Radev & Radev (No 3) - [2023] FedCFamC1F 221

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Radev & Radev (No 3) [2023] FedCFamC1F 221

File number: WOC 982 of 2019

Judgment of: CAMPTON J

Date of judgment: 31 March 2023

Catchwords: FAMILY LAW – PARENTING – Where the mother and father, as separated parents, have made a decision that it is not in the best interests of the children to have a relationship with the maternal grandmother – Where the maternal grandmother nonetheless seeks orders for time with the children – Where the parents have a good co-parenting relationship – Where final parenting orders have been made for the parents to have equal shared parental responsibility for the children, for the children to live with the mother and spend regular time with the father – Where the relationship between the mother and maternal grandmother is one of deep antagonism and is unlikely to repair – Where the Court finds that ongoing involvement of the maternal grandmother in the mother or the children’s lives will adversely impact on the mother’s parenting capacity as the primary carer of the children, on the good co-parenting relationship of the separated parents, and will be fertile ground for further conflict and litigation – Where the Court finds that any benefit to the children of spending time or communicating with the maternal grandmother is outweighed by the adverse impacts of such time or communication – Maternal grandmother’s application dismissed – No order for time or communication with the maternal grandmother.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65D, 69ZW

Cases cited:
Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229

Bayer & Imhoff [2010] FamCA 532

Burton & Curchin & Anor [2013] FLC 93-561; [2013] FamCAFC

Carter & Wilson [2023] FedCFamC1A 9

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1

Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76

Radev & Radev [2022] FedCFamC1F 737

Re Andrew (1996) FLC 92-692; [1996] FamCA 43

Valentine & Lacerra and Anor (2013) FLC 93-539; [2013] FamCAFC 53

Division: Division 1 First Instance

Number of paragraphs: 153

Date of hearing: 8–10 March 2023

Place: Sydney

Counsel for the Applicant: Mr Haddock

Solicitor for the Applicant: Bowral Legal

The First Respondent: Litigant in person

Counsel for the Second Respondent: Mr Reeve

Solicitor for the Second Respondent: Forshaw Lawyers

Solicitor for the Independent Children’s Lawyer: Ms Norris, Legal Aid NSW, Nowra
ORDERS

WOC 982 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS J RADEV

Applicant

AND:
MS A RADEV

First Respondent

MR BARWEGEN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAMPTON J

DATE OF ORDER:

31 March 2023

THE COURT ORDERS THAT:
1.The Amended Response to an Initiating Application of the maternal grandmother filed on 6 June 2022 is dismissed.
2.There be no order as to time spent by or communication with the maternal grandmother and the children, X (born 2016) and L (born 2018).
3.All outstanding applications and responses are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Radev & Radev has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION

These are proceedings as to the parenting of two children, X, born in 2016 and L, born in 2018. The children’s mother is Ms J Radev (“the mother”) and their father is Mr Barwegen (“the father”).
The mother and father met in 2014 and commenced a relationship in 2015. The father began to live with the mother and her father (“the maternal grandfather”) that same year. The mother and father separated in October 2018. In the year or so leading up to their separation, each parent agreed their relationship was defined by volatility. The mother during this period was experiencing post-natal depression and anxiety following X’s birth in 2016. They argued frequently, culminating in a family violence incident in mid-2017 occasioned by the father upon the mother to which I will refer later in these reasons. Arising from that incident the father pled guilty to and was convicted of an offence and a final apprehended domestic violence order (“ADVO”) was made for the benefit of the mother against the father in mid-2017, for a period of 12 months.
In the context of this volatility and violence and each of their mental health challenges, the mother and father made a child-focused, joint decision to place X in the care of Ms A Radev (“the maternal grandmother”). It was the parents’ evidence that they did so to protect X from their own conflict and challenges, and to allow themselves time to engage with professional assistance to resolve those issues. The mother, father and the maternal grandmother each said they understood the arrangement as to X’s care with the maternal grandmother to be temporary. X transitioned into the maternal grandmother’s full time care in late 2017. He was nearly one year old at that time.
It is uncontroversial that, for the benefit of X and at a time where the parents were in crisis, the maternal grandmother stepped in to provide X with the care he needed. This was acknowledged by each parent without reservation.
Shortly thereafter, the mother and father sought out a raft of supports to ameliorate the challenges they were experiencing. They attended couples’ counselling sessions between late 2017 and late 2018.
In mid-2017 the mother engaged a family support worker, Ms U. She maintained her engagement with Ms U for approximately 18 months, attending 25 sessions in that period. It was her evidence that Ms U had suggested and supported the parties in their decision to temporarily place X in the care of the maternal grandmother. In around late 2017 the mother engaged a psychologist, Ms C, to address her post-natal depression and anxiety. The father commenced emotional regulation sessions with T Organisation following the final ADVO being made. Each parent completed the Circle of Security parenting course in early 2018. When L was about six months old, the mother commenced attending Playgroup M, being a playgroup she was introduced to by Ms U, which she said promoted young parents “feeling connected to their community and seek relevant support services if the need arises”. Through Playgroup M the father was referred to a parenting course, Bringing Up Great Kids, which he completed in mid-2019.
It was not controversial that in the first few weeks after X commenced living with the maternal grandmother, the parents spent frequent (if not daily, then nearly daily) time with him. Shortly after L’s birth in 2018, L commenced spending one night per fortnight with the maternal grandmother, on the mother’s case “so that [L] and [X] could bond”. The maternal grandmother’s case was that at some point, her care of L reached “50 per cent” of the time. This was controversial. Over the months that followed, the maternal grandmother gradually reduced and restricted the parents’ time and communication with X. The motivation for or catalyst of that reduction in time is controversial and will be discussed later in these reasons.
In early 2018, X was referred to a psychologist, Mr E. He was over one year old at that time.
By mid-2018, the maternal grandmother had reduced and restricted the time spent by the mother and father with X for 1.5 hours on one occasion per fortnight, supervised by her at a park. Requests made by each of the mother and father to spend more time with X and to have X returned to the mother’s care were not acceded to by the maternal grandmother. It was the maternal grandmother’s case that she acted on the advice of Mr E in respect of her parenting of X, including as to limiting the fact, frequency, and terms of his time spent with the mother and father.
In early 2019, the mother sought the assistance of W Organisation to facilitate a mediation process between herself, the father and the maternal grandmother, with the view to increasing the parents’ time with X. That process did not eventuate. The mother arranged a further mediation process with Legal Aid in mid-2019. That process also did not eventuate.
On 2 September 2019, the mother commenced proceedings by filing an Initiating Application in what was then the Federal Circuit Court of Australia, in circumstances where the mother and father’s time with X had not progressed from the arrangement made in mid-2018 (more than 12 months prior), being for a period of 1.5 hours, once per fortnight. The maternal grandmother filed a Response to the mother’s Initiating Application on 30 September 2019 seeking that X continue to live with her, accompanied by a Notice of Risk. She asserted that X was at risk in the mother’s care arising from the mother’s poor mental health and “serious parental incapacity”. Such serious assertions as to risk have formed a central part of the maternal grandmother’s case for more than four years over the course of these proceedings.
On 2 October 2019, orders were made by consent providing for:
(a)The parties to engage Dr G as the single parenting expert to prepare a report as to the parenting of the children. That report was produced on 29 October 2019 (“the first Family Report”). The first family report was marked as Exhibit 6 in the proceedings.
(b)X to live with the maternal grandmother, and spend not less than three hours each Sunday with the parents.
After the release of the first Family Report, Judge Altobelli (as he was then) conducted an interim hearing and for reasons then delivered, made orders on 20 December 2019 that X live with the mother and, after a period of three months, commence spending time with the maternal grandmother supervised by N Services for not less than two hours per month. A further order was made that X spend time with the father as agreed between the parents.
The maternal grandmother initially sought to appeal from the 20 December 2019 orders, but subsequently discontinued the appeal on 7 April 2020.
The children have remained living with the mother since December 2019. The litigation since that time has progressed, and unsurprisingly, the relationship between the mother and the maternal grandmother has significantly deteriorated. It is now undeniably characterised by deep-seeded mistrust and entrenched antagonism.
By contrast, the mother and father’s relationship has improved with time (albeit not without bumps in the road), such that by the time the proceedings were first docketed and listed before me on 18 May 2022, they had reached an in-principle agreement as to the final parenting arrangements for the children.
When the matter again came before me on 12 July 2022, the mother and father had reduced their agreement to a Minute of Order, which was marked as Exhibit 1 on that date. That Minute of Order broadly provided for the mother and father to have equal shared parental responsibility for the children, for the children to live with the mother and spend time each alternate weekend and half of the school holidays with the father, as well as any additional time as agreed between the parents, and for the children to spend no time with the maternal grandmother. The maternal grandmother opposed all of those proposed orders, in circumstances where she at that time continued to assert that the children were at an unacceptable risk of harm in the mother and father’s care. Having considered the proposed orders of the mother and father, and the failure of the maternal grandmother to articulate any current assertion of risk in her Notice of Family Violence, Child Abuse or Risk filed 21 June 2022, I made the following notations and orders on that date:
THE COURT NOTES
A.Both the mother and father propose that final orders in respect of [the children] ought be made in accordance with paragraphs 1 to 13 of Exhibit 1.
B.The [ICL] has indicated a general agreement as to final orders being made in accordance with paragraphs 1 to 12 of Exhibit 1 and reserves her positon in respect to matters concerning time spent by the children with the maternal grandmother.
C.The Court is of the view that a number of final parenting orders as sought by the maternal grandmother in her amended Response to Initiating Application filed 6 June 2022 incompetent and are an abuse of process.
D.The maternal grandmother has filed pursuant to directions made 18 May 2022 a Notice of Child Abuse Family Violence or Risk on 21 June 2022 and that document records the maternal grandmother’s contentions as to factual matters that identify the risk posed by the parents as to the parenting of the children, whether that risk is physical, psychological or emotional to the children and engages in an assessment and evaluation of that risk.
THE COURT ORDERS
1.Pursuant to 69ZP of the Family Law Act 1975 (Cth) on the [Court’s] own initiative, I list for hearing before me at 10.00 am on 16 September 2022, in person, an application for a summary determination of the maternal grandmother’s Amended Response to Initiating Application filed 6 June 2022 pursuant to s69ZR of the Family Law Act 1975 (Cth) in exercising the obligations of the Court to apply the principles for child relating proceedings recorded in 69ZN of that Act and the general duties in respect to those proceedings identified in s69ZQ of the Act and otherwise by application of the processes contained in Rule 10.10 and 10.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules.
2.For the purposes of the hearing of the application identified in the prior order, the maternal grandmother is directed to file and serve within 7 days the affidavit evidence she seeks to rely upon to prosecute the relief as contained in her amended Response to Initiating Application filed 6 June 2022.
3.Each party including the Independent Children’s Lawyer is to file and serve on or before 5 September 2022 a short outline document of no greater than 5 pages containing written submissions as are considered relevant for the determination for the matters listed for hearing on 9 September 2022.
4.The maternal grandmother is on notice that should a summary determination be made dismissing her amended Response to Initiating Application filed 6 June 2022 on 16 September 2022, subject to further evidence and submissions, the Court is minded to make order 1 to 12 of Exhibit 1 as attached hereto.
Pursuant to those orders, the proceedings came before me on 16 September 2022 for the potential summary determination of the maternal grandmother’s Amended Response to Initiating Application filed 6 June 2022. On that day, when represented by King’s Counsel, the maternal grandmother abandoned her contentions as to either of the children being exposed to an unacceptable risk when living with the mother or spending time with the father. She confirmed that she would not agitate for the children to live with her, and by consent her relief to that effect was struck out. Accordingly, the final relief sought by the maternal grandmother narrowed to seeking orders as to time spent with the children, and a raft of ancillary orders identified later in these reasons.
In light of the narrowed scope of the dispute between the parents and the maternal grandmother, on 26 September 2022 the proceedings were listed for trial over three days to be heard as part of the Sydney Rolling List commencing on 8 March 2023. Extensive trial directions were made, which included the following notations:
A.For the purposes of the trial, the maternal grandmother has elected not to amend her final relief by way of filing any further amended Response to an Initiating Application pursuant to Order 5 made 16 September 2022, such that her final relief at trial will be as contained in paragraphs 8 to 17 of her Amended Response to an Initiating Application filed 6 [June] 2022 (“the maternal grandmother’s Amended Response”).
B.The final relief as sought by the mother, the father, and the Independent Children’s Lawyer as to the parenting of the children is as identified in Order 1 and notations [A]-[D] made on 12 July 2022.
C.It is anticipated at the time of the trial, as between the mother, the father and the Independent Children’s Lawyer, subject to the terms of any time to be spent by the children with the maternal grandmother, orders will be made in accordance with Order 1 made on 12 July 2022 (being paragraphs 1 to 12 of Exhibit A annexed thereto).
On the application of the maternal grandmother, which was resisted by the mother, the father and the ICL, for reasons then delivered additional orders were made on 26 September 2022 for the preparation of an updating family report by Dr G, specifically as to the relief sought by the maternal grandmother as contained in paragraphs 8–17 of her Amended Response filed 6 July 2022 and any replies of the parents thereto (see Radev & Radev [2022] FedCFamC1F 737). That report was completed by Dr G on 20 February 2023 (“the updating family report”) and marked as Exhibit 7 in the proceedings.
X is six years old and had recently commenced Year 1. L is four years old, and had recently commenced her first year of school in Kindergarten.
RELIEF SOUGHT BY EACH PARTY
As has been their position since 12 July 2022, the mother and father continued to seek orders in accordance with the Minute of Order marked as Exhibit 1 on that date. That Minute also became Exhibit 1 in the trial before me. It recorded the parents’ agreement as follows:
1. That all previous Orders be discharged.
2. That the parents have equal shared parental responsibility for [the children].
3. That the children live with the Mother.
4. That the children spend time with the father as follows:
(a) Each alternate weekend from 3pm conclusion of school Friday until 9am commencement of school Monday morning
(b) For one half of the shorter NSW School Holiday period as agreed between the parents in writing and failing agreement for the first week of the school holidays commencing on the last day of the school term.
(c) For one half of the Christmas school holiday period as agreed between the parents in writing and failing agreement for the first three weeks in even years commencing on the last day of school term and the last three weeks in odd years.
(d) Any other times as agreed between the parties in writing.
Special Occasions
(e) That for the purpose of Christmas the father shall spend time with the children each year from Christmas Eve 6pm until 1pm Christmas Day commencing 2022 and each even year thereafter and from 1pm Christmas day until 3pm Boxing Day commencing 2023 and each odd year thereafter or as otherwise agreed between the parents in writing.
(f) That for the purpose of Easter the father shall spend time with the children from 1pm Good Friday until 6pm Easter Saturday each even year commencing 2024 and from 6pm Easter Saturday until 10am Easter Monday each odd year commencing 2023 or as otherwise agreed between the parents in writing.
(g) That in the event the children are not in the father’s care on Father’s day the mother’s time is suspended on Father’s day from 10am until 5pm.
(h) That in the event the children are not in the mother’s care on Mother’s day the father’s time is suspended on Mother’s day from 10am until 5pm.
(i) That in the event the children are not in the father’s care during the children’s birthdays the mother’s time is suspended from 10am until 2pm on non school days and from 4pm-6pm on school days.
5. That for the purpose of time pursuant to order 3 above, that changeover occur at the children’s school/day care or as otherwise agreed between the parents in writing.
6. That the parents be permitted to video call the children at reasonable times as agreed between the Mother and Father on days that parent is not spending time with the children.
7. That both parents are at liberty to attend any extracurricular activities the children are participating in.
8. That in the event of a medical emergency both parents do all things to notify the other parent as soon as practicable upon the following occurring:
(a) If the children are involved in an accident requiring medical attention;
(b) If the children are involved in a medical emergency;
(c) If the children are hospitalised or confined to bed.
9. That both parents be permitted to visit the children if should the children/child be hospitalised or confined to bed.
10. That the parents provide a copy of these orders to any day care, out of school care, recreational organisation or school which the child, from time-to-time attends and each parent is to:
(a) List the other parent as well as themselves as a primary emergency contact in the event of an emergency involving the any of the child anytime a situation arises requiring an emergency contact, together with one alternative contact in the event that neither parent is able to be reached on such occasion;
(b) Authorise such out of school care, recreational organisation or school to communicate with each parent on matters relating to the child’s welfare and education, including school events;
(c) Authorise such out of school care, recreational organisation or school to provide notices, newsletters and reports directly to each parent; and
(d) Authorise such out of school care, recreational organisation or school to contact each parent in the event of an emergency.
11. That neither parent is to denigrate the other parent in the presence or hearing of the children or allow any third parties to denigrate the other parent in the presence of hearing of the children.
12. That each parent is to notify the other parent within 48 hours of any changes to their address or telephone number.
13. That the children spend no time with the maternal grandmother.

At the outset of the trial, the Independent Children’s Lawyer (“the ICL”) expressed her consent to paragraphs 1–12 of Exhibit 1, subject to one reservation arising from an incident of family violence involving the mother occurring in early 2023, as will be discussed later in these reasons. Subsequent to the mother giving oral evidence in relation to that incident, the ICL on the first day of the trial withdrew her reservation and expressed her unreserved consent to paragraphs 1–12 as proposed by the parents.
On the second day of the trial, after the completion of the mother’s oral evidence, the maternal grandmother resiled from her long standing opposition to Exhibit 1 (which had persisted from at least 16 September 2022) and consented to orders being made in accordance with paragraphs 1–12 therein.
Having achieved the consent of the mother, the father and the maternal grandmother, the ICL submitted on the afternoon of the second day of the trial that paragraphs 1–12 of Exhibit 1 would promote the children’s best interests and asked the Court to make those orders on a final basis. Final consent orders were made on 9 March 2023 in accordance with paragraphs 1–12 of Exhibit 1 (“the final consent orders”).
As a result of the final consent orders having been made, by the morning of the third day of trial the only disputes left for determination was as to the terms of any time spent by or communication with the maternal grandmother and the children, and whether any ancillary orders involving the maternal grandmother should be made. The specifics of the maternal grandmother’s relief were as contained in paragraphs 8 to 17 of her Amended Response to an Initiating Application filed on 6 June 2022 (“the maternal grandmother’s Response”), identified in her Case Outline which became Exhibit 4. She sought that:
…
5. The children spend time with the Maternal Grandmother during school terms and school holidays as follows:
(a) Each Tuesday from 3:00pm until 7:00pm
(b)One weekend each Month from 10:00am Saturday to 10:00am Sunday; and
(c)Any other times as agreed to between the parties in writing.
6. For the purpose of these Orders, school holidays shall be the holiday dates published by the New South Wales Department of Education and Training for the relevant period in each year.
7. The children may communicate with each parent and the Maternal Grandmother at such times as the children so wishes and the other party shall facilitate and encourage such communication by telephone, in writing, or by other electronic means including but not limited to email and if the facility exists, and the party wanting it provides it, webcam or video conference.
8. Each party notify the other, as soon as possible and in any even within 24 hours of any serious injury or illness suffered by the child whilst with that party.
9. Each party notify the other, not more than 24 hours after any change to their address and/ or landline and/ or mobile telephone numbers and/ or their email address.
10. Each parent notify the other of the address and telephone number/s of the place/s where the children will be staying during holidays spent away from their residence, no later than 48 hours prior to the commencement of any holiday period.
11. That the parties each be entitled to attend all events and performances, all parent/ teacher interviews, sporting events and any other events to which parents are ordinarily invited to attend at the school, as the case may be.
12. That each party is at liberty to contact the children's school and childcare to obtain any school reports or discuss the progress of the children with the school or childcare.
13. That each party is at liberty to attend any extra-curricular activities, concerts or sporting events that the children may participate in from time to time.
14. That all parties shall:
(a) Not make critical or derogatory remarks about the other parent, the other parent's partner, if applicable, or extended family members, in the presence or hearing of the child;
(b) Do all things necessary to ensure that no third party makes critical or derogatory remarks about the other parent, the other parent's partner, if applicable, or extended family members in the child' s presence or hearing;
(c) Remove the child from any situation where any other person is doing or saying anything to the child or in the presence or hearing derogatory of the other parent, the other parent's partner, if applicable, or extended family members;
(d) Not discuss these proceedings or the contents of any documents filed or used in these proceedings with the child or either of them or in their presence or hearing; and
(e)Not discuss the arrangements for or alteration of arrangements for the child at the point of collection or return of the child, at the commencement or conclusion of either parent spending time with the child.
The parents’ consistent position on those matters was reflected in paragraph 13 of Exhibit 1, being that there “the children spend no time with the maternal grandmother” or communicate with the maternal grandmother. They otherwise sought that the maternal grandmother’s Amended Response to an Initiating Application filed 6 June 2021 be dismissed.
On the first day of trial the ICL indicated that although she had not reached a concluded view as to whether the children should spend time or communicate with the maternal grandmother, she did not support the proposal of the maternal grandmother. By the third day of the trial, after the oral evidence concluded and prior to submissions, the ICL reached what she described as a “difficult conclusion… that the orders in the best interests of the children would provide for the children to spend no time with the maternal grandmother”. She accordingly joined in with the relief sought by the parents.
For the reasons that follow, orders will be made dismissing the maternal grandmother’s Amended Response to an Initiating Application filed 6 July 2020.
THE LAW
Section 65D of the Act compels the Court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the Court is to regard the best interests of the child as the paramount consideration. A child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act.
The primary considerations (under s 60CC(2)) 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.
The benefit to the children of having a meaningful relationship with each of their parents
Section 60CC(2)(a) refers to the benefit of the meaningful relationship with both the child’s parents. The reference to “parents” in s 60CC(2)(a) is as to the parents of a child. To treat a person other than a parent as if they were for the purposes of the section is an error (see Burton & Curchin [2013] FLC 93-561). Conversely, s 60CC(2)(b) refers to the need to protect the children from physical or psychological harm in an unlimited way.
The mother, the father and maternal grandmother are the three people who are seeking orders in relation to the children. The legislation directs that a primary consideration is the benefit of the children having a meaningful relationship with their parents, and directs that those relationships are elevated above the relationship between the maternal grandmother and the children. That is not the end of the matter. The nature of the children’s relationship with the maternal grandmother is specifically identified for consideration by way of s 60CC(3)(b). The significance and consequences of that relationship by way of the involvement of the maternal grandmother in the lives of the children must be consistent with the promotion of their best interests.
On the case of the parents there will be no relationship between the maternal grandmother and the children. On their case, the children will continue to have meaningful relationships with each of their parents. On the maternal grandmother’s case, she will continue to be a significant person in the lives of the children.
Risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the children from physical or psychological harm and from being subjected or exposed to abuse or violence. The relevant question contended by both the mother and the father in this matter is whether there is an unacceptable risk of psychological or emotional harm in the children spending time with the maternal grandmother.
Section 60CC directs me to prioritise the need to protect the children from risk of harm over their ability to maintain a relationship with the maternal grandmother. An evaluation is required as to how, taking into account and balancing all relevant factors, including that of risk, the prospective relationship between the children and the maternal grandmother is going to be an advantage to the children.
While it will (and indeed must) be influenced by factual findings about past events, the risk assessment task itself involves considering all relevant matters, looking forward, and making a projection. This projection will in part be informed by past events which, the Full Court clarified in Isles & Nelissen (2022) FLC 94-092 (“Isles”), are to be determined by reference to s 140 of the Evidence Act 1995 (Cth). The Full Court added that the assessment “of ‘unacceptable risk’ cannot be measured by the civil standard of proof”. Rather, I look to realistic possibilities (see Isles at [47], [49]–[51] and [81]).
The parties’ cases as to risk
The mother in her Case Outline cast her case in terms of risk. She identified two categories of risk to which she said the children would be exposed if they were to spend time with the maternal grandmother, being:
(a)The risk to the children of being exposed to coercive and controlling behaviour of the maternal grandmother directed to them, amounting to family violence; and
(b)The risk to the children of being exposed indirectly to coercive and controlling behaviour of the maternal grandmother directed the mother amounting to family violence.
The mother’s case as to the children being at risk of direct or indirect exposure to coercive and controlling behaviour should they spend time with the maternal grandmother was founded on:
(a)Her experiences with the maternal grandmother during her own childhood The maternal grandmother’s relationship with and treatment of other family members;
(b)The maternal grandmother’s retention of X prior to these proceedings and her restriction of time spent by X with the parents; and
(c)The maternal grandmother’s conduct in these proceedings – including by way of causing the police to conduct welfare checks on the mother and father and by information collecting to survey the mother and father
The father supported the mother’s submissions as to risk of direct and indirect exposure to coercive and controlling behaviour. The ICL made no submissions to this effect.
In addition to these two categories of risk, the mother, father and ICL were aligned in their contention that:
(a)The relationship between the mother and the maternal grandmother is so conflictual, so lacking in trust, and so deeply entrenched, that any benefit to the children of spending time or communicating with the maternal grandmother would be outweighed by the comparatively greater negative impacts on the mother’s parenting capacity as the uncontested parent with whom the children are to live generated from that time spent; and
(b)As to there being a likelihood of continued conflict between the parents and the maternal grandmother arising from the fact of, and implementation of, orders for time to be spent between the children and the maternal grandmother. This would likely extend to further litigation as to the enforcement and/or variation of such orders.
Together, the parents and the ICL contend risks to the children, should they spend time or communicate with the maternal grandmother, could not be alleviated, even if such time were to be supervised.
The maternal grandmother denied that the children would be at any risk of harm should they spend time or communicate with her. The maternal grandmother’s case was founded on three premises being:
(a)She said that she and the children enjoyed a relationship that was significant and meaningful. Implicitly, her case was that the significance of that relationship outweighed the contended negative impacts on the mother identified above.
(b)She denied that she had engaged in behaviour amounting to coercive and controlling behaviour as alleged by the mother, such that the mother’s perceptions of her were not grounded in reality. As a corollary to this assertion, she submitted that the mother’s “anxiety and stress associated” would dissipate, and that “[should an order be made about the children spending time with the maternal grandmother] everyone would soon adjust the situation, and the situation will normalise”.
(c)Notwithstanding that she had purportedly abandoned her case as to the children being at risk in the mother’s care, she contended that [should the children spent time with her as sought] she could offer a “small platform of consistency which is free from the turbulence which has consistently been within the mother’s life over the last number of years”.
Additional considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(1)Issues relating to the children – their views, level of maturity, culture and relationships:
(a)Sub-section (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;
(b)Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
(c)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
(d)Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(2)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
(a)Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
(b)Sub-section (3)(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;
(c)Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
(d)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
(3)Issues of family violence:
(a)Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
(b)Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
(4)Practical difficulty of implementation:
(a)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(5)Avoiding further proceedings:
(a)Sub-section (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.
(6)Other relevant matters:
(a)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
In reaching my decision, I have considered all of the relevant sections of the Act albeit that I am not required as a matter of law to specifically address each such consideration. I will now address the relevant issues.
FINDINGS AS TO RELEVANT BACKGROUND MATTERS
Does the conduct of the maternal grandmother prior to the placement of X in her care amount to behaviour that coerced and controlled the mother?
The mother identified a range of conduct of the maternal grandmother directed towards the mother during childhood which she submitted grounded a finding as to family violence as defined by s 4AB(1) of the Act. This included engaging in “psychologically-destructive behaviour” by way of isolating her from society, verbally abusing her and not permitting the mother to access to her own bank account or Medicare details when she eventually left the maternal grandmother’s home. The maternal grandmother broadly denied this conduct. As will be discussed later in these reasons, she sought to use extracts from the mother’s teenage diary to show that the mother’s evidence on these matters were not objectively true.
Much of the history between the mother and the maternal grandmother is contested. Each of their recollections of the mother’s childhood and the circumstances around the mother leaving the maternal grandmother’s home when she was a young adult are at odds. Their memories of these events have plainly been shaped by their experiences of and attitudes towards one another which have developed over the intervening years, including the past four years of intense litigation. Although these matters consumed a disproportionate amount of the volumes of affidavit evidence, including the 1,316 pages of exhibits to the maternal grandmother’s affidavit and her tender bundles, they were not comprehensively explored during the oral evidence or submissions at trial.
By the end of the trial, the evidence which purported to underscore the findings of fact each party asked the Court to make about events that happened between them in the years leading up to these proceedings remained of a generalised and summary nature, more often than not absent particulars and context. Although Dr G reported accounts of the mother and her sister (the maternal grandmother’s other daughter, with whom the maternal grandmother no longer has a relationship) of the maternal grandmother’s “extremely controlling behaviour throughout their childhood” constituting “emotional abuse” (see paragraphs 10–12, 57–61 of the first family report), which if established would demonstrate the maternal grandmother to be an “extremely controlling person who cannot tolerate age appropriate autonomy in a child” (paragraph 76 of the first family report), those accounts were not explored in any detail during the trial. The mother’s sister did not give evidence (by affidavit or orally) for the purpose of the trial.

The maternal grandmother conceded that she did not have an ongoing relationship with her other daughter. She also accepted that she had been estranged from her own mother for a period of almost 25 years, before they reconciled before her mother’s death. She did not, however, accept the explanation for the character of those relationships preferred by the mother. I am not satisfied that the fact of the maternal grandmother being estranged from each of her daughters and previously from her mother is sufficient foundation for a finding that the maternal grandmother has engaged in a pattern of coercing and controlling behaviour against them. There may be a number of possible explanations for that circumstances, which were not canvassed during the course of the hearing.
Having regard to the quality of the evidence and the way that it was tested, I am not satisfied to the requisite standard that the findings sought by the mother and father as to the maternal grandmother engaging in coercive and controlling family violence throughout the mother’s childhood can be established. These matters are nonetheless relevant insofar as they shed light on the current attitudes of each party towards one another.
The maternal grandmother’s retention of X from late 2017 and her restriction of time spent by X with the parents
As recorded above, the mother, father and maternal grandmother shared a common understanding and intention when X was first transitioned into the care of the maternal grandmother. That intention was that such arrangement was temporary and intended to give the mother and father time and space to lessen the conflict in their relationship and to seek appropriate supports to address each of their own mental health challenges, before X transitioned back into their full time care.
I find that placing X with the maternal grandmother was a child-focussed, responsible decision to take in a time of crisis and reflected a capacity in the parents to prioritise X’s needs over their own. As recorded earlier in these reasons, to the credit, the parents took that time to address the difficulties with family violence and mental health constructively. They asked for help from professional supports when they realised those difficulties were not ones they could overcome themselves.
Despite the parents’ efforts, the common intention they had once shared about X returning to the parents’ care when they were ready to care for him disintegrated. It was the mother’s evidence that shortly after X commenced to live with the maternal grandmother, the maternal grandmother began to control the terms of the time X spent with the mother and father. Powerfully, in her affidavit the mother gave evidence that:
18.Over the coming months [the maternal grandmother] gradually reduced the time that [the father] and I spent with [X] in a way that I can only describe as [the maternal grandmother] taking advantage of our vulnerability, young age and concern for [X]…
She gave evidence of a number of criticisms she said the maternal grandmother made towards the parents, including seemingly minor issues such as complaints about the mother wearing perfume around X, to more significant allegations of X regressing and exhibiting signs of trauma after contact with the parents.
Shortly after X came into the maternal grandmother’s care, the maternal grandmother together with the mother and father obtained a referral from a general practitioner for X to a child psychologist, Mr E. There was some disagreement between the mother and maternal grandmother as to who instigated the referral process, however I do not consider that matter to be of significant relevance. The maternal grandmother said that Mr E’s engagement was, at least initially, to assist the parties’ in transitioning X back to the parents’ care after L’s birth, and to address her worries about his “concerning emotions and behaviours” after spending time with the parents.
It was the maternal grandmother’s case that:
(a)Mr E advised that those emotions and behaviours of X as reported were “trauma responses” to seeing his parents, and hence that time should reduce; and
(b)All of the actions she took in respect of reducing the parents’ time with X from mid-2018 and placing restrictions on the terms of that time was done on the advice of Mr E, as part of a collaborative consultation process which included the parents. She gave affidavit evidence that:
321. I wished to avoid ultimate responsibility in managing [X’s] care with [the mother and father] as I knew what a serious issue it was, and I wanted it to occur with the benefit of professional oversight. I was attempting to be the opposite of controlling. I was attempting to hand over that responsibility to an expert.
The maternal grandmother has had the benefit of the first family report for more than three years. She had the benefit of lawyers in the process of preparing her trial affidavit. I find that the maternal grandmother knew or ought to have known that the fact and terms of Mr E’s advice as she contended was an important factual contest and issue at trial. Against that background, the maternal grandmother, at least implicitly, made a forensic decision not to obtain an affidavit from Mr E to give evidence in her case, or to call him to give any oral evidence.
At trial the maternal grandmother attempted to garner support for her conduct in excluding the parents’ from X’s life after mid-2018 from notes and correspondence of Mr E as contained in her very voluminous tender bundles and exhibits to her affidavit. Those parts of the notes identified in the oral evidence did not support the conclusions the maternal grandmother contended ought to be drawn from them.
The tenor of the mother’s evidence was that the maternal grandmother provided Mr E instructions and a history of X’s presentation to which the mother and father were not privy, and in doing so shaped Mr E’s understanding of X and his situation, such that even if the maternal grandmother was acting on the advice of Mr E, that advice was not impartially grounded. Those parts of Mr E’s notes that were the subject of the oral evidence and submissions at trial support the mother’s contention, and I so find.
I do not accept the maternal grandmother’s contention that she had abdicated responsibility for the decisions about X’s time with his parents in favour of Mr E. In cross-examination she conceded that while she might have received and considered advice from Mr E, she controlled with whom X spent time and on what conditions. I find that the maternal grandmother was the ultimate arbiter of those decisions.
As was highlighted by Dr G in both her first report and during cross-examination, the maternal grandmother did not consider the possibility that any behavioural problems exhibited by X after visits with the parents may have been “construed as grief and protect about enforce separation from his familiar carers – which could have been alleviated by more frequent visits or a return to their care”.
Does the conduct of the maternal grandmother in retaining X and restricting his time with his parents subsequent to his placement in her care amount to behavior that coerces or controls the mother and/or X?
In the first family report, prepared for the purpose of the interim hearing before Judge Altobelli (as he was then), Dr G opined:
76.Based on aggregated information, it is my concluded opinion that the maternal grandmother’s stated reasons for obstructing contact and opposing restoration [between [X] and the parents] are specious. If the accounts of the mother, grandfather and maternal aunt are to be believed, the maternal grandmother is an extremely controlling person who cannot tolerate age-appropriate autonomy in a child (or even in a partner). The PAI profiles of both parents support the interpretation that they would have been easily intimidated by a more forceful personality, which is consistent with their explanation of why they did not act decisively to resume [X’s] care and needed to litigate.
Behaviour that coerces or controls a member of an individual’s family is defined as family violence by s 4AB(1) of the Act. The immediately following subsection provides examples of conduct that may constitute family violence, including “preventing [a] family member from making or keeping connections with his or her family…”.
In the recent decision of Carter & Wilson [2023] FedCFamC1A 9, the Full Court made clear that “the determination of what constitutes behaviour ‘that coerces or controls’ must be considered in the context in which the conduct occurred” (at [15]). As is relevant to this matter, the Full Court noted that:
17.The mere fact that the mother’s conduct in limiting the child’s time with the father could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence as defined in s 4AB(1). Context is all important.
Some of the context in this matter lends support to the conclusion of Dr G that the maternal grandmother’s stated reasons for restricting X’s time with the parents were “specious”. Those include that:
(a)The maternal grandmother rebuffed attempts by the mother to mediate issues as to the parenting of X, and two alternate dispute resolution processes failed before the mother commenced litigation; and
(b)Notwithstanding the maternal grandmother having the benefit of a legal representative appear on her behalf, when the consent orders were made on 2 October 2019 permitting the parents three hours unsupervised time on Sundays, the first period of time to be spent as ordered did not occur in accordance with the orders; and
(c)During the parents’ first visit with X on 6 October 2019, the maternal grandmother alerted the police to concerns she had about X’s welfare (despite having consented to the orders for time some four days earlier) and caused the police to conduct a welfare check on X; and
(d)Despite having the benefit of the first family report, the maternal grandmother did not herself seek to increase the time between X and the parents. Self-evidently, she was not assured by Dr G’s assessment at that time that X faced no intolerable risk of harm in the mother’s care. Rather, it was only by way of the Court’s order after a defended interim hearing process that X was transitioned back from the maternal grandmother’s care to the mother, as had been agreed between them some two years prior.
However, it must be remembered that the maternal grandmother’s conduct occurred against a background of historic, genuine and self-professed concerns from the parents as to their own ability to appropriately care for X. I am not persuaded that the maternal grandmother’s motivation in the retention of X and restricting his time with his parents was entirely malicious. I found aspects of her evidence concerns (whether or not founded in reality) as to the wellbeing of and presentation of X including as to his behavioural concerns to be genuine, notwithstanding that other aspects of her conduct at the relevant time was generally demonstrative of an incapacity to stand back and promote X’s interests. Her stated beliefs, even if they were grounded on nebulous foundations, echoed some authenticity.
In those circumstances, I am not satisfied that the conduct of the maternal grandmother in limiting the time that X spent with the parents could be said to be coercive or controlling behaviour for the purposes of s 4AB(1). Again, this subject matter sheds further light on the current attitudes of the parents towards the maternal grandmother.
Family violence involving the mother and father
It is uncontroversial that the relationship between the mother and father has been marked by family violence, both prior to and after separation. Each parent gave evidence that in the lead up to separation they argued “consistently”. In mid-2017, that conflict escalated to physical violence. The father gave evidence in his affidavit while house-sitting with the mother and X, he “walked up to [the mother] and grabbed [the mother] and pushed her and yelled at her, and [he] had [his] hands around her neck”. The parents each said that X was asleep at the time of the incident. The mother called the police to intervene. In doing so, I find that she appropriately acted for the protection of herself and X. As recorded, the father was arrested and charged with an offence, which he pled guilty to and was convicted of. A final ADVO was issued against the father for a period of 12 months for the protection of the mother and X. The father subsequently engaged professional supports to improve his emotional regulation.
After the first physical family violence incident, the mother and father continued in their relationship and engaged a couples’ counsellor between late 2017 and late 2018. They each said that counselling helped us deal with some of their issues and improve their communication, but they nonetheless decided to separate in October 2018. The father remained living with the mother in the maternal grandfather’s residence, “so that [he and the mother] could co-parent [L]”.
It was the mother’s uncontested affidavit evidence and I find that after these proceedings commenced in September 2019, the relationship between herself and the father deteriorated. She said that in late 2019, the father threw the mother’s phone out of the car while they were driving together, and on another occasion in that same month, he punched her car at a changeover for L. The father conceded these incidents of family violence and I so find. The mother contacted police in relation to this incident and a further ADVO was made against the father in protection of the mother (but not L) for a period of 24 months. It was the father’s uncontested evidence that he was placed under a Community Corrections Order for 12 months, which he completed without issue.
In early 2020, there was an incident of family violence between the father and the mother’s then-partner, Mr Y, at changeover for the children. Each parent gave unchallenged affidavit evidence that their communication around this time was strained, the mother attributing it to the father’s desires to spend increased time with X in circumstances where “it was important to [her] that [the parents] took things at [X’s] pace and did things in a calm and appropriate manner”. On this particular date, when the mother and Mr Y arrived at the father’s house to collect the children an argument ensued. The father said that while he was holding L, Mr Y attempted to grab L’s arm and pull her out of the house. The conflict escalated, and it was the father’s evidence that Mr Y “grabbed [his] shirt and punched [him] […]” and the father, Mr Y, and the father’s roommate engaged in a physical brawl. The mother took the children out of the home. Arising from the incident the father’s roommate was charged with two offences and an AVO was made against him protecting Mr Y. Mr Y was charged with three counts of an offence. It is not necessary for me to make findings as to the specifics of this event. However, I find that:
(a)The mother acted protectively in removing the children from the home and away from the conflict;
(b)The Department of Communities and Justice conducted a safety assessment of the children in the mother’s care as a result of the children being named in a police report of the incident, and at the conclusion of the assessment advised the mother that the Department “did not hold any concern for the children” in her care;
(c)Following the incident, the mother imposed restrictions on the father’s time with the children, initially so that such time was during the day only and in the supervision of the maternal grandfather.
The mother subsequently separated from Mr Y.
The father’s evidence as to his past family violence conduct was open and concessional. There was no evidence of any further family violence incidents directly between the father and mother since late 2019, or involving the father since early 2020, some three years ago. Each of the mother, father and ICL do not contend the children are at any ongoing risk of exposure to family violence.
Incident in early 2023
On the first day of the trial, the mother sought and was granted leave (with the consent of each other party and the ICL) to adduce further evidence in chief as to an incident of family violence between herself and her most recent partner from whom she has now separated, in early 2023. On the application of the ICL an order was made pursuant to s 69ZW of the Act on the first day of the trial, seeking documents from the NSW Police Force in relation to this incident. Those documents were produced and made available to the Court and the parties by way of an order made on the second day of the trial, such documents being marked Exhibit 9 in the proceedings.
It was the mother’s evidence, given orally, that in early 2023 her then-partner, Mr Z, took the children for a walk to the park. When he returned home, and after the mother had put the children to bed, she realised that Mr Z had consumed alcohol and appeared to be intoxicated. The mother said that an argument between them ensued. She deposed that during the course of the argument, Mr Z became physically aggressive, including grabbing her around the neck. It was the mother’s evidence that when she was able to break free from Mr Z, she ran to her neighbour’s house who assisted her in calling the police and removing Mr Z from the mother’s home.
The mother was cross-examined on this event by the ICL and the maternal grandmother. Again, it is not necessary for me to make findings on the specifics of the incident, particularly in circumstances where there are criminal proceedings ongoing in another forum. The mother in her oral evidence said Mr Z has pled guilty to the three criminal charges laid against him and that he has a sentencing hearing in 2023. However, it is significant that:
(a)The mother called the police, or caused them to be called, immediately. She said the ambulance also attended her home;
(b)In addition to emergency response services, the mother called the maternal grandfather who remained at the mother’s home to look after the children while the mother attended hospital that evening. She also called the father, who attended the hospital to “keep [her] company” and who later drove the mother home, and stayed overnight at the mother’s home. In cross-examination she said that the father was “100 per cent” supportive of her on that evening;
(c)A final ADVO has been put in place against Mr Z for the protection of the mother and the children, for a period of two years;
(d)The mother’s relationship with Mr Z has concluded; and
(e)The mother confirmed that she was not aware of Mr Z’s potential for aggression when intoxicated prior to this event, that she would not have allowed Mr Z to take the children to the park if she knew he intended to consume alcohol, that she has not had any form of contact with Mr Z since the incident, that Mr Z was not the kind of person she wants around the children, and that if a similar incident were to occur in the future, she would take similar steps as she took on this occasion to protect herself and the children.
As recorded above, the ICL at the outset of the trial said she had a reservation as to the making of orders in accordance with paragraphs 1–12 of Exhibit 1 (which are now the final consent orders). After the mother’s oral evidence as to this incident was completed, the ICL withdrew that reservation, indicating her confidence that the mother had acted appropriately in protection of the children and that the incident did not cause the ICL concern as to the mother’s capacity to protect the children from harm in the future.
In submissions the maternal grandmother too conceded that the mother acted protectively for the benefit of the children on this occasion, albeit that she continued to raise concerns as to what she described as the ongoing “volatility” in the mother’s life.

The mother by way of her lawyers had notified the maternal grandmother and the ICL of the incident in early 2023. In cross-examination, she was asked by the ICL as to what if any impact disclosing the incident to the maternal grandmother had on her. The mother responded that she wanted to be honest about the incident before the trial commenced, but that telling the maternal grandmother of it caused her to “fear of a lot of judgement, [it being] thrown in [her] face” and to feel that she was “not… good enough, that the actions that [she] took weren’t good enough”. That evidence was not materially challenged by the maternal grandmother and I accept it.
Although not expressly, each party by their consent to the final consent orders made on the second day of the trial implicitly submitted that the children were not subject to a risk of harm by way of exposure to family violence between the parents by living with the mother and spending time with the father. I so find.
The current relationship between the mother and father
While the parents’ relationship has historically experienced peaks and troughs, the current circumstances of the parents now represents one of relatively stable exchange and cooperation. I find, as was conceded by all parties and apparent on the evidence, that their relationship is now characterised by open communication and mutual support. The father in his oral evidence described the mother as someone that he loves. For her part, the mother described the father as someone she relies on for support in times of need. I find that they are separately and together applying the skills and capacities that they have developed with the assistance of professional supports in a positive co-parenting relationship for the benefit of the children.
Although the final consent orders provide for routine time between the father and the children, in cross-examination each parent said that they had reached a level of trust and confidence in their co-parenting relationship such that need not adhere strictly to that routine, but that they implement time arrangements that “work out best between [each parent] and the children”. For example, the father said that if the mother has something on he offers to care for the children, and vice versa. That evidence was not challenged in cross-examination and I accept it.
In the course of their oral evidence, the mother and father both presented as reflective parents. They expressed fear as to the likelihood of encountering destructive behaviour of the maternal grandmother should she continue to be part of their lives and the lives of the children. They each gave evidence of their worries that the maternal grandmother would attempt to undermine the decisions they make for the children, and of the impact that would have on their currently effective co-parenting relationship. I find, having regard to their unwavering evidence, that this apprehension is unfeigned and is grounded from their perceptions of their lived experiences with the maternal grandmother.
To the extent that the maternal grandmother’s continued involvement in the children’s lives might impact on the co-parenting relationship as foreseen between the mother and father, Dr G in her oral evidence opined that such outcome would not be in the best interest of the children. It was her unchallenged evidence that the Court should be weary of introducing any unnecessary pressures to the relationship between separated parents. She said that exposure to parental conflict is harmful to children, in part because “tension passes down the line” from parents to children. I accept that evidence and so find.
The current relationship between the children and each of the parents
In the preparation of the updating family report, Dr G observed the children with the parents in a park. It was her observation that:
24.…Both children displayed age-appropriate socialization. They were cheerful, friendly well-behaved and cooperative with parental directions. Each child showed physical affection and proximity-seeking towards both parents. They moved easily between their parents. The family atmosphere seemed warm, relaxed and comfortable….
25.Overall, [X] and [L] displayed secure base behaviour towards both parents…
27.…The parents seemed united in this disciplinary approach, and displayed affectionate, authoritative parenting overall during this brief observation. Although parental decision-making seemed collaborative, the mother often took the lead in limit-setting or in initiating a change of pace or activity, which would be in accordance with her task leadership role as primary caregiver day-to-day.
This evidence of Dr G was not challenged and I accept it. I find that the children currently experience a respectful, mutually supportive and child-focussed co-parenting relationship between their separated parents, and that each child finds security in and affection from each of the parents.
Supervised time between the children and the maternal grandmother
By way of the interim orders made on 20 December 2019, X was due to commence spending supervised time with the maternal grandmother after a period of three months of living with the mother and father. The orders were varied on 9 June 2020 so that the supervising agency would be “[O Agency]”, and that the maternal grandmother would meet the agency’s costs.
It appears uncontroversial that the maternal grandmother did not exercise time with the children between 20 December 2019 and August 2020, and then did spend supervised time with them in accordance with the orders between August 2020 and September 2021, for various reasons as identified by the parties, including:
(a)the impact of the COVID-19 pandemic; and
(b)the availability of the various supervising agencies; and
(c)the mother’s concerns arising from regressive and aggressive behaviour exhibited by X following time-spent with the maternal grandmother; and
(d)the maternal grandmother’s contention as to the mother refusing to facilitate her relationship with the children.
Orders were made by a senior judicial registrar on 1 November 2021 again changing the identity of the supervising agency to “[S Agency]”. As part of the defended determinations made by the senior judicial registrar on 1 November 2021, the maternal grandmother’s application for time to be spent on an unsupervised basis and to discharge Dr G as the single parenting expert were dismissed. L was included in the spend-time with orders. She was nearing three years old at that time.
The maternal grandmother’s time with the children again did not occur between the orders of the senior judicial registrar on 1 November 2021 and August 2022. The mother said this suspension of about 10 months was because the maternal grandmother did not engage with S Agency. The maternal grandmother gave evidence that S Agency do not offer supervision services proximate to the mother’s home. She further said that S Agency were only available to supervise her time with the children on Saturday, being the only day of the week the maternal grandmother was unable to attend supervised visits due to religious commitments.
The maternal grandmother’s time with the children recommenced on with S Agency 16 October 2022, monthly for a period of three hours at a park in Town B. It has now occurred on six occasions. The supervised contact reports record enjoyable and affectionate interactions between the children and the maternal grandmother. It is plain on a reading of the reports that the maternal grandmother is well-prepared for the supervised visits, that she engages the children in age-appropriate activities, and that the children are tactile with her.
In January 2023, the mother requested that the maternal grandmother be limited to taking only two photographs of the children at a given visit. During her cross-examination of the mother, the maternal grandmother sought to challenge the reasonableness of this restriction. She drew attention to emails between herself and S Agency, wherein she enquired (among other things) “as to why it is considered a necessity to adhere to the parents’ request” (as recorded at page 181 of Exhibit 11).
The mother’s explanation for the restriction given in cross-examination was that she was “concerned where those photos would be posted and shared” on social media, and with whom they would be shared. It was her position that as the parent of the children she ought to control where pictures of them go. The maternal grandmother in cross-examination could not accept this position as legitimate. Regardless of the explanation given by the mother, which I find was reasonable in the circumstances, I find this dispute is demonstrative of the maternal grandmother’s propensity to challenge the decisions made by the mother as a parent of the children, and provides objective support to the mother’s perception of her parenting being tested and undermined by the maternal grandmother.
Relationship between the maternal grandmother and the children, and views of the children towards the maternal grandmother, and effect of separation of the children from the maternal grandmother
It is not controversial that X lived with the maternal grandmother between late 2017 and late 2019, being a period of more than two years. He had turned three years old when he returned to the mother’s care. Undoubtedly the maternal grandmother during that period was the person primarily responsible for meeting X’s needs, and she described herself as his “primary attachment”. Dr G in her oral evidence expressed emphatically that even if that were the case at the time, it certainly is not the case anymore.
The maternal grandmother said that the children love her, that she is a significant person in their lives, and that the children have expressed a desire to spend time with her. Her contention finds support in the contact reports prepared by the supervision agencies, a plain reading of which show that the children appear to have warm interactions with and demonstrate affection towards the maternal grandmother.
The maternal grandmother in her material relied on at trial was critical of the failure of the expert to explore the children’s views as to time spent with the grandmother in the updating family report. The crux of the expert evidence of Dr G was that the maternal grandmother has little to offer the children. In her oral evidence, she forcefully opined that the children’s presentation, as recorded in the supervisor reports, was not indicative of their views. Dr G described the time spent between the children and the maternal grandmother as “pleasant” (she conceded that it could be interpreted as loving and joyous, using the maternal grandmother’s description) adding that this does not mean it is meaningful for the children in any “critical way.”
The maternal grandmother focused on the contents of the supervision reports as evidence that carried significant weight as to the fact of the children enjoying their time with her and the benefits of that time being spent in promoting their interests.
The mother contends that the children would not miss the maternal grandmother if their time with her is to cease. She said that she and the children do not speak about the maternal grandmother together, save and except for in the preparation for and upon their return from supervised visits. In her oral evidence she said she was unsure if the children were aware that the maternal grandmother was her mother, and that they perceived her as someone that they “play with on occasion”. It was her position that if orders were to be made for the children to have no time or communication with the maternal grandmother they would be unlikely to experience any sense of loss. She said they would not require any professional assistance to deal with such change because of their age. That contention finds some support in that since X recommenced living with the mother in late 2019, there have been significant periods of time during which the maternal grandmother has not exercised time with the children (as recorded at [92] and [94] above). There was no evidence to suggest that during these periods of separation the children experienced any distress or loss in not having the maternal grandmother in their lives. That said, I find that the maternal grandmother was and remains a significant person in the lives of the children and that they would experience a sense of loss in the event they had no contact with her in the future.
Dr G opined that to focus on the fact of the children’ enjoying their time with the maternal grandmother is to look at “one small piece… of a thousand-piece puzzle” She said that weighing those interactions against the harm that would be caused to the mother, to her routine, to her peace of mind and potentially to her relationship with the children, is to akin to looking “at the whole picture”. That evidence was not challenged and I accept it.
To the extent that either the mother or maternal grandmother’s evidence recorded above reflects the children’s views, I find that the children enjoy their supervised time with the maternal grandmother. Given the young age of the children I place limited weight their views, insofar as they are to be interpreted from the supervised contact reports.
The relationship between the mother and maternal grandmother
As recorded throughout these reasons, it is uncontroversial that the current relationship between the mother and the maternal grandmother is one of profound antagonism. Throughout the trial, there was an absolute tension in the Courtroom between them.
I find that the mother’s antipathy towards the maternal grandmother is deep-seeded and steadfast. That hostility was palpable during the trial. The mother presented as anxious and aversive towards the maternal grandmother, refusing to make eye-contact or address the maternal grandmother directly. She did not permit the maternal grandmother to address her by her first name, and almost exclusively referred to the maternal grandmother by her surname or “the grandmother” during her oral evidence. Consistent with her oral evidence, the mother told Dr G that she refuses to acknowledge the maternal grandmother as her mother, and tells people she meets that she does not have a mother.
The maternal grandmother in cross-examination initially described her relationship with the mother as “not good” and later as “horrible”. She had difficulties engaging with questions as to how this circumstance could be rectified. She conceded that her affidavit evidence contained no plan or process to achieve a reconciliation of the relationship and that if the Court made orders for her to spend time with the children she would “cross that bridge” in the future. She further agreed that in the 64 pages in her trial affidavit, comprising 323 paragraphs and 605 pages of annexures, she had nothing positive to say about the mother and father’s parenting of the children over the past four years.
A fundamental feature of the mother and maternal grandmother’s relationship is a complete absence of trust. On the mother’s part, that absence of trust manifests in her expressed fears that the maternal grandmother might attempt to remove and withhold the children from her care. In both her oral evidence and in her interviews to Dr G, the mother explained that she has made security arrangements both at home and at the children’s school to prevent the maternal grandmother from removing the children (see paragraph 18 of the updated family report). For example, she said that prior to the children commencing at their current school, she met with the school principal who took her on a tour of the school to reassure her that sufficient security measures were in place.
On the maternal grandmother’s part, the absence of trust in the mother has manifested firstly in her incapacity to accept that the mother has adverse perceptions of her own childhood and of the maternal grandmother, and secondly in her persistent contentions throughout these proceedings that the mother poses a risk to the children.
During oral submissions, the maternal grandmother said that she has been required throughout these proceedings to “justify the last 30 years of her life”, by responding to countless allegations by the mother that she had been emotionally and psychologically abusive. This was a window into her understanding of the issues in the proceedings. I find that the maternal grandmother was so caught up in the minutia of the allegations she thought were unjustifiably made against her, that she lost sight of what was in reality the focus of these proceedings, being the future for the children. Rather than accepting Dr G’s oral evidence that whether or not the mother’s recollections of her childhood experiences were accurate, they were now her “psychological reality” and then pivoting her case to address how she and the mother could move past that reality, the maternal grandmother persisted to explain and justify her historic conduct (and therefore attempt to demonstrate that the mother’s allegations were baseless). In doing so she grossly compounded the problem that lay at the heart of this case, being the destruction of her relationship with the mother.
Similarly, the maternal grandmother demonstrated little insight or appreciation as to the impact on the mother (and specifically, on their relationship with one another) of her resolute prosecution of this litigation since 2019. As recorded, she maintained her serious contentions as to the children being at risk in the mother’s care from the time that she filed her Notice of Risk on 30 September 2019, including after any engagement with Mr E had concluded, and after the release of the first family report dated 29 October 2019. This position was maintained notwithstanding the involvement of the police and the Department of Communities and Justice had not prompted action by any welfare authorities in relation to the children. The maternal grandmother’s contentions as to risk were steadfastly restated by her filing of an Amended Notice of Risk on 21 June 2022.
Despite purportedly abandoning her case that the children are at risk in the mother’s case, the maternal grandmother at paragraphs [185]–[203] of her affidavit gave evidence as to a broad range of “current concerns” she had as to the welfare of the children in the care of the mother and father. Those concerns included as to the mother’s ongoing mental health challenges, the “turbulent” relationships between the mother and the father and her other partners, and the exposure of the children to family violence. Her affidavit records:
186.…I am unaware, and the Court is unaware, as to the current progress of [the mother] in respect of her mental health and whether or not [the mother] continues to suffer from any mental health condition which may impact upon her parenting capacity and her decisions in relation to [X] and [L] spending time with me.
187.At the time when [the mother] lived with me both immediately prior to [the mother] commencing a relationship with [the father], [she] kept a diary. Exhibited and marked with letter “AR24” is a copy of [the mother’s] diary which she left behind at the house. The entries in this journal are very concerning to me in relation to [the mother’s] mental health issues, which have been long standing. I still have grave concerns for her in light of her recent posts on social media regarding [alternative practices] as a form to treat her mental health ailments which I refer to below. I do not know to what extent [the mother’s] health issues are preventing her from forming a view about [X] and [L] having a relationship with me.
Annexed to the maternal grandmother’s affidavit were some 65 pages of excerpts from the mother’s teenage diary, including photocopies of various pages of the diary itself. The earliest excerpt appeared to be taken from an entry of the mother in late 2012, when the mother was only 17 years old. The maternal grandmother was reticent or unable in cross-examination to acknowledge that the inclusion of those diaries would have been confronting and distressing to the mother. Having the benefit of the maternal grandmother’s trial material, Dr G in the updating family report opined that:
43.From a psychologist’s point of view this historical material indexes [the mother’s] acute unhappiness as an adolescent and prompts negative inferences about family dysfunction, at the same time as indexing [the maternal grandmother’s] defective empathic perspective-taking skills in the current context. Publishing (time-expired) sensitive, private material is not the behaviour of a supportive parent. It strikes me as psychologically intrusive even to read another’s diary, let alone to deploy it in order to prevail in an adjudicated dispute. Apparently [the maternal grandmother] did not anticipate the distaste such blatant boundary-violation might provoke. By no stretch of the imagination could this tactic be viewed as designed to mend bridges. Arguably, a mother with normal empathic concern for her daughter would recognise that public exposure of private adolescent angst might embarrass an adult daughter, who might well construe this as an unforgiveable act of psychological aggression. It is implausible for someone prepared to use ruthless win-at-any cost tactics to style herself as “supportive.” Equally, such a rigid win-lose stance to conflict resolution tends to predict dogged persistence in litigation.

This evidence of Dr G was reinforced in her cross-examination on this topic. I find that the use of the mother’s teenage diary lends credence to the mother’s feeling that the maternal grandmother is persistently critical of her and of her parenting, such that “no matter what [she does]… it will never be good enough”, and her perception of the maternal grandmother as controlling.
Even though she represented throughout the course of the trial that she accepted the children were well-cared for by the mother, the maternal grandmother repeatedly said that the children would derive benefit from an ongoing relationship with her in that she would be able to “monitor the children’s wellbeing from the sidelines in order to mitigate any safety risks”. I have found, as was promoted by the parents and the ICL (and reluctantly, the maternal grandmother), that the children are not at risk living with the mother and spending time with the children. Accordingly, I do not accept that the maternal grandmother continuing to be in the lives of the children would operate as a protective factor in their lives.
I brought to the maternal grandmother’s attention on various occasions over the course of the trial that her use of the litigation process, including her cross-examination of the mother, was both abrasive and adversarial, and was likely to occasion further destruction of her personal relationship with the mother. I garnered the impression that the maternal grandmother did not grasp that concept. As recorded in these reasons, she was steadfast in her objective to vindicate her own version of the past. Her suggestion to the mother in cross-examination that she was being dishonest, and perjuring herself under oath, in the context of their chronic distrust of one another, did nothing but further ingrain the ruination of the relationship.
I find that the mother truly believes, and is completely convinced that the maternal grandmother is controlling and manipulative. The mother’s experience of the maternal grandmother as being an extremely controlling person is a justified, subjective view. I accept the gravamen of her evidence that the maternal grandmother has a forceful personality that intimidates the mother, and that the mother is unable to directly confront the maternal grandmother.
Dr G stressed that the mother is passed the point of being able to trust the maternal grandmother and rebuild that relationship. Cast against the history recorded in these reasons, I accept that expert evidence. She logically opined that if the trust between the mother and the maternal grandmother “ever improved to the point that the mother was prepared to include the maternal grandmother in the children’s lives, they wouldn’t need court orders, they would just sort it out themselves”.
Arising from the complete lack trust between the mother and the maternal grandmother, I find that there is no prospect that they will be able to resolve any dispute or issue between them going forward, no matter how minor. I further find that the relationship between the mother and maternal grandmother will not repair unless the mother so desires, and that the prospect of that happening (as was conceded by the maternal grandmother) is remote.
The mother’s experience of supervised time between the children and the maternal grandmother
Notwithstanding that the children appear to have a fun and enjoyable time with the maternal grandmother, the mother in her cross-examination described the process of facilitating the children’s time with the maternal grandmother as inordinately stressful. She first said that the practical effect of the children spending each alternate weekend with the father, and then visiting the maternal grandmother on one weekend per month, meant that she was left with only one weekend each month to herself to spend time with the children, which she felt limited her ability to spend quality time with the children outside of school and work days and to take the children on a family holiday. She then identified the practical difficulties in facilitating time with the maternal grandmother as burdensome, for example, she said that on the day before time spent she has to “normally prepare the kids beforehand”.
Compellingly, an answer given by the mother to a question posed by the ICL as to how she feels when she knows the children are spending time with the maternal grandmother. To this the mother became emotional in the witness box and said:
I become extremely stressed, I wonder if she is potentially saying anything against me. I wonder as well with the supervisor on occasion… if they are actually doing what they are meant to be doing. I wonder if this is going to be one of the only times I see [the children], I know [the maternal grandmother] can be quite unpredictable at times and she has shown that in past behaviour. I don’t know what could happen during those visits. I become extremely stressed.
The mother’s worry about it being “one of the only times” she sees the children is consistent with her distrust in the maternal grandmother as recorded at [105] above. While the mother said she does her best to hide her stress from the children, she thought there was some chance the children would be able to sense her stress and said that she has on occasion become emotional upon their return to her care after supervised visits.
The mother said that she employs strategies learnt from mental health professionals to manage the stress of facilitating supervised time, including journaling to “get [her] own feelings and perceptions of the situation out on paper”. The mother characterised she and the children not talking about the maternal grandmother as a further strategy to minimise her stress, which she said allows her to compartmentalise that part of her life from her day-to-day reality and deal with it. It was the mother’s firm evidence that if orders were made for the children to spend time with the maternal grandmother on an ongoing basis, she would require professional support to deal with the implementation of such orders “completely, for the entire time, for however long the orders are made for”. The mother’s prophesy was consistent with her evidence that she has had to re-engage with a counsellor, in part to manage the overwhelming stress of these proceedings.
The mother’s evidence about the impact the continued involvement of the maternal grandmother in her life has on her was supported by the oral evidence of the father, who said that he has observed the stress the maternal grandmother brings to the mother, that he has witnessed her have “breakdowns and tantrums”. He expressed upset at witnessing “someone you love” go through those experiences.
I accept the mother’s evidence that she sees a parallel between the maternal grandmother seeking to continue to spend time with the children (even if it were supervised) and the controlling behaviour she contends she experienced as a child. This was also supported by the expert evidence of Dr G, who in her oral evidence opined that even supervised time between the maternal grandmother and the children seems to be a psychological burden on the mother. I so find.
Findings as to whether the impact on the mother’s parenting capacity should the children continue to spend time or communicate with the children represents an unacceptable risk of harm
It is well established that even where the Court does not find that a parent (or another person seeking to spend time with a child) represents an unacceptable risk of harm to a child, it may nonetheless be appropriate for that person to have no contact with the child taking into account the genuine, but not necessarily rational, belief of the child’s primary-carer that the other person presents such harm (see e.g. Keane & Keane (2021) 62 Fam LR 190 at [82]). The foundation for such an order is not that an unacceptable risk to the child does exist, but that the primary caregiver’s parenting capacity may be discernibly impaired by an order requiring the child to continue to spend time with the other parent (see e.g. Re Andrew (1996) FLC 92-692 at [201]; Bayer & Imhoff [2010] FamCA 532 at [177]).
As recorded throughout these reasons, the mother’s attitude to the maternal grandmother being a part of her life and the children’s life is entrenched. I find that she has a reasonable foundation for that strong position having regard to her lived experiences with the maternal grandmother or at least her perception of those experiences. As recorded above, the mother, father and ICL supported a finding that even if the Court were to find that the children were not at risk by way of direct or indirect exposure to coercive and controlling behaviour of the maternal grandmother, there should be no orders for time because of the impact such time would have on the mother. They each said that a situation whereby the children suffered vicariously from the mother’s stress of facilitating time would not be in their best interests.
I accept the mother’s evidence that any continuing involvement of the maternal grandmother in her or the children’s lives will cause her to be constantly on edge. I accept that her growing sense of self-confidence will be impacted in this circumstance.
The mother is convinced that should orders be made for the maternal grandmother to spend any time with the children, she will immediately ask for more time either directly to the mother and when that is not successful, by way of legal processes. She dreads that the maternal grandmother will “never give up” until she achieves her desired objectives being that the children live with her. Dr G gave similar evidence in cross-examination, describing the maternal grandmother as a person who “does not consider a matter resolved until it is resolved to her satisfaction”.
By way of a series of concessions in cross-examination, the maternal grandmother illustrated factors grounding the mother’s concerns that she will “never give up”. The maternal grandmother said that she had expended her “life savings” on legal fees in these proceedings, amounting to almost $190,000. She then said that to her mind, the only way forward is by way of Court orders because if the decision were left to the mother and father, she would not have a relationship with the children. When asked what she would do if the mother did not comply with any orders made, the maternal grandmother initially said that she had not put any thought into it. That answer was plainly untrue. I asked the maternal grandmother to consider her answer by reviewing the following paragraphs in the updating family report:
17.Hypothetical scenarios were canvassed, including [the mother’s] likely response if any contact were ordered and her own response if no contact Orders were made. [The maternal grandmother] replied that she had not discussed the latter outcome with her lawyer and had not thought about it. After being instructed to consider it, she replied to the effect that she expected that if child-grandmother contact was left to the mother’s discretion then no contact would occur. Although [the maternal grandmother] tended to be evasive and vague in response to probes about unfavourable Court outcomes, her answers to my unrelenting probing for further clarification indicated that she would not accept a judicial decision as final and would continue to press for contact. After “thinking”, “praying” and seeking “advice”, she would attempt to contact [the mother] in order to “resolve” the issue. How long after Final Orders? A day? A week? A month? A year? [The maternal grandmother] was vague about her deliberation time before acting – not as long as a year or as soon as a week. She denied that she would telephone her daughter directly or call in person, but was vague about how she would persist once all avenues for further legal action were closed. It was clear that [the maternal grandmother] did not consider it an option to respect the parents’ wishes to set a boundary with her, even if the Court Orders upheld their right to do so.
(Emphasis added)
After doing so, the maternal grandmother accepted that she had read that part of the updating family report and considered its contents. Using a double negative, the maternal grandmother then said that “[she] would not say that [pursuing further litigation] is not something that [she] would not consider”. She then clarified that answer to be that she “would be considering more legal action if there was no time awarded”. I place significant weight on this evidence. It is in line with how the maternal grandmother has conducted these proceedings (that is, relentlessly) and with her evidence that she was not sure how she would cope if an order for no time was made.
What increases the impact of the mother’s deeply held distress in relation to the maternal grandmother, is that the maternal grandmother is unable or unwilling to accept that she truly feels. In the updating family report Dr G opined:
37.… During our conversations in November 2022 it was clear that [the maternal grandmother] either did not care or could not accept that she could be causing [the mother] stress and anxiety by prolonging this dispute, and that she might thereby disadvantage her grandchildren by disturbing their mother’s peace of mind.
…
41.[The mother] has clearly stated that she finds contact with [the maternal grandmother] noxious and anxiety-provoking. [The maternal grandmother] insisted at interview that “once the issue was resolved” time would heal the rift. [The maternal grandmother] drew a parallel with the rift between herself and her own mother which apparently took [approximately] 25 years to heal… [The maternal grandmother’s] discourse on the topic of the likely duration of her younger daughter’s estrangement from her demonstrated marked cognitive rigidity and perseverance. By minimising the practical impact of the estrangement on the logistics of childcare arrangements and characterising the estrangement as evanescent she implicitly trivialises [the mother’s] reasons and thereby dismisses her daughter’s right to a different point of view. [The maternal grandmother’s] information-processing is warped. She predicts outcomes on the basis of their desirability rather than their probability and stoutly resists all reality-checking from others. On that basis I predict that she would not accept any judicial decision or negotiated agreement as final and would persist in badgering her daughter to accede to her demands.
This resistance to acknowledging the hurt experienced by the mother arising from the dispute was described by Dr G in both the updating family report and in her oral evidence as demonstrating the maternal grandmother’s “glaring deficits in normal empathy”. It is consistent with the maternal grandmother’s attitude in being unable to accept the mother’s perceptions of her childhood.
I find that the children’s interests are best provided for by having a calm, confident primary caregiver in the mother, rather than an anxious and distracted caregiver. I find that the mother is more likely than not to be the second kind of caregiver than the first, should the maternal grandmother have an ongoing presence in her or the children’s lives.
CONCLUSION
What, if any, time arrangements are in the children’s best interests
By way of the final consent orders made on 9 March 2023, the mother and father have equal shared parental responsibility for the children. They are the two people charged with making the decisions, jointly, about major long-term issues in relation to the children. It is significant that in the exercise of that parental responsibility, the parents have together decided that it is not in the children’s best interests to spend time or communicate with the maternal grandmother.
The maternal grandmother in effect asks the Court to look behind that exercise of parental responsibility and make find that the joint position of the parents is not in the best interests of the children. While certainly not determinative of the matter (see for example, Aldridge & Keaton (2009) FLC 93-421; Valentine & Lacerra and Anor (2013) FLC 93-539), this factor that attracts weight, in that it reflects the maternal grandmother’s willingness to use the litigation process as a tool to criticise how the mother and father as an intact parenting unit have decided to parent their children, absent (on her current case) any concerns about their wellbeing or safety.
Unsupervised time
The maternal grandmother’s proposal is for the children to spend unsupervised, overnight time with her on one night each week, together with a further weekend night once per month.
For the reasons given above, I am satisfied and find that the children spending unsupervised time with the maternal grandmother is not in their best interests, in that:
(a)It would require the maternal grandmother and mother to communicate directly with one another, when they cannot and have not done so outside the litigation since 2019, and hence provide fruitful ground for further conflict to which the children would be exposed; and
(b)I accept the evidence of Dr G and the mother and find that such unsupervised time would cause the mother inordinate stress and anxiety so that her parenting capacity would be impinged, adversely impacting on the best interests of the children as recorded earlier in these reasons; and
(c)It would be likely to impact on the current co-parenting relationship and hence have a flow on effect on how the children currently experience that relationship. I accept the evidence of Dr G that it is not in the children’s best interests for that relationship to be put under pressure.
Supervised time
It is clear that supervised contact was not the grandmother’s preferred outcome of this case, though the Court’s strong impression is that she would accept whatever form of contact is made available.
It was conceded by all parties that ongoing supervised time between the maternal grandmother and the children would be problematic. Over the course of the hearing the maternal grandmother raised that she could not afford to continue meeting the costs of S Agency, being in the range of $700–$800 per visit, which she described in her Case Outline as being “significant and unsustainable… causing severe financial hardship”. I accept that evidence and so find. The parents have no capacity to fund the cost of supervision.
The mother said the supervision centre was about a 40-minute drive away from her home (nearly a 1.5 hour round-trip), which she said meant she avoided taking the children other places in the car on weekends when they spent time with the maternal grandmother. The father reasonably said that if the maternal grandmother were permitted to spend time with the children, he would not want that time to impede his own time with the children. The mother supported that position. The reality of the final consent orders made on 9 March 2023 is that the mother would be left with one weekend per month with the children should the grandmother spend time with the children for one weekend each month. I accept her evidence and find that the maternal grandmother’s proposal as to time would impact on the mother’s relationship with the children insofar as it restricts her ability to spend “quality time” with them.
Although the maternal grandmother submitted that she would be able to arrange alternate supervision services, including with non-professional supervisors, there was no evidence to support that submission save an undertaking provided by a person who did not give evidence at the trial. I find that the engagement of an individual (not professional) supervisor of time would be fertile ground for future conflict, including as to the identity of the supervisor, the terms of their engagement, their potential partisanship and the logistics of time spend, including if that supervisor were not available from time to time. The Court is not prepared to make findings absent evidence. To the extent it was made, I reject any proposal for non-professional supervision of the maternal grandmother’s time.

Even assuming that the practical issues of cost, travel and supervision could be alleviated, the issue of how the mother and the children will experience ongoing supervised time cannot mitigated. I have made findings above that the mother experiences the involvement of the maternal grandmother in any capacity as intolerable. Although she conceded that professional supervision meant that the children were not at risk of physical harm when spending time with the maternal grandmother, she did not accept that it mitigated the other emotional and psychological risks, including the deleterious effect on her parenting capacities. For the reasons given above, I accept that position and so find.
The unchallenged evidence of the mother was that even the current supervised visits (occurring once monthly) are experienced as disruptive. She pointed to the missed birthday party of L’s friend as an example of such disruption. I find that disruption is likely to continue as the children grow older and commence participating in extracurricular activities and develop friendships (as was identified by each of the parents). Dr G in her oral evidence articulated a significant concern she held as to the maternal grandmother’s proposed time arrangements was as to the number and frequency of transitions for the children between “carers who remain in conflict”. She said this would expose the children to “toxic stress”, which is “low level and cumulative” but has a lasting impairment on the development of children. It was her expert opinion that the more frequent the transitions, the worse this effect would be, in that it would not allow the children to recover from one stress inducing event before they start preparing for the next event. I accept that evidence and so find.
Neither the parents, the ICL, or the maternal grandmother sought an order as to the children spending “identification contact” with the maternal grandmother, either in the form of cards and gifts being sent to the children or in the form of infrequent periods of supervised time being spent on a few occasions per year. Such proposal was not addressed by the parties in submissions. In any event, Dr G opined that such contact would serve little identifiable benefit for the children but would provide a door for the conflict and litigation between the maternal grandmother and the parents to continue. I accept that evidence.
I place significant weight on the submission of the ICL and the mother, supported by Dr G’s expert opinion, that any order for time between the maternal grandmother and the children will provide fertile opportunities for further litigation and conflict.
Conclusion as to time arrangements
I find that any order for supervised time between the children and the maternal grandmother will face materially the same problems as if the time were unsupervised. It will be problematic in that:
(a)It will require continued communication between the mother and maternal grandmother, albeit to a lesser extent than if time was unsupervised, where that capacity to communicate does not exist;
(b)It will require a degree of flexibility, particularly as the children age and more competing priorities such as school, friends and co-curricular activities, where such flexibility does not exist;
(c)It will leave open the door of opportunity for further litigation, be that by way of enforcement or contravention proceedings, or by way of the maternal grandmother seeking to extend her time with the children and involvement in their lives; and
(d)It will require the mother to continue dealing with the maternal grandmother as a presence in her life when doing so impacts her parenting of the children, and on the relationship with the parents as currently experienced by the children.
The reality of this matter, as opined by Dr G (see [113] above), is that the only way forward is for the relationship between the mother and the maternal grandmother to be re-established and then developed to achieve a reconciliation. If that happens, the parties will not need orders to enable a relationship between the maternal grandmother and the children: that will happen on their own terms.
On balance, I find for all of the reasons recorded above, that it is not in the best interests of the children for the maternal grandmother to have any involvement in their lives. To my mind, the realistic possibilities of that involvement, so long as it is opposed by the mother and father, outweigh the benefits of a continuing relationship between the maternal grandmother and the children, such that any orders as to the children spending time with or communicating with her would be contrary to their best interests.
Although the mother and father asked that I make an order that the maternal grandmother spend no time and not communicate with the children, I consider it more appropriate that there be no order as to time spent or communication. Although it appears very unlikely, it may be the case that at some point in the future the mother and maternal grandmother rehabilitate their relationship, and if that happens, then the mother may wish to facilitate a relationship between the children and the maternal grandmother – significantly, on the mother’s own terms.
I accept that this determination will be confronting to the maternal grandmother and will cause her extreme distress. In all the circumstances of this case, that outcome cannot be avoided.
The ancillary orders sought by the maternal grandmother
In her evidence the mother said that if the maternal grandmother were permitted to attend extracurricular and other events for the children as she sought, she “would be in a state of stress and anxiety almost permanently” such that she might not attend those events herself so as to avoid contact with the maternal grandmother. She said she would not attend parent teacher meetings should the maternal grandmother attend. The father also gave evidence to that effect. I accept that legitimate position of both parents, in the context of this case.
I find that it would not be in the best interests of the children to permit the maternal grandmother to attend upon extracurricular activities, concerts or sporting events and parent teacher interviews for the children, because:
(a)It would be destructive to the parents’ own relationships with the children should they not attend important events for the children, and I find that the children will experience the absence of the parents in these situations as a loss; and
(b)It would likely be experienced by the mother as continued monitoring and control by the maternal grandmother, which would be adverse to her parenting capacity as recorded at [131] above.
The additional orders sought for the mother and father to notify the maternal grandmother in the event either of the children become sick or injured, or the mother or father change their address, telephone number or email, serve no purpose in circumstances where the children shall continue to live with the mother, and no provision shall be made for them to spend time or communicate with the maternal grandmother.
Costs
Both the mother and father are in receipt of a grant of legal aid. The ICL advised on the last day of the trial that she did not seek to make an application for costs against the maternal grandmother.
For all of the above reasons, I shall make orders as set out at the forefront of this judgment.

I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.
Associate:
Dated: 31 March 2023

File number:	WOC 982 of 2019
Judgment of:	CAMPTON J
Date of judgment:	31 March 2023
Catchwords:	FAMILY LAW – PARENTING – Where the mother and father, as separated parents, have made a decision that it is not in the best interests of the children to have a relationship with the maternal grandmother – Where the maternal grandmother nonetheless seeks orders for time with the children – Where the parents have a good co-parenting relationship – Where final parenting orders have been made for the parents to have equal shared parental responsibility for the children, for the children to live with the mother and spend regular time with the father – Where the relationship between the mother and maternal grandmother is one of deep antagonism and is unlikely to repair – Where the Court finds that ongoing involvement of the maternal grandmother in the mother or the children’s lives will adversely impact on the mother’s parenting capacity as the primary carer of the children, on the good co-parenting relationship of the separated parents, and will be fertile ground for further conflict and litigation – Where the Court finds that any benefit to the children of spending time or communicating with the maternal grandmother is outweighed by the adverse impacts of such time or communication – Maternal grandmother’s application dismissed – No order for time or communication with the maternal grandmother.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65D, 69ZW
Cases cited:	Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229 Bayer & Imhoff [2010] FamCA 532 Burton & Curchin & Anor [2013] FLC 93-561; [2013] FamCAFC Carter & Wilson [2023] FedCFamC1A 9 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 Radev & Radev [2022] FedCFamC1F 737 Re Andrew (1996) FLC 92-692; [1996] FamCA 43 Valentine & Lacerra and Anor (2013) FLC 93-539; [2013] FamCAFC 53
Division:	Division 1 First Instance
Number of paragraphs:	153
Date of hearing:	8–10 March 2023
Place:	Sydney
Counsel for the Applicant:	Mr Haddock
Solicitor for the Applicant:	Bowral Legal
The First Respondent:	Litigant in person
Counsel for the Second Respondent:	Mr Reeve
Solicitor for the Second Respondent:	Forshaw Lawyers
Solicitor for the Independent Children’s Lawyer:	Ms Norris, Legal Aid NSW, Nowra

WOC 982 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS J RADEV Applicant
AND:	MS A RADEV First Respondent MR BARWEGEN Second Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CAMPTON J
DATE OF ORDER:	31 March 2023