Rajiya and Rajiya
[2007] FMCAfam 764
•26 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAJIYA & RAJIYA | [2007] FMCAfam 764 |
| FAMILY LAW – Parenting – paternal grandfather – spend time with grandchildren – best interest of children – application dismissed. |
| Family Law Act 1975 Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| Applicant: | MR RAJIYA SENIOR |
| Respondents: | MR RAJIYA & MS RAJIYA |
| File number: | BRM 5416 of 2006 |
| Judgment of: | Baumann FM |
| Hearing date: | 4 April 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 26 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Page QC |
| Solicitors for the Applicant: | Stephens & Tozer Lawyers |
| Counsel for the Respondent: | Mr Kirk SC |
| Solicitors for the Respondent: | Hopgood Ganim Lawyers |
ORDERS
That the Application of Mr Rajiya Senior filed 11 July 2006 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rajiya & Rajiya is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 5416 of 2006
| MR RAJIYA SENIOR |
Applicant
And
| MR RAJIYA & MS RAJIYA |
Respondent
REASONS FOR JUDGMENT
Introduction
Family defines Mr Rajiya Senior. His concept of family support, love and commitment is ingrained in him. He came to this country from Egypt with a desire to provide opportunities for his children. He achieved much through his career in the legal profession. His son
Mr Rajiya, blessed with a good education and seemingly also with his father’s commitment for hard work and industry, is completing training as a specialist doctor.
Mr Rajiya Senior says however he now carries “unbearable pain” – the pain that comes from not seeing his grandchildren J (now aged four) and K (now nearly three) – the children of the marriage of
Mr Rajiya and his wife Ms Rajiya. He has not seen them since January 2006.
These proceedings, at first blush, deal with a simple application brought by the paternal grandfather to spend time with his grandchildren on a monthly basis for four hours. Such application is opposed by the parents. Lying behind this simple application is a web of recent family conflict; strong personalities and a quest by the paternal grandfather for some justification for the hurt he feels and the lack of an ongoing relationship with the grandchildren.
The issue I must decide is whether it is in the best interests of J and K to spend time with Mr Rajiya Senior, as he seeks, or not at all.
Principles
Although applications by grandparents were not uncommon before the changes to the Family Law Act 1975 came into effect on 1 July 2006, grandparents were not specifically named. The explanatory memorandum of the Family Law Amendment (Shared Parental Responsibility) Act 2006 makes clear at clause 39, that paragraph 60B(2)(b) of the Act was specifically amended to refer:-
“… to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child’s life.”
Importantly in this matter, apart from the right to spend time with grandparents (being a principle underlying the object of s60B), children also have a right “to enjoy their culture (including the right to enjoy that culture with other people who share that culture)” (section 60B(2)(e)).
These “rights” are not absolute however, as they apply “except when it would be contrary to a child’s best interests”.
As s.60CA makes clear, the children’s best interests are the “paramount consideration” and in determining the children’s best interests the Court must consider the two tiered factors set out in ss.60cc(2) and (3). These reasons hopefully demonstrate that I have done so.
I received well prepared yet lengthy written submissions from the Senior Counsel who appeared for the parties at trial. I was referred to large portions of the transcript and also the Affidavit evidence.
Whilst I well understand my obligation to provide reasons from which the parties are able to discern the path I have taken in reaching my decision in this case, I am, in my view not required to deal with every submission made before me – some of which were repetitious. In so recording, I can indicate I carefully considered the written submissions and my decision not to deal with every submission should not be construed as a failure to do so.
I am also, in this case, strongly of the view that seeking to analyse in minutiae each allegation and counter-allegation may have quenched the appetite of the parties who a wholly analytical and forensic exposition, but the facts of the case were capable of much simpler distillation – and in a way which does not create ongoing pain for this family.
The Parties and their Credit
Mr Rajiya Senior fits the description of “what you see is what you get”. Although at times his recall of events may not have been perfect, his somewhat rigid personality shone through in his oral testimony. He is an emotional man who is provocative at times and highly argumentative. He holds strong views, and as he himself described, he has “problems in expressing my views and to play diplomacy” (letter of 16 September 2004). I do not doubt that he genuinely loves his son
Mr Rajiya and his grandchildren.
Ms Rajiya is a very articulate person, also possessed of strong opinions and was somewhat reluctant to make any positive concessions about the grandfather. Is it asserted by the submissions of the grandfather, that I should regard a lot of her evidence as contrived and, as a result, lacking in genuineness and credit. Certainly she demonstrated in the witness box a more “steely resolve” than I might have anticipated from the evidence of her therapist Ms U, however I formed the view that her motivation is what she strongly regards is the children’s best interests. She is a devoted and committed parent.
I felt some real sympathy for Mr Rajiya. Although a trained doctor stressed by not only these proceedings but the additional pressures of specialist training, he demonstrated in the witness box some emotional fragility. Whilst it is clear he feels very much in the middle of what seemed initially as a conflict between his father and wife, his feelings of support and love for his wife have created what he now describes as an “entrenched” view that he will have no contact or a relationship with his father. He regards the relationship as irretrievable as “too much damage has been done”. He also expressed a degree of “animosity” for his mother, because his perception is that she failed to do more “to help me” or “to protect me”. It is unlikely that whatever decisions I make, will ease the pain for this sensitive and impressive man.
The paternal grandmother, although she was interviewed by the family report writer Mr Sedgman and was present in Court for the whole of the trial, did not give evidence in the case. It might have been helpful to have her perspective explored. I speculated that it may have been too painful for her to be confronted by the clash of loyalties between her son and her husband. I do not make any adverse finding in respect of her failure to give evidence.
For completeness, although the paternal aunt Ms S declined to participate in the family report interviews and did not offer any evidence in these proceedings, the paternal uncle Mr R did both – supporting the position of his brother Mr Rajiya. For the reasons I gave at the commencement of the trial, I excluded the evidence of
Mr R. Similarly, I had earlier ruled that the parties not be entitled to view records subpoenaed by the grandfather relating to therapy undertaken by Mr R. It was, in my view, a regrettable strategy in this case that Mr R’s difficult relationship with his father (for whatever reasons), became an issue which was sought to be raised. That relationship status was really peripheral to the issue I was required to decide.
Family Report
Mr Sedgman was appointed as a Court Expert, by me on 18 September 2006 and he conducted extensive interviews and observations with the parties and other participants as set out in his report, on 1 November 2006. It was hoped, perhaps optimistically by me when I ordered the appointment of Mr Sedgman, that his observations and recommendations might have assisted the parents and the grandfather in reaching a workable solution to the impasse that, by that stage, had existed for over nine months. Certainly the father expressed in cross examination his hope, at the time, that Mr Sedgman should decide whether the children should see their grandfather.
In the end, after exploring at some length and in some depth the family personalities and dynamics, Mr Sedgman said:-
“The report concurs with Mr Rajiya Senior that it is in J and K’s best interest to have a relationship with him but the grandfather-grandchildren relationship takes place within the milieu of Rajiya family relationships, more generally, especially given the children’s young ages. There is a need for Mr Rajiya Senior, through a sustained counselling process, to consider his personal, relationship and parenting functioning and how others in his family perceive and experience him. There is also a need for
Mr Rajiya and Ms Rajiya to be assured of the sanctity of their family unit, including their right to parent their children, and for the removal of some of the external pressures on their relationship imposed by the current legal and personal disputation and for them to be able to bring their separate and shared resources to their parenting rather than have these alienated by personal and legal conflicts.”
Mr Sedgman’s recommendations at paragraph 56 were made in the context of his final caveat, namely that “it is not suggested that
Mr Rajiya and Ms Rajiya give consideration to offering Mr Rajiya Senior visits with J and K unless and until the above processes are explored and hopefully followed through with”. A list of possible family therapists and psychiatrists was provided by Mr Sedgman.Mr Sedgman gave evidence at the commencement of the trial, and under cross examination by Counsel for the parents, he identified the following needs to be met to move forward, which I summarise as:-
a)Reparation of adult relationships in the Rajiya family.
b)A core need for the grandfather, through a sustained or therapeutic process, to look at himself.
c)The parents being assured of the sanctity of their family unit and the right to parent as they chose.
d)The need for the grandfather to respect and comply with parental views.
e)Need for the grandchildren to be aware that their primary relationship is with their parents and that the family unit is supported.
A cornerstone of Mr Sedgman’s report is that the grandfather showed little insight into this contribution to the conflict in these relationships. It was perhaps disappointing that Mr Sedgman was not able to observe the grandchildren interact with the grandfather – as the parents declined to allow this, expressing to the report writer that to do so would be inconsistent with their position.
Although no family therapy has taken place (the parents being unable to agree on legal mediation of the dispute by an independent mediator as well), the grandfather says he did see a psychiatrist but he refused to allow a report to be offered to the parents – claiming it to be a mere tactical endeavour. He says he attended a psychiatrist to remove the “issue” of his functioning from this dispute. It is clear that the grandfather was significantly affronted by any suggestion of an underlying psychiatric condition.
Similarly although he says he went to a therapist, Ms H with his wife four times in February/March 2007, he failed to refer to this in his trial Affidavit and no corroboration of the visits, or any report from the therapist was offered to the Court as evidence.
It was the position of the grandfather that I should afford
Mr Sedgman’s report little weight as it was “based on lies” and the further submission of his Counsel that Mr Sedgman “was clearly influenced by” at least:-
a)The allegations made to him that the grandfather had kissed the child J on the penis;
b)“the unreliability of the report by Ms U based primarily upon the assertion well-founded that she was influenced in conclusions and opinions by the close involvement of the Respondent’s legal advisors in the preparation of those opinions.”
I deal with this specific attacks on the report below, but I find the report of Mr Sedgman should be afforded significant weight and is of some assistance to me in this matter, supporting as it does some of my own observations I made of the parties in the witness box as well as some of the findings that I have made after considering the whole of the evidence.
Allegation of Sexual Abuse
Whilst there is some disparity as to when the incident occurred, I am satisfied that when J was about 3-6 months of age, a discussion took place between the grandfather and the father when the child was being changed.
I am satisfied that the grandfather motioned to kiss the baby on the penis but that the father objected to that, and although the grandfather argued that there was nothing sinister about doing so (and claimed that he had kissed the father’s penis when he was a baby), the evidence is that the grandfather reluctantly complied with this direction.
The father, under cross-examination, said there was no allegation that the grandfather had ever kissed the penis of J. Whilst it must be said that paragraph 5.2 of the parent’s joint Affidavit field 30 August 2006 was capable of being misconstrued, however I am satisfied the grandfather did not sexually abuse the child.
Similarly, the grandfather’s custom of kissing J on the mouth was an issue of concern raised by the parents – however I am satisfied, from the grandfather’s evidence, that this represented an approach to demonstrate affection and love which was a consistent trait of the grandfather beginning with his own children. He gave evidence of kissing his children all over the face repeatedly when they were young.
Although evidence as to the prevalence of this conduct in a cultural context was not offered, I am prepared to accept that the grandfather was merely maintaining a style of parenting which he had exercised during his lifetime. Whether this was the “Egyptian way” or not I cannot say – but it was the grandfather’s way – and although some in Australia might find these practices confronting, they do not have their origins in either sexual abuse or adult sexual gratification in this case.
Having said that, the parents were in my view, perfectly entitled to express to the grandfather that they did not wish their children to be the subject of these practices.
What is the real issue, is that although the evidence suggests the grandfather reluctantly complied on most occasions, it presented as an issue of conflict between the parents and the grandparents and although the grandfather in his evidence said that is as a matter for the parents, I think in practice he would find it very difficult to consistently comply with the parents directions or, if complying, to do so without a comment which would denigrate the parents’ parental approach.
This was evidenced clearly by the grandfather to the child, he says in a joking manner, about his being in jail or that the mother was acting like a police officer. The mother, in the context did not see it as a “joke” – rather a consistent attack by the grandfather on her parental authority.
Ms U's Evidence
The way the mother felt about the manner in which the grandfather, from her perspective, attacked her personally and her parental values and authority lies at the heart of the desire for therapeutic intervention in my view.
The impression I gained from the way the grandfather chose to run his case, was that the involvement of Ms U was a contrivance designed for the purpose of evidence gathering and not personal assistance. I do not agree. I was impressed with the evidence of Ms U.
I am satisfied that she approached her retention purely from a counselling and therapeutic position initially – although she was clearly troubled by moving into a reporting position for this litigation. Much was made of the alleged attempts by the solicitors for the parents to get Ms U to change her report from an initial draft.
I think such criticisms are misplaced. Ms U was a therapist engaged to provide therapy. I gained the impression that giving evidence in litigious matters was not her usual practice. Whilst she did amend some aspects of her report after comments from the parents’ solicitors, they were more directed to content and not seeking to divert her professional opinion. She, in my view, maintained her therapist role throughout.
To the extent that the grandfather through his Counsel (and I would think clearly on instructions) attacked the professionalism of Ms U and the need for Ms Rajiya in particular for therapy for her personal support and development, I reject such criticisms as ill founded.
It is possible to draw a comparison between the support Ms Rajiya sought, and received from the therapeutic process to enable her to secure a greater “sense of self” and “confidence” to that of the grandfather who, despite the recommendations of Mr Sedgman, seems to me to have possibly attended on Dr C and Ms H for the purpose of the litigation, and quickly identified in his mind that no further benefit would accrue to him. I say this in the circumstances where the grandfather chose not to produce any evidence from these professionals who might well have been able to put the grandfather’s consultations with them into a different perspective.
I have no discomfort in accepting the thrust of Ms U’s professional observations and opinions in this matter. It is worthy of noting that
Ms U did not read Mr Sedgman’s report, however there is a strong correlation in her views gained through extensive therapy and those expressed by the court expert Mr Sedgman about the effect of this dispute upon the parents. I acknowledge that Ms U did not see the grandfather who sought to confer with her (which he says he did), I see nothing adverse in Ms U not doing so. She was clearly focused on her patients’ support through the therapeutic process and she was not engaged to do family therapy including the grandfather.
Discussion of Primary and Additional Considerations Under the Family Law Act (ss.60CC(2) and (3))
With a degree of regret, I have come to the conclusion that it would not be in the best interests of J and K for them to spend time with the grandfather at this time. Although I have no expectation that the grandfather will happily accept my decision, the foundation for taking this difficult decision, is I hope explained by the findings I make below.
The Benefit of the Children having a Meaningful Relationship with Both of the Parents
This primary consideration is expressed within the usual context of a dispute between two parents – however it also identifies the importance to children of having a meaningful relationship with both parents. The children have that primary bond and attachment now. Anything that or anyone who is capable of affecting the nature of their meaningful relationships with the parents could minimise the benefit which accrues to the children.
Mr Sedgman raised (at paragraph 55) a concern about the “need for
Mr Rajiya Senior to accept that J and K’s primary relationship is with their parents not with him”. The grandfather expressed his understanding of this primacy, but his actions do add a level of conflict and pressure to these parents. I accept that, at this time, an order for the children to spend time with the grandfather could affect adversely the parents – and thus challenge the natural development of the meaningful relationship the children require from their primary carers, their parents.
Need to Protect From Harm
As I have already observed, I do not regard the children as being at risk of physical or sexual abuse by the grandfather. The evidence does not support a finding that the children have been psychologically harmed or carry some emotional burdens from their time with the grandfather to date.
The grandfather says that J (in particular) has most likely “been grieving for me and that is not parenting”, and that the mother is jealous of his relationship with J. I could not discount the possibility that J misses his grandfather (the parent’s own evidence, was J was asking for his grandfather for 8 months) and although the grandfather has been described as “J-centric” I can understand he has focus on this little boy with whom he had developed (as much a result of his age than anything), a closer bond than currently with K.
The point is however, that it was the intensity of the relationship and the difficulty, which I find occurred, for the grandfather to moderate his behaviour as sought by the parents which presents as a potential future risk. It is this risk which prompted Mr Sedgman to recommend a “sustained counselling process” to improve the grandfather’s insight into the effect of his behaviour, before the parents consider offering the grandfather visits with J and K. I agree.
Relationships
The parents offer a stable family unit and seem committed together in providing their children with all the benefits that good parenting offers – including the maintenance of the primary bond. I am satisfied that J did have a close relationship with the grandfather. I accept that J also had a relationship with other members of the paternal family, particularly the grandmother. Whilst I have reluctantly concluded that it would be contrary to the best interests of J and K to have visits with their grandfather, I specifically do not extend this to other members of the paternal family. The mother and father both say they would like an ongoing relationship to be maintained with the grandmother and aunt. Mr R seems already to have some opportunities.
It is unlikely, as the children get older, to be easy to explain why they have time with some extended family and not the grandfather. Explaining he is at work is of limited utility. The geographical distance between the families may currently provide some natural barrier – but if the parents are really serious about ensuring the children have a sense of identity arising from their extended paternal side – then they must actively support it. It seems the father might be waiting for his mother to make the first move, however this may be difficult for her. Although it may exacerbate the feelings of hurt experienced by the grandfather for his wife to have time but not him, it may provide a catalyst for him to seriously confront the issues raised by the parents and other members of his family.
Effect of Changes
The primary submission of the grandfather is that “the Court would not find a resumption of the time spent by the grandchildren with the grandfather would lead to a resumption of part conflict. If the Court has proper regard to the basis of the impasse, the Court will see that it involves a significant lack of insight by the respondents as to the relationship which the applicant perceives him to have with his grandchildren, the absence of any evidence of a detrimental effect of that relationship upon the children. It will also see the contrivances that have been necessary in the forms of the effect upon the marriage of the respondents of a resumption of that contact”
The difficulty in me accepting this submission is I don’t agree with the “contrivance” theory nor do I see a lack of insight by the parents. I find that the grandfather is the one who shows a concerning lack of awareness of how his controlling behaviour has affected his son, such that his son seeks something quite different from that which he experienced for his children J and K.
I do not make my finding that a resumption of these visits after not only this length of time (now approaching 20 months) but also against the parties wishes, would potentially be destructive for the children, on the views of the report writer and Ms U alone. I saw the parents under careful and sustained cross examination. I believe them when they say, as they did, that they would find it difficult to cope with resumption of visits. That statement does not prevent me from so doing as a Court often is required to make an order a parent does not agree with. It is the likely adverse effect on the parents which they expressed which compels me to restrict those visits at this time. The father in particular had to confront his father in the Courtroom and in the presence of his mother sitting in the gallery, and tearfully express that he regards his relationship with his father as irretrievable. I believe that is how he genuinely feels.
On balance, the negatives of resuming contact are outweighed by the benefits to these grandchildren.
Capacity to Provide For the Needs of the Children and Attitude to Parenting
I do not accept, as the written submissions contend, the persistent criticisms of the parents’ capacity and attitude. I do not accept they lack “insight into the benefits that can be derived by a relationship of their children with their paternal grandfather”.
It is true that a very close relationship seemed to previously exist, but I find that when the parents sought to assert their authority, as parents, to guide the grandfather’s at time intense behaviour – he did not happily accept such guidance. The grandfather mistook his role and not only was dismissive of some of the parent’s principles but was also condescending particularly about the mother. He placed his son (the father) in the predicament of having to choose whether to support his wife or his father. The father has made his choice – but really, like for any child, he should not have been put in that position. The fact that the grandfather, even after the family report and his apparent attendance on the psychiatrist Ms H, still does not understand the impact of his actions lies at the heart of my concerns.
The Background (Including Culture and Traditions)
The submissions of the grandfather properly raise the loss for these children of a living connection with their Egyptian heritage – though the family traditions created and preserved by the grandfather. I accept this is a rich culture; however I saw nothing in the evidence that suggests the parents were seeking to minimise the children’s awareness of this history. What they are opposed to is the grandfather using his time with the children to challenge the parenting style they prefer, and substitute his own.
Making an Order Less Likely to Lead to Future Proceedings
Although the grandfather’s primary application is for 12 monthly visits for 4 hours, I would take the view that the applicant sees this only as a starting position. He was having much more time with J particularly before the cessation in January 2006 and he clearly craves for more. The parents are likely; such is the litigious nature of the grandfather in my view, to be confronted with ongoing applications for more time. The grandfather is persistent.
In my view, although this factor does not accrue significant weight, an order for no specific time with the grandfather leaves open a limited opportunity to re-litigate, if the grandfather can demonstrate a genuine commitment to deal with the issues identified by Mr Sedgman. He would need to corroborate that his commitment is showing signs of developing an insight into the effect of his past behaviour before a Court at least, if not his son, is prepared to accept changes have occurred. As Mr Sedgman remarked, somewhat hopefully, he did not know if the fact that the grandfather is 67 and presents as he does (including his cultural background) means he is unlikely to change. The no doubt devastating effect of the lack of time with not only J and K but also his son Mr Rajiya might be a significant incentive to seek to change. Time might be the only option to assessing whether that comes to pass.
Conclusion
It gives me no joy at all to have formed the conclusion I have that, at this time, it would be contrary to the children’s best interests for them to spend time with their grandfather. I do not see supervised or facilitated time as the answer.
The effect on the parents of an order requiring them to support and facilitate the children’s time with the grandfather would, in my view, so adversely affect their parenting so as to outweigh the benefits of time with the grandfather.
This litigation has caused further destruction to the level of respect and trust the parents hold for the grandfather. It was a case where a mediated compromise was because of the polarised and entrenched positions taken, unlikely to be achieved.
If the result of my decision is that J and K have no connection with the paternal grandmother or paternal aunt, then that would add to the children’s loss. I hope the parents sincerely mean what I took as a genuine wish to facilitate contact with these other members of the family.
For the reasons given, it is in the best interests of the children that I make no order that they spend time with the grandfather. Accordingly, the application shall be dismissed.
I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of Bauman FM
Associate:
Date: 26 September 2007
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