Ragno and Nemet and Anor

[2018] FCCA 2462

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAGNO & NEMET & ANOR [2018] FCCA 2462

Catchwords:
FAMILY LAW – Parenting – application in a case.

Legislation:

Family Law Act 1975

Applicant: MS RAGNO

First Respondent: MS NEMET

Second Respondent: MR JACKSON

File Number: DNC 479 of 2017

Judgment of: Judge Young

Hearing date: 31 August 2018

Date of Last Submission: 31 August 2018

Delivered at: Brisbane

Delivered on: 4 September 2018

REPRESENTATION

Counsel for the Applicant: Ms Holtham

Solicitors for the Applicant: David Story

Counsel for the First Respondent: Ms Czislowski

Solicitors for the First Respondent:	Ward Keller
Second Respondent:	No appearance
Counsel for the Independent Children's Lawyer:	Ms Palavra
Solicitors for the Independent Children's Lawyer:	Northern Territory Legal Aid Commission

ORDERS

1. Until further order the orders of 16 January 2018, insofar as they require the children [X] born 2007 and [Y] born 2008 to spend time with the maternal grandmother, are suspended.

2. The mother is to ensure that [X] does not sleep on the same floor in the house, that is, either upstairs or downstairs, as the maternal grandfather.

3. That pursuant to s.11F of the Family Law Act 1975, the parties and the child [X] born 2007 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on 23 October 2018 at 9.00am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.

4. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

IT IS NOTED that publication of this judgment under the pseudonym Ragno & Nemet & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 479 of 2017

MS RAGNO

Applicant

And

MS NEMET

First Respondent

MR JACKSON

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case about four children: [X], aged 11, [Y], age 9 and [V] and [W] who are both seven years old, although about 11 months apart in age.  They live with their mother, who is the respondent in the proceedings, and maternal grandfather.  Their maternal grandmother is the applicant in the proceedings. The children’s father has no involvement in their lives.

2. The maternal grandmother has brought an urgent interim application, some two months prior to the date fixed for trial, for orders that the children live with her.  Her application is supported by the independent children’s lawyer (ICL).

3. A family report has been completed, as well as a report by a psychologist on the mother.  The children have lived with the mother most or all of the lives.  However, it appears that the mother has required the substantial support of either her mother, the applicant, or in more recent times, her father to provide parenting support and accommodation.  At one point, after a dispute with the maternal grandfather, the mother left his home with the children and was, for a period, homeless.  Apparently that relationship has been mended and the mother and the children continue to live in the maternal grandfather’s home.  The maternal grandmother and the maternal grandfather have a hostile relationship.  The mother and the maternal grandmother also have a hostile relationship, although it appears that the hostility is more pronounced on the mother’s side.  A psychologist’s report suggested that the mother showed no psychopathology but lacked insight into the emotional needs of the children and had “mixed personality traits with paranoia”.  The relationship of the mother and the maternal grandmother has not always been hostile and the maternal grandmother has played a very important role in the children’s lives.  The family report indicates that the maternal grandmother is child focused, able to assess the needs of the children and is a source of emotional warmth and nurture for the children.

4. Both the family report and the psychologist’s report raised serious questions about the mother’s parenting capacity.  The psychologist, Ms T, in conducting her assessment of the mother visited the mother’s home.  The observations are striking and concerning and Ms T observed that she saw little, if any, display of affection within the home.  She said that during the observation the mother watched television throughout and the children largely played screen games.

5. Another factor of some significance is that when [X] was four years old, that is, some seven years ago, the mother alleged that the child disclosed sexual abuse by the maternal grandfather.  This resulted in a police investigation.  No disclosures were made by the child to police but it was noted that the child became stressed when asked questions about the maternal grandfather.  The matter went no further.  In her affidavit material the mother has alleged that the allegations were generated by the maternal grandmother.  However, the material produced by the police suggests this is untrue and that the allegation was first recorded by the mother and pursued by her and assisted, at the mother’s request, by the maternal grandmother.  No further allegations have been made against the maternal grandfather since the allegation seven years ago. 

6. On 16 January 2018 consent orders were made between the parties and the ICL providing for the children to spend time with the maternal grandmother each alternate weekend from after school Friday to 6 PM Sunday and for half the school holidays. 

7. In the case of the two youngest children these orders have been observed.  However, [Y] has not seen his maternal grandmother at all apart from once for the purpose of an observation for the family report in May 2018.  [X] has spent time with her maternal grandmother in conformity with the orders although irregularly. 

8. The mother asserts that the children, particularly the oldest two children, have a strained relationship with the maternal grandmother, in part, according to the mother, because of the maternal grandmother’s denigration of and hostility to the mother.  She claims the children do not want to spend time with the maternal grandmother.

9. In the preparation of the family report the family consultant interviewed the children.  The two oldest children appeared to express some ambivalence about the maternal grandmother and the prospect of spending increased time with her.  They both said they preferred to spend time with their mother.  The two youngest children said they wanted to spend more time with the maternal grandmother.  During the observation of the relationship between the four children and the maternal grandmother, the family consultant observed that the relationship between the maternal grandmother and each of the children was warm, spontaneous and loving.  The observation was not consistent with what the oldest two children had said to him.  The family consultant expressed the opinion that the maternal grandmother was an important, and perhaps vital, source of emotional support and nurture for the children.  He contrasted this with an opinion that he was uncertain about whether the mother was emotionally available for the children.  Nevertheless, he recognised that the children appeared to have a close bond with their mother.

10. The family consultant considered whether the maternal grandmother should become the primary care of the children.  In deciding against such a recommendation he observed “However, it seems the children share a solid emotional bond with their mother and the writer worried about the impact of removing them from the primary attachment figure.”

11. He expressed the opinion that the mother was able to meet the basic needs of the children but struggled with a display of emotion as a result of her own emotional difficulties.  Ultimately he recommended that the children should transition to an equal shared care arrangement between the mother and the maternal grandmother.  He believed there should be a psychological intervention because of his concerns about the mother’s mental health and therapeutic support to assist the mother with her parenting limitations.  He thought that a period of 8 to 12 weeks where the children lived with the maternal grandmother and spent supervised time with the mother should be considered.  He thought this would give the mother the time to engage in a supportive intervention with a psychologist. 

12. The family consultant explored with the children the possibility of living with the maternal grandmother.  He said he observed that the mother tended to discourage the children spending time with the maternal grandmother.  He believed the children easily picked up the mother’s cues.  He believed the mother lacked insight into her behaviour and the effect of her failure to encourage the children to spend time with the maternal grandmother.  He thought that a period where the children lived with the paternal grandmother may change the “dynamic” within the family.

13. The family consultant noted that such an arrangement would not be without risk as the two oldest children “could display a level of resistance to such an arrangement” but he thought the maternal grandmother would be able to manage “their insecurities”.

14. The maternal grandmother’s interim application was supported by an affidavit where she set out the matters that she believed merited an interim change of living arrangements.  These can be summarised as the mother’s failure to support the time arrangements, the concerns raised by the psychologist about the mother’s parenting capacity, including her failure to display affection towards the children, and some health concerns.  It appears that the health concerns have since been addressed by the mother.

15. The ICL supported the mother’s application and sought to have the case listed earlier due to what she said was added urgency because of a telephone call to her from [X] on 10 August 2018.  The ICL’s affidavit said:

    “… I received a call from [X] who was extremely upset, crying and almost incomprehensible.  I understood from that conversation that she did not wish to see her maternal grandmother, none of the children did; she missed and worried about her mother; and that the maternal grandmother was mean to her and she didn’t like going there.”

16. The ICL also referred to the investigation of the sexual abuse allegations against the maternal grandfather and alleged that the mother was in breach of an injunctive order made by consent on 16 January 2018 in the following terms “That the mother shall not leave the child [X] alone and unsupervised with the maternal grandfather”.

17. The alleged breach of the injunction is that the mother permitted [X] to sleep in the upstairs part of the house, in her own separate bedroom, while the maternal grandfather also slept, in his own separate bedroom, in the upstairs part of the house.  The mother slept downstairs.  I am not satisfied that this constitutes a breach of the injunction.  However, given the concerns raised I think it is appropriate that the mother be ordered to ensure that [X] sleeps downstairs and an order will be made accordingly. 

18. At the interim hearing, counsel for the mother and the ICL agreed that the appropriate test on an interim hearing of this nature was whether a failure to make the orders sought would constitute an unacceptable risk of harm to the child or children.  Counsel for the mother identified the risk of harm as the risk of psychological harm flowing from the level of distress exhibited by [X] in her telephone call to the ICL.  She also referred to what she claimed was a breach of the injunctive orders about sleeping arrangements.  The ICL identified a different risk of harm: that the children’s relationship with the maternal grandmother would be permanently harmed or undermined unless the order was made.

19. Both parties and the ICL agreed that [X] demonstrated worrying levels of distress in her telephone call to the ICL.  Neither party nor the ICL suggested that the matter could be ignored.  Counsel for the mother proposed that there be a reportable psychological and therapeutic intervention with the parties and the children to identify the cause of distress and address it.  The proposal was complex and, in my view, impracticable two months before a trial.

20. The family report demonstrated that there was a warm and strong relationship between the children and the maternal grandmother.  While I accept that if the mother discourages the relationship between the children and the maternal grandmother, there is a risk in the long term that the relationship will be harmed or undermined, and that would not be in the best interests of the children, I am not satisfied that risk is unacceptable in the sense that an immediate change of living arrangements is required, two months before a trial.  I am also concerned about the family consultant’s observation that the oldest two children could display a level of resistance to living with the maternal grandmother.  If such a change is to be made I consider that it needs to be made carefully, sensitively and with any necessary support to ensure the best prospects of success.  I am concerned that the precipitate and immediate change of living arrangements proposed by the maternal grandmother and the ICL may be harmful to those prospects of success.  I am not satisfied that there is an unacceptable risk of harm of the kinds they describe or, if there is such a risk, it is best addressed in the way they propose.

21. Counsel for the maternal grandmother said that the risk of harm flowed from [X]’s present distress.  Both the maternal grandmother and the ICL asserted that removing the children from the influence of the mother would remove or alleviate [X]’s distress.  I am far from satisfied that is the case.  It is apparent that these children have been exposed to a dispute between the mother and grandmother for a long period and where there is no “middle ground”.  In these circumstances, there is also a real risk that [X]’s distress will be increased by an order that she immediately cease living with her mother and begin living with her maternal grandmother. 

22. I consider that, in the short period to trial, about 9 ½ weeks, the most appropriate measure to alleviate [X]’s distress is to suspend the orders for her to spend time with the maternal grandmother.  As [Y] has not spent time with the maternal grandmother at all in accordance with the orders I will suspend the orders in respect of him as well.  The orders will remain in place in respect of the younger children. 

23. Although I have reservations about whether any more useful information, beyond that contained in the family report, can be obtained about [X]’s attitudes, I consider it may be helpful to obtain a child inclusive section 11F report on [X]’s wishes before the trial.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:              4 September 2018