Ryan and Indina and Anor
[2010] FamCA 1008
•11 November 2010
FAMILY COURT OF AUSTRALIA
| RYAN & INDINA AND ANOR | [2010] FamCA 1008 |
| FAMILY LAW – CHILDREN – Time with Grandparents – Section 118 of the Family Law Act 1975 – Intervention of Department of Human Services – Family Counselling |
| APPLICANT: | Ms Ryan |
| FIRST RESPONDENT: | Ms Indina |
| SECOND RESPONDENT: | Mr Felvi |
| INTERVENOR: | Department of Human Services |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Blundell & Associates |
| FILE NUMBER: | NCC | 885 | of | 2008 |
| DATE DELIVERED: | 11 November 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 1, 2 and 3 September 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Burns |
| SOLICITOR FOR THE APPLICANT: | Craney Family Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Graham |
SOLICITOR FOR THE FIRST RESPONDENT: | Winder Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | Hunter Family Law Centre |
| COUNSEL FOR THE INTERVENOR: | Mr Anderson |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor’s Office NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kelly |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Blundell & Associates |
Orders
That all previous orders in relation to M born … April 2001 (“M”) and C born … April 2002 (“C”) (together known as “the children”) are discharged.
That the mother, Ms Felvi, formerly known as Ms Indina (“the mother”), have sole parental responsibility for the children.
That except in the event of an emergency the mother shall, before making a long term decision in relation to the children or either of them, consult with the father in advance and take into account the views of the father prior to making a final decision.
That the children live with the mother.
That the children spend time with the father at such times as are agreed between the mother and the father but failing agreement at least once per week for four hours, extending to overnight when the father is well enough.
That for the purpose of spending time with the children the father will collect the children from and return the children to the home of the mother at the commencement and conclusion of his time with the children, or otherwise as agreed between the mother and the father.
That the children spend time during school terms with the paternal grandmother as follows:-
7.1From date of Orders until April 2011 on two occasions per calendar month being the second and fourth Sunday of each calendar month from 9.00 am to 4.00 pm;
7.2From May 2011 until April 2014 on one occasion only per calendar month on the second Sunday from 9.00 am to 6.00 pm;
7.3From date of Orders until January 2014:-
7.3.1for one week of the school holidays in the mid term holiday (June/July) in 2011, 2012 and 2013; and
7.3.2for one week of the Christmas school holidays in 2011/2012, 2012/2013 and 2013/2014.
That for the purpose of spending time with the children the paternal grandmother or her nominee will collect the children from and deliver them back to the McDonald’s Restaurant at X at the commencement and conclusion of each period of time unless the mother and paternal grandmother agree on another arrangement for collection and delivery.
That the paternal grandparents may attend the annual event for grandparents at the primary school which the children attend and are otherwise restrained from attending at the school except with the express written invitation of the mother to a particular event.
That the paternal grandmother is restrained from using corporal punishment of any kind on the children or either of them and she shall use her best endeavours to ensure that the paternal grandfather does not use corporal punishment of any kind or hit either of the children at any time, for any reason.
That the paternal grandmother is to keep the mother advised of her residential address and a contact phone number.
That the paternal grandmother shall ensure that at any time when the children or either of them are staying in her home each child has her own bed and does not share a bed with either of the paternal grandparents.
That the Independent Children’s Lawyer shall provide a copy of these orders to P Public School or such other school as the children attend.
That all parties are restrained from bringing the children into contact with:-
(a)Mr A Indina also known as … and as …;
(b)G Indina also known as … and …;
(c)Mr WR;
(d)Mr HN.
That pursuant to Section 64D(2) of the Family Law Act these orders may only be varied by a subsequent order of the court and not by a parenting plan.
That the mother may contact the Registrar of the Family Court at Newcastle and obtain the names of family law counsellors who could conduct counselling/ mediation for the parents and paternal grandparents and in the event that she does so, the father and the paternal grandmother and, if he wishes, the paternal grandfather, shall participate in such counselling/mediation.
That the paternal grandmother shall be and hereby is by injunction restrained from:-
(a)causing the children to attend for a medical examination except in the event of a medical emergency when the paternal grandmother shall take the child to the Emergency Department of the nearest hospital. In such event the paternal grandmother is to immediately notify the mother of the child’s attendance; and
(b)causing the children to attend upon any psychologist, psychiatrist, counsellor or like professional.
That each parent and the paternal grandmother shall be and hereby are by injunction restrained from:-
(a)consuming or being under the influence of alcohol or illicit drugs whilst having the care of the children pursuant to these orders;
(b)denigrating the other parent or family member or a member of his or her family or household to or in the presence of the children and from permitting another person to do so;
(c)discussing these proceedings or an allegation made in these proceedings with the children;
(d)questioning the children about the appropriateness of the other parent’s or paternal grandmother’s behaviour or parenting during time spent with the children.
The paternal grandmother is by injunction hereby restrained from permitting or allowing the paternal grandfather and the paternal grandfather is also by injunction hereby restrained from:-
(a)denigrating either children’s parent or family member or a member of his or her family or household to or in the presence of or hearing of the children and from permitting any other person to do so;
(b)discussing these proceedings or an allegation made in these proceedings with the children;
(c)questioning the children about the appropriateness of either parent’s or the paternal grandmother’s behaviour or parenting during time spent with the children; and
(d)attending or contacting the schools where the child or children are enrolled without the prior written authority of the mother.
NOTATIONS:
A.Both parents and the paternal grandparents are hopeful that after participating in family counselling they will be able to communicate with each other about arrangements for the children. In particular the mother and the paternal grandparents are hoping to move to an arrangement whereby the paternal grandfather collects the children from the house of the mother at the beginning of the period of time and the mother or both parents will collect the children from the home of the paternal grandparents at the conclusion of a period of time.
IT IS NOTED that publication of this judgment under the pseudonym Ryan & Indina and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 885 of 2008
| MS RYAN |
Applicant
And
| MS INDINA FELVI |
First Respondent
And
| MR FELVI |
Second Respondent
And
| DEPARTMENT OF HUMAN SERVICES |
Intervenor
REASONS FOR JUDGMENT
Background
This is an application by a paternal grandmother to spend time with her two granddaughters, M and C, aged nine and eight years of age. The Department of Human Services has been extensively involved with the children’s family throughout their lives. The Department is the Intervenor in these proceedings but is now proposing to withdraw from supervision of the family.
A report was prepared by Dr R being a full family assessment of the paternal grandmother, the paternal grandfather, the mother, the father, the two children and their two brothers, children of the mother’s earlier relationship. The paternal grandmother had previously sought a residence order for the children but changed her application in April 2010.
The Evidence
The parties relied on the following Affidavits:-
The Applicant Grandmother
(a) The paternal grandmother sworn 24 August 2010;
(b) The paternal grandfather sworn 23 August 2010 and 26 March 2009.
The First Respondent
(a)The mother sworn 18 August 2010, 1 April 2009 12 December 2008 and 2 July 2008;
The Second Respondent
(a) The father sworn 19 August 2010.
The Intervenor
(a) Ms U sworn 19 August 2010.
The parties sought the following orders:-
The Paternal Grandmother – Orders Sought
1.That all previous orders in relation to the children [M] (DOB […] April 2001) and [C] ([…] April 2002) are vacated.
2.That the children, [M] (DOB […] April 2001) and [C] ([…] April 2002) will live with the mother.
3.That the party with whom either child is living from time to time, will have sole responsibility for making decisions about the day to day care, welfare, supervision and development of each of the children.
4.That the applicant paternal grandmother will spend time and communicate with the children as follows:-
4.1for the purpose of the gazetted school term, the first weekend after school commences each term and each alternate weekend thereafter, commencing at 3pm or the conclusion of school on the Friday and concluding at 9am or the commencement of school on the Monday (or on the Tuesday if the Monday is a pupil free day);
4.2for the purpose of the school holiday period at the end of Terms 1, 2 and 3, for the first part of the school holidays commencing at 3pm or the conclusion of school on the last day of school, and concluding at 4pm on the Sunday but one week later;
4.3for the purpose of the school holiday period at the end of Term 4 each year, commencing at 4pm on first Friday after New Years Day and concluding at 4pm on the Sunday but two (2) weeks later;
4.4for the purpose of the Christmas period, commencing at 9am on 26th December and concluding at 4pm on 27th December each year;
4.5that the applicant will communicate with the children each Wednesday between 4pm and 5pm where the applicant will telephone the children on a telephone number to be provided by the mother and that the mother will ensure that the children are available to accept the telephone call and that the children are given privacy to speak on the phone;
4.6that, on the occasion of each child’s birthday, being […] and […] April, the applicant will telephone each child between 4pm and 5pm on a telephone number to be provided by the mother and the mother will ensure that the children are available to accept the telephone call and that the children are given privacy to speak on the phone.
5.That for the purpose of these orders, the applicant or paternal step grandfather will collect and return the children to their school or to the McDonald’s Restaurant at [X] as appropriate.
6.That neither party will denigrate the other, the others partner or members of that party’s family in the presence or hearing of either of the children and that each parent will use all reasonable efforts to ensure that any person over whom they have influence or control, will not denigrate the other parent, the other parent’s partner or members of that party’s family in the presence or hearing of either of the children.
7.That a copy of these orders will be sufficient authority for the applicant to obtain from the schools attended by each child from time to time, copies of school reports, news letters, photographs, circulars and the like, which are relevant to each of the children and for each party to attend school activities that parents would normally be invited to attend.
8.That each party will contact the other, as soon as practical upon the happening of any of the following:-
8.1 if either child is hospitalised;
8.2 if either child is referred to a specialist or counsellor;
8.3 if either child becomes seriously ill;
8.4 if either child is involved in a serious accident.
9.That the mother will seek a referral for both children to attend upon a children’s behavioural psychologist and will follow and conform to all treatment and therapy directions provided by the psychologist and will provide the applicant with a report on the treatment within 3 months of the date of these orders.
10.That neither party will consume alcohol in excess of the legal driving limit 24 hours prior to, or during any period when the children are with that party.
11.That neither party will consume illicit drugs during or 24 hours prior to any time that the children spend with that party and each party will use all reasonable efforts to prevent the children being brought into contact with any person who is under the influence of alcohol or illicit substances.
12.That the father must not drive any motor vehicle which contains either child.
13.That the mother must not bring either child into contact with, and the mother must not delegate responsibility for the care or supervision of either child to the following persons, namely [Mr A Indina] (AKA […] and […]), [Ms D Indina] (AKA […] and […]), [Ms I Indina] (AKA […]), [Mr G Indina] (AKA […] and […]), and [Mr WR].
14.That the mother will not relocate the children outside the Newcastle/Lake Macquarie council area without a prior order of this court.
15.That the mother is to attend upon the Family Support Service each two weeks for a period of one (1) year after these orders and will confirm to their directions in relation to counselling, courses and parenting matters, for one year after the date of these orders.
16.That the mother is hereafter prohibited from enrolling, registering or otherwise identifying either child by any other surname other than [Felvi], without a prior order of this court.
17.That, in the event that either child is absent from school, the mother will provide a copy of a Doctor’s Certificate to the applicant and the Principal of the school they attend.
18.That a copy of these orders will be sufficient authority for the applicant to present either child to a doctor in the event that either child becomes ill during any period when the children are with the applicant.
19.That a copy of these orders will be sufficient authority for Medicare cards to be issued to the applicant in respect to each child.
20.That, in the event that the mother is ill or otherwise unable to provide personal supervision or care for either child, the children will live with the applicant until such time as the mother is able to resume responsibility for the care and supervision of the children.
The Mother – Orders Sought
1.[M] born […] April 2001 and [C] born […] April 2002 live with the mother.
3.That the mother have sole parental responsibility for the children.
4.That the father spend time with the children as follows:-
a.one day per fortnight from 9am to 5pm on the 3rd Sunday; and
b.any other day contact as agreed between the mother and father.
5.That for the purpose of spending time with the children, the father will collect the children from the mother’s residence at the commencement of his time with the children and will return the children to the mother’s residence at the conclusion of his time with the children or otherwise as agreed between the mother and father.
6.The father is to spend any overnight visits with the children subject to the approval of the mother.
7.The father have liberal telephone communication with the children and the father to initiate the telephone call.
8.The paternal grandmother spend time with the children as follows:-
a.on one occasion being the second Sunday per calendar month from 9am to 5pm.
9.That for the purpose of spending time with the children, the paternal grandmother or nominee will collect the children from McDonald’s [X] at the commencement of his time with the children and at the end of time with the paternal grandmother will return the children to the mother or nominee at McDonald’s [X].
10.That each parent and the paternal grandmother are restrained from:-
a.consuming or being under the influence of alcohol or illicit drugs whilst having the care of the children pursuant to these orders;
b.denigrating the other parent or family member or a member of his or her family or household to or in the presence of the children and from or permitting another person to do so.
11.That the mother provide such consents and authorities to allow the provision to the father any medical reports or reports in relation to the children as required by any treating medical practitioner or practitioners.
12.That the mother provide such records of consents and authorities required by the school or any school that the children may attend to enable each party to receive report or reports school photographs, or any other notice or notices relating to the children.
13.That each party be and is hereby required to use all reasonable endeavours to ensure the children maintains her social, educational and sporting commitments during each period that the child is with the party.
14.That the mother does all reasonable acts to ensure that the children are able to telephone the other parties at all reasonable times at their request.
The Father – Orders Sought
1.That the children [M] born […] April 2001 and [C] born […] April 2002 live with the mother.
2.That the mother have sole parental responsibility for the children.
3.The father shall spend time with the children as follows:-
3.1at least one day per week (including overnight time) by agreement with the mother;
3.2in the event of the parties not being able to agree to the precise dates and times when the children must spend time with the father, then such time shall be from Friday 5pm until Sunday 5pm during each alternate weekend;
3.3at such other time as may be agreed upon by the mother and the father.
4.That changeovers pursuant to order 3 be implemented by agreement between the mother and the father and failing agreement by the mother or her nominee delivering the children to the home of the father, and the father delivering the children to the home of the mother at the conclusion of time spent.
5.That the paternal grandmother spend time with the children for one day per month from 10 am until 4pm as agreed with the mother and failing agreement the first Saturday of every month.
6.That changeovers pursuant to order 5 be implemented by agreement between the mother and the paternal grandmother and failing agreement by the mother or her nominee delivering the children to the home of the paternal grandmother and the paternal grandmother delivering the children to the home of the mother at the conclusion of time spent.
7.The father shall communicate with the children by telephone at all reasonable times by agreement and failing agreement, each Tuesday and Thursday between the hours of 6pm and 7pm with such phone call to be initiated by the father.
8.That all parties, without admissions, are restrained from denigrating the other parties within the hearing and presence of the children.
9.That each party must ensure that the other party is kept informed as soon as is reasonably practicable of:-
9.1any medical condition or serious illness suffered by the children;
9.2any medication that has been prescribed for the children;
9.3any specialist medical appointment with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
9.4any other matter of relevance to the welfare of the children.
The Intervener – DoHS – Orders Sought
1. That in relation to [M] born […] April 2001 and [C] born […] April 2002 (“the children”) the operation of all previous finals orders is discharged and all interim orders are discharged.
2.That the mother, [Ms Indina] (“the mother”) have sole parental responsibility for the children.
3.That except in the event of an emergency the mother shall prior to making a long term decision in relation to the children seek the father’s views and give those views proper consideration prior to making such decision.
4.That the children live with the mother.
5.That [Mr Felvi], the father, spend time with the children as follows:-
5.1a minimum of one day per fortnight from 9am to 4pm on Saturday or Sunday;
5.2any other day contact as agreed between the mother and the father.
6.That for the purpose of spending time with the children, the father will collect the children from the mother’s residence at the commencement of his time with the children and will return the children to the mother’s residence at the conclusion of his time with the children or otherwise as agreed between the mother and the father.
7.That [Ms Ryan], the paternal grandmother, spend time with the children every third weekend of each month from 9am on Saturday to 4pm on Sunday.
8.That for the purposes of implement in paragraph 7 the paternal grandmother or [the paternal grandfather] will collect the children from the mother at the McDonald’s in [X] at the commencement of time with the children and at the conclusion of time with the children, the paternal grandmother or [the paternal grandfather] will return the children to the mother at the McDonald’s in [X] or otherwise as agreed between the mother and the paternal grandmother.
9.Notwithstanding any other order herein the children are to spend Christmas Day with the mother.
10.That the paternal grandmother shall be and hereby is by injunction restrained from:
10.1causing the children to attend for a medical examination except in the event of a medical emergency when the paternal grandmother shall take the child to the Emergency Department of the nearest hospital. In such event the paternal grandmother is to notify the mother of the child’s attendance.
10.2causing the children to attend upon any psychologist, psychiatrist, counsellor or the like professional.
10.3attending or contacting the school(s) where the child or children are enrolled without the written authority of the mother.
11.That each parent and the paternal grandmother shall be and hereby are by injunction restrained from:
11.1consuming or being under the influence of illicit drugs whilst having the care of the children pursuant to these orders;
11.2denigrating the other parent or family member or a member of his or her family or household to or in the presence or hearing of the children and from permitting another person to do so;
11.3discussing these proceedings or an allegation made in these proceedings with the children;
11.4questioning the children about the appropriateness of the other parent’s or paternal grandmother’s behaviour or parenting during time spent with the children.
12.The paternal grandmother is by injunction hereby restrained form permitting or allowing [the paternal grandfather] from:
12.1denigrating either children’s parent or family member or a member of his or her family or household to or in the presence or hearing of the children and from permitting another person to do so;
12.2discussing these proceedings or an allegation made in these proceedings with the children;
12.3questioning the children about the appropriateness of either parent’s or the paternal grandmother’s behaviour or parenting during time spent with the children;
12.4attending or contacting the school(s) where the child or children are enrolled without the written authority of the mother.
The Oral Evidence
The Paternal Grandmother, Ms Ryan
The paternal grandmother was cross examined. She was unwilling to give her address in open Court and her expectation was that the parents would not learn where she and her estranged husband, the paternal grandfather, lived. The paternal grandparents have been separated under one roof for 10 years but are not divorced. The paternal grandfather has not continued as a party in the proceedings.
The paternal grandmother gave her evidence largely in a confident and clear manner, however, there was more than one occasion when she became quite agitated, tearful, raised her voice, became red in the face and took a challenging tone to counsel asking questions. She then became repetitive and inclined to make speeches. In that state, the paternal grandmother became definite and quite self righteous. On one of these occasions the paternal grandmother became intense about the allegation that the paternal grandfather had used corporal punishment on the father when he was a child. The paternal grandmother was in gaol at the time that this incident was alleged to have occurred. She stated most definitely that:-
“He had never laid a hand on those children.”
and delivered a short speech on how unfair it was for anybody to accuse her husband of such conduct. Subsequently, the paternal grandfather gave evidence that he had indeed hit the paternal grandmother’s three sons when they were children and in his care although he denied beating the father in the way that was alleged. On balance, it seems likely that the paternal grandmother would have been aware of these events and well aware that the paternal grandfather had indeed used corporal punishment on the children when he was their sole carer. This incident appears to be an example of the condition that Dr R identified in the paternal grandmother as follows:-
“[The paternal grandmother’s] presentation and history is consistent with a diagnosis of cluster B (‘dramatic erratic’) personality disorder characterised by anti-social and borderline traits contributing to her recurrent maladaptive responses to frustrations (internal and external) and [the paternal grandmother’s] intellectual limitations (concrete thinking and IQ of 79 on WAIS-R testing in 1996) and cognitive processing bias towards blaming and perceptions of being victimised.
[The paternal grandmother’s] personality disorder is the result of her childhood experiences of marked abuse and neglect. An additional way of thinking about her diagnostically is to use the concept of ‘complex PTSD’ (post traumatic stress disorder) which describes the chronic maladaptive strategies an abuse survivor develops when adapting to the trauma of abuse. For [the paternal grandmother] it accounts for her roles as both victim and victimiser.”[1]
[1] Page 21 of Dr R’s report
The paternal grandmother referred to having been disappointed with the way her interviews were conducted by Dr R. She said she felt degraded, humiliated and angry through the interview process although this was mostly in the presence of staff of Dr R and not the doctor herself.
The paternal grandmother referred to the need to have respectful relationships with her son, the father, and the mother, however, she agreed that she continued to be strongly worried about the children being put at risk in relation to drugs and strangers.
Given the history of the matter where the children have been exposed in their own home to the consequences of drug dealing and have had to be removed from their parents’ care, it is understandable that there is concern for their future. However, all parties were united in their application for the mother to have sole parental responsibility of the two girls. The paternal grandmother’s evidence suggested that although she had changed her application, she had not changed her mind about the risk to the children and she is likely to quickly identify and act on any problems she perceives, or any comment that the girls might make, that gives her concern about their care.
There was a report in evidence by Ms E, Senior Clinical Psychologist, dated 4 November 2002, prepared for the Department of Community Services. In that report on page 10, Ms E says this:-
“She ([the paternal grandmother]) was very preoccupied with the shortcomings of her son [the father] and of [the mother] whom she denigrated throughout. It was hard to get her off this topic.”
The paternal grandmother’s evidence in these proceedings resonates with that comment in that she was preoccupied with the shortcomings of her son and the mother and appeared to have very little confidence in the mother’s ability to care for the children. She conceded that she had carried a dislike for both of them “on and off” and still thought they had many shortcomings.
The paternal grandmother gave evidence that the reason for her change of application was that her granddaughter, M, had asked her whether she and her sister could live with their mother and she had felt that she must honour the children’s wishes. She agreed that if it was not for the wishes of the girls she would be seeking residence. The proposition was put to the paternal grandmother that in fact the reason was she changed her application was because it was the only basis for being able to continue to be legally represented. I do not accept that this was the sole basis for the paternal grandmother changing her application. I accept that M did raise with her grandmother her wish to remain living with her mother and that she spoke on behalf of herself and her sister. It does seem likely, however, that the paternal grandmother changed her application with the confident expectation that the mother would fail in her care of the children and that she (the paternal grandmother) would in due course make a further application for residence. There was this exchange:-
Q:“It must be hard to sit here now not proceeding with your residence application.”
A:“Yes, I hope by the grace of God that someone will supervise these girls and keep them safe.”
Since the paternal grandmother knew with certainty that there is to be no supervision of the girls in their mother’s care, this did seem to be evidence of the expectation by the paternal grandmother that residence with their mother would quickly fail.
The evidence of Ms T, psychologist, confirms that the paternal grandmother has been relentlessly critical of the mother and her son, the father. However, in this regard I accept what the paternal grandmother says, that her counsellor was there for her to talk to when she felt annoyed so she did not have to have an argument with the mother. However, the evidence is a reflection of just how critical the paternal grandmother feels of both the parents.
The paternal grandmother was asked about an incident involving M which has some significance. M was interviewed on 23 April 2010 at the local Community Service Centre about an incident involving herself and her grandfather. M stated that her grandfather had smacked her and left a hand print on her leg. She said she did not want to go back. M gave detailed information in the interview about how the smacking occurred.[2]
[2] Exhibit “ALC 1” Pages 184 to 187 inclusive annexed to the Affidavit of Ms U
Subsequently in his evidence the paternal grandfather, after he had had the opportunity to read the interview with M, said that M was 95 per cent correct about what she said, making two distinctions:-
a)that she had not ended up with her arms above her head and her legs over her grandfather’s right shoulder; and
b)that although he had smacked her, it had been in play and not out of malice.
Again, it seems highly likely that the paternal grandmother would have been aware of her husband’s version of events. In fact the child, M, described her grandmother as present, to some extent, during the incident:-
Q Ms [U]:”Who else was in the room?”
A [M]:“No one.”
Q Ms [U]:“Was Nan there?”
A [M]:“She was on the computer playing bingo.”
Q Ms [U]:“In the lounge room?”
A [M]:“In her room.”
The paternal grandmother was asked in simple terms:-
“Has [the paternal grandfather] smacked one of the girls?”
Her answer, which became an increasingly agitated and forceful response in the way I have described earlier in these Reasons, said this:-
“I have never seen [the paternal grandfather] raise a hand to any of my grandchildren. I have never seen him hit [M] and [C]. I would never sit back and hide behind someone to allow him to harm a child as someone who has been abused myself.”
The paternal grandmother was quick to identify that she was on her computer in her room at the time of the alleged incident and could easily see into the lounge room where M was with her grandfather. She said no such thing (the smacking) had happened. However, there was no explanation for why the paternal grandmother was able to remember where she was positioned and that she could see the two of them together on this particular day if there had been no event which created the memory.
Given the inconsistency between the evidence of the paternal grandparents on this point and the admission of the paternal grandfather, I find that the paternal grandfather did smack M, forcefully enough for her to feel pain and complain about the incident and to have a hand mark when she returned home. Further, on balance, I consider that the paternal grandmother must have known about it, perhaps witnessed it, and was not being truthful when she gave evidence that she had “never seen [the paternal grandfather] raise a hand to any of her grandchildren”. She certainly had the opportunity to clarify and say that she had seen the paternal grandfather hit M, or had been told of it, but she was confident that he was doing so in play. No such evidence was given.
The paternal grandmother was asked about a family report that was prepared on 17 October 2004 (Exhibit 9). Mr Q, the Legal Aid Welfare Officer who prepared the report, assessed the mother as follows:[3]-
“... possesses the current capacity and skills to effectively care for all four of her children.”
The paternal grandmother was asked about that family report. Her evidence was that she remembered it, was annoyed by it and was shocked that Mr Q had undertaken the family report assessment because he had been a facilitator in a gaol where the paternal grandmother had been an inmate. She said that she believed that Mr Q was biased and that she had tried to have him excused from doing the family report. The paternal grandmother was dismissive of the very positive statements that Mr Q made about the steps the mother had taken by completing parenting programmes to improve her parenting skills and about the quality of relationship between herself and all of her children, particularly her two older sons. I consider that this is an example of the paternal grandmother seeing herself as victimised and unwilling to consider any other point of view.
[3] Report of Mr Q dated 17 October 2004, page 14
The paternal grandmother gave evidence about her most recent period of incarceration. In October 2004 the paternal grandmother was brought before Newcastle Local Court. She was in Mulawa Prison for two days and then transferred to Emu Plains. It was apparently some months before the relevant charges of fraud were finalised. The paternal grandmother entered pleas in mid 2005. She was subsequently sentenced to five years for each of the charges, to be concurrent. The paternal grandmother served about three and a half years. She agreed that as a person who had been convicted for fraud that she was a person whose credit was in issue. However, I formed the impression that the paternal grandmother believed that having served her sentence and completed a variety of courses and programmes in gaol, she was a changed person and should be taken on her current merits despite this past involving serious dishonesty. However, I note that this is not the view that the paternal grandmother takes about the past criminal conduct of either her son, the father, or the mother. I am also satisfied that the paternal grandmother herself does not see the inconsistency in her position.
The paternal grandmother was cross examined on behalf of her son. She gave evidence about an incident in early 2005 when she was in Emu Plains Gaol. The father had brought the two girls to visit her in goal. The paternal grandmother described both girls as wanting to sit on her lap and that she was paying attention to them when the father called the girls to him. She was critical of this. The incident seemed to describe an unfortunate competition for the girls’ affections with no particular acknowledgment by the paternal grandmother that her son had arranged for the children to see her in the first place. Clearly, there was no communication between the paternal grandmother and her son, the father. In answer to the question:-
Q:“When did you last attempt to open a line of communication with [the father]?”
A:“You can only take so much of abuse.”
That was the same response in relation to a similar question about the paternal grandmother’s attempts to talk to and communicate with the mother.
The paternal grandmother conceded that longstanding conflict would impact on her grandchildren adversely and said she did not want to be responsible for her grandchildren in their teenage years becoming drug addicts. There is undoubtedly great tension in the relationship between paternal grandmother and her son, the father. He is failing in health with the inherited condition of cardiomyopathy, a disease that that has already killed his younger brother, and which also affects his older brother. His own father died of the same condition. He and his two brothers were left in the care of the paternal grandfather and in foster care extensively while the paternal grandmother was in gaol. He left home at 14 years and has had a difficult life affected by drug taking and the violence associated with criminal activity around drugs. In my view, despite the fact that the paternal grandmother said she would like nothing better than to have a good relationship with her son, her repeated comments that:-
“you had to draw the line” and “there is only so much abuse you can take”
suggests that it is unlikely that the paternal grandmother and her son will come to terms with each other.
The paternal grandmother was highly critical of the mother for sending her a text message in relation to the father’s health. This bears some analysis. A transcript of the text was annexed to the Affidavit of the paternal grandfather. It reads as follows:-
“15 June 2010 11.46 am Hey [paternal grandfather] how are you? It’s [the mother]. I’m just texting to see if you can let [the paternal grandmother] know that [the father] is going for a heart transplant next week in Sydney and he could really do with a little bit of support from his mother. I know they aren’t on talking terms but he always talks about how if his mum would just come and see him when he’s sick. He thinks no one cares about him so maybe a phone call from her would be good. He’s scared. Thanks”
The paternal grandmother apparently interpreted this text message, perhaps as a threat, but certainly as some kind of trick or attempt to upset and frighten her so in this context of repairing the relationship between herself and her son, she said that to do that:-
“You’ve got to set boundaries for both sides. If he wants me at the hospital let him text me not others.”
It is extremely difficult to see why the text was interpreted the way it was by the paternal grandmother. It appeared to be a genuine gesture by the mother to encourage the paternal grandmother to spend some time with her son who is severely ill and unlikely to recover. Given the way that message was interpreted, there does really seem minimal chance of an improvement in the relationship.
The paternal grandmother gave evidence about her attendance on Ms T. She said that she was able to see Ms T through Medicare and agreed that the nature of the therapeutic relationship was”-
“She (Ms [T]) talks to you and you talk to her.”
It seems likely that rather than being an appropriately confronting psychotherapeutic relationship, it may be more of an opportunity to let off steam and to talk. Dr R in her evidence referred to some counselling relationships where a person being counselled will simply unload or dump information on the therapist and then, to quote the doctor,:-
“... go back and do it all again.”
That is, there is no willingness to change and to confront what is difficult.
The paternal grandmother has in the past had a problem with obsessive gambling, betting on the horses, and gambling games. The paternal grandmother became quite distressed when she was challenged about whether or not she was continuing to gamble. Again, her demeanour changed, she became red in the face, her voice was higher in pitch, her tone became querulous and self righteous. She clearly felt threatened by questions about the children referring to having played Keno when in her care. Her evidence was that her son, R, had been playing Keno when the girls were present and she could not control him. The paternal grandmother asked the rhetorical question:-
“Why would she (the mother) be concerned about playing bingo?’
In my view the paternal grandmother was extremely defensive on this topic. I formed the impression that she could not understand why people were raising matters from her past when in her view the real issue was the past drug use of the mother and her son.
The paternal grandmother saw Dr S early in 2004 and his report dated 17 February 2004 came into evidence. Dr S expressed the opinion that it was quite possible that the paternal grandmother would again in the future engage in fraud related activities. This prediction proved to be correct. Accordingly, I can infer that the paternal grandmother may offend again. Hopefully she will not. If she was again convicted and spent time in goal there would be an impact on the children. However, their main source of stability will be their parents, primarily their mother.
The paternal grandmother attended a netball game in which one of the children was playing. She did not greet her son or the mother and they did not greet her. She denied the suggestion put to her on behalf of the Independent Children’s Lawyer that the children would feel stressed by their parents and herself being together at the same time yet the conflict of having to choose between their parents and their grandmother on either side of the netball field must have been obvious.
The paternal grandmother did not impress as a straightforward witness. The nature of her personality disorder appears to mean that she is unlikely to be capable of being straightforward, however, I consider that there is a degree of choice and skill in the way that the paternal grandmother answered some questions. Mr Anderson asked on behalf of the Department of Human Services about an episode the paternal grandmother had been involved in where she had advertised furniture for sale at her premises:-
Q: “You advertised furniture for sale.”
A: “No one came to my home.”
The paternal grandmother repeated this answer. On further questioning it was revealed that the furniture was in the paternal grandmother’s garage which was between four to six feet from the unit where the paternal grandmother was living. In fact people did come to the garage four to six feet away from the paternal grandmother’s home. I find that the paternal grandmother was well aware when she repeated “no one came to my home” that she was avoiding giving the evidence which was truthful and accurate.
Dr S, in his report on page 3, described the paternal grandmother as follows:-
“She’s skilfully avoided discussing certain topics.”
I find that the paternal grandmother was quite skilful and deliberate in avoiding answers that she perceived would be unhelpful to her to give.
The Paternal Step Grandfather – Mr Ryan
The paternal step grandfather Mr Ryan (“the paternal grandfather”) met the paternal grandmother in 1985. At that time she had been a widow for three years and had three young sons. The paternal grandfather gave evidence that he became aware of the paternal grandmother’s criminal history but accepted it. The paternal grandparents have been estranged for 10 years, have separate bedrooms and to a great extent lead separate lives but continue to be friends and remain living together through common interests, particularly in the grandchildren. Clearly Mr Ryan regards himself as M and C’s grandfather.
The paternal grandfather conceded that the paternal grandmother had promised him on many occasions in the past that she would not become involved in criminal fraudulent conduct but had broken those promises.
The paternal grandfather was dismissive about the text message which the mother had sent him in June 2010. In paragraph 26 of this Affidavit he says this:-
“I say that I continue to receive erratic and sometimes stupid SMS messages from [the mother].”
When questioned about this the paternal grandfather said that the text message had been stupid because it was not true about the heart transplant. My assessment of the paternal grandfather is that he is more intuitive about people than the paternal grandmother and has a better understanding of human nature. I consider that he understood that the text message from the mother to the paternal grandmother was a genuine plea for her to assist her son when he was in hospital and feeling frightened. I consider that his evidence was affected by his wish to be supportive of the paternal grandmother.
I consider that the paternal grandfather has come to understand that introducing a different perspective to the paternal grandmother is likely to be interpreted by her as criticism or a threat to her own position. I note this exchange:-
Q: “Do you talk about [the mother]?”
A: “No.”
Q: “[The paternal grandmother] says she’s a drug dealer.”
A: “Yes.”
Q:“Have you thought to say she’s the mother of the girls why don’t you back off?”
A:“No. It would be a waste of time. Nothing I say will make a difference.”
I consider that the paternal grandfather has come to terms with the paternal grandmother’s personality and understands that there is nothing about it that will change, certainly not from any actions of his.
The paternal grandfather confirmed that his relationship with the father had broken down in 2006. He was unwilling to repair the relationship because of “accusations against him”. This was a reference to the father’s concerns about C sometimes sharing the paternal grandfather’s bed and nightmares that C is reported to have had where she has called out words to the effect[4]:-
“No, Poppy, I don’t want to touch it.”
The paternal grandfather considered that there would have been no point in him seeking out the father and reassuring him that nothing untoward had happened. He agreed that the girls would like him to get on with their father. He said, and I accept, that if the two parents were now getting on well he was genuinely pleased for the girls’ sake.
[4] Affidavit of the father paragraphs 34 to 36
The paternal grandfather was cross examined on behalf of the father in relation to allegations by the father that he had smacked or belted him. He said “yes”. He denied using a strap but agreed that he had smacked both him and his brothers. He denied the allegation that he had beaten the father senseless, had left him black and blue and had used the pipe of a vacuum cleaner to hit him. He denied using anything other than his hands.
The paternal grandfather gave his evidence in a straightforward and considered way and seemed to have a reasonable understanding of family dynamics. Clearly, it had been extremely difficult for him to be left with the care of three young boys while their mother was in gaol. Their marriage ended, in the paternal grandfather’s view, in 2000/2001. He said that the two of them now lived together for convenience and because they shared the grandchildren and:-
“That’s a big thing. Twenty years together.”
He agreed, in relation to C, that she did sometimes get into bed with him, that she had started doing that in 2006. Dr R reports as follows:-
“He mentioned the allegations about abusing [C] and declared there is ‘no shred of truth’ in them. He described how [C] had stood ‘whimpering’ beside his bed one night and he suggested she get in. Since then she has come to sleep with him ‘off and on’.”
The paternal grandfather agreed that he knew that the father was concerned about that and said that the solicitor for the mother had raised a complaint about it. He said he had done what any grandparent would do confronted with a child who was scared in the middle of the night. He said “get in”. He said C had not slept in his bed since Malcolm Higgins, the solicitor for the mother, had spoken to him about the incident.
The paternal grandfather denied that M had been grounded from using her DS (games machine) for telling her parents that C was “sleeping in Poppy’s bed again”.[5] The paternal grandfather denied that that had occurred.
[5] Affidavit of the mother paragraph 79
The paternal grandfather was cross examined about an incident raised by the mother[6] where M had said to her:-
“[The paternal grandfather] took us to [the local] Pool and pushed and held me under the water. I was so scared and I was the only one he did it to. I was very scared.”
The paternal grandfather denied holding M under the water but agreed that he had taken the girls swimming to the Pool. He said, somewhat bitterly, that he does not go in the water anymore with the clear inference that he had stopped doing so for fear of complaints.
[6] Affidavit of the mother paragraph 101
The paternal grandfather read for the first time the interview that had been conducted with M at school on 28 April 2010 about the smacking incident. He said that M was 95 per cent correct about what had happened but said that they were playing at the time. He denied that M ended up with her legs over her right shoulder or was in any awkward position such as that. I accept that the paternal grandfather was playing a game with M and that he smacked her in that contest, however, I consider that M did not perceive the incident as a game. It seems likely that this game had happened previously. I quote the following passage:-[7]
[7] Annexure to Ms U’s Affidavit page 184
“[Ms U] said: What do you like about Pop?
[M] said:Takes us to the pool. Thing I don’t like about pop is he pretends to play with us but he smacks us.
[Ms U[ said: Tell me more about that.
[M] said: I had his hand print on my leg.
[Ms U] said: When did that happen?
[M] said:Last time I was there, that’s why I don’t wanna go back. Nanna says stop crying.
[Ms U] said: Does pop say anything?
[M] said: He says that he’s playing around, smacking us.
[Ms U] said: Where did it happen?
[M] said: In the lounge room.”
Then further on:-[8]
[8] Annexure to Ms U’s Affidavit page 186
“[Ms U] said: Has Poppy ever smacked you before?
[M] said: His handprints never been on my leg before.
[Ms U] said: Has he smacked you before?
[M] said: Yep.
[Ms U] said: How many times has he smacked you before?
[Ms U] said: Do you remember?
[M] said: Nup.
[Ms U] said:So go back to the start and tell me what happened when he smacked you.
[M] said:I was walking and he pulled me on his lap. He was playing a game where he tips me up and when I got up he smacked me.
[Ms U] said: How did he grab you?
[M] said:He put his leg out (demonstrated sticking right leg out from sitting position) and grabbed my arms.
[Ms U] said: When he tipped you up where were your arms and legs?
[M] said:My arms were here (demonstrated arms above her head) and my legs were like this (demonstrated legs over pop’s right shoulder).
[Ms U] said: Then what happened?
[M] said:He just smacked then nothing happened, went in my room and watched TV.
M referred to this episode as “mean” and “it was hurting”. In my view, M did not consider that it was a game but rather conduct from her grandfather that she has experienced before and does not enjoy and on this occasion it had been more painful than in the past. I note M’s comment that nanny says “stop crying”. I formed the impression that the paternal grandfather had been unaware of what a detailed statement M had given that he felt rather uncomfortable about the whole matter. He may have been unaware that the paternal grandmother had denied that any such incident had occurred. I am unable to make a finding about that.
In my view it is a matter for concern that smacking and holding under the water are incidents alleged by M whilst C was said to be spending time in the paternal grandfather’s bed, “keeping that spot warm for nanny” (a reference to the paternal grandmother). This difference of treatment is likely to cause uneasiness between the sisters about their place in their grandfather’s affections. I have no doubt that the paternal grandfather regards M and C as his granddaughters and that he loves them both. The paternal grandfather agreed that he would not use corporal punishment in future and the incident itself is certainly not sufficient to disqualify the paternal grandfather from spending time with his step granddaughters, however, it is of great concern that the paternal grandmother denied it and that there is at least a reference in M’s statement to her grandmother telling her to stop crying about it. I am unable to find that the paternal grandmother knew about the incident and was deliberately untruthful but, on balance, it must be the case that she knew something had happened to upset M but was not prepared to take the child’s side.
The paternal grandfather was fair minded in his assessment of the parents. He was asked whether he thought they were still involved with drugs and said:-
“Probably not. They’ve learned their lesson.”
He quite understandably referred to worries about the mother’s previous de facto partner who had been violent and involved with drugs. Again, the paternal grandfather was fair minded about the future. He was asked what he would do if M made another reference to seeing white powder in her mother’s house. He said he would ring the mother and ask her about it and in the event that he reported the matter to authorities and nothing happened he would just have to accept that either M had lied to him or it did not happen. If he had gone through the right channels he would accept that he had done what he could.
I consider that there is an independent benefit to the children in spending time with the paternal grandfather and I feel confident that the paternal grandfather would let the mother know if the children were sick or in difficulty. He freely conceded that it was a proper position for the mother to take to know where her children were at all times and that provided his address was not passed on to third parties he was happy for the mother to have it.
The paternal grandfather said he would participate in mediation or family counselling, as all the parties did. He also expressed a willingness, which I accept was genuine, to be involved in changeovers, house to house, where he would drive the children home to the mother’s home at the end of the period of time.
The Mother – Ms Felvi, formerly Indina
The mother gave her evidence in a sturdy unemotional way. She has very recently commenced a Diploma of Counselling course which will take two years. She has her four children living with her: B, who turned 16 years in October 2010, D who will be 13 years in January 2011 and M and C, the subject children. It is a credit to the mother that the children are doing as well as they are, especially given the fact that her first child was born when she was 14 years old and that both her own parents died many years ago.
The mother conceded that her son, D, had had two accidental overdoses as a very young child: one on amphetamines and one on a prescribed drug and had been hospitalised. The mother was part of the drug scene, she says limited to phone calls, for which she received a one year suspended sentence. There is nothing to suggest otherwise, other than allegations by the paternal grandmother. A most significant factor is that all parties agreed she should have sole parental responsibility.
The mother was confronted with a list of people, compiled by the paternal grandmother, with whom the girls should not be brought in contact. She agreed that Mr A Indina, Mr G Indina, Mr WR and Mr HN were all people who she would not want the children coming into contact with.
The mother accepted that the incident with M and the paternal grandfather was play but she stated that M was concerned about it. The mother fairly conceded that an order that restrained smacking and to use the mother’s words:-
“including mucking around smacking”
would address her concerns. However, the mother continued to be worried about the situation with C sharing the paternal grandfather’s bed. The mother said:-
“He shouldn’t have left himself open to these kind of allegations.”
The mother did not make allegations of sexual misconduct against the grandfather. She raised her concerns she was worried about C’s nightmares. After some discussion, the father went to the school and spoke to the school’s counsellor and the matter went to the Department of Community Services. The mother simply stated that C had not made any complaint to her but that the girls were saying they did not want to go and see their grandparents. Of course in October 2009 C was saying that she did want to see her grandparents, not less than two weekends a month.[9] The mother was impressive in this regard. She had her doubts and worries but she was monitoring the situation and had taken steps to ensure that C was alright.
[9] Report of Dr R, page 8
The mother gave evidence that she thought there was a benefit to the children in their grandparents attending on Grandparents’ Day but for every other occasion she expressed the view that that should be left up to the parents. In the context of the mother having sole parental responsibility, this is an understandable point of view. The mother was strongly opposed to the grandparents coming to the school but she regarded as workable home to home contact changeovers with herself, and the father sitting next to her in the car, collecting and delivering with the paternal grandfather.
The mother conceded that the paternal grandmother looked after the girls, bathed them, fed them and dressed them. She did not see their physical care as the issue. She said this:-
“I am concerned about people going to her house and threatening [the paternal grandmother], the families of people she’s ripped off. I am concerned about [the paternal grandfather] smacking the girls, [the paternal grandmother’s] mental health issues and [the paternal grandmother’s] Parkinson’s disease.”
The mother was asked questions by the solicitor for the father. She said that the girls knew about their father’s health and that M knew the procedure in the event that her father became unwell while they were visiting him or staying with him. The mother said that she considered the father to be a good father and that he was welcome to come to her home if he was too unwell to have the girls to stay with him.
The mother was asked questions on behalf of the Department of Human Services and she expanded her concerns in response to include the fact that C had been sleeping in her grandfather’s bed and that the paternal grandmother was not a good role model:-
“She could be re-offending right now.”
The mother’s evidence suggested that M, in particular, was protesting visits with her grandparents and that the mother had made efforts to ensure that the children attended, including bribing them to go by promising trips to McDonald’s or gifts of money. The mother said that C did not complain about visiting her grandparents as M did.
The mother’s preference was for changeovers to continue at the McDonald’s Restaurant in X until she and the father and the paternal grandmother were on “some sort of talking terms”. Her reasons for this were thoughtful:-
“there are cameras there, it is a public place and there could be no abuse in front of the girls.”
The father – Mr Felvi
The father was present throughout the proceedings although clearly unwell and apparently sometimes in pain. He is not employed now and is in poor health. He suffers from hereditary dilated cardiomyopathy. As previously stated, this illness also affected his own father and his late brother. The father has been fitted with a pacemaker and defibrillator. He takes an extensive range of prescription medications and has been hospitalised on 40 occasions since early 2009.
Fortunately for the children, the relationship between the father and the mother has greatly improved to the extent that the mother is caring for him and there is a supportive friendship between the two. Neither party anticipates any difficulties in agreeing on care arrangements for the girls between themselves.
The father was asked his response to the evidence of the paternal grandfather about his allegations of violent punishment inflicted on him by the paternal grandfather as a boy. He said he was disgusted by what he had heard from the paternal grandfather, that he went to religious school and that they might have records there. He described himself as having had bruises all down his legs and when he was old enough to stand up for himself the smacking from the paternal grandfather had stopped. He said he had got out of home at 14 years.
He confirmed that his medical evidence was to the effect that he was fit to drive and he currently holds a licence.
The father expressed a willingness to undertake family counselling with the mother and with his own mother but expressed reservations that it would lead to anywhere positive. He thought it would be great for his daughters but doubted that the relationship with his mother and stepfather could be repaired. He agreed he would like his mother’s support:-
“I’ve got no one. I’m dying. I’ve only got [the children’s mother].”
but it did not seem likely. This view was confirmed to a great extent by the oral evidence of Dr R whose view was that the intractable nature of the personality disorder the paternal grandmother suffers from would need a different therapeutic approach to be remediated and that that change would need to take place before relationships could repair.
The father in his own way expressed strong concern about the evidence he had heard in relation to the incident with M and the paternal grandfather. The question was put that he had heard the paternal grandfather’s evidence that the incident had simply been a game. The father answered:-
“Not a nice game. They don’t do that at Child Care, that kind of game. I don’t think it was a game.”
Overall the evidence of the father was a man struggling with the fact that he may not be available to assist his daughters as they grow up. He agreed that he had been most concerned when the mother had been in a relationship with a man who had been selling drugs from the house. He had been worried. I formed the impression that he loved his daughters and that his most significant relationships were with them and their mother. In relation to his own mother the father said:-
“I’m trying not to say no time. They should have some time. They’ve grown up a little in their care (referring to the paternal grandparents) so they should have some time. My kids have still got a feeling there for their grandparents.”
I find that the father has a genuine concern for his daughters and was making a real effort to separate out his own feelings about his treatment at the hands of his mother and step father from the different relationship that M and C have had with them.
District Officer – Ms U
Ms U conceded that the Department did not suspend contact between the children and their paternal grandparents after becoming aware of the allegation of C sleeping in her grandfather’s bed and of M being smacked, so as to leave a mark, by her grandfather. Ms U agreed that the Department would not support an application for any time to be spent if they considered that there was a risk to the children.
Dr R
Dr R gave evidence by phone. She had been supplied with the reports of Ms E from 2002, Dr S from 2004 and Mr Q, Reg 8 counsellor, from 2004. Dr R commented on the continuity of diagnosis in terms of the paternal grandmother’s personality. Dr R said that she thought that the Orders for contact were both to be a reflection of the relationship the children had had with their paternal grandparents in the past and to provide a break for the mother who was a single parent as well as a compromised parent due to her own childhood experience. The proposition was put to Dr R that the grandmother had mounted applications whilst anticipating a pending custodial sentence and that part of her motivation could have been to gain some support for a lesser sentence. Dr R considered that that was a possibility and observed that:-
“[the paternal grandmother] will dismiss everyone’s opinions that don’t resonate with her own. Self assurance about the righteousness of her way of thinking is part of a cluster of symptoms of her personality which has anti-social and borderline traits.”
Dr R also said that for such a condition the current view is that cognitive therapy is insufficient to address such a personality disorder. Dialectical Behaviour Therapy is currently used but there is a lengthy period involved in such treatment and the paternal grandmother was likely to be resistant to that kind of therapy. A patient needs to be willing to participate and willing to tell a therapist everything that needs to be told and Dr R was doubtful that that was the relationship between the paternal grandmother and Ms T. Dr R said that making characterological changes is a long term process.
When asked about the significance of the paternal grandmother referring to the mother’s drug use when talking to Ms T, this doctor said that this would be concerning because it would really be a reflection of the grandmother’s negativity to the mother and the likelihood that she would continue to raise complaints about her to third parties and perhaps in front of the children. However, Dr R said she was not concerned about such comments although they could be manipulative, it was legitimate to express concerns to a therapist.
In general terms Dr R expressed the view that denigration of children, smacking and emotional ignoring is all toxic for the children’s development. If the Court finds any action of a toxic nature has been occurring during the time spent by the children with the grandparents, then the amount of time should be reduced. However, in her view there was a loving playful relationship between the children and the paternal grandparents:-
“Couples can make up for each other’s shortfalls.”
I take that to mean that because there would be two adults present who could balance each other in terms of their strengths and weaknesses the children would continue to benefit from some time with the grandparents. I accept that view. Dr R was most definite in her evidence that there:-
“There was no way the [the paternal grandparents] should be (in the role of) parents. The children need to be with their own parents. That relationship needs to be as good as it can be given that the children have come from behind.”
I agree with Dr R’s view that the nature of the paternal grandmother’s application is that of a non-resident parent rather than that of a grandparent. I accept the doctor’s view that it is most important for the children to be clear who their parents are and what their role is. It was also very important that there should be no further litigation about the children.
Some time was taken with Dr R giving evidence on “splitting” on what the doctor described as a “primitive defence”. “Primitive” because it is used in young people and gradually abandoned with maturity. An example of splitting is contained in Dr R’s report at page 5. Apparently the grandmother had drawn two girls without hair and became upset because M thought that she had drawn pigs. The grandmother then prompted C to confirm that the figures looked like girls. When she did, the grandmother then told M that C had the opinion that they looked like girls. This effectively “split” the girls.
This behaviour method uses one person against another rather than dealing directly. Dr R described this method of “splitting” as maladaptive and it would be better for the children not to learn it. The doctor said the paternal grandmother had a moderately severe personality disorder, such disorder being a disadvantage to children in her care as it had been to her own children. The doctor expressed the view that even if the children were in the future taken back into care they should not have the paternal grandparents as parents although the paternal grandparental relationship would be helpful.
A proposition was put to Dr R that her assessment being short, one to one and a half hours, and busy, was likely to be less useful than the objective observations of the worker who facilitated contact and provided reports, that is when the children were outside a professional environment and in the homes of the respective parents and grandparents. Dr R unreservedly disagreed. She said that professional assessments pick up on how adults respond in more difficult circumstances compared to times when everyone is relaxed and easy in their own home. I accept that evidence.
In further explaining the nature of the grandmother’s personality disorder, the doctor said that the paternal grandmother loses her child focus when she perceives a threat. She then comes oriented towards that perceived threat and loses her focus on the children. She said as long as she was not with someone who represented a threat she would be fine with the children. It was Dr R’s firm view that the grandmother should keep away from the legal system which is full of threat. She needs to disengage from the legal system and re-invest her energy into being a grandparent and into some other reason for living rather than pursuing litigation.
Asked about holiday time, the doctor said she thought a week of holidays once or twice per year with the children and their grandparents would be good if everyone was getting on a bit better. It seems to me that the ‘if’ is a very significant qualification.
The Law
All parties agree that the mother should have sole parental responsibility for the children in all respects. The mother and the father both give evidence that they will be able to cooperate with each other in decision making. The father does not have the capacity to take an equal shared parental responsibility. He is, however, doing all that he can to look after the children and meet his obligations to them.
I must consider the sections of Section 60CC to determine what is in the children’s best interests.
Section 60CC(2)(a) The benefit to the children of having a meaningful relationship with both of their parents
The children have a meaningful relationship with both of their parents. The mother is supportive of the father and this is essential for the girls to maintain and develop their relationship with their father for as long as his health allows him to spend time with them.
Section 60CC(2)(b) The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The children need to be protected to the greatest extent possible from physical or psychological harm.
Section 60CC(3)(a) Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
Both children, but particularly M, are currently expressing a view that they do not want to see their grandparents. In August 2009 both children were saying that they wanted to see their grandmother. C had said three weekends a month which she later amended to two. M had said one weekend a month. M is now saying she does not want to visit her grandparents. However, it seems likely that the incident in April 2010 where M was smacked by her grandfather during the course of a game has affected her attitude to both grandparents. M is a nine year old girl with developing maturity. C is eight years old and may be a little less mature than her sister and her peers.
Section 60CC(3)(b) The nature of the relationship of the children with:
(i) each of their parents; and
(ii) other persons (including any grandparent or other relative of the child)
Each child currently has a strong relationship with each parent.
Both children have a strong relationship with their brothers, B and D and have an affectionate relationship with their paternal grandparents although M is currently wary, especially of the paternal grandfather. The paternal grandparents have been full time carers for the children in the past and provided them at that time with a stability that was unavailable in the home of either of the parents. This is a strong connection for the children with their paternal grandparents.
Section 60CC(3)(c) The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
Each of the parents has a willingness to facilitate an ongoing relationship between the children and the other parent. The mother is being appropriately sensitive to the children’s need to spend time with their father.
Section 60CC(3)(d) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
a) either of their parents; or
b)any other child, or other person (including any grandparent or other relative of the children), with whom they have been living
There will be an adverse effect on both children if they are separated from their parents for any significant periods of time. Separation of the children from their mother each alternate weekend, effectively from Friday morning until Monday evening and for half of all school holidays would be too much and would greatly increase the anxiety of the children, particularly M. The children may think that they are at risk of losing their relationship with their mother and father if they were spending that amount of time away from them.
The children have an important relationship with their brothers. The relationship between the four siblings should be supported. The effect on the children of a reduction in time between themselves and the paternal grandparents may be beneficial, that is, they will understand that their grandparents are just that: grandparents who love them, who take them out for pleasant social activities and then return them to their mother. This reduction in time will hopefully give them the comfortable feeling that their real life is at home with their mother and brothers and with the father on a regular basis.
Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
The parents have access to a car. The father is a licensed driver. The mother has her L plates and the father accompanies her in the car. The paternal grandparents have access to a car and the grandfather is willing and able to facilitate changeovers.
Section 60CC(3)(f) The capacity of the children’s parents and any other person (including any grandparent or other relative of the children); to provide for the needs of the children, including emotional and intellectual needs
Each of the child’s parents has had a difficult and damaging childhood. The mother had her first child when she was 14 years old and has had five children altogether, one of whom, a son, died of cot death at about three months. Her own parents are dead. She has had more than one violent and abusive relationship and she was exposed, even if peripherally, to criminal elements in drug dealing. She has been convicted of an offence arising from association with drugs.
The father lost his own father when he was approximately two or three years of age. His mother was subsequently in gaol for extended periods of time. He was cared for by his stepfather, the paternal grandfather, Mr Ryan, and was for some periods in care. His memory of his childhood is a bitter one and he gave evidence that he escaped from it at 14 years, as soon as he could stand up for himself. He has been extensively involved with drugs and now suffers from a life threatening illness.
Despite this background and all of the difficulties, each parent genuinely loves their children and has tried to act in their interests. Until this year, there has been a commitment by both parents, but more particularly the mother, to learning greater parenting skills and to being involved with the assistance that the local Family Centre can give. The father’s illness has made these activities more difficult.
The paternal grandmother has a capacity to meet the needs of the children, certainly their educational needs, however, she has a moderately severe personality disorder which causes her to lose child focus when she perceives a threat. Someone taking a contrary position to her own, or dealing with a situation in a way she disapproves of, is perceived as a threat. The grandmother then loses her child focus and concentrates on addressing the perceived threat. This means that the children can go unnoticed in their needs. A clear example of this is the incident involving M where I have found that the grandmother knew of the game played by the paternal grandfather with M that led to her being smacked and perceiving that she had been meanly treated. In her oral evidence, the grandmother treated this allegation, which the paternal grandfather himself confirmed, as a threat and reacted in the witness box by denying the facts and becoming increasingly agitated and self righteous about the unfairness of such an allegation having been made. Both children are likely to retreat from their grandmother when she is in that mode.
Section 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their parents, and any other characteristics of the children that the court thinks are relevant
The children are girls aged nine and eight respectively. Dr R assessed M as a concerning eight year old because of her past disrupted history with current difficulties being peer problems, oppositionality with her mother, mistrustful relationships with adults and engagement in the dramas of her neighbourhood and family. M is anxious about separations. She has average intelligence and a personable nature when she chooses. She is at risk of having an anti-social nature. Dr R assessed C, then aged seven years, as also concerning, with the same adverse early experiences and losing her mother as her main caretaker at six weeks old. She does rather better than her sister by using academic work to develop a positive sense of herself. She has some socialisation issues.
Section 60CC(3)(h) If the children are Aboriginal or Torres Strait Islander
Not applicable.
Section 60CC(3)(i) The attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents
The mother has objectively done well to keep her children together to the extent that she has. She has provided a home for the children and, in particular, her two sons throughout their life. She became involved in the drug culture and abusive partners, the father himself, and subsequently a different partner, to the detriment of the children. She had not reached full maturity when she had her first child. She has, however, made an impressive effort to educate herself as a parent and to sustain her relationships with her children. She understands that they need a relationship with their father and the paternal grandparents who have cared for them and about them despite her own reservations.
Section 60CC(3)(j) Any family violence involving the children or a member of the children’s family
There is a family violence order in place for the protection of the mother from her previous partner whom the mother no longer sees.
Section 60CC(3)(k) Any family violence order that applies to the children or a member of the children’s family, if:
Not applicable.
Section 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the children.
There is compelling evidence that the children have suffered from ongoing litigation since they were babies. Dr R has recommended that the grandmother cease being involved in litigation of any kind which is full of “threats” that trigger responses in the grandmother that are not child focused. It is important that the parties not come back to court whenever there is a difficulty, as there is bound to be from time to time.
Section 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
The children have limited opportunity for socialisation. Their present accommodation means that they are regularly exposed to fights and disputes and threats within “the complex”. They may be moved out of the area into more suitable accommodation and that would assist both them and their mother and brothers.
The paternal grandparents represent an opportunity for the children to maintain a relationship with the older generation which they will be able to call on as they grow up. The indications are that M is likely to go through a period of conflict with her mother through her adolescence and the paternal grandparents may be a welcome place for M if she needs a little bit of time away. It will, however, be crucial that the grandparents do not criticise the mother to M.
Section 60CC(4A) If the children’s parents have separated, the court must, in applying subsection (4) have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred
The parents have in the past sometimes failed to consider the needs of each other and put the interests of the children before their own. However, to their credit, the parents have now established a good working relationship and are able to consult with each other. They have consulted with each other about the application by the paternal grandmother for extensive contact. They have maintained a position of supporting some contact continuing despite reservations. They have acted responsibly in the interests of their children.
Section 118 of the Family Law Act
An application was brought by the Department of Human Services to restrain the paternal grandmother and indeed all parties from making further applications in the proceedings without leave of the Court. The reasoning behind this application is based on the protracted litigation over all of the years of the children’s life and its damaging effect. There is also the compelling evidence of Dr R that the paternal grandmother needs to step back from the legal system which triggers unhelpful responses in terms of child focus. However, this is not an application to dismiss the current proceedings on the basis that they are frivolous or vexatious or even drawing on the inherent power of the court that there is some other reason that they should be dismissed. These proceedings were not unreasonably brought by the paternal grandmother who has had the care of the children in the past and has had a regular time with them by order of the court. It was not unreasonable when her application for residence was withdrawn to substitute an application for ongoing time. Indeed given the antipathy between the parties it was necessary for time periods to be formalised by orders. Accordingly, although it would be of immense value for the children to ensure that no further applications were brought in respect to their care, I do not believe it would be appropriate to grant a restraining order of that kind. However, this should not be interpreted as an encouragement to further applications. Quite the reverse.
Conclusions
I conclude that the paternal grandmother, Ms Ryan, was an unreliable witness in many ways. She sought to downplay the significance of her own past involving serious criminality, fraud and dishonesty. On many occasions she became dramatic and agitated making forceful statements, some of which were patently unreliable. For instance, in relation to the paternal grandfather never having hit her three sons when they were children and again the denial that he had smacked M. Her focus was a consistent one of trenchant criticism of her son, the father, and the mother in the form of an ongoing plea for somebody to take notice of the fact of their past involvement in drugs and crime and to protect the children. She presented herself as somebody who was somewhat heroically acknowledging the wishes of her grandchildren although knowing that she was exposing them to ongoing risk.
I have little doubt that if the children were to spend periods of time in the grandmother’s home, particularly regular overnight time, she would question them about events in the mother’s home and in their father’s home, she would pick up comments that they made and interpret them in a way that was likely to be critical of the parents and she would take steps to have investigations and enquiries made into the lives of both the parents on behalf of the children.
I consider it highly likely that the paternal grandmother will wish to make further applications despite having consented to sole parental responsibility in these proceedings. I consider it is imperative for the girls to be protected from that side of their grandmother’s nature which impels her to involve the authorities in the lives of the children and their parents. She has had an ongoing role in the lives of the children and was their carer for a period of 20 months. She provided solid day to day care such that they presented well at school and were settled within themselves and doing well. However, now is the time for the paternal grandmother to step right back and to become a grandmother to the children and not a parental figure in any way.
I note the evidence of Dr R that one period of contact a month maintains the relationship and that two periods would be pleasantly discreet periods of time, at the same time making it clear the home was with the mother. I note Dr R’s evidence that too much contact with the grandmother would undermine the children’s relationship with their own parents. It is for that reason that the orders limit the time between the girls and their grandmother to two periods of one day for each calendar month until C is nine years old and for the following three years until the order ceases, for contact to be limited to one period of time per calendar month.
The grandfather gave straightforward evidence and made concessions about his conduct with the father when he was a child and with both M and C. There is no doubt he loves the children and has been a committed and involved grandfather to the extent that he had been able. Having married the paternal grandmother as a widow with three young boys, he has remained committed to her, the children and the grandchildren, in a steady way. There is a benefit to the girls in having contact with their grandfather who engages with them and involves them in activities that they enjoy. However, there is a natural limit to how much longer the girls would go on enjoying the boisterous playfulness that the paternal grandfather has brought to bear. M has already passed that stage and is probably somewhat wary of the paternal grandfather since she does not interpret events in the same way as he does. It is of concern that a game which ended in tears for M through the pain of being smacked was dismissed as a game and denied by the paternal grandmother. As the children grow older they will perceive that kind of physical boisterous behaviour, being pushed under the water, being smacked, grabbed and held upside down, as being unpleasant and intrusive. The paternal grandfather needs to understand that they are no longer very little children and that beginning now and increasing over the coming years their preference will be spending time with their parents and ever increasingly, their peers. It is with that in mind that the orders provide for limited and decreasing contact which is not a reflection of the care and affection that has been brought to bear by their grandfather but rather for their future needs. If things go well contact will be maintained voluntarily by the girls in their teens.
The mother has shown herself as willing and able to take up assistance. She has not kept up with the appointments at the Family Centre this year, however, I accept that she has had her time taken up by preparation for these proceedings and that she has spent considerable time with the father, providing care and comfort for him in his illness.
The mother will be the sole parent making decisions about the children. I have no doubt she will use her best efforts to ensure that the children are not brought into contact with people who represent a risk to them, however, the orders provide for restraint on named persons which provide additional authority for the mother to ensure that others are aware that the children should not be exposed to those people.
Dr R’s evidence suggests that short limited periods of time between the children and their paternal grandparents balances the need for the children to maintain this additional relationship outside their immediate family against the need to protect them from the consequences of their grandmother’s personality disorder which means she is at times emotionally unavailable to them and even a source of risk given her history of criminal conduct. Likewise, the children benefit from the more playful and sensitive relationship that they have with their paternal step grandfather against risk associated with his failure to moderate his behaviour to suit their needs as they start to grow out of childhood.
I have given consideration to the willingness expressed by all parties to enter into family therapy. There is a risk that this would simply become an additional burden on all parties and a very high risk that it would be unsuccessful. Accordingly, I have made an order that allows the mother to trigger a request for family counselling if she so wishes. If she does so it is to be hoped that all parties engage and cooperate. In particular, the children would be assisted by easy changeovers from home to home.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 11 November 2010.
Associate:
Date: 11 November 2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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