Newton & Whiteman
[2013] FCCA 754
•31 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEWTON & WHITEMAN | [2013] FCCA 754 |
| Catchwords: FAMILY LAW – Parenting – existing consent orders between parents – death of Mother – Father has young step-children and baby about to be born who is the subject child’s sibling – child previously lived with parents and attended school in Father’s town – best interest considerations in interim application by Father and residence application by Maternal Grandmother – weight to be given to report from child’s long-time general practitioner – ‘views’ of child expressed to police in application for apprehended domestic violence order sought by Grandmother against Father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(1) & (2), 60CC(3), 60CC (3)(a) – (d), (f), (i), 61C(1)-(3), 61 DA(1) – (4), 65C(ba), 65DAA, 65K |
| AMS v AIF (1999) 199 CLR 160 B. Raphael, The Anatomy of Bereavement, (New York: Basic Books Inc., 1983) |
| Applicant: | MR NEWTON |
| Respondent: | MS WHITEMAN |
| File Number: | CAC 715 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 29 May 2013 |
| Date of Last Submission: | 30 May 2013 |
| Delivered on: (Orders pronounced – Wagga Wagga) | 31 May 2013 |
| Delivered on: (Reasons provided – Canberra): | 9 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | N/A |
| Solicitors for the Respondent: | Watts McCray, Sydney |
ORDERS
THE COURT ORDERS THAT:
Pursuant to Section 68L of the Family Law Act1975 an Independent Children’s Lawyer be appointed for X (“the child”) (d.o.b (omitted) 2004).
The Legal Aid Office, ACT, is requested to make arrangements as soon as practicable for appropriate representation for the child.
Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.
The Independent Children’s Lawyer is exempt from paying fees associated with the issuing of subpoena material.
Pursuant to section 62G(2) of the Family Law Act1975 (‘the Act’) the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.
The Orders of 28 August 2012 are to continue until the end of the current school term. The time that child spends with the Father pursuant to these Orders shall recommence this weekend being 1 & 2 June 2013.
At the end of the current school term the child is to live with her Father and step-siblings in (omitted).
While-ever the child lives in (omitted), she will spend one (1) weekend per month and half school holidays with her Grandmother.
Changeover is to occur at an agreed location, but not at the Grandmother’s residence.
Both parties are restrained from discussing these Court proceedings with the child, or doing so in her presence, or allowing any other person to do so.
Both parties are restrained from saying unkind or unpleasant things about the other to the child, in her presence, or allowing any other person to do so.
Absent cases of emergency the Grandmother is restrained taking the child to any health care professional while the child is in her care.
The matter be adjourned to a date and time to be advised following the allocation of a family consultant.
IT IS NOTED that publication of this judgment under the pseudonym Newton & Whiteman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 715 of 2013
| MR NEWTON |
Applicant
And
| MS WHITEMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
On 31st May 2013, whilst on circuit in Wagga Wagga, I made interim parenting orders in relation to X (who will turn 9 years old in (omitted)), whose Mother (Ms N) died recently following a long and painful illness. What follows are the reasons for those orders.[1]
[1] Notwithstanding the importance for all to have reasons as soon as possible, especially given the nature and delicacy of the matter, I simply note that in addition to being on circuit at the time the orders were made, as well as a number of duty weeks shortly after the return from Wagga Wagga and since, among other things I have also been sitting as a relief Judge in Sydney. Such unavoidable demands on the Court have militated against producing reasons until the present time. The later provision of reasons has also been compounded by some significant ‘information technology’ issues. The delay is surely to be regretted. I should also confess that, contrary to the Full Court’s gracious allowance in Goode v Goode (2007) 36 Fam LR 422 at [74] that “the reasons given at an interim hearing may be brief”, these reasons do not, unfortunately, fit that description. In no way critically, it may be said that while-ever the ‘bricks’ that make up the ‘pathway’ remain as detailed and numerous as they are, together with the ever-burgeoning jurisprudence from courts, the prospect of ‘brief reasons’ is not high, particularly in tightly fought, factually complex cases.
The self-represented Applicant Father, who is a (occupation omitted) with the (omitted) and resides in (omitted) (NSW),[2] filed an Application on 22nd May 2013. It was listed for urgent directions on 24th May. On that day, the Respondent Maternal Grandmother, who resides in a Sydney suburb, was represented by the Canberra agents of her Sydney solicitors. Upon the separation of X’s parents in 2011, X and her Mother had resided with the Respondent since they moved from (omitted), where X had previously attended school – obviously when her parents were together and lived in that locality.
[2] (omitted) is some 112 kilometres north of Canberra;approximately 44 kilometres northwest of (omitted); and approximately 240 kilometres from Sydney. The driving time from Sydney is said to be about 2½ hours.
According to the Father’s evidence, per his affidavit filed 22nd May 2013, in accordance with consent orders entered into between Mr Newton and his former Wife in August 2012, X was to spend the weekend of 18th – 19th May with him. In this regard, as arranged, he picked up X on Friday 17th May at the designated change-over place at (omitted) (a regular spot for change-overs approximately half-way between Sydney and Canberra).
On Saturday 18th May, Mr Newton, his Wife Ms S (with her two young daughters, A, aged 8 and B, aged 6), and X travelled to Canberra for a ‘day out.’ At approximately 12.40pm that day, Mr Newton received a telephone call from a person identified as a Pastor from the (omitted) Church who advised that X's Mother, Ms N, had just died. Mr Newton was asked to bring X to her Grandmother’s residence, but not to tell her of her Mother’s death. Mr Newton did as requested and, upon arrival at the Grandmother’s residence, accompanied her inside to view her Mother’s body. According to the Father’s account, there were approximately 25 people, together with the Grandmother’s 6 (omitted) dogs, in the room, all of them watching X as she approached her Mother’s body. Difficult events for all followed. Those events included that Mr Newton was prevented from seeing or speaking with X for some two weeks or so after her Mother died: hence his Application.
Shorn of all the recent tragedy and understandable tumult and distress, the parameters of the parenting contest detailed here relate to whether X should continue to reside alone with her Grandmother in Sydney and spend time with her Father, or whether she should live with her Father (and his young family of course, which is soon to include a new baby to be born in October) in (omitted) and spend regular time with her Grandmother.
For the reasons that follow, in my view, it is in X’s best interests to live with her Father and spend regular time with her Grandmother. As I explain, X has a good relationship with both her Grandmother and her Father. Such is recognised, or at least conceded by both parties. However, especially in terms of her future, in my view, that is best served with her Father and his young family. Living with her Father will not affect the good relationship X has with her Grandmother.
In addition to the obvious heartbreak at the death of X's Mother, it is also of very significant concern that the parties have not been able to negotiate around even some basic matters, such as X being able to speak and spend some time with her Father in the distressing and fraught days after her Mother’s death. In my view, accepting the need for the utmost delicacy on everyone’s part, including by the Father, this should have occurred. Protracted litigation can hardly assist anyone, least of all X, to deal with her profound loss and the ongoing, grieving process.
In accordance with the instruction from the Full Court in Goode v Goode, at [82], after setting out the orders sought by each of the parties, these reasons proceed as follows: (a) documentary and procedural history; (b) outline of evidence; (c) ‘observations’ on the evidence; (d) submissions; (e) the legislative pathway;[3] (f) consideration & resolution.
[3] Goode v Goode (2007) 36 Fam LR 422. See also the discussion in Keach & Keach (2007) FLC ¶93-353 at [24] ff.
Orders Sought
Orders sought by the Applicant
Final Orders Sought
Child X DOB (omitted) 2004 to reside permanently with her Father Mr Newton.
Mr Newton to be recognised as having Sole Parental Responsibility.
Visitation times with Grandmother Ms Whiteman to be negotiated between the parties.
Interim or Procedural Orders Sought
The Marshal of the Court, all officers of the Australian Federal Police are requested to find and recover [X DOB (omitted) 2004] and deliver the [child] to the [Father Mr Newton DOB (omitted) 1979] following the Funeral of her Mother [Ms N (nee Newton)] on Saturday 25th May 2013 at (omitted) Church, (omitted) NSW at 09:00 and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the [child] may be found.
I request that the order not be carried out by the NSW Police Force due to a concern for the impartiality as the parties involved are intimately linked with the NSW Police Force
Orders sought by the Respondent
Orders Sought by Respondent in Response to an Initiating Application on a final basis:
That the Applicant Father and Respondent Grandmother have equal shared parental responsibility for the child X born (omitted) 2004 ("the child").
That the child live with the Respondent Grandmother.
That the child spend time with her Father in accordance with the Orders made 23 August 2012.
That the Respondent Grandmother have leave to amend her Response upon receipt of recommendations by a family consultant.
Orders Sought by Respondent in Response to an Initiating Application on an interim basis:
That the Father's Interim Application be dismissed.
That the proceedings be transferred to the Sydney Registry of the Family Court of Australia.
That these proceedings be consolidated with File Number (omitted).
That the Applicant Father and Respondent Grandmother have equal shared parental responsibility for the child X born (omitted) 2004 ("the child").
That the child live with the Respondent Grandmother.
That the child otherwise spend time with her Father in accordance with the Orders made 23 August 2012.
That the Father be restrained from:
Denigrating the Respondent Grandmother or her family in the presence or hearing of the child or permitting any other person to do so; and
Discussing the proceedings or the relationship between the Father and the Respondent Grandmother in the presence or hearing of the child or permitting any other person to do so; and
Attending upon the residence of the Respondent Grandmother.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act.
The parties send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
Orders sought by Respondent in Minute of Interim Order forwarded to His Honour on 30 May 2013:
That the proceedings be transferred to the Sydney Registry.
That the Applicant Father's application for interim orders filed on 22 May 2013 be dismissed.
UNTIL FURTHER ORDER:
That the child, X (sic) ("X"), live with the Respondent maternal grandmother.
That there be no contact between X and the Applicant Father until such time as the Expert appointed in this matter has submitted a report to the Court.
A. Documentary & Procedural History
As already indicated, the Father filed his Application on 22nd May. He filed affidavits on that date as well as on 24th May.
The Respondent Grandmother filed her Response on 28th May, and affidavits on that date as well as on 31st May.
Pursuant to a request of the Court on 29th May, the Father filed a further affidavit on 30th May. That affidavit had annexed to it an affidavit and a ‘report’, thus:
(a)The affidavit was sworn by Mr Whiteman, the maternal [step] Grandfather on 30th May 2013 (among other things, he deposes to having been married to the Respondent Grandmother for 22 years, to have known the Applicant Father for 10 years or so, and that he has known X since birth).[4] Mr Whiteman’s affidavit is annexure B to Mr Newton’s affidavit;
(b)The document styled by Mr Newton as a ‘medico-legal’ report is from X’s long-time general practitioner, Dr B, dated 30th May 2013. This report is annexure C to Mr Newton’s affidavit.
[4] In her written submissions, the Grandmother objects to this affidavit on the grounds that the deponent’s evidence “is not objective and should be given no weight.” Why it is “not objective” is not explained. I propose summarising later in these reasons such detail of that affidavit as is relevant to the current application.
As previously noted, both parties filed written submissions on 30th May 2013.
On 24th May, the matter first came before the Court, with the Father in person and the Grandmother’s solicitor’s agents in Canberra. In general terms, the Court indicated a course of action that would enable Mr Newton to see and communicate with his daughter which, up to that time, had not occurred. The Court suggested/requested that the parties discuss possible avenues to resolve the matter by consent. X remained with her Grandmother.
The matter did not resolve and came back before the Court on 29th May in the course of a duty list in Wagga Wagga, with Mr Newton, having obviously travelled from (omitted) attending in person, and the Grandmother’s Canberra agents attending by telephone at the request/direction of the Grandmother’s Sydney solicitor. Of course, the Court could have called the solicitor on the record in Sydney but he preferred that the call be directed to his agent in Canberra.
On that occasion (also as noted earlier) directions were made for the filing of material (specifically an affidavit) by the Father, within 24 hours. I also directed (or noted), without making formal orders, that (i) the parties file written submissions within the same period of time, (ii) an independent children’s lawyer (“ICL”) would be appointed, (iii) a report [pursuant to s.62G of the Family Law Act 1975 (“the Act”)] should be prepared, and (iv) parenting orders would be made on Friday (31st May), which would include the formal orders for the appointment of the ICL and the report under s.62G.[5]
[5] The discussion with the parties in relation to a report included the possibility of a report by a Regulation 7 consultant. Also, an order was made to restrain the Grandmother from taking the child to any psychologist, pending receipt of the s.62G report. The Court has been advised that the parties are scheduled to see a regulation 7 consultant on 10thSeptember. Although the Grandmother said that she wished the report to be conducted in Sydney, her solicitors in Canberra acknowledged that the family consultant (Ms C) “would be an excellent expert for the Court to appoint.” See Transcript (29th May 2013) p.5. Further, I note later that Dr B indicated that there would be no particular issue for X to travel to Canberra for such a consultation.
Written submissions were received by both parties on 30th May. Despite having indicated that reasons would also be provided, it was possible only to pronounce orders on 31st May, with confirmation to the parties that reasons would be provided.
Outline of Evidence: the Applicant Father
In this section I deal with (a) the competing contentions of the parties as set out in their affidavit material, and (b) because of its different provenance, I then to consider Dr B’s evidence set out in his report.
In considering the evidence, I am mindful of the caution expressed in Goode v Goode, at [81], in relation to interim proceedings and the risk or likelihood of ‘conflicting facts’, little helpful evidence, and disputes between the parties to assist the Court in determining what orders should be made in the best interests of the child, in accordance with s.60CA of the Act. In this regard I consider the ‘report’ of Dr B to be of significant assistance because of his long-time involvement with X and her family, and because of a degree of objectivity that is not necessarily found in some of the other material. And, subject to what is said later, by way of general comment, Dr B’s is the most recent, independent material before the Court, as opposed to the more dated or historical medical material relied upon by the Respondent, the bulk of which date only from 2009.
The Father’s First Affidavit (filed 22nd May)
In paragraph 2, the Father deposed: “In July 2012, Ms N was diagnosed with terminal ovarian cancer. As her health deteriorated, she moved in with her Mother… X moved with her, and has continued her regular visits with me. We speak daily on the phone and have a wonderful relationship. X understands that with the passing of her Mother, she would be coming to live here with me… in (omitted).”
I have earlier recounted the initial events that took place on Friday and Saturday, 17th and 18th May. Upon X and her Father arriving at the Grandmother’s residence, the Father deposes that it was the Grandmother who broke the news of the Mother’s death to X. The Father then deposed: “In the room there were approximately 25 people, all silently watching as X approached the body of her Mother laying on a sofa bed.” The Father records that at the motion of the Grandmother, and while still holding her Father’s hand, X approached the sofa where her Mother’s body rested. Mr Newton says that X sat next to her Mother and continued to hold his hand. Mr Newton also says that X showed “no emotion”.[6]
[6] There is also a description in the Father’s affidavit, at par.4, of some of the Grandmother’s dogs walking over the Mother’s dead body while X was present. No comment is appropriate.
Mr Newton went on to say that X turned to her Grandmother to ask if she was “okay”.
The Father then said that the Grandmother turned to him and said in front of X and everyone else in the room: “You know, all Ms N wanted before she died was to make peace with you.” Mr Newton said he did not respond to the Grandmother’s comment.
It was then said by Mr Newton that he went outside with the Pastor from the (omitted) Church, Mr G. The Pastor asked what Mr Newton’s plans were in relation to X, to which the Father responded that his plan was to take X with him for the night (and stay with his parents in Sydney), and then speak with the Grandmother from there. The Pastor indicated to Mr Newton that he thought there would be resistance to this course.
Mr Newton said to the Pastor that he thought that with X staying with him for the night in Sydney it would allow her time to grieve, “instead of feeling she had to support her Grandmother”. Mr Newton also confirmed to the Pastor that he was the only person with parental responsibility for X.[7]
[7] See s. 61C of the Act.
While not completely clear as to where each conversation took place, or where X was at any particular time, a little while later, after the events just recounted, Mr Newton deposed (still at par. 4) that the Grandmother came outside her residence with X and said very loudly to him “you are not taking my granddaughter out of this house”. It is then said that she looked at X and stated “you want to stay with Nanna, don’t you darling?”. Mr Newton said that he told the Grandmother that he did not think it was appropriate to speak about this and that it should be discussed privately between them. He said that he and X spoke with the Pastor; she told her Father that she wished to stay. He said that he told her that he understood, but felt it was very important for her to spend the night with her Father, to which she said “okay”.
Mr Newton says further that the Grandmother, with the Pastor, said that she would not let him take X. To this, he deposed: “As her Father and the only person with parental responsibility, that the decision was my decision to make, not hers.” She replied: “I don’t care. You are not taking her.”
After advising the Grandmother that he would need to call the police (although he did not wish to do so), Mr Newton said to the Pastor that he was fearful this may happen and asked him to ask X to come outside to speak with him. When the Pastor returned to speak with Mr Newton, he said: “They won’t let her leave.”
Mr Newton then recounts conversations with officers at various police stations (pars. 5-10). It is sufficient to note that there is something of a suggestion that, because the deceased Mother (Ms N) was more recently married to a New South Wales Police Constable (Mr T), at different times Mr T spoke with some of his confreres in the police force, which, from Mr Newton’s perspective, seem to have thwarted his attempts to see and speak with his daughter. That said, Mr Newton deposed that he was advised by the police in one conversation that “they” [the Grandmother and her family] wished to keep X for two weeks and then would negotiate handing X over.
Mr Newton also deposed that, as at the time of filing his affidavit on 22nd May, he had not spoken with his daughter since Saturday 18th May, when he left her at the Grandmother’s residence.
On one occasion (see par. 9), Mr Newton deposed that he was advised by police from (omitted) police station that two police officers (including the duty officer) had spoken with X, “and she did not want to see me or speak to me”.
On the following Monday (20th May), in the light of discussions with police at (omitted) police station, Mr Newton was advised that “they have no intention of releasing X to me”. Mr Newton was advised by (omitted) police to endeavour to speak with Mr T (the deceased’s husband). This was facilitated by the police in (omitted).
Mr Newton deposed to a conversation with Mr T that “they knew X would be coming to (omitted), but they just wanted her there to be part of the process leading up to the funeral.”[8] Mr T denied that the family were preventing X from having any contact with her Father. Mr T also is alleged to have said to Mr Newton that there was no problem for him to have contact with X. Mr Newton then advised Mr T that he wished to see X and that he would drive up for a visit. Mr T (says the Father) said “Fine.” Mr Newton proposed that this ‘meeting’ with his daughter take place at a neutral location. He said that Mr T said “I will be there with the police”. Mr Newton said further (still par. 10) that Mr T said, “I am X’s legal guardian and we are doing nothing wrong.” Mr Newton further said that he asked Mr T why he believed he was her legal guardian, to which the reply came, “because I am”.
[8] Unfortunately there are no affidavits from Mr T, or from anyone else, on behalf of the Grandmother. In these interim proceedings, I draw no inference from, and make no other comment on, the absence of affidavit evidence from Mr T, helpful no doubt it would have been. Had Mr Newton been legally represented, perhaps some submission might have been made.
A neutral place was arranged between the Father and Mr T (a park near to the Grandmother’s residence) to meet with X. The time was fixed for 5pm that afternoon. Unfortunately, this agreement foundered and the rendezvous did not occur.
Although not completely clear when he commenced the drive to Sydney with a view to seeing X, Mr Newton said that he received a text message at 4.03pm from the Grandmother, which read “Mr Newton, I have been informed that you want to see X at the park at 5pm tonight. Due to her Mother’s passing, we have organised a memorial dinner tonight and will be unable to meet you. Thank you for your understanding.” Mr Newton replied: “I will come to the house and see her out the front then.” The Grandmother replied (the full text is set out in Mr Newton’s affidavit) to the effect that she felt it was in X’s best interest to have no more stress added to the devastation of losing her Mother two days ago, and requesting the family time to mourn Ms N in peace. Mr Newton then sought confirmation by text message as to whether or not the Grandmother was refusing to let X see him. He said he did not receive a response until 6.32pm, which was as follows: “Absolutely not. As her Father, you are an important part of her life, and will always be able to see her. However at this moment I want you to respect our time to grieve our loss.” He replied: “Great, I will be there in five minutes.”[9]
[9] I assume that, if necessary, the various text messages can and will be produced to the Court.
Mr Newton then deposed that when he pulled up out the front of the Grandmother’s residence, he received a further text which said “We are having a memorial gathering for Ms N tonight, and we need to be left alone at this time.” Mr Newton responded to advise that he was there at the residence at that time. He said that as he approached the front door, the Grandmother came outside. She approached and asked him what he wanted. He said “I would like to see X”. She replied: “No. You cannot see X.” He said: “Why not?”. She replied: “Because I am afraid you will snatch her.” Mr Newton confirmed that he saw X being taken upstairs in the residence and called out to her and said he wished to see her, following which he and the Grandmother had a heated argument. He then left the premises and drove back to (omitted).
To try and relieve or defuse the situation, it might be said that the Father should have sought to negotiate with the Grandmother (or her family) to see X the following morning, as he had already done with Mr T. I understand the concern of the Father. I also understand the concern and delicacy for the Grandmother. However, X was still placed in the middle of terrible circumstances that were largely of no one’s making following the tragic death of her Mother; but she was now prevented from seeing her Father, having been with him and his family only a matter of days earlier.
In the final paragraph of his first affidavit, (par.13), Mr Newton confirmed that he understood that the Grandmother and her family were all grieving, and that he was willing to allow X to stay until the funeral, and to attend it, but that he had been given no opportunity to contact X. He confirmed also that he considered it to be in X’s best interests to continue the grieving process with her Grandmother and with Mr T. His densely-typed, very small-fonted paragraph continued:
… I understand that they [the Grandmother and her family] are all grieving. I am and have been willing to allow X to stay until the funeral and of course attend the Funeral, however I was never given the opportunity too before they refused me contact with X. Even after the events of the last few days, I see that it is in X’s best interests to continue the grieving process with her Ms Whiteman and Mr T. I feel their conduct in such a crucial time in her life shows there is little consideration given to her emotional well-being. Due to the aggressive actions of Ms Whiteman and Mr T in keeping X from me, her Father, in contravention of court order, I now fear they will not allow me contact even after the funeral. It is for this reason I seek a recovery order from the Court to ensure her safe return to my custody.
It does not bear thinking about what the situation might have been if the Father had not brought X back to her Grandmother’s residence when advised and requested to do so upon Ms N’s death. But he did so without pause or difficulty. Nor can one imagine how difficult the trip to Sydney must have been for the Father and his family knowing that X's Mother had just died, explaining to X why the change in plans (whatever her suspicions) in not having a happy day out with everyone in Canberra, yet, apparently, complying with the request of the Grandmother’s family not to tell her about her Mother whilst en route to her residence. It would seem that he followed the Grandmother’s request. All of this said, Dr B noted that even a child would have understood that her Mother’s suffering would end soon.
In the result, and for completeness, the Court did not make the recovery order as sought by the Father.
The Father’s Second Affidavit (filed 24th May)
Mr Newton’s second affidavit is divided into discrete areas: residency details for X; healthcare arrangements; psychological well-being [of X]; schooling; Mr Newton’s work commitments; ‘contact’ arrangements for the Grandmother’s family. In relation to some of these matters, and annexed to his affidavit are
(a)a letter from the Principal of (omitted) School, dated 22nd May 2013, which refers to X having been in Kindergarten at that school in 2010 and the confirmation of additional support being made available for X from the school including from the school counsellor upon her return/re-enrolment;
(b)a letter from Mr D, dated 23rd May 2013, the usual general practitioner for Mr Newton and his family, which confirmed that X had recently seen her (with her Father) and discussed her psychological needs, such as referring her to a psychologist, Mr U;
(c)a letter from Mr Newton’s ‘zone manager’ of the (omitted), dated 23rd May 2013, confirming the support of his employer. The Manager, Mr C, confirmed knowing X since 2009; he says that she is well-known within the community.
Mr Newton deposed as follows in this affidavit.
He confirmed that Mr D has generated a mental health plan for X, and recommended a psychologist, Mr U, to assist further as well. Mr U had sought to speak with X’s psychologist in Sydney, Ms T.
In relation to her schooling, Mr Newton confirmed that X attended (omitted) School between January 2010 and July 2011. He said that during her time there, her Mother was president of the local (omitted) & Mr Newton also said that the Principal has confirmed that X would be placed in a class with the majority of her friends from her earlier stint at the school. Her step-sister A would also be in the same class. Mr Newton confirmed that X has maintained the majority of her close friends from (omitted), which has been possible because of her regular time with her Father in (omitted).
It is sufficient for current purposes only to note further that, according to Mr Newton, X’s only wishes in relation to her return to (omitted) are that she be able to keep in contact with her friend (omitted), to keep in contact with her Nanna and Aunt Ms A, and to play soccer.
Mr Newton again confirmed that he will facilitate X’s relationship with her Grandmother (he has proposed that there be mediation with the Grandmother via Relationships Australia), and that he will be guided by X’s psychologist regarding the manner and frequency of this contact.
The Father’s Third Affidavit (filed 30th May)
This affidavit had as its main focus recent events relating to X’s “health.”
First, he recounted that on 28th May he received a telephone call from a psychiatrist, Dr N, who advised Mr Newton that, at short notice, he had seen X that morning at the request of her Grandmother, who had then brought X to see him. Mr Newton confirmed that he had not been informed of this visit to Dr N (and similarly no consent was sought or given by the Father).
Mr Newton said that Dr N confirmed to him that X “seemed to be coping quite well.” He said that Dr N felt that X “was very resilient” and that [she] “seemed to be making the best of her situation.” Paragraph 2 continued:
He [Dr N] stated that she [X] did say she wanted to stay with her Grandmother. However, he added that he felt her statement was very normal for a child who was moving, not by their choice. … He also stated that he felt that once she made the move to (omitted) she would assimilate back in to life here without issue.
Mr Newton confirmed that he had requested a report from Dr N.
Secondly, Mr Newton advised that he had been contacted by Dr B (on 28th May) who informed him that the Grandmother’s solicitors had sought copies of X’s medical records, apparently without subpoena. Dr B provided those records out of a ‘sense of duty to the Court’. It was not explained on what legal or other basis the records were sought. Presumably the letter from the Grandmother’s solicitors to Dr B will, in due course, be made available. Certainly, no request or notice was given to Mr Newton in relation to X’s medical records.
Thirdly, Mr Newton confirmed that one of his [step] daughters (A) has been diagnosed with Asperger’s Syndrome, which, given his training as a (omitted) and with A’s ongoing treatment, allows him to well manage her ‘significant sensory integration issues’ and co-parent her.
Fourthly, Mr Newton commented on the maternal [step] Grandfather’s affidavit (Mr Whiteman) to the effect that it documented a history of isolation by the Grandmother and her children. He also emphasised, at par.7, that Mr Whiteman (the maternal step-Grandparent, now divorced from the Grandmother) deposed to X's Mother stating to him:[10] “Ms N told me that the move [to (omitted)] was imperative as she felt it would be best if X was not subjected to her mother’s [i.e. the Grandmother’s] negative attitudes and obsessive behaviour.”
[10] There is no date given for the statement, however the context suggests that it was made when X’s parents lived together in (omitted).
Fifthly, Mr Newton confirmed, also at par.7, that X “was a troubled little girl prior to her move to (omitted).” He said that her condition changed for the better whilst living in the ‘relative peacefulness of a country town in comparison to hectic life in the city.’
The Affidavit of Mr Whiteman
This affidavit was sworn on 30th May. As previously noted, it was annexed to the Father’s affidavit filed on that same day. It is somewhat difficult to deal with it because there are no paragraph numbers – only dot points for each paragraph.
Mr Whiteman confirmed that he was married to Ms Whiteman (the Respondent Grandmother) for 22 years, that he was Ms N’s step-father since she was seven years old, and that he was regarded by the Whiteman family (and still regards himself) as X’s paternal Grandfather. He confirmed that he still saw X when she was with her Father.
For the purposes of the interim parenting application I do not consider it apt to detail his narrative of events regarding what he describes as the Grandmother’s alleged mental abuse of a child of his from an earlier relationship ((omitted)), the Grandmother’s alleged [former] dependence on prescription drugs, the alleged self-harm by the Grandmother when another child of hers died quite some years ago, and other matters. I regard only the following matters from his affidavit as immediately relevant.
At a time apparently after Mr Newton and his Wife Ms N moved to (omitted), Mr Whiteman said (p.4, point 3 of his affidavit) that Ms N said to him, words to the effect that she [Ms N] “felt it would be best if X was not subjected to her Mother’s negative attitudes and obsessive behaviour.”
Mr Whiteman said that he has known X's Father for over ten years and that he never had any concerns about leaving Ms A, his daughter (with the Grandmother), in his care.
Mr Whiteman attested to seeing X in her Father’s care, and that in this regard he observed her to be “loving, comfortable and secure” in his presence. He also confirmed that he has observed X with Mr Newton's Wife, Ms S and her two girls, A and B. He said that the last visit to his residence (of X with her Father and his family) was approximately five weeks prior to swearing his affidavit. In relation to that occasion he said: “X was comfortable and secure, and related to her step-siblings with genuine affection. X appeared to relish the interaction with children of similar age.”
The final matter to note very briefly relates to Mr Whiteman wishing to attend Ms N’s funeral, but ultimately he did not do so because of certain things said by or on behalf of the Grandmother’s family to which he took exception.
I have already noted that the Grandmother’s solicitors submitted that Mr Whiteman’s affidavit should be given no weight because it was “not objective.” No other submission or comment was made to support this contention. Absent any evidence or other submission that could be sustained by reference to any relevant statutory or other principle, and given that the Court is dealing with a parenting matter to which s.69ZT of the Act may be taken otherwise to apply, I do not see that the Court could or should ignore the affidavit of Mr Whiteman.
Further, it might also be observed that there is no such thing as a “perspective-less” view. Every witness or party has a perspective or view about events and persons involved in any piece of litigation. The Grandmother obviously has a “view” or perspective about certain events and conduct, and many other things. So too does the Father. However, the mere assertion that someone’s sworn evidence is “not objective” – without explanation for that contention or evidence to sustain it – remains only an assertion.
The Grandmother’s First Affidavit (filed 24th May 2013)
I note that in the Grandmother’s first affidavit, X is named or referred to as “X Whiteman”, but in the Response, she is named “X Newton.” I take this simply to be a typographical error, particularly since both her parents have the name “Newton.”
The Grandmother is a 56 year old (omitted). There is no evidence as to whether she works full- or part-time, or even casually. She deposes to working at the same school X attends. She confirmed that the Newton family (Father, Mother and X) lived with her for one year in 2007, when X's Mother was first diagnosed with cancer. She said that X and her Mother resided with her for approximately three months after the parents separated in 2011, and then later when the Mother required extra care, they returned to live with the Grandmother.
The Grandmother deposed further that when the family lived in (omitted), she visited them (with her daughter Ms A), and that X regularly went to Sydney to stay with her.
The Grandmother confirmed that she has a very close relationship with her grand-daughter, and that as her Mother’s health worsened, she became primarily responsible for X’s care.
Next the Grandmother recounted matters relating to X’s health, such as being diagnosed in April 2009 as having Asperger’s Syndrome. However, she confirmed that X is able to attend a main-stream school.
The Grandmother also confirmed (at par.12) that X was also diagnosed with severe anxiety, general separation disorder and excessive/compulsive anxiety, together with major depression, all of which is said to be related to her Mother’s serious illness.
The Grandmother said that in early 2013 Dr N diagnosed X with an anxiety disorder. She also confirmed that since 2012, X has been attending a counsellor, Ms T. She confirmed, too, that she has been in regular touch with the counsellor and the general practitioner (Dr B) about the best way to assist X in her difficult circumstances. She said that both advised that stable routine and environment are important, and to ensure that she was included in the planning of her Mother’s funeral.
The next part of the Grandmother’s affidavit related to X’s reaction to her Mother’s death. For example, she confirmed that X had significant support throughout her Mother’s illness (and since) and that she was “coping better than might be expected.” The Grandmother opined that this was because of the support she and Mr T had provided, as well as by her daughter, Ms A.
Ms Whiteman confirmed that X’s school had put in place a number of supports for her (pars.17-22). This included that her teachers have been in touch with her to pass on their condolences and to assure her of their support. I pause here to observe that, on the evidence, the Grandmother, the Grandmother’s family, teachers and friends have been able to contact X but not her Father.
The Grandmother also confirmed that X’s best friend, (omitted) and her family have been regular visitors “so X could have someone her own age to spend time with and talk over this difficult time.”
The Grandmother confirmed (par.23) her opinion that it would be in X’s best interest to remain in Sydney with her current supports in place.
The next part of her affidavit is stated to be concerned with X’s time with her Father. In fact, this only occurs for one paragraph (and one further sentence), because its primary focus is to recount the events following the death of X's Mother.
First, the Grandmother confirmed that X has spent time with her Father in accordance with the consent orders of 2012, and that she has had daily telephone time with him also. She contended, however, that Mr Newton refused to spend time with X until the consent orders were made. The basis for this contention is not given.
Secondly, par.25 reads as follows (emphasis added):
… On 18th May 2013, the day that Ms N died, Mr Newton [Mr Newton] brought X to my home to say her final farewells to Ms N, as it was “his weekend” with X. Within half an hour of X arriving at my home, Mr Newton became very confrontational and sought to remove X permanently from my care. I refused to permit X to leave, as I felt it was in her best interests to remain with my family, who were also grieving Ms N’s loss and could support her and comfort her during this time. I did not feel it was appropriate for X to be taken immediately to (omitted), as this would mean she was isolated from all her support networks, and she would have to change schools and cope with a host of changes immediately after her Mother’s death.
Thirdly, she deposed that the Father had sent police to her home “on about six occasions.” She said that on one occasion when the police asked to speak with X she appeared confused by this. She also said that Mr Newton ‘continually called [X] in the days immediately following Ms N’s passing.’ On the Father’s evidence, he did not actually speak with X. She continued, at par.26:
… I understand from comments X made to me that Mr Newton constantly spoke to her about leaving my home and going with him. X became frightened, withdrawn and became panicked whenever the telephone or doorbell would ring. Either myself, Mr T or Ms A would have to comfort her, and reassure her she wouldn’t be taken from her home. She continues to require reassurance that she is safe and will not be removed from my care.
Next, the Grandmother said that because of the Father’s “continued harassment” she obtained an apprehended violence order for herself and X. A copy of that order is annexure A to the affidavit. She also confirmed that X continued to see her paternal Grandparents, on a weekly basis, as they live close to the Grandmother. She said that she is happy to continue this routine.
At paragraph 29 of this affidavit, Ms Whiteman said: “I understand that Mr Newton seeks that the Australian Federal Police attend Ms N’s funeral tomorrow, Saturday 25 May 2013, to remove X from my care.” The basis for this belief was not explained. It may be because of the drafting of the Father’s interim orders, but which should have been understood in the context of his affidavit material. I have earlier recorded the Father’s evidence that he was content for X to attend her Mother’s funeral and for her to take time to grieve with her Mother’s family.
The remaining paragraphs of this affidavit, in general terms, outline her proposals for X to continue to live with and spend time with her Father in accordance with the consent orders of 2012. As set out in full earlier in these reasons, the Grandmother sought to have the matter transferred to Sydney, and for the consolidation of it with the proceeding in which the consent orders were made. Where consent orders were made between X’s parents in August 2012, and where the Grandmother was not a party to them, I do not see the relevance to the current proceeding of the earlier action, other than the final consent orders.
The Grandmother’s Second Affidavit (filed 29th May 2013)
The Grandmother’s second affidavit is much shorter in content, but longer with its annexures. Because there is some repetition with what was set out in her first affidavit, I note the following by way of summary.
In paragraphs 3, 4, 7, 8, 9, 11, and 15 of this affidavit, the Grandmother expresses her concerns about X’s emotional, psychological and psychiatric well-being. She says that she has observed X to have become “even more withdrawn than what she was soon after her Mother’s death”. In circumstances where, as at the date of the orders of 31st May the Father had spent no time with his daughter, and other than the death of her Mother (a signal event recognised by all), the description and cause for X’s deterioration is not explained. However, one inference (which I do not necessarily draw) is that X has not reacted well to being solely in the Grandmother’s care and being cut off from her Father and his family.
Given that she deposed in her first affidavit that X was coping better than expected, in her second affidavit, the Grandmother deposed to a significant deterioration in X’s ‘well-being’. Given that X had not seen or spoken with her Father between the swearing of the two affidavits, there is no evidence (only inference) as to what caused the collapse in X’s condition in the Grandmother’s household.
In paragraphs 4 and 14 she confirms that she thinks that X could “sustain” time with her Father pursuant to the 2012 Orders, but then concludes that it is her view that “If X is forced to spend time with her Father at the moment, it is likely to result in long term psychological harm.” The reason for such a conclusion is not given.
In paragraphs 5 and 6 of the affidavit, she informed that she discussed with X her Father wanting to see her, but X has “flatly said that she does not want to go” to see him, and that in response, the Grandmother arranged for Mr G of the (omitted) Church to see if he could encourage X to see her Father. This was arranged for 28th May, following which Mr G wrote a letter which is annexed to the affidavit addressed to the “Family Court of Australia” [sic] dated 28th May 2013. In that letter, Mr G confirms that he was asked to have a conversation with X in relation to her Father’s request to pick her up on Wednesday morning 29th May. The letter confirmed that X said that she did not want to go. When asked why, Mr G recorded that X said “because of how her Dad had behaved since her Mother had died, and also because she wanted to stay with her Nanna”. He also said that X “now seems frightened to talk to Dad”. He also said that X indicated she would not speak to the paternal Grandparents. The letter concludes with a request to “the Family Law Court” to move swiftly “in arranging mediation to help resolve this difficult situation”.
There is no evidence regarding (a) what X was told by the Grandmother about her Father’s behaviour, or (b) what information was similarly provided to Mr G for his discussion with X.
In paragraph 7 of her affidavit, the Grandmother confirmed that she went to see Dr N on 28th May 2013 to ask him if he could prepare a report for the Court in relation to X. She confirmed that X accompanied her. The Grandmother deposed that upon arriving at Dr N’s surgery he said: “I can’t talk to you about X. The Father has written to me preventing me from discussing X’s condition with you. However I will see X for a short time.”
In paragraph 10, the Grandmother said: “X continually complains about being tired, and about feeling sick if she has to deal with any situation regarding her Father. X has told me she cannot deal with her Father’s fussy behaviour and how he puts her in the middle of everything.” None of these generalised complaints are clarified or explained, certainly in circumstances where there is no information regarding what situations (other than the obvious grief and mourning for her Mother) X has had to deal with in the Grandmother’s household.
In paragraphs 12 and 13, the Grandmother referred to a telephone conversation with X’s psychologist, Ms T, which call seems to have been prompted by a text message received from the Father by the psychologist about seeing X. The Grandmother deposed that Ms T said that it was her view that X should be left with the Grandmother at the moment, and that she would like to see her before she sees her Father.
Before dealing with the annexures to this affidavit, the final matter to note from this affidavit is the Grandmother’s contention that the Father has had difficulties coping with X’s severe anxiety and behaviour. In this regard, she refers to a report from Ms M dated 11th May 2009. The relevance of a comment from 2009 for matters in mid-2013 is not immediately clear. Be this as it may, it remains the fact that X has consistently spent time with her Father and his family in (omitted), and spoken daily with her Father, pursuant to the consent orders of August 2012.
Apart from some pathology tests, which begin the annexures to this affidavit, which relate to X having been diagnosed with glandular fever earlier in 2013, the following reports and letters regarding X are relied upon by the Grandmother:
a)(omitted) Clinical Psychology to Dr B: 21st February 2009;
b)Mental Health Care Plan Report for X, from (omitted) Clinical Psychology: 26th March 2009;
c)Letter from Dr W to Dr B: 1st April 2009;
d)Letter from Dr O to Mr Newton and Ms N: 30th April 2009;
e)Letter from Dr W to Dr B: 6th May 2009;
f)Letter from (omitted) Clinical Psychology to Dr B: 11th May 2009;
g)Letter from Dr P to Dr B: 14th May 2009;
h)Letter from Dr W to Dr B: 6th July 2009;
i)Letter from Dr W to Dr B: 31st July 2009.
To state the obvious: all of these reports and letters are from 2009. Their immediate relevance to the matters before the Court in 2013 is not immediately obvious.
The following further material is annexed to the Grandmother’s affidavit (emphasis added):
·An email from X's Mother to Dr B of 10th June 2009 regarding X’s cruel behaviour to her kitten. In the course of that email, the late Ms N said: “Neither Mr Newton nor I are cruel to anyone! Even verbally, let alone physically!”
·Letter from Dr S (a paediatrician) to Dr B, 18th March 2013, which contains, among other things, the following observations: “The family has been concerned over the last 12 months about X’s complaint of leg pains… There is no doubt in my mind that these pains are ‘growing pains’. Nevertheless, given the family anxiety, it would promote one to want to do some investigations to reassure all concerned and indeed to reassure X.”
·Letter from Dr N to Dr B: 14th February 2013. In the course of this letter Dr N says: “I arranged a follow up conjoint teleconference with her parents in 1 week from 13th February 2013”.
·Letter from Ms T to Dr L: 11th April 2012. In the course of this letter, Ms T said: “X has expressed some insight into her unhelpful thinking patterns, although there continue to be many occasions where she can be reactive due to feeling emotionally dysregulated. Future sessions will be aimed at helping X in managing these emotions more effectively… Following your review, and if you feel it appropriate, I think a further four counselling sessions… will be beneficial for X in further developing her coping skills.”
Report of Dr B
As previously noted, Dr B is the general practitioner of X, and has been so for many years. Aside from formalities set out at the beginning of his report dated 30th May 2013 (e.g. his qualifications, and experience, his compliance with the Expert Witness Code of Conduct as set out in the Uniform Civil Procedure Rules 2005 (NSW)), I note the following from it.[11]
[11] Nothing turns on Dr B’s reference to the Expert Witness Code from NSW as opposed to the usual point of reference in this Court, being the Practice Note “Expert Witnesses in Proceedings in the Federal Court of Australia.”
The report begins: “All adult parties love X and X loves them all. Between the paternal and maternal parties, there has been a serious breakdown of communication and trust for some months, which has deteriorated markedly over the past 8 months.” Then, after outlining some brief history regarding Ms N’s diagnosis and treatment, Dr B observed that, in 2008, “X was brought to me as she regressed. It was reported that she was saying things that indicated self-hatred, self-blame. She also did self-harm and harm to animals. She vocalised her emotions clearly to her parents ‘I should not have been born. I should die.’ etcetera. Both of her parents confirmed these issues on several occasions.”
Dr B continued: “I told both of her parents on several occasions that she was the most mentally disturbed child of that age that I have cared for in my career (NB: this is a middle class area with few social problems).” X was referred for treatment by a psychiatrist, psychologist and a developmental paediatrician: she was prescribed medication.
Dr B reported that a diagnosis was made of Asperger’s syndrome. He considered X’s impairment to be “very mild” and “not significant in comparison to her fear and anxiety issues, which seem to be related to the trauma of her Mother’s illness. However her Mother became very focused on the Asperger’s syndrome side of things.”
Dr B next records that the family remained “happily united” and they moved to (omitted) in 2009.
After noting X's Mother’s condition upon her return to Sydney in 2011, Dr B recorded that in late 2011, X had some adjustment disorder when her Father announced he had a new girlfriend who was the mother of X’s friend from (omitted). Dr B records further some of X’s reaction. He then stated: “My overwhelming impression was that X had improved mentally a great deal in the interval from 2009. I was concerned she would have an adjustment disorder, and she was referred to a psychologist.”
In late 2012, when her Mother was diagnosed with recurrent cancer in the chest, Dr B said that he was concerned that “X would be at high risk of regression” and referred her to a psychologist.
By early 2013, and with her Mother very sick, X's Grandmother, according to Dr B “took over much of the authority and caregiving to X.” He said that there was a concern that X’s anxiety level had increased, and that there would be a risk of relapse. Dr B said: “… her Grandmother thought she would benefit from going back on to fluoxetine”. She was referred to Dr N, a child psychiatrist. He diagnosed an anxiety disorder, which Dr B confirmed is her current official diagnosis.
As her Mother’s health deteriorated severely, Dr B said that in early April, X's Mother became paranoid and her connection with X became rather weak. Dr B said: “Ms N was being cared for in the family room, which was cleared out and a large bed put there. She was on 24-hour infusions of palliative care drugs. X was exposed to all of this. However efforts were made to shield her from the worst of it, particularly episodes of breakthrough pain.”
Dr B stated: “From about 2nd April in (omitted), Ms N became very paranoid and was disconnected from X. X totally transferred her needs to Ms Whiteman [the maternal Grandmother] and Ms A (Ms N’s half-sister).”
On 29th April 2013, X developed acute glandular fever. Dr B noted that she “stayed at home and was very ‘wired’, I think this being anxiety being fed by her Mother’s severe chronic illness.”
On or about 5th May 2013, according to Dr B, “Ms Whiteman [the Grandmother] started X on Lovan 10mg as she found it too distressing to see her condition. Particularly X had marked insomnia and was very wired.” Here Dr B is essentially repeating some matters that he had set out in a letter to Dr N dated 28th May 2013, which is attached to his report.
On 13th May, Dr B recorded that X returned to school but was very tired, and therefore stayed home the rest of the week until she went with her Father on 17th May. The Father contends (which has not been disputed) that he was not consulted or informed about the Grandmother’s decision to [re]commence medicating X.[12]
[12] See Transcript (29th may 2013) p.8.
These and other comments of Dr B prompt certain questions or issues: if X was/is unwell and stayed home from school presumably Ms Whiteman also stayed home from (omitted) with her. As already indicated, apart from Ms Whiteman being a (omitted) at X’s school, there is no other information whether that is part- or full-time or what. X’s care arrangements in such circumstances are unaccounted for. And if Ms Whiteman became unwell, who cares (or would care) for X in the household of just the two of them? Doubtless the school would step in for some things, as the Grandmother says happened while X's Mother was dying. However, such questions or issues are not addressed in any material before the Court.
I note the following in particular from Dr B’s report (emphasis added):
a)24th May was Ms N’s funeral, which Dr B and his wife attended. He noted that X spoke at the funeral. In his report he said, “Some might say she was glib, but I think even a child knew that Ms N’s suffering needed to end some weeks before.”
b)Dr B continued: “I spoke with X on Thursday 22nd May and she seemed very composed and seems to have all the adult parties and their motives pigeon-holed correctly.”
c)He observed: “X is strongly attached to Ms Whiteman and Ms A and Mr T. She is also strongly attached to her Father, but has had only three access visits this year due to a series of mishaps, misunderstandings and coincidences. 27-05-2013 Ms Whiteman told me that X said she is sick of the adults fighting over her which is a sensible view…”
d)Dr B provided the following further critical observation: “X is coping very well with her bereavement. Her mental condition is far better than it was in 2008.”
e)In relation to how X will respond to a visit to (omitted) at the present time, Dr B said:
This will present no difficulty to X of itself. Indeed as the house at (omitted) has been the site of so much trauma, I expect that her anxiety will decrease with a visit to (omitted). The chance of her having meltdown or nervous breakdown induced by a visit to (omitted) is very low. X is acutely aware of the interaction between the adult parties. I expect that she will get a certain degree of anxiety as she knows exactly how the adult parties will respond to a visit.
As I have previously noted, Dr B also provided copies of correspondence with Dr N. It is sufficient for current purposes to note the following from the letter to Dr N of 28th May 2013, where Dr B said (emphasis added):
Last week Mr Newton had arranged an urgent hearing at the Family Court [sic]. Some kind of assessment of X has been arranged (? Psychologist). Yesterday Ms Whiteman requested that I certify that Canberra was too far and too stressful for X to go. I did not do so as I think a single assessment would be okay, but I would not want anyone subjected to repeated trips. However Mr Newton lives in (omitted), so Canberra is easier if X ends up there.
The final matter to note from the material from Dr B is that in his letter to Dr N of 2nd February 2013, he repeated the following from a letter to Dr W in 2009 (emphasis added):
Ms N's Mother Ms Whiteman is very close to her, but unfortunately is not well, despite brave appearances, as she has multi-level PTSD related to medical issues, Ms Whiteman went on to have a hysterectomy due to the family history of cancer, as she wants to ensure she’ll be around for the longer term (for X’s sake rather than her own). Ms Whiteman’s husband Mr G… has recently left her. She went on to have bilateral mastectomies to avoid breast cancer.”
Notwithstanding these comments regarding the Grandmother’s state of health as “not well”, in her affidavit filed on 24th May, she deposed, at par.30, to being “in good health.” It is unfortunate that the Court does not have the benefit of any relevant material that relates, among other things, to the Grandmother’s PTSD to which Dr B refers. Given all the genuine and understandable distress she has suffered recently, her emotional and psychological well-being may well be an issue in the light of Dr B’s comments.[13] Given all the genuine and understandable distress the Grandmother herself has suffered recently, her emotional and psychological well-being may well be an issue in the light of Dr B’s comments to Dr N earlier this year, and reported to the Court in this matter.
[13] In a letter sent in March 2013 to Dr B, Dr S referred to the ‘the family’s concern and anxiety’ in relation to X’s ‘growing pains.’ I take this to be little more than concern about X rather than any reflection on the Grandmother’s psychological or emotional well-being. It may nonetheless be part, albeit a very small part, of the Grandmother’s undivided (maybe intense) focus on X’s well-being, which may foster increased levels of anxiety in X. Again I note that the Grandmother’s former Husband raises issues in relation to her mental health in a number of different contexts. I cannot and do not take such things into account here, save that the comments he reports from X's Mother about her concern to ensure that X is shielded from the Grandmother’s “negative attitudes and obsessive behaviour” cannot, without more, be dismissed. As with all evidence, it becomes a matter of ‘weight’ in the context of all the evidence before the Court.
‘Observations’ in relation to the Evidence
At [82](d) in Goode, the Full Court referred to the need to ‘consider the matters in s.60CC that are relevant and, if possible, make findings about them’. The Court also noted that ‘in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.’ Precisely because of the inability (and imprudence) to make any formal findings, I note the following from the evidence outlined above by way of summary and ‘observation’, some of which has already been remarked.
First, the Grandmother deposed to having no health problems; Dr B said that she had, among other things, multi-level PTSD related to medical issues. As I have just remarked, given that he brought them to the Court’s attention in his report in May, their status and or relevance is unknown. The Grandmother simply states that she is in ‘good health.’ Her former Husband of many years also raises issues about her state of psychological well-being, as does Mr Newton.
Secondly, according to Dr B, the Grandmother sought to have him “certify” that it would be too far and too stressful for X to travel to Canberra; he declined and said that she could do this, provided it was for a single assessment. The attempt by a party to direct the opinion of a health care professional in relation to a child who is the subject of the proceedings is concerning.
Thirdly, in her affidavit material, the Grandmother contended that X had regressed to such a degree that she could not (and would not) see or speak with her Father; according to Dr B, who attended Ms N’s funeral, X spoke at the funeral, and in conversation with him on 22nd May, she seemed very composed. He said that X “seems to have all the adult parties and their motives pigeon-holed correctly.”
Fourthly, the Grandmother contends that X should remain with and be supported by her, and not (at this stage at least) spend time or communicate with her Father; Dr B says that X is strongly attached to her Father (as she is to her Grandmother), she is coping well with her bereavement, and that, particularly because of her Grandmother’s residence having been “the site of so much trauma” he expected that X’s anxiety will decrease with a visit to (omitted). He considered that any risk of breakdown for X would be very low. Dr B also noted that: “X is acutely aware of the interaction between the adult parties. I expect that she will get a certain degree of anxiety as she knows exactly how the adult parties will respond.”
Lest it need to be noted, and for the sake of completeness, it is not as if the Court has no independent report available to it at the present time and should, therefore, wait or adjourn until there is such a report, as indicated by the Full Court (Finn, Boland & Ryan JJ) in Vasser v Taylor-Black.[14] In my view, the report from Dr B fills that requirement in the current circumstances. There will indeed be a detailed report from a family consultant soon enough. However the immediacy of the situation requires the Court to have regard to what is provided to it. Such is often the nature of interim proceedings.
[14] Vasser v Taylor-Black (2008) 37 Fam LR 256 particularly at [48] – [49].
Fifthly, X has been permitted to spend time and communicate with the Grandmother and her family, her school friends and teachers. She has not been permitted to do so with her [step] siblings.
Sixthly, there is no dispute that (omitted) is well-known to X, both in terms of her Father’s residence, the school proposed, and particularly, the young siblings in her Father’s household who are of a similar age to her. The Court may also infer that the youngest member of her Father’s family, shortly to be born, is likely to be a very welcome distraction (and joy) compared to the “trauma” (Dr B’s word) she has endured for such a long time. There is also no issue that Mr Newton's Wife is well-known to X.
In using words like “trauma”, and noting that Dr B uses them, there should not be any hint of criticism against anyone, least of all the Grandmother, in relation to any of the events and care of X leading up to the death of her Mother. ‘Trauma’, tragedy and all similar descriptions are perfectly apposite and accurate, with no criticism at all (intended or implied), of the circumstances that confronted everyone during the Mother’s illness and death. Most of the same terms remain applicable to describe the aftermath of the Mother’s death and the process of grieving that doubtless will continue. Apart from human experience, there is significant literature on the subject.[15]
[15] See for example the well-known study by eminent Australian psychiatrist Beverley Raphael, The Anatomy of Bereavement, (New York: Basic Books Inc, 1983).
There is no question that much of the suffering that has been endured by all (including by the Grandmother), no blame can or should be ascribed to anyone. The suffering and death of Ms N was a tragedy for all over which the siren of illness and fate prevailed. However, in the light of Dr B’s comments, the Court should be cautious to ensure that X’s best interests are paramountly considered, and that there is not, in any way, even a hint allowed that she risks being or becoming a support for her Grandmother. I do not suggest that this is the case, although the Father does so.[16] He contends that X is very conscious about the need, and feels responsible, to keep her Grandmother happy. I cannot and do not make any such finding. Clearly the Grandmother and X have a close relationship, and it is proper that this should continue. However, it cannot, and must not, morph into a relationship of dependency for the Grandmother.[17] Of course, that is something for the Court-appointed psychologist to consider, among other things.
[16] See his comments at Transcript (29th May 2013) p.9.
[17] Such matters are also raised in Mr Whiteman’s affidavit. In the same place, it is alleged that X's Mother also had concerns about her Mother’s impact on X.
The Court is concerned with determining orders that are in X’s best interests in the light of the family tragedy but also in the light of the events since her Mother’s death where, at least until the orders of 31st May, she has been prevented from spending any time with (and apparently communicating with) her Father.
There is one other matter of some significance to mention here.
Annexed to the Grandmother’s affidavit filed on 24th May is a copy of a Provisional Order (ex parte) Apprehended Domestic Violence Order sought on her behalf, dated 21st May 2013. Part of that document sets out the ‘grounds of the application.” On the first page of these grounds the following is recorded (emphasis added):
It should be noted that the Child stated to the Police that she wished to stay with the Victim to view her Mother’s funeral and that she wished to stay a few weeks longer until “everything is sorted out.”
Giving every allowance for her being 8 years old, it is, in my view, very significant that she (a) spoke to Police without any apparent difficulty (or confusion as alleged by the Grandmother; certainly nothing untoward in this regard is recorded) in circumstances of significant concern and alarm on the part of her Grandmother, and (b) expressed very clearly her views to spend some remaining time of a “few weeks” with her Grandmother until things are sorted out. On its face, it shows a significant level of self-possession on X’s part, particularly having regard to all the circumstances in which she was then embroiled.
Submissions
The Father’s brief submissions do little more than repeat his view that he has “grave fears” for the psychological and emotional wellbeing of X at this time, as her condition is clearly deteriorating in the current situation whilst in the care of her Grandmother. Mr Newton relies in particular upon the affidavit of Mr Whiteman, the comments of Dr N as set out in the Father’s affidavit (noted above), and on the Report of Dr B.
Leaving aside submissions relating to the Father’s material going beyond the leave granted by the Court (which submission is incorrect)[18], the Grandmother submitted as follows.
[18] See the discussion at Transcript (29th May 2013) p.10.
First, she submitted that the medical evidence demonstrated that X has “psychological issues that are being managed and require continuous management.” The Grandmother relies upon the letter from Dr N dated 14th February 2013 and X’s sessions with her psychologist.
I do not understand there to be any contest that X has a number of medical issues. They are well documented. The Father is a (omitted). He has set up and provided evidence to the Court about the ongoing treatment, support and care for X in (omitted).
Secondly, in a similar vein, the Grandmother urges caution, particularly without the benefit of input from an ICL and a family consultant. She contends that the Father’s report from Dr N is, in my words, selective, but that the Court should place weight on Dr N’s observation that X does want to stay with the Grandmother. She also urges the Court to continue the involvement of X’s psychologist.
The Court proposes a cautious approach in every respect, and indicated early on the need for an ICL and for an appropriate report. There is a risk always that each side is selectively using comments from Dr N. At this stage it would be improper to attribute too much of anything to what each side has said in relation to comments from Dr N. However, I should note that the Father, a self-represented litigant, deposed against his own interests, Dr N’s comments that X said she wanted to stay with her Grandmother. He also recorded Dr N’s qualification of X’s comments.
It might also be noted that both doctors – Dr B and Dr N – contacted the Father, to apprise him of what was happening in relation to X, the Father not being so advised by the Grandmother. Presumably they would not have done so if they had any cause for concern about the Father.
Thirdly, the Grandmother says that the Court should be cautious in relation to Dr B’s opinion that X is coping very well and that her mental health is better than it was in 2008. The Grandmother urges this caution because he is not a specialist and does not, it is said, set out the factual basis for his observation. I have already observed that in her first affidavit, the Grandmother observed X to be coping better than expected, but then a short while later – with no contact from her Father – she deposed to X’s emotional condition having deteriorated, but without explanation.
I have already noted that the Grandmother confirms that Dr B has been X’s general practitioner while-ever she has resided in Sydney, and that she has consulted him in relation to her care for X. Accepting that he is not a specialist, in my view, Dr B has properly noted his qualifications and experience generally and with the family in particular. In my view, as an independent observer and the treating general practitioner of X of long-standing, together with his qualifications and experience, his evidence, in the current, interim circumstances, is significant.
Fourthly, the Grandmother says that weight should be placed on Dr B recounting to Dr N some history advised to Dr W in 2009. In exercising appropriate caution, the Grandmother urges the Court to wait until the Family Consultant can consider properly the medical history.
It will, most certainly, be important to obtain a report from a family consultant. Such an order was flagged very early on in the proceeding. However, the utility of observations regarding X in 2009 must be of doubtful value.
Fifthly, the Grandmother says that any medical evidence sought to be relied upon by the Father should be treated with caution.
Respectfully, the Grandmother cannot have it both ways. She cannot seek to rely upon, for example, comments from Dr N, but in the same breath say that the Father cannot rely upon comments from the same specialist, absent him being cross-examined.
Sixthly, the Grandmother contends that, having regard to s.60CC(3)(d), there should not be any change in X’s living arrangements.
In this regard, the Court proposes that there be (a) a gradual transition to the Father’s residence so as to allow a reasonable time (of some five to six weeks) for X to remain with her Grandmother for the grieving process to unfold, (b) a report after some of the current tumult settles down (hopefully soon), (c) the assistance of an ICL, and all of this cognisant of the significant supports in place by the Father in (omitted), and X’s familiarity with that locality, its school, and her regular time with her Father (his Wife) and her (step) siblings.
Seventhly, the Grandmother contends that there is no relevant evidence to change X’s residence on an interim basis.
Among a number of things, on all the evidence thus far it is unfortunately the case that X's Father has been effectively shut out of her life in circumstances where this young girl is also endeavouring to deal with the tragic loss of her Mother. Respectfully, in my view, X’s longer-term future is more likely than not to be with her Father and her siblings of similar age, rather than living with her Grandmother in the house where her Mother suffered agonisingly and died. She has and will continue to have a good relationship with her Grandmother. She will continue to spend regular time with her Grandmother.
Eighthly, the Grandmother repeats the submission that very little weight should be given to the report of Dr B in relation to X’s mental state.
I have already noted that in the light of him being X’s long-time GP, and his regular observations of her over time, including very recently, as the only independent witness available to the Court at the present time, his report should be accorded significant weight, in the light of the other evidence before the Court.
Further, in her own material (e.g. her affidavit sworn 24th May, par.14), the Grandmother confirmed that she “consulted with …X's General Practitioner, Dr B, frequently over the course of Ms N’s illness as to the best way to assist X with this extremely difficult situation.” Again, the Grandmother cannot have it both ways: she cannot confirm her regular consultations with Dr B to seek his advice about how best to care for X, and then turn around and say to the Court that his opinions and observations should now be accorded very little weight.
One further submission made on behalf of the Grandmother should be noted. It was made in the course of brief oral submissions by the Canberra agents of her Sydney solicitors by telephone while the Court was in the middle of a duty list in Wagga Wagga on 29th May.
The submission was put on the Grandmother’s instructions to her principals that X was “almost comatose with anxiety.”[19] Some part of this condition was laid at the feet of the Father. However, if X was in such a state, clearly this was not the case (a) when she spoke clearly with the police and specified her views about staying with her Grandmother for a few more weeks until things were sorted out, (b) when she spoke at her Mother’s funeral, (c) when she spoke with Dr B, or (d) when the Grandmother took her to see Dr N. And, as already noted, at the time this submission was made, X had had no time with her Father since her Mother’s death. What was going on in the Grandmother’s residence/household at the time, including the state of anxiety of the Grandmother following her daughter’s death, that might assist in clarifying why such a submission was made has not been provided. Further, the submission regarding X’s alleged “comatose state” and the evidence described as “compelling”, I have already observed, is medical records all by and large dated 2009.
[19] See Transcript (29th May 2013) p.3.
The Legislative Pathway
Before addressing directly the requirements of the legislative pathway, there are a number of [other] sections of the Act that require brief attention.
First, the Grandmother’s Response seeks parenting orders for X to live with her and spend time with her Father in accordance with the consent orders made by this Court between X’s parents in August 2012.[20] She is clearly entitled to seek such orders pursuant to s.65C(ba), which refers to a grandparent as one of a category of persons who may apply for a parenting order.
[20] It will have been noted that in a Minute of Order sought by the Grandmother, she sought orders to prevent X spending any time with her Father pending the receipt of a detailed report, in circumstances where he has had regular time, and daily telephone time with X for months.
Secondly, s.65K deals with precisely the current situation, namely the death of a parent with whom a child lives and where the existing orders make no express provision for what happens to the child in that eventuality.
Section 65K(3) provides: “The surviving parent cannot require the child to live with him or her.” It would appear that the self-represented Father is unaware of this section. It would be remarkable if he were. The existing parenting orders of August 2012 do not provide for the residence of X in the event of her Mother’s, or her Father’s, death.
There is no evidence of the Grandmother’s emotional and psychological well-being following the death of her daughter. Dr B’s evidence remains clear and unchallenged in this regard. And I have also previously raised the lack of evidence about care arrangements for X in the Grandmother’s household in circumstances where the Grandmother’s evidence is that she works as a (omitted) (details unknown) should X become unwell, or the Grandmother herself were to become unwell.
Absent any relevant evidence, it would be for the Court necessarily to draw inferences or to speculate on how or why a residence order in the Grandmother’s favour should be made, and how such an order may, or may not, be in X’s best interests. There is simply no evidence available upon which any relevant conclusion could be drawn in this regard. Certain things may be inferred based on the prior configuration of the household. But, absent relevant evidence, and apart from the ‘status quo’ argument and X’s relationship with her Grandmother (which, in my view, will not change in any event), there is nothing to support the Grandmother’s residence application, at least in terms of X’s ability to live alone with her Grandmother.[27] And this in circumstances where, contrary to the Grandmother’s assertion that she is “in good health”, there is medical evidence put before the Court by Dr B (written in 2009 but repeated in a letter to Dr N in February 2013) that “she is not well, despite brave appearances, as she has multi-level PTSD related to medical issues.” These statements of Dr B are not challenged by the Grandmother. However, in my view it is not appropriate in interim proceedings, without the Grandmother having a further opportunity to explain to the Court whether Dr B’s comments are incorrect or might otherwise be explained, to make any findings in relation to a party not having put relevant evidence before the Court, but which has come to the Court’s attention from another source.
[27]Paragraph 5 of the Grandmother’s affidavit filed 24th May confirmed that the Grandmother’s household consists solely of herself and X.
No one has raised any issue regarding the practical difficulty and expense of X spending time with either party. This has been occurring for some time (between Sydney and (omitted)) without apparent difficulty - until the recent events.
In relation to the capacity of each party to provide for X’s needs, and subject to other remarks already made, I do not understand that, at least in day to day matters, there is any issue raised against the Grandmother or the Father. I need not repeat what has been said in relation to the Grandmother living alone with X for any length of time and the lack of evidence in being able to provide for her needs, including her emotional needs, in such different circumstances. X formerly lived with her Father in (omitted). However, it may be observed (again) that there will be a number of different sources of support in his residence not available in the Grandmother’s residence, notably that of her [step] sisters, and the stimulation of a new baby. As significant as the Grandmother’s family has been (and doubtless will remain) to X, there will be no Father present daily, or sibling presence in her Grandmother’s residence. It will be just the two of them – Grandmother and grand-daughter. None of this is said, or should be taken, as criticism. It simply records the factual reality.
The matters to be addressed pursuant to sub-paragraph (g) have, in the reasons already noted, been considered. In particular I draw attention to the comments of Dr B regarding the maturity of X and her “coping very well with her bereavement.” He also observed that she “seems to have all the adult parties and their motives pigeon-holed correctly.” This would suggest that some have or do not give her credit for capacities recognised or identified by Dr B in coping with all the stresses and strains in her life to which she has been subjected of late, and the relatively modest adjustments that would flow from a residence order in favour of her Father. She would be assured too of spending regular time with her Grandmother, each month and in each school holidays (plus telephone time). Further, those same persons seem not to have recognised the need for X to be removed from the place of so much of her Mother’s suffering and trauma (as noted by Dr B), and thus her need for respite from such an environment.
In relation to sub-paragraph (i) regarding the ‘attitude to the child, and to the responsibilities of parenthood,’ a number of the comments already made apply here, such as in relation to the Grandmother’s failure to facilitate any time between X and her Father. Again giving every allowance for the distress of and difficulties for the Grandmother and her family, and accepting that she did not appreciate how concerned (with increasing degrees of anxiety) the Father was (or was becoming), simply to exclude him from all contact with his daughter was not appropriate.
In relation to sub-paragraphs (j) and (k) of s.60CC(3), it is somewhat difficult to comment further. On the one hand, the Court has the Mother’s email from June 2009 which may be taken to attest to the generally irenic nature of X’s parents. On the other hand, in circumstances of very high and understandable emotion and drama (on all sides), the Grandmother obtained an Apprehended Domestic Violence Order (“ADVO”). Given that there are no other incidents of this or any other kind complained of, I propose treating the circumstances outlined in the ADVO as an aberration.
Two further matters should be noted here, however.
In the ‘grounds of the application’ for the ADVO the police recorded the following (the text has been slightly amended to provide words fully spelt): “The Victim [the Grandmother] had not agreed to return the Child to the Defendant due to current family law court orders in place which state that - The child would have primary residence with Ms N at (omitted). Also, the Victim wishes the Child to be a witness to her Mother’s funeral.”
First, the August 2012 orders do not say what the police have recently recorded. There is no mention of an address at all in the orders. It would be speculative to suggest from where the police obtained this inaccurate description of the orders, save that it must have come from the Grandmother or her family. Yet again, I allow for the emotionally charged circumstances to account for such embellishment.
Secondly, I do not recall there to be any suggestion by the Father, as alleged by the Grandmother, that he sought to prevent X from attending her Mother’s funeral (in fact, his affidavit evidence clearly states quite the opposite), or that he was arranging for the Australian Federal Police to attend the funeral to remove X from the Grandmother’s care.
Given the recent history of this matter, unfortunately I am not confident that any order made, particularly one that would change X’s residence, will lead to a diminution of litigation.
There is one other matter to note here under s.60CC(3)(m), which relates generally to the Grandmother’s health. I have already mentioned it in part because Dr B raised it. It cannot be anything more than a ‘notation’, perhaps for some consideration in the future when there is more detailed medical history of the Grandmother available. It is this. In Dr B’s report he stated (in 2009 but repeated at p.2 of his letter to Dr N dated 2nd February 2013):
Ms N's Mother Ms Whiteman is very close to her [Ms N] but unfortunately is not well, despite brave appearances, as she has multi-level PTSD related to medical issues. Ms Whiteman went on to have a hysterectomy due to the family history of cancer, as she wants to ensure she will be around for the longer term (for X’s sake rather than her own). Ms Whiteman's husband Mr G … has recently left her. She went on to have bilateral mastectomies to avoid breast cancer.
Having regard to the primary considerations in s.60CC(2), the evidence confirms that X has, and I have little doubt, will continue to have a meaningful relationship with her Father and her Grandmother. In my view, this will remain so under the orders of the Court and the change of residence to her Father and spending very regular time with her Grandmother. With change-over to take place at an agreed location, but not at the Grandmother’s residence, and with non-denigration and non-discussion orders, in the light of the longer history of apparent little difficulty of X spending time with her Father, it would seem that the intense, current contest might be largely attributable to the terrible tensions and distress that have over-flowed leading up to and following X's Mother’s death. Apart from the healing balm of time, the continuing support for X as outlined, and the cessation of court (and any other) hostilities, subject to what is recommended by the family consultant in due course, it is difficult to see what [further] therapeutic intervention should be immediately prescribed.
I turn then to other matters that require consideration.
Parental Responsibility
Not for the first time I note that the August 2012 orders provided for equal shared parental responsibility in favour of X’s parents. Consequent upon Ms N’s death, ss.61C(1) and (2) came into effect with the consequence that Mr Newton was (and remains) the only person with parental responsibility for his daughter X.
Leaving to one side the strict terms of s.61DA(1), which refers specifically to a parenting order in relation to a child, the presumption in favour of equal shared parental responsibility, and particularly to “the child’s parents”, as does s.61DA(4) refer to “the child’s parents, the signal issue here is whether, under s.61DA(3), the presumption should apply to the Father and the Grandmother, or whether, in making an interim order, “the Court considers that it would not be appropriate in the circumstances.”
In my view, for all of the reasons outlined here, it would not be appropriate. Until some reasonable time has passed and the dust of the litigation has (hopefully) settled, and in view of (a) the consent orders of last year and (b) the orders to be made here, parental responsibility should remain with Mr Newton. It is likely that, in due course, given how much time X will spend with her Grandmother in any event, an order should be made reposing some responsibility with her while-ever X spends time with her. However, that time has not arrived.
Further, in the eventuality that such an order just described is made in favour of the Grandmother, given the recent history of her failure to involve Mr Newton in, or even inform him of, X attending health care professionals, or that X had been placed back on medication, there would likely be orders restraining her (such as there will be here) from taking X to any such health care provider, absent an emergency.
Accordingly, the appropriate order “in the circumstances” here should be that the parental responsibility order that flows from the consent orders in August 2012 in favour of Mr Newton should remain.
The effect of this result is that there is no need to consider the terms of s.65DAA.
Consideration & Resolution
In a parenting case that involved relocation, and obviously in a different legislative context to the present, Hayne J said (internal citations omitted):[28]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[28] AMS v AIF (1999) 199 CLR 160 at p.228 [204] & [205].
The ‘chaotic complexity of real life’ of which his Honour spoke is clearly on display in this matter. There is no doubt that the Grandmother and the Father both love X very much. Somewhat perversely that is borne out by the nature and earnestness of the contest.
To the tragedy that has befallen all must now be added the litigious contest between people whom X also loves dearly. This can only be done, particularly in interim proceedings, by the careful following of the legislative pathway prescribed by the Act, and as detailed by the Full Court in the cases to which I have referred, such as Goode v Goode and Keach & Keach. Even in following all such steps, it still involves, in the words of Kirby J in AMS v AIF (said also in the context of a parenting application that involved relocation) a “large element of judgment, discretion and intuition.”[29] Such is the nature of discretionary judgments, particularly in interim applications.
[29] AMS v AIF 199 CLR at p.211 [150]. To be fair too, the complete context of his Honour’s remarks relates, respectfully, to appellate review of discretionary decisions.
First, I remind myself that any orders made must place X’s best interests as paramount.[30]
[30] See s.60CA of the Act.
Secondly, I note (as summarily as possible) the competing bases that support the orders sought by each of the parties.
On the Father’s side, the matters that favour the orders he seeks are:
(a)It is not disputed that X and her Father have a close relationship.
(b)His home environment includes young [step] daughters/sisters who are of a similar age to X, and who X has lived with regularly each month and each school holidays. The Father also has the attraction (if that is the appropriate word) of a baby soon to be born. He also contends that his Wife, Ms S, has a good and close relationship with X. To the degree necessary (but not as a formal ‘finding’ of fact), the good family relationship of the father with X is supported by the affidavit of Mr Whiteman, the [former] paternal step-Grandfather. The same affidavit contends that X's Mother supported her living with her Father, and not with her Grandmother.
(c)The school proposed by the Father is well-known to X. It has confirmed its ability to support her. And one of her sisters will be in her class.
(d)The Father has also provided evidence from relevant health care professionals of support and assistance for X.
(e)The Father contends that X understands and accepts that she will move to her Father’s residence. Her “terms” for doing so are uncontroversial. Her “views”, as reported by the Father, and her well-being generally, are supported by her statements to the police and by the comments and observations of Dr B. Her request or preference to stay for a ‘few weeks’ with her Grandmother before moving to live with her Father, as recorded by the police, is both insightful and mature in the circumstances.
(f)There is also no dispute from the Father of the importance of X’s relationship with her Grandmother. He proposes that X spend regular time with her Grandmother. There is neither record nor history of the Father not returning X to the Grandmother’s residence following time with her Father.
(g)The psychological well-being of the Grandmother is put in issue by Dr B, and also by Mr Whiteman.
On the Grandmother’s side, there is no dispute that X has a good and close relationship with her Grandmother (and her side of the family) and has lived with her for a significant period of time, albeit that, but for the last few weeks, with her Mother also present. In a somewhat short-hand way, this might be considered to be a ‘status quo’ argument.[31]
[31] In this regard I note the comments of the Full Court in Goode, at [66] – [73] in relation to such arguments.
There is also no dispute that X has been attending the same school for the duration of her time living with her Grandmother, and that she has the support of her friends and school.
The Grandmother essentially contends that X is best placed to live with her and spend regular time, as per the August 2012 orders, with her Father. She contends that (a) she is in good health, and (b) X is at risk of emotional and psychological risk if she is removed from her care.
There is no evidence available to the Court regarding proposed care arrangements for X in the Grandmother’s care if either X became ill (assuming the Grandmother was at work), or the Grandmother became ill.
Apart from the allegations against the Father, but acknowledging that he has not spent any time with X up to the making of orders on 31st May, there is also no evidence regarding an assessment of the Grandmother’s household, since X's Mother’s death, regarding what might otherwise be causing the distress and alarm reported by the Grandmother. Nor is there any evidence of how the Grandmother is coping with the death of her daughter, and any possible impact that her emotional and psychological state may have on X.
The Court also has the oral submission, put on the Grandmother’s behalf, that X was in something like a comatose state at her Grandmother’s residence – without having spent time with her Father since he returned her to the Grandmother’s care on the day of her Mother’s death. Apparently there were no issues for X being in his care over that weekend. There are no allegations about X’s well-being – in any respect – when the Father brought her back to the Grandmother’s residence. He brought her back to Sydney without complaint.
To repeat: these matters are put in issue not only by the Father’s contentions but more so by the independent report of Dr B, which notes (a) significant health matters for the Grandmother (at least in 2009, but repeated in a letter to Dr N in February 2013) but about which the Court has no other information, and (b) his observations of X, among other things, speaking at her Mother’s funeral, and in conversation with him, where she “seemed very composed and seems to have all the adult parties and their motives pigeon-holed correctly.”
It is concerning that, according to Dr B, the Grandmother sought to influence his medical judgment in relation to X.[32] Apart from submitting that the Court should be cautious about Dr B’s opinion in relation to X, the assertion by him regarding the Grandmother seeking to influence his decision is not challenged.
[32] For ease of reference I set out again the relevant part of Dr B’s report: “… Ms Whiteman requested I certify that Canberra was too far and too stressful for X to go. I did not do so as I think a single assessment would be ok but I would not want anyone subjected to repeated trips.”
I also put it no higher than an observation that, on the one hand, the Grandmother relies upon Dr B for purposes which she says warrant the Court keeping X in her care.[33] Yet in other respects, she urges the Court to be very cautious in having regard to Dr B’s assessment of X coping well and her general state of mental well-being.
[33] See the Grandmother’s submissions, par.7.
It is also concerning that the Grandmother has chosen recently not to involve, or to inform, X's Father regarding her visits to health professionals.
Conclusion
The tumult of this matter has doubtless been exhausting and troubling for all concerned, particularly in the circumstance of the traumatic death of X's Mother. It can have been in no one’s interests, least of all X’s, for it to have reached such a level of acrimony and dispute over a young girl’s residence and ‘spend time with’ arrangements.
There are arguments to support the respective positions of the parties. However, in my view, the weight of matters on the Father’s side is such that the orders he seeks, to live with him and to spend regular time with her Grandmother, are in X’s best interests.
The deciding factors for this conclusion are the very helpful and independent report of Dr B. As the principal, independent evidence (report) before the Court, and allowing for all qualifications and caution in interim proceedings, his long-time care of X places him uniquely to comment and observe on her well-being. His evidence is significantly at odds with that of the Grandmother. His evidence supports, to a not insignificant degree, the contentions of the Father.
His evidence, while in no way conclusive, puts in issue also the Grandmother’s health, including her mental health. This is also challenged by Mr Whiteman, but I do not place too much weight on his evidence at this stage.
Further, the Grandmother’s position regarding X living with her requires the Court to extrapolate from the position where X has lived in her household but with her Mother present, albeit in varying states of ill health in recent times. This is also to say that there is little or no evidence (a) how X will adjust or cope with living [alone] with her Grandmother (without her Mother), and/or (b) how the Grandmother (with or without any medical conditions of the kind to which Dr B refers) will cope similarly, without her daughter and with X alone.
There is no evidence of the Grandmother’s work commitments, other than the statement that she is a teacher and works at the school X attends. There is no evidence of the care arrangements that might or would obtain if either she or X became ill, the household comprising just the two of them.
What is available to the Court, via the independent comments from Dr B and also briefly noted in the police document to which I have referred, is a picture of X that presents her, amidst the din and travail of the recent traumatic circumstances, as being quite self-possessed, having a clarity of thought and significant insight into her situation, and a recognition of the need to spend some time with her Grandmother to bring some “closure” to at least part of the grieving process before moving to reside with her Father. She has, on this view (and some credit must be accorded to both sides of the family in this regard) a not insubstantial resilience to which Dr N refers – as represented by the Father. Philosophers tell us that suffering brings endurance, among other things. X certainly has had a surfeit of suffering. It is time for some respite for her, away from the strain and disturbance she has endured. Such – again – was helpfully noted by Dr B - and is not challenged.
In no way critically is it said that in the Grandmother’s house there will only be an adult with X, whereas in the Father’s house, there are adults and young children of X’s age, and the baby to come. X will have the best of all worlds in being able to live with her Father (and the young family he has) and still see and spend regular, quality time with her Grandmother.[34]
[34] In her own evidence, the Grandmother recognised the importance for X of being able to speak and spend time with children of her own age. See her Affidavit filed on 24th May 2013, par.22. X will have such attention and opportunity all the time in the Father’s residence.
Again by way of observation - but nothing more – given the vigour with which the matter has been conducted, there is a hint that one side (or perhaps both) has pursued this contest with the unfortunate misconception that for X to live with the other party will mean that she will somehow be “lost” to the non-resident person. Clearly, that is not, and should not be, the case.
As indicated early on in the proceeding, there will be an order for an Independent Children’s Lawyer, and for a detailed report pursuant to s.62G, when that can be arranged. In my view, the ideal time for that will be for a few months’ time, when there has been some cessation of hostilities.
Two final observations. First, X needs both her Father (and his young household) and her Grandmother. In my view, her best interests are served by living with him and spending regular, quality time with her Grandmother.
Secondly, the matter has been approached with a degree of urgency which, respectfully, is not completely warranted. There appears to have been a concentration on what is urgent rather than what is undeniably important. The Grandmother contends that X is in something approaching (if not already in) dire (mental and psychological) straits, and therefore in need of the most urgent intervention, particularly by this Court. Respectfully, I suggest that a calmer, less interventionist approach would have assisted all, not least X.
There is no dispute that X has been generally “ok” in the Father’s and the Grandmother’s households up until the death of her Mother. It is almost trite to observe that the tragedy of recent events has clearly taken its toll. How the exclusion of the Father from X’s life since that time has impacted on her is not clear, other than the Grandmother’s heightened assertions about X’s well-being and the risk to her of going into her Father’s care. But since her Mother’s death, she has only been in her Grandmother’s care, and seemingly only told by her (or members of her family) of the Father’s wish to speak/spend time with her.
There is independent medical and other evidence that presents X as being both a resilient and insightful young girl, with a maturity beyond her years. Doubtless such a maturity has been forged in the furnace of the affliction that has surrounded, if not almost enveloped, her for some time. I stress again that much of the suffering has been of no one’s making. Indeed, for all of the tragedy that has beset everyone here, this judgment is not intended to be some elegiac lament for what has happened. Rather, it is intended to assist both parties in looking positively to the future (also with the assistance of the ICL and the family report to come) with X. That is where the focus needs to be, and not on litigation and its terrible cost – financially and in every other respect.
The Court can only, and must, rely on the evidence before it. That evidence points quite strongly, in my respectful view, to X residing with her Father and spending regular time with her Grandmother. Her future is primarily with her Father and her young siblings. To say this is not to criticise or to exclude the Grandmother. She is, must be, and will be an important figure in X’s life. The orders made, in my view, are in X’s best interest, and provide important balance and protection to ensure that, absent agreement between the adults in X’s life, her relationships with her Father and her Grandmother, as well as her siblings, are able to flourish, or at least perdure – to the degree such can occur under the thrall of Court orders.
For the foregoing reasons, the orders on 31st May were made.
I certify that the preceding two hundred & twenty-four (224) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 9 July 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Remedies
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