Ratten and Ratten and Ors

FEDERAL CIRCUIT COURT OF AUSTRALIA

RATTEN & RATTEN & ORS

[2021] FCCA 1496

Catchwords:
FAMILY LAW – Parenting – final orders – young child aged 3 years – where the child lives with the maternal grandmother and the maternal grandmother is the primary carer – where the mother and father have not participated in the proceedings and pose a risk of harm to the child – what time the maternal great grandmother should spend with the child – best interests of the child to live with maternal grandmother and spend holiday time with the maternal great grandmother in accordance with a graduated regime.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Cases cited:

Goode & Goode (2006) FLC 93-286

Potts & Bims [2007] FamCA 394

Applicant:

MS RATTEN

First Respondent:

MS B RATTEN

Second Respondent:

MR CARRICK

Third Respondent:

MS C RATTEN

File Number:

NCC 2236 of 2019

Judgment of:

Judge Betts

Hearing date:

19 May 2021

Date of Last Submission:

19 May 2021

Delivered at:

Newcastle

Delivered on:

19 May 2021

REPRESENTATION

Solicitors for the Applicant:

Ann Legal

Counsel for the First and Second Respondent:

No appearance

Counsel for the third Respondent:

In person

ORDERS

The Maternal Grandmother have sole parental responsibility for the child X born in 2017 (“the child”).
The child live with the Maternal Grandmother.
The child spend time with each of the parents as agreed in writing between the Maternal Grandmother and that parent and on such terms and conditions as the Maternal Grandmother sees fit. This may include (but is not limited to) a supervision requirement or that the visits occur in a public location.
The Maternal Great Grandmother spend time with the child as agreed in writing with the Maternal Grandmother and failing agreement as follows:
(a)From 10.00am to 2.00pm tomorrow 20 May 2021, with the Maternal Grandmother to be present during this time;
(b)For 2 hours on Friday 21 May 2021, failing agreement from 9.00am to 11.00am, with the Maternal Grandmother to be present during this time;
(c)During the 2021 June/July school holidays for the last weekend of the holidays on Friday, Saturday and Sunday from 10.00am to 4.00pm, with the Maternal Grandmother to be present during the first visit NOTING that if the child is distressed on either of the last two visits, the Maternal Great Grandmother is to contact the Maternal Grandmother to seek her assistance;
(d)During the 2021 September/October school holidays for the last weekend of the holidays on Friday, Saturday and Sunday from 10.00am to 6.00pm;
(e)During the 2021 Christmas school holidays for the last weekend of the holidays on Thursday, Friday, Saturday and Sunday from 10.00am to 6.00pm;
(f)During the 2022 term 1, 2 and 3 school holidays for the last weekend of the holidays on Thursday, Friday, Saturday and Sunday from 10.00am to 6.00pm;
(g)During the 2022 Christmas school holidays for the last weekend of the holidays on Wednesday, Thursday, Friday, Saturday and Sunday from 10.00am to 6.00pm;
(h)During the 2023 term 1, 2 and 3 school holidays for the last weekend of the holidays on Wednesday, Thursday and Friday from 10.00am to 6.00pm and from 10.00am Saturday to 6.00pm Sunday;
(i)During the 2023 Christmas school holidays for the last weekend of the holidays on Wednesday and Thursday from 10.00am to 6.00pm and from 10.00am Friday to 6.00pm Sunday;
(j)During the 2024 term 1, 2 and 3 school holidays for the last weekend of the holidays on Wednesday from 10.00am to 6.00pm, from Thursday 10.00am to 6.00pm Saturday and from 10.00am to 6.00pm Sunday;
(k)During the 2024 Christmas school holidays and all school holidays thereafter for the last weekend of the holidays from 10.00am Wednesday to 6.00pm Sunday NOTING that if the Maternal Grandmother and the Maternal Great Grandmother agree, then the time can instead run from 10.00am Tuesday until 6.00pm Saturday.
The Maternal Great Grandmother communicate with the child by FaceTime at all reasonable times.
Without admissions, pursuant to section 68B of the Family Law Act 1975, the parties be restrained by injunction from:
(a)Denigrating any other party or members of any other party’s family or household, in the child’s hearing or presence, or enabling the child to remain in the hearing of anyone else engaging in such denigration;
(b)Showing the child any court documents;
(c)The Mother is restrained from spending time with the child except in accordance with these orders;
(d)The Father is restrained from spending time with the child except in accordance with these orders;
(e)The Maternal Great Grandmother is restrained from permitting either of the parents to spend time with the child except in accordance with these orders.
The proceedings be removed from the list of Active Pending Cases.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2236 of 2019

MS RATTEN

Applicant

And

MS B RATTEN

First Respondent

And

MR CARRICK

Second Respondent

And

MS C RATTEN

Third Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.

Introduction:

These proceedings concern the future parenting arrangements for a young and somewhat vulnerable child, X, born in 2017. X is presently three years and almost six months of age.
Since around June of 2018, X has been living with his maternal grandmother, Ms Ratten, at the Region D. This came about when X’s mother, Ms B Ratten, moved in with the maternal grandmother.
The mother, Ms B Ratten, who is the first respondent in these proceedings, has since moved out of the maternal grandmother’s home. She has gone on to have another child, and her involvement in X’s life has been very limited in recent times.
There are significant question marks around the mother’s capacity to care for X, and I will turn to those shortly.
X’s father is Mr Carrick. There are significant risk factors relating to him as well. He has no relationship with the child and seems to have played no serious role in X’s life.

History of the proceedings:

These proceedings were originally commenced by the maternal grandmother as applicant, after she had effectively evicted the mother from her home as a result of what she says was a “partying” lifestyle that did not prioritise X’s needs.
Around mid-2019, the maternal great grandmother, Ms C Ratten, attended upon the maternal grandmother’s home, effectively seeking that the child be able to be returned to the mother.
The maternal grandmother refused and commenced these proceedings on 23 July 2019. At that time, the only other parties to the proceedings were the first respondent mother and the second respondent father.
The matter first came before the court on 27 August 2019, but at that time neither of the parents had yet been served. Given that X was living with the maternal grandmother, the court made an interim order that she have sole parental responsibility for him, and that X live with her and spend no time with either the mother or the father.
Orders were made for the maternal grandmother to serve the mother and the father with her court material and for the parents to file and serve response material. The proceedings were adjourned over to 18 November 2019.
On 3 September 2019, the mother was served with the maternal grandmother’s material.
When the matter came back before the court on 18 November 2019, neither the mother nor the father appeared. The father had not yet been served, but he was served some four days later, on 22 November 2019.
On 18 November, the court adjourned the proceedings over to 2.15 pm on 24 March 2020 for undefended final hearing, and I made orders in relation to either parent being able to resist the matter proceeding undefended by way of filing and serving response material by 7 February 2020 and personally attending court on 24 March 2020.
The matter next came before me on 17 February 2020 upon the application of the (now) third respondent, the maternal great grandmother, Ms C Ratten. She sought to be joined as third respondent to the proceedings, and the court made such an order, as well as directing that she file material, which she did.
When the matter next came before the court on 24 March 2020 again neither parent appeared. The only “live” parenting contest was between the maternal grandmother and the maternal great grandmother. The proceedings were adjourned over to 26 June 2020, and orders were made for the parties to participate in a litigation intervention conference in the hope that the matter might be able to be resolved.
I specifically noted in the orders that the court expected the maternal grandmother to “take all reasonable steps to try and make the respondent mother and father aware of the terms of these orders, but personal service is not required. The mother is residing at an address unknown, and the father, apparently, lives at E Street, Town F.”
When the matter was next before me, 26 June 2020, again neither of the parents appeared. It was only the maternal grandmother and the maternal great grandmother who participated. The proceedings were adjourned over to 31 August 2020 for directions, and it was noted that the parties were negotiating and attempting to reach agreement as to final orders.
When the matter next came before the court on 31 August 2020, this time it was only the maternal grandmother who appeared. For some unknown reason, the maternal great grandmother did not participate. In any event, on that day I adjourned the proceedings to the callover on 28 January 2021 for allocation of final hearing dates. Again, I specifically made orders which gave the mother and the father an opportunity to participate in the proceedings so as to avoid an undefended hearing.
The matter next came before Registrar Clarke on 10 February 2021, at which time it was set down for final hearing today at 10 am. Directions were made for the filing of material. Once again, neither the mother nor the father appeared. It was only the maternal grandmother and the maternal great grandmother who were still participating in the proceedings.

The hearing before me:

The matter came on for final hearing before me today, at which time the maternal grandmother was represented by her solicitor, Ms Naumovska, as she has been throughout most of the proceedings, and the maternal great grandmother represented herself. Present in court to support the maternal great grandmother was her daughter, Ms G (the grandmother’s sister, X’s great-aunt).
I should record that at no stage has either parent filed any material in these proceedings. Both are well aware of the proceedings which concern their son. Neither of the parents has demonstrated a desire to participate in the proceeding and to assist the court to arrive at a decision.
In the circumstances, the matter is, effectively, proceeding on an undefended basis in relation to both parents, although there are still live issues as regards the maternal grandmother and the maternal great grandmother, and I will now turn to those.
The maternal grandmother and the maternal great grandmother are in dispute as to the amount of time that the maternal great grandmother should be able to spend with X.
The maternal great grandmother indicated to me in the course of the hearing today that she was seeking to spend time with X on a graduating basis, initially spending 5 x 3 hour visits with him during the school holidays and, over time effectively increasing to one week of each of the short school holidays when he turns five and two weeks of holiday time at Christmas. She also seeks to continue FaceTime communication with X.
The maternal grandmother opposes the maternal great grandmother having so much time with X. Through Ms Naumovska, she submits that a more appropriate arrangement in X’s best interest would be that the great grandmother spend time with him from 10 am to 2 pm on the last Saturday and Sunday of each weekend of the school holidays - that is, four holidays per year for two days on the last weekend of each holiday.
The maternal grandmother also contends that she should supervise that time until X turns five. In the future, she does not propose that X’s time increase, but only that the supervision requirement would fall away.
Her proposal that the great grandmother spend eight (8) hours over two consecutive days for each of the school holiday periods each year amounts to some 32 hours or so in total with X per annum.
In support of her case, the maternal grandmother relies upon her Case Outline which faithfully records relevant extracts taken from subpoenaed material, and I propose to proceed on the basis of what is set out in those extracts, given that the maternal great grandmother is self-represented and that the extracts relate almost exclusively to each of the parents who have not participated in any meaningful way in the proceeding. The records do not really relate to the great grandmother as such.
The maternal grandmother also relied upon her affidavit of 21 April 2021.
For her part, the maternal great grandmother relied upon her affidavit of 23 March 2020.
Each of the parties made submissions to me as to what was appropriate, and each of them addressed me as to what they thought was in X’s best interest.
The parties agreed that there was no need for the grandmother to cross-examine the great grandmother, nor was there any need for the great grandmother to cross-examine the mother. In that sense, the court cannot resolve disputed facts as between the grandmother and the great grandmother. Procedurally, this hearing is therefore perhaps more akin to an interim hearing; however I am of course making final orders and must consider the matter on that basis.
I am not critical of the parties for choosing not to cross-examine each other. The affidavit material paints a fairly sad and sorry picture in relation to X’s relationship with his parents and the somewhat chaotic upbringing that he had when he was originally in the mother’s care. It is quite clear that there is a degree of tension between the grandmother and great grandmother, and it seems to me that it is not helpful to X for me to re-visit that in any greater detail than I need to in order to arrive at a decision in his best interests.

Brief factual overview:

In terms of a brief factual overview of the matter, the mother Ms B Ratten and the father Mr Carrick were in a fairly brief relationship that ended at a time when young X was only about three months old.
To be fair to the mother in this case, she was herself only a very young mother; she would have been 18 when X was born. She and Mr Carrick were not a couple for any length of time that X would remember, and the position is that, after they separated, Mr Carrick had minimal, if any, contact with X.
The mother and father having separated, the mother found herself living with various friends in the local area at Town H. This included, for a time, living with the great grandmother, Ms C Ratten, the third respondent, who lives nearby at a place known as J Street, Town K.
The Department of Families and Community Services, otherwise known as the Department of Communities and Justice, had some involvement in the mother’s parenting around this time.
Regrettably, X was caught up in some sort of “accident”, where one of the mother’s friends fell on him, causing him to fracture his leg and seemingly also to fracture his skull, although the leg injury seems to be the much more serious. He required surgery in Brisbane which was, inevitably, a very serious matter.
Concerns were raised about X at Town L Hospital, where the child had initially been presented. The concerns were that the mother did not appear particularly engaged with X, and, in that sense, there was concern that the mother did not seem to be able to perhaps relate to him as well as she could or should have.
Having found themselves on the radar of the New South Wales Department of Communities and Justice, there was a subsequent field assessment at the mother’s home conducted by them around April 2018.
At that time, the mother was living with a couple who were unrelated to her and with some other person. A concern was raised by a caseworker that the mother did not meet X’s basic or immediate needs. It was something that, clearly, the Department was concerned about. It was around that time, or shortly thereafter, that the mother moved in with the great grandmother for a few months.
The mother subsequently moved down to live with the maternal grandmother at Suburb M on the Region D around June of 2018, and, effectively, from around this time, the maternal grandmother has had X in her home on a continual basis.
The maternal grandmother recounts in her affidavit what can only be described as harrowing neglect on the mother’s part and an incapacity to care for her son.
The maternal grandmother says that X would be screaming at night for bottles, but that the mother would not get up to give them to him, so the maternal grandmother would end up having to do so herself. The mother was, seemingly, sleeping through it.
The grandmother says that the mother would sleep in until late in the morning, so that she simply was not awake to feed X or attend to him in the mornings.
Her evidence is that, once X was having more solids, that the mother still only gave him bottles at mealtime, and that this was an issue discussed at meetings with the Department of Communities and Justice. Notably, she deposes that the mother did not, however, follow the DCJ plan, and it was only the maternal grandmother who was giving solids to little X.
The maternal grandmother complains that the mother would leave dirty clothes on the floor, including soiled nappies, and that the mother was generally not fully or actively engaged in X’s care, including feeding him or cleaning his clothes. She complained that the mother was not buying anything for X, and that she claimed to be forever “broke”. She also observed that the mother was out for a lot of the time, particularly at night-time, regularly travelling to Sydney to “party”.
The grandmother observed the mother was using drugs, drinking alcohol to excess, and that on one occasion she brought marijuana into the home.
The maternal grandmother was concerned, understandably, about the mother’s mental health. She was aware that the mother had had previous mental health issues involving self-harm and cutting herself. She annexes to her affidavit some disturbing messages sent to her by the mother in which the mother talks about needing to clear her head, about her head being “screwed up” and about nobody understanding her “head problems”.
The mother wrote a handwritten note which, effectively, refers to the “release” she was obtaining through cutting herself with a razor blade. She also drew a picture of a person being suspended by a noose from the bough of a tree.
These things are, obviously, indicative of very serious mental health concerns, and, in my view, it was entirely appropriate for the maternal grandmother to be very concerned about her daughter and particularly also about the care of her grandson.
The mother told the grandmother that those sorts of dark thoughts would pass once she went out clubbing. That evidence suggests that the mother took refuge in living a social life and partying, which on a human level is entirely understandable. She was after all a very young woman whose life had been, to some extent, turned upside down since the birth of the child and the separation from her partner, Mr Carrick.

The mother had also had her own childhood difficulties which I will turn to a little later.
But the reality is that, on the evidence before me, the mother really was not in a position to look after this boy in any way that was safe or appropriate.
In March 2019 the maternal grandmother ultimately gave the mother an ultimatum - that she could not go out clubbing any more but needed to stay home for X, and that if she went out again she could no longer stay with the grandmother anymore.
The mother responded that she did not even want X to start off with - but she did not believe in abortions. She said she did not feel motherly or close to X.
She then went out on the town, and thus ended the situation of the mother living with the grandmother.
The grandmother took care of X thereafter, and it is quite clear that the mother was wanting to get him back. She fell pregnant, and she wanted to have X returned to her care, but the grandmother refused to hand him over, citing safety concerns. It appears that the mother reached out to the great grandmother around that time, and that the great grandmother, to use the colloquial, “went in to bat” for her.
The great grandmother had herself had some significant past involvement in the grandmother’s raising of her own children, including the mother. The grandmother has three older daughters: the mother, Ms B Ratten, and her two sisters, Ms N and Ms O. The great grandmother had been caring for all three of them since they were very little; the mother being three, Ms N two and Ms O about five months. This had occurred around 2003 because, at that time, the grandmother admits that she was in a domestically violent relationship, and that the Department of Families NSW had had to intervene and effectively place the children with the great grandmother.
In that sense, the grandmother and the mother had both had some past involvement with the relevant child welfare department.
But, in any event, returning to the chronology, the great grandmother “went in to bat for the mother”. Her affidavit very much paints the mother as a victim of circumstance, that she was tired because of an iron deficiency; that the sorts of neglectful behaviours which the grandmother observed did not occur when she was earlier living under the great grandmother’s roof.
The great grandmother’s affidavit poses this question:
Can't a person have some depressing feelings at some stage in their life, and, from what Ms B Ratten has told me, her life with her mother wasn’t very good?
The great grandmother very much defends the mother’s behaviours, including her desire to live a life and to be able to have some money, and to be able to - for want of a better expression - enjoy herself to some extent.
I do not propose to recount the detail of what the great grandmother says about the grandmother in the affidavit. This is the great grandmother makes a number of strident criticisms of the grandmother and suggests that the grandmother is somewhat hypocritical in criticising her daughter for behaviours that the great grandmother says that the grandmother herself engaged in.
It is regrettable in some ways to read some of the criticisms in that affidavit because I see this as a difficult case in which young X really needs all of the adults around him to work together better. They need to make a real and concerted effort to get on for his sake because, in some ways, he has begun life in a very unfortunate fashion given the behaviours of his parents.
In any event, the maternal grandmother had not handed X back to the mother, and, as I have indicated earlier, it was some time before the great grandmother became a party to the proceedings. She has maintained that she wants to have a role in X’s life, and that there is much she can offer him, including being able to introduce him to and involve him with other members of the maternal family, as well as perhaps more fully immersing him in his Aboriginal heritage.
The mother gave birth to another son, P, around 2020. As I have indicated, she was not at that time participating in these proceedings.
The grandmother was attempting to locate the mother, but it seems that, on the bright side, the mother started communicating with the maternal grandmother again. In fact she attended at the grandmother’s residence with P so that grandmother could meet P, and P could meet X.
The mother has since attended the grandmother’s residence on a number of occasions, including birthdays and Christmases, staying for a couple of days on each occasion. The grandmother observes that when the mother visits she appears to be a bit uncomfortable, which is perhaps understandable given the past history, but X interacts and is playful with her. She believes that X understands P to be his baby brother, as he has looked at his pictures and excitedly said words to that effect.
X appears to have developed some sort of affection towards P and really enjoys him visiting. The grandmother also asserts that Brighter Futures have been working with the mother to help her out to try to get her life back on track.
The mother, apparently, lives with P’s father and P’s paternal grandparents at Suburb Q in Sydney, and one very positive thing is that the grandmother believes that the mother seems to be in a much better mental space, although she is not sure whether that will be a long-term situation.
The mother has certainly told the grandmother that she does not want anything to do with the court, she does not want to face it or face anyone. The maternal grandmother expresses concern that the mother might still be neglectful of X, which, on all of the evidence before me, certainly poses an unacceptable risk to him.
The evidence in relation to the great grandmother is rather thin.
The great grandmother has had some interaction with X. She has seen him for some short visits of something like five to 10 minutes throughout 2018 and 2019.
The impact of COVID-19 and the fact that the great grandmother lives seven hours drive away from the grandmother makes it rather difficult for her to visit the child with any regularity, but the evidence before me establishes that the last time that the great grandmother saw X was around June 2019 when she saw him for about 10 minutes.
The great grandmother tells me that she does travel down to the Region D during school holidays where she visits her daughter, Ms G.
Ms G is present in court today, and the grandmother says she lives only a couple of minutes away from the mother. That said, from reading the evidence and as best I can gather in court, it seems that the mother and Ms G do not perhaps currently have much of a relationship, which is again perhaps somewhat unfortunate.
The great grandmother has had a number of video calls with X between October 2020 and March 2021. These were relatively short. Both the grandmother and great grandmother agree that X is not as engaged as he might be. The great grandmother describes him as holding his arm above his eyes and perhaps being a bit shy.
It is difficult to engage young children on FaceTime, as anyone will observe, but particularly children who you have not had an opportunity to form much of a relationship with.
The last time the great grandmother spoke to X was this week.
The great grandmother, in her affidavit material, makes a number of criticisms in relation to the grandmother’s past care of her own children, including the mother in this case. But more significantly, she refers to the current circumstances of the grandmother in terms of her own home life and the stresses that would be present on her.
The grandmother has a total of seven children, the youngest four of whom live with her. That is Ms R born in 2003, S born in 2010, T born in 2012 and U born in 2017. Her older three children are the mother, Ms B Ratten; her sister, Ms N and Ms O. Ms N and Ms O are still living with the great grandmother.
In relation to the children living in the grandmother’s care, I start with Ms R.
The great grandmother describes her as having autism and having issues in relation to language and communication - the message being that there would be a lot of work involved in the grandmother having to look after her. I do not read that in any way as any criticism or negative comment about Ms R, but rather that there is a lot of stress and strain and pressure, if you like, on the grandmother.
T is described by the great grandmother as having some behavioural issues that require some attention from the grandmother as well.
The great grandmother expresses the concern that the grandmother is rather “stretched” in relation to looking after X, having regard to her other child-caring commitments.
The grandmother disagrees. She has been living in a stable de facto relationship with Mr V, a public servant, for about the last five years. She asserts that she has escaped from two past relationships of family violence, and says that she is proud to have been able to rebuild her life which she attributes in part to moving away from the Town H area and down to the Region D where she made a fresh start.
The grandmother is not in a violent relationship. There are no AVOs and no history of AVOs between she and Mr V, and she is available to provide full-time homemaking and primary caregiving responsibilities to X as well as her other children. I understand that the Department of Communities and Justice have also attended upon the grandmother’s home and have no concerns.
In seeking to spend time with X, the great grandmother inferentially is accepting that there is no unacceptable risk in the grandmother’s care. It is an appropriate concession on her part. The grandmother, on the evidence before me, has done a very good job in looking after this boy (X) in circumstances where it would not have been easy for her, and where he has suffered some significant disadvantage because of his mother’s impaired mental health and a degree of instability inherent in her lifestyle, but also his father’s non-participation in his life.
The real question, then, is what would be an appropriate arrangement going forward for X to be able to spend with his great grandmother, who, no doubt, loves him very much, wants what is best for him and has much to offer him as well. That is fundamentally the question before me.
In the course of submissions, I queried with the great grandmother what would be the position if the mother were to contact her and ask to see X. I did so because the evidence before me establishes that, at least at this time, the mother poses an unacceptable risk to X’s wellbeing, given her past parenting history.
The mother has clearly improved and she may well be in a much more stable situation than she ever was before. Indeed, I hope, for her sake, that is true, but I simply do not have any evidence from the mother before me to be able to make any proper assessment, and she clearly has not wanted to participate in the proceeding at all.
In circumstances such as that, I have to err on the side of caution and take the view that unless and until everyone significant in X’s life agrees that the mother no longer poses a significant risk, or unless and until a court makes such determination, I must assume that the risk that the mother poses to X, which is inherent in the past history, remains “live”.
I asked the great grandmother whether, if the mother rang her, she would provide X to the mother so that the mother could spend time with him, noting after all that the great grandmother originally became involved in the matter because she wanted to have the child returned to the mother.
The great grandmother responded that the mother does not ring her and does not contact her anymore, but also said she would agree to an order restraining the mother from being able to spend time with X. In her description, “It is my time with X, not the mother’s time.”
That is really the only question of unacceptable risk that could arise in the great grandmother’s care, and it is appropriately addressed by way of an injunction.
To the extent that the grandmother suggests that the child’s time with the great grandmother should be supervised in the short term, this is really a response to X being rather “clingy” to the grandmother not because of any risk issue but rather his perhaps disrupted attachments.

The law:

Turning then to the law, Part VII of the Family Law Act provides for the court’s jurisdiction and power in respect of children.
Relevantly in section 60B, I observe that objects of Part VII include ensuring that the children have the benefit of both parents having a meaningful involvement to the maximum extent consistent with the children’s best interests; that children need to be protected from physical or psychological harm from being exposed to abuse, neglect or family violence; that the court should ensure that children receive adequate and proper parenting to help them achieve their full potential.
Relevant principles are that children have a right to spend time on a regular basis with and communicate on a regular basis with both parents and other people significant to their care, welfare and development, such as grandparents and other relatives. The grandmother has standing to bring the application as a matter of right pursuant to section 65C of the Act which expressly recognises the legal standing of grandparents.
Interestingly, great grandparents do not have an automatic right to bring parenting proceedings but must establish that they are a person “concerned with the care, welfare or development of the child.” It seems that the Parliament decided that great grandparents are perhaps one step removed. It may also reflect the fact that there are probably not many great grandparents litigating in courts about their great grandchildren, given one would usually expect great grandparents to be of a significantly advanced age.
I say that with all due respect to the great grandmother in this case. She is about the youngest great grandmother I think I have ever seen at the age of 65, and the grandmother, for that part, was also very young when she became a grandmother.
The point however is that the grandmother concedes, and I think credit ought be given for it, that the great grandmother is “a person concerned with the care, welfare and development” of X, so I do not need to address that question any further, beyond noting the grandmother’s very proper concession.
In some ways, Part VII is something of a blunt instrument here as I am not dealing with the traditional dispute between parents; I am dealing with a dispute between a grandmother and a great grandmother.
That being the case, many of the provisions in section 60B which sets out the objects and principles of the Act, and section 60CC which sets out the relevant best interest considerations, do not strictly apply. However I am also aware of the decision of Moore J in Potts & Bims [2007] Fam CA 394, and it seems to me that I should, insofar as I am able to do so, consider the section 60CC factors by reference to the competing parties who are before me. This can be done, in my view, pursuant to section 60CC(3)(m) which is the “catchall” provision.

Best interests findings:

Turning then to section 60CC – the mandatory best interests considerations - X would be, in my view, at an unacceptable risk of harm if exposed to either of the parents at this stage. I have a more optimistic assessment in relation to the mother than I do the father because I have some evidence before me that the mother has mended her ways to some extent.
The father appears to have been a non-participant in any serious way in the child’s life, as well as himself having a criminal history and some apparent involvement in drugs.
I cannot, on the evidence before me, come to any other view than that the mother and the father ought not to be spending time with X unless it is properly supervised.
There is no contest that the child should continue living with the grandmother, and, in such circumstances, she would appear to be an appropriate person to act as “gatekeeper” in that respect.
Inevitably, any such orders will crimp the opportunity for a meaningful relationship between the child and his parents, but this is largely a consequence of the parents’ actions, no-one else’s.
In terms of the great grandmother, there is no unacceptable risk in terms of time with X. In my view, she does not at this stage have a meaningful relationship with him. It is probably more meaningful to her than it is to him, and I do not say that disrespectfully; he is only a young boy, and the great grandmother has not had much opportunity to get to know him. She wants to, that is why she is here in this court, and she ought be given that opportunity because there is a benefit to this young boy in forming a better relationship with his great grandmother, but also with others who, through her, he can get to know better and to form relationships with.
In terms of the views of the child, he is too young to express any view, and nothing needs be said about that any further.
In terms of the nature of his relationships, clearly the grandmother is his primary carer and mother figure. Whatever difficulties may have existed between the great grandmother and the grandmother, or between the grandmother and the mother, it seems to me that the grandmother has “stepped into the breach” in circumstances where she has had to take on a significant parenting role. This works to X’s best interest because she gives him stability which is so important for him.
X’s “clinginess” to the grandmother is a potential indicator of some disrupted attachments. This is a common problem the court sees with young children, particularly where they come from broken homes, or from situations of family violence, as the mother herself experienced, it would seem, as a child in the grandmother’s care. What the court so often sees are disrupted attachments which can play out in adverse ways over future years, as seems to have happened with the mother herself.
The child does not presently have a meaningful relationship with the great grandmother, but the great grandmother has much to offer him. In her affidavit, she refers at paragraph 27 to her home environment and to the fact that she has the child’s older siblings to the grandmother’s earlier relationship living with her. She describes them as “aunties” to X – there are also three great aunties, being the great grandmother’s other children, who are the sisters of the grandmother. There are 10 cousins, two other great grandparents in the area, as well as lots of people who knew X as a baby.
The great grandmother deposes that everyone in the family will give X enough love and care to satisfy his needs. She says that everyone in her house over the age of 18 has had a Working with Children check because of her longstanding involvement with the Department of Communities and Justice. She also deposes that X in her care could associate with his Aboriginal family up there and learn about his “W” heritage, and she refers to the fact that one of his cousins in the Aboriginal family is a custodian of their land, and her mother was an elder.
As I say, there is much the great grandmother could offer X, but it needs to be done in a way that is child-focused and that enables X to adjust to the changes that are sought in his life.
The parents have not participated in the child’s life to the extent they should have, particularly the father. The grandmother has had to undertake all of the significant parenting, as well as the decision-making role.
Neither the mother nor the father pay child support to the grandmother. That issue does not take me very far.
The grandmother expresses a concern that if any significant time is ordered with the great grandmother that X will need some time to adjust, and that it ought to be done slowly and carefully. There is no exact magical formula for arriving at an order in this respect. It is a discretionary matter in which I must balance the benefit to X against the need not to indulge in “knee-jerk” reactions in the making of orders that might cause him distress.

Practical difficulties and expenses are very real, given the driving distance between the parties. It is common ground that the only real option here is for the great grandmother to see X during school holiday periods.
I do not doubt the great grandmother’s capacity to properly look after X. I do not doubt her attitude towards X, nor, for that matter, do I doubt the grandmother’s capacity, or the grandmother’s attitude. They all want what is best for him, despite whatever difficulties might exist in their own relationships.
X is only a young boy who needs to be handled carefully. He is an Aboriginal child. He has the benefit and should have the benefit of the opportunity to be immersed in his Aboriginal culture. This can occur both with the grandmother - and is occurring - and it can occur with the great grandmother as well.
Family violence is a sad feature of this case, but it seems really to be in the past.
To the extent that the grandmother was in violent relationships, she has learned from that and has moved on to a much healthier, much more positive relationship in an intact family unit. This is not always easy, particularly for women who are in a disadvantaged position and often afraid to leave their partner, as we have seen play out in a particularly tragic and horrific case in Queensland last year. She is aware of and no doubt understands these awful dynamics and their impact on children. I do not see family violence as a relevant factor today.
I do not want to see these parties come back to court. I think that these proceedings need to come to an end.
Without pointing fingers, I consider that the great grandmother has the opportunity to be able to expose X to other family members who may be somewhat estranged from the grandmother. The reality is that the grandmother would appear to be somewhat estranged from some of her family members. I am not critical of people about that, there are other family members available to X who, no doubt, would love the opportunity to spend time with the little fellow and to be able to have some input into his life.
X is a boy who, given some of the disadvantage to which he has been exposed as a youngster, would benefit from other extended family members who love him and who want the best for him, having an opportunity to be involved in his life. I also add that in the somewhat unusual situation of this case, involving an application by a great grandmother, that great grandmothers are not around forever for young children. The opportunity for him to be immersed in his maternal family, further immersed in his culture and to have the opportunity for that interaction, in my view, will work to this young boy’s advantage, provided that it is done in a safe and child-focused way.

Statutory pathway, Conclusion & Orders:

In this case the statutory pathway in section 65DAA, as identified by the Full Court in Goode & Goode (2006) FLC 93-286, is of absolutely no assistance to me.
I am not assisted by the presumption in favour of equal shared parental responsibility for parents – as I have neither parent before the court. Moreover, each of them, on the evidence before me, poses as unacceptable risk to X. Neither parent has participated in the proceedings, and here the real dispute is between the grandmother and the great grandmother.
Nonetheless, it is convenient to deal with the issue of parental responsibility first, and, without hesitation in that regard, I would order firstly that the maternal grandmother have sole parental responsibility for X. I make that order because parental responsibility is not really an issue in this case. The grandmother is, effectively, making those decisions for X anyway and in an unchallenged way. I am satisfied that she can continue to do so in his best interest. He needs stability, and that includes stability in decision-making which she can offer. So I will make that as the first order.
The second order will be that the child live with the maternal grandmother. The maternal grandmother has provided him with a safe and loving home. There is no reason to do anything but make that order. The great grandmother does not seek any contrary order, nor realistically could she.
I propose to order that the child spend time with each of the parents as agreed in writing between the maternal grandmother and that parent, and on such terms and conditions as the maternal grandmother thinks fit. This may include supervision, or that visits occur in a public location.
I do not intend to be any more prescriptive than that because this gives the grandmother the opportunity, if she thinks that the mother has “cleaned up her act”, to indicate that she does not need to have any supervision or any other requirement. It also gives the grandmother the power to say “no, your time must be supervised.” In making that order, I trust that the grandmother will put X’s needs first. She is in a good position to see her daughter and to see how she is progressing and what issues she might have, and she speaks very positively about her daughter’s progress.
In relation to the father, it seems to me that he ought not to be shut out of the child’s life. He has really made a choice not to involve himself in it, but it is appropriate, in the context of section 68B, that the same order be made for him.
In terms of the great grandmother’s time, what I propose to do is to order that the maternal great grandmother spend time with X as agreed in writing with the maternal grandmother, and, failing agreement in accordance with the regime which I have arrived at, taking into account the competing considerations to which I have referred.
I pause here to observe that the great grandmother is presently in the Region D/City Y region on holiday. She tells me she wants to drive back to her home on Friday, and so I am cutting her time a little short on the Friday this week so that she can get home at a reasonable hour. It seems to me that if she is able to spend six hours with X in the next two days that this is a very big step forward in any event and an appropriate amount of time to spend with him.
I will order for the first two visits, tomorrow and Friday, that the maternal grandmother be present for such visits. It is not a strict supervisory order, but it is rather that the grandmother be present. What this means is that the grandmother should be able to listen, see, hear what is going on, but without hovering over her own mother’s shoulder. Of course, if the child becomes upset or distressed, the grandmother can intervene, and that may well happen, and I would expect the great grandmother to be able to accept that.
What I propose to do next is to order that the great grandmother spend time with X for the last weekend of the June/July 2021 school holiday, about six weeks or so from now, give or take. This is what the grandmother was seeking, but rather than ordering 10am to 2pm Saturday and Sunday, I will order 10am to 4pm Friday, Saturday, Sunday, which is longer and more meaningful time, with the maternal grandmother to be present for the first visit.
This means that the grandmother will be present for the next three visits.
If X is distressed on the Saturday or Sunday visit, I am going to order that the great grandmother contact the grandmother to seek her assistance. Now, in making this order, I want to be clear - I expect everyone to be able to work together with goodwill. I know that it is difficult, and it is stressful coming to this place and having somebody else tell you what your parenting arrangements should be that neither of you actually are seeking, but this is all about X. He is my only concern, and if he is your only concern then I am confident you can make this work.
The next order will be that September/October holidays this year, that the child spend time with the great grandmother Friday, Saturday, Sunday, again from 10 am to 6 pm. The Christmas holidays, I will order that the child spend time with the great grandmother over the last weekend again, on the Thursday, the Friday, the Saturday, the Sunday, 10 am to 6 pm.
For the end of Term 1, 2 and 3 holidays next year, I will make the same order again, so it is Thursday, Friday, Saturday, Sunday, 10am to 6pm, but no overnight. At the end of Term 4 holiday in 2022, ie. next Christmas, I will order that the time run from 10am to 6pm on the Wednesday, Thursday, Friday, Saturday, Sunday - being five days - and five days is the line should be drawn in the sand as a maximum amount of time.
I say that because not out of any disrespect to the great grandmother, but the reality is the grandmother is the primary carer. She has to be able to make proper holiday arrangements as well. I consider that five days is the appropriate endpoint at this time, in terms of block time
I then propose to order that for the end of Term 1, 2 and 3 holidays in 2023, two years away, that the great grandmother again have the Wednesday through to Sunday during the day, except I am going to order that the Saturday time run from 10 am on the Saturday to 6 pm on the Sunday, meaning that the first overnight visit occurs in Term 1, 2023.
Now, I am having a long lead-in to that overnight time because I think this little boy needs a pretty long lead-in.
The next order will be that for the end of Term 4 holidays in 2023, again the great grandmother have Wednesday to Sunday of the last week from 10 am to 6 pm, except that it will be a Friday 10 am to Sunday 6 pm at the finish, so two overnights.
In 2024, Terms 1, 2 and 3, I will again order Wednesday - Sunday, but the overnights will run from Thursday night through to Saturday night. The reason I select Saturday night, rather than Sunday night, is because the little boy will be going back to school on the Monday so let us keep things simple for him.
For the end of term holidays in 2024, three and a half years away, and thereafter, I am going to order that X spend time from 10am Wednesday straight through to the 6pm Sunday. I will note here that, if the grandmother and great grandmother agree, then it can be 10am Tuesday to 6pm Saturday, if that works better for them.
Frankly, I do not think it will matter. It does not matter to me. It may matter more to the parties to end it on a Saturday, so that X is less disrupted, but I will leave that to the parties. If they agree, I will change it to Tuesday – Saturday. If they do not, I will leave it as Wednesday – Sunday, unless otherwise agreed.
And that will then be the arrangement from thereon in, including from Term 1 in 2025 onwards. So, effectively, the time “peaks” at the end of Term 4 holidays in 2024 – being from 10am Wednesday to 6pm Sunday in the last week of each of the holidays.
That will, obviously, be only a small fraction of the Christmas holidays, but it will be a much bigger fraction of each of the short holidays. It will enable the grandmother to have quality time as well. If people wanted to do the travel it would also enable the time to occur at the great grandmother’s home, although I do not envy them that drive for a five-day trip but anyway I am sure that can all be worked out.
I am going to additionally order that the great grandmother communicate with X by FaceTime at all reasonable times. I am not going to be any more prescriptive than that because the grandmother has enabled the communication to occur, and it will work better for X if that communication occurs; it will mesh in better with his visits.
Additionally I am going to impose some important injunctions that will, in my view, enable this arrangement to work. And that is that pursuant to section 68B of the Family Law Act and without admissions by any party that the parties be restrained by injunction from:
a)Denigrating any other party or members of the other party’s family or household in the child’s hearing or presence, or enabling the child to remain in the hearing of anyone else engaging in such denigration;
b)Showing the child any court documents;
c)The mother is restrained from spending time with X, except in accordance with these orders;
d)The father is restrained from spending time with X, except in accordance with these orders;
e)The great grandmother is restrained from permitting either of the parents to spend time with X, except in accordance with these orders.
I do not suggest the great grandmother would do these things; she tells me she would not. But the reason for me putting in place these specific restraints is that my parenting orders will work to X’s best interest provided that the adults who love him and care for him - relevantly the grandmother and the great grandmother - are able to focus on X. No matter how tempting, they must resist the urge to either talk to this boy about the court proceedings or to put a side of the story across to him that might be adverse to somebody else.
So, for example, it would be terribly destructive for X if the great grandmother were to tell him that the mother had been hard done by because of the grandmother. That would be terribly destructive.
It would be terribly destructive if the grandmother were to be critical of the great grandmother around X’s presence.
I do not suggest either party would do that, but what I am doing is putting in place some ground rules so that everything remains as respectful and positive as it can be because I want to be clear that these orders are entirely about X’s best interest as far as I am concerned, and I know that everyone here wants what is best for him.
X has had a challenging life. Not many kids grow up without either of their parents in their house. So I do not want to see any undermining, deliberate or inadvertent, that makes life harder - or what will happen is you will all end up back here, and we will have more problems, and I do not want that for X. I certainly do not want it for him, I do not want it for the grandmother, and I do not want it for the great grandmother either.
I will order that the proceedings be removed from the list of active pending cases.
On a closing note, I wish each of you all the very best for the future. Make this work for X’s sake, and I wish him well in particular.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Betts

Associate:

Date: 7 July 2021

[2021] FCCA 1496

19 May 2021

Key Legal Topics

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Family Law

Equity & Trusts

Legal Concepts

Injunction

Remedies

Standing