Samson & Jacks
[2008] FamCA 176
•19 March 2008
FAMILY COURT OF AUSTRALIA
| SAMSON & JACKS | [2008] FamCA 176 |
| FAMILY LAW – CHILDREN - With whom a child spends time - Best interests of child |
| Family Law Act 1975 (Cth) |
| Potts and Bims [2007] FamCA 394 McKenzie and Edwards and Anor [2006] FamCA 1314 Stevens and Lee (1991) FLC 92-201 M & T [2003] FamCA 602 Re C and D (1998) FLC 92-815 KAM v MJR; JIG (Intervener) (1999) FLC 92-847 |
| 1st APPLICANT: | Mrs Samson |
| 2nd APPLICANT: | Mr Samson |
| 1st RESPONDENT: | Mrs Jacks |
| 2nd RESPONDENT: | Mr Jacks |
| FILE NUMBER: | SYF | 3762 | of | 2006 |
| DATE DELIVERED: | 19 March 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 22 February 2007, 21 March 2007, 24 August 2007, 6 & 7 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Mr Hodgson of Counsel |
| SOLICITOR FOR THE APPLICANTS: | The Argyle Partnership |
| COUNSEL FOR THE RESPONDENTS: | Ms Hanna of Counsel |
| SOLICITOR FOR THE RESPONDENTS: | D C Balog & Associates |
Orders
The hearing be adjourned to enable the parties to file a minute of orders giving effect to the judgment and the orders I have in the judgment identified I propose to make.
Each party lodge with my Associate within 14 days a minute of orders.
The matter then be listed by arrangement with my Associate for the hearing of any issues in relation to the form of the proposed orders.
IT IS NOTED that publication of this judgment under the pseudonym SAMSON & JACKS is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3762 of 2006
| Mrs and Mr Samson |
Applicants
And
| Mrs and Mr Jacks |
Respondents
REASONS FOR JUDGMENT
Before me for hearing are applications for final parenting orders. The proceedings were commenced by application filed on 31 August 2006 on behalf of Mrs Samson who I shall hereafter refer to as the Grandmother. The respondent to this application is Mrs Jacks who I shall hereafter refer to as the Mother. The Mother is the Grandmother’s daughter.
In the application the Grandmother sought the following order;
1.That the children, mainly E born on … October 1998 and A, born on … October 2000 spend time with the applicant Grandmother as follows,
1.1 Forthwith and upon the making of this order each Sunday every third week between 9 am and 1 pm.
1.2 Within six months of the date of these orders, each Sunday every third week between 9 am and 5 pm.
1.3 For a period of two days for each of the NSW school holidays by agreement.
On 9 October 2006 an amended application for final orders was filed on behalf of the Grandmother and also Mr Samson who I shall hereafter refer to as the Grandfather. In this amended application the grandparents seek orders in the same terms as the orders sought in the application for final orders filed on behalf of the Grandmother on 31 August 2006.
On 13 October 2006 a response was filed on behalf of the Mother and also Mr Jacks, who I shall hereafter refer to as the Father. The parents seek that the application by the grandparents be dismissed.
This is a very sad and unusual case. It is an application by grandparents to spend time with their two grandchildren. The application is opposed by the parents of the two children. One of the parents is a child of the grandparents. There is no middle ground in this case; no possibility of a compromise. There was no suggestion by any party of the possibility of attempting to resolve the issues other than by judicial adjudication. Whatever I do either the grandparents or the parents will be disappointed and probably upset by the outcome. The parents contend that the children are at risk of abuse if they spend time with the grandparents. This is said to be because of the way the Mother was treated by her father. The allegations are denied by the grandparents.
The Grandfather was born in 1934 in New Zealand. The Grandmother was born in 1938 in New Zealand.
The Father was born in July 1961. The Mother was born in April 1968 in New Zealand. The Father and Mother were married in March 1995.
There are two children the subject to the proceedings, E born in October 1998, and A born in October 2000. The child E is aged nine years and the child A is aged seven years.
The grandparents also have a son S who was born on 24 February 1970.
The grandparents are accomplished self-employed professionals. Although I had no direct evidence about the financial circumstances of the Grandparents the inference I draw is that they are financially secure. The grandparents live in the north shore area and their home has what was called “a beautiful garden” and swimming pool. The Mother was educated at a private school in New Zealand.
The parents live nearby at B. The Mother is not in paid employment. The Father is a professional and conducts his own business from premises at Sydney.
The Father’s parents live in central New South Wales and he has two brothers and two sisters. The children spend frequent time with members of the paternal family.
I had the benefit of answers to a questionnaire (Exhibits A, B, and C). The Mother in her answer to the questionnaire contended that she has concerns, as a result of her own experiences as a child, that in the event that the grandparents spend time with the children, the children may be at risk of abuse.
I had the benefit of evidence from a court appointed expert Dr M who is a child, family and adult psychiatrist. Dr M prepared a report dated 23 July 2007 and in the report said:
[37]It is my opinion that it would be beneficial for the children to have a relationship with the maternal grandparents. This would allow them to have a real experience, without the fantasy and questions associated with a lack of contact. As such, I see merit in the maternal grandparents’ application. It is however my concern that this potential benefit is outweighed by the fact that such contact will be profoundly disruptive to the mother. She was clearly distressed by the prospect of such contact. It is my clinical impression that such contact would trigger an exacerbation rather that a resolution of such emotional distress. This would have the potential to contaminate the relationship between the mother and the children and the paternal relationship, as predicted by the father. Under such circumstances, it is my view that contact would be highly disruptive for the children. This would outweigh the potential sleeper issue of the children’s awareness of time of their lack of contact with the maternal grandparents in their response to such matters should they be raised.
[38]It is thus my conclusion that despite the potential benefit of contact between the maternal grandparents and the children that this is outweighed by the mother’s predictable emotional distress.
[39]My discussion with [Ms B], the psychotherapist who had consulted with the maternal grandparents and father in the past, was consistent with these observations. While she had been supportive of the maternal grandmother having contact with her grandchildren, she readily acknowledged the vulnerabilities within the family. When it was put to [the mother] that she would benefit from individual psychotherapy to address the significant issues arising from her family of origin experience, she indicated a willingness to pursue such an intervention. She was unfortunately unwilling to consider any rapprochement with her parents nor condone their contact with her children.
Dr M was cross-examined.
I had affidavits sworn by the Grandmother on 28 March 2007 and 5 December 2007 and affidavits sworn by the Grandfather on 28 March 2007 and 5 December 2007.
I put a series of questions to Dr M and the following is my understanding of the effect of his evidence:
· the case is put by the protagonists on the basis there is no middle ground;
·no attempts have been made to compromise; to try and work through all the issues, except by judicial adjudication;
·no attempt has been made to seek other professional assistance to enable the parties to overcome all sorts of issues;
·the grandparents are seeking to spend limited periods of time with the two children;
·there is no difficulty about a communication between the grandparents and the children by way of gifts for special events and so on;
·the Grandmother and perhaps the maternal uncle have tried since 2001 to spend limited periods of time and/or have a communication by way of provision of gifts and the like and for special events with the children;
·it is beneficial to the children that they have a relationship with members of the maternal family;
·the evidence does not suggest that the children would be abused if in the care of the grandparents;
·there is no evidence that suggests that the children if in the care of the grandparents would be at risk of harm;
·however if there was a regime that allowed those things to occur it would have the potential to create a possibility of risk of harm for the children whilst in the care of the Mother because of the emotional distress experienced by the Mother or affect her capacity to properly parent the children;
·there is then a sleeper issue being the effect on the children over time of lack of contact with the grandparents;
·the Mother sought advice from a psychologist about the sleeper issue and the advice to the parents was that they should say to the children something along the lines of the following: “Each family’s circumstances are different and sometimes they cannot be together. This could be because they live too far away to see each other or they may not be alive. Sometimes it is better for some grown ups not to see each other at all, like Mummy’s parents. Yes they are alive but it is better we do not see them. I want you to know that this is not your fault that we do not want to see them”;
·there are concerns about the above script and the first concern is that there are always problems in misrepresenting things to children. The issue is very simple and one commonly sees it in children who find out down the track they were adopted; during their whole life they were told that someone was their father and then they find out down the track that he was not their father at all;
·it is difficult to see how children as they grow older would accept the script without a whole series of other questions and the script would become evidently different and that is the difficulty, the difficulty of telling a lie is that it then creates further problems;
·the sleeper issue may be activated even by the provision of gifts for special events and thus may have to be confronted shortly;
·it was suggested that the Mother should have psychotherapy;
·the best outcome would be for the Mother to actually resolve the issues within herself, hence the recommendation for individual psychotherapy, to come to a resolution that actually those issues are in the past; that she is safe now; that she is beyond all of that, that there is no indication that her children will be unsafe in the type of contact proposed and then to be in the position where she is actually able to accept contact;
·it comes down to the Mother’s ability to be able to accept a relationship between the children and the maternal grandparents “And to understand that actually avoidance is actually a destructive manner of dealing with stressful life experience”;
·because it is possible if something did not happen to assist them to work through this there could be other aspects of potential harm to the children;
·one would have to make sure, as part of a process, that at least objectively the Mother was satisfied that there was no possibility of harm to the children whilst they had some form of relationship with the grandparents although this would not overcome all the Mother’s issues.
RELEVANT PRINCIPLES
In a number of recent judgments I have delivered I set out what I consider to be the approach to be taken pursuant to the provisions of Pt VII of the Family Law Act 1975 (Cth) to applications for parenting orders. However those cases dealt with the circumstance where the parties were the parents of the child. The issue that arises in this case is whether a different approach is to be taken in cases where one of the parties is not a parent of the child.
In Potts and Bims [2007] FamCA 394 Moore J observed that some of the provisions of Part VII refer to ‘parent/s’ and that given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, it follows that a number of sections do not apply when dealing with an application where one party is not a parent.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Act. This provision does not apply to a party who is not a parent. The presumption of parental responsibility applies only to parents.
Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
Section 65C(ba) provides that a grandparent of a child may apply for a parenting order in relation to a child.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects. Moore J observed in Potts and Bims (supra) that a number of the objects and principles are expressed to apply to ‘parent/s’ and so are excluded in proceedings where one party is not a parent. Her Honour said that paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is not important but s 60B(1)(c) may apply. Her Honour also said that paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b) and (c) namely that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development and that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act. Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
In Potts and Bims (supra) Moore J said that again the use the word ‘parent/s’ in a number of the considerations operates to exclude them in proceedings between a parent and non-parent. Falling within that group is the primary consideration in s 60CC(2)(a) and the additional considerations at paragraphs 60CC(3) (c), (e), and (i).
Section 60CG does apply and requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) which provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child does not apply and it follows that 65DAC which deals with the effect of a parenting order that provides for shared parental responsibility does not apply and the provisions of s 65DAA(1) dealing with equal time and 65DAA(2) dealing with substantial and significant time also do not apply. However depending on the facts a court may come to the conclusion, taking into account all relevant considerations, that it is in the best interests of a child that a party who is not a parent have what is equal or substantial and significant time with a child.
I observe that Moore J did say:
However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.
Significant changes relating to grandparents and parenting orders were introduced into the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). As seen, s 65C(ba) provides that a grandparent of a child may apply for a parenting order in relation to a child. There is then specific reference to “grandparents” in secs 60B, 60CC(3)(b)(ii), 60CC(3)(d)(ii) and 60CC(3)(f)(ii) of the Act. Also according to s 63C(2A) a parenting plan can refer to a grandparent however, a parenting plan requires the involvement and signature of the parents according to s 63C(1)(b)(ba). This means that a grandparent requires the cooperation of the parent to make a parenting plan.
In the revised Explanatory Memorandum accompanying the Family Law Amendment (Shared Parental Responsibility) Act in respect of grandparents the following was said: -
[39] Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child’s life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children. (emphasis added)
…
[58] New paragraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with a modification. Existing paragraph 68F(2)(b) provides that where the court is determining the best interests of the child, it must consider the nature of the relationship with each of the child’s parents and with other persons. This provision has been modified to include an explicit reference to grandparents or other relatives of the child. This change further ensures that the court recognises the importance of the relationships that the child has with their wider family, in particular grandparents. (emphasis added)
…
[60] Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification. Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to grandparents or other relatives. The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child’s circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship. New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives. This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents. (emphasis added)
…
[62] Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification. Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents or other relatives. This provision provides that in determining the best interests of the child, the court should consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs. The amended paragraph 60CC(3)(f) recognises the importance of the relationships that the child has with wider family, in particular grandparents. (emphasis added)
[151] Item 17 also gives greater recognition to the important role that grandparents and other relatives play in a child’s life. In particular, subsection 63C(2A) specifically provides that a parenting plan may provide for a child spending time with or communicating with the grandparent or other relative of a child. This change is consistent with the amendments to recognise the need to consider the benefit to the child of greater involvement of extended family members.] (emphasis added)
In McKenzie and Edwards and Anor [2006] FamCA 1314 Kay J reviewed the decision of a Federal Magistrate which granted 10 nights contact per year to the paternal grandmother, against the wishes of the mother who claimed that the paternal grandmother did not have the capacity to meet the general and medical needs of the children. His Honour said at 27-28:
The principles that the Federal Magistrate was required to pay attention to are set out in Pt VII of the Family Law Act, in particular the Federal Magistrate is required to make an order that is in the best interests of the children involved and in so doing is required to pay attention to the matters set out in s 60CC insofar as they were relevant.
One of the matters that the legislature directed the Court to pay attention to is the relationship between a child and a grandparent or other relative of the child. I said in Stephens v Lee (1991) FLC 92-201 that where there was a significant degree of hostility between a custodial mother and a paternal grandmother, it would be too great an imposition on the mother to expect an access regime to work efficiently and effectively. The decision in Stephens v Lee needs to now be revisited in the sense that there have now been two attempts by the legislature to emphasise the significant role that a grandparent can play in a child's life. Although that emphasis was not present in 1991 in the legislation, it was introduced in 1995 and has been re-emphasised in the current legislation.
At 35, his Honour further states:
The legislature made it clear that grandparents are significant in children's lives, or can be significant in children's lives. One hopes that all of the necessary precautions are taken by the grandmother to ensure the safety of the children and I hope that with the passage of time the families can build up a modicum and method of communication that will certainly advance the welfare of the children.
In my opinion, the importance of children having a relationship with extended family including grandparents was recognised even prior to the amendments made by the Family Law Amendment (Shared Parental Responsibility) Act. A number of cases dealt with issues regarding applications by persons who were not biologically related to a child but were people significant to the care, welfare and development of a child.
In Stevens and Lee (1991) FLC 92-201 (per Kay J) the paternal grandmother sought to have contact with her grandchild. The grandmother’s son was deceased and there was a highly acrimonious relationship between the mother and the paternal grandmother At page 78,384 Kay J stated:—
There then comes a second stage, if I may place matters in degree of appropriateness, where a child has a long and well- established relationship with a person other than the parent. This can be a grandparent; it can be a cousin; it can be a godparent; it can be the next door neighbour; it can be the babysitter; or it can be a step-parent. In those cases, if the Court is satisfied that the relationship is of significance to the child, that a bond exists and that the child will suffer detriment if the bond is severed, the degree of suffering then has to be weighed against the degree of hostility which exists in the custodial parent.
In those circumstances if the court is satisfied that the welfare of the child will be best served by continuing the association the child has with the person the parent does not desire the child to associate with any longer, the Court will not hesitate but to continue the relationship. However, it starts from a different premise than it does with non- custodial parents, that is, when it starts dealing with people who are not the natural parents the Court does not necessarily commence from the assumption that access is going to be good for the child.
His Honour then went on (at 78,385):
For my own sociological part, I would say that the more loving, caring people this child can have contact with, the better for the child. The greater exposure the child can have to its biological links with its paternal grandparents, the better for the child, short and long-term. We live in troubled economic times and by way of example, in 20 years' time D may have need for finance in establishing a house, in purchasing a car, in any number of areas. The more people that are loving and close to him and can help him, who feel an obligation towards him, the healthier it will be for D.
However, due to Kay J’s concern that the Mother’s hostility towards the paternal grandmother would impact badly on her own relationship with the child, he did not make an order for physical contact (at 78,385): “I do not think that the benefits the child would get at this stage from direct contact would outweigh the trauma and difficulties which would be brought about by the mother's attitude, whether the mother's attitude is well held or not”.
In regards to the extract from Stevens v Lee, it is however worth noting the comments of the Full Court in M & T [2003] FamCA 602 where Kay, May and Waddy JJ state at 26: “Stevens (supra) should be viewed in light of the fact that it was decided before the amendments in 1995 which included the inclusion of section 60B and the principles espoused therein”. See also Re C and D (1998) FLC 92-815 and KAM v MJT;JIG (Intervener) (1999) FLC 92-847.
BACKGROUND
The Mother attended school in New Zealand and after completing her schooling undertook and completed a full time course for three years. The Mother always lived with her parents.
In the outline of argument filed on behalf of the parents the chronology identified the following:
§1982 Grandfather threw roast beef out the window (age 14);
§1982 Grandfather ripped up Mother’s self portrait assignment (age 14);
§1982 Grandfather grabbed Mother and held her by the ankles and had her under a cold shower where he dropped her on her head;
§1983 Grandparents fighting before Mother’s School Certificate examination (age 15)
§1985 Grandfather made Mother drive a car even though she had been drinking (age 16);
§1985 Grandfather was asleep on the lounge where he woke up and slapped the Mother (age 16);
§1986 Grandfather threatened to jump out of the car and kill himself. New Zealand holiday.
In February 1989 the grandparents and the Mother commenced to live in Australia.
The Mother lived with the grandparents in Australia from February 1989 until she was married in 1995.
In 1991 the Father was admitted to Hospital for treatment of alcohol abuse, however his use of alcohol is not an issue.
In the outline of arguments filed on behalf of the parents the chronology identified an incident in 1990 or 1991 when on “New Years eve Grandfather made Mother have a glass of Champagne when she did not want any”.
During 1993 the Mother was unemployed however she continued to live with the grandparents and was supported by them.
The Mother and the Father met in 1993 and became engaged in 1994.
In 1994 the Mother obtained employment with at a shop where she remained until she was married.
The parents were married in 1995. The Grandmother paid for the costs of the wedding reception and also the Mother’s bridal gown. The Grandmother estimated that she paid approximately $12,000.
The Grandfather gave evidence that after the Mother was married he regularly went to the shop to have his hair cut and would see the Mother at the counter and they would have a conversation. The Grandfather said that from his observation the Mother appeared relaxed and friendly in her demeanour towards him.
The Grandfather said that prior to the marriage of the parents he believed that the parents and the grandparents had a very good relationship with each other. The Father would often visit the grandparents home and the Grandfather considered the Father to be courteous, very thoughtful and friendly.
The Grandfather also said that until the birth of the child E to his observation the Grandmother and the Mother had a very close relationship.
On 9 June 1998 the grandparents lent the Father and the Mother $21,000 to enable the Father and the Mother to pay stamp duty in relation to the purchase by them of a property at N. At the time the grandparents were holidaying in Paris and the Mother telephoned and spoke to the Grandfather and asked for a loan of $21,000. The Grandmother gave evidence, which I need not repeat, about the payment of interest with respect of the loan made in 1998. The grandparents have financially assisted the Mother and Father in other ways.
Shortly after they returned to Australia the grandparents met the Father and Mother and at the time the mother was pregnant with the child E. The grandparents gave the Father and Mother presents which they had purchased overseas.
The Grandmother gave evidence that prior to the birth of the child E she had a telephone conversation with the Mother almost daily. It was the Grandmother’s belief that the grandparents had a close relationship with the Mother.
The child E was born in October 1998. The grandparents visited the Mother while she was in hospital.
The Mother asked the grandparents to organise christening parties for each of the children at the home of the grandparents. In 1998 the Grandmother organised and catered for 35 of the friends of the Father and the Mother which consisted mostly of members of the paternal family.
The Grandmother gave evidence, which I accept, that the grandparents invited the Father and Mother at least once a fortnight to the grandparents home with the child E for a meal.
On 10 December 1998 the Grandmother gave $4,000 to the Mother. At the time the Father was not employed as he had resigned from a business partnership and was having difficulties obtaining his share of the partnership assets. The amount was to enable the Mother to pay medical expenses relating to the birth of the child E. It was repaid approximately six months later during 1999.
The Grandmother said, and I accept, that at least until Christmas 1998 she regularly gave bags of groceries to the Mother.
The Grandmother gave evidence about an occasion when the child E was approximately six months old when the grandparents went to the home of the parents to have coffee with the Mother. The Grandmother said that the Mother said “its time you went” and the Mother was very upset and the grandparents left in order to keep the peace.
The Grandmother said that she regularly went to the Mother’s home to collect the Mother and the child E and take the Mother shopping.
On 27 April 2000 an amount of $10,000 was paid by the parents as part repayment of the loan made by the grandparents in 1998.
In mid-2000 the Grandmother sent an invitation to the parents to attend a birthday party for the Grandfather and in July 2000 the Grandmother received a written response from the parents in which was said “We will not be attending. No correspondence please.”
The Grandmother said that it was not until August 2000, just before the birth of the child A, that she encouraged the Mother to again drive a motor vehicle. The Grandmother began to regularly visit the Mother’s home and sat in the car with the Mother while the Mother drove every morning for a period of about three weeks to enable the Mother to gain confidence to start driving again.
On 20 September 2000 an amount of $5,000 was paid by the parents in repayment of the loan made by the grandparents in 1998.
The Grandmother said that just before the birth of the child A she became more and more concerned about the Mother’s behaviour and began consulting with Ms B because of her concerns. This was as a result of advice from a medical practitioner. The Grandmother thought that the Mother suffered from post natal depression and that this was a possible cause of her behaviour. The Grandmother commenced to see Ms B from 11 October 2000. The Grandmother was particularly concerned about the Mother’s behaviour which consisted of being withdrawn and angry with the Grandmother and behaving in a way which the Grandmother felt was trying to shut out the maternal family. The Grandmother saw Ms B on approximately 27 occasions between 11 October 2000 and September 2005. Ms B provided a report dated 25 February 2007 in which she said that the Grandmother was referred to her in relation to the extreme distress caused by the complete breakdown of her relationship with the Mother. Ms B had five sessions with the grandparents, one session with the Grandmother and her son S and three sessions with the Father.
The Grandmother said that before the child A was born the grandparents still saw the child E on a regular basis because the parents visited the home of the grandparents regularly for dinner however the Mother at no stage ever allowed the child E to stay over unaccompanied with the grandparents.
The Grandmother regularly drove the Mother during her pregnancy with the child A to the Hospital for medical appointments.
The child A was born in October 2000. The grandparents went to visit the Mother in hospital shortly after the birth of the child. The Grandmother recalls that the Mother was “barely civil to us”.
After the Mother was discharged from hospital with the child A, the grandparents visited the Mother and the children at the home of the parents. However the Grandmother said that the Grandfather was never invited or allowed to visit the Mother and that the Grandmother regularly wrote to the Mother and raised her concerns about the Mother’s behaviour towards her father. The Grandmother contends that the Mother never gave her a direct answer and when the Grandmother asked the Mother what was wrong or what was the matter the Mother often said “Its Dad”.
The balance of the loan made in 1998 by the grandparents was repaid on 16 October 2000. The Grandmother gave evidence that in October 2000, being the date of her birthday, the Mother threw a cheque in the Grandmother’s face. The Grandmother went to visit the Mother at the N home and the Mother appeared to be agitated and said “I haven’t got you a present, however you can have this vase I got for my wedding. I don’t like it”.
The parents contend that in 2000 an incident occurred that is identified as the ‘pencil incident’.
On 25 December 2000 the Grandfather’s brother and sister in law were staying with the grandparents. The parents were with the paternal grandparents as it was their turn to have Christmas Day with the parents. The Grandmother telephoned the parents to wish them a happy Christmas and asked the Mother speak to her uncle and aunt and she said “I’m too busy”.
In 2001 the Grandmother organised and catered for 18 people on the occasion of the christening of the child A. The Grandmother gave evidence that the Mother said that she did not want her brother S at the party and when asked why the Mother said that if he was invited then it would be necessary to invite the Father’s brothers.
Since the birth of each child the Grandmother has regularly purchased clothes and toys for both children. As well the grandparents have purchased gifts for the children when the grandparents were overseas.
The Grandmother also recalled an occasion when she called in unexpectedly at the home of the parents and observed that the Mother was very agitated and the Grandmother felt that the Mother was not coping with the children. The Grandmother suggested taking the child E for a walk so that the Mother could settle the child A. The Mother would not let the Grandmother take the child E by herself and accompanied both the Grandmother and the child. The Grandmother said that the Mother “proceeded to clean the wheels of the pram before she wheeled it into the house”.
The grandparents last had contact with the children at the end of May 2001. On that occasion the parents and the children went to the grandparent’s home for dinner. An incident is said to have occurred which I will shortly refer to. However the Grandmother said that she was upset about the Mother’s attitude toward the grandparents and her unwillingness to allow them to see the children. The Grandmother recalls that she said to the Mother “When can I baby sit?” and both parents did not reply and looked uncomfortable. The Mother has not spoken to either of her parents since that occasion.
The grandmother’s son S gave evidence that in the earlier years, after the birth of each child, on a fairly regular basis he visited his sister and the children at the home of the parents or went to the home of the parents for dinner after work as it was directly on his way home. He also had the parents and the children to his home for dinner on a few occasions up to 2001. On a couple of occasions in 2001 he babysat the children.
The parents contend that in May 2001 an incident occurred that is identified as the ‘fly incident’.
In July 2001 the Mother telephoned the Grandfather on the occasion of his birthday and wished him a happy birthday. The Grandfather asked the Mother when she was going to telephone her mother and the Mother said “I’ll get around to it one day”.
The grandmother’s son S gave evidence that in 2001 he observed that the Mother began to fail to return his telephone calls even on occasions when he knew that she was at home. He said that contact between himself and the Mother became less and less to an extent that he never received a phone call on his birthday or on Christmas day. He said that on the occasions he went to the home of the parents on a majority of his visits the Mother did not answer the door even though she was at home. S said that he ceased having contact with the parents from 2002 and that all attempts he has made to keep contact with the Mother and the children has been futile.
In October 2001 the Grandmother sent a letter to the Father in relation to her attempt to give the child E a birthday present. The Grandmother had called around to the home of the parents with a gift for the child. The Mother would not answer the door and so the Grandmother left the gift on the doorstep. The Grandmother requested that the Father telephone her.
The Grandmother said that she began to write letters to the Mother on a regular basis and she annexed to her affidavit a letter she wrote dated 10 October 2001. It is instructive to read this letter.
By letter dated 29 October 2001 the Father wrote to the grandparents and acknowledged the receipt of birthday gifts for the children. The Father also said “[The mother] and I have jointly decided that we do not wish to see or have any contact with you. Please respect our wishes and privacy”.
On 12 August 2002 the Grandmother wrote to the Mother and it is instructive to read this letter. In the letter the Grandmother said that for over a year she had been suffering from terrible isolation and pain and not knowing what she was guilty of.
On 9 October 2002 the Grandmother wrote to the Mother and again it is instructive to read this letter. Among other things the Grandmother, in my view, made it clear that she was very distressed by what was happening and the lack of any relationship between the Mother and her parents and the children and their grandparents.
On 9 October 2002 the Mother wrote a letter to the Father and again it is instructive to read this letter. On 18 November 2003 the Grandmother wrote a letter again to the Mother and it is instructive to read this letter. On 18 November 2003 the Grandmother wrote to the Father and it is instructive to read this letter.
The Grandmother continued to seek assistance from Ms B as well as consulting Dr F. The Grandmother spoke to countless friends and relatives about her concerns and also wrote to the paternal grandparents.
The Grandmother said that she decided to contact the Father at his place of employment and try and find a way to get to see the Mother and the grandchildren. In June 2004 the Grandmother ascertained the business address of the Father and went to his office accompanied by a friend. The Grandmother and the Father met for about an hour and during this meeting the Grandmother raised her concerns about the Mother and about not having contact with the grandchildren.
The Grandmother then wrote a letter to the Father after this meeting and it is instructive to read this letter. The Grandmother then received a letter from the Father enclosing photographs of the children and the Grandmother annexed to her affidavit a copy of these photographs.
The Grandmother gave evidence that in June 2004 when she met the Father he said “I can’t take this breakdown in the family relationship much more”. The Grandmother suggested that the Father see Ms B and she gave him $100 to pay for the consultation. During the discussion the Father said that the Mother was helping organise an art evening at the girl’s school and that the Mother was very stressed out.
On 29 June 2004 the Grandmother wrote to the Father thanking him for the photographs and also suggested that the Father visit Ms B to organise counselling in order to help regain some form of contact with the Mother and the grandchildren.
The Father saw Ms B and the Grandmother paid for the costs of this consultation. The Grandmother believes that the Father saw Ms B on two subsequent occasions.
By letter dated 25 April 2005 the Grandmother wrote to the Mother and it is instructive to read this letter. Among other things the Grandmother said “we love you dearly and always will. The pain you give us is still unbearable and so sad even after four years”.
The Grandmother said that after she saw the Father at his office they began to exchange letters and they met regularly every six weeks. When the Grandmother visited the Father they would have coffee together. On the birthdays of each child and also when the Grandparents returned from overseas the Grandmother took presents for the children which she gave to the Father to pass on. The Grandmother said she does not know whether the children ever received the birthday presents.
By letter dated 25 September the Grandmother wrote to the Father and it is instructive to read this letter. Among other things she said “I appreciate what a brave stand you have taken to meet me secretly and how difficult it is for you. I feel you and I had made so much progress and I know how hard it is for you being the ham in the middle of a sandwich”. She also said “I don’t want to put you at odds with [the mother] or put a course of conflict in your life but I am determined to solve this situation and I do not want to go to my grave without solving this”. The Grandmother also said “I appreciate how you have tried to keep us in touch with the girls progress in giving me photographs”.
In December 2005 the Grandmother went to the office of the Father with Christmas presents for the children and they had a conversation in the Father’s office. The Grandfather also attended. The Grandmother gave evidence of what occurred.
The Grandmother said that during 2006 she continued to have regular meetings with the Father. She even saw him the day before the application was served on the Mother so he would know what the grandparents had decided to do. The Grandmother said that she felt that she was at the end of her tether and decided to seek assistance from the Court. The Grandmother said that this was the last occasion she saw the Father until the proceedings were commenced. The Grandmother said she telephoned the Father after she had been advised that documents had been served upon the Mother at which time the Father hung up the telephone and she has not spoken to him since.
By letter dated 5 May 2006 the Grandmother wrote to the Mother.
The Grandmother said that for approximately two years after the parents sold their home at N the grandparents had no idea where the parents and the grandchildren were living or the telephone number. The grandparents did not know what school the children were attending. The Grandmother said that the grandparents do not have a home telephone number of the parents because the Mother insists on an unlisted number.
The current proceedings were commenced in August 2006 and the application was served on the parents on 5 September 2006.
On 22 February 2007 I made the following orders:
1.The hearing be adjourned part heard to a date to be arranged with my Associate.
2.A Court Expert be appointed for the purpose of preparing a report.
3.A copy of the transcript of today’s proceedings be taken out.
4.Each of the maternal grandparents file and serve within 28 days an affidavit setting out his/her evidence in chief such evidence to address the matters which were identified in discussion today.
5.There be filed within 28 days an affidavit setting out the evidence in chief of the children’s maternal uncle, [S].
6.The Mother and the Father file and serve within 28 days any further evidence in chief on which they would seek to rely at the hearing such evidence however to be limited to matters that were raised in discussion today.
7.It be NOTED that it is not intended that that leave is to extend to providing further evidence of the matters of abuse contended for by the parents in their Answers to Questionnaire.
On 21 March 2007 I made the following orders:
1.Pursuant to Rule 15.45 that Dr. [M] be appointed as the single Court Expert.
2.Dr [M] prepare an Expert Report.
3.The parties attend such appointments with the said Expert as may be arranged and do all acts and things as may be required to facilitate the preparation of the Report referred to in Order 2 hereof.
4.That the Expert Report deal with the following matters including but not limited to:-
4.1 Whether there is any risk of abuse to the children by the maternal Grandfather.
4.2 The potential benefit to the children in being re-introduced to and maintaining a relationship with the maternal Grandparents.
4.3 The potential detriment to the children in being re-introduced to and maintaining a relationship with the maternal Grandparents.
4.4 The effect and impact of any order for the children to spend time with the maternal Grandparents in circumstances where such orders are strongly opposed by the Father and Mother and in particular upon-
4.4.1Children
4.4.2Mother
4.4.3Father
4.4.4Family unit comprising the Mother, Father and two children.
4.5 Whether there is any evidence to support a diagnosis of any psychological or psychiatric disorder in:-
4.5.1The maternal Grandfather
4.5.2The maternal Grandmother
4.5.3The Mother
4.5.4The Father.
5.The Court Expert be provided with a copy of a transcript of proceedings of 22 February 2007 and the Expert is to consider what is set out in that transcript and in particular the matters raised by the Family Consultant that appear on page 19 of the said transcript.
6.A copy of these Orders forthwith be provided to the Family Consultant and in the event that the Family Consultant wishes to raise any matter in respect of the terms of these Orders then the Family Consultant is to forthwith notify the parties legal representatives and the matter is thereafter to be listed before me.
7.The Court Expert be provided with a copy of the relevant provisions of the Family Law Rules dealing with the appointment of Single/Court Experts and the relevant Code of Conduct.
8.Orders 4, 5, 6 made on 22 February 2007 be amended to provide that the affidavits identified in those Orders be filed and served by no later than 4.00 pm on 29 March 2007
Dr M conducted interviews in June 2007 and his report is dated 30 July 2007.
On 24 August 2007 I made the following orders:
1.The Maternal Grandparents file and serve by 4.00 pm on 12 October 2007a report of an expert nominated by them in relation to the report of the Court Expert Dr [M] and in particular, those parts of the report in which Dr [M] has expressed an opinion about the personality disorder/personality of the Maternal Grandfather.
2.The Maternal Grandparents file and serve by 4.00 pm on 12 October 2007 an affidavit setting their evidence, if any, in reply to the report of Dr [M].
3.The proceedings be listed for further hearing of two days duration by arrangement with my Associate.
The Grandfather was concerned about the opinions expressed by Dr M and as a result he consulted with Dr W, Consultant Child Psychiatrist, on 18 September 2007.
On 20 September 2007 I granted leave to the Applicant’s solicitors to issue subpoena to Dr F.
In October 2007 the children’s uncle S went unannounced to the home of the parents to deliver some personal possessions of the Mother. On 25 October 2007 the solicitor for the parents wrote to the solicitors for the grandparents and said that all contact with the parents was to be through the solicitor’s office.
Dr W provided a report dated 19 December 2007.
On 19 December 2007 the grandparents sent two parcels to the home of the parents.
Evidence was given on behalf of the grandparents by their son S, the children’s uncle. The uncle gave evidence on the first day of the hearing namely 22 February 2007. He had read the answer to the questionnaire by the parents. The uncle said, when asked what his general response was to what the Mother had said:
It is very interesting, and a lot of it is just embellished in an unusual way that she is trying to portray – in particular my parents, it has been terrible, there is – always kind of doing these unusual things. And she has been scared. And in fact, when reading, I was in disbelief of what she was trying to portray and say. And kind of – it just doesn’t make sense. And that is what not – our family wasn’t like that.
The uncle subsequently swore an affidavit on 2 April 2007 and without repeating all of what he said, he categorically denied that he and his sister were subjected to the extent of the emotional, psychological and physical abuse that was contended for by the Mother. He contends that the stated events had been twisted to portray a one-side distorted image of what actually happened. He noted that there was no mention by the Mother of what he described as the love and nurture and wonderful upbringing that the grandparents gave he and the Mother. Further there was no difference between the manner in which he and the Mother were treated by their parents and they were treated fairly and equally. He also said that after the marriage of the parents he attended family dinners at his parents’ home and he perceived that they were very happy occasions. The uncle believes that the Father enjoyed these evenings as both the Father and the Grandfather had a very strong common interest in horseracing. He said that the Mother is very manipulative and that he had an area in his apartment used to store her clothes. As I have already observed the uncle was not interviewed by Dr M. Further what is also important is that the uncle was not cross-examined even though he was at Court on 7 February 2008 and available for cross-examination.
The Mother told me that she sees no benefit to the children spending time with their grandparents. The Mother proposes that the children have no relationship with any member of the maternal family. This is in contrast to the paternal grandparents. The Mother said that the children have a wonderful relationship with the paternal grandparents and see them often. This is in circumstances where the Father and the Mother describe the children as being very happy and well adjusted children.
I also note that in cross-examination the Grandmother was criticised about contact that she has made with various people since 2001, including the paternal grandparents. Although the paternal grandparents did not give evidence before me, and thus I cannot form any concluded view about them, it was my impression that they have done nothing to try and assist resolving the issues and the inference I draw is that they are supportive of the idea that the maternal family be excluded from the lives of these children.
EVIDENCE OF DR M AND DR W
Dr M did not interview the grandparents with the children. He said that the parents indicated their unwillingness to allow the grandparents to be interviewed with the children. Dr M also did not interview the Mother’s brother S (the children’s uncle).
Dr M said that the parents consulted Ms T, psychologist, and when they did they received “support for their assertive response to the maternal grandparents”. I gather that Ms T was the author of the script I have earlier set out. Ms T gave no evidence.
Dr M did however speak to the children and in his report as to the child E he recorded:
[25]…On discussing members of the extended family, she exclusively referred to the paternal grandparents. She explained that she didn’t see people from her Mum’s side much except when she was really little. She did not know why and did not know where they lived.
As to the child A, Dr M said;
[27]She spoke of her contact with the paternal grandparents. When asked about her maternal family, she explained that she didn’t see them but would go and see them one day.
[28]When exploring her wishes, this included going to see her Mummy’s parents in New Zealand.
In his report Dr M said.
[32]On exploring the current presentation of the parties, issues regarding their current and past psychiatric status was significant. The maternal grandfather was identified to have a Narcissistic Personality Disorder. Over the years he had experienced a fragile sense of self, emanating from his own developmental experiences, having lost his father at a tender age and experiences at boarding school. He emphasised his status and achievement as [a professional]. It was evident that he had lacked empathy for his daughter’s experience throughout her life. If slighted or under stress he had been prone to rage, depressive symptoms and suicidal behaviour. He lacked mindfulness for the powerful impact this had had on his daughter. He described abusive parenting strategies to control her behaviour. It was evident that his wife had spent her life appeasing and supporting his fragile ego. It appeared likely that he had a history of an underlying mood disorder which had been untreated.
As to the mother Dr M said that she was identified to have symptoms of post-traumatic stress disorder which had been chronic and precipitated by her father’s behaviour throughout her developmental years and that this had a substantive impact on her personality disorder. He said that the grandparents attempt to re-establish contact through the Court had resulted in hyper-vigilance in re-experiencing phenomena, such as intrusive nightmares and thoughts.
Dr M also said that it was striking that the child A reported that she wished to be able to go to New Zealand to meet the maternal grandparents and that this highlighted the current gap in the children’s life experience and the potential benefit of there being the opportunity to establish contact between the children and their maternal grandparents.
In his report Dr W referred to documents that were produced under subpoena by Dr F who is a general practitioner. Dr F had been the Grandfather’s general practitioner since 1988 and the Grandfather consulted him quite regularly. On 28 July 1999 Dr F noted that the Grandfather commented on anxiety attacks and irritability and prescribed Stelezine. The Grandfather returned to work later reporting difficulties tolerating the medication including that he had “got distressed”. Dr F referred the Grandfather to a psychiatrist Dr D who prepared a report dated 19 August 1999. Dr D obtained a detailed history and made a diagnosis of a mixed anxiety disorder including some mild elements of post-traumatic stress disorder. Dr D saw the Grandfather on two further occasions including once with the Grandmother.
Dr W said that his examination of the Grandfather and the materials he had seen drew him towards the diagnostic formulation which Dr E provided in 1999. Dr E referred to the Grandfather as an anxious, self-conscious, rather perfectionist person with some social phobia and agrophobic features, or put another way, the Grandfather’s self-description as a shy perfectionist person. Dr M however had diagnosed the Grandfather as having a Narcissistic Personality Disorder. Dr W said that he found it difficult to see how the Grandfather would conform to the detailed diagnostic criteria for this condition and he formed the view that rather than being filled with self-importance that the Grandfather is plagued by self-doubts which are clearly manifested in his interpersonal style. He observed that interestingly the Mother has more in common with the Grandfather in terms of personalty style than difference and that Dr D’s description of the Grandfather is very similar to Dr M’s description of the Mother with very similar features to their personalities, particularly the different facets of anxiety that they reported.
As to an objective to direct risk to the children Dr W noted that neither he nor Dr M had observed the Grandfather relating to the children. Dr W said that setting aside the Mother’s concerns he would have thought that the Grandfather’s type of personality structure together with the Grandfather’s self-doubts, self-effacing nature and his age and slight frailty would not usually be associated with objective harm to the children either in terms of physical abuse arising out of impulsive acts, or in terms of emotional abuse.
As to the risk of sexual abuse of the Mother Dr W said that the lack of disclosure by the Mother was “particularly salient”. He said that the Mother has clearly had a number of years to dwell on her concerns about the Grandfather and yet has remained silent on this issue. Dr W said that for this reason it seems difficult to conclude that there is an unacceptable risk of sexual abuse.
On 6 February 2008 being the last day of the hearing Dr M conferred with Dr W and when Dr M gave oral evidence he provided me with an oral report in relation to the matters which he and Dr W had agreed on. As a result Dr W was then not required for cross-examination.
Dr M said that in relation to his diagnosis of the Grandfather, on reflection and after perusing the additional documentation provided by Dr D, he formed the opinion that it would be inappropriate to come to a definitive view of the Grandfather suffering from a narcissistic personality disorder as such. He said it was the joint opinion of he and Dr W that the Grandfather has significant personality vulnerabilities and this would be in the order of there being excessive compulsive and narcissistic personality traits rather than a narcissistic personality disorder. This in the context of his low self esteem and difficulties during his developmental years, such as the loss of his father, his experiences at boarding school and so on he had vulnerabilities with regard to his personality and vulnerabilities which left him vulnerable to anxious and depressive symptoms at times during his life.
Dr M gave evidence that in his report he indicated that there had been no disclosure of sexual abuse by the Mother but she had acted in such an extreme manner and was so anxious and in particular was very concerned and described concerns about being touched by the maternal grandfather, the possibility of sexual abuse was raised. However on the balance of probability he would not reach a conclusion that the Mother has been subjected to child sexual abuse. The Mother at no stage made a disclosure, at no stage alleged that she had been specifically sexually abused and at no stage did he form a definitive opinion of the probability that she had been sexually abused and in particular he did not form an opinion that the Grandfather had committed such an offence.
Dr M said that the third issue that he and Dr W discussed was the issue of the possibility of a cascade of events resulting in potential harm to the children and whether that posed the potential of there being an unacceptable risk to the children in the context of there being contact between the children and grandparents. He said that on the basis of his assessment, and he and Dr W were in agreement with regard to this, there was no evidence that the children were at risk of harm by their exposure to the grandparents. Dr M said that the concern that arose out of his assessment, and indeed it was his opinion, and Dr W was in agreement, was that that there would be potentially beneficial interactions between the children directly with the grandparents.
Dr M said that where the issue of vulnerability arises is specifically with regards to the direct impact on the Mother of her children being exposed to the grandparents and how that would affect her mental state based on the experience to date. Dr W indicated that he was not in a position to provide any formal view with regard to that issue directly as he had not assessed either the Mother or the Father and so it was accepted that Dr M was in the best position as the single expert to provide an opinion based on the history and his assessment of the parties as to the impact that that would have on the Mother and then upon the children. He said that there was no change to his opinion with regard to that key issue.
It should be noted that this case is an example of circumstances where it was appropriate to allow one of the parties to obtain evidence from what I describe as an adversarial expert even though there was evidence from a single expert being in this case a court expert.
SUBMISSIONS
In the written summary of argument on behalf of the parents the following submissions were made:
·both children have been cared for solely by their parents since their birth;
·the two children have never been left in the care of the grandparents;
·the grandparents have not seen the children for in excess of six years;
·in relation to the children not having any relationship with the grandparents the parents say that they have sought advice from an expert;
·the parents say that they have accepted the advice of the expert;
·the parents oppose the application filed by the grandparents;
·the parents have made all decisions regarding the children’s health, care, education, extra curricular activities, social activities and relationships. Further both girls are healthy, happy and progressing well in all facets of their life;
·The Mother and Father say that in their opinion as parents of the two children that it would not be in the two children’s best interest to have a relationship with the grandparents;
·the Mother says that she arrived at the above conclusion based on her own perceptions of her experiences as a child being raised and living in the household with the grandparents;
·the Mother says that she was during her life of living with the grandparents her perception is that she was subjected to emotional abuse; psychological abuse; physical abuse including violence and violence involving damage to property;
·the Mother says that it was only after she left the home of the grandparents and witnessed how other people lived their lives that she realised how she had been damaged;
·the Mother says that to her knowledge she has never been diagnosed nor treated for any psychiatric condition;
·the Mother and Father says that there were two incidents which occurred when the two children were present at the grandparents home which caused both parents to conclude that it was not in the children’s interest for them to continue to have a relationship with the grandparents;
·the Mother following the incidents referred to above concluded:-
· the Mother saw her children subjected to acts which she had been subjected to as a child;
· the Mother noticed reactions in her children which were similar to her responses to the behaviour of the grandparents.
·the Mother and Father wish to protect their children from any forms of abuse
·the Mother believes that the Grandmother did not protect her from the abuse and does not believe that she could or would protect the children from abuse;
·the Mother’s perception is that she was treated differently from her brother;
·the Mother and Father both believe that any benefit that may be identified by the children having a relationship with the grandparents would be so grossly outweighed by the potential damage that could be suffered as to make any benefits negligible by comparison;
·the Father believes that:-
· in the event that I acceded in any way to the grandparents application that it would have a negative effect on the Mother;
· any Order granting the grandparents time with the children would place stress on both the Mother and himself and therefore potentially on the children;
· since the Mother herself stopped seeing the grandparents the Father has noticed a significant change in the Mother in that she is happier and more carefree. Prior to the cessation of the contact between the Mother and Father and the grandparents the Mother would become anxious and stressed prior to and during any visits with the grandparents;
·The parents say that the two children have no recollection of any relationship with the grandparents.
The expert from whom the parents obtained advice did not give evidence.
In the written summary of argument on behalf of the grandparents the following submissions were made:
1.The right of the children to spend time on a regular basis and communicate with their grandparents, being persons significant to their care, welfare and development.
2.The benefit to the children of having a meaningful relationship with both their grandparents.
3.The need to protect the children from being subjected to physical or psychological harm or exposed to abuse, neglect or family violence.
4.The need to ensure that parents fulfil their duties and responsibilities in regard to the care, welfare and development of their children.
5.The nature of the relationship of the children with each of their parents and other persons, including specifically their grandparents.
6.The willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and their grandparents.
7.The likely effect of any changes in the children’s circumstances including the likely effect of separation from their grandparents.
8.The capacity of the children’s parents and their grandparents to provide for the needs of the children, including emotional and intellectual needs.
9.The attitudes to the children and the responsibilities of parenthood demonstrated by each of the parents and the grandparents.
10.Any family violence involving the children or members of the children’s family.
11.Whether it would be preferable to make an order that would least likely lead to the institution of further proceedings in relation to the children.
12.The views expressed by either of the children and the child’s maturity or level of understanding, which would be relevant to the weight to be given to such views.
These submissions largely repeated the terms of the statutory considerations.
BEST INTERESTS
I have no evidence as to the views of each child except that Dr M said that it was striking that the child A reported that she wished to be able to go to New Zealand to meet the maternal grandparents.
The children have not seen the grandparents for some years and they were not seen by Dr M with the grandparents or their maternal uncle. Thus I am unable to form any view about the nature of the relationship of each child with each of the grandparents. However I have no doubt that the children have a close and loving relationship with their parents.
I am satisfied that the parents are not willing and do not have the ability to facilitate, and encourage, a close and continuing relationship between each child and the grandparents or any member of the maternal family.
If I made an order that the children spend time with the grandparents this would have an effect on the children given what Dr M said about the effect on the Mother and in turn the cascading effect on the children. On the other hand I have no doubt that it will have an effect on these children if they have no time with their maternal grandparents or have no association with any member of their maternal family.
Given where the parents and the grandparents live there should be no practical difficulty and expense of each child spending time with and communicating with the grandparents.
I am satisfied that if I did make an order that the children spend some time with the grandparents then the grandparents would be able to adequately provide for the needs of each child, including emotional and intellectual needs.
On the other hand if I did make an order that the children spend some time with the grandparents the Mother may not be able to adequately provide for the needs of each child, including emotional needs.
The grandparents and the Mother are from New Zealand and I understand the Mother is proposing that the children have no exposure to or experience of or perhaps even knowledge of that background.
I am satisfied that the grandparents have an appropriate attitude to each child.
In all the circumstances, I am not satisfied that there was any family violence involving either child or the Mother.
I am concerned given the attitude of the parents that if I made an order the children spend some time with the grandparents then this may lead to the institution of further proceedings in relation to each child.
CONCLUSION
Dr M said that there is no difficulty about a communication between the grandparents and the children by way of gifts and so on for special events.
I am of the view that it would be beneficial to the children that they have a relationship with members of the maternal family. As Dr M said this would allow the children to have a real experience, without the fantasy and questions associated with a lack of contact. I agree with Dr M that there is merit in the grandparents’ application.
This is not a case where there has never been any association between the children and the grandparents. In fact it is clear that both children have some memory of that association. The child E told Dr M that she did not see people from her mother’s side much except when she was really little and she did not know why and did not know where they lived. The child A spoke of her contact with the paternal grandparents and when asked about her maternal family, explained that she did not see them but would go and see them one day. Further when exploring her wishes, this included going to see her mother’s parents in New Zealand.
It is not a case where after a significant absence the grandparents have simply reappeared and sought to impose themselves in the lives of the children. I am satisfied that the grandparents were distressed by the cessation of a relationship and since then have made considerable effort to restore that relationship. The commencement of the proceedings was the last resort. In this case there is significant degree of hostility on the part of the parents towards the grandparents but not on the part of the grandparents towards the parents.
A very important matter relied upon by the parents is the need to protect each child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. Whatever may have been the Mother’s experience I am not satisfied that the children would be abused or at risk of harm if in the care of the grandparents. The children would not be exposed to physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
I am however satisfied that if I made an order that the children spend time with the grandparents it could have the potential to create a possibility of risk of harm for the children whilst in the care of the Mother because of the emotional distress experienced by the Mother and the cascading effect of this on the children or affect her capacity to properly parent the children.
There is a significant unreality to the circumstances in which these children are presently living. Over time there is going to be an issue as to the effect on the children of the lack of contact and association with the grandparents. As seen, the Mother sought advice from an expert about the sleeper issue and received advice as to what the parents should say to the children. Dr M was critical of the script as am I. As Dr M said there are concerns about misrepresenting things to children and it is difficult to see how the children as they grow older would accept the script without a whole series of questions. Dr M made clear that the difficulty of telling a lie is that it then creates further problems. If as suggested by Dr M I allowed the provision of gifts and so on for special events then the need to get the script right without telling a lie may be imminent.
What the Mother contends about her childhood experience while in the care of her parents is in issue. The grandparents and the Mother’s brother deny what the Mother asserts. There is a stark contrast between what the Mother contends was her experience and what her brother contends and the Mother explains this by contending that her brother was treated differently by the grandparents. Having regard to the evidence of Dr M and Dr W I accept that the Mother may have experienced some difficulties and sadness and that from time to time the Grandfather may have behaved in ways that others would find inappropriate or difficult. As Dr M said Ms B, the psychotherapist who consulted with the grandparents and the Father in the past, readily acknowledged there were vulnerabilities within the family. However I do not accept that the Grandfather abused the Mother or put her at risk of harm or that the Mother’s life experience was as difficult as she now recounts.
In making the above finding I am not suggesting that the Mother is seeking to mislead me or that she is not genuine in her beliefs as to why she is unable to consider any rapprochement with the grandparents nor condone their contact with the children. The Mother is in need of professional help. Dr M suggested that the Mother should have psychotherapy. Dr M made clear what the best outcome would be that the Mother should have individual psychotherapy to actually resolve the issues within herself so as to come to a resolution that actually those issues are in the past; that she is safe now and that she is beyond all of that. Further that the Mother accepts that there is no indication that the children will be unsafe in the type of contact proposed and the Mother then be in the position where she is actually able to accept contact. As Dr M said it comes down to the Mother’s ability to be able to accept a relationship between the children and the maternal grandparents. Significantly Dr M said “And to understand that actually avoidance is actually a destructive manner of dealing with stressful life experience”. Dr M conceded it is possible that if something did not happen to assist the Mother and others to work through the issues then there could be other aspects of potential harm to the children.
As I indicated at the outset this is a difficult case. My only obligation is to make orders that are in the best interests of the children. It would be easy to simply adopt the opinion of Dr M in his report on the ultimate issue namely that despite the potential benefit of contact between the grandparents and the children this is outweighed by the Mother’s predictable emotional distress. There are risks for the children whatever I do. If I made the orders sought by the grandparents then there are short term and long term risks for the children as a consequence of the reaction of the Mother. On the other hand if I made the orders sought by the parents and dismissed the application of the grandparents there are risks for the children including long term risks for the children of not having had any relationship with any member of the maternal family and how this would be dealt with by the parents.
I have come to the conclusion that it is in the best interests of the children that a process be undertaken to work through the issues. I am going to make orders that set in place the following regime. I will give the parties an opportunity to provide me with a minute of orders giving effect to what I propose and failing agreement I will hear further submissions as to the terms of the proposed orders.
I propose to order that the grandparents be at liberty to send a letter, card and or gift to each of the children on not less than three occasions in March, April and May 2008 and to also send gifts and cards to each of the children for events such as the birthdays of the children, Easter and Christmas. An order will have to be made to ensure that the children receive the letters, cards and gifts. The Grandmother will have the opportunity to see the children on a face to face basis in the counselling section of the Family Court of Australia, Sydney Registry on two occasions for a period of not less than one hour in the months of April and May 2008. Then in June 2008 the Grandfather may accompany the Grandmother. Then as from July 2008 in each four week period the grandparents will spend three hours with the children at a contact centre or in some other form of supervised environment. If there is a cost to be paid for the supervision then it will be paid by the grandparents. As from July 2008 the Mother’s brother may also be present during the periods the children see the grandparents in the supervised environment. This regime will continue for a period of two years. There is then the issue as to what should happen at the expiration of the two years. It could then be reviewed and perhaps a further application made. I have decided that at the expiration of two years the regime will be that during the school term the children will spend time with the grandparents every third week on Sunday between 9:00 am and 1:00 pm and for a period of two days for each of the New South Wales school holidays by agreement. The Mother is to undertake the individual psychotherapy recommended by Dr M and to do so as soon as practicable and have commenced it by the end of May 2008. In fact it would be in the interests of the Mother to forthwith commence this individual psychotherapy.
I propose that the time spent by the grandparents with the children for the first two years be in a supervised environment not because of any concern of risk of harm to the children while in the care of the grandparents but to assist the Mother. Dr M agreed that as part of a process, at least objectively, the Mother should be satisfied that there was no possibility of harm to the children while they had some form of relationship with the grandparents.
In the future the parents and the grandparents may of course at any time, perhaps with professional assistance, make other arrangements and this would be the ideal outcome. However I am of the view that in the absence of such agreement there should be a regime set down to enable some association of the children with the grandparents and that is what I have done.
I certify that the preceding one hundred and fifty four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 19 March 2008
13
2
1