Radev & Radev
[2019] FCCA 3750
•20 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RADEV & RADEV & ORS | [2019] FCCA 3750 |
| Catchwords: FAMILY LAW – Interim parenting – where Child has lived with Maternal Grandmother most of his life – whether in his best interests to be returned to his mother’s care – what weight to place on untested expert evidence. |
| Legislation: Children and Young Persons (Care and Protection) Act 1998 (NSW), ch.16A |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS J RADEV |
| First Respondent: | MS A RADEV |
| Second Respondent: | MR BARWEGEN |
| Third Respondent: | MR RADEV |
| File Number: | WOC 982 of 2019 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 6 December 2019 |
| Date of Last Submission: | 6 December 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 20 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Bowral Legal |
| Counsel for the First Respondent: | Ms Breeze |
| Solicitors for the Second Respondent: | Forshaw Lawyers |
| The Applicant Solicitor appeared by consent for the Third Respondent. |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Nowra Family Law |
INTERIM ORDERS
The Child [X] born on … 2016 (“the Child”), forthwith live with the Mother, with the Maternal Grandmother to do all things necessary to return him to the Mother by 6:00pm today.
The Child spend time with the Father as agreed between the Mother and the Father.
For a period of 3 months, the Maternal Grandmother spend no time with the Child.
Subject to Order 3 above, the Maternal Grandmother, Ms A Radev, spend time with [X] under supervision at CatholicCare in Town B on days and times as agreed or failing agreement at the dates and times nominated by the Centre, being no less than one occasion per month for two hours and to facilitate such time:
(a)Each party must:
(i)Contact Catholic Care in Town B within 14 days to arrange an appointment for assessment for suitability;
(ii)Attend the assessment;
(iii)Comply with any appointment made by Catholic Care;
(iv)Comply with all reasonable rules of Catholic Care; and
(v)Comply with all reasonable directions or requests of the staff of Catholic Care.
The Mother and [X] continue to reside at the home of the Maternal Grandfather until further order.
The Mother attend on her general practitioner and obtain a mental health care plan and referral for further treatment from Ms C, psychologist within 14 days.
The Father continue to attend counselling with Ms D until such time as it is no longer deemed necessary by Ms D.
The Mother self-refer to Families NSW or some other similar service in her area for ongoing support of the family during the time of [X]’s change of residence.
The parties attend Litigation Intervention Conference as arranged by Legal Aid NSW.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in the event that there is non-compliance with these Orders and a recovery order is sought to enforce these Orders.
The matter be adjourned to 12 March 2020 at 9:30am for Mention.
IT IS NOTED that publication of this judgment under the pseudonym Radev & Radev & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 982 of 2019
| MS J RADEV |
Applicant
And
| MS A RADEV |
First Respondent
| MR BARWEGEN |
Second Respondent
| MR RADEV |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This case is about a child [X] born … 2016. [X] is 3 years old.
[X] has lived with his Maternal Grandmother, the First Respondent, since October 2017. The Court has to decide whether this arrangement should continue, or whether [X] should return to the care of his mother. The parties to this case are [X]’s mother, father, maternal grandmother, and maternal grandfather. In addition, [X] was represented by an Independent Children’s Lawyer. The Maternal Grandmother proposed that [X] continue to live with her. The remaining other parties, whilst having slightly different proposals, all propose that [X] be returned to live with his mother.
Background
At the outset it must be recognised that this is a difficult case. The Court is asked to change long-standing arrangements in relation to [X], after receipt of an Expert’s Report, but before any of the evidence was tested in cross-examination. The Court would only do so if it is satisfied that there is a risk of harm to [X] in his present care arrangements. The Court also needs to be satisfied that there is, at the very least, less risk to [X] in his mother’s care.
It is also important to recognise the difficulties and challenges that have been experienced in the lives of [X]’s parents and grandparents. They have each faced, or continue to face, adversity in their lives, whether self-inflicted or not.
The detailed proposals are set out in the minutes of order, or case outlines, filed by each of the parties.
The evidence
The evidence relied on is referred to in the case outlines filed by each of the parties. In addition, a significant volume of documents came into evidence as tenders.
In the Applicant’s case, she relied on the following documents:
a)Affidavit of Ms J Radev filed 2 September 2019;
b)Affidavit of Ms J Radev filed 4 December 2019; and
c)Notice of Risk filed 2 September 2019.
In the First Respondent’s case, she relied on the following documents:
a)Response filed 30 September 2019;
b)Affidavit of Ms A Radev filed 6 December 2019
c)Affidavit of Ms A Radev sworn 27 September 2019 and filed 30 September 2019;
d)Affidavit of Mr S Radev filed 6 December 2019; and
e)Notice of Risk filed 30 September 2019;
In the Second Respondent’s case, he relied on the following documents:
a)Response filed 4 December 2019;
b)Affidavit of Mr Barwegen affirmed 27 November 2019 and filed 28 November 2019;
c)Notice of Risk filed 28 November 2019.
The following material was tendered as evidence during the course of the proceedings:
a)Various email and letter correspondence between the parties;
b)Documents produced pursuant to subpoena on Mr E, Psychologist;
c)Documents produced pursuant to subpoena on the Department of Communities and Justice;
d)Documents produced pursuant to subpoena on NSW Police;
e)Documents produced pursuant to subpoena on Child Service F;
f)Expert Report by Dr G dated 29 October 2019;
g)Tender bundle prepared by the Independent Children’s Lawyer; and
h)Children's health service H Assessment Intake.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring 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 child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate 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 (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander 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 and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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.
(2) The presumption does not apply 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.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court 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.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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 extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Chronology
The case outline document of the Independent Children’s Lawyer contained a chronology. It is particularly useful because it draws from the material filed by all parties, the Report prepared by Dr G the Single Joint Expert, and the documents produced on subpoena and tendered into evidence. It is a useful summary of the relevant events.
The chronology is reproduced below.
| Date | Event | Document |
| … 1967 | Mr Radev, maternal grandfather and third respondent is born | |
| … 1970 | Ms A Radev, maternal grandmother and first respondent is born | |
| … 1990 | Ms I, maternal aunt is born | |
| … 1995 | Ms J Radev, mother and applicant is born | |
| … 1995 | Mr Barwegen, father and second respondent is born | |
| … 1996 | Mr S Radev, maternal uncle is born | |
| 2010 | The maternal grandparents separate. | Report, Dr G, 29 October 2019, para 10 |
| 2013 | The mother commences living with the maternal grandfather after being ‘kicked out’ of the maternal grandmother’s home. | Report, Dr G, 29 October 2019, para 13 |
| 21 September 2014 | The maternal grandmother is asked to leave the mother’s workplace by Police. | Affidavit, mother, 2 September 2019, paragraph 49. Subpoena, tender bundle, tab ICL 9. |
| 14 June 2015 | The mother and father commence a relationship | Affidavit, mother, 2 September 2019, paragraph 8. Affidavit, father, 28 November 2019, paragraph 7. |
| 17 November 2016 | [X] is born (subject child) | |
| 29 June 2017 | Incident of family violence occurs between the mother and father. The father is charged and an apprehended domestic violence order is made for the protection of the mother. | Affidavit, father, 28 November 2019, paragraph 13, annexure A. Affidavit, mother, 2 September 2019, paragraph 16 – 18. |
| August 2017 | The mother finds she is pregnant with [X]’s sibling. She is experiencing postnatal depression from [X]’s birth. The mother commences working with Family Service J. | Affidavit, mother, 2 September 2019, paragraphs 16 & 18 (b) |
| October 2017 | [X] commences living with the maternal grandmother. | Report, Dr G, 29 October 2019, para 2 |
| 4 October 2017 | The mother commences working with Ms C psychological treatment. The mother and father commence relationship counselling with Ms K, counsellor. | Affidavit, mother, 2 September 2019, paragraph 18(d), annexure A. |
| 13 October 2017 | The mother receives an email from the maternal grandmother placing conditions on their time with [X] and intimidating them. From this date the frequency of the time [X] spends with the parents is reduced. | Affidavit, mother, 2 September 2019, paragraph 21. |
| November 2017 | The maternal grandmother seeks assistance with managing ‘trauma response’ she observes the child to experience following spending time with his parents. | Report, Dr G, 29 October 2019, para 5. |
| 27 March 2018 | [X] is referred to psychologist Mr E. Goals and intentions of referral are stated as “to establish psychiatric state of the child and relationship of the parents to the child and possibility of smoothing the journey into and through D.O.C.S” | Subpoena, tender bundle, tab ICL 10. |
| 5 April 2018 | The maternal grandmother, mother, father and [X] attend an appointment with Mr E, Psychologist. Information is provided to Mr E by the maternal grandmother. The maternal grandmother and [X] for interview prior to the parents joining the appointment. | Affidavit, mother, 2 September 2019, paragraph 27. Subpoena, tender bundle, tab ICL 6 |
| 6 April 2018 | The mother receives an email from the maternal grandmother stating that [X] had a stress reaction from the visit at the doctors with the parents. | Affidavit, mother, 2 September 2019, paragraph 28. |
| 18 April 2018 | The parents complete the Circle of Security course with Families NSW | Affidavit, mother, 2 September 2019, paragraph 18(c), annexure A. |
| 27 April 2018 | [L] is born (sibling of subject child) [L] and [X] spend time together on a fortnightly basis at the maternal grandmother’s home so that they can form sibling bonds. | Affidavit, mother, 2 September 2019, paragraphs 7 & 24 |
| July 2018 | The maternal grandmother reduces the time that [X] spends with his parents to 1 ½ hours per fortnight. | Affidavit, mother, 2 September 2019, paragraph 9. |
| August 2018 | The maternal grandmother makes an application with Child Support Australia for child support payments to be made with respect to the care of [X]. The maternal grandmother no longer agrees to have [L] spend time with [X]. | Report, Dr G, 29 October 2019, para 5. Affidavit, mother, 2 September 2019, paragraph 24. |
| 27 August 2018 | Risk of Significant Harm Report received in relation to the care of [L]. The report alleges family violence, verbal abuse and dangerous driving. These allegations are reported to the reporter by the maternal grandmother. | Subpoena, tender bundle, Tab ICL 5 & 8. |
| September 2018 | The mother commences attending Playgroup M with [L]. | Affidavit, mother, 2 September 2019, paragraph 18(e). |
| 23 October 2018 | Mr E makes a detailed mandatory report based on information given to him by the maternal grandmother. | Subpoena, tender bundle, Tab ICL 6. |
| October 2018 | The mother and father separate on final basis. | Report, Dr G, 29 October 2019, para 2 |
| … 2018 | [X] does not spend time with his parents or sibling on his second birthday. FaCS Risk Assessment Decision Report finalized. Final risk assessment is moderate. | Affidavit, mother, 2 September 2019, paragraph 32. Subpoena, tender bundle, Tab ICL 3. |
| November 2018 | DCJ Case workers conduct home visit with the mother and inform her the file will be closed, letter to follow | Subpoena, tender bundle, Tab ICL 4. |
| January 2019 | The mother commences mediation through Relationships Australia. | Affidavit, Mother, 2 September 2019, paragraph 34. |
| 13 January 2019 | The maternal grandmother emails the mother informing her that there will be no further time between [X] and his parents until they attended a psychologist appointment. No further time takes place for six weeks. | Affidavit, mother, 2 September 2019, paragraph 35 |
| 24 January 2019 | The maternal grandmother authors a letter to the parents outlining the conditions of their spending time with [X]. | Affidavit, mother, 2 September 2019, paragraph 37. Subpoena, tender bundle, Tab ICL 7 |
| 20 February 2019 | Mr E authors a Treatment Report stating: · Risk of significant harm reports made based on the information provided to him by the maternal grandmother. · Biological parents would not be capable of providing care for [X]. | Subpoena, tender bundle, Tab ICL 8 |
| 18 March 2019 | The mother’s solicitor writes to the maternal grandmother seeking an increase in time and inviting her to mediation. | Affidavit, mother, 2 September 2019, paragraph 38, annexure B. |
| … 2019 | The father completes Bringing Up Great Kids through playgroup with Ms J Radev and [L]. | Affidavit, father, 28 November 2019, paragraph 18 (a), annexure B. |
| 9 April 2019 | The mother’s solicitor writes to the maternal grandmother to further negotiate. | Affidavit, mother, 2 September 2019, paragraph 38, annexure B. |
| 24 April 2019 | The mother’s solicitor writes to the maternal grandmother to further negotiate. | Affidavit, mother, 2 September 2019, paragraph 38, annexure B. |
| 9 May 2019 | Risk of Significant Harm Report received in relation to neglect of [X] in the care of the maternal grandmother. Report shows historical concerns in relation to the maternal grandmother’s care of mother, Ms J Radev. | Subpoena, tender bundle, Tab ICL 1. |
| 17 June 2019 | The mother’s solicitor writes to Mr E in relation to [X]’s treatment and any recommendations as to increasing time between the mother and [X]. | Affidavit, mother, 2 September 2019, paragraph 40, annexure C. |
| 15 July 2019 | The mother’s solicitor writes to Shiels Legal in relation to the parenting arrangements for [X]. | Affidavit, mother, 2 September 2019, paragraph 43, annexure D. |
| 5 August 2019 | Mediation arranged between the mother and maternal grandmother. The maternal grandmother instructed Shiels Legal. The mediation did not proceed and a section 60I certificate was issued. | Affidavit, mother, 2 September 2019, paragraph 42 – 45. |
| 2 September 2019 | The mother files an application in the Federal Circuit Court of Australia, Wollongong Registry. The mother’s notice of risk alleges: · Serious psychological harm should [X] remains in the care of the maternal grandmother due to social isolation and destruction of the mother child relationship; · Family violence in around September 2017 between the mother and father; · Undiagnosed mental health issues of the maternal grandmother. | Notice of Risk, mother, 2 September 2019. |
| 30 September 2019 | The maternal grandmother files a response, notice of risk and affidavit. The notice of risk mentions the apprehended domestic violence order of September 2017 made for the protection of the mother, Mr Barwegen being the person named in the order. | Notice of Risk, maternal grandmother, 30 September 2019. |
| 2 October 2019 | Interim orders made by consent; 1. child lives with the maternal grandmother; 2. child spends time with the parents each Sunday for no less than three hours; 3. grandmother is restrained from engaging the child in any medical treatment without express written consent of the parents. | |
| 6 October 2019 | [X] spends time with the parents pursuant to orders made on 2 October 2019. The parents take [X] to Child Amusement Centre N with [L] (sibling). The Police are requested to conduct a welfare check by the maternal grandmother. No risk is identified. At changeover the maternal grandmother is alleged to be aggressive, intimidating and demanding. | Affidavit, Mother, 4 December 2019, paragraphs 16 – 23. |
| October 2019 | The parents argue. The father punches the mother’s car and causes a dent. An apprehended domestic violence order is made for the mother’s protection and expires on 20 November 2021. | Affidavit, father, 28 November 2019, paragraphs 27-28, annexure C. |
| 14 October 2019 | Dr G interviews the parties. | Affidavit, Mother, 4 December 2019, paragraph 6 |
| 18 October 2019 | Dr G interviews the parties. | Affidavit, Mother, 4 December 2019, paragraph 6 |
| 4 November 2019 | The Court releases the report of Dr G, 29 October 2019 to the parties. Recommendations include: · Unless the evidence identifies an intolerable risk of harm to the children’s care … [X] should immediately change residence. · [X] should live with his mother. · The parents should share parental responsibility. · Preference is given to the maternal grandfather remaining living in the home for six months. · No time or communication between [X] and the maternal grandmother for at least twelve months. | Report, Dr G, 29 October 2019, pages 29-30. |
| 7 November 2019 | The mother’s solicitor writes to the maternal grandmother’s solicitor seeking change of residence for [X]. | Affidavit, Mother, 4 December 2019, paragraph 9, annexure A. |
| 27 November 2019 | The mother’s solicitor writes directly to the maternal grandmother seeking change of residence for [X]. | Affidavit, Mother, 4 December 2019, paragraphs 11 - 12, annexure B. |
| 28 November 2019 | The father files a Response, Notice of Risk and Affidavit. The Notice of Risk outlines incident in October between the parents and subsequent apprehended domestic violence order. The father alleges risk of psychological harm due to the maternal grandmother alienating [X] from his mother, father and sibling [L] and due to the maternal grandmother ‘self-diagnosing [X] with PTSD and anxiety. | Notice of Risk, father. |
| 1 December 2019 | [X] tells the mother “I don’t love you. I hate you.” During a visit with his mother. | Affidavit, Mother, 4 December 2019, paragraph 26. |
| 2 December 2019 | The mother’s solicitor writes to a newly instructed representative for the maternal grandmother. | Affidavit, Mother, 4 December 2019, paragraph 14, annexure C. |
The Maternal Grandfather is 52, the Maternal Grandmother 49, and [X]’s mother and father are both 24. The maternal grandparents separated in 2010. The parents commenced their relationship in 2015. When [X] was born, the Mother experienced postnatal depression. In October 2017, when [X] was not quite 1 year old, he started living with the Maternal Grandmother. Initially, it seems that [X] spent time with his parents informally, and in a somewhat ad hoc fashion. The Mother contends that, progressively, the Maternal Grandmother placed more and more restrictions on her time with [X], and then obstructed her spending time with [X].
[X] seems to have commenced an engagement with a psychologist in 2018. It is important to note that [X] was well under 2 years old at the time. The Maternal Grandmother contended that it was at least partly based on the advice she received from the psychologist that she progressively reduced [X]’s time with his parents, because of the distress this was causing him.
On … 2018 [X]’s sibling, [L] was born. [L] continues to live with the Mother, and spend time with the Father. The Maternal Grandmother raises concerns in her case about the wellbeing of [L]. No application is made in relation to her. A number of notifications were made to the Department of Family and Community Services (as it was then) in relation to [L] including one by Mr E, the psychologist seeing [X], ostensibly based on information given to him by the Maternal Grandmother.
[X]’s parents separated in October 2018.
From the perspective of the parents, the Maternal Grandmother started excluding them from [X]’s life from early 2019, supposedly on the basis of advice the Maternal Grandmother was getting from Mr E.
The present proceedings were commenced in September this year. The first interim Order was made on 2 October 2019, by consent, for [X] to continue to live with his maternal grandmother, but spend time with his parents each Sunday for no less than three hours, and the Grandmother was restrained from engaging [X] in any medical treatment without the express written consent of the parents. The relationship between [X]’s mother and father appears to have deteriorated in 2019. Dr G conducted interviews in October 2019 and her Expert Report is dated 29 October 2019.
There are a number of relatively uncontested matters. The relationship between [X]’s parents was marked by family violence. The Maternal Grandmother has been the most constant and consistent adult presence in his life. The Maternal Grandmother’s belief was that [X]’s time with his parents was, in effect, traumatising him and that is why she limited his time with him.
The evidence of Dr G
The evidence of Dr G is important because it is the only independent, and expert evidence in this case. The Report is largely self-explanatory. It is interesting that at the time of the report interviews the Mother was only proposing a gradual restoration of [X] into her care. The Mother was not concerned about the Maternal Grandmother’s capacity to meet [X]’s physical needs, but she was concerned about a number of other factors more to do with psychological risks. At the time the Maternal Grandmother seemed open to [X]’s time with his parents gradually increasing.
At paragraphs 33 and 34 Dr G explains that in her opinion the Maternal Grandmother could offer no cogent reason for not returning [X] immediately to his parents care. The circumstances of [X] going into the Maternal Grandmother’s care are explored in detail, for example at paragraph 41. Importantly, the Maternal Grandmother told Dr G that the decision to reduce the time between [X] and his parents was the result of professional advice received from the Mother’s case worker, and psychologist. It is important to note, the Court observes, that the sources of information to both of these people were, it would seem, mainly but not exclusively the Maternal Grandmother herself.
At paragraphs 62, 63, 64 and 65, Dr G records her observations of [X]’s interaction with the adults in his life including the Maternal Grandmother, the Mother and the Father. She also recorded the observations between [L], and [X]. She concluded that [X] was observed to have warm affectional ties with all his significant adults. He displayed no separation anxiety moving from his grandmother to his mother. The sibling bond with [L] was strong.
Dr G administered a number of psychological tests. None of the adults, she concluded, were in psychiatric crisis. Dr G was concerned, however, about the Maternal Grandmother’s response to the parental reflective function test. Those concerns are set out at paragraph 74.
Dr G’s case formulation commences from paragraph 75. She suggested that the material before her indicated that the Maternal Grandmother had been unwilling to facilitate a close relationship between [X], his parents, and his sister, since early 2019. She formed the view that the Maternal Grandmother was an extremely controlling person who could not tolerate age-appropriate autonomy in a child. She described the Maternal Grandmother as emotionally abusive. She thought she could not support normal psychological individuation in children. The children should be restored to their mother’s care, without delay, and without dragging out the process. Dr G thought that the Maternal Grandmother was psychologically destructive. She recommended that unless the evidence indicated an intolerable risk of harm to the children in the Mother’s care, which did not emerge during her assessment, [X] should immediately change residence, live with his mother, who should share parental responsibility with his father. It would be better if the Maternal Grandfather continued to reside with the Mother for the first six months until [X] settled. The Maternal Grandmother would benefit from psychological and family support. Family therapy between the parents and the Maternal Grandmother was not indicated. Contact with his maternal grandmother is likely to cause [X] more harm than good. Indeed all communication between [X] and the Maternal Grandmother should be extinguished for at least 12 months after restoration. Even then, [X]’s time with her should not be unsupervised.
What weight should be placed on Dr G’s evidence?
Counsel for the Maternal Grandmother urged great caution in placing too much weight on Dr G’s evidence. It needed to be tested carefully, she suggested. In particular, she contended that, in effect, Dr G had made a number of assumptions that were unsupported by the evidence. For example the Report depicted the relationship between the Mother and Maternal Grandmother as dysfunctional, indeed destructive, when there was evidence to suggest that the Maternal Grandmother was extremely supportive. Counsel was critical of Dr G for not interviewing Mr E, [X]’s psychologist. Counsel submitted that Dr G had greatly minimised the risk to [X] of going into his mother’s care in an environment where she has never been his main carer, and would be suddenly thrust into a situation where she was caring for two young children. Dr G had not properly considered the risks to the Mother’s mental health, particularly her depression and anxiety. The family violence issues between the Mother and the Father had not been properly considered. Dr G’s concern that [X] was socially isolated in the Maternal Grandmother’s care was inconsistent with the objective evidence. Moreover, Dr G’s assessment of the Maternal Grandmother was coloured by her acceptance of a range of opinions from unqualified and partisan other persons.
The Court does have a number of concerns about Dr G’s Report. It almost seems to be premised on the basis that [X] should be living with his mother, if there were no other reasons for this not occurring. As paragraphs 33 and 34 of the Report demonstrate, Dr G was not satisfied by anything the Maternal Grandmother set out as a reason for [X] not returning immediately to his mother’s care.
Whilst it is true that, in general terms, the provisions of the Family Law Act 1975 dealing with children focus primarily on parents, grandparents are not excluded. There is no statutory priority of carers in which mothers are at the top, and grandparents somewhere below. The Court has to make a decision about what is in the best interests of [X] having regard to the facts and circumstances of his case, a significant one of which is that he has lived most of his life with his grandmother, and hardly any with his mother. The question: what is in the best interests of [X], is not answered by reference to a de facto presumption in favour of his mother. On one view, this was what Dr G did. She was not entitled to do so. Perhaps that is not what she intended, but that is certainly how parts of her Report reads.
But Dr G was entitled to do a number of things.
She was entitled to question the basis on which the Maternal Grandmother reduced [X]’s time with his parents. At paragraph 41, as discussed above, Dr G records the Maternal Grandmother explaining that the decision to reduce time with the parents was a result of professional advice. There was implied disapproval, or non-acceptance of this. As it turns out, however, the Court has the benefit of records from the professional adviser referred to by the Maternal Grandmother. They may well have told the Maternal Grandmother what she told Dr G. However, what is apparent to the Court from the documents in question is that it was the Maternal Grandmother who primarily provided the information to the psychologist Mr E. Had Dr G known what the Court knows, she may well have formed the impression that the Court has formed, and that is that the Maternal Grandmother manufactured the crisis that resulted in the reduction of [X]’s time with his parents.
Dr G was entitled to reach an Expert’s conclusions about the relationship between [X] and the significant adults in his life, based on her own observations. She emphasised, for example, the strength of [X]’s relationship with [L], at paragraph 63, and his complete comfort with his mother, at paragraph 64.
Dr G was entitled to form an opinion about the Maternal Grandmother through her responses in the Parental Reflective Function test. Thus at paragraph 74 and using quite strong language, she expressed concerns about the ability of the Maternal Grandmother to see [X] as an independent being, or to hold his mind in her mind in order to reflect his lived experience back to him.
There is a risk, however, Dr G was overly influenced by the accounts given to her by the Mother, maternal aunt, and Maternal Grandfather, about the Maternal Grandmother’s personality and character. To be fair to Dr G, however, her comments at paragraph 76 about to this are predicated by the word: ‘if’.
Dr G probably goes too far at paragraph 77 in describing the Maternal Grandmother as emotionally abusive, and as someone who cannot support normal psychological individuation in children. She may well have relied on highly subjective case histories informing this view. Whether or not the Maternal Grandmother was a suitable kinship carer was not a matter relevant in the present case.
As surprising as it might sound, however, Dr G was entitled to form an opinion that there was nothing to be gained by dragging out the process of restoration (see paragraph 78). She explained that [X] would grieve separation from his primary attachment figure, that is the Maternal Grandmother. Dr G explained, however, why she seemed confident that [X] would cope.
Dr G was entitled to be critical of the Maternal Grandmother for not supporting [X]’s right to have a meaningful relationship with both his parents. To describe the Maternal Grandmother as “psychologically destructive”, possibly goes too far (paragraph 79).
Dr G probably got it wrong at paragraph 80 where she expressed concerns about a lack of a social network for [X] and his peers. The evidence tendered in the Maternal Grandmother’s case suggested age appropriate peer interaction.
Dr G was entitled to express the opinion at paragraph 83 about what she considered to be the Maternal Grandmother’s insights into her personal shortcomings.
Moreover, Dr G was not blind to the limitations in capacity to both of [X]’s mother and father.
Counsel for the Maternal Grandmother was well entitled to point out the limitations in Dr G’s Report. That does not mean, of course, that the Court cannot assess the weight to be given to the Report taking into account the concerns raised. An assessment of the weight to be given to Dr G’s Report is assisted by a critical analysis of the Maternal Grandmother’s case. As it turns out, the Court places considerable weight on the Report.
The Maternal Grandmother’s case
There are a number of disconcerting matters about the Grandmother’s case. Part of her case for not returning [X] to his mother’s care depended on the advice she was getting from Mr E, a psychologist. Related to this was the seeming dissonance between the Grandmother saying on the one hand that she was prepared to return [X] to his mother, but actually declining to do so.
Mr E’s file was in evidence.
On 5 April 2018 he met the Grandmother, [X], and the parents in his rooms at Town P. One of the things noted is that ‘…we have agreed today that she will have the baby, and we will see how that goes, and then if she feels like she is able and perhaps progressively, [X] might spend more time and perhaps, in the long run, moved back home.” The note is important because as early as 5 April 2018 both Mr E, and presumably the Grandmother, were contemplating the possibility that [X] would return to his mother’s care. Of course, this was contingent on a number of matters including how the Mother would cope with the birth of [L], and how she would cope with spending progressively more time with the [X].
The impression created by the file note, however, is that the history about [X] was given by the Grandmother. Mr E records that the parents were seeking [X] back into the care and that the Grandmother ‘…is pretty unhappy about this situation and that is why he has been brought to a psychologist – to assess the possibility that he is suffering PTSD.’ It is also clear from the file note that the Grandmother had given Mr E documents including emails between the Grandmother and the Mother. Nowhere in this file note, or indeed anywhere in his records, does it indicate that Mr E came to the conclusion that [X] in fact suffered PTSD.
On 11 April 2018 there is a note of Mr E meeting the Grandmother and [X] in his rooms at Town P. [X]’s mother and father were also there. He notes that the;
…situation seems to be more stable, that they are prepared to have Ms A Radev look after [X] at least until this new baby is born and they find out whether the parents can manage this situation.
He noted that the Mother wanted more frequent visits with [X]. Mr E records: ‘I can see that Ms J Radev’s desire to have more time with [X] is probably good.’
On 27 April 2018 Dr Q provided a mental health care plan referring [X], presumably, to Mr E. The document makes clear that the referral was in relation to generalised anxiety.
On 2 May 2018 Mr E writes to Dr Q who appears to be [X]’s GP. In this letter he explains that his treatment plan for [X] will be to meet with the Grandmother and [X] fortnightly and slowly involve the biological parents so as to monitor their behaviours and its effects upon [X]. Again, this letter makes no reference to any suggestion that [X] was suffering from PTSD.
On 23 October 2018 Mr E writes what he describes as a ‘psychologists treatment report’ relating to [X]. He describes this document as being pursuant to a FACS exchange of information under the Children and Young Persons (Care and Protection) Act 1998 (NSW) Chapter 16A. The reason for the report is described as pursuant to a request by the caseworker on 18 October 2018 in relation to [X]. He says that on 8 August 2018 he met with the Grandmother and [X]. The Grandmother indicated that, as she had predicted, her daughter Ms J Radev had been calling her requesting that Ms A Radev care for the baby, [L], on a number of occasions. Later the next week he received a phone call from Ms A Radev and copies of emails that indicated that Ms J Radev was not coping with the new baby. He also refers to an email from the Mother to the Grandmother, provided to him, referring to the Father’s drinking. He then says that on 8 August the Grandmother contacted him to express her concerns for [L]. He records that he told the Grandmother that in his opinion he was now required to make a notification to FACS of his fears for this child. The opinion that he expresses is that there are no current concerns for the welfare of [X] while he is in the care of the Grandmother but he does have concerns, based on the information reported by the Mother to the Grandmother, about the wellbeing of [L]. He describes these concerns as the Mother not currently able to provide necessary parenting and that the Father does not seem to have the skills nor self-control of his anger to provide effective parenting. The Court must express its concern that Mr E would make such a report based almost entirely on what the Grandmother had told him. The Grandmother could have made the notification. Mr E probably felt that he was obliged to make the notification as a mandatory reporter.
On 20 February 2019 that Mr E provided a document entitled ‘Psychologist’s Brief Treatment Report’. From the document it seems that this was requested by the Grandmother. He says that he had met [X] and the Grandmother for the first time on 30 April 2018, the last time on 23 January 2019 and for a total of eight occasions. This report makes it clear that in so far as the Grandmother raised concerns about the Mother’s ability to care for [X], and indeed [L], he was relying on her reports. He does say, however, that based on his observations of [X] and the Grandmother, he appeared to be thriving with his current leaving arrangements. He expressed doubts about the parents’ ability to care for him, but did acknowledge that the reports came to him primarily from the Grandmother. Interestingly, in the final paragraph whilst saying that [X] should remain living with the Grandmother, he expressly stated that [X] would need to have continuing contact with his parents.
On 14 March 2019 Mr E appears to have emailed both the Mother and Grandmother, the context being the Mother’s request to have more time with [X]. He explained that he felt that [X] was probably attached to his grandmother and, in relation to the Mother he says:
…my guess is that he sees you Ms J Radev as a lovely person whom he sees now and again. Whether he understands the notion of mother I have no idea as I can’t ask him!
He seemed supportive of the Mother spending more time with [X] but emphasised that it depended on how that time is spent and whether or not he is happy in the way this occurs and that is in the sense of feeling safe and secure. The Court observes that from an attachment perspective, Mr E’s perspective may well be correct. What is unclear, however, is whether he realised that despite noble intentions, by March 2019 [X]’s time with his mother was being very closely restricted by the Grandmother.
Nowhere does Mr E seem to consider the issue, let alone the importance of, the sibling relationship between [X] and [L]. Nowhere does Mr E seem to reality test the information that was provided to him by the Grandmother. This is not a criticism, because his role was not a forensic one. On one interpretation, however, Mr E allowed himself to unwittingly become one of the key rationales adopted by the Maternal Grandmother to not just thwart [X] spending more time with his mother, but rather to cease her time altogether for a period.
On 24 January 2019 the Grandmother appears to have emailed the parents indicating that after meeting with Mr E she had decided that fortnightly visits would recommence, continuing with increasing the time in line with [X] showing signs of coping developmentally and psychologically. Here is an example of the Grandmother relying on what the psychologist Mr E had told her, which was of course almost entirely dependent on what the Grandmother had told him.
It is hard to understand the Maternal Grandmother’s case at times. Her own evidence is that Mr E contemplated [X] spending increasing time with his mother, and possibly even eventual restoration. One can reasonably surmise that, given what seems to be the level of influence that the Maternal Grandmother had on Mr E, that this was something the Maternal Grandmother had contemplated. When the Maternal Grandmother appeared before the Court through her Solicitor, Mr Hanrahan, on 2 October 2019, he explained on his client’s behalf that, in effect, his client’s case was about when [X] would be restored, not whether.
This should be contrasted to other aspects of the Maternal Grandmother’s case. For example at paragraph 48 of her Affidavit made 5 December 2019 she made the following extraordinary assertion:
If the court thought it appropriate, I would be ready and willing to care for [L] as I do [X] until such time as Ms J Radev was stable enough to care for the children herself.
The clear and necessary implication is that the Maternal Grandmother, as at 5 December 2019, had such concerns about the Mother’s parenting capacity that she was prepared to take on the care of [L]. There is no evidence of her proposing this at any earlier stage in the proceedings. Indeed the opposite is true. The Maternal Grandmother’s proposal at the Interim Hearing was that [X] spend time with his mother four times per week for periods of five hours, which represents a significant increase in historical time, and indeed something which, through Mr E, she seems to have far contemplated at the beginning of this year – but had not been able to actually implement.
The dissonance between what the Maternal Grandmother says, and what the Maternal Grandmother appears to actually believe and do, is also demonstrated in the circumstances of the Grandmother obtaining the initial assessment report from Children's health service H. The assessment took place on 3 October 2010. The report itself refers to the fact that the Maternal Grandmother referred [X] for this purpose. She had concerns regarding his emotional development in particular she reported particular concern about [X]’s tendency to push other children and be rough with animals. She felt [X] has demonstrated anxious behaviours in the past, including banging his head on the floor, biting, pinching, nightmares and separation difficulties. It is interesting to observe that some of these alleged behaviours do not feature in Mr E’s file or in other concerns expressed by the Maternal Grandmother. The Maternal Grandmother was accompanied by [X]’s mother, father, and by [L]. The conclusion of the assessment is summarised as follows. [X] was assessed as currently displaying skills in the average to low average ranges. He is presenting with some problems in his sensory processing development. The recommendation was that [X] would benefit from input from an occupational therapist to assist him with his sensory regulation and motor skills. [X] may also benefit from continued access to psychology services to support him with his emotional regulation and behaviour. There is no suggestion from anywhere in the evidence that the Mother would not be able to provide [X] with these things. There is no reference to PTSD.
Curiously, in the submissions made on behalf of the Maternal Grandmother by her Counsel, Ms Breeze, she stated that her client believed that [X] should be gradually reintroduced back to his mother. This is, regrettably, yet another example of the Maternal Grandmother saying something, but then not acting in a manner consistent with her statement. There is nothing in the Grandmother’s proposal that reflects a gradual anything, let alone a gradual reintroduction and why, in any event, would [X] need to be reintroduced to his mother and father, when there is ample evidence of the relationship between them?
The rhetorical question remains unanswered: why has the Maternal Grandmother not done more to facilitate doing the very things that she keeps talking about – [X] spending more time with his mother, and eventually returning to her care?
Risks of harm in the Mother’s care?
Neither the Father, Maternal Grandfather nor Independent Children’s Lawyer considered there to be unacceptable risks of harm if [X] were to return into his mother’s care.
The Maternal Grandmother’s case about these risks needs to be understood. Firstly, the Court notes, historical concerns are of the little relevance in the circumstances of this case where an Expert has assessed the Mother’s capacity and relationship with [X]. There was little forensic benefit in the Grandmother’s case to point out all the difficulties the Mother experienced when [X] came into her care. Counsel for the Maternal Grandmother raised concerns about the Mother suffering depression and anxiety, having a low sense of self-worth, and being involved in a violent relationship with the Father.
The Mother addressed all of these issues. The impression created is that she is currently well supported, and has a good insight about the issues involved. There was some family violence between the Mother and the Father, in which the Father was the perpetrator, but the response from both parents about this issue demonstrated insight, and in any event the parents are not living together. The Mother is currently supported by R Organisation. The Maternal Grandfather indicated that she will provide accommodation, and offers to be as involved in assisting the Mother as she is willing to accept. There is no risk of harm evident in the Mother’s care.
What orders are in the best interests of [X]?
A primary consideration required under the Family Law Act 1975 is that [X] has the benefit of a meaningful relationship with both of his parents. This would be achieved on the proposals of all parties, except the Maternal Grandmother. The Court accepts that she is a significant person in [X]’s life and that he would benefit, in an ideal sense, from continued involvement by the Maternal Grandmother in his life.
[X] needs to be protected from physical or psychological harm. Insofar as the Maternal Grandmother’s case is that there is currently risks of harm in the Mother’s household, the Court is not satisfied that she has established her case. One year ago, the situation was clearly different. The Mother seems to have insight about past problems she has experienced and current issues, including a relationship with the Father that has been violent at times, and the challenge of caring for two young children for the first time.
The Court believes however, that [X] is at risk of emotional harm in the Grandmother’s household, as she seems unwilling, in reality, to support [X]’s relationship with his parents, for no good reason. It is unclear to the Court whether the Grandmother’s concerns about the welfare of [X] are genuinely held or whether they are her subjective beliefs with little objective basis.
[X] seems to have a good relationship with his mother, father and maternal grandmother. This has been independently assessed by Dr G. The Maternal Grandmother is probably his strongest attachment figure.
The impression created from the evidence is that both parents, but especially the Mother, sought to be involved in decision-making about [X] from 2019 but were for all practical purposes excluded by the Maternal Grandmother. In 2018 she had good reason to exclude the parents from decision-making about [X]. From 2019 there is no good discernible reason for having done so.
The likely impact of change for [X] is a major issue in this case but is one that was canvassed by Dr G. The orders proposed by all parties, except the Maternal Grandmother, would be a dramatic and sudden change in [X]’s life. Dr G, the independent Expert, was very conscious of the emotional impact on [X] of a sudden change in his primary carer. She believed it was necessary, and that he would ultimately adjust. One of the issues canvassed in closing submissions was whether the transition to his mother’s care should be a gentle or sudden one. The Independent Children’s Lawyer correctly identified that the Maternal Grandmother has had ample opportunity in 2019 for a soft transition into the Mother’s care, but it has not happened. Dr G was clear that a sudden transition was necessary, primarily because of concerns that she had about the Maternal Grandmother’s willingness for this to happen, let alone to support it. The Court agrees, in this regard. The dissonance between what the Maternal Grandmother says, and what the Maternal Grandmother does, is stark. It evidences a lack of real and genuine commitment to facilitating [X]’s transition back into his mother’s care. In the circumstances, and whilst it would be less than ideal, a sudden transition might be the least of the worst alternatives for [X].
The Court acknowledges that there are issues about the parenting capacity of both the Mother and the Father. It is not as if a transition into her care is completely without risk. But risks need to be balanced against benefits, and all parties except the Maternal Grandmother felt that it was time for [X] to go back into his mother’s care, with all the consequent benefits that comes with that. The Mother appears well supported, and having good insight into her issues. These orders are interim orders, in any event, and one would reasonably expect close monitoring of [X]’s wellbeing by the Independent Children’s Lawyer.
The impression created by the evidence overall creates some doubts about the Maternal Grandmother’s capacity to meet [X]’s emotional needs, and in particular his emotional need to have his mother constructively involved in his life.
There are issues about parental attitudes as well. Perhaps there is substance in the Mother’s case against the Maternal Grandmother that she was controlling and manipulative, and if the Court so finds that at a Final Hearing, that would reflect very poorly on her attitude to towards [X]. Perhaps, the Mother could have done more to facilitate [X]’s restoration to her care, at an earlier stage. The Court accepts that litigation between a child and a parent would be difficult for all parties.
Conclusion
Having regard to all of the evidence, and the submissions made, the Court believes that the Orders proposed by the Independent Children’s Lawyer best reflect what is in [X]’s best interests, for the time being. The Orders should come into effect immediately. The Mother and Independent Children’s Lawyer will have leave to relist on 24 hours’ notice for the purposes of applying for a recovery order, should the Maternal Grandmother not cooperate in facilitating these Orders. For the time being, the Court will make the order that the Maternal Grandmother spend no time with [X] but then proceed to supervised time. The Court is not sure that this is an order that will be sustained for more than a few months to enable [X] to try to adjust to his new living circumstances. The matter can be revisited to at a later date.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 20 December 2019
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Expert Evidence