire family has been through a severe trauma. She explained that if the mother was distressed at the prospect of contact between Diana and the grandparents that she may find it difficult to cope, which would adversely effect the children.

Background facts

The grandfather was born in Scotland in 1948, he is 55 years old.
The grandmother was born in Scotland in 1950, she is 54 years old.
The grandparents married in 1972. They have two children, A M N and V D.
The father was born in 1974.
The mother’s birth date is not in evidence. Her daughter Georgia Rose Le-Serve was born in 1993. Georgia’s father is L M. The mother and L M were not married and had a casual relationship that lasted from approximately 1990 to 1993.
The mother and father commenced cohabitation in about May 1996. They were married on 15 March 1997.
Diana was born in 1998. She is the father’s only child.
On 4 July 2002 Georgia told the mother that the father had sexually assaulted her. The mother alleges that Diana also disclosed that the father had sexually assaulted her. That day the mother and children left the family home. The grandparents and father have not had contact with either child since.
On 10 July 2002 the father was charged in relation to Georgia’s disclosure.
In July 2002 the mother and Georgia commenced counselling at Urunga House. The mother’s counselling continued for three months.
On 12 June 2003 the father was convicted of sexually assaulting Georgia.
On 8 August 2003 the father was remanded into custody.
On November 2003 the mother resumed counselling at Urunga House.
On 26 March 2004 the father was sentenced to 18 months gaol.
On 7 April 2004 the father was released from gaol. On his release he moved into a home owned by his parents, next door to theirs.
On 2 June 2004 the grandparents, mother and children attended the court counsellor. This was the first meaningful contact the grandparents had with Diana following the respondent’s separation. During the sessions with the court counsellor, the grandparents and mother reached a rapprochement. After the court counselling session was completed the mother accepted the grandparents offer to drive her and the children to Fairy Meadow.
On 3 June 2004 the father consented to an apprehended violence order prohibiting any contact between himself and Diana, subject to agreement or orders made by a court exercising jurisdiction under the Family Law Act 1975.
On the weekend of 12 June 2004 the grandparents exercised contact at the mother’s home. During the visit the mother told the grandparents that she was happy for them to visit the girls once a month at her home. While there the grandparents gave the mother a draft minute of consent orders, which draft is annexed to the mother’s affidavit filed 5 August 2004. The grandparents included in their draft orders an order to the following effect:
That subject to any subsequent court order or agreement in writing between the applicant grandparents and the respondent mother, the applicant grandparents be restrained from allowing the child to have any physical contact with their son, A M N, the second respondent to this application, except that the applicant grandparents be permitted to facilitate contact between the child and her father by passing on his cards, letters and gifts and by allowing telephone contact with him during such periods as the child is in their care.
The mother declined to sign the draft document and thereafter refused contact between Diana and the grandparents. She says that she felt sickened and betrayed that the grandparents made provision for any type of contact with the father.
On 2 July 2004 the grandmother telephoned the mother in order to have telephone contact with Diana. The mother refused telephone contact and since then has denied contact.
On 14 July 2004 a Crown appeal claiming inadequacy of sentence was dismissed.
The respondent father has filed a Notice of Intention to Appeal. This means he must file his appeal and grounds of appeal within six months, by mid-November 2004. He has sought counsel’s advice and is presently planning to lodge an appeal. Any appeal will be heard within approximately three or four months of its filing. The prospective appeal is an appeal against his conviction. Should he succeed, the Court of Criminal Appeal will either quash his conviction or quash the conviction and remit the matter for re-hearing in the District Court. Georgia will not be required to give evidence on the appeal. If the matter is remitted for re-hearing it is highly likely that Georgia and the mother, at least, will be called as witnesses. It is impossible to know whether or not a re-hearing is likely.
In February 2005 the father’s parole will expire.

Relevant Law

Contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
The manner in which the court conducts an assessment of the risk of future harm is set out in A v A (1998) FLC 92-800. In those proceedings, the Full Court of the Family Court was assessing the risk of future physical harm to children. The approach there described is applicable to all allegations of future harm. The findings made in the assessment of risk address part of the court’s responsibility. Whilst the resolution of the risk issue may be the central issue in proceedings, the court’s role is broader in that it must determine the best interest of the child having regard to the relevant s.68F (2) factors in the context of the matters contained in s.60B. See M v M (1988) 166 CLR 69.
If the court reaches the conclusion that there is no unacceptable risk, the court must consider the separate issue of the parent’s belief in the occurrence of the events. This is another part of the court’s obligation. In A v A the process is described thus: “The first inquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.” It is not a necessary component that the belief “should be genuinely and objectively based”.

The grandparents’ circumstances

After their marriage the grandparents migrated to South Africa where they lived until 1977. In 1977 they returned to Scotland before migrating to Australia in June 1980. They have lived in Australia since then and became Australian citizens in 1983. The grandparents bought their home at Cronulla (not the real location) in 1980 and have lived in the Cronulla area ever since. The grandfather is an engineer by occupation and is head of an engineering department with a pharmaceutical company. Following a back injury in 1997, the grandmother retired. Since then she has been a full time home maker. After her retirement the grandmother became increasingly involved in her grandchildren’s care, helping her daughter V D with her children and the respondent’s with Georgia and Diana.
Until recently the grandparents’ daughter V D and her family lived next door to the grandparents. The D’s have two children, a daughter born in 1996 and another daughter born in 1997. Presently the D’s are living at Cronulla. Their house is owned by the grandparents but treated as the father’s home. Because the Parole board would not allow the father to live in the Cronulla home, he and the D family have swapped residences until his parole expires.
After the respondent’s moved to Cronulla in August 2001, Diana and the D’s younger daughter attended the same preschool. The grandmother often took both children to preschool and the older children to school. On many occasion the children were dropped at her home before breakfast and she fed them before taking them to preschool. When needed she also collected the children from preschool and cared for them until their parents were available. She often needed to do so two or three times each week. Tania Robertson, Director of the local Preschool where both children attended, gave evidence by telephone. Ms Robertson corroborates the grandmother’s and V D’s evidence that the grandmother delivered and collected Diana on many occasions. This ended when the mother withdrew the child from her preschool on 5 July 2002. I accept Ms Robertson’s evidence that Diana related well to the grandmother and was happy in her company.
The mother alleged that the grandmother consumes alcohol to excess and also abused prescription and other medication. In March 2001 the grandmother was admitted to a pain clinic at Royal North Shore Hospital for three weeks. Her back injury caused her severe pain and she was concerned that she was taking too many pain-killers and drinking alcohol to a level that concerned her. The grandmother’s treating doctor, Dr Jane Givney corroborated the grandmother’s evidence that she has successfully recovered from her injury and completed comprehensive rehabilitation. Dr Givney corroborates the grandmother’s evidence that she does not use alcohol to excess nor abuse prescription or other medications. Whilst I am satisfied that she previously used alcohol and medication unwisely, probably also on occasions to excess, there is no compelling evidence that she did so when with her grandchildren. Whilst there is a risk that she may use medication unwisely and/or alcohol to excess on occasion, the risk that she will do so is low. This is because she recognised that she had developed a problem and sought assistance with it. It has now been a number of years since she successfully completed rehabilitation and she is genuinely motivated to remain well. The grandmother’s commitment to contact is profound and she is highly unlikely to do anything to risk its continuance. On balance I am satisfied that during contact there is virtually no risk that she will be affected by alcohol or too much medication.
Both grandparents appeared dismayed by the mother’s allegations that theirs is a violent and dysfunctional relationship. V D was similarly surprised while the father denied her allegation. On one occasion about six or seven years ago the grandparents had a heated argument at the dinner table after which the grandfather threw a plate into the kitchen. He then left the house and stayed in a motel for the night. The grandparents reconciled their differences the following day. There were other occasions during their thirty-two years of marriage when the grandparents argued with each other and the grandfather reduced the grandmother to tears. The grandmother sought both respondent’s support and comfort on a number of occasions during or after these arguments. Which support they gave willingly. These incidents occurred years ago and do not reflect the nature of the relationship that the grandparents now have or normally enjoyed. Both grandparents impressed me as strongly supporting each other and proud of the enduring nature and quality of their relationship. While they have their disagreements, their relationship is basically healthy and mutually loving. There is no evidence that Diana has been exposed to family violence when in her grandparent’s home or care. The grandfather is as strongly committed to contact with Diana as the grandmother is. I am satisfied that there is virtually no risk that during contact Diana would be exposed to family violence.
The mother alleged that the grandfather drinks alcohol to excess and that he wears shorts that are unacceptably brief. The grandfather admits that he wears shorts known as “stubbies” but always wears underwear. I accept that he has never knowingly or actually exposed his genitalia because his shorts were in adequate to the task. He denies routinely consuming alcohol to excess and points out that he has an enviable work history. Family members corroborate his denials. Even if he drinks to excess on occasions I do not accept that he would do so during contact with Diana. She is far too precious to him.

Overall, and in spite of the mother’s numerous accusations, I am satisfied that the grandparents are hard working, decent, family focussed people. They offer their children and grandchildren emotional and practical support to the extent that they are able. Although they have not always demonstrated good judgment in the manner with which they have dealt with these extraordinarily difficult circumstances they have been genuinely motivated to try and support their son, the mother, Georgia and Diana. I am satisfied that they are able to provide an appropriate, safe and loving environment within which contact could take place.

The father’s circumstances

The father resides next door to the grandparents in his sister’s home. The Parole Board determined that the Cronulla home was too close to Diana’s school and included a condition on the father’s parole that he live at his sister’s home.
The father has re-partnered and resides with his fiancé C W. He dines with his parents, most but not all evenings during the week.
During her session with the court counsellor, the mother indicated that she was prepared to contemplate future contact between Diana and the father. Thus the grandparents included in their earlier proposed orders an order to that effect. This order is set out earlier in these reasons. It was submitted that this evinced an intention by the grandparents and father to use their contact to reintroduce contact between Diana and her father. Thus, notwithstanding statements to the contrary, the court would find that the application for contact was a ruse and it was actually an application by the father. The grandparents appeared genuinely surprised that the mother interpreted their proposed order (3) as facilitating inappropriate contact between Diana and her father. They had instructed their solicitor to draft the order based on their belief that this style of contact was acceptable to the mother. When it became clear that it was unacceptable, they and the father abandoned any order that would facilitate contact between Diana and her father of any sort. I accept the mother’s criticism that in this instance the grandparents showed a lack of sensitivity to her feelings. At the time she had legal representation and the grandparent’s approach to her was manifestly inappropriate. Notwithstanding this criticism I am persuaded that there is virtually no risk that Diana would come into contact with her father in any fashion should the grandparents have contact to her. The father is strongly motivated to maintain his liberty and is highly unlikely to do any act or thing including approaching Diana, the mother or Georgia that exposes him to further charges.
Having expressed his love for Diana, the father explained that he does not wish to have face to face contact with her for a number of years. He had hoped to be able to pass on cards and gifts to Diana, using his parents as conduits. However, as he had not made application to that effect and when the mother did not agree to it, he gave up any request for that style of contact. The father said that he would abide any order restraining his contact with Diana or her family during any contact that his parents have with Diana. Should contact takes place at their home he will remain away from his and their homes. If contact takes place in the nature of an outing he will ensure that he does not come into contact with them or Diana during contact. The grandparents are equally adamant that should the court require it, they will not permit contact between Diana and the father whilst she is with them. Although this concession was made with a heavy heart I am satisfied that the grandparents and father will ensure that he does not have any form of contact with Diana whilst she is in her grandparent’s care.

The mother’s circumstances

The mother lives with Georgia and Diana at a Wollongong suburb. She and her children live in Department of Housing accommodation, which is secure and provides stable accommodation. The children attend a local public school where both are doing well.
Presently, the mother is enrolled in a bridging program aimed at enabling her to resume nursing studies. Her course requires her attendance one-day per week for twelve weeks. Provided she successfully completes the bridging program she will resume studies at the University of Wollongong. Other than her studies the mother cares for the children full time. The mother has regular contact with her brother Adam and her parents, who live at Botany.
The mother says that she would promote contact on two conditions. Firstly that Diana was safe and secondly that Diana wanted to see her grandparents. Because she does not believe that Diana would be safe although the mother describes herself as a strong woman she claims that she could not cope if the grandparents had contact. Nor does she believe that it is fair to Georgia to see Diana have a relationship with her grandparents while Georgia is denied that opportunity. She is afraid that if contact is ordered she, Georgia and Diana are all at risk of depression and that their settled and happy life will be thrown into disarray. The mother fears that she may have a breakdown if contact occurs.
Georgia suffers a congenital bone disorder. She attends a clinical psychologist fortnightly at Urunga House at Wollongong. She has been attending counselling since July 2002. A family support worker attends the mother and Georgia about once a fortnight as well. Neither of these people gave evidence.
Until the respondent’s separated Georgia had spasmodic contact with her father and his family. Essentially contact occurred when it suited her father, L M, or the mother permitted it. Hence during their years of cohabitation Georgia treated the father, A M N, as her father. After the respondent’s separated the mother re-established contact between Georgia and her father and paternal grandparents. In late 2002 the grandmother when packing the mother’s and children’s remaining belongings, discovered the mother’s diary. In it, the mother made allegations that Georgia’s father and his mother behaved in a sexually inappropriate way towards Georgia. The applicant grandfather described the allegations as almost unbelievable allegations of sexual impropriety. The father’s former solicitor disclosed the diary’s existence to the L M and his family. Having read the diary they ended all contact with Georgia and the mother. The mother blames the grandparents for revealing the diary’s existence to Georgia’s paternal relatives. She says it is entirely their fault that the L M and his family have abandoned Georgia. Objectively, this accusation is mischievous. The diary is the mother’s record and it was the father’s former solicitor who thought it relevant to the criminal proceedings and brought it to the L M’s attention. L M and his family made their own decision to end their relationship with Georgia. The circumstances by reason of which Georgia lost her relationship with her father and his family has nothing relevant to do with the grandparents.
Diana has never needed counselling. The mother says that following the Georgia’s allegation she asked Diana “Does daddy tickle you on your minnie?” to which Diana responded “yes”. The mother says that she became upset but persevered and asked Diana “And do you like that?” to which Diana replied “No, him too hard. But me still cuddle him up”. It is this conversation that founds the mother’s allegation that the father has sexually abused Diana. The mother referred this disclosure to DOCS who then referred it to the Joint Investigative Review Team. Officers from JIRT interviewed Diana, at which time she was about two years old. The child was barely articulate and made no disclosure. Because it was clear early on that the court was not asked to decide an application that the father has contact to the child, this issue was not explored in any detail. However, the mother claimed that the grandparents contact application should be refused because they may allow Diana to have contact with the father and he may abuse her again. Thus it is surprising that the mother did not produce records of interview from JIRT and those people she says were present at later disclosures.
Issues such as these are difficult to determine. Courts frequently accept uncorroborated testimony in family matters because so much of what of happens in families occurs privately. In many instances it is proper to rely solely on the witnesses integrity. However there were too many instances when the mother’s evidence defied credulity. For example she claimed that the grandmother tried to drown the father when he was a baby. She said that the grandmother snorted drugs, probably cocaine. Finally with no proper basis she told the court counsellor that she believed that V D’s daughter was the father’s child. She gave no thought to the effect this bizarre and awful allegation may have on V D or other family members. The mother relied upon her brother’s testimony, which with respect seemed exaggerated and unreliable. His allegation that there exists a real risk that the grandparents would take Diana and retain her overseas was baseless. He claimed that because they left South Africa during the apartheid era they could do the same with Australia. His claim was illogical. The mother’s failure to call relevant corroborative evidence thus does not assist her case. On balance there is insufficient evidence before me to persuade me that her father or anybody has sexually abused Diana. That issue will require further careful consideration with all of the available evidence should the father ever make an application that he have contact with Diana.

Section 68F(2) determining the child’s best interests

One of the issues the court must consider is the manner in which a child’s expressed wish concerning his or her welfare are to be treated. The Full Court of the Family Court considered this issue in R and R Children’s Wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598. Their Honours held, “The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children”. Once a child’s wishes are established the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child’s welfare. The process is described thus: “There are many factor that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately, it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of children and applying it in a common sense way as of one of the factors in the overall assessment of the children’s best interests”.
When the court counsellor interviewed Diana she described both grandparents in highly negative terms and refused to look at them. The court counsellor reports on her discussions with Diana thus,
Diana told Counsellor that “R M N” and “J G N” are “nasty to us”. “They took all our stuff away from us – Mum’s fridge, our toys, Georgia’s toys, her bed and my bed”. “(They) used to be nice to us now (they’re) nasty”. Another reason that Diana said that she thought “R M N” and “J G N” to be nasty is because they “took Gitta and Fred away from me”. (Gitta and Fred appear to be Georgia’s grandparents.) Diana referred to her father by his first name and told Counsellor that he was in jail but was unable to say why except that he had been “naughty”. She remembered her father cooking dinner for them and going fishing with them. She thought her father was “nasty” although she did not know what he had done except fight her mother, which she had no recollection of as she was “only little and wasn’t born”. She said that she never missed her father and never talked to her mother about him. Diana also thought that her cousins (V D’s children) were no longer her friends as they were “nasty to me now”. Diana did not know what her cousins did that was nasty. She indicated that her mother also did not like her cousins.
Diana talked about the presents that her grandparents had sent. “My mum wanted to give them away, she thought they were ugly”. When asked what she would have liked her mother to do, Diana said that she wanted to give them back to her. Diana said that her mother had given her Georgia’s presents (clothes) as well because Georgia had though them ugly. Counsellor asked whether Diana had thought them to be nice. Diana said, “No, I thought (they were) ugly, that’s why (I) chucked them in the bin”. She said that she did not like her grandparents sending her presents because they were nasty. She then went on to tell Counsellor how they had not sent her presents on her birthday (which was also coming up) when she was little.
After the joint meeting between the grandparents and mother Georgia and Diana were told that the adults had, in effect, resolved their dispute. It was made clear to the children that the mother’s resistance to Diana’s contact with the grandparents had given way and that she was now favourably disposed to contact. Upon hearing this news the court counsellor reports that there was a remarkable change in both children, particularly Diana. Having thrown their presents away, both children sought them out with Diana in fact wanting Georgia’s presents. Both gave the grandparents a cuddle. Later, Diana travelled comfortably with grandparents, her mother and sister, on the drive to Fairy Meadow. In the following weeks she enjoyed about six telephone conversations with her grandparents and contact at the mother’s home in mid-June 2004 went well from Diana’s perspective.
The mother says that Diana has subsequently told her that she does not want to see her grandparents and that she believes they are liars. The lie being that they purchased a swing set when the swing set actually previously belonged to the respondents. This coincides with the mother’s decision that the grandparent’s betrayed her trust by presenting inappropriate proposed contact orders. I accept the court counsellor’s evidence that the abrupt change in Diana’s approach to the grandparent’s reveals that her wishes and attitudes towards them are strongly influenced by her mother’s attitudes. Although the court counsellor tried to explore with Diana her negative experiences with her grandparents and father, the child was unable to give examples of her experiences. This led the court counsellor to conclude that the child was recounting another person’s complaint and that her complaints do not reflect her own life experiences.
Given the opportunity to resume contact, initially in a counselling session and later at the mother’s home, Diana demonstrated that she retains affection for her grandparents and harbours a desire to see them. This is a matter to which I give considerable weight. The dilemma for this child is that she is exposed to her mother’s negative views which results in the child feeling that she must suppress her desire for a continuing relationship with her grandparents. I have no doubt that this child feels terribly torn between people she loves.
When she gave evidence, the mother was a strong, articulate and determined witness. If she brought the full force of her personality and parental authority to the fore against this child claiming a desire for contact, until she is older Diana would have difficulty expressing a view contrary to her mother’s.
Diana resides with her mother and has always done so. The mother is her primary care giver and is the person with whom the child has her strongest attachments. From her mother more than any other person Diana derives her sense of security and stability.
Diana and Georgia have a close sibling relationship.
Until her parents’ separation, Diana enjoyed a good relationship with her cousins as well as members of her father’s family. I accept the grandmother’s evidence concerning her and the grandfather’s relationship with Diana, both as to their involvement and attachment to the child. Diana was particularly close to the grandmother and as at separation they enjoyed a loving grandmother/ grand-daughter relationship. Diana had a good relationship with the grandfather, which relationship although strong was not as strong as her relationship with her grandmother. The mother has put these relationships under real pressure. She has told Diana that her grandparents were nasty to her, which statements do not accord with Diana’s own recollections of their treatment of her. Given the chance through contact Diana is likely to be able to recall happy times with her grandparents and settle back into a healthy and appropriate relationship with both of them.
I accept the court counsellor’s evidence that where a child loves another person, yet is told to deny that love based on information which the child knows is a lie is emotionally and psychologically damaging for the child. The court counsellor explained that it is confusing for the child and can lead to guilt if the child is forced to betray a loved object. In this situation children can grow up doubting their own judgment. Potentially it can undermine a child’s capacity to form secure and loving relationships. Diana’s changed behaviour with the court counsellor and following shows that she still holds fond memories of her earlier good relationship with her grandparents and given the opportunity to express it, still has a good relationship with them. There is a real risk that unless that relationship is re-established now, the child’s good memories will fade and her opportunity to have a continuing relationship with her grandparents will greatly diminish. She may come to believe that they abandoned her, something that is highly likely to cause sadness and eventually bitterness towards them. These are matters to which I give considerable weight.
Diana and the grandparents have the opportunity for a healthy and happy relationship, which relationship should only be denied the child if there are other matters associated with her welfare that demand it.
A pivotal issue is the effect on the mother and children if contact is re-established. It is axiomatic that a parent’s capacity to meet their child’s emotional and psychological needs is maximised if they themselves are settled, secure and happy. Both children are reliant upon the mother for virtually all of their needs. If she is unable to cope their wellbeing is likely suffer. The issue for the court is whether the mother will, in fact, be unable to cope and, the effect this will have on the children. The mother did not call evidence from her counsellor, which evidence would have been helpful in understanding the mother’s capacity to cope. Her failure to do so was not adequately explained and I am not satisfied the mother’s counsellor’s evidence would have assisted her case.
The mother’s alleged inability to cope emanates from two factors. Firstly, her claim that she does not believe the grandparents would keep Diana safe. Secondly, that both children are distressed with the notion of contact between Diana and the grandparents which makes their care more demanding and if the mother feels distressed, essentially it is beyond her capacity. In her affidavit filed 5 August 2004 and her oral testimony, the mother said that after their attendances on the court counsellor the children started to argue with each other, something, which is out of character. Diana was said to be aggressive towards Georgia, verbally and physically. At the same time Georgia had become unusually quiet and withdrawn. The mother interpreted these behaviours as indicative of Diana’s desire not to see her grandparents and anger that she had been forced to do so. The court counsellor gave an alternate, and in my opinion, more compelling explanation for Diana’s behaviour. Essentially, that Diana is more likely to be angry because she has been denied contact with people she loves. Diana is likely to have acted upon her anger with those to whom she is closest. On balance, I am persuaded that Diana’s behaviour is more likely to be settled and less confronting if she has regular contact with her grandparents and has an outlet where she can show her affection towards them.

The mother says that because the grandparents have refused to acknowledge the father’s guilt, Diana’s mental wellbeing is at risk in their care. On numerous occasions after the father was charged, the mother has sought the grandparents’ acknowledgment of their son’s guilt. The grandparents do not believe he has sexually abused Georgia and refuse to say otherwise. Not only have they refused to confirm his guilt, the mother says that they have refused her and the children greatly needed support. For example, she complains that they kept her and the children’s possessions after separation and three days after the mother and children left the home, the grandparents changed the locks. The grandparents agree that this is correct. However, they explain that after the allegations were made they offered the mother and children exclusive use of the home she and the children had been living in. When the grandparents refused to immediately accept their son’s guilt, the mother decided she could not live under their roof and moved away. The father’s solicitors instructed the grandparents to change the locks. They held onto the mother’s possessions until agreement was reached between the respondents for their return. The mother is entitled to feel angry that her and the children’s possessions (including the swings) were kept from her. Although the grandparents acted in accordance with legal advice, common decency should have prompted them to give the mother and the children their possessions much sooner. In this instance they demonstrate poor judgment. This occurrence, while regrettable, does not materially influence whether Diana should have contact with the grandparents nor their my understanding of their attitudes towards the mother and children.
When the respondents cohabited the grandparents were periodically concerned about the mother. The mother agrees that she was often depressed. During 1997 at the grandmother’s suggestion, she attended a psychologist in Sutherland primarily because she had become anxious and depressed. At the same time the mother was prescribed anti-depressant medication which she took for a short period. The mother explains that her relationship with the father was volatile and at times dysfunctional. She says that on numerous occasions the father beat her and that the grandparents did nothing to assist her in relation to his violence. The grandparents and V D acknowledged that the mother complained to them that the father had been violent towards her. The father similarly complained that the mother was violent towards him. On him they saw bruising and scratch marks which the father told them the mother inflicted. They did not see similar marks to the mother. However, given that she did not show them her body, nothing turns on this. The father is a big man, appearing at least six-foot tall. The mother is much shorter. If he physically attacked her, I have no doubt that the father could easily overcome the mother. Whilst she is not physically frail and could feasibly attack him, it seems unlikely to me that the father would stand back and allow the mother to injure him without stopping her. Although the issue was not fully explored on balance it seems likely that the mother was the victim of family violence during the course of the relationship and that she received inadequate support from the people to whom she turned for help in relation to it. No doubt her experience of the grandparent’s lack of support for her in this regard contributes to her confused and suspicious opinions of them. The grandparents’ wilful blindness, however, does not mean that they would be violent towards the mother or Diana, nor permit anyone else to be violent towards Diana. They have never abused Diana and it is unlikely that they would ever do so. Or allow anyone to do so. Nor would they be violent to the mother.
The mother’s earlier episode of anxiety and depression requires careful consideration in the sense of whether this indicates that she is vulnerable to depression and anxiety. I have no doubt that if contact is ordered she is likely to feel upset and anxious. The issue is to what extent and whether her anxiety and upset is likely to be debilitating for her. This year the mother has dealt with the pressure of this litigation and the children’s reaction to the re-introduction of contact between them and the grandparents. At the same time the mother has embarked on tertiary studies and is confident of her capacity to resume full time university. The children are doing well at school. The mother does not need medication for depression or anxiety and describes herself as in good health. She impressed me as a woman of considerable intelligence who has the capacity to reflect upon and analyse events. Once these proceedings are ended, it is likely that she will realise that the grandparents have not betrayed her and the children by believing the father. Also, that the grandparents have not abused her or the children and that they will not undermine her relationship with Diana nor discuss their opinions concerning Georgia’s allegations with Diana. Relevantly, I have no doubt that she has the intellect and capacity to accept that the grandparents will not bring the father into contact with Diana during contact. To the extent that emotion may cloud her judgment, the mother has re-established regular counselling and with the assistance of a skilled counsellor it is likely that if emotion overcomes logic, with her counsellor’s help it will give way to logic.
Although contact in the short term will be difficult for the mother, in the long term she is likely to adapt and recognise that Diana is safe in her grandparents company and that contact works to Diana’s advantage. She will see that Diana enjoys contact and that it contributes positively to her sense of identity and overall wellbeing.
I accept the mother’s evidence that Georgia will be sad and worried if contact resumes between Diana and the grandparents. Her sadness is likely to emanate from a sense that Diana has contact with paternal grandparents, which is denied Georgia. The grandparents previously enjoyed a good relationship with Georgia and she may well feel rejected by them if only Diana is able to exercise contact. The grandparents made it plain that they would welcome contact with Georgia. However, they do not press an application that they have contact because they understand that the mother is strongly opposed to it. The mother could avoid the risk that Georgia feels rejected or left by the grandparents by facilitating contact at the same time that Diana has it. It need not occur each and every time that Diana attends to be valuable from Georgia’s perspective.
On balance, I am persuaded that the long term benefits of contact outweigh the detriment. My decision is finally balanced and one that has required considerable thought. The frequency and circumstances of contact also require careful thought because there must be no risk of even impromptu contact between Diana and the father during contact. Thus contact will be limited to day only contact and shall take place away from the Cronulla area. Presently the mother does not want the grandparents at her home and there is no good reason why they should attend there unless invited. Unless the parties otherwise agree contact changeover will take place at Wollongong Railway Station. This way Georgia need not be forced to participate in contact changeover and the mother will be able to leave her at home for the few minutes needed to deliver and collect Diana. This might make contact easier from Georgia’s point of view.
Contact will take place on the first Sunday of each calender month. Twelve times a year is sufficiently frequent for the child and grandparents to have a meaningful grandparent/grand-daughter relationship. The grandparents were not Diana’s primary carer and the style of contact that should be ordered needs to take into account the type of relationship previously enjoyed and that the participants expect. If the mother and Georgia find contact upsetting, it is no so frequent that their upset will be debilitating. Initially, contact will take place for four hours. There are many pleasant activities, which can be enjoyed in the Wollongong-Illawarra area, particularly with summer coming. After four contact visits, contact will extend to a full day, from 9.00 am to 5.00 pm. This will give the grandparents the chance to take Diana for visits in Sydney and other interesting places. I agree with the court counsellor’s opinion that from time to time the grandparent’s should include their other grandchildren in contact. These relationships were previously close and will contribute to Diana’s sense of identity. She is likely to enjoy resuming contact with V D’s children, if not immediately then in the long term.
In order to give the mother additional peace of mind, the grandparents will be restrained from bringing the child into contact with the father during contact. This order will be expressed as an order for the child’s personal protection and thus if it is breached the father is at risk of arrest without further warrant. Again solely for the mother’s peace of mind, the grandparents will be restrained from discussing the father’s conviction or their opinions of it during contact.
In the event that the father secures a re-trial, the pressures on all members of the family will increase. It would be asking too much of the mother, children and grandparents to continue contact during this period. In the event that a re-trial is ordered contact will be suspended four weeks prior to the trial which suspension will continue until two months after the re-trial is concluded. This should give the parties and children the space they will need during a very difficult period.
I am satisfied that the orders that I make are in the child’s best interests.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 4 November 2004