Sansone & Chancellor
[2025] FedCFamC1F 59
•17 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sansone & Chancellor [2025] FedCFamC1F 59
File number(s): NCC 745 of 2017 Judgment of: ALTOBELLI J Date of judgment: 17 January 2025 Catchwords: FAMILY LAW – PARENTING – Where the mother had a case guardian – Where the maternal grandmother had full time care of the child – Where the father had no existing relationship with the child – Where the father sought joint decision making and live with orders – Where there is an extremely limited ability for the father and maternal grandmother to foster a co-parenting relationship – Where the Court determines that it is not in the child’s best interest to commence any relationship with the father. Legislation: Family Law Act 1975 (Cth) s 60CC, 68B Division: Division 1 First Instance Number of paragraphs: 69 Date of hearing: 13 – 15 January 2025 Place: Sydney Counsel for the Applicant: Ms Trad Solicitor for the Applicant: Rafton Family Lawyers Counsel for the First Respondent: Mr Hill Solicitor for the First Respondent: Choice Law Group Solicitor for the Second Respondent: Mr Jurd of Peter Jurd Lawyer Solicitor for the Independent Children's Lawyer: Ms O’Rourke of Legal Aid NSW - Bankstown Family Law ORDERS
NCC 745 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHANCELLOR BY HER LITIGATION GUARDIAN MS LISHAN
Applicant
AND: MS THOMPSON
First Respondent
MR OLSEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
17 JANUARY 2025
THE COURT ORDERS THAT:
1.Y, born in 2017 ("Y") spend no time and have no communication with Second Respondent ("Mr Olsen").
Communication
2.Within 14 days of the date of these Orders, the First Respondent ("Ms Thompson") is to provide Mr Olsen with a nominated email address for the sole purpose of Mr Olsen advising Ms Thompson of his contact details, and of any changes to those contact details.
3.Mr Olsen be, and is hereby, restrained from providing the email address nominated by Ms Thompson pursuant to these Orders to any other person.
4.In the event that Y requests information from Ms Thompson about her father, Ms Thompson shall provide such information to Y (including the contact details of Mr Olsen) as Ms Thompson considers beneficial for Y.
Restraints
5.Pursuant to s 68B(1)(a) & (b) of the Family Law Act 1975 (Cth) ("the Act") the Court injunct Mr Bleier, born in 1995 ("Mr Bleier") for the personal protection of Y, Z, born in 2019 ("Z"), the Applicant ("Ms Chancellor"), and Ms Thompson.
6.Pursuant to s 68B(1)(c) of the Act, the Court restrains Mr Bleier from entering or remaining in:
(a)a place of residence, employment or education of Y and Z; or
(b)an unspecified area that contains a place of the kind referred to in Order 6(a).
7.Pursuant to s 68B(1)(d) of the Act, the Court restrains Mr Bleier from entering or remaining in:
(a)a place of residence, employment or education of Ms Chancellor and Ms Thompson; or
(b)an unspecified area that contains a place of the kind referred to in Order 7(a).
Explanation
8.Upon request by the Independent Children's Lawyer, the Ms Thompson shall make Y available so that these Orders may be explained to her.
THE COURT NOTES THAT:
A.These Orders are to be read in conjunction with Order 4 of this Court made 13 January 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sansone & Chancellor has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This litigation commenced on 15 March 2017. It is time for it to conclude. These oral reasons for judgment explain the orders that the Court has made. Unless specifically indicated to the contrary, the following represents the findings of the Court.
This case is about Y, born in 2017 (“Y”), who is currently aged seven, but is rapidly heading towards age eight. This means that a constant feature in Y’s life has been this case. The applicant is Y’s mother Ms Chancellor (“the mother”), who has a case guardian. The first respondent is Y’s maternal grandmother, and the second respondent is her father (“the father”), all of whom were legally represented. Y was represented by an experienced Independent Children’s Lawyer.
Y has four siblings, or step-siblings. There is her sister, Z, born 2019 (“Z”), who is six years old and lives with Y and the maternal grandmother. Z’s father is Mr Bleier (“Mr Bleier”), whose participation in the proceedings ended as a result of failing to consistently participate in the proceedings. Z has never spent time or communicated with her father. She is disabled. There is X, born in 2015 (“X”), who is ten years old and who lives with his father, Mr Sansone. Further, there is B, born in 2020 (“B”), who is four years old, who currently lives in Queensland, and is cared for by her paternal grandmother, Ms D. There is also E born in 2021 who is three years old, and is currently under the care of the Department of Child Safety, Seniors and Disability Services.
THE EVIDENCE
The matter commenced for Final Hearing before me on Monday this week, with the evidence concluding on Tuesday afternoon, and with final submissions concluding on Wednesday morning. The mother did not give evidence in this case, and her case was conducted by her case guardian. Neither the mother nor her case guardian were required for cross-examination. Evidence was given by the maternal grandmother and the father, both of whom were cross‑examined. The only other evidence was given by the Court Child Expert, Ms C (“the Family Report writer”), who authored a Family Report dated 30 May 2024 (“the Family Report”) and an Addendum Family Report dated 13 December 2024 (“the Addendum Report”), both of which came into evidence. The Family Report writer was also cross-examined. The evidence the parties relied on is set out below.
In support of her case the mother relied on the following material:
(a)Outline of Case document filed 10 January 2025 (“the mother’s case outline”);
(b)Amended Initiating Application filed 9 January 2025;
(c)Affidavit of Ms Lishan filed 9 January 2025; and
(d)Affidavit of Ms Lishan dated 17 April 2024.
In support of her case the maternal grandmother relied on the following material:
(a)Outline of Case document filed 8 January 2025 (“the maternal grandmother’s case outline”);
(b)Further further further Amended Response filed 6 December 2024; and
(c)Her affidavit filed 20 December 2024.
In support of his case the father relied on the following material:
(a)Outline of Case document filed 10 January 2025 (“the father’s case outline”);
(a)Amended Response filed 9 January 2025 (“the father’s Response”);
(b)Family Report of Ms F dated 12 June 2020; and
(c)His affidavit filed 9 January 2025.
In support of their case the Independent Children’s Lawyer relied on the following material:
(a)Outline of case document filed 10 January 2025 (“the Independent Children’s Lawyers case outline”);
(b)Family Report of Court Child Expert, Ms C dated 30 May 2024; and
(c)Addendum Family Report of Court Child Expert, Ms C dated 13 December 2024.
The Independent Children’s Lawyer’s minute of additional orders provided to the Court on 14 January 2025 is tendered as the Court’s exhibit and has been marked in chambers as Exhibit C1.
The chronology of events contained in Independent Children’s Lawyer’s case outline is adopted by this Court as an objective and correct summary of the relevant events which provide background to this case. The chronology is incorporated verbatim as the first schedule to this judgment.
The mother, father and maternal grandmother have all had very difficult lives involving traumatic experiences of different types and to varying degrees. The details do not matter for present purposes.
BACKGROUND
The risk of providing details is that it potentially re-traumatises the parties in the context of an already difficult case. They each have demonstrated resilience in their own ways. It is inevitable that Y has been exposed to the trauma of the significant adults in her life. This was confirmed by the Family Report writer. The mother continues to struggle with certain issues. She, herself, recognises that, at least for now, she cannot play a significant role in Y’s life. Y has lived with the maternal grandmother from about 2019. She has never met her father or communicated with him.
Because of the struggles experienced by the mother for all practical purposes the maternal grandmother has been Y’s primary carer. As will be seen, the maternal grandmother struggles with some of her own issues. She cares for Y, who has Attention Deficit Hyperactivity Disorder (“ADHD”), as well as caring for Z, who is legally blind and has a stutter. The maternal grandmother was in a prior violent relationship. Despite the vulnerabilities that she experiences and the challenges she faces in caring for Y and Z, her care for these children has been exemplary, and she is to be commended for it.
On the first day of the hearing, all parties agreed to orders that provided for the maternal grandmother to have, in effect, sole parental responsibility and decision-making power for Y, for Y to live with her, and to have time with the mother on the conditions set out at Order 5 of the orders dated 13 January 2025. It is important to specifically acknowledge that the father consented to these orders; that says much of him.
The only issue before the Court, therefore, was whether and, if so, on what terms and conditions the father should spend time with Y, with all parties recognising that, for the time being, no relationship exists between Y and the father. There is an ancillary issue about the making of injunctions against Mr Bleier, who is the father of Y’s sister Z. Consent orders were made in relation to Z at Order 4 of the orders made on 13 January 2025 on an undefended basis insofar as Mr Bleier is concerned.
In cross-examination, the Family Report writer made an important observation. That is, that there is a difference between a case where a child must establish a relationship and a case where a child’s former relationship is sought to be repaired. For Y, in order to spend time with the father on a meaningful basis, that is beneficial to both of them in the short and long-term, she must establish a relationship with him. By contrast, Y once had, but does not necessarily have at present, a relationship with the mother. Thus, the focus of the orders that were made in relation to the mother was to repair the pre-existing relationship.
The Family Report writer explained that Y has, what was described as, no pre-narrative of who the father is. The Family Report writer explained that Y would probably be thinking things like, “Why? Why now? What was the history and presumably the context of the absence of any relationship with the father before now?”. The Court observes that there are other relevant contextual matters including Y’s age and developmental stage, her diagnosis of ADHD and her dependence on the maternal grandmother, who presents with her own vulnerabilities, and so on.
The Court also observes that a relevant factor is the potential impact on the maternal grandmother’s parenting of Z, who also lives with the maternal grandmother, of any order that the father spend time with Y. For example, if the maternal grandmother’s ability to care for Z is undermined, or weakened, by an order that Y spend time with her father, there is a risk, amongst other things, that Y’s relationship with her sibling is undermined. This may occur in circumstances where one would otherwise expect the sibling relationship to be a very supportive one for Y.
At paragraph 65 of the Addendum Report, the Family Report writer expressed some concern about the impact on the sibling bond if a “spends time with” order for the father was allowed. The Order sought by the father is contained in his case outline. It is a carefully articulated proposal commencing from Order 4 of the said document. The father proposes to commence time with Y, initially at a supervised contact centre, gradually progressing over time; both in terms of how much time they spend together and where this is and under what conditions the time occurs. In short, the order proposes that within about 18 months, Y would be spending each alternate weekend with the father from after school on Friday, to the commencement of school on Monday.
The mother, the maternal grandmother and the Independent Children’s Lawyer all proposed that there would be no contact, or communication, between Y and the father. Nonetheless, there was a proposal which the Court will describe as keeping the door open, should Y request information from the maternal grandmother about the father. This is consistent not only with the recommendation of the Family Report writer, but it is something that the maternal grandmother herself suggested in cross-examination.
There are three Family Reports before the Court: a report dated 12 June 2020, prepared by Ms F (“the first Family Report writer”) (“the first Family Report”), and then the two reports of the Family Report writer (“the Family Reports”). The first Family Report was tendered without objection. The first Family Report writer was not required for cross-examination. The Family Report and the Addendum Family Report were also admitted without objection, but there was cross-examination of the Family Report writer. Given that there was no serious challenge to any aspects of the Family Reports and the evidence of the Family Report writer, the Court will accept the evidence.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”) at s 60CC as set out below.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
The first issue is whether any arrangement for Y to spend time with the father would promote her safety as defined in s 60CC(2)(a) of the Act. There are allegations about violence in the relationship between the mother and the father, and whether this would expose Y to some risk in this regard. There are allegations about the paternal grandfather and his alleged sexual abuse of both the mother, when she was an adolescent, and the father’s sister. The safety issue for Y, if there is one, seems to derive from the father’s seeming ambivalence about the truth of these allegations, rather than any risk emanating from the paternal grandfather directly or, indeed, from the father directly.
Because Y suffers from ADHD, the Court must consider her developmental, psychological and emotional needs under s 60CC(2)(c) of the Act. The maternal grandmother and the mother both raise an issue about the father’s capacity to provide for Y’s developmental, psychological and emotional and cultural needs (s 60CC(2)(d) of the Act). Given that the father agreed that Y should live with the maternal grandmother, who would have sole parental responsibility, it must logically follow that he does not have such concerns about the maternal grandmother. The Court identifies the importance recognised in s 60CC(2)(e) of the Act, of Y having the benefit of a relationship with her father, if it is safe to do so. As observed, however, there is no present relationship.
A number of other issues arise on the facts under s 60CC(2)(f) of the Act, namely:
·The nature of Y’s relationship with the father;
·The extent to which he has fulfilled his obligation to maintain Y;
·The likely impacts on Y of the change that would be brought about by commencing time with the father;
·The capacity of the maternal grandmother to provide for Y’s needs;
·The need to have a relationship with the father, if such need is found;
·The relevance, if any, of the father’s recently discovered Aboriginal heritage; and
·The father’s and the maternal grandmother’s attitudes towards Y, and their responsibilities as parents and/or carers of her.
Finally, it would be not just preferable, but beneficial to Y, that an order is made that is least likely to lead to further proceedings in the future. The intention is to discuss these issues without necessarily referring to the relevant statutory provisions.
DISCUSSION
The father gave evidence by way of his trial affidavit affirmed 9 January 2025 (“the father’s affidavit”), and he was cross-examined. The father’s affidavit was short and, surprisingly, did not contain evidence which the Court would have considered relevant to his Response.
Specifically, he said absolutely nothing of the history of his attempts to gain some form of contact or communication with Y, notwithstanding the fact that he was legally represented for the entire proceedings, which he joined on 1 March 2019. The father initially sought parental responsibility to be shared with the maternal grandmother but provided no evidence to explain why that was necessary, and, in any event, how it would work as a practical matter in the circumstances of this case. It was abundantly clear that the father’s relationship with the maternal grandmother was highly problematic, marked by enormous distrust, and the inability to communicate.
The father made little to no attempt to explain what he perceived as the benefits to Y of having a relationship with him or having regard to what Y would need to go through to establish that relationship. Likewise, he did not explain how he would parent Y on his proposal in the circumstances of this case. Just taking a very simple matter, there was no attempt to explain how he would finance his half share of the supervised contact that he proposes in circumstances where he gave evidence that he was unemployed, and the full-time carer of his child from another relationship.
He was cross-examined, and luckily for him, he was given the opportunity to address some of the omissions in his affidavit. He did little to alleviate the Court’s concerns. For example, the Court finds that his efforts to secure time and communication with Y went no further than simply discussing the matter with his solicitor, notwithstanding a series of Family Reports that, in effect, would have supported such a Response. Not one letter or one phone call was made. The commencement of this hearing was the first attempt to press the Court to make orders about time and communication between him and Y in over seven years.
Quite apart from the fact that the father was represented at all relevant times, the litigation history of this matter contains numerous Applications in a Proceedings, and interim orders which should have clearly conveyed to the father that he had the opportunity, if he had so asked, to make an application for interim orders. Especially when the first Family Report was so supportive of him. The Court does not accept his lawyer’s submissions that his failure to act can be explained by the uncertainty that existed about the paternity of Y. This uncertainty was, in any event, resolved by July 2023 and, still, there was no action taken.
The Court does not accept the submission that, in effect, an application for time or communication would have been futile, as he might not have been successful in such an application. The mere fact of an application would have demonstrated his commitment to spending time with his daughter. It is not as if the father was not aware of the significance of this issue. For example, at paragraph 16 of the Addendum Report, he specifically refers to the delays in establishing an arrangement for Y to spend time with him and he attributes this to “litigation complexities”, whatever that means.
There was a delay in obtaining the parentage testing. It is by no means clear from the documents before the Court, or the Court’s record, who was responsible for this delay. There are multiple orders made by the Court which are seemingly inconsistent on this issue. At paragraph 61 of the first Family Report, the father conceded that he had not completed the DNA test even though he had no issues with doing so. When the father was reminded in cross-examination that Y suffers from ADHD, which would present challenges in parenting her, his only response was to say that his son also has ADHD, and that inferentially this equipped him to care for Y.
This is a start, but it leaves unanswered the question about his capacity to care for two children with ADHD. There is absolutely no doubt in the Court’s mind that the father meant well in his Response. The Court will infer that his Response was brought in good faith, but the Court is left with some doubts about his actual commitment to implementing the proposal he makes, and his capacity to implement it. His expectation of how Y would cope with a commencement of time with him was optimistic and simplistic.
It is clear to the Court that the father has also had a difficult life. He is estranged from his father and sister. He is currently not in a relationship himself and, thus, any support network that he has is not readily apparent to the Court.
The father’s failure to disclose his family violence related criminal convictions in 2015 to the first Family Report Writer and then to Family Report writer and again to the Court in his affidavit is of concern, both to the Court and to the Family Report writer. From the Court’s perspective, it raises the issue of whether there are other relevant, factual matters of background that he has not disclosed. From the Family Report writer’s perspective, she was deprived of the opportunity to explore the details of what has occurred and to form an assessment of the father’s insight, his acceptance of responsibility, and to consider how he might respond in future similar situations.
As will be seen, a significant concern in the maternal grandmother’s case is the allegations that the mother made, being that the paternal grandfather sexually abused her as a minor. This is an allegation that apparently the father’s sister also made relating to herself. It is clear to the Court that the father is sceptical about these allegations. He is estranged from his father and, thus, there is no risk of Y being exposed to him. The father nonetheless fails to perceive how his ambivalence about the allegations would create anxiety in the minds of both the mother and the maternal grandmother about his capacity to adequately protect Y, and further deepen their mistrust of the father. The Family Report writer was also concerned about this and alluded to the father’s possible ambivalence about any disclosures that Y might make in future.
The Court’s concerns about the father’s commitment and capacity to maintain consistency in terms of establishing a relationship with Y were explained to the Family Report writer, and she was asked to respond. She emphasised the importance of both consistency and commitment in a case where the father is seeking to establish a relationship with his daughter. Without those attributes, the relationship would not establish or flourish. The lack of consistency might lead to a creation in Y’s mind of an identity of the father, but it would not progress to a relationship.
There is a risk to Y of establishing identity by way of introduction but then not building on this. The maternal grandmother gave evidence in her trial affidavit affirmed on 20 December 2024 (“the grandmother’s affidavit”) and in cross-examination. It is palpably clear to the Court that she wants no relationship with the father and will not presently countenance or support a relationship between the father and Y for a number of reasons. To her credit, and consistent with the Independent Children’s Lawyer’s proposal, she is prepared to keep the door open should Y herself express a desire to know the father.
The maternal grandmother has a loving but complex and evolving relationship with the mother. There has been an ebb and flow in this relationship. It is currently in a good place. From the material before the Court, an inference could be drawn that the mother was critical of the maternal grandmother in the past, possibly continuing, for inhibiting her relationship with Y and Z, but from the Court’s perspective, and based on the totality of the evidence before the Court, the maternal grandmother was unequivocally acting protectively of the children. As is reported at paragraph 37 of the Family Report, the maternal grandmother would “always have their back”.
At paragraph 46 of the Family Report, there is a record of Ms D, that is, the mother’s paternal grandmother and a support person to the maternal grandmother, describing her as having the “patience of a saint”. A number of preliminary observations are necessary about the maternal grandmother. She was an emotional and, at times, feisty witness. Her advocacy for Y is unquestionable. Nonetheless, many answers given in cross-examination contained assertions not found in her affidavit. Paragraph 8 of the Family Report explains that the maternal grandmother has been diagnosed with a mild intellectual disability and Attention Deficit Disorder and is currently supported by the National Disability Insurance Scheme. This adds to her vulnerabilities.
She was confronted with the reality that at one point in the proceedings; namely, her further Amended Response dated 21 August 2020 (“the maternal grandmother’s further Amended Response”), she was one of several parties to the proceedings who had filed an Amended Response which proposed orders for the father to spend time and communicate with Y. It is curious that even this fact was not used by the father in bringing an Application to the Court. Nonetheless, notwithstanding some of the concerns about her evidence that I have expressed above, I found her denial of any knowledge about this to be quite convincing. It is simply implausible that she would willingly support that which she seems, not only, to be implacably opposed to now, but at all relevant times.
Now, for example, paragraph 23 of the first Family Report, based on interviews held in February 2020, confirmed that the maternal grandmother’s proposal was that Y live with her and spend no time with the father. This was consistent with the mother’s proposal. Indeed, not even the father had proposed that he spend time with Y until the interview with the first Family Report writer. It is therefore highly unlikely that by August of the same year, the maternal grandmother would completely reverse her proposal about Y spending time with the father. For all practical purposes, the Court places no forensic weight on the Orders purportedly proposed by the maternal grandmother’s further Amended Response.
It is important to try to understand why the maternal grandmother wants no relationship with the father. In short, the Court finds that there are two substantive concerns. The first one relates to the father himself in terms of his parenting capacity and especially his capacity to keep Y safe. The second concern relates to Y herself and her current vulnerabilities and stability.
As foreshadowed above, the maternal grandmother unequivocally accepts the veracity of the mother’s allegation that the paternal grandfather sexually assaulted her as a minor, and that Y was born as a result of non-consensual sex with the father. Her belief is unshaken by objective factors such as the absence of police action and the closure of the departmental investigation file. The Court’s impression is that the maternal grandmother also believes the father’s sister’s allegation of sexual abuse against the paternal grandfather. The implacable belief of the maternal grandmother must be understood in the context of her experience of multiple traumas, indeed, the Family Report writer called it compounded trauma in her life, as well as her unwavering commitment to the best interests of Y.
It is not possible for this Court, indeed, it is not this Court’s role to find whether the alleged abuse occurred as alleged or at all. It must be recalled that the mother offered no evidence in this case except via her case guardian. The father denies these allegations, but the Court finds that it is reasonable to describe as ambivalence his attitude about the correctness or otherwise of the allegations against the paternal grandfather and himself. As mentioned above, it would quite reasonably stoke the fires of distrust about him in the minds of both the grandmother and the mother.
The Independent Children’s Lawyer, quite correctly, described the maternal grandmother as hyper-vigilant in relation to these matters. That is an observation derived from paragraph 61 of the Addendum Report. The Court accepts this evidence of the Family Report writer and especially the risk of hypervigilance driven questioning about Y’s safety when she returns from spending time in the father’s care. The father’s non-disclosure about his criminal conviction would merely foster that hypervigilance. His Response seeking shared parental responsibility, only abandoned on the day of the hearing, would have further fostered that hypervigilance.
The father’s own evidence before the Court, that notwithstanding that he was working at times during the long course of these proceedings, he offered no child support whether assessed or not, would not have helped. Indeed, it would have reasonably led the maternal grandmother to have doubt about the father’s commitment to supporting or being a part of Y’s life. The second aspect of the mother’s concern was about Y herself. She was concerned, in effect, about destabilisation. Whilst not necessarily the words used by the maternal grandmother, underlying her concerns seemed to be unresolved issues about not just why the father wanted time, but why was it being pressed now so many years later. In particular, in circumstances that she described as the comparative stability in her household, and the relatively good place that Y was in.
In cross-examination, the maternal grandmother gave poignant evidence about Y’s behaviour when dysregulated. For example, she said words to the effect that when Y gets into an unfamiliar environment, she acts out and misbehaves, sometimes deliberately, in order to get things her way. She uses a shrill voice. It is hard, she says, to calm her, and it is best to remove her from the environment. When she is distressed, she wets herself. She will not necessarily tell you what is worrying her. She carries around a soft toy when she is afraid or distressed, and it is only in the last few months that she has given this up. The maternal grandmother explained that it was her honest belief that spending time with the father would precipitate all of this behaviour again and probably more. She said, and I quote “she will go backwards”.
Her concern was that time with the father would intensify these issues, rather than resolving them, especially in circumstances where the father was, after all, a stranger to her. None of this evidence was challenged. The evidence of Y’s treating paediatrician was uncontested. There were two letters in evidence dated October 2023 (“the October 2023 letter”) and February 2024 (“the February 2024 letter”) (collectively “the letters”) relating to her ADHD behaviours and learning difficulties which became Exhibit ICL8. She has been treated by this paediatrician since October 2022. In the October 2023 letter, Y is described as hyperactive impulsive with such behaviour being observable during the consultation. She was prescribed ADHD medication and medication to assist her sleep at night.
In the 2024 letter, there was reference to a diagnosis of ADHD of the hyperactive impulsive type. Her medication was continued. The letters refer to low IQ and the need for learning support at school. The maternal grandmother’s affidavit refers to Y’s “slight delay in learning” at paragraph 119. Y’s school reports are annexed to the maternal grandmother’s affidavit, and this came into evidence as Exhibit R1. On any assessment of the letters, there is no doubt that she is struggling on many fronts, albeit making gradual overall progress. She is easily distracted, needs frequent reminders to respect rules, and struggles to settle into school routines. Nonetheless, she is described as a creative and artistic student who can showcase inventiveness and originality, whilst still struggling to be compliant and cooperative with her behaviour. Again, none of this evidence was challenged.
Overall, the maternal grandmother’s concerns about Y and whether, for example, the father could demonstrate the same level of persistent and sensitive care are understandable and indeed, well-founded. As mentioned above, there is little in the father’s evidence that would reassure the Court that he has the capacity to provide for the special needs that Y has. Even though he already cares for an ADHD child, that does not mean he could care for two ADHD children, especially one for whom the experience would be a dramatic change in her life, and in circumstances where he seems to have little apparent support. That is not to say that the father is not important in Y’s life.
It is important to consider the expert evidence considered in the collective Family Reports. It is true that the first Family Report writer in 2020, recommended that the father spend time with Y. Paragraph 125 of the first Family Report explains, however, this was predicated on the allegations made against the father not being accepted and on a finding that there was no unacceptable risk of harm in spending time with him. It was a recommendation that may have been influenced by absence of knowledge about the father’s criminal record. In any event, it was a recommendation that, seemingly, the father himself never pressed until the current hearing. In the Addendum Report at paragraph 69, once again, but this time by the Family Report writer, there is a recommendation that the father spend time with Y, but even so, it was predicated on the Court supporting Y spending time with the father, rather than any assumption that it should take place.
When the evidence of the Family Report writer is considered in its totality, the Independent Children’s Lawyer was correct to submit that there must be a benefit to Y in spending time with her father that is greater than the potential harm that is caused to her. As the Family Report writer explained at paragraph 58, any progression of time with the father would depend on how Y reacts to him, which on the facts of this case, is completely unknown. For all practical purposes, it would be an experiment involving Y and one the results of which could not be monitored by the Court.
Moreover, the Family Report writer recognised the potential impact on both the mother and the maternal grandmother if Y were to spend time with her father, given their concerns about him. The Family Report writer also recognised the importance of the maternal grandmother being supportive of the father-child relationship, something that is manifestly absent in this case. Indeed, the Family Report writer in cross-examination agreed that there was a very low likelihood that the maternal grandmother could co-operatively manage any arrangement for Y to spend time with the father.
At 57 of the Addendum Report, and confirmed in cross-examination, the Family Report writer refers to the benefit of guidance from a Family Therapist if Y were to be introduced to her father. The idea is problematic. Whilst the therapy is intended for Y, it is the maternal grandmother who has to facilitate this happening, and her intransigence about Y’s time with the father is palpable. There is no guarantee that therapy would be successful. It would not be possible to make a final order that is in any way dependent on progression of supervised time based on a decision or recommendation made by a Family Therapist. No one sought an interim order in this case, and the Court doubts whether that would have been a viable proposition in any event, given the very long history of litigation in this matter and the need to finalise it. On the facts of this case, the potential intervention of a Family Therapist was impractical.
At 63 of the Addendum Report, the Family Report writer considers an alternative could be that there would be no order for Y to spend time with the father, but that he be provided with periodic updates regarding Y’s school, health, and general wellbeing twice a year. The benefit of this is that they provide a foundation to the father to maintain some level of connection with Y, so that if Y chooses to seek a relationship with the father when she is older, these reports would provide a valuable starting point for building a connection. Nothing was said about this in submissions. No order was sought to this effect.
In cross-examination, the Family Report writer agreed that the success of such a proposal would depend on the maternal grandmother’s cooperation, which cannot be assumed after the date that any orders are made. In the circumstances, the Court declines to make such an order of its own initiative. As foreshadowed in the applicable law section above, and in the identification of relevant issues, I must consider a number of legal issues in relation to whether Y should spend time with the father. An order for Y to spend time with the father does not promote her safety from being subjected to or exposed to other harm.
Moreover, as the maternal grandmother has the uncontested care of Y, the order would likewise have the same effect on her. The harm is not from family violence, abuse or neglect. The evidence does not permit such a finding. There is no evidence before the Court to suggest that the father would be violent to, or in the presence of, Y or abuse or neglect her. The harm in this case is the other harm that is referred to in s 60CC(2)(a) of the Act. Being, in this case, psychological harm to Y and the maternal grandmother which is, in the view of this Court, highly likely to arise if an order was made in the terms proposed by the father based on the findings that have been made by the Court.
In short, and I emphasise for the time being, neither Y nor the maternal grandmother could cope psychologically with the order proposed by the father in his Response. That may change in the future. Y’s developmental, psychological and emotional needs all strongly contraindicate the proposed order of the father. Whilst Y would benefit from a relationship with him in an ideal sense, in a practical sense, there is insufficient benefit to her for the time being. Indeed, this Court finds that the disadvantage to Y for the time being is greater than any advantage.
The Court has serious reservations about, and finds that, for the time being the father lacks the capacity to provide for Y’s developmental, psychological and emotional needs, particularly taking into account her ADHD. The Court has serious concerns, and finds that, for the time being, the father lacks the commitment and capacity to consistently implement the proposal that he, himself, advances.
The Court is unable to find that Y has a right to enjoy an Aboriginal culture. This is an issue that was raised by the Independent Children’s Lawyer, and none of the parties of course, until it was raised.
The Court accepts the submissions of counsel for the maternal grandmother, the substance of which are that the mere assertion of Aboriginality by the father, which is contested by the maternal grandmother, and in respect of which the mother makes no comment, does not form the basis of treating her as an Aboriginal child. The Court does not accept the submission of the Independent Children’s Lawyer’s advocate that the mere reference to Y as an Aboriginal child in the Department of Communities and Justice records likewise establishes the fact of Aboriginality. It is significant to the Court that the father made a concession that his Indigenous background is not a part of his life or the lives of his other children. Thus, not even he asserted the relevance of this issue.
The focus finally turns to the orders that should be made. The starting point is the Minute of Order sought in the Independent Children’s Lawyer’s case outline insofar as it relates to Y. Most of these orders were covered in the consent order made on 13 January 2025. The focus then turns to the orders contained in Exhibit C1. Orders 1 to 3 are uncontentious in this sense. Whilst the fathers preference is that he spends time and communicate with Y, if the Court finds against him, then he does not oppose this option.
Accordingly, the Court makes orders 1 to 3 of Exhibit C1. Order 4 restrains all parties from bringing the children into contact with Mr Garton, who is Z’s father. In the maternal grandmother’s case outline she seeks an order under s 68B of the Act. The mother likewise seeks an order in this regard, and the father does not oppose it. For all practical purposes, the present hearing proceeded on an undefended basis so far as Mr Bleier was concerned. He chose not to participate, and as the Addendum Report indicates, he himself conceded that it was not appropriate for him to have any role in Z’s life for now.
The Court is satisfied that Mr Bleier either knew, or should reasonably have expected, having regard to the history of this litigation including the documents that had been filed by the time he was no longer participating in the proceedings, that an order seeking to exclude him from the lives of Y, Z, the maternal grandmother and the mother was reasonably foreseeable.
Whilst this Court was initially concerned that such an order was an ex-parte order insofar as Mr Bleier is concerned, the Court is now reasonably satisfied that the order is made on an undefended basis insofar as he is concerned. In the circumstances, therefore, Orders 11, 12 and 13 of the mothers case outline will be adopted save and except, that it will specifically include the maternal grandmother. Returning to Exhibit C1, Order 5 will not be made as the Court is not able to make a finding that Y is Aboriginal. Further, Order 6 of Exhibit C1 will be made, and the Court understands that this is not contentious.
The maternal grandmother, but not the mother, also sought a s 68B order against the father. He opposed the same on the basis that there was neither a foundation for such an order nor a need for it. On the evidence before the Court, the Court agrees. There is no evidence before it that the father has even been mildly critical of the maternal grandmother, let alone threatened to harm her. The same applies in relation to both Z and Y. There is no basis for that order.
In closing, the Court states for the benefit of the father that it will understand if he receives these reasons for judgment and the outcome of the case as being a no to his position contained in his Response, in relation to Y. From the Court's perspective, it should more properly be perceived as not yet.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 10 February 2025
SCHEDULE ONE
Date Event 1976 Ms Thompson, the Maternal Grandmother, born 1990 Mr Olsen born 1995 Mr Bleier born 1995 Ms Chancellor, the Mother, born 2001 Maternal Grandmother and Step-Maternal Grandfather cohabitate 2008 Mr G born, child of the Maternal Grandparent (currently lives with the Step-Maternal Grandfather) 2011 H, child of Mr Olsen, born (lives with her mother) 2015 X, child of the Mother and Mr Sansone, born Early 2016 Mother commences relationship with Mr Olsen 2016 SUBPOENA RECORDS indicate Mr Olsen is sentenced for offences by Local Court to a section 10 bond for 12 months on the condition that he does not assault, molest, harass or intimidate Mr J Late 2016 Mother ceases relationship with Mr Olsen and returns to live with the Maternal Grandmother 15 March 2017 Mr Sansone, father of X, files an Initiating Application 2017 Y, child of the Mother and Mr Olsen, born (currently 7 years) 1 June 2017 Mother files Response 9 June 2017 Orders by consent that the parents have equal shared parental responsibility for X and time and communication as agreed March 2018 Mother commences relationship with Mr Bleier 2018 K, child of Mr Olsen, born (currently lives with Mr Olsen) 8 October 2018 Maternal Grandparents file Response after being joined as parties to the proceedings between Mr Sansone and the Mother 2019 Z, child of the Mother and Mr Bleier, born (currently 6 years) Early 2019 SUBPOENA RECORDS indicate Mother makes report to Police of historical sexual assaults allegedly perpetrated by Mr Olsen and his father May 2019 Mother returns to live with the Maternal Grandmother and subsequently leaves with Z only July 2019 INTERIM ORDERS for X, Y and Z to live with Maternal Grandparents and for parentage testing to take place in relation to Y. Orders also made restraining the Mother from bringing the children into contact with Mr Bleier. 2020 B, child of the Mother and Mr Bleier, born (currently in the care of Ms D, the Mother’s Paternal Grandmother, pursuant to Final Orders made on 28 May 2021 by Children’s Court) 17 September 2020 INTERIM ORDERS made by Justice Hannam for the children to spend supervised time with the Mother 30 October 2020 SUBPOENA RECORDS indicate the children spent time with the Mother under the supervision of L Contact Service Late 2020 SUBPOENA RECORDS indicate Mother is scheduled following the removal of her child B from her care by DCJ and is conveyed to M Hospital Late 2020 SUBPOENA RECORDS indicate Mother is discharged from M Hospital 19 November 2020 Mr Olsen files Response 2021 Maternal Grandmother and Step-Maternal Grandmother separate Early 2021 Protection Order made in Queensland against Mr Bleier for the protection of the Mother (effective until early 2026) 1 October 2021 SUBPOENA RECORDS indicate Mr Bleier is sentenced by Court for a sexual offence to a term of imprisonment commencing 2021 and expiring 2025, with a non-parole period concluding mid-2023 2021 E, child of the Mother and Mr Bleier, is born (it is understood that E is currently in foster care and subject to Care Orders in Queensland) 6 May 2022 ORDERS made dismissing the family law proceedings in relation to B pursuant to section 69ZK 2023 Maternal Grandmother is charged with offences relating to her now adult daughter, Ms N born in 2005. Charges and AVO application were dismissed following a Final Hearing at Local Court in mid‑2024 Mid-2023 Date of parentage testing results in relation to Y 19 September 2023 ORDERS made appointing Ms Lishan as Litigation Guardian for the Mother 21 December 2023 FINAL ORDERS made in relation to X. By consent, X is to live with Mr Sansone, Mr Sansone to have sole parental responsibility for X, and X is to spend time with the Maternal Grandmother as agreed 30 May 2024 Date of Family Report prepared by Ms C 5 September 2024 Mother contacts the Maternal Grandmother by text message asking to repair their relationship. Approximately every two weeks they have telephone communication and the Maternal Grandmother provides the Mother with information regarding the children 17 September 2024 Mr Talaba’s (Maternal Step-Grandfather) Response is dismissed Late 2024 SUBPOENA RECORDS indicate Mr Bleier is sentenced by Local Court for an offence to a Community Corrections Order, concluding late 2026 13 December 2024 Date of Addendum to the Family Report 18 December 2024 Mr Bleier’s Response is dismissed 6 December 2024 Maternal Grandmother files Further Further Further Amended Response to Initiating Application 9 January 2025 Mr Olsen files Amended Response to Initiating Application Undated Date of Further Amended Initiating Application signed by the Mother’s Litigation Guardian
0
0
1