Rushdie & Rushdie
[2025] FedCFamC2F 213
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rushdie & Rushdie [2025] FedCFamC2F 213
File number(s): PAC 3482 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – PARENTING – Application for the maternal grandmother to spend time with the child – best interests of the child – Orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D Cases cited: Aldridge & Keaton (2009) FLC 93-421
Oberlin & Infeld (2021) FamCAFC 66
Valentine & Lacerra and Anor [2013] FamCAFC 53
Division: Division 2 Family Law Number of paragraphs: 252 Date of hearing: 20 – 22 January 2025 Place: Parramatta Counsel for the Applicant: Mr Cataldi (Day 1 and 2)
In person (Day 2 and 3)Solicitor for the Applicant: John Stonham & Co Lawyers (Day 1 and 2) Solicitor for the First Respondent: Ms Hould of Richard Cummins Solicitor Solicitor for the Second Respondent: Mr Dib of Dib & Associates Counsel for the Independent Children's Lawyer: Mr Cairns Solicitor for the Independent Children's Lawyer: Johnson Vardanega Lawyers ORDERS
PAC 3482 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RUSHDIE
Applicant
AND: MS C RUSHDIE
First Respondent
MR KINLEY
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
20 FEBRUARY 2025
BY CONSENT ON A FINAL BASIS THE COURT ORDERS THAT:
1.The parents shall have equal shared parental responsibility to make long-term decisions regarding the child, EE born 2021, and in the exercise of that authority, the following shall apply:
1.1Advise the other parent in writing of the decision they intend to make;
1.2Invite the other parent to provide a written response in relation to the proposed decision;
1.3Schedule a time to discuss the major long-term decision; and
1.4In the event the parents are unable to make a decision jointly, they must attend a mediation and each make a genuine attempt to reach an agreement.
2.The child shall live with the mother.
3.The child shall spend time with father as agreed between the parties, and in default of agreement, each alternate week from after school (or 3:00pm if a non-school day) on Friday until Sunday 6pm (or start of school Monday).
4.In the event that father is unable to spend time with the child, he is to provide the mother with as much notice as possible, and not less than seven (7) days, except in the case of an emergency.
5.Unless in the event of an emergency, if the father is unable to give the mother seven (7) days’ notice, he is to provide the mother with a suitable proposal for alternative arrangement.
6.When the child commences school in 2027, unless otherwise between the parents in writing:
6.1The child shall continue to spend time with the father in accordance with Order 3 therein during Term time;
6.2The child shall spend time with the father in the NSW school term holidays as follows:
6.2.1During Term 1, for the first three (3) nights, with such time to commence at the conclusion of school or otherwise at 5:00pm, and to conclude at 5:00pm on the third day through the holidays;
6.2.2During Term 2, for four (4) nights, with such time to commence on the fourth day at 5:00pm until the eighth day at 5:00pm;
6.2.3During Term 3, for five (5) nights, with such time to commence at the conclusion of school or otherwise at 5:00pm, and to conclude at 5:00pm on the fifth day of the school holidays.
6.3The child shall spend time with the father in NSW school summer holidays as follows:
6.3.1The first week with the mother and every alternate week thereafter, with changeover to occur on Saturday at 5pm;
6.3.2The second week with the father and every alternate week thereafter, with changeover to occur on Saturday at 5pm.
7.From 2028 and continuing, the child shall spend time with the father as agreed between the parents in writing, and failing agreement as follows:
7.1The child shall continue to spend time with the father in accordance with Order 3 herein during Term time;
7.2The child shall spend time with the father in the NSW holidays as follows:
7.2.1During the Term 1 school holidays and in even numbered years thereafter, for the first half of the holidays, with changeover to occur on the middle Saturday at 5pm; and in odd numbered years commencing 2029, for the second half of the holidays, from the middle Saturday at 5pm until the commencement of the child’s first school day of Term 2:
7.2.2During Term 2 school holidays and in even numbered years thereafter, for the second half of the holidays, from the middle Saturday at 5pm until the commencement of the child’s first school day of Term 3; and in odd numbered years commencing 2029, for the first half of the holidays from the conclusion of the child’s school day until the middle Saturday at 5pm;
7.2.3During the Term 3 school holidays and in even numbered years thereafter, for the first half of the holidays, with changeover to occur on the middle Saturday at 5pm; and in odd numbered years commencing 2029, for the second half of the holidays, from the middle Saturday at 5pm until the commencement of the child’s first school day of Term 2:
7.2.4During the summer holidays, for the second half of the summer holidays and in even numbered years thereafter, from the middle Saturday at 5pm until the conclusion of the child’s new school year; and for the first half of the summer holidays commencing 2029 and in odd numbered years thereafter, from the conclusion of the child’s last school day of the year until the middle Saturday at 5pm.
8.In the event that the mother is unable to spend time with the child, she is to provide the father with as much notice as possible, and not less than seven (7) days, except in the case of an emergency.
8.1Unless in the event of an emergency, if the mother is unable to give the father seven (7) days’ notice, she is to provide the father with a suitable proposal for alternative arrangement.
9.In the event the father is unable to care of the child due to the father being ill, he must provide the mother with notice as soon as reasonably practicable, and the father shall use his best endeavours to make alternate arrangements to any existing plans such that he can care for the child.
10.Changeover shall occur at a location as agreed between the parents, and in default of agreement:
10.1On school days: the father (or his nominee) shall collect the child from school at the commencement of his time, and the father (or his nominee) shall return the child to the school at the end of his time.
10.2Non-school days: Changeover shall occur at the child’s residence.
11.In the event of exceptional circumstances, where the father is unable to facilitate changeover in accordance with Order 8 above, the father (or his nominee) will collect the child from the changeover location and/or bring the child to the pre-arranged location, and for this purpose the father is to provide the mother with as much notice as reasonably practical.
12.Both parents are permitted to travel with the children outside the Australia by consent and in writing subject to the following conditions, unless otherwise agreed:
12.1The parent proposing the travel (“the travelling parent”) must provide the other parent (“the non-travelling parent”) not less than two (2) months in advance of the proposed travel, unless in the event of an immediate family illness/funeral/other emergency whereby 3 days’ notice will suffice, with:
12.1.1A copy of the proposed itinerary, including proposed dates of departure and return;
12.1.2Details of all proposed accommodation arrangements whilst overseas;
12.1.3Contact details for the children whilst overseas.
12.2Such travel is only to be to countries that are a signatory to the Hague Convention.
13.For the purposes of the child’s travelling documents:
13.1Both parents shall do all things to ensure that the children hold a valid and Australian passport, and for this purpose:
13.1.1The mother will provide the father with a completed application for an Australian passport within seven (7) days from acquiring an application to renew the passport.
13.1.2The father is to return the signed application to the mother within seven (7) days of receipt.
13.2The mother shall hold the child’s passport.
13.3Both parents must sign any passport renewal applications as needed.
14.The travelling parent shall ensure that the children are available to have telephone communication with the non-travelling parent no less than three (3) times each week that the children is travelling, with the non-travelling parent to propose in writing a time and date for the telephone communication to occur.
15.In accordance with order 13 above, in the event that the father is the travelling parent, the mother shall provide the child’s passport to the father no fewer than seven (7) days prior to the intended travel, and the father shall return the children’s passport to the mother within seven (7) days of return.
16.In the event that one parent is unable to care for the children pursuant to this parenting plan for a period of more than four (4) hours, the other parent shall be given first option of care.
17.Both parents shall immediately notify the other by text message as soon as practicable if the children are seriously ill or admitted into hospital.
18.Both parents are permitted to receive from the children’s school/s any reports, notifications, photographs and invitations, and both parents are permitted to attend any school event or function to which parents are normally permitted to attend, including but not limited to parent/teacher interviews, parent days, assemblies, concerts and the like.
19.Both parents are entitled to attend events involving the children’s sporting and/or extra-curricular activities, fixtures, recitals and performances.
20.Each parent shall communicate with the other parent’s family members in a respectful manner.
21.The parents shall have children focused communications.
22.That should either parent choose to change residential address that they inform the other parent the intended address with as much notice as reasonably practicable, prior to the proposed change in writing.
23.The parents will keep each other informed of their email addresses and mobile numbers and notify the other parent of any change to those details within forty-eight (48) hours of such change occurring.
24.Each parent is restrained from:
24.1Denigrating the other parent, or allowing any member of their family to denigrate the other parent or member of the other parent’s family or household to, or in the presence or hearing of, the children;
24.2Physically disciplining the children;
24.3Exposing the children to the conflict between the parties;
24.4Exposing the children to family or domestic violence.
AND THE COURT NOTES THAT:
A.It is the parents’ intentions for EE to attend a religious primary school and a private high school.
B.If the parents are unable to reach an agreement pursuant to Order 1 herein, the parties shall attend mediation for the purposes of resolving any dispute.
AND ON A FINAL BASIS THE COURT ORDERS THAT:
25.Failing agreement in writing between the mother, the father, and the maternal grandmother, the child spend no time with the maternal grandmother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing relates to the child EE born 2021, aged 4 years (“the child”).
The applicant in these proceedings is the maternal grandmother of the child. The mother and the father of the child are the first and second respondents respectively. The maternal grandmother seeks orders for her to spend time with the child, and for various other orders and restraints to apply to each of the parents.
Pursuant to interim Orders of 2 June 2023, the orders made by Senior Judicial Registrar Tran on 18 October 2022 in relation to time between the child and the maternal grandmother were discharged pending further order.
PROPOSALS
The maternal grandmother ultimately sought parenting orders as outlined orally, inter alia, that the child spend two separate days (8.00 am to 5.00 pm) each month with herself. She stated that those days could be any day that suits the mother and father. She also sought an order that such initial time with the child progress, after two months, to overnight time, comprising a full day and night from 8.00 am to 8.00 am the next day, with such time to occur either once every month or once every second month. Again, she stated that such overnight time could be on any day. She also sought an order that the child spend time with her during the school holidays for two to three days consecutively.
The maternal grandmother sought an order that Mr NN not be permitted to be in the presence of the child, and the child should not be permitted to be taken to his property.
The maternal grandmother sought no specific orders relating to changeover.
The maternal grandmother sought a parenting order that the mother attend counselling for her “mental anxiety and mental health” caused by the maternal grandmother seeing the child, and also counselling for anger management.
The mother ultimately sought a parenting order that, failing agreement in writing between the mother, the father and the maternal grandmother, that the child spend no time with the maternal grandmother.
The mother and father each sought that the interim parenting orders made between the mother and father on 22 July 2024 be made final orders. The Court notes that the maternal grandmother did not object to those interim parenting orders being made final orders. The Court is satisfied that those orders are in the best interests of the child and will make those orders by consent.
The father sought an order that the child spend no time with the maternal grandmother.
The Independent Children’s Lawyer (“the ICL”) sought orders that the application of the maternal grandmother to spend time with the child be dismissed. The ICL did not support an order that an injunction be made against Mr NN as sought by the maternal grandmother. The ICL did not support an order that the mother engage in counselling.
MATERIAL RELIED UPON
The maternal grandmother relied upon:
(a)Her Case Outlines filed 16 and 18 July 2024;
(b)Her affidavit filed 4 June 2024;
(c)Affidavit of Mr Y filed 16 August 2024;
(d)Affidavit of Mr D filed 3 June 2024;
(e)Affidavit of Mr OO filed 3 June 2024;
(f)Affidavit of Ms PP filed 16 September 2024.
The mother relied upon:
(a)Her Case Outline filed 16 July 2024;
(b)Her affidavit filed 4 June 2024;
(c)Affidavit of Ms QQ filed 6 December 2024;
(d)Affidavit of Mr NN filed 17 December 2024;
(e)Closing written submissions dated 22 January 2025.
The father relied upon:
(a)His Case Outline filed 19 July 2024, including his proposed Orders at Annexure A to that Case Outline;
(b)His affidavit filed 5 June 2024.
The ICL relied upon:
(a)Case Outline filed 19 July 2024;
(b)Initiating Application of maternal grandmother filed 28 June 2022;
(c)Response of father to Initiating Application filed 6 October 2022;
(d)Response of mother to Initiating Application filed 7 October 2022;
(e)Family Report of Ms RR dated 29 January 2024;
(f)Affidavit of Mr OO filed 3 June 2024;
(g)Affidavit of Mr D filed 3 June 2024;
(h)Affidavit of Ms Rushdie filed 4 June 2024;
(i)Affidavit of Ms C Rushdie filed 4 June 2024;
(j)Affidavit of Mr Kinley filed 5 June 2024.
The following documents became exhibits:
(a)Exhibit A: Pages 20 to 23, 45 and 46 of the ICL’s tender bundle;
(b)Exhibit B: Pages 6 to 44, 48, 52 to 53,71 to 74, 78, 90, 113 to 119, 153, 83, 91 to 92, and 155 to 156 of the mother’s tender bundle;
(c)Exhibit C: Text messages;
(d)Exhibit D: Tender bundle of the maternal grandmother;
(e)Exhibit E: Family Report dated 29 January 2024 and Child Impact Report dated 13 February 2023;
(f)Exhibit F: Two pages of text messages;
(g)Exhibit G: Email record between the ICL and Family Report writer.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
The maternal grandmother’s evidence
The Court does not propose to set out the entirety of the maternal grandmother’s affidavit and oral evidence.
The maternal grandmother acknowledges that the mother was removed from her care when the mother was aged 14 years. She alleged that she was judged and treated according to accusations that were made against her by Mr NN, a man with whom she had had a former relationship. The maternal grandmother alleged that she did and still vehemently denies all the accusations.
The maternal grandmother stated that she initiated these proceedings after many attempts to see the child failed since the mother left her home with the child after an argument in February 2022.
The maternal grandmother stated that when the mother was a teenager she told the maternal grandmother that the maternal great-grandfather (the maternal grandmother’s father) touched her inappropriately. The maternal grandmother alleges that she asked the mother whether she wanted to make a police report to which the mother told her that she would think about it. The maternal grandmother alleges that she then called the police for guidance and was told that because the mother was 15 years old it was up to her to report it. The maternal grandmother refers to the commencement of Children’s Court proceedings in relation to the mother wherein, inter alia, she sought for the mother to return to her care. She acknowledges that the mother was made a ward of the State and commenced living with the maternal aunt. The maternal grandmother continued to care for her other children, Mr B then aged 21 and Mr D then aged 8.
The maternal grandmother stated that when the mother was about 17 years old, she called the maternal grandmother asking to come home which occurred. She alleged that upon returning home, she noticed that the mother’s mental health and behaviour had deteriorated significantly since she had last been in her care. She stated that the next two to three years were the toughest years of her life; she alleges that the mother was aggressive, rude and her language was poor.
The maternal grandmother stated that when the mother was about 23 years old, she moved out into rented accommodation in Suburb N. Later, in 2019, the mother moved back home. Thereafter the mother moved in and out of the maternal grandmother’s home several times.
In about 2019 the mother and father commenced a relationship. The maternal grandmother states that it was a volatile relationship.
The maternal grandmother stated that after the child’s birth in 2021, she provided some care for the child until February 2022, and that the child and herself had a positive relationship.
The maternal grandmother states that her relationship with the father has always been close.
The maternal grandmother alleges that Mr NN has influenced the mother in relation to her feelings towards the maternal grandmother, and alleges that it is evident that Mr NN has and is controlling the mother financially and emotionally. The maternal grandmother alleges that through the control of Mr NN, the mother is inflicting emotional abuse on the child by alienating him from the maternal grandmother in particular. In this context, the maternal grandmother alleges that Mr NN, in his former relationship with her, has a history of abuse towards her.
The maternal grandmother alleged that the mother suffered a brain injury at her birth which resulted in the mother struggling to manage her emotions including anger.
In oral evidence, the maternal grandmother was questioned in relation to her allegation that the child had suffered a brain injury at her birth. She was specifically asked when the mother was diagnosed with such a brain injury, and responded by stating that she did not know but would have to ask the mother’s former paediatrician. The maternal grandmother was asked when the mother was diagnosed with cognitive issues to which she responded, inter alia, by stating that she did not recall the exact date. Later the maternal grandmother stated that the mother was highly intelligent however she takes things literally.
The maternal grandmother acknowledged becoming frustrated when referring to doctors as “those fucking doctors” to a nurse in early 2009, following the mother attending hospital for blurred vision. The Court interpolates at this point that the nursing notes for that date refer to the maternal grandmother being very aggressive.
The maternal grandmother acknowledged that she only had about six visits with the child between about 14 November 2022 and February 2023 during the daytime. The maternal grandmother stated that she has not seen the child since mid-February 2023.
The maternal grandmother conceded that she does swear, stating that she is ex-defence force. However she alleged that she never abuses people. She alleged that she did not use abusive language in front of children. The maternal grandmother conceded she smokes but stated she doesn’t smoke around children. She stated that she gambles and leaves the house to gamble. She stated that her son Mr D cares for her mother when she goes out to gamble.
The maternal grandmother denied that she insulted the mother by saying the mother was cognitively impaired.
When it was put to the maternal grandmother that she had made up the issue of cognitive impairment in the mother, she responded by stating that the mother had had speech therapy.
An assessment record relating to interviews between the child and DOCS in early March 2009 (see pages 115 to 119 of Exhibit B), wherein the mother had stated to DOCS that she was afraid to go home to her mother due to the repercussions of making a disclosure, was brought to the maternal grandmother’s attention, to which the latter responded that she did not know. It was then put to the maternal grandmother that she did not understand why the mother was fearful of her, to which the maternal grandmother responded by stating that the mother wasn’t fearful of her. It was then put to the maternal grandmother that the mother states that to be the case, to which the maternal grandmother responded by stating the mother was lying, that the mother had lied to DOCS, and she was lying now.
It was put to the maternal grandmother that she uses abusive language towards the mother which causes the mother to be intimidated, to which the maternal grandmother denied. She denied abusing the mother, including abusive and threatening language, and imposing physical discipline upon her. It was put to the maternal grandmother that she uses abusive language in front of the children, to which the maternal grandmother responded that sometimes it slips (out) and she then apologises.
It was put to the maternal grandmother that she does not and did not listen to the mother when she says she was fearful of the maternal grandmother, to which the maternal grandmother responded by stating that the mother has never (been fearful of her).
It was put to the maternal grandmother that as a consequence of her conduct towards the mother when she was a child the mother does not trust her, to which the maternal grandmother disagreed.
The maternal grandmother stated that when the mother fell pregnant the mother and the father’s arguments escalated.
The maternal grandmother confirmed she has had no contact with the mother since February 2022.
The maternal grandmother stated that she worries about the father’s (past) drug use although he is very respectful.
The maternal grandmother stated she had no concerns regarding the child being in the care of the mother.
The maternal grandmother was asked whether the acts of DCJ officers in removing the mother from her care was necessary, to which the maternal grandmother replied that she did not accept the lies made by certain DCJ officers.
The maternal grandmother was asked what efforts she had made to repair her relationship with the mother. In response she stated, inter alia, that she had sent messages of love to the mother but that the mother never responded. She stated that the last message she sent to the mother was in June 2024.
The maternal grandmother stated that she did not understand the rationale of the Family Report relating to the recommendations that she spend no time with the child.
The maternal grandmother stated that she agrees that the mother needs to be comfortable with the child spending time with her. She agreed that the mother needs to be confident that the child is safe with her.
Mr D (son of the maternal grandmother and brother to the mother)
The Court does not propose to set out the entirety of this witness’ affidavit and oral evidence.
The witness stated that his affidavit was in support of his mother, the maternal grandmother.
The witness stated that his biological father was Mr NN. However, he stated that he was raised by Mr SS (and the maternal grandmother).
The witness stated that soon after the mother and father’s wedding their fighting began. He stated that if they were not fighting with each other, they were fighting with the maternal grandmother.
The witness stated that on the day that the mother moved out of the maternal grandmother’s home, the mother telephoned him and stated, inter alia, that she hated the maternal grandmother. He stated that later that day on arriving home the maternal grandmother told him that the mother had hit her and he saw a red mark on the maternal grandmother’s face.
The witness stated the last time he saw the mother and had communication with her was about October 2022.
The witness’s attention was drawn to an incident in late 2009 at McDonald’s at Suburb V. At this time the witness was aged almost 11 years. The witness had referred to going to McDonald’s at Suburb V in paragraph 19 of his affidavit. The witness’s attention was drawn to a written account of this event by a DCJ officer at page 74 of the mother’s tender bundle (part of Exhibit B). The witness stated that his brief account of the incident in paragraph 19 was different to the version of the incident at page 74. The Court observes that the detailed account of the incident at page 74 refers to the maternal grandmother yelling at the mother standing next to the car that the maternal grandmother and Mr D were situated in. The account also refers to the maternal grandmother saying to the mother, “you’ve caused all this drama to our family, look at what you have done to our family.” The account at page 74 also refers to the mother informing the DCJ officer a short time later that the maternal grandmother “has always been like this, she can’t see anything from anyone else’s point of view. We spoke about (the maternal grandmother’s) extreme reaction to things, as well as her reaction in court.”
The witness referred to bickering between the maternal grandmother and the mother (“mother/daughter bickering”) when he was living in the same residence with them.
Mr OO
The Court does not propose to set out the entirety of this witness’ affidavit and oral evidence.
This witness is the first cousin of the maternal grandmother on his mother’s side.
This witness stated that the maternal grandmother was never shy to express her feelings.
This witness referred to the mother moving back to live with the maternal grandmother (after the mother had been removed from the maternal grandmother’s care) and that the maternal grandmother had often stated that it was important to the mother’s well-being to accept her back unconditionally despite her (the maternal grandmother’s) personal hurt.
Ms PP
The Court does not propose to set out the entirety of this witness’ affidavit and oral evidence.
This witness is a friend of the maternal grandmother. She stated that she was giving evidence to support the maternal grandmother. She stated she works as a support worker for the maternal grandmother’s family.
In oral evidence, the witness stated that she had never seen any altercations between the mother and the maternal grandmother. She stated that she spends four hours each week working in the home of the maternal grandmother. She stated she last saw the mother in late 2021.
Mr Y
The Court does not propose to set out the entirety of this witness’ affidavit and oral evidence.
The witness’s affidavit spoke positively of the maternal grandmother as a parent.
This witness stated that he was a former boyfriend of the maternal grandmother for three years, from 2019 to about 2021.
The witness stated that he was giving evidence in court to support his affidavit and the maternal grandmother. He stated that he could not recall the last time he saw the mother. He stated that he had seen the child once maybe twice, when he was a newborn. He confirmed that he had attended family gatherings and dinners at the home of the maternal grandmother.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother stated that she had been sexually assaulted by the maternal great-grandfather when temporarily living in his home and she had told the maternal grandmother of this occurrence. The maternal grandmother told the mother that the matter should not be reported to the police but that she would deal with the matter by informing the maternal great-grandfather’s uncle about the occurrence who would shame the maternal grandfather in the community. The mother told the maternal grandmother that she was scared that the maternal great-grandfather might sexually assault her again. The maternal grandmother told the mother that the maternal great-grandfather would never come near her, and the mother trusted that the maternal grandmother would protect her from the maternal great-grandfather. Thereafter, the mother told the maternal grandmother repeatedly of her fears of the maternal great-grandfather and what he might do to her. The maternal grandmother always said to the mother that she should be brave and that she needed to be strong and show the maternal great-grandfather that it did not affect her.
However, about a month later the mother returned home from school and saw the maternal great-grandfather there. She immediately started crying and yelled at the maternal great‑grandfather to leave. At no time did the maternal grandmother ask the maternal great‑grandfather to leave, instead, she told the mother to calm down and asked her to make tea for everyone. The mother continued to cry and yell and as a result her older brother Mr B took her to her grandmother’s home where her maternal aunt used to reside. The mother told the maternal aunt about the sexual assault, and the next day the maternal aunt told the mother that she had reported the sexual assault to the mother’s school principal and that the police would interview her sometime during the day. The school principal told the mother that the maternal grandmother was at school trying to take her away. The mother heard the maternal grandmother swearing and yelling at the school staff members when they told her that she was not allowed to take the mother away.
From 2009 until 2011 the Department of Child Protection assumed care responsibilities for the mother after conducting further investigations into the conduct of the maternal great‑grandfather.
In 2011, when aged 17 years, the mother informed the Department of Child Protection that she wanted to return to the home where her brothers were as she missed them. The mother had found the experience of being placed in foster care extremely difficult. The Department of Child Protection returned the mother on the condition that the maternal great-grandfather was not part of the maternal grandmother’s life.
After the mother returned to live with the maternal grandmother, the maternal grandmother would often ask the mother to recount what the maternal great-grandfather had done to her. The mother told the maternal grandmother that this made her extremely uncomfortable and anxious, and she did not want to keep recounting what he had done to her. As a result, the maternal grandmother became angry which made the mother feel even worse.
On one occasion in 2011, because the mother would not do what the maternal grandmother demanded, she forcibly locked the mother into a room for several hours. The mother cried and screamed to be let out multiple times. She was only able to leave when a friend of the maternal grandmother’s was called to the house by the maternal grandmother.
In 2011 the mother left high school because she could not handle the stress of living with the maternal grandmother and doing her schoolwork. After about three months, the maternal grandmother insisted that the mother get a job to help pay for living expenses. As a result, the mother went to TAFE and got a certificate and got a job working in that field.
Between 2012 and 2017, the relationship between the mother and the maternal grandmother was turbulent. Despite paying rent to the maternal grandmother, the mother stayed with other family and friends to keep away from the maternal grandmother.
In 2017, at 23 years old, the mother moved out of the maternal grandmother’s home as she could no longer bear her mother’s abusive behaviour towards her.
In 2018 the mother started university full-time. She returned to live with the maternal grandmother at the end of 2019, paying rent.
In 2019 the mother commenced a relationship with the father and they underwent a religious marriage in early 2020. At the end of 2019 the father moved into the maternal grandmother’s home. The maternal grandmother requested that the mother and father pay $400 per week rent and half utilities.
After the father moved into the maternal grandmother’s home, the maternal grandmother often asked the mother and father for money to gamble. When the mother refused to give money to the maternal grandmother, the latter became angry and verbally abused the mother, often in the presence of the father.
The mother stated she has never been diagnosed with any brain damage in her life.
The mother stated that in the first half of 2020 and prior to becoming pregnant with the child, her marriage with the father was becoming more tumultuous due to their frequent arguments. She stated that the maternal grandmother interfered in their relationship.
The mother then moved back into the maternal grandmother’s home. The maternal grandmother continued to ask for money for gambling and again became abusive towards the mother when she did not provide money to her. The mother observed the maternal grandmother yelling at the father on numerous occasions when he refused to provide gambling money to maternal grandmother between about July 2020 and May 2021. In about mid 2021 the father moved out of the maternal grandmother’s home to reside with his parents. The mother and father separated for good in February 2022.
There were many occasions when the maternal grandmother would abruptly hold the child, as he tended to wake up upon her return from gambling activities early in the morning. When the mother requested that the maternal grandmother stop engaging in such conduct because it made the child cry, the maternal grandmother verbally abused and swore at the mother.
The maternal grandmother was forceful in her verbal communications with the mother as to how the mother should raise the child.
In early 2024 the child was diagnosed by a paediatric specialist with a medical condition.
On 13 February 2022 the mother left the maternal grandmother’s home to live elsewhere. On 23 February 2022 the mother attended her mother’s home with Ms QQ to collect her possessions. The maternal grandmother said to the mother, in the presence of Ms QQ, “I hope you suffer forever. I will do everything I can to get (the child) off you and I will use your brothers against you.”
The mother states that as a consequence of the maternal grandmother’s behaviour and lack of care for her as a child this has resulted in the mother “being completely betrayed by her”. She states that she cannot ever regain any familial relationship with maternal grandmother that would be beneficial to the child. She states that the maternal grandmother’s behaviour towards her as an adult has resulted in the mother having no trust in the maternal grandmother.
The mother states that between 2019 and 2022, she often saw the maternal grandmother shoving her maternal great-grandmother and throwing objects around her whilst hurling abuse and swearing at her. The mother stated she would often take over the task of showering and feeding the maternal great-grandmother because the maternal grandmother could not deal with her own mother. The mother states her belief that the maternal grandmother will not help the child if he has a medical episode in her company. The mother states that her belief comes from her lived experience with the maternal grandmother who the mother alleges neglected her health needs.
The mother states that Mr NN (to whom she refers as her father) helped her to find and rent a house. The mother and Mr NN reached an arrangement that he would support the mother until the mother completed her required university work placements and got a job and then the mother would have to start contributing to the rent and utilities.
The mother states that presently she is looking to move into a home unit because of the rental cost of the house. She states that the stress of the proceedings, and the effects of any major changes in the child’s life, at this time, could cause the child to experience a medical episode. The mother states that once the proceedings are finalised, she will then be able to start looking for a new property to rent on her own, without the need for assistance from Mr NN.
The mother states that the child goes to daycare five days a week from 7.00 am to 5:30 pm. She states that she and the father have normalised their parenting, the father pays regular child support, and she and the father have a good parenting relationship with good communication.
The mother states that since moving out of the maternal grandmother’s home, she has not seen or spoken with the maternal grandmother. She stated:
As her betrayal and continued behaviour towards me is unacceptable and causes me extreme distress. I do not wish to have anything to do with the (maternal grandmother) and forcing me to do so will harm my mental health, and vicariously cause harm to (the child).
The mother states she is happy to spend time with her brothers and their family in the future. She states however that she shall not attend anything where the maternal grandmother is present.
The mother acknowledges that her behaviour towards the maternal grandmother only changed after she returned home from foster care.
The mother states that the maternal grandmother believes that Mr NN is controlling her. The mother states however that she has successfully completed a university degree, she is living on her own, with Mr NN’s support for now, and she has a full-time job, and will be able to support herself within the coming year, once the proceedings are resolved. The mother states, therefore, that there is a positive relationship between Mr NN and herself that is not coercive or controlling, but rather which is supportive and nurturing as a parent should be. She states further that the child and herself only visit Mr NN, who lives 7 hours away in Town TT, NSW, about two or three times a year.
The mother annexes numerous documents from DOCS (annexure MCR03), relating to her removal from the care of the maternal grandmother in about 2009, and states that at a time when the mother needed the maternal grandmother the most, her mother gaslighted her, ignored her, or was not concerned with the mother’s welfare at all. The mother states that the documents within annexure MCR03 show that the maternal grandmother:
… did not believe me, says I am lying, blamed me for reporting her father to the police, and blamed me for causing problems with the family, and at no time did she acknowledge that I was hurting, suffering harm, and still being traumatised by her.
The mother states her belief that the maternal grandmother has changed her behaviour towards her, and the mother does not believe that her mother’s intention to have access to the child are positive or beneficial to the child.
The mother summarises her concerns in relation to the maternal grandmother having any time with the child at paragraph 146 of her affidavit filed 4 June 2024.
The mother was cross-examined by counsel for the maternal grandmother.
The mother stated she does not accept that the maternal grandmother loves the child. The mother stated that the reason the parties were going through this court case was not just the child but was to do with herself.
As to reasons why the mother opposed the child spending time with the maternal grandmother, the mother stated that the child has a right to a healthy upbringing and not to experience what she was exposed to. In this context, the mother referred to abuse, both physical and mental, control, and manipulation (by the maternal grandmother).
It was put to the mother that she needed help in the care of the child (when living with the maternal grandmother), to which the mother denied and stated that the child’s care had to be done her mother’s way or no way. In this context the mother stated that the maternal grandmother told her that if she didn’t use her (care) strategy, the mother would not “get beyond the baby stage.”
The mother stated that she does see a psychologist relating to anxiety which she experienced after these proceedings commenced. In this context, she stated that she didn’t know how to handle the proceedings, her work, and she was affected severely. She stated that she found seeing the psychologist helpful.
The mother was questioned as to any concern that any physical risk was posed to the child should the child spend time with the maternal grandmother. The mother stated that the maternal grandmother has told her that she is a healthcare worker, but that when it comes to medical concerns she should take the maternal grandmother’s advice rather than seeking medical advice. A short time later she stated that if the child has been cared for by the maternal grandmother, it would be the maternal grandmother’s call as to whether the child needed medical attention; it would be just what the maternal grandmother believed rather than seeking medical advice.
The mother stated, in relation to the child’s medical condition, that the child suffered a medical event in December 2023, and that currently the child experiences medical episodes.
The mother was asked whether her concerns, in relation to maternal grandmother’s care of the child, would be alleviated if the Court was to impose a condition upon the maternal grandmother spending time with the child such that the maternal grandmother had to take the child to a doctor if the child was experiencing poor health or was in distress. In reply, the mother stated that they wouldn’t be alleviated because she did not trust the maternal grandmother, she did not believe that the maternal grandmother would notify her (if the child was in poor health or distress), and she did not believe the maternal grandmother had the child’s best interests at heart. She stated that she did not know what the maternal grandmother would do in these circumstances.
The mother was asked whether her concerns, in relation to the maternal grandmother, would be alleviated if the child’s time with the maternal grandmother was to occur in a public place. The mother stated that her concerns would not be alleviated; the child did not know the maternal grandmother, and the child should not be placed in an environment which was unfamiliar to him. The mother stated that the child would not benefit in any way having a relationship with “this grandmother”.
It was put to the mother that there had been periods of hostility between herself and the maternal grandmother, to which the mother agreed.
The mother stated that she did have anger towards the maternal grandmother in relation to the case, however she stated that she is more upset and disappointed than angry.
The mother was asked why she returned to the home of the maternal grandmother in 2011. She stated that her mental health was not the best, and that she was not understanding her feelings. She was causing stress to her aunt and had run away from her home. The aunt could not handle the situation. The mother didn’t feel she was getting help in foster care where she only stayed for a few nights. She stated that she sought an environment that she was familiar with, to get the help she needed. She stated that she needed to see her brothers.
The mother told the Court that she was removed from her mother’s care by DOCS by reason of a sexual assault upon her (by the maternal great-grandfather) and because the maternal grandmother had allowed the maternal grandfather back into the home after it had happened.
The mother agreed that prior to February 2022 the child had a loving relationship with the maternal grandmother.
The mother stated that her relationship with the father improved after the child’s time with the maternal grandmother ceased.
The mother stated that the maternal grandmother had used vulgar language in front of the child.
Regarding the child’s medical condition, the mother stated that she has in-depth knowledge of how to handle the child with the medical condition. This knowledge is also held by the father. The mother stated that any divergence from the child’s current care (arrangements) might upset the child’s symptomatology.
The ICL’s counsel cross-examined the mother.
The mother was asked whether she had made any efforts to repair her relationship with the maternal grandmother, to which the mother replied that she had not. The mother stated that she and the maternal grandmother had tried to repair their relationship after the mother returned to the maternal grandmother’s care (in 2011). In this context the mother stated that they had attended counselling which only lasted 10 minutes wherein the maternal grandmother had told the counsellor how the mother had screwed up the family. The mother stated that she was left feeling that the maternal grandmother was blaming her for the difficulties in their relationship.
The mother was asked to elaborate upon her fears in relation to the child spending any time with the maternal grandmother. The mother stated that the child will be manipulated and he may be harmed. As to the child being harmed, the mother stated that the maternal grandmother was quite erratic when things were not going right for her. In this context, the mother stated that the maternal grandmother will scream, swear, and stamp her feet, no matter who was there.
The mother stated that when worrying for the child, if the child was spending time with the maternal grandmother, she would be emotionally and mentally affected.
The mother was asked what the form of her relationship with Mr NN was. The mother stated that he raised her. She stated that she does not see him often as he lives so far away. She sees him about three times a year, and that they have FaceTime regularly including with the child. The mother stated that the child sees Mr NN as his grandfather. The mother stated that Mr NN does assist with her rent. The mother was asked whether she sees Mr NN’s financial assistance as control of her, to which the mother replied that he was just being a father.
Ms QQ
The Court does not propose to set out the entirety of this witness’ affidavit and oral evidence.
This witness, a public servant, stated that she had known the mother for about 15 years and was a family friend.
The witness stated that on 21 February 2022 she received a message from the mother requesting her to call the mother as soon as possible. The mother had asked for her assistance in coming with her to the home of the maternal grandmother to collect the mother’s belongings. At this time, the witness stated she was aware of how hostile the relationship had become between the mother and the maternal grandmother. The mother had expressed her fear to the witness in being alone with the maternal grandmother due to previous experiences.
On 23 February 2022 the mother and the witness and a removalist attended the home of the maternal grandmother. The witness entered the home. She remained on the ground floor. The witness states that she heard the mother and the maternal grandmother speaking together upstairs. The witness stated she heard the maternal grandmother start to yell and swear at the mother. She heard the maternal grandmother say, again, that a sofa was staying. The witness states she could tell that the emotions of the maternal grandmother were becoming more heightened, so she walked up the stairs to advise the mother to continue gathering all her other belongings and leave the sofa for last. The witness stated that the maternal grandmother was quite emotional and loud in her tone and every time the mother walked past she would comment or swear. At this time the maternal grandmother’s mother appeared to be confused and started crying asking the maternal grandmother what was wrong.
The witness states that she observed the mother clean her room after removing her belongings. The witness states that as she and the mother were walking down the stairs she heard the maternal grandmother say (to the mother), words to the effect, “I hope your life suffers. I am going to take (the child) away from you, and I’ll use your brothers against you to do it.” On hearing this, the witness states that she intervened and said, “Okay, let’s not involve (the child) or the others, this has nothing to do with them.” The witness states that she saw that this made the mother very upset so she just told the mother to keep walking and leave the house. The witness states that as she and the mother were leaving, she could hear the maternal grandmother yelling and crying.
The witness was cross-examined by the maternal grandmother.
The witness stated that she knew that the maternal grandmother’s relationship with the mother had declined. In this context, the witness stated that the mother had told her this fact. And she stated further that she had witnessed tension (between the mother and the maternal grandmother), during, for example, a marriage celebration; she formed the view that their relationship was strained.
The witness stated that she could tell that the maternal grandmother was upset, during her visit to the home of the maternal grandmother with the mother on 23 February 2022, by the tone of voice of the maternal grandmother.
It was put to the witness that she was lying in relation to words spoken by the maternal grandmother to the mother as referred to in paragraph 10 of her affidavit, to which the witness denied.
The witness was cross-examined by the father’s solicitor.
The witness stated that she had observed prior hostile interactions between the maternal grandmother and the mother, including swearing by the maternal grandmother and denigratory comments by the maternal grandmother towards the mother such as the comment, “you’re stupid”. The witness stated this last comment had been heard by her on numerous occasions.
The witness was asked whether she had ever witnessed disputes between the mother and her siblings caused by the maternal grandmother, to which the witness replied that she had witnessed such occurrences plenty of times. The witness stated that this had normally occurred when the maternal grandmother was upset with one of the children. The witness stated that the maternal grandmother was quite an emotional person who wore her heart on her sleeve.
Counsel for the ICL cross-examined the witness.
The witness was asked to reflect upon her memory for the words used by the maternal grandmother to the mother as set out in paragraph 10 of affidavit. The witness stated that her memory was 100 per cent accurate, and that although she did not record those words anywhere at the time, she had told her sister.
In re-examination, the witness stated that she had had interactions with the maternal grandmother over a considerable period and being more than 10 to 15 occasions.
Mr NN
The Court does not propose to set out the entirety of this witness’ affidavit and oral evidence.
The witness confirmed the swearing of his affidavit filed 17 December 2024.
This witness is the biological father of the mother’s brother Mr D, and former partner of the maternal grandmother. The witness stated that he was the stepfather of the mother and step‑grandfather of the child.
The witness stated he had made his affidavit in support of the mother, with whom he has been in regular telephone contact for about the last 25 years and more frequently since the birth of the child. He stated that since the child’s birth in 2021, he has been communicating with the mother at least once every fortnight and usually weekly, usually through telephone contact.
The witness stated that in his view he has an excellent relationship with the mother. He also stated that his partner also has an excellent relationship with the mother. He referred to a visit to his rural property by the mother and child in June 2024. He stated that prior to Christmas 2024 he had been in the child’s presence about four times since the child’s birth.
The witness stated that based on his communications with the mother and his observations of the mother and the child together he knows that the mother is a devoted and caring mother to the child. He stated that on each occasion he has met with the child, the mother has presented the child well dressed and clean and the child has always been cheerful in his presence like a typical toddler.
This witness was cross-examined by the maternal grandmother.
The witness stated he had not lived in Sydney since 2006. He had not attended the mother’s wedding.
The witness stated that he had been in contact with the mother on and off all his life. He stated that, for himself, contact once each week or month is regular.
It was put to the witness that, when the mother was in an emotional state, he allowed her to return to the home of the maternal grandmother, to which the witness responded that where he was living there was no schooling.
The witness stated his belief that the maternal grandmother had physically and emotionally abused the mother. In this context, the witness stated that constant screaming at children was mental abuse. The witness stated that he had seen the maternal grandmother smack the mother’s elder brother Mr B.
The witness was asked why he did not report the maternal grandmother to DOCS or the police regarding the mother’s brothers; the witness replied that he had spoken on the phone to DOCS however they had told him that it had nothing to do with him as he was not the father of the mother’s brothers.
It was put to the witness that he had convinced the mother to move out from the home of the maternal grandmother. The witness denied that this had occurred, stating that the mother had asked him for help and the mother had told him that the maternal grandmother was abusing her.
The witness stated that he had committed money to the holding of a 21st birthday function for the mother. He stated that he had purchased a motor vehicle in a company name and gave the mother permission to use it.
The witness was asked whether he had any other biological children, to which the witness responded that he still pays child support for two girls and that he has never missed one payment.
It was put to the witness that he had been involved in about 74 incidents with the police. The witness responded by stating, inter alia, that there had been 30 incidents involving himself and the maternal grandmother, and in relation to those incidents the maternal grandmother was the perpetrator 28 times. He referred to an instance when the police had removed the maternal grandmother from his house with the neighbours having called the police.
The witness was cross-examined by the father’s solicitor.
The witness stated that he had paid for his son Mr D’s educational expenses from when he was seven years of age until he finished playing sport. The witness stated that he supported Mr D for three or four years at one point and purchased a car for him. He stated that Mr D had visited him on his property.
The ICL’s counsel cross-examined the witness.
The witness agreed that over the years he had supported the mother in different ways when she needed assistance. The witness was asked whether that support had been conditional in some way, for example, that the mother have no relationship with the maternal grandmother, to which the witness replied in the negative.
The father’s evidence
The Court does not propose to set out the entirety of the father’s affidavit filed 5 June 2024 and oral evidence.
The father stated that the maternal grandmother would frequently interfere in his relationship with the mother. He recalled occasions when the maternal grandmother had made degrading comments to the effect of, “you don’t know what you are doing”, “you’re a bad boyfriend”, and “you’re useless.” The father stated that these derogatory comments were mainly targeted at the mother rather than himself, but he felt that on many occasions he became “collateral damage”.
The father recalled occasions when the maternal grandmother had asked the mother to transfer funds from the mother and father’s savings account. When they refused because they did not have the money to give her, the maternal grandmother said words to the effect, “you don’t understand the life I live and what I need to do to feel normal.”
The father stated that he and the mother separated in mid-2021 and he moved back into his parents’ residence. Between mid-2021 and February 2022 his relationship with the mother was not amiable. He stated that he would visit the child about once per week because he felt very uncomfortable with how the maternal grandmother would “shadow supervise everything I did and because of the past experiences I had in the home”. The father stated that the mother, in March 2022, with the child, moved into a house in Suburb UU. The father stated that up until early September 2022, the child and himself were spending time together between three and five times each week.
The father stated that the maternal grandmother would gamble regularly when he and the mother were together.
The father stated that since the orders of 3 February 2023, when the orders of 18 October 2022 relating to the child spending time with the maternal grandmother were suspended, his relationship with the mother has dramatically improved. (The Court observes that those Orders were discharged pending further order by Judge Campbell on 2 June 2023).
The father stated that he usually spends time with the child every week. He states that the child’s environment has never been better. He states that he and the mother have an excellent coparenting relationship for the child. He states that he and the mother have been working together amicably in making decisions together that are in the best interests of the child. He states that this has greatly assisted in parenting and caring for the child.
The father stated he has noticed that the child’s behaviour and speech have greatly improved. He is now in a stable routine. He states that the staff of the child’s day care have also said that they have seen a significant improvement in the child’s behaviour over the past few months. He stated that he has not heard any complaints from the day care, which is a stark difference from when the child had time with the maternal grandmother. He states that since the Court’s Orders everything has been working like clockwork. He states that they are all in a stable routine and its effects are obvious on the child who is improving his behaviour and speech and seems very comfortable in the present routine.
The father states that the child has been diagnosed with a medical condition. He is on medication. The medication is subject to change according to his doctor’s appointments. He states the child needs constant supervision. He states it is crucial for the child to be supervised in a friendly and family environment to prevent overstimulation, which could result in a medical episode.
The father states he is strongly opposed to the maternal grandmother and her family having time with the child until the mother and the maternal grandmother can be amiable, as the environment will be too hostile.
The father states that the child has an amazing relationship with the paternal grandparents.
The maternal grandmother cross-examined the father.
The father stated he first met the maternal grandmother about five years ago. He stated that prior to himself moving in to live at the home of the maternal grandmother, the mother had told him that there were issues between the mother and the maternal grandmother.
It was put to the father that he and the maternal grandmother had a good relationship, to which the father responded, “yes and no”.
The father was asked what the exact reason was for he and the mother moving out of her home to live in Suburb VV (in about mid 2020). The father stated that it started to get very volatile in the home of the maternal grandmother. He stated it was a very toxic household. He said there were a lot of arguments. A short time later he acknowledged that he did have drug issues (during that time).
The father stated that during arguments, when he and the mother were living in the home of the maternal grandmother, the maternal grandmother abused himself and the mother. He stated that when there were arguments in the home, a major blow up, the maternal grandmother and the mother were crying. He stated that the whole household was absolutely chaotic. He acknowledged that he was not the best partner and husband.
The father was asked why, having moved out from the home of the maternal grandmother, he had later moved back into that home. The father stated that he does not know and he does not understand himself (why he did that). A short time later the father stated that he probably should not have moved back into the home of the maternal grandmother but he was not in a good headspace at that time. The father acknowledged that at that time he and the mother had a volatile relationship.
It was put to the father that the mother has anger issues, to which the father responded by stating that she does not have anger issues but she can get angry.
The father was asked whether he feels comfortable with the maternal grandmother spending time with the child. The father replied by stating that right now, he does not feel comfortable in that occurring. He elaborated, inter alia, by referring to himself being a parent and the child’s environment. In this context he stated that there was so much volatile hate between the maternal grandmother and the mother. He stated that right now the child was very happy. He proceeded to state that he doesn’t know many mothers who would take their daughter to court. He stated that the maternal grandmother and the mother have to create a better environment for the child. In this context he referred to the child’s medical condition.
The father was asked whether it was good for the child to spend time with the maternal grandmother. The father responded by stating that under the current circumstances, it was not. The father agreed that it would be better for the child to have contact with the maternal grandmother when he is older.
The father stated that the child has a great support network on the paternal side of his family.
The father was cross-examined by the mother’s solicitor.
The father referred to the maternal grandmother’s derogatory comments towards him and, giving context, stated that if, for example, he was having an argument with the mother, the maternal grandmother would step in with her view and escalate the argument.
The father stated that he could see no evidence of impairment in the mother, by reference to the maternal grandmother’s allegations of brain injury or cognitive impairment in the mother.
The father stated that it becomes everyone’s problem if the maternal grandmother’s emotions are heightened.
The father confirmed that the mother has a weak left arm. He stated that the mother was not capable of using force with her left arm. He stated that he had never seen the mother lift her left arm above her head with speed. He opined that he did not think it was possible for the mother to execute a backhanded strike with her left arm. He stated that he had never seen the mother hit the maternal grandmother, and he had never seen the maternal grandmother hit the mother.
The father was asked how the parenting plan between himself and the mother was going. He replied by stating that it couldn’t be better and it was amazing. He then stated he doesn’t want to change the status quo. He stated that the child was surrounded by joy and love and was learning. He stated that the child does not need these family things.
DOCS records relating to mother leaving from the care of the maternal grandmother in about 2009 (annexure MCR03 to mother’s affidavit filed 4 June 2024)
The Court does not propose to set out the entirety of these records which comprise about 123 pages.
At page 39, reference is made to the maternal grandmother becoming angry and yelling at a child protection officer.
In early April 2009 the mother is recorded as not feeling ready to talk to the maternal grandmother and as being scared of what the maternal grandmother will say to her (page 39).
In early April 2009, it is recorded that the mother does not wish to have contact with the maternal grandmother via face-to-face or phone. It records the mother being worried in regard to the Court making the decision for her to return home to the maternal grandmother (page 41).
In early April 2009, it is recorded, in relation to the mother, “interim orders to continue” and that the mother is in “family placement with the maternal aunt”.
In early April 2009 a conversation is recorded of an officer with the mother that the mother is going to attend court, and that the mother stated she did not want to see the maternal grandmother and was scared of being in the same room.
In early March 2009 a conversation is recorded of an officer with the mother wherein the mother stated that she had an eye appointment last month “but her mother cancelled it because she used all the money that her stepdad sent her for the appointment”.
In early April 2009 a conversation is recorded of an officer with the mother who stated that she will still press charges against her grandfather (page 42).
In December 2010 a conversation is recorded of an officer with the maternal grandmother, in which it is stated, inter alia, that the maternal grandmother told her version of the events that took place when the mother “came into care”. It states that the maternal grandmother was very emotional stating that this had ruined her life and her family. The records refer to the maternal grandmother stating that she would like care to be returned to her (page 45).
A file note record from about mid December 2010 refers to, inter alia, the maternal grandmother relating to an officer that she had asked the mother where she wanted to live, with the mother stating that she did not care. The maternal grandmother then related that she had asked the mother where home was, with the mother stating that she never had one (page 48).
A file note record from about mid December 2010 refers to, inter alia, the mother stating to an officer that she is presently not living with the maternal grandmother but with her grandmother. The mother related that she ran into her grandfather at the home of the maternal grandmother yesterday, with the mother stating that “her mother just does not get it.” (page 49).
A file note record from about mid December 2010 refers to, inter alia, an officer speaking to the maternal grandmother. The maternal grandmother stated that two years ago the mother was a good girl but now she is destroyed. The maternal grandmother stated to the officer that she has no idea what she went through. She stated that her life has been destroyed. She continued to say to the officer that the Department had an attitude with her before they had even met her. She said that she did not have a chance in hell at court. She claimed that she turned up at court and was ridiculed. The officer stated that she understood the maternal grandmother was feeling frustrated and angry (page 50).
A file note record for late March 2010 states, inter alia, that the mother told the officer that the times when she was at home her mother and herself would often fight which would cause her brother to become upset. The file note record states that in the mother’s most recent visit at her mother’s home she has discovered that grandfather is now living there as he has injured his hand. The mother advised that she attended the home and no one had told her that he was living there and would be there. The mother became visibly distressed during the interview when talking about how uncomfortable she felt around her grandfather and that she couldn’t understand why her mother would have him at the home. She advised that she had asked the maternal grandmother this and she stated, “because he’s still my father.” (page 67).
Family Report
The author of the Family Report dated 29 January 2024 was Ms RR, Court Child Expert. She interviewed the maternal grandmother and the mother in person, the father by video, and the maternal uncle by telephone. She conducted observations of the child with the maternal grandmother and uncle, and with the mother.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “Adults and their relationships”, the Family Report writer said:
21.[Ms Rushdie] (aged 55 years) presented as emotional, expressive and talkative. [Ms Rushdie] said that she and [Ms C Rushdie] do not communicate and that they have not had any ongoing meaningful communication since February 2022. She said that, when [EE] spent time with her, [Mr D] facilitated the changeover for [EE], which shielded [EE] from any unnecessary tension between her and [Ms C Rushdie]. [Ms Rushdie] said that she has not had any meaningful communication with [Mr Kinley] since her time with [EE] ceased.
22.A primary concern for [Ms Rushdie] is [EE’s] and [Ms C Rushdie’s] contact and relationships with [Mr NN] (date of birth and age unknown), who is [Ms C Rushdie’s] psychological father and [Mr D’s] biological father). As mentioned in the Child Impact Report, [Ms Rushie] alleged that she is a victim-survivor of coercive and controlling family violence perpetrated by [Mr NN] and she reiterated her concerns about hers, [EE’s] and [Ms C Rushdie’s] safety throughout the Family Report assessment process.
Under the heading “Evaluation”, the Family Report writer said, inter alia:
101.Whilst it is acknowledged that [Ms C Rushdie], [Mr Kinley] and [Ms Rushdie] assert that they experienced family violence perpetrated by the others, family violence does not seem to be the main current risk factor in this matter. Rather, the significant risks for [EE] appear to be related to the mother’s family of origin issues and very high conflict between [Ms C Rushdie] and [Ms Rushdie].
102.It is detrimental to a child’s development to be exposed to such high levels of conflict and it would likely cause [EE] to feel frightened to witness the conflict between his mother and grandmother. Furthermore, [EE] might internalise the conflict and feel that he is to blame for issues between [Ms C Rushdie] and [Ms Rushdie], which could cause him further emotional distress. A child is often attuned to the emotions of the important people in their lives, which impacts on their own ability to manage their own emotions as they move between the different households or be supported to emotionally co-regulate due to lack of attunement or meaningful communication between the adults. The relationships within each household, and the space between, and positive outcomes are significantly determined by either the good quality or the toxicity of each environment and how [Ms C Rushdie] and [Ms Rushdie] (and [Mr Kinley]) are attuned to [EE] and support him through this transition period. If the high conflict continues, [EE] may suffer from emotional harm, which can occur when his emotional needs are not met consistently and if he is frequently in a state of stress being worried about [Ms C Rushdie] and [Ms Rushdie] (and [Mr Kinley]). It is important that [EE] is not exposed to negative comments made by [Ms C Rushdie], [Mr Kinley] or [Ms Rushdie] about the others, and that [EE] is able to feel comfortable to tell each of them about his time with each of them.
103.It is likely that [Ms C Rushdie] and [Ms Rushdie] will continue to have trouble to engage in effective and respectful communication and lack the ability to truly promote [EE] having a meaningful relationship with the other. If [EE] is to have a meaningful relationship with [Ms Rushdie] it would most likely involve her and [Ms C Rushdie] engaging in family therapy to address deeply entrenched family of origin issues and individual therapy to help them process and resolve their experience of trauma.
…
111.[Ms Rushdie’s] proposal would allow for [EE] to spend short amounts of quality time with his grandmother and extended maternal family and maintain relationships with them. Grandparents have an important and significant role in their grandchildren’s life and development. They can provide another source of support, comfort and opportunities for their grandchildren and help support parents to ensure that the children grow and develop in order to thrive in life. [EE] could view his time with [Ms Rushdie] as exciting and something special just between him and her. In addition, he would have the opportunity to learn about his [Country WW] heritage. However, it seems that [Ms Rushdie] and [Ms C Rushdie’s] relationship would need to significantly improve as, at this point in time, there are significant issues of mistrust and an inability to communicate in a meaningful manner with the other. As this matter involves a child of such a young age and the entrenched family of origin issues, there is an added complexity to the matter and it would potentially require intensive intervention over a significant period of time to help improve the relationship between [Ms C Rushdie] and [Ms Rushdie] and therefore, it would be very difficult for [EE] to have a meaningful and consistent relationship with [Ms Rushdie].
112.The Court Child Expert considers that [Ms C Rushdie] was significantly traumatised during her childhood which she attributes to [Ms Rushdie’s] alleged poor parenting choices that has contributed to her experiencing poor mental health. The Court Child Expert considers that [Ms C Rushdie] would find it exceptionally difficult to cope with the task to communicate and facilitate or promote [EE] having a relationship with [Ms Rushdie]. In addition, if there is veracity that [Ms Rushdie] has engaged in dynamics of family violence, the negative impact that it would likely have on [Ms C Rushdie’s] parenting capacity would mean that [EE] might not receive optimal care from her if she was triggered by [EE] being required to spend time with [Ms Rushdie].
113.It is acknowledged that, if [EE] did not have a relationship with [Ms Rushdie], it could have some negative consequences for [EE], such as that it would mean that [EE] would miss out on having a relationship with his grandmother and some of his extended maternal family members. However, it is considered that the negative impact on [EE] of spending no time with [Ms Rushdie] would be outweighed by the negative impact on [EE] of him spending time with [Ms Rushdie]. In terms of brain development, prior to the age of approximately two years old, a child is not developmentally able to create narratives to their memories but rather memories are sensory based, thus [EE’s] early very limited memories of [Ms Rushdie] would seemingly be unable to be recalled and made sense of. Subsequently, if [EE] was to spend no time or limited time with [Ms Rushdie], [EE] would not be as significantly impacted as he could have been if he had been having an ongoing and consistent relationship with [Ms Rushdie].
114.This assessment does not discount the important role that [Ms Rushdie] could have in [EE’s] life, however, at this point in time it is not possible to recommend that [EE] spend any time or have any contact with [Ms Rushdie] because it is assessed that if [EE] were to spend time with [Ms Rushdie], there would likely be detrimental outcomes for [EE]. These detrimental impacts include being exposed to emotional dysregulation of both [Ms Rushdie] and [Ms C Rushdie], exposure to possible family violence and high conflict.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Family Report writer stated that the current dynamics between the maternal grandmother and the mother were not healthy for the child. In this context she referred to the child’s emotional safety.
The Family Report writer stated that the mother was the child’s primary carer and if the mother was mentally or emotionally dysregulated, and her mental health issues were triggered, that could impact the child. In this context, the Family Report writer referred to the impact upon the mother of becoming so dysregulated whether before the child spent time with the maternal grandmother, during such time, or after the child had spent time with the maternal grandmother. This specific evidence was given by the Family Report writer:
WITNESS:So from the information I’ve read and the interviews, my assessment is the family report, and it’s not solely focused on just dynamics of family violence – alleged family violence. It’s focused on the here and now at the time of the report. So primarily, like I said, the current dynamics between you and [Ms C Rushdie] are not healthy and safe for [EE], in my professional experience or assessment.
MATERNAL GRANDMOTHER: I understand. So going on that, what made [Ms C Rushdie’s] affidavits and reporting, versus my affidavits and reporting, versus [Mr D’s] affidavits and reporting; what made hers more believable than ours?
WITNESS:It’s not about believable, but it’s about the impact on [EE]. So what, I guess, could have been the underlying reason for that assessment is, like I said, [EE’s] emotional safety. So if [Ms C Rushdie] is his primary carer, right? So if he’s primarily spending majority of his time with her, if she’s mentally, emotionally dysregulated; got mental health issues, which are triggered, then that could impact [EE]. So if he was going to spend limited time with you, on balance, what’s the impact of [Ms C Rushdie] being dysregulated prior to visits, during his time with you and then after. How is that going to impact [EE]? So that was a big consideration that I had to think of.
The Family Report writer was asked to clarify her reference to family of origin issues between the mother and the paternal grandmother. In this context, she referred to the removal of the mother from the care of the maternal grandmother by DOCS, or the conflict in their relationship, as well as the allegations of family abuse between them.
The Family Report writer was questioned as to the potential emotional impact upon the child of not spending time with a grandparent. The Family Report writer acknowledged that grandparents are important in a child’s life. However, she stated that if the child was exposed to conflict or family violence such exposure had possibly a greater impact on the child’s development than not having a relationship with a grandparent.
The Family Report writer was asked whether she had considered the child spending supervised time with the maternal grandmother. The Family Report writer stated that she did not recommend this occur because she did not want the relationship between the mother and the father to be disrupted and conflict start there, because then that would subsequently impact the child. As to such possible conflict, the Family Report writer clarified that the conflict would be that caused by the mother and father not aligning or having an agreement about time with the maternal grandmother or contact with the maternal grandmother.
The Family Report writer emphasised the importance of the child, being now quite a young child, having a secure attachment to his primary carers. She stated:
MATERNAL GRANDMOTHER: So you didn’t have any investigations of the impact it would have on [EE] not to associate with cousins, or uncles, or grandparents?
WITNESS:Just general comments in the family report that it can impact [EE] negatively, not having relationships with his maternal family. However, his immediate family, that’s more significant in the long-term development for [EE]. If he doesn’t have a secure attachment relationship with his primary carers, then that can mean that he has got enduring mental health issues for the rest of his life, as opposed to having secure and loving relationships with his primary carers that can safeguard him in the future. And then when he’s older, we all know that children can reach out to people by themselves, and children often do, when they’re a certain age; then if he’s more mentally stable and secure in his primary relationships, then he has got the skills to form safe and healthy relationships later. And that was the premise of me writing in his stage of development, zero to three, it’s really important that he has that primary base, and then going out from there. At the time I wrote the family report, he was quite young still. I can’t predict the future; and so he’s four now, so that’s another stage of development.
The Family Report writer stated that from her observations of the mother and having read all the material that she read and reviewed, and having spoken to various other persons, she could not say that she acquired any information to suggest that Mr NN was influencing the mother not to allow the child to spend time with the maternal grandmother. She stated, having interviewed the mother, that she did not form the impression that the mother was being influenced by Mr NN in relation to the child spending time with the maternal grandmother.
The Family Report writer confirmed her understanding that communication was very poor between the mother and the maternal grandmother.
The Family Report writer stated that family of origin issues between the mother and the maternal grandmother were quite substantial and if they were not repaired she could not see how the child would be safe in that environment. She also stated that she was worried about how the father would be in that triangle (that is the triangle between the mother, the maternal grandmother and the father).
The Family Report writer acknowledged that the relationship between the mother and the father had had substantially improved. She confirmed that if a negative interaction between the mother and the maternal grandmother were introduced into that relationship the child could experience instability both psychologically or behaviourally; she stated that unless the mother and the maternal grandmother repaired their relationship that was a high risk.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act relating to children and the making of a parenting order.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Act does not import any presumption in favour of parents over non-parents in the determination of parenting orders: Aldridge & Keaton (2009) FLC 93-421. An application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, that is, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act): Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43].
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
The above considerations will be considered together.
A significant issue in these proceedings is the assessment of the alleged risk that the child might be exposed to conflict between the maternal grandmother and the mother if the Court was to order that the child spend time with the maternal grandmother.
Should the Court order time between the child and the maternal grandmother, even if changeover did not involve the maternal grandmother and the mother meeting each other and were effected through a third party or at a contact centre, there remains the real prospect if not a likelihood that the mother and the maternal grandmother will need to communicate with each other in relation to the child’s care, for example if the child is unwell. However, communication has not occurred between the mother and the maternal grandmother for almost three years. There exists significant hostility between them arising out of their past turbulent family history. There is a significant prospect that any communication between them would result in conflict between them, including at a time with the child might be spending time with the maternal grandmother, to which the child could be exposed, and which could well be to his emotional and physical detriment.
To give some context to the real prospect of conflict between the mother and the maternal grandmother if they seek to communicate with each other in relation to the child, the mother harbours some anger towards the maternal grandmother, and is upset and disappointed towards her by reason of her mother’s past behaviour towards herself.
A particularly significant event relates to the mother’s disclosure to the maternal grandmother in 2009 that the maternal great-grandfather had been sexually abusing her. The maternal grandmother did not make a formal complaint to the police at this time on behalf of the mother relating to the sexual abuse, but rather told the mother that she would take other action with a view to the maternal great-grandfather not coming near the mother again. The mother trusted the maternal grandmother in this respect, however about a month later she returned home from school to find the maternal great-grandfather present at the home. Thereafter DOCS were informed of the sexual abuse, Children’s Court proceedings ensued, and the mother was removed from the care of the maternal grandmother and was placed with the maternal aunt until about mid-2010.
Following the mother returning to live in the home of the maternal grandmother in about mid‑2010, and up to about 2017, there was significant verbal conflict between them, and the mother left that home in 2017 to live elsewhere. The Court finds that during this period it is likely that the maternal grandmother and the mother, on a significant number of occasions, verbally abused each other. This conflict and the verbal abuse by the maternal grandmother towards the mother has likely contributed to the mother’s present adverse feelings towards the maternal grandmother. It has likely contributed to the mother’s concerns that the maternal grandmother, if spending time with the child, will exhibit emotionally dysregulated behaviour in the presence of the child. In this context, the Court accepts the father’s evidence relating to his observations and experience of the maternal grandmother’s verbal behaviour when living in her home.
The mother remains highly distrustful of the maternal grandmother and she has no confidence that the maternal grandmother will adequately care for the child. The prospect of communication between them improving in the foreseeable future is remote.
As to physical detriment to the child if exposed to conflict between the mother and the maternal grandmother, the child suffers from a medical condition and has suffered medical episodes, and the Court accepts the mother’s evidence that the child’s last episode was in December 2023 and that he currently suffers from other medical episodes. The Court accepts the mother’s evidence that the child might suffer an episode if he has experienced a lack of sleep or is experiencing anxiety (such as when placed in a situation he is not familiar with) or is being overstimulated.
The maternal grandmother lacks significant insight as to the mother’s position and stance in these proceedings, as discussed above. The focus of the maternal grandmother’s evidence at trial was her own position and not that of the mother’s position or the mother’s perception of past historical family related events. For example, the maternal grandmother at one point in her oral evidence called the mother a liar in relation to certain matters. She focused on what she contended was the deprivation of the child having a relationship with herself. She focused on what she contended was the mother’s adverse behaviour in her home having returned there in mid-2010, after having been removed from the care of the maternal grandmother in 2009.
As to the maternal grandmother’s lack of insight as to the mother’s position, for example, at no point in the evidence of the maternal grandmother did she seek to recognise that the mother at least perceived that the maternal grandmother had not adequately sought to protect her after the mother had complained of sexual abuse by the maternal grandfather. At no point did the maternal grandmother concede that she may have herself contributed to the level of conflict within the family home through her verbal disputation with the mother and the father, and that the mother and father might reasonably hold concerns as to the child prospectively being exposed to emotional dysregulation in the maternal grandmother if spending time in her home.
In relation to the above findings as to the maternal grandmother’s adverse behaviour towards the mother, even if the Court is incorrect as to any of those findings, the fact remains, and the Court finds, that the mother honestly believes that the maternal grandmother did behave adversely towards her.
A further significant issue which arises under this s 60CC safety consideration relates to the mother’s mental health if the child is to spend time with the maternal grandmother. The Court finds that there is a significant risk that if time occurs between the child and the maternal grandmother that the mother’s mental health will deteriorate, in particular she will experience significant anxiety, worrying that the child will experience emotional or physical harm in the care of the maternal grandmother. Should the mother’s mental health deteriorate, then her parenting capacity for the child may well be adversely affected with detrimental effects upon the child.
As to emotional harm to the child, the mother is concerned that the child will be exposed to emotional dysregulation of the maternal grandmother. The Court should state, as to this concern, that there is considerable independent evidence, apart from the evidence of the mother, that the maternal grandmother is liable to suffer bouts of emotional dysregulation in the presence of the child and when engaging with other people. For example, the DOCS records in evidence reveal the maternal grandmother historically displaying emotional dysregulation including anger in her conversations with officers. And, again, the Court accepts the father’s evidence that he has observed the maternal grandmother acting in an emotionally dysregulated related manner in the past. The Court accepts the evidence of Ms QQ that on about 23 February 2022 she saw and heard the maternal grandmother acting in an emotionally dysregulated state (although the Court is not satisfied, on the balance of probabilities, that the maternal grandmother on that occasion verbally threatened to take the child away from the mother).
As to physical harm to the child, the mother is concerned that the child may not receive adequate medical care if spending time with the maternal grandmother. And further, the mother is concerned that the child, if spending time with the maternal grandmother, may himself experience stress and anxiety resulting in a medical episode which the maternal grandmother may not be able to adequately manage. The mother has suffered anxiety historically, including anxiety arising from these proceedings. She has sought psychological assistance. The Court accepts the mother’s evidence in the above contexts.
One factual dispute between the mother and the maternal grandmother at trial, which received some not insignificant attention, related to an incident on about 13 February 2022, at the home of the maternal grandmother, when a significant verbal argument ensued between them in the presence of the child. The Court refers to their respective versions of what actually transpired during this incident; in particular, the maternal grandmother alleges that she was physically hit by the mother as the mother sought to leave her home holding the child, whereas the mother alleges, to the contrary, that she was, inter alia, hit by her mother. The Court is unable to resolve the competing assault allegations relating to this incident. The Court accepts that the mother suffered from a weakened left arm at the time and could well have been physically inhibited from hitting her mother whilst holding the child, then aged 1 year. This weakened left arm tends to militate against the reliability of Mr D’s evidence, who was clearly in the camp of his mother, that he had observed a mark on his mother’s face after this incident. For the maternal grandmother’s part, again, she denied hitting the mother. What is clear from this incident, and which again involved serious verbal disputation between the maternal grandmother and the mother, was that it contributed to the mother leaving the home of the maternal grandmother, with the child, and for good. And the incident contributed to the mother’s concern that should the child spend time with the maternal grandmother that the child would be exposed to emotional dysregulation of the maternal grandmother.
The Court is of the view that should the child spend time with the maternal grandmother that there is a real chance that the present positive co-parenting relationship between the mother and father will be adversely affected. For example, any resulting adverse mental health in the mother with impacts upon her parenting capacity may adversely affect the father’s emotional position. The father himself gave persuasive evidence that he is firmly of the view that the child, who is now flourishing, should not be exposed to potential conflict within the home of the maternal grandmother, and to potential conflict between the mother and the maternal grandmother. The Court accepts the evidence of the father, who impressed the Court as an honest and reliable witness.
If not already alluded to above, at least impliedly, should the child spend time with the maternal grandmother, in view of the above discussed matters pertaining to, inter alia, the mother’s mental health and present positive coparenting relationship the father, there is a significant risk that the child’s important primary attachments to the mother and father will be jeopardised.
The Court has considered whether the above discussed safety considerations could be alleviated by the child spending supervised time with the maternal grandmother. The view of the Court is that they could not be so alleviated. It is tolerably clear that supervision within the home of the maternal grandmother by, for example, the sons of the maternal grandmother, would not alleviate the above safety concerns of the Court. In any event, the sons of the maternal grandmother did not put on evidence that they were willing to be such supervisors, and nor did any third party so indicate that they would be willing to supervise within the home of the maternal grandmother.
As to the child spending supervised time with the maternal grandmother at a contact centre, which the Court should note was not an alternative proposal of the maternal grandmother, there is a significant risk that the mother would still experience an adverse impact upon her mental health, including stress and anxiety, if such supervised time occurred, by reason of, inter alia, the child potentially himself experiencing stress and anxiety by being placed in an unfamiliar environment (with possible resultant medical episodes) with the maternal grandmother with whom he presently has no current relationship, having not spent time with her since February 2022. In any event, it would be reasonably expected that supervised time at a contact centre would not be permanent and would have an endpoint, and taking into account the above discussed safety considerations, unsupervised time thereafter between the child and the maternal grandmother would pose a significant risk of harm to the child and the mother.
The maternal grandmother contends that should the child spend time with her and the mother consequentially experience adverse mental health that the mother could simply engage psychological intervention. The Court rejects this contention. Firstly, by the time the mother engages psychological intervention, her parenting capacity for the child may already have suffered with resultant risks of harm to the child having already been experienced. Secondly, even if initial psychological intervention provided some mental health relief for the mother, in view of the mother’s significant concerns relating to the risks of harm to the child in spending time with the maternal grandmother, in relation to which the maternal grandmother does not accept, with such significant concerns reasonably grounded from her past experiences with the maternal grandmother, there is a real prospect that the mother would experience relapses in her mental health; such an outcome would not be safe for the child.
The evidence of the Family Report writer is consistent with the above views of the Court relating to the safety of the child if spending time with the maternal grandmother.
The Court regards the above discussed safety considerations as being particularly important in the determination of these parenting proceedings.
(2)(b) any views expressed by the child;
Not applicable given the tender age of the child, aged 4 years.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
As to the needs of the child, the Court refers to the Family Report, in particular, paragraphs 93 94, 96, 102, 105, 107, 111, 113, 114, of that report, including the oral evidence of the Family Report writer. This evidence included the present importance of the child’s primary attachments to the mother and father remaining strong and not being adversely affected by the consequences of the child spending time with the maternal grandmother, as discussed above under the s60CC safety considerations.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The mother and father likely have such capacities. The Court made interim consent orders between them on 22 July 2024 relating to equal shared parental responsibility, live-with, and time-with issues relating to the child.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
If it were safe for the child to spend time with the maternal grandmother, the child might well benefit from developing a relationship with her. However, as discussed by the Family Report writer, the negative impact of the child spending no time with the maternal grandmother is outweighed by the potential negative impacts on the child of him spending time with her as discussed above under the s 60CC safety considerations.
(2)(f) anything else that is relevant to the particular circumstances of the child.
It is convenient at this point to expressly deal with, inter alia, certain contentions of the maternal grandmother at trial, with the Court noting that it has considered all the contentions and submissions of the maternal grandmother.
The maternal grandmother contended that her former partner Mr NN had historically, and was presently, adversely influencing the mother to not permit the child to spend time with the maternal grandmother. The Court is not persuaded that this contention has been proven by the maternal grandmother. The Court finds that Mr NN has not, and is not presently, influencing the mother to not permit the child to spend time with the maternal grandmother. The Court accepts the evidence of Mr NN and the mother that they have a positive relationship, including their evidence that Mr NN has helpfully provided financial assistance to the mother at various times and which assistance has been unconditional. The Court should state, in this context, that the trial affidavit of the maternal grandmother contained quite limited material relating to Mr NN, when contrasted with the greater content of the cross-examination by the maternal grandmother in respect to Mr NN. In any event, the Court found the cross-examination of Mr NN by the maternal grandmother to have been significantly ineffective in establishing the maternal grandmother’s contentions against Mr NN, including her contention that Mr NN poses a risk of harm to the child. Again, the Court found Mr NN to have been a satisfactory witness who sought to give truthful evidence, and the Court accepts his evidence. And the Court should state that it finds that Mr NN does not pose any risk of harm to the child whether the child speaks to him electronically or spends time with him and the mother at his residence.
The maternal grandmother contended that there was a significant weakness in the contentions of the mother and father that she posed a significant risk of harm to the child because the mother and father, having moved out of the home of the maternal grandmother in about April 2020, moved back into her home a short time later in 2020. However, the Court accepts the mother’s evidence that during her pregnancy she started to experience problems causing mobility issues and had to be assisted by others to walk. She had been advised by medical professionals that it was a high-risk pregnancy which caused her stress and worry about potential complications. The mother and father were having relationship issues and were wanting to separate. The maternal grandmother and the paternal grandparents discussed the mother’s need for support due to these circumstances and the maternal grandmother suggested that the mother and father required supervision. These matters likely led to the mother and father returning to live in the home of the maternal grandmother.
The maternal grandmother contended that there was a further significant weakness in the contentions of the mother and father that she posed a significant risk of harm to the child because, prior to the mother and child leaving the home of the maternal grandmother in February 2022 (when the child was aged about one year of age), she had personally cared for the child in a positive manner on occasion, and at times at the request of the mother. Whilst the Court acknowledges this to have been the case, the contention overlooks the safety considerations discussed by the Court above under s 60CC.
The maternal grandmother sought an order that the child not come into the presence of Mr NN. It will not be in the best interests of the child to make such an order. The Court, again, accepts the evidence of Mr NN, and accepts the evidence of the mother in relation to Mr NN. It accepts their evidence, in this context, inter alia, that the child and the mother regularly positively communicate with Mr NN by FaceTime and have spent positive time with him at his property. Again, the Court finds that there is no risk of harm in the child communicating with Mr NN or spending time with him.
The maternal grandmother, again, sought an order that the mother attend upon a counsellor to address certain issues. It will not be in the best interests of the child to make such an order. Presently, apart from the mother experiencing anxiety in relation to having to participate in these proceedings (and which the mother addresses through consultations with a psychologist), the mother’s mental health is satisfactory. The mother, both historically and to date, has and is parenting the child most satisfactorily, and the child is progressing very well. The mother and father are coparenting the child very positively. The Court refers to its discussions above relating to the contention of the maternal grandmother addressing any mental health concerns by engaging psychological intervention. In any event, in circumstances where it will not be in the best interests of the child to spend time with the maternal grandmother, and the Court will not make such an order, there is probably no legal basis to order the mother to attend such proposed counselling because, inter alia, such a self-standing order would be untethered from any parenting order: see Oberlin & Infeld (2021) FamCAFC 66.
The Court recognises it is a very significant matter to deny a child the opportunity to develop a positive relationship with a biological grandparent. Again, in the circumstances of this case, the potential benefits to the child of developing such a relationship with the maternal grandmother are significantly outweighed by the potential risks of harm to the child if spending time with her. As alluded to in the evidence at trial, and as discussed by the Family Report writer, before it may become safe for the child to spend time with the maternal grandmother, there needs to be a real repair of the present broken relationship between the mother and the maternal grandmother. It is unlikely that such repair could occur until, inter alia, the maternal grandmother develops significant insight into the concerns and position of the mother addressed at this trial in relation to the child spending time with the maternal grandmother.
The Court is of the view that the mother’s proposed order that, failing agreement in writing between the mother, the father and the maternal grandmother, that the child spend no time with the maternal grandmother, will be an order in the best interests of the child. Such order will permit the child’s parents, if in the future they form the view that the child will be safe to spend time with the maternal grandmother, to facilitate some time.
SUMMARY
As discussed above, the Court will make final orders as between the mother and father in the same terms as the interim Orders of 22 July 2024. All parties consented to this course.
With respect to the application of the maternal grandmother, evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the child to make the following parenting order on a final basis:
25.Failing agreement in writing between the mother, the father, and the maternal grandmother, the child spend no time with the maternal grandmother.
I certify that the preceding two hundred and fifty-two (252) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 20 February 2025
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