NORSE & HOWIE
[2011] FamCA 699
•5 September 2011
FAMILY COURT OF AUSTRALIA
| NORSE & HOWIE | [2011] FamCA 699 |
| FAMILY LAW - CHILDREN – whether the child should spend time with or communicate with the maternal grandmother when the father and the Independent Children’s Lawyer oppose any such order – where the evidence of the expert witnesses supports no order being made – where the maternal grandmother does not accept the evidence of the expert witnesses but has presented no alternative expert evidence to challenge what they say – where the mother has discontinued her response and elected to take no further part in the proceedings – where the child has been diagnosed as suffering from a reactive attachment disorder and a moderate intellectual disability with delayed language development and is receiving ongoing therapy and counselling – where the maternal grandmother lacks insight into the child’s special needs – where consideration must be given to the child’s right to enjoy his Aboriginal culture – where the father does not dispute that it is important for the child to be exposed to his Aboriginal heritage, culture and language and is prepared to do whatever is necessary to facilitate that – where it is found that it is in the best interests of the child not to spend time with or communicate with the maternal grandmother – where the maternal grandmother is to be provided with regular updates on the child’s progress in therapy and counselling and schooling – all previous orders discharged – child to live with the father. |
| Family Law Act 1975 (Cth) s60B(1), (2) & (3), s60CA, s 60CC(2)(b), (3)(a), (3)(b)(ii), 3(d), (3)(f)(ii), 3(g), (3)(h), (3)(j), (3)(l) & (3)(m), s 61C, s 61DA(1) & (4), s 65DAA(1) & (2) |
| Aldridge & Keaton (2009) FLC 93-421 |
| APPLICANT: | Mr Norse |
| RESPONDENT: | Ms Howie |
| INDEPENDENT CHILDREN’S LAWYER: | Karen Tydeman |
| FILE NUMBER: | ADC | 1741 | of | 2007 |
| DATE DELIVERED: | 5 September 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 22-25 February 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms T Lewis |
| SOLICITOR FOR THE APPLICANT: | Scales & Partners |
| COUNSEL FOR THE RESPONDENT: | Mr M Forth |
| SOLICITOR FOR THE RESPONDENT: | Mark Forth & Associates |
| THE INDEPENDENT CHILDREN’S LAWYER | Ms K Tydeman, Legal Services Commission of SA |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr D Childs |
Orders
That all previous orders made in relation to the child J born … July 1999 be discharged.
The said child live with the father.
Within fourteen [14] days of receiving the same the father provide to the maternal grandmother copies of:
(a) any reports that he receives from Mr P, Psychologist and any other health professional in relation to the progress of the said child;
(b) any school report in relation to the said child.
Within fourteen [14] days of any change the maternal grandmother inform the father of her new residential address and telephone number.
Within fourteen [14] days of any change the father inform the maternal grandmother of his new residential address.
The order made on 28 May 2007 for the appointment of an Independent Children’s Lawyer be discharged.
All applications and responses be otherwise dismissed and removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Norse & Howie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 5638 of 2007
| Mr Norse |
Applicant
And
| Ms Howie |
Respondent
And
| MS KAREN TYDEMAN |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This was an unusual and complex parenting case with the proceedings extending over a number of years back to 2001.
Final consent orders were made on 14 March 2006 but further proceedings were instituted on 2 April 2007 by the father. Then the maternal grandmother, Ms Howie instituted her own proceedings on 28 June 2007 which were subsequently consolidated with the ongoing proceedings between the parents.
The first day of the trial took place on 11 August 2008 with the parties being the father, the mother and the maternal grandmother.
The mother and the maternal grandmother are Aboriginal Australians.
There is one child, J born in July 1999 who is the subject of the proceedings. He has been diagnosed as suffering from a reactive attachment disorder and a moderate intellectual disability with delayed language development.
On the first day of trial it was agreed by the parties that the matter should be adjourned to await the outcome of J’s ongoing therapy and treatment with the psychologist Mr P. That treatment commenced in January 2007 upon referral from the Principal Clinical Psychologist with Families SA
Part of the agreement was for Mr P to introduce and include the mother and the maternal grandmother in the treatment program.
At the time of the commencement of the trial J lived with the father, and since at least late 2006 he had not spent any time with the mother and the maternal grandmother save and except at two observation sessions with
Mr F, Psychologist.
Following the first day of trial, although there was some success involving the mother in Mr P’s treatment of J, it was otherwise with the maternal grandmother, and in fact Mr P made a recommendation that she not be involved any further in the program because of her negative attitude and her disruptive behaviour, and the damaging effect of that on J.
When the trial resumed on 9 February 2009 the mother failed to appear and her solicitors filed a Notice of Ceasing to Act. Then, on 24 February 2009 the mother filed a Notice of Discontinuance of her Response, and thereafter she has taken no part in the proceedings which continued initially at least as a dispute between the father and the maternal grandmother as to with whom the child should live.
The conclusion hearing eventually commenced on 22 February 2010. By this time, and indeed from 3 August 2009, the maternal grandmother had changed her position and instead of an order that J live with her she sought that he spend time with and communicate with her.
The trial continued on 23 and 24 February 2010, but on 25 February 2010 the maternal grandmother failed to appear. Her solicitor and counsel Mr Forth, advised that he had instructions to again amend the orders that she sought such that all she now wanted was that J spend time with and communicate with her at such times as the parties may agree. However, the father opposed that order and it was not supported by the Independent Children’s Lawyer.
I raised with Mr Forth whether there were any other orders that the maternal grandmother still sought from her further amended Response and after some discussion paragraphs 11, 12 and 13 were nominated. They are as follows:
11.The parties are to provide each other notice in writing within 7 days of any change to their residential address or contact telephone number.
12.That the appointment of the Independent Children’s Lawyer be discharged.
13.All applications do otherwise stand dismissed.
Given the opposition of the father and the Independent Children’s Lawyer to the primary orders then sought by the maternal grandmother, Mr Forth eventually contacted her by telephone and the trial proceeded with the maternal grandmother attending by telephone. Apparently the maternal grandmother had decided to simply return home to Town 1 assuming that orders would be made as she then wanted.
The trial concluded later that day and judgment was reserved.
In the end result, the orders sought by the maternal grandmother were as referred to above, and the father still sought that the maternal grandmother’s response be dismissed, that all previous orders be discharged and that J continue to live with him. The Independent Children’s Lawyer supported the orders sought by the father.
Factual Background
I have already briefly touched on the background and history of this matter, but I consider that to appreciate the conflict that J has been exposed to and to understand and appreciate the current proceedings it is necessary to now set out the factual background in some detail.
The respondent maternal grandmother was born in 1952 and at the time of the hearing was aged 57 years.
The applicant father was born in 1977 and at the time of the hearing was aged 32 years.
The mother was born in September 1977 and at the time of the hearing was aged 32 years.
The father says that he commenced cohabitation with the mother in 1998, however the maternal grandmother asserts that cohabitation between the mother and the father commenced on 1 March 1997.
The child was born in July 1999 and at the time of the hearing was aged 10 years.
In July 2001 the mother and the father separated. The mother and the child moved to Town 1 Victoria to live with the maternal grandparents. The father says that he was unaware of the mother’s whereabouts after separation.
On 20 August 2001 the maternal grandmother took the child to be examined by the local family doctor, Dr M. The maternal grandmother was concerned about aspects of J’s development.
On 28 August 2001 the mother commenced proceedings in the Family Court in Melbourne seeking orders that the child live with her and that the father spend limited time with the child.
On 25 September 2001 the father filed a response seeking competing orders, namely that the child live with him and that the mother spend time with the child.
On 27 November 2001 Registrar Fitzgibbon made a consent order that the father have contact with the child for the first week in each month, and appointed a Separate Representative for the child.
On 6 June 2002 a family report was prepared by Mr C, Family Court Counsellor.
On 24 December 2002 Dr F, Paediatrician prepared a report on the instructions of the Separate Representative and this was then filed on
29 January 2003. The child was found to have “mild to moderate” developmental delay and features of an autism spectrum disorder.
Between April and May 2003 the father says that the child was in the mother’s care and present when a dispute arose between the mother’s partner and another male, resulting in the mother’s partner being stabbed. He says that the mother and her partner were located by the police driving in a ‘very’ intoxicated state with the child in the vehicle, and that reports were made to the Victorian Department of Human Services.
On 4 March 2004 a family report was prepared by Mr R, Psychologist.
During 2002, 2003 and 2004 orders were made for the child to have increasing amounts of time with the father.
In August 2004 the father married Ms N.
In September 2004 the father’s child T was born and at the time of the hearing was aged 5 years.
On 11 October 2004 Registrar Fitzgibbon made interim parenting orders and granted leave to the maternal grandmother to intervene. The parenting orders provided for the child to live with each of the father, the mother and the maternal grandmother during specific times.
On 6 November 2004 Mushin J made the following orders:
…
2. That until further order the child [J] born on […] July 1999 live with the father.
3. That until further order the father have the sole duty and responsibility of making all decisions with respect to the said child’s day to day care, welfare and development.
4. That until further order the mother and the grandmother have contact with the said child as follows:
4.1during the school semester in 2004 on each alternate weekend between the hours of midday on Friday and 4:00pm on Sunday commencing on 12 November 2004;
4.2from 3:00pm on 18 December 2004 to 3:00pm on Christmas Day 2004;
4.3from 3:00pm on 13 January 2005 to 3:00pm on 27 January 2005;
4.4during first school semester in 2005 from 3:30pm on Friday to 4:00pm Sunday of each alternate weekend commencing on 4 February 2005;
4.5thereafter during school semester 6:30pm on Friday to 4:00pm on Sunday of each alternate weekend;
4.6for half of each school semester holiday to be agreed between the parties and failing agreement the first half; and
4.7as may be otherwise agreed between the parties.
…
On 28 September 2005 Mr R, Psychologist filed an affidavit annexing his family report dated 5 September 2005.
On 14 March 2006 Young J made final parenting orders by consent as follows:
1. That all previous orders as to residence and contact be discharged.
2. That the parties retain joint responsibility for the long term care welfare and development of the child of the relationship, [J] born […] July 1999 (“[J]”).
3. That each party have responsibility for [J’s] day to day care, welfare and development whilst he is in their respective care.
4. That [J] reside with the Father.
5. That the Mother exercise contact to [J] as follows:
(a)During Term 1
(i)on Adelaide Cup weekend from 6:30pm Friday until 4:00pm Monday each year;
(ii)the weekend three (3) week later from 6:30pm Friday until 4:00pm Sunday each year.
During Term 2
(iii)the second weekend in May from 6:30pm Friday until 4:00pm Sunday each year;
(iv)on the Queen’s Birthday weekend from 6:30pm Friday until 4:00pm Monday each year.
During Terms 3 & 4
(v)each 4th weekend after school recommences for that term from 6:30pm Friday until 4:00pm Sunday each year.
(b)in the event the mother is in Adelaide on [J’s] birthday on a school day for two (2) hours as agreed in default of agreement from 3:30pm to 5:30pm or six (6) hours on a non-school day as agreed but in default of agreement from 9:00am until 3:00pm provided always that the mother gives the father fourteen (14) days notice in writing of her intent to do so with changeovers to occur at the McDonalds Restaurant closest to [Police Station 1].
(c)for nine (9) days in each of the school term holidays by agreement and failing agreement the first nine (9) days from 6:30pm the day school finishes.
(d)for half of the long Christmas holidays on dates to be agreed and in default of agreement from 24 December in even numbered years and 27 December in odd numbered years commencing at 12 noon on each of those days.
(e)by telephone;
(i)each Thursday between 6:00pm and 7:00pm South Australian time;
(ii)on [J’s] birthday;
(iii)the Mother’s birthday;
(iv)on her siblings birthdays.
(f)further and other times as agreed between the parties.
(g)changeover to occur at [Locality T] Victoria unless agreed otherwise and evidenced in writing.
6. That the parents each do all things necessary to ensure that each of them receives (at their own expense) copies of all school notices and newsletters and any order forms for school photographs.
7. That each of the parents is to keep the other informed of;
(a)their current residential address and landline telephone number at all times and to notify the other within seven (7) days of any change to either provided telephone numbers are used exclusively for telephone contact and facilitating arrangements for [J].
(b)any curricular and extra curricular activities pertaining to [J].
(c)any serious injury or illness suffered by [J].
8. That each of the parents by themselves and their agents be and hereby is restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, or their respective partner or parents, to or in the presence or hearing of [J] and from permitting any other person so to do.
9. That each of the parents by themselves and their agents be restrained by injunction from stopping [J] from telephoning the other parent at any time he may wish to do so.
10. That all extant applications be dismissed and removed from the list of cases awaiting a final hearing.
11. That each of the parents do all things necessary to ensure [J] is aware of and educated with respect to his Aboriginality as far as is reasonably practical.
…
On 31 March 2006 the father says that the child became ‘very upset’ on realising he was leaving for an access visit saying, “[n]o mummy, no nanny, no [Y], no go to [Town 2], stay with daddy, stay with daddy”, and “[d]on’t want to like mummy”.
On 6 April 2006 the father alleges that during several attempts by the maternal grandmother to speak to the child, the child would hang up the phone and not speak to the maternal grandmother. The maternal grandmother then demanded that the father “supervise [J] and also that [he] remove [his] daughter (then 22 months old) from the room…”.
On 12 May 2006 the father alleges that the child said to him several times, “[n]o mummy, stay with daddy, no go mummy’s, no go [Town 2], no nanny’s car”. He says that on being returned to him the child had ‘very bad eczema’ which covered most of his face, behind his knees and inside his elbows and groin, and that when he left the father’s care his skin was clear.
On 14 May 2006 the father alleges that when he collected the child at the conclusion of an access visit, the child ran from the maternal grandmother’s vehicle and refused to kiss the maternal grandmother or say goodbye, and he placed his fingers in his ears. When the father asked the child if he had a good time with ‘mummy, [Z] and [Y]’, he replied, “[n]o mummy, no [Z], no [Y]”. The father alleges that the child was stressed and he could not understand what else he was saying.
On 29 May 2006 the father alleges that the child said numerous times, “[s]tay with daddy, no mummy, no [Town 2], no nanny, no nanny’s car”.
On 1 July 2006 the father alleges that when the child spoke to the mother on the telephone he said, “[n]o [Town 2], no [Town 2], no mummy, no nanny”.
On 6 July 2006 the father alleges that when the child spoke to the mother on the telephone he said, “[n]o see mummy, no go [Town 2], stay with daddy, no see mummy, no go [Town 2]”.
On 7 July 2006 the father alleges that the child repeatedly said, “[s]tay with Daddy, no see nanny, no see mummy, no [Town 2]”.
On 15 July 2006 a report was provided by Dr L, Paediatrician confirming that the child did not have autism but was developmentally behind for his age.
On 17 July 2006 when the father collected the child from a visit with the mother he alleges that the child was ‘very upset’ and continually said, “[s]tay with daddy, stay with daddy, no see [Y], no see mummy, no see nanny”, and that after this visit the child’s behaviour noticeably deteriorated.
In August 2006 the father says that the child did not want to visit the mother saying, “[n]o see mummy, no go, no see nanny”.
On 20 August 2006 the father alleges that when he picked up the child he was not as upset as he had been in the past, but he kept saying, “[n]o hit [Z], no hit [Z]”, and that in late August the child kept saying continuously, “[s]tay with daddy”.
On 23 August 2006 the father contacted CAMHS to arrange for the child to see a counsellor, and as a result he was referred to Mr P, Psychologist.
On 22 November 2006 the father alleges that the child was ‘very distressed’ after a call from the maternal grandmother and refused to speak to her. He yelled and he threw the telephone across the back lawn.
On 23 November 2006 the father alleges that the child again refused to speak to the maternal grandmother.
In November 2006 face to face contact between the mother and the child ceased.
On 18 January 2007 the father alleges that the maternal grandmother telephoned the child twice and that the child screamed at her and disconnected the call.
Mr P, Psychologist, commenced therapy and counselling with the child in January 2007.
In March 2007 the maternal grandmother’s telephone communication with the child each Thursday ceased.
On 6 March 2007 Mr P reported that the child was exhibiting signs of reactive attachment disorder and pervasive developmental delay stemming from pathogenic and severely compromised early care.
On 2 April 2007 the father filed an Initiating Application in the Adelaide Registry of the Family Court seeking that order 5 of the orders made by Young J on 14 March 2006 be discharged and that the mother have supervised visits with the child at a Children’s Contact Centre at such times and dates as agreed between the parties.
On 28 May 2007 Forbes JR made an order that the child be separately represented and adjourned the case.
On 31 May 2007 the mother filed a Response to an Initiating Application seeking orders that the parties have joint responsibility for the child and that the child spend time with her and communicate with the maternal grandparents.
On 28 June 2007 the maternal grandmother commenced proceedings in the Federal Magistrates Court seeking orders that the child spend time with her.
On 17 August 2007 the father filed a Response to the maternal grandmother’s proceedings.
On 20 August 2007 the proceedings in the Federal Magistrates Court were transferred to the Family Court.
On 20 August 2007 Forbes JR made the following orders:
1. That paragraph 5 of the order of 14 March 2006 be suspended.
2. That the mother is to spend time with the child [J] born on […] July 1999 under the supervision of [N Contact Centre] at times and under such conditions as indicated by the service.
3. That each party must:
(a)contact the [Contact Centre 1] within seven (7) days to arrange an appointment for assessment for suitability for supervised time with the child;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Service for supervised time with the child;
(d)comply with all reasonable rules of the Contact Service; and
(e)comply with all reasonable requests or directions of the staff of the Contact Service.
4. If following its intake procedure [Contact Centre 1] is unable or unwilling to provide supervision, then either party or the Independent Children’s Lawyer shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
…
On 6 December 2007 the father alleges that following the observed interaction between the mother, the maternal grandmother and the child by Mr F, Psychologist for the purposes of his family assessment report the child was “agitated and emotionally flat” and “had bouts of vomiting and diarrhoea”.
The father asserts that in 2007 the mother had supervised time with the child at Contact Centre 1 and the child reacted to the mother by throwing things at her. This resulted in the Centre indicating that they were unable to assist the family.
On 23 January 2008 Mr F provided his Family Report.
On 21 February 2008 Dawe J made the following orders:
1. The father permit the child [J] born on […] July 1999 to communicate by telephone with the mother every Thursday on the following conditions:
(a)the mother telephone the father’s landline or such other telephone number that he may advise between the hours of 6:00pm and 7:00pm;
(b)the mother not discuss these proceedings or any proposal that [J] spend time with the mother or the family of the mother during her telephone conversations with [J].
2. The maternal grandmother’s Application in a Case filed on 20 September 2007 be dismissed.
…
On 11 June 2008 the father, the mother and the maternal grandmother attended a child dispute conference with Mr G, Family Consultant.
On 11 August 2008, on the first day of trial an interim resolution was achieved which entailed an adjournment for six months. The following orders were made by consent:
1. The child continues therapy and treatment with [Mr P] (“the treating Psychologist”).
2. The Mother and maternal grandmother be at liberty to communicate with the treating Psychologist regarding the child’s progress, welfare and development.
3. The child’s therapy be conducted with a view to introduce and include the Mother and maternal grandmother into the therapeutic program as soon as practicable and consistent with the child’s best interests.
4. The Mother communicate with the child by telephone each Thursday between the hours of 6:00pm and 7:00pm and that the Mother shall make such telephone call to the Father’s landline or such other telephone number.
5. The Mother and maternal grandmother may communicate with the child by posting to the child any letters, cards, presents, parcels, or photographs and that the Father shall ensure that the child receives the items forwarded by the Mother by post, in consultation with the treating psychologist.
6. The Mother and maternal grandmother shall recommence spending time with the child upon the recommendations of the treating Psychologist.
7. The Father shall forthwith advise the Mother in writing of the following:
(a)The name of any school that the child is attending or will attend in the future.
(b)The names and contact details of any medical or health professionals that the child attends with; and
(c)The names and contact details of any childcare centre or any childcare provider that the child attends with.
8. The Father forthwith authorise and direct the child’s school or educational institution to:
(a)forward to the Mother at the expense of the Mother all school reports, school photos and school notices;
(b)communicate with the Mother regarding the child’s progress, welfare and development.
9. The Father shall forthwith direct and authorise any medical or health professional that the child attends with to:
(a)forward to the Mother at the cost of the Mother all reports and assessments regarding the child’s physical or psychological health; and
(b)communicate with the Mother regarding the child’s progress, welfare and development.
10. The Father will immediately notify the Mother of any serious health issue or medical emergency affecting the child.
11. The Father advise the Mother of any change of address or change of contact details within 24 hours of any such change of address or contact details.
12. The matter be otherwise adjourned for a period of six months to 9th February 2009 at 9:00am.
AND THE COURT NOTES
A. That pursuant to paragraphs 3 and 6 it is expected that the Mother shall be either introduced into the child’s therapeutic program or resume spending time with the child within 6 months of the making of this Order unless otherwise advised by the treating Psychologist.
At the request of Mr P, on 2 February 2009 the D Medical Centre Children’s Assessment Team provided a report diagnosing the child with a moderate intellectual disability and as having delayed language development.
On 5 February 2009 the maternal grandmother filed an application seeking orders that Mr S prepare a family report and that the father permit the child to communicate by telephone with her between 6:00pm and 6:30pm each Tuesday. This application was opposed by the father.
On 5 February 2009 the maternal grandmother filed an Amended Response to an Application for Final Orders seeking the following orders:
1. That all previous orders in relation to the child [J] born […] July 1999 be discharged.
2. That the maternal grandmother, mother and father have equal shared parental responsibility for the child.
3. That the child live with maternal grandmother and that the maternal grandmother be permitted to relocate the child from the State of South Australia to the [Town 1] region of Victoria.
4. That the child spend time with and communicate with the mother and father as agreed between the parties or otherwise as ordered by the Honourable Court.
5. That the appointment of the independent children’s lawyer be discharged.
6. All application [sic] do otherwise stand dismissed.
On 9 February 2009 the mother failed to appear at the adjourned hearing although she had continued to have telephone communication with the child pursuant to the consent order of 11 August 2008. Neither the father nor the maternal grandmother knew of the mother’s whereabouts however, the father undertook to advise the mother that she should appear on the next occasion so that her views could be taken into account.
On 12 February 2009 the mother’s solicitors filed a Notice of Ceasing to Act.
On 24 February 2009 the mother filed a Notice of Discontinuance of her Response to an Application for Final Orders and she has taken no further part in the proceedings since then.
On 24 March 2009 the maternal grandmother’s application filed on 5 February 2009 was dismissed.
On 15 April 2009 the father filed an Amended Initiating Application seeking just one order, namely that the child continue to live with him.
On 30 May 2009 Mr F provided an updated report. At page 17 of that report he made the following recommendations:
Recommendations
1. That [J] remains in the full-time care of [the father].
2. That [J] remains in psychological therapy with [Mr P].
3.That [the maternal grandmother] not have face-to-face or telephone contact with [J] until [Mr P] deems it safe for [J] to pursue a relationship with her.
4.That [the maternal grandmother] completes counselling or training to help her develop an appreciation for the nature and consequences on [J] of his disabilities.
5.That [the maternal grandmother] and [the father] be directed by the court to not denigrate each other to [J].
On 9 June 2009 the first day of the hearing resumed and orders were made for the filing of documents for the purposes of the conclusion hearing.
On 3 August 2009 the maternal grandmother filed a Further Amended Response to an Application for Final Orders seeking the following orders:
5. That the child [J] born […] July 1999 spend time with and communicate the [sic] maternal grandmother as follows:
a.From 1.00pm on the first Saturday to 1.00pm on the middle Saturday each short school holiday period each year; and
b.From 1.00pm on the first Saturday to 1.00pm on the second Saturday of the Christmas New Year school holiday period each year; and
c.From 12.00noon to 4.00pm each Saturday on occasions when the maternal grandmother is spending time in metropolitan Adelaide; and
d.From 4.00pm to 6.30pm on the child’s birthday each year; and
e.By telephone between 6.30pm and 7.00pm each Wednesday; and
f.At such other times as the parties agree.
6. All handovers for the purpose of paragraphs 5a and 5b take place at [Police Station 2] Victoria.
7. All handovers for the purpose of paragraphs 5c and 5d take place at the [Police Station 3] South Australia.
8. For the purpose of time spent with the child in terms of paragraph 5c the maternal grandmother is to advise the father of the dates when the maternal grandmother is spending time in metropolitan Adelaide at least 72 hours prior to the subject Saturday.
9. For the purpose of telephone communication the maternal grandmother shall call the father’s landline telephone number or in the event that the father does not have a landline number the father’s mobile telephone number.
10. The maternal grandmother is to provide the father with an address and contact telephone of the child during his time with the maternal grandmother.
11. The parties are to provide each other notice in writing within 7 days of any change to their residential address or contact telephone number.
12. That the appointment of the independent children’s lawyer be discharged.
13. All applications do otherwise stand dismissed.
On 18 August 2009 the parties attended upon Ms X, Family Consultant but no agreement was reached.
On 31 August 2009 Mr P filed an affidavit annexing his reports of 6 March 2007, 1 May 2008, 20 May 2008, 22 October 2008, 18 December 2008, 26 February 2009, 29 March 2009, and 13 August 2009.
A continuation hearing took place on 16 September 2009.
On 21 October 2009 an order was made that pursuant to s 69ZT(3) of the Family Law Act all of the provisions of the Evidence Act referred to in s 69ZT(1) of the Family Law Act were to apply in these proceedings.
On 22 February 2010 the conclusion hearing commenced.
The trial concluded on 25 February 2010 when judgment was reserved.
The current circumstances of the parties and the child
The father
At the time of the hearing the father lived with his wife Ms N who is now aged 30 years, their child T who is now aged almost 7 years, and J, in a three bedroom house with all the modern amenities. There is also a garden area where the children are able to play.
J has his own bedroom as does T.
The father does not work, taking on the role of “house husband” and carer. Ms N works and supports the family.
J attends School 1 having commenced there in January 2006. At the time of the hearing he was in Special School Year 5. He receives special assistance because of his disabilities. The school puts in place a learning plan and sets goals for each year. According to a school report (Exhibit C1) for the 2009 year J was progressing at school as expected.
J continues to receive therapy and counselling from Mr P, and at the time of the hearing he was seeing him on a fortnightly basis. J also receives assistance with speech therapy through the school.
At the time of the hearing J was attending tutoring to supplement his schooling in the areas of english and mathematics.
Although there was no order for it, at the time of the hearing the father permitted J to have telephone contact with his mother on Thursdays of most weeks. However, J had no contact with the maternal grandmother.
The evidence is that J has been improving over time; he has gained weight, his anxiety levels have dropped, he is speaking better, and he is socialising better, but he is still behind in many of these areas. He lacks confidence and “people skills”, he gets nervous, he is still insecure, he is still vulnerable and defensive.
The Maternal Grandmother
Ms Howie and her husband live on a hobby farm of 20 acres, 21 kilometres out of Town 1 in Victoria. Their nearest neighbour is three kilometres away. The house they live in has two bedrooms but at the time of the hearing it was claimed that they were building another bedroom onto the house.
Mr and Ms Howie have seven grandchildren. Apart from J, three live in South Australia, and three live in Town 1. The latter three are the mother’s other children and they live with her.
Ms Howie works part-time, usually on Tuesdays and Wednesdays. She also receives a part-pension. Mr Howie works three days a week as the manager of a construction industry business.
Ms Howie is also involved with the Aboriginal community at Town 1. She does voluntary work taking the elderly shopping.
The applicable legislation
In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). Primarily those provisions refer to the parents of the subject child or children but that does not mean those considerations are to be ignored where the dispute is between a parent and a non-parent, namely a grandparent as is the case here (Mulvaney & Lane (2009) FLC 93-404, Aldridge & Keaton (2009)
FLC 93-421, Donnell & Dovey (2010) 42 Fam LR 559, Kitsannis & Netopoulis & Anor [2010] FamCAFC 214, and Malcolm & Monroe and Anor (2011) FLC 93-460). Moreover, there are some specific references to grandparents (and other parties) throughout those provisions. Thus, I propose to set out all of the relevant provisions regardless of whether grandparents or others are specifically mentioned to indicate the many and varied factors that can be taken into account where relevant (for example, via s 60CC(3)(m)).
The objects of the provisions of the Act relating to children are:
a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
b)to protect the children from physical or psychological harm; and
c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
(Section 60B(1))
The basic principles underlining those objects are that except where it would be contrary to a child’s best interests:
a)children have a right to know and be cared for by both parents; and
b)children have the right to spend time on a regular basis with and communicate with on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture.
(Section 60B(2))
For the purposes of the last principle, an Aboriginal child’s right to enjoy his or her Aboriginal culture includes the right:
a)to maintain a connection with that culture; and
b)to have the support, opportunity and encouragement necessary;
i)To explore the full extent of that culture consistent with the child’s age, developmental level and the child’s views; and
ii)To develop a positive appreciation of that culture.
(Section 60B(3))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, the Court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of s 60CC, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Section 60CC(3))
The Court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the Court. (Section 61C)
Under the provisions of s 61DA(1) when making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the Court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the Court does not make an order for the child to spend equal time with each of the parents the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))
The issues in dispute
As identified above, the ultimate issue for determination is whether the child should spend any time with or communicate with the maternal grandmother. The maternal grandmother seeks such time and communication as may be agreed, but the father opposes any order, as does the Independent Children’s Lawyer.
In taking this stance both the father and the Independent Children’s Lawyer rely very much on the evidence and recommendations of the expert Psychologists, Mr P and Mr F.
However, when the dispute was one primarily between the father and the mother, the major focus of their respective cases was how the child’s condition had been caused. The mother was saying that it arose prior to separation as a result of the father’s alleged violence to her and his drug taking, and the father was saying that although he and the mother used drugs and exposed the child to conflict prior to separation, the condition arose after separation as a result of the mother’s inadequate care of the child and her exposure of him to abuse, violence, drug taking and excessive alcohol use.
Then when the maternal grandmother instituted her own proceedings she took up the mother’s case, but the father alleged that she had been aware of the mother’s lack of care and stood by and failed to protect the child.
This aspect of the dispute was re-ignited by Mr P and Mr F initially at least seeming to accept the father’s version of events. I hasten to add though that Mr P’s evidence at trial was that his views were formed on the basis of his own observations, including of the child’s reaction to the mother and the maternal grandmother, and his own assessment of the child’s disabilities and their cause, rather than what he was told either by the father or indeed by the mother and the maternal grandmother.
In any event all parties then saw it as necessary in order to achieve the orders they sought from the Court to present material supporting their respective positions, and that continued even after the mother discontinued her proceedings. For example, a good deal of the maternal grandmother’s affidavit of evidence-in-chief was devoted to this issue and she annexed, inter alia, reports which she submitted established that almost immediately after the parties separated in July 2001 the child was not only recognised as having but was diagnosed as suffering from a developmental delay suggestive of autism.
It is said that the reports reflect the efforts by the mother and the maternal grandmother to identify what problems the child had.
In addition, the maternal grandmother annexed to her affidavit and sought to rely on various family assessment reports prepared in the Court proceedings which commenced in Victoria in 2001.
For the father’s part, his affidavit also addressed this issue at length, and he annexed case notes and other documents obtained from the files of the Victorian Department of Human Services in relation to the mother and her children including J between approximately July 2001 and May 2007. These documents also include references to the maternal grandmother and observations of her role in the matters that the Department was investigating.
It is said that these documents indicate that the mother failed to provide adequate care for J when he was with her, and that the maternal grandmother was aware of this and she was complicit by not doing anything to protect the child. Further, the documents reveal that the mother exposed the child to abuse and violence, and to excessive alcohol use and to drug taking, and that again the maternal grandmother was aware of this and failed to protect the child.
However, as I attempted to explain to the parties and their legal representatives, the dispute about the cause of J’s disabilities is no longer of any relevance, and particularly given that the mother has discontinued her action. Thus, I do not propose to refer in detail to this material. What I will say though is that it is apparent that not long after separation the child was diagnosed as having a developmental delay but there is no doubt that his condition was exacerbated when in the care of the mother subsequently.
It also cannot be forgotten that final parenting orders were made by consent on 14 March 2006, and indeed during the trial I indicated that given the maternal grandmother was looking to vary those orders the starting point in terms of relevant evidence was the date of that order.
Clearly, a number of the reports relied on by the maternal grandmother, and some of the case notes relied on by the father pre-dated that order, and in that regard, with the agreement of the parties, I ruled that in the absence of the authors of the reports or the case notes being called I would only receive as evidence those parts of the reports and the notes that were cross-examined on, and I would then give that evidence such weight as was appropriate.
It is also not in doubt that it is important to know the background and history of this matter to appreciate the dispute that currently exists and how it has arisen, and to that extent some of the earlier matters raised in the reports and the case notes are obviously relevant. However, it is no longer determinative of the decision that I now have to make, namely whether the child is to spend any time with the maternal grandmother or communicate with her, how the father and mother behaved prior to separation or whether it is the case that prior to the final order which provided for the child to live with the father the mother failed to adequately care for the child.
It is relevant to know though how it came about that subsequent to the final order the child ceased to spend time or communicate with the mother and the maternal grandmother. The father says that his behaviour noticeably deteriorated, he would become distressed around seeing his mother and the maternal grandmother, and he constantly needed reassurance. In particular, he would become hysterical and refuse to attend for contact or speak to the mother and the maternal grandmother on the telephone.
However, the issues are in fact even more confined than that. J is receiving therapy and counselling for his disabilities from Mr P and Mr P’s strong recommendation, supported by the Mr F, is that the child not spend any time with or communicate with the maternal grandmother because there are serious risks to the child’s future development otherwise.
The maternal grandmother does not accept this recommendation, but she has presented no alternative expert evidence to challenge what either Mr P or Mr F say. She has put in issue though, as she is able to, whether Mr P is correct in his criticisms of her behaviour and attitude. That is an issue that I have to determine and that may affect the outcome.
That leaves perhaps one other issue to mention and that is the push by the maternal grandmother to ensure that the child is exposed to his Aboriginal heritage, culture and language. Her case is that she is the only one who can achieve that and it would involve the child in spending a good deal of time with her in Town 1 and its surrounds where the relevant Aboriginal community people are located.
The father does not dispute that it is important for the child to be exposed to his Aboriginal heritage, culture and language, and he is prepared to do whatever is necessary in that regard. However, again he relies on the expert evidence of Mr P and Mr F. Mr P says that given J’s disabilities he simply will not be able to comprehend or cope with what the maternal grandmother has in mind. Mr F helpfully interviewed a direct descendent of the relevant Aboriginal community, Mr K, who explained that there were other avenues to expose J to his heritage and culture than the process that the maternal grandmother had in mind. I will elaborate on this later in my reasons. Nevertheless, it is still an issue that I have to give due consideration to.
The evidence
The father was represented by Ms Lewis of counsel. The father relied on his affidavit filed on 4 September 2009 and his parenting questionnaire filed on
11 May 2009. He gave evidence and was cross-examined.
The father called one witness, namely his mother Ms C Norse, who filed an affidavit on 9 September 2009. She gave evidence and was cross-examined.
The maternal grandmother was represented by Mr Forth. She relied on her affidavits filed on 28 August 2009 and 26 October 2009, and her parenting questionnaire filed on 14 May 2009. She also sought to rely on affidavits filed by the father in 2003 and 2005 “to the extent that they contain inconsistent statements” and subject to cross-examination. The maternal grandmother gave evidence and was cross-examined.
The father sought to rely on case notes and other documents obtained from the Victorian Department of Human Services, and the maternal grandmother sought to rely on various medical reports and family assessment reports from earlier proceedings without any of the authors of these documents being called as witnesses. I ultimately made two rulings about this material during the trial, namely:
a)the medical reports, the family assessment reports and the case notes are before me to the extent that they are used to cross-examine the experts Mr P and Mr F, and I will give whatever weight to that evidence as is appropriate in the circumstances;
b)any other evidence that predates the final orders made on 14 March 2006 is not to be before me subject to any specific application to rely on such evidence.
In general terms these rulings were followed however, as one would expect it was necessary to hear and read about historical matters to understand and appreciate the dispute that is currently before the Court.
The Independent Children’s Lawyer was represented by Mr Childs. He relied on the family reports of Mr F dated 23 January 2008 and
30 May 2009, and he called Mr F as his witness. He gave evidence and was cross-examined.
By agreement between the parties Mr P was called as a witness by the Court. The reports of his that were before the Court and relied on at least by the father and the Independent Children’s Lawyer were his reports of 6 March 2007, 1 May 2008, 20 May 2008, 22 October 2008, 18 December 2008,
26 February 2009, 19 March 2009 and 13 August 2009. Those reports and the letter of instruction seeking those reports were all annexed to an affidavit of Mr P’s filed on 2 September 2009. Mr P gave evidence and was cross-examined.
The father was described by Mr P as a “gentle man”. That is a description that certainly accords with my assessment of him when giving evidence. Indeed he gave his evidence reasonably well, and such that wherever there is a conflict I prefer his evidence to that of the maternal grandmother.
The father’s mother, Ms C Norse also gave her evidence well, and similarly, where there is a conflict I accept her evidence in preference to that of the maternal grandmother.
Ms C Norse corroborated the father’s evidence as to what occurred at handovers, including the abusive behaviour of the maternal grandmother and the increasing reluctance of the child to spend time with the mother and the maternal grandmother. The latter was graphically illustrated by the contents of the DVD that was tendered and marked Exhibit F1. The distress and hysterical reaction by the child to the prospect of being taken to see the mother and the maternal grandmother was plain for all to see and hear.
It was also her evidence that since the child ceased spending time with the mother and the maternal grandmother there had been a “substantial turnaround” in the child’s behaviour and demeanour. She described him as “happy, more communicative, less agitated and … progressing with his school work and socially.” I accept the truth and accuracy of this evidence.
As to the maternal grandmother, I confirm that I was not impressed with her evidence. I was also concerned not only with her presentation but with her attitude to the Court. That of course culminated in her simply up and leaving before the case had concluded.
In her evidence she conveniently tended not to recall things that she had said or that she had done which impacted negatively on her.
Wherever her evidence conflicts with the evidence of the father, the mother, Mr P or even Mr F, again I prefer the evidence of each of them to her evidence.
I observe that I have confirmed my initial impressions and assessment of the evidence of the parties and their witnesses by reflecting on my contemporaneous notes and by listening to the audio recording of all of the evidence.
In relation to the evidence of Mr P as to what the maternal grandmother said to him and how she conducted herself she claimed that he misunderstood or misinterpreted her comments and her actions. I reject that claim.
She denies that she described Mr P as “weird” in his interaction with the child, and that he was part of a “conspiracy”. I accept that these comments were in fact made.
She claimed that Mr P “did not want her in [J’s] life”, but if that is analysed it is hard to understand why that would be his position.
This all points to the maternal grandmother being obsessive about J. Not only was this apparent to me from her presentation and her evidence in Court, but Mr F found her to be “paranoid” as a result of his psychometric assessment of her.
Her response to this was to suggest that Mr F got this wrong, but I do not accept that.
Further in relation to Mr F, she challenged all that he said about her in his report. For example, in his first report Mr F said that there was no eye contact between her and the child, and in his second report he said that although there was eye contact it was never maintained, but the maternal grandmother claimed again that he was wrong. She also challenged his observations of how J reacted to her when they met in his presence. Again, I accept the truth and accuracy of the evidence of Mr F
Not surprisingly then the maternal grandmother denies that she needs counselling or training in relation to J’s disabilities as suggested by Mr F in his latest report. She claimed that she “understands [J] perfectly”.
Disturbingly the maternal grandmother threatened to sue Mr F over his report, but typically she denied that she had done so. I have no doubt that she made this threat.
Mr P is an experienced psychologist who has been the child’s treating therapist since January 2007. Since that time he has provided a number of letters and reports for use by this Court during the course of the proceedings, all identified above.
Mr P’s reports and his evidence are clearly crucial to the determination of this matter.
The consent order of 11 August 2008 provided for the child to continue his therapy with Mr P and for Mr P to look at introducing and including the mother and the maternal grandmother in the therapeutic program as soon as possible. Mr P subsequently embarked on that exercise and he was successful in relation to the mother but not in relation to the maternal grandmother. He was highly critical of the maternal grandmother’s actions reporting for example that, “[n]otwithstanding my directions regarding the boundaries of our conversation, she has consistently demonstrated an ability or unwillingness to maintain a focus on [J’s] treatment and repeatedly sought to digress to other matters of concern to her and ventilate hostile opinions about the intentions and character of myself and [J’s] father”. As a result his recommendation as long ago as 26 February 2009 was that, “it is in [J’s] best interests that [the maternal grandmother] have no form of direct contact with him”. He has been and he remains deeply concerned at the negative impact that contact with the maternal grandmother will have on J.
It is telling that the maternal grandmother’s reaction to Mr P referring the child to the Children’s Assessment Team at the D Medical Centre to facilitate his access to additional multidisciplinary treatment services, and being diagnosed by that team as having a moderate intellectual disability, was that this was part of a “conspiracy”.
In his final report dated 13 August 2009 Mr P outlined the progress that the child had made since January 2007. He said that:
3.… with the exception of the session on 15/5/09, [J] has this year presented as a profoundly less anxious child than was the case when I first started working with he and his father in January 2007. At that time he was inhibited, tactile, defensive, destructive, frenetic, overly dependent on dad, highly reactive to his environment, using limited spoken language and exclusively referring to himself in the third person. [J] now engages with familiar others in a relaxed and secure manner, speaks clearly and confidently, refers to himself in the first person, is increasingly aware of and compliant with social etiquette and behavioural expectations, is less distractible and more engaged with others, is displaying a greater range of interests and is responding well to efforts to teach him basic numeracy and literacy. With regard to the latter point, anxiety, and the elevated cortical arousal levels that are a feature of anxiety, are well-known to be deleterious to performance and learning. It follows that the progress I and others have observed in association with his participation in [tutoring] is a reflection of decreased anxiety levels. However, as [J] has become a substantially less anxious and inhibited child other features of his clinical presentation have become more obviously in evidence. In particular, it is clearly evident that [J] has an intellectual disability (I previously considered him to exhibit Pervasive Developmental Delay) and that future treatment endeavours need to be multi-disciplinary (incorporating Speech Therapy, Occupational Therapy, Physiotherapy and Psychology) and directed towards assisting him to achieve his developmental potential. As such, disabilities SA is the most appropriate long-term treatment provider, and I view it as part of my ongoing role with [J] to facilitate and support his engagement with this agency.
Then, in relation to the prospect of “contact” between the child and the maternal grandmother Mr P said this:
5.With regard to the broader issue of contact between [J] and [the maternal grandmother], I would refer you to the first paragraph of this letter, in which I highlight possible evidence of an anxiety response in [J] to contact with [the maternal grandmother]. In addition, I would reiterate my position that although it is to [J’s] benefit to resolve his apparent anxiety/insecurity in relation to [the maternal grandmother], on the basis of my dealings with her I hold serious concerns regarding her capacity to conduct herself in an appropriate manner with a supervising treating professional during in-person contact with [J]. Were she to fail to do so there is a very real likelihood that [J] would be re-traumatised by such contact and all efforts over the last two and one-half years put in jeopardy. I make this statement because [J] remains an emotionally fragile child. By virtue of his intellectual disability and other problems he has not developed functional coping strategies to manage stressful events and restore emotional equilibrium. Hence, I could not responsibly be involved in exposing [J] to a situation or situations that have the potential to significantly re-traumatise him and for which he does not have the coping skills to manage, nor recommend that they occur.
I note that it was the maternal grandmother calling Mr P “weird” that was the last straw for Mr P in his attempts to involve the maternal grandmother in his therapeutic program with J. He understood her to be implying that his involvement with J was improper. Since then he has determined not to have anything further to do with her. However, in his cross-examination he indicated a willingness to provide her with any relevant information emanating from his therapy with and counselling of J.
Mr F was instructed to prepare a family assessment report in September 2007 by the Independent Children’s Lawyer. He interviewed the parties, the father’s new wife and Mr P in December 2007. He also observed J with the father, his new wife and his mother and J with the mother and with the maternal grandparents, and he then presented his report on 23 January 2008.
It is important to note that at the time of this report the dispute was primarily between the parents although the maternal grandmother had commenced separate proceedings seeking an order that the child spend time with her. Thus, necessarily the report dealt with the behaviour of the mother, what role she had played and what role she should play in the future in the child’s life. That of course is not the subject of the current proceedings. The accepted view though was that the child’s reactive attachment disorder was “ a function of significant abuse and neglect suffered by him while in the care of the mother”, including exposure to domestic violence, and the strong recommendation of Mr P was that the mother not have any contact with the child until he considered it appropriate in the context of the child’s therapy. Mr F supported that recommendation in his report.
In relation to the maternal grandmother, Mr F recorded in his first report that the child “reacted very strongly and negatively towards notions of him seeing … [the maternal grandmother]”, but Mr F considered that that was likely to be because the child had been “conditioned to emotionally relate [the maternal grandmother]” to his mother.
Mr F also noted a child protection report of late 2006 wherein concerns were expressed concerning the maternal grandmother having problems with drug use and that she failed to acknowledge the risks to her grandchildren of harm from domestic violence.
Subsequently, on 30 May 2009 Mr F prepared an updated family assessment report for the purposes of the trial in this matter. He interviewed the father, the maternal grandmother, Mr P, and Mr K from the relevant Aboriginal community, and observed the child with the father and then with the maternal grandparents.
After referring to the view of Mr P that “contact with [the maternal grandmother] is likely to lead to eventually undermine J’s capacity to achieve his developmental potential and is likely to lead to regression to his previous insecure/anxious state”, Mr F concluded as follows:
It is clear from [Mr K’s] interview that [the maternal grandmother] is a concerned grandmother who desires to fulfil her obligations and to see that [J] follows in the footsteps of his ancestors. However, [the maternal grandmother] currently fails to appreciate the nature of [J’s] disabilities and the very likelihood that he will always be incapable of meeting her expectations with regard to the mastery of [the relevant Aboriginal community] culture. [The maternal grandmother] is likely to place such demands on [J]. Thus, in light of the report of [Mr P] about the likelihood of psychological damage occurring to [J] as a consequence of [the maternal grandmother] placing undue pressure on [J] to master his cultural responsibilities, it is likely that [the maternal grandmother] will cause [J] further psychological harm.
He then made the recommendations set out in paragraph 80 above.
In cross-examination Mr F was asked to comment on the final proposal made by the maternal grandmother that there should be such time spent and such communication as may be agreed between the parties. Mr F expressed concerns that the maternal grandmother would be intrusive and would telephone and contact the father unnecessarily seeking his agreement for the child to spend time with her. He also maintained his recommendation that there should in fact be no time spent or communication between the maternal grandmother and the child. He repeated his recommendation that the maternal grandmother required counselling and training to assist her to develop her “reflective, evaluative and regulatory skills”.
As with Mr P, the evidence, opinion and recommendations of Mr F are crucial to the determination of this case, and as with Mr P I have no hesitation in accepting the truth and accuracy of that evidence.
Section 60CC of the Act
I now turn to the factors that I should take into account in determining what is in the best interests of the child J.
As I have noted already, given the dispute is now between the father and the maternal grandmother (who is not a parent within the meaning of the Act) not all of the factors set out in s 60CC can have direct application. However, that does not mean that those matters are to be ignored if the facts of the case raises them as issues, because they can be addressed under the catch-all provision of
s 60CC(3), namely paragraph (m). There will still be less of the enumerated factors in sub-sections (2) and (3) to consider as a result. Moreover, given that the child will remain living with the father and the issue is what if any time or communication the child should have with the maternal grandmother, the number of factors which are relevant are reduced even further.
The paragraphs of s 60CC that do have application because they do not depend on both parties being “parents” are (2)(b), (3)(a), (3)(b)(ii), (3)(d), (3)(f)(ii), (3)(g), (3)(h), (3)(j), (3)(l). I will consider these paragraphs initially insofar as they may be relevant and then I will utilise s 60CC(3)(m) to address any other factor that might bear upon what is in the best interests of this child in the context of the issues now in dispute. As the authorities referred to already recognise, it is by that method that any other relevant matters from s 60CC(2) and (3) can be considered regardless of the fact that the maternal grandmother is not a parent and they do not apply to her directly.
I now turn to the specific paragraphs identified.
(2)(b) – The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
This is a primary consideration and it is highly contentious here.
It is apparent that even after the final orders made by consent on 14 March 2006 the mother remained in a long-term abusive relationship and the child was exposed to violence, conflict, drug abuse and excessive alcohol use when he was with her. Indeed, in late 2006 the mother’s other children were removed from her care. Fortunately J was with his father at the time.
It is also apparent that the maternal grandmother was aware of what was happening in the mother’s household, and failed to protect the child. Indeed, she also admitted providing the mother with prescription drugs during this time. Significantly she did not inform the father of what was going on in the same household where J spent time, and in cross-examination she failed to recognise that the father had a right to know about this. This reveals a serious flaw in the maternal grandmother’s attitude to the child and his needs.
It is no longer directly relevant to this case what the mother is doing with her life, but the issue is whether the child will be put at risk of experiencing or at risk of exposure to abuse and violence if he spends time with the maternal grandmother. Unfortunately given the history of this matter, these risks cannot be excluded.
Even more importantly, there is a real concern on the evidence that the child will suffer psychological damage if he spends time or communicates with the maternal grandmother, at least while he is undergoing therapy and counselling with Mr P.
The evidence reveals that the maternal grandmother has little insight into the needs of the child. She has failed to appreciate the extent of J’s disabilities and his abilities. Her focus is on her needs without considering the specific needs of the child. The rapid change in the orders sought by her evidences this. She also clearly did not think through the effect on the child of seeking that he live with her, and she had even given very little thought to how orders that the child spend time with her could be put in place. Further, she clearly did not think through how J would be able to cope with her proposals to immerse him in his Aboriginal heritage and culture.
She gave no regard to the sensible recommendations by Mr F that she undergo counselling and training to better equip her to interact with the child.
It is of course for these reasons that Mr P and Mr F recommend that the child not spend time or communicate with the maternal grandmother, and those reasons are plain to see.
(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
There is no evidence per se of J’s wishes but there is certainly evidence of his views. The father’s evidence and that of his mother is that J became increasingly resistant to spending time with the mother and the maternal grandmother or speaking with them on the telephone. As Exhibit F1 demonstrated, when it came time for him to travel to see them he would become hysterical and not want to go, and although the father and his parents continued to comply with the orders and take J to the handover, where he again would become hysterical, upon his return he would indicate that he did not want to go again.
Of course, things moved on, and the child ceased spending time or communicating with the mother and the maternal grandmother. Fortunately though, with the assistance of Mr P and as a result of the willingness of the father to have the child re-establish his relationship with his mother, by the time of the hearing the mother was spending some limited time with J and they were speaking on the telephone once a week. However, the attempts through the offices of Mr P to reintroduce the maternal grandmother to the child proved unsuccessful, and primarily because of the behaviour and attitude of the maternal grandmother.
It is also instructive to recall the evidence of Mr F as to how the child reacted on 6 December 2007 to the notion of seeing the mother and the maternal grandmother. Mr F recorded this in his report:
[The mother], [Mr Howie] and [Ms Howie] were waiting in the observation room when the writer ushered [J] into the room. [J] immediately said, “No see mummy nanny.” [J] squatted in the corner of the room and repeatedly said, “No see mummy nanny” and “Stay with [the father]”. [The mother] told [J] it was alright for him to feel however he wanted to feel.
During the observation session J did not establish eye contact with either his mother or his maternal grandmother, and at the end he “appeared keen to leave the room and showed no sign of being distressed at leaving (the mother, the maternal grandmother or the maternal grandfather)”.
Then with the observation session on 1 May 2009 Mr F records that when the maternal grandmother entered the room J “dropped to the ground and hid his face with toys and books”. Subsequently, although J appeared to be “quite confident and at ease in his interactions with the maternal grandparents and showed no signs of fear, he only rarely and very briefly established eye contact and did not maintain such eye contact for any time”.
There is simply no evidence to indicate that the child wishes to spend time with or communicate with the maternal grandmother at this time.
(3)(b)(ii) – The nature of the relationship of the child with … other persons (including any grandparent or other relative of the child);
Unfortunately at the time of the hearing there was no relationship in existence between the child and the maternal grandmother, and until the maternal grandmother changes her behaviour and her attitude towards the child, his disabilities, the father and even those who are treating the child such as Mr P, it is unlikely that a relationship would be able to be resurrected. Any interaction between the child and the maternal grandmother as observed by Mr P was marked by fear.
Mr P’s evidence is that currently a safe and stable relationship cannot be developed between J and the maternal grandmother because she shows no capacity to have insight, acceptance and respect for J’s unique developmental needs. I accept that evidence.
(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or any relative of the child), with whom he or she has been living;
The issue here is the likely effect of any changes in the child’s circumstances in the event that an order is made as sought by the maternal grandmother. The expert evidence is clear that given the behaviour and attitude of the maternal grandmother and the child’s disabilities, it would be damaging for the child to spend time with and communicate with the maternal grandmother, and he could very well regress to his previous insecure and anxious state.
I refer again to what Mr P said in his report of 13 August 2009 set out in paragraph 160 above.
(3)(f)(ii) – The capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
This is a significant factor in this case.
The evidence is quite clear that the father is able to adequately provide for the physical, emotional and intellectual needs of the child, albeit that given J’s disabilities the father relies on the therapy and counselling provided by Mr P and the special assistance provided by the school to meet J’s particular needs in these areas. That in itself of course demonstrates an ability to properly attend to J’s needs.
The father has worked closely with Mr P and has shown a satisfactory acceptance and understanding of the fact that J’s intellectual disability impairs his ability to acquire and utilise information, particularly complex information.
The initial position of the maternal grandmother as relayed to Mr P, was that the father “had created an unreasonable fear in J of (his) maternal family and alienated him from them”, but fortunately that was not the case that she ran at trial. Indeed, at trial there was no further attack on or challenge by the maternal grandmother to the abilities of the father vis a vis the child.
However, the evidence is equally as clear that the maternal grandmother is not able to meet the needs of J. There were firstly the reports from the Victorian Department of Human Services that the maternal grandmother failed to acknowledge the risks to the mother’s children of harm from domestic violence and that indeed she did not understand the impact of domestic violence on children. Then there is the evidence of Mr P to the effect that the maternal grandmother fails to understand and accept J’s impairments and special needs. He says she tends to minimise his impairments and she is fixed on her own agenda for J, rather than being sensitive to his unique and crucial needs. Frankly, that is a view shared by Mr F and he is not persuaded that the maternal grandmother is capable of meeting the child’s needs. Further, there is a danger that if they spend time together or communicate she will put unreasonable demands and expectations on him and he will regress.
(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant;
Clearly the child’s Aboriginal heritage and culture are important factors here as well as his disabilities. I have said all that I need to to this point about his disabilities, and in relation to the former topic I will address that next under paragraph (3)(h).
(3)(h) – If the child is an Aboriginal child …;
(i)the child’s right to enjoy his or her Aboriginal … culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
The maternal grandmother relies heavily on this factor as providing a basis for the child to spend time with her.
In effect, her case is that the child needs to learn about and experience his Aboriginal heritage, culture and language and that can only be achieved by the child spending time with her and travelling to the homelands of the relevant Aboriginal community people. There she can teach him what he needs to know. Indeed, in cross-examination she said that she wants him to have an Aboriginal name.
The father recognises the needs for J to learn about and to experience his heritage, culture and language and he is prepared to do whatever is necessary to achieve that, but tempered by what is feasible and practical given his disabilities. Indeed, the evidence is that he has already involved J in Aboriginal events and activities and engaged with Aboriginal friends. He recognises though that he is not able to pass on certain information and that that must come from the elders and the members of the relevant Aboriginal community people. He also supports J, when he is able to and when he can appreciate and understand the information he will receive, travelling to the homelands and participating in activities with his people.
Mr F spent a good deal of time on this topic with the parties and his assessment which I accept is that the father is genuine in his support of J learning about his heritage, culture and language.
Mr F also spoke at length with a Mr K, a direct descendant of the relevant Aboriginal community and he had permission from the elders to discuss matters related to the maternal grandmother and J and their culture. From that discussion Mr F concluded that it is not essential that the maternal grandmother be the one to teach J about his culture, and that could be done by any member of the relevant Aboriginal community authorised by the elders to pass on information, and that could be arranged with the father.
However, the crucial issue is how the disabilities of J affect his ability to learn about the heritage, culture and language of the relevant Aboriginal community.
Mr F is of the view that, “[J] lacks the intellectual capacity that would be required to learn and master the complex information that [the maternal grandmother] seems determined to have him master.” Mr P is of the same opinion.
It is also quite apparent that the maternal grandmother does not appreciate that that is the case. She naively suggested that because he can learn an Aboriginal song then he can grasp the more complex matters of the relevant Aboriginal community culture, such as social and marriage laws and kinship responsibilities.
The concerning aspect is that according to Mr P, J remains “vulnerable to reversion to his previous insecure/anxious state”, and there is a likelihood of psychological damage occurring to J as a consequence of the maternal grandmother placing undue pressure on him to master his cultural responsibilities.
Thus, important as his right to enjoy his culture, heritage and language is, his disabilities will determine the extent to which he can in fact enjoy that right. That is consistent with the principle set out in s 60B(3)(b)(i) of the Act.
(3)(j) – Any family violence involving the child or a member of the child’s family;
This is also an important topic here and I have already referred at length to the evidence of the family violence that the child has been exposed to. I do not need to repeat those comments, save to say that given the maternal grandmother’s failure to protect the child in the past, there is still a risk that J will again be exposed to violence and abuse if he is to spend time with her. That risk may be lessened by the apparently improved circumstances of the mother, but I have no evidence of that before me. Further, the father’s evidence, which I accept, was that at handovers, the maternal grandmother both physically attacked and abused him while he was holding J. The child should not be exposed to this behaviour again.
(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I always find this a strange question. In this case, as in all others, it is clearly preferable to lessen the potential for further proceedings. However, the real question is whether there is such a course that is open on the facts of the case. Here, with both competing proposals there is the prospect of further litigation, and thus consideration of this factor does not provide any assistance in determining where the best interests of the child lie.
(3)(m) – Any other fact or circumstance that the court thinks is relevant.
This provides the portal through which the court can consider any of the other facts that may be relevant regardless of the fact that the maternal grandmother is a non-parent.
The first matter that should be considered is the benefit to the child having a meaningful relationship with the father and the maternal grandmother
(s 60CC(2)(a)).
At the time of the hearing the child clearly had a close and loving relationship with the father, and it could easily be described as “meaningful”. However, because the child had not spent time with or communicated with the maternal grandmother since early 2007, except for the purposes of the preparation of the two family reports of Mr F, the relationship between the child and the maternal grandmother was non-existent and certainly could not be described as “meaningful”.
The questions raised in this hearing are firstly whether given the behaviour and attitude of the maternal grandmother and the disabilities of J there can be any benefit to J in him having a relationship with the maternal grandmother, and secondly, if the answer to the first question is in the affirmative, can orders be framed to ensure that not only is a relationship re-established but that it is meaningful.
In the Full Court decision of McCall & Clark (2009) FLC 93-405 (at paragraph 118) the Court found that the preferred interpretation of s 60CC(2)(a) is that “the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.”
However, the Full Court also went on and said this:
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Unfortunately, it seems to me that this is one of those cases. Although, and Mr P said as much, the ideal would be for the child to have a relationship with all members of his maternal family, given the child’s disabilities and the risk of regression and damage to his future development if he spends time with or communicates with the maternal grandmother until she alters her behaviour and attitude, it cannot be said that it is of benefit to the child to have a relationship with the maternal grandmother.
The only other matter that is raised on the facts of this case is “the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the [parties]” (s 60CC(3)(i)). The important issue there is the attitude to the child, though it seems to me that I have already fully explored the maternal grandmother’s attitude to J. Thus, I do not propose to say any more about that. However, it is instructive to reflect on the evidence of the father’s attitude. I highlight the following:
a)The father put in place regular telephone communication between the child and the maternal grandmother without there being any order requiring this. This had to cease because of the behaviour of the maternal grandmother and the refusal of the child to speak to her as a result.
b)The father has placed photographs of the maternal grandmother and her family in his home for J to see and he has encouraged J to talk to him about them.
c)The father does not denigrate the maternal grandmother to or in the presence of the child.
d)The father has demonstrated an awareness and appreciation of J’s disabilities. He has also shown a willingness to follow the advice of the experts as to this treatment and how he, the father, should interact with and react to J.
Conclusion
Having regard to the evidence, the submissions of counsel for the parties and the Independent Children’s Lawyer, and the objects and principles set out in s 60B of the Act, I find that it is in the best interests of the child for the child to not spend any time with or communicate with the maternal grandmother.
This outcome of course has to be seen in context though. We have a child who is suffering from a reactive attachment disorder and who also has a moderate intellectual disability. He has been having and will continue to have for the foreseeable future therapy and counselling from an experienced psychologist as well as assistance with his disabilities from other relevant professional organisations and individuals including speech therapy at this school.
The evidence is clear that unless and until the maternal grandmother alters her behaviour and attitude to the child, to the father, and to those who are involved in treating J, there is a serious risk that he will regress and his future development jeopardised if he spends time with or communicates with the maternal grandmother.
The maternal grandmother needs to learn to appreciate the extent of J’s disabilities and the limitations that are imposed on his functioning by those disabilities. However, to date she has chosen not to take up the recommendation of Mr F that she undergo training and counselling to better equip her to appreciate where J is at, to use the vernacular. She needs to change her focus from her needs to those of J.
This is an unfortunate result given that the ideal outcome is for J to have a relationship with all members of his maternal family, but that is not in his best interests while the current circumstances prevail.
It is also not a solution to have orders as ultimately proposed by the maternal grandmother. Firstly, those orders still presuppose that the child should spend time with the maternal grandmother, and that is contraindicated on the evidence of the experts and generally. Secondly, orders such as those can only operate successfully when there is open communication between the parties. That is simply not the case here. Thirdly, the proposed orders open up the prospect of contravention proceedings if for example the father simply does not agree to any time.
I observe that during the evidence of Mr F I flagged the prospect of making an order to the effect that the child spend such time and communicate with the maternal grandmother as determined by the father on the advice of Mr P. This proposal was not necessarily taken up by the maternal grandmother, but in any event it was opposed by the father and by the Independent Children’s Lawyer. In effect there were three reasons for this, namely firstly, such an order would still presuppose that the child should spend time or communicate with the maternal grandmother, secondly it would still provide an opening for the maternal grandmother to pursue the father, and thirdly, given the evidence of the father, in all likelihood he will eventually allow the maternal grandmother to see the child subject to the advice and recommendations of Mr P in any event.
Ultimately I am persuaded by the arguments of the Independent Children’s Lawyer and the father as to this proposal. I am comforted by the fact that the maternal grandmother can always raise the matter with the father and/or institute further proceedings if there is a change of circumstances, and particularly if she alters her behaviour and attitude to the child.
A significant issue is J’s right to enjoy his Aboriginal culture, heritage and language, but I am confident that the father will do everything that he can to recognise that right, subject always to J’s ability to comprehend what he is being exposed to.
Hopefully, in time, things will change, but J must be left to deal with his disabilities in the best environment possible, and at the present time that entails no contact with his maternal grandmother.
One final issue. It will still be necessary and appropriate for the maternal grandmother to be provided with regular updates as to J’s progress not only with his therapy and counselling but also with his schooling. Thus I propose to order the father to keep the maternal grandmother informed by way of forwarding to her any reports from Mr P and copies of any school reports.
As to the orders to be made, given the lengthy history of this matter I consider that it is appropriate to start with a clean slate. The mother of course has no current application before the Court and she chose to opt out of these proceedings. Thus I propose to discharge all previous orders, provide that the child lives with the father, and that he keep the maternal grandmother informed of the child’s progress as referred to above. There is also no issue about parental responsibility as between the father and the maternal grandmother, and as between the father and the mother s 61C of the Act will apply because I am not making any order about parental responsibility.
There is then what to do with paragraphs 11, 12 and 13 of the maternal grandmother’s further amended response. Clearly I will make orders discharging the appointment of the Independent Children’s Lawyer and providing for the dismissal otherwise of all applications and responses and their removal from the active pending cases list, but I am troubled by aspects of the order sought in paragraph 11. Clearly, I am only dealing with the issue of the father and the maternal grandmother keeping each other informed. Firstly, I see no difficulty with an order that the maternal grandmother keep the father informed of her address and telephone number, but given the history of this matter I am reluctant to make an order that the father provide the maternal grandmother with the same details. In the end result I do not consider it necessary or appropriate for the maternal grandmother to have the telephone number of the father, but she should have details of his address.
I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 5 September 2011
Associate: FM
Date: 5 September 2011
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