Sykes and Agnes and Anor
[2012] FMCAfam 121
•16 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SYKES & AGNES and ANOR | [2012] FMCAfam 121 |
| FAMILY LAW – Children – maternal grandmother’s application for time with five year old child – applicant and her family display negative attitude towards the father – mother not a participant in proceedings – child not spending time with the mother – grandmother seeks initial supervised and then unsupervised time with child – balance of benefits and detriments to the child of time with regime. |
| Family Law Act 1975, ss.60CA, 60CC, 61C, 61DA, 65C |
| Samson & Jacks [2008] FamCA 176 |
| Applicant: | MS SYKES |
| First Respondent: | MR AGNES |
| Second Respondent: | MS MORGAN |
| File Number: | DGC 2274 of 2010 |
| Judgment of: | McGuire FM |
| Hearing dates: | 24 & 25 November 2011 |
| Date of last submission: | 25 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 16 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burns |
| Solicitors for the Applicant: | Einsiedels |
| Counsel for the First Respondent: | Mr A. Combes |
| Solicitors for the First Respondent: | Macgregor Solicitors |
| The Second Respondent: | No appearance |
| Counsel for the Independent Children’s Lawyer: | Mr Gates |
| Solicitors for the Independent Children’s Lawyer: | Hardys |
ORDERS
That the father Mr Agnes have sole parental responsibility for the child [X] born [in] 2006 (“[X]”).
That [X] live with the father.
That [X]’s time with the mother be reserved.
That the applicant grandmother be permitted to communicate with [X] by letter, card and/or gift as follows:
(a)such communication to be forwarded via [X]’s father at a postal address to be provided by the father to the applicant grandmother, and the father to keep the grandmother advised of any changes in his residential or postal address;
(b)on the child’s birthday and Christmas and on not more than four other occasions in each year;
(c)the father will assist and encourage the child to respond to each communication received from the grandmother;
(d)the grandmother be entitled to include photographs of herself and her direct family members with each communication.
That [X] spend time with the applicant grandmother as agreed between the father and the grandmother and on such terms as agreed between them from time to time.
That the applicant grandmother’s application filed 5 August 2010 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sykes & Agnes and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 2274 of 2010
| MS SYKES |
Applicant
And
| MR AGNES |
First Respondent
| MS MORGAN |
Second Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern one child, [X] born [in] 2006 (aged six years).
[X] is the child of the respondents, Mr Agnes and Ms Morgan.
The applicant is the maternal grandmother, Ms Sykes. Ms Sykes is the mother of the second named respondent, Ms Morgan, who takes no part in these proceedings. The mother has not had any form of relationship with [X] for some time.
The active participants in this matter, Ms Sykes and Mr Agnes, have each variously sought different orders in respect of [X] but with the main issue centring on what, if any, time [X] spends with the applicant maternal grandmother.
In her initiating application filed 5 August 2010, Ms Sykes sought orders inter alia whereby [X] spend time with her each second weekend from 6.00 pm on Friday until 6.00 pm on Sunday and for block periods during school holidays. However, by the commencement of the trial in November 2011, Ms Sykes was seeking orders as follows:
·that [X] spend supervised time with her at a contact centre each second week at times agreed between the parties or directed by the centre and for a period of six months;
·thereafter for a further period of six months for one day each weekend between 10.00 am and 5.00 pm;
·thereafter each alternate weekend between Friday afternoon and Sunday afternoon.
In his final submission, however, counsel for the applicant grandmother sought orders in the following terms:
·that [X] spend time with the applicant grandmother supervised at the [omitted] Children's Contact Service for a period of 12 months, “unless [omitted Children's Contact Service] considers supervision no longer necessary” and that extended family members, presumably including the second named respondent mother, be entitled to attend with the grandmother;
·that this be an interim order and the matter come back to this Court after the 12 months has expired with a further family report and a report from the [omitted] Children's Contact Service.
The orders sought by the father have also been something of a moving feast. In his response filed 28 September 2010 Mr Agnes sought that the grandmother’s application be dismissed. His affidavit in support of that response, however, made it clear he also proposed that [X] spend time with the second named respondent mother on a supervised basis but only after the mother was able to provide a satisfactory psychiatric assessment of her own mental health.
By the time of his trial affidavit sworn 23 November 2011, being the day prior to the commencement of the trial, the father had moved from his position of absolute denial of time for [X] with the grandmother. At paragraph 30 of that affidavit he states:
THAT I have read the Family Report in this matter and that whilst I am not particularly keen on the applicant I concede that it would be good for [X] to have a relationship with her maternal family. I therefore accept and adopt the recommendations contained in that report.
The parties and the Court had the benefit of a family report prepared by Ms J, family consultant, and dated 31 October 2011. Ms J recommends at paragraph 53 and following of her report:
It is recommended at this time that Mr Agnes has sole parental responsibilities for [X].
It is recommended at this time that [X] lives with Mr Agnes.
It is recommended at this time that [X] spends time with Ms Sykes at the [omitted] [[omitted] Children's Contact Service] six to eight times a year unless further information comes to light. It is recommended that Ms Sykes sends letters, cards and presents to [X] via her paternal grandfather and that she has phone communication on the special days through the year. It is recommended that Mr Agnes sends up date [sic] photos of [X] to Ms Sykes every six months.
It is recommended that if Ms Morgan requests to spend time with [X] that this be supervised at a Children’s Contact Service until Ms Morgan participates in a family report.
Nevertheless, and despite his apparent concessions in the affidavit sworn only a day before the trial, counsel for Mr Agnes opened his case seeking orders as follows:
·that the child [X] not spend time with the maternal grandmother; or alternatively,
·that the child [X] spend time with the maternal grandmother each second month for a period of six months (three visits) at a contact centre and thereafter spend time with the grandmother on six occasions per year each for two hours and supervised by the father’s grandmother.
The tenor of this submission was that this would be an ongoing arrangement.
This remained the father’s position as put by his counsel in final submissions.
Background
The respondent father is 30 years of age. The mother is 23 years old. They commenced a relationship in 2005 when the mother was about 17 years old. They did not marry.
The parents, however, had known each other since childhood. For a period Ms Morgan’s family, including the applicant maternal grandmother, lived with or next to the father and his family in Melbourne after the Morgan family had moved from Sydney.
[X] was born [in] 2006. She is the only child of the parents.
The applicant maternal grandmother is the mother of eight children ranging from approximately 30 years to about 10 years of age.
The grandmother was married to Mr A Morgan. They separated in 2004. Mr A Morgan, on all accounts, was an extraordinarily strict and at times cruel husband and father to his wife and children. They were denied normal schooling. There is much evidence of physical, psychological and emotional abuse the details of which need not be articulated in these reasons. He was himself apparently the child of Exclusive Brethren parents and, although not practising that religion in his adulthood, appears to have maintained many of the strict social views of the Brethren.
The Morgan family lived in Sydney until 1999 when they moved to Melbourne. It is conceded by Ms Sykes that the move was initiated by strong interest from the New South Wales Department of Community Services and, in fact, they appear to have “escaped” to Melbourne so as to avoid intervention from that government department.
Whilst there was some further interest from the Department of Human Services in Victoria, Ms Sykes’ separation from Mr A Morgan in 2004 appears to have brought any interest in intervention from that department to closure. Ms Sykes says that she has had no contact with or from Mr A Morgan since 2004. She says that her children have since attempted to assimilate into the community and enjoy pleasures such as television, DVD and formal schooling.
[X]’s mother, Ms Morgan, nevertheless has residual social difficulties. She is quite obviously a recluse. She lives alone in a [omitted] Melbourne suburb and it seems her only contact with the outside world now appears to be with one sister, Ms L Morgan.
Significantly, Ms Sykes herself has no direct contact with her daughter, Ms Morgan. Her last contact was at least six months ago and they have been completely estranged for about two years with minimal contact during that period.
Ms Morgan has not participated in these proceedings. Her sister Ms L Morgan suggests that Ms Morgan has had some form of “psychological testing” with some success. There is no other evidence before the Court of such testing. Ms L Morgan says that Ms Morgan contemplates bringing her own application to this Court seeking orders in respect of [X]. No application has yet been filed.
Ms Sykes indicated in her affidavits and evidence that Ms Morgan “supported” her own application. Indeed, a reading of Ms Sykes’ affidavit does not readily make clear the fact that she is estranged from Ms Morgan and a reader might understandably be led to believe that there is a continuing relationship between mother and daughter. It was only in her evidence in Court, and particularly in cross-examination, that the estranged relationship between the two became apparent.
Ms Sykes denies the allegation of the father that she may practice the religion of the Exclusive Brethren or the Plymouth Brethren. I accept her evidence in this regard.
There is evidence, emanating from the father, that Ms Morgan may have been sexually abused during her minority separately by an older brother and an elderly member of Ms Sykes’ most recent church. Ms Sykes admits disclosures by Ms Morgan but the Court remains concerned as to the lack of detail and apparent response by Ms Sykes to these prima facie grave allegations.
Mr Agnes and Ms Morgan separated in 2007. [X] has lived with her father since that time. The mother has not spent time with [X] since early 2008 and the grandmother did not see [X] for approximately two years until interim orders from this Court permitted some short supervised time.
On 28 September 2010 I made interim orders appointing an independent children’s lawyer and providing:
·that [X] live with the father; and
·that Ms Sykes and Mr Agnes make application to the [omitted] Children's Contact Service for Ms Sykes to spend supervised time with [X] for two hours on each fourth weekend.
On 15 February 2011 I made an order for a family report.
Mr Agnes describes himself as a [omitted occupation]. It is clear that he is the sole carer of [X]. He receives some assistance from his own elderly grandmother. He says that Ms Morgan has shown no interest in and not attempted to contact [X] since late 2007 or early 2008.
Mr Agnes says, and it appears not to be in dispute, that he and Ms Sykes have historically had a poor and antagonistic relationship. The same appears to be the case between Mr Agnes and other children of Ms Sykes.
The law
The orders that I am asked to make are parenting orders in respect of [X]. As such, I am to have [X]’s best interests as my paramount consideration.[1]
[1] Section 60CA of the Family Law Act 1975 (“the Act”).
In determining those best interests I am to have regard to the mandatory considerations set out in s.60CC(2), (3) and (4) of the Family Law Act 1975 (“the Act”). A number of those considerations reference parents only. The matter now before me, of course, involves a grandmother and a parent. Ms Sykes is equivocal as to whether or not she would involve Ms Morgan in spending time with [X] should she be successful with her application. However, Ms Morgan has not taken part in these proceedings. I am satisfied that she has shown no direct interest in [X] for some considerable time. I am satisfied also that she has unresolved social, emotional or psychological difficulties. As such, and until Ms Morgan provides evidence either disputing or, preferably, having dealt satisfactorily with these issues then it is my view that time between [X] and the mother should be reserved.
In his response, Mr Agnes seeks an order for sole parental responsibility of [X]. This application is not the subject of contest by the grandmother.
Pursuant to s.61C of the Act, each parent of a child has complete but several parental responsibility for that child. Section 61DA of the Act however provides that a court is to apply a presumption that it is in the best interests of a child for parents to have equal shared parental responsibility for that child. That presumption does not apply if a court is satisfied that a parent has engaged in abuse of a child or family violence. The presumption can be rebutted if contrary to the best interests of the child.
In the matter before me it is clear that the father has been exercising the decision-making role without input from the mother for some time. The mother, for reasons best known to her, has no association with [X] whatsoever. Whilst Ms Sykes and her witnesses are critical in the extreme of the father’s parenting capacity, there is no contest as to him exercising parental responsibility. I am satisfied on the evidence as a whole that the father has discharged these responsibilities adequately to date and should therefore, in the child’s best interests, have the benefit of an order giving him sole parental responsibility for [X].
The community has long recognised the importance of grandparents, and extended family generally, in the lives and development of children. It is a relationship that by virtue of biology gives connection and identity for children providing important lines of culture and heritage. The family reporter clearly recognises these identity factors in arriving at her recommendations.
Similarly, the Act and the judgments of the courts have acknowledged the importance of such grandparent-child relationships. In Samson & Jacks[2] O’Ryan J stated at [32]:
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.
[2] [2008] FamCA 176.
The important amendments to the Act in 2006 gave some specific mention and recognition to grandparents. The Explanatory Memoranda to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 noted at [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.
Section 65C of the Act specifically permits a grandparent to make application for a parenting order. That section provides:
A parenting order in relation to a child may be applied for by:
(a)either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Those amendments from 2006 now specifically reference grandparents in the mandatory s.60CC(3) considerations as follows:
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child); [emphasis added]
…
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; [emphasis added]
…
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs… [emphasis added]
Nevertheless, and despite such explicit references, it remains the case that the Court is to consider all of the surrounding circumstances and dynamics of a child’s life and relationships and as such a grandparent holds no particular priority, special position or right in respect of a child. As always, it is the child’s best interests that remain my paramount consideration.
The evidence
The Court and the parties had the benefit of a comprehensive family report dated 31 October 2011 and prepared by Ms J, family consultant. Ms J was cross-examined.
The Court was also assisted by counsel instructed by the independent children’s lawyer. The independent children’s lawyer adduced evidence from Ms H from the [omitted] Children's Contact Service.
Ms Sykes relied on her trial affidavit filed 15 November 2011. She also adduced evidence from her daughters Ms L Morgan and Ms R Morgan. Each was cross-examined.
The father relied on his affidavit filed 23 November 2011 and adduced evidence from his grandmother, Ms Agnes. Both were cross-examined.
The family report
Ms J interviewed both parties and observed [X] with them. She had the benefit of contact with or material from the [omitted] Children's Contact Service and the Department of Human Services.
Ms J noted the warm and positive for [X] with her father, and expressed no concerns as to his capacity to care for the child.
Similarly, [X] was observed to settle quickly in the company of Ms Sykes.
Ms J noted the high level of historical and continuing conflict and antagonism between Ms Sykes and Mr Agnes.
In her conclusions Ms J recommended that [X] spend time with the maternal grandmother at the [omitted] Children's Contact Service for:
six to eight times a year unless further information comes to light. It is recommended that Ms Sykes sends letters, cards and presents to [X] via her paternal grandfather and that she has phone communication on the special days through the year. It is recommended that Mr Agnes sends up date [sic] photos of [X] to Ms Sykes every six months.
Significantly, Ms J’s recommendations in respect of supervised time for [X] with the grandmother appear to be open-ended. This is a situation which causes some concern for the Court in respect of practicalities and the actual benefit to be achieved for [X] of such an arrangement into the future. The rationale proffered by Ms J is that such contact with the grandmother, albeit infrequently and within the confines and connotations of supervision, will allow the child to understand her identity and connection with her mother’s family.
During cross-examination and in respect of her recommendations for ongoing supervised time, Ms J was asked a pertinent question being “where does it go from there?” Her response was:
In my view, sooner or later [X] will need some counselling to deal with the issues of her maternal family including who her mother is.
When challenged, Ms J maintained her opinion and recommendation that [X] should spend one hour with the maternal grandmother every two months on a supervised basis. She said that this would be “enough to provide that link”.
Despite her conclusions, Ms J agreed with Mr Combes of counsel for the father that there would be certain circumstances when it might not be in a child’s best interest to have a relationship with members of an extended family. Similarly, Ms J agreed with Mr Combes that the maternal family in this matter hold very strong negative views in relation to the father including that he should not be the primary carer for [X]. Further, Ms J also agreed that her opinion that children retain “memories” to maintain important family links would also involve them retaining “negative memories”.
Ms J agreed that the task in arriving at her recommendations is similar to that of the Court, being to weigh up whether the need to protect the child from a high conflict and negative situation is outweighed by the child establishing the most basic of relationships in a safe supervised setting.
Ms J saw the benefits for [X] of having limited time with her grandmother being the establishment of a connection with the maternal family, a recognition of her identity, and positive memories.
The grandmother’s evidence
The evidence of the grandmother herself and her daughters Ms L Morgan and Ms R Morgan is notable for its negativity and criticism of the father, Mr Agnes. The extent, vitriol and nature of such criticism is inconsistent with the nature of the grandmother’s application itself which seeks only limited time with the child. It was, of course, open to the grandmother (or any other interested person) to bring an application for primary care of [X] if they hold such serious concerns for the father’s capacity. Whilst they are graphic in their criticism of the father, no member of the maternal family challenges his application for [X] to live primarily with him.
Ms Sykes conceded the historical concerns of various government child protective departments in relation to her children. She admitted that the family “escaped” from the Department of Community Services interest in New South Wales. She, however, attributed the blame for those unhappy circumstances to her former husband. She emphasised the lack of interest and intervention by government departments since her separation from Mr A Morgan some years ago.
Ms Sykes was cross-examined as to her intentions in involving Ms Morgan with [X] in light of the reservations of the family reporter in there being direct contact. She admitted that she might in fact bring [X] into contact with the mother. This leads me to a consideration of the relationship between Ms Morgan and the applicant. The fact that there is complete estrangement is not made clear in Ms Sykes’ affidavits. Indeed, she suggests in her evidence that she has the support of Ms Morgan. However, her cross-examination disclosed that she has not seen her daughter for some six months and had no relationship for two years. Ms Morgan has not provided an affidavit in support of her mother’s application although I am told that she is aware of it.
I am also troubled by some of the evidence in respect of the historical relationship between Ms Morgan and her mother, Ms Sykes. Mr Agnes makes an allegation that Ms Morgan was the subject of sexual abuse from her brother whilst within the grandmother’s household. He alleges a second assault on Ms Morgan by an elderly member of Ms Sykes’ church. The grandmother admitted that Ms Morgan had complained of an abuse or assault at the hands of her older brother. However, she was vague and defensive in her responses when cross-examined as to this issue. For example, she said that she did not pursue any discussion with her daughter at any time as to the details of, or when, or where such alleged incidents were to have occurred. There was no evidence of any maternal or other counsel afforded the young Ms Morgan on making these revelations. I also had the advantage of observing Ms Sykes’ demeanour in the witness box when questioned about these serious matters. I can best describe her demeanour as unemotional and almost dismissive. She was similarly evasive in respect of the allegation in relation to the church member. The relevance of such matters, of course, is that Ms Sykes eventually seeks unsupervised and regular time with her granddaughter within her own home. I must be satisfied that [X] will be safe and protected in that environment. Similarly, Ms L Morgan and Ms R Morgan were vague, and in my view, evasive in respect of this issue. Ms L Morgan responded when cross-examined that Ms Morgan “might have alluded to it [the alleged abuse] in passing”. At paragraph 7 of her affidavit Ms L Morgan states:
Ms Morgan never informed our mother of any abuse from our older brother Mr C, and there was never a complaint made to the police or the local authorities regarding any sexual abuse made to the female members of the family.
This evidence seems contradictory of Ms Sykes’ evidence.
The grandmother’s trial affidavit references Mr Agnes’ allegation only in paragraph 4 as follows:
…Mr Agnes’s claim that he was aware of the sexual abuse of Ms Morgan by her brother Mr C raised the query in my mind as to why he then sexually abused Ms Morgan as a minor. I only became aware of the sexual assault by my son in 2006, however, I never left the girls, especially Ms Morgan, alone with my son. [X] was born in 2006 when Ms Morgan was 18 years old, so obviously she and Mr Agnes were in a sexual relationship well before she was 18 years old. To my knowledge there have been no notifications to any Government Department in relation to the sexual abuse of my daughters.
The grandmother’s trial affidavit is virtually devoid of any reference to any positive benefits for [X] of a relationship with her. The affidavit can be best described as a vehicle for her litany of criticism of the father personally, and in respect of his relationship with Ms Morgan, and his capacity as a parent. He is accused of assault and sexual assault on Ms Morgan. Ms Sykes states that she did not want her daughter Ms Morgan to have anything to do with Mr Agnes as he was a bad influence on her. He is accused of an obsession with torture and sadism. She says that he was violent and aggressive in the relationship with her daughter. She blames (at paragraph 14) Mr Agnes for any psychological or emotional problems for Ms Morgan. She says that Ms Morgan’s parenting of [X] was undermined by Mr Agnes. She sets out at paragraph 19 of her trial affidavit the rationale for her application as follows:
I want to see my granddaughter as I have concerns for her welfare as well as wanting to maintain a close relationship with her. [X] has a large extended family, as well as her mother, who want to be involved in her life…
Ms Sykes’ evidence in court was similarly negative in respect of Mr Agnes. She attributed Ms Morgan’s lack of attendance at court and participation in the proceedings as being because she was “frightened” of Mr Agnes. Nevertheless, in my view, she does not adequately explain her own estrangement from Ms Morgan. She blamed much of her daughter’s current problems on the personality of Mr Agnes. It was put to her that she does not hold Mr Agnes in very high esteem. She disagreed and said that she has “a lot of compassion for Mr Agnes”. However, her personal opinion of [X]’s father are best summed up by her response:
I think it a miscarriage of justice that he is the primary parent.
And to the question “do you say he is a risk?”:
Yes.
Ms L Morgan and Ms R Morgan
Ms L Morgan and Ms R Morgan were similarly extremely negative in respect of Mr Agnes. They also questioned whether he should be the primary parent of [X]. He was accused of anger and cruelty. Ms R Morgan saw Mr Agnes as the protégé of her own father who on anyone’s evidence was a cruel, troubled and perhaps sadistic individual. Ms R Morgan’s affidavit is simply a list of criticisms of Mr Agnes. With emphasis on the fact that the grandmother seeks only limited time with [X], Ms R Morgan’s affidavit is notable by statements such as that at paragraph 9:
Through all these accusations made by Mr Agnes, we are missing the point of the court proceedings, namely, is it in [X]’s best interest to have regular communication with her family on her mother’s side. In fact I believe it is in [X]’s best interest not to live with her father, coming from someone who lived with him as a young child. Mr Agnes is neither competent or reliable as a parent, especially with his medical condition which required him to go to hospital for weeks on end every few months…
And at paragraph 11:
Mr Agnes both physically and mentally abused Ms Morgan on numerous occasions. Many times I went around just to see him chasing her around the house with chairs, throwing knives at her, throwing her up against walls, locking her outside and threatening her verbally… Not only did Mr Agnes abuse his authority over her but the mere fact that [X] is the age she is while Ms Morgan is only 23 years old and Mr Agnes being 30 years old is proof that Mr Agnes raped unsuspecting innocent Ms Morgan while she sought Mr Agnes’s protection.
Ms L Morgan accuses Mr Agnes of being in a sexual relationship with her sister Ms Morgan since 2002 when Ms Morgan would have been 14 years of age. She too accuses Mr Agnes of physical violence and threats towards Ms Morgan. Mr Agnes for his part denies the maternal family’s allegations against him and such allegations are, in my view, without evidentiary support.
Ms L Morgan is the only member of her family who maintains contact with Ms Morgan. She says that Ms Morgan anticipates bringing her own application to the courts in respect of [X] but confirms that she would not provide an affidavit in support of the grandmother’s application.
The father’s evidence
The father gives evidence that he commenced a relationship with the mother when she was 17 years of age. He says that he experienced the Morgan family from 1999 when they moved to Melbourne and obtained accommodation from his father. He understood, perhaps from their lifestyle, that they were members of either the Plymouth Brethren or the Exclusive Brethren religious sects.
Mr Agnes documents what he says was the decline in Ms Morgan’s mental health to the point of their separation in December 2007.
Mr Agnes deposes that he receives assistance from his grandmother but is otherwise [X]’s sole carer. He says that she is developing well and achieving her milestones.
Mr Agnes deposes to his concerns in respect of the grandmother’s capacity with specific reference to the following:
a)The safety aspects which the Court must address under s.60CC(2)(b) of the Act in that Ms Sykes may not have acted protectively or appropriately in circumstances where Ms Morgan had alleged sexual abuse at the hands of her brother and a church member.
b)The inability of the grandmother or members of her family to acknowledge [X]’s relationship with him and their propensity to criticise and denigrate him.
c)Further, Mr Agnes argues that Ms Sykes may present as a flight risk with [X]. He notes that the family are extraordinarily critical of his parenting and state categorically that they do not believe that he should be the primary parent of [X]. He also refers to the family’s move from New South Wales to Victoria to avoid the intervention and interest of the Department of Community Services. He says that there is an undertone of religiosity similar to the beliefs and practices of some extreme religious sects which may cause Ms Sykes and the Morgan family to act so as to remove [X] from his care.
Ms Agnes
Ms Agnes, the father’s own grandmother, provided an affidavit and gave evidence. There was a suggestion from the father that she might assist by supervising some time for [X] with Ms Sykes and the Morgan family in the future. Ms Agnes was supportive of her grandson and did not criticise his care of [X]. My observations of Ms Agnes in the witness box were of an elderly and frail woman and I do not think that she would be a suitable supervisor and particularly given the attitudes, antagonism and animosity set out above.
Ms H
Ms H is the coordinator of the [Suburb omitted] [omitted] Children’s Contact Service. She annexes to her affidavit a report from the supervisor of [X]’s time with the grandmother over two visits. There is nothing remarkable in that report. It is clear that [X] did not reject and was not reluctant to be the company of the grandmother. Ms Sykes acted appropriately at all times.
Discussion
Whilst the father in his last affidavit suggests that he understands there to be a need for [X] to have a relationship with her maternal family, I must consider the benefit, if any, for [X] of such a relationship and particularly in the terms proposed by the parties.
I am mindful that the family reporter sees some potential benefits for [X] in having limited contact with the grandmother by way of connection, identity and memory retention. Nevertheless, Ms J also commented and noted the historical and continuing conflict, negativity and animosity between the father and the maternal family and agreed that in certain circumstances it may not be in a child’s best interests to have any direct relationship with an adult family member.
Essentially, my task in this matter, at its most abstract, is to balance the potential benefits for [X] of memories, connection and identity versus the risks to her physical and emotional welfare.
The father sees the risks as being the following:
·that the grandmother presents as a flight risk with [X] given her history;
·that the grandmother has a propensity to inflict physical discipline on children;
·that the grandmother has stated an intention to bring [X] into contact with the mother whereas the mother’s capacity to have a relationship with [X] remains an unknown;
·the potential of [X] being sexually abused within the household or within the general social environment of the grandmother; and
·the propensity of the grandmother and her extended family to denigrate the father.
On the evidence before me I do not see the grandmother as a flight risk. I am satisfied that separation from Mr A Morgan has rid this family of its severe and unusual behavioural and anti-social traits in the main.
There do, however, remain some general protective concerns in respect of the grandmother. I am not satisfied as to the explanation or lack of explanation she gave in respect of the alleged sexual abuse perpetrated on Ms Morgan by either the older brother or the church member. Ms Sykes’ responses in the witness box were unconvincing and it is simply incredible that a mother would not pursue any detail, explanation, or response from a daughter complaining of sexual abuse. The inconsistency in the evidence between Ms Sykes and her daughters also of concern. Nevertheless, I accept her evidence that her son, the alleged perpetrator, is no longer in contact with the family and hasn’t been so for some time.
There was some divergence in the evidence of Ms Sykes and her daughters in respect of the issue of corporal punishment. The daughters completely denied the fact. Ms Sykes conceded some form of corporal punishment.
I have two major difficulties and reservations in respect of the grandmother’s proposal. Firstly, the evidence of the grandmother, Ms L Morgan and Ms R Morgan was outstanding in its absolute negativity of the father. Their affidavits amounted to little more than a litany of unsubstantiated accusation. Neither Ms Sykes nor her daughters were able to make any positive comments or observations in respect of Mr Agnes. Further, they appeared keen in the extreme to give voice to those views of him. The sense, direction and negativity of their affidavits and their evidence in Court must be seen against the very discrete application of the grandmother being for limited time with [X]. The relevance to this evidence is therefore questionable, to say the least, and says much as to the attitude of the grandmother and her daughters and brings into question their ability to facilitate and encourage [X]’s relationship with her father. I have little confidence that they would be able to refrain from making [X] aware of these negative opinions of her father in the future.
Secondly, I am concerned as to the nature of the proposed relationship between Ms Sykes and [X]. On the family reporter’s recommendation, [X]’s time with the grandmother would be limited to about six occasions per year, at a formal contact centre, supervised and for limited times. I can only guess at what message this would send [X] as to the nature of her maternal extended family. The practicalities of continuing a relationship indefinitely at a contact centre are also problematic.
The grandmother of course proposes that after an initial period of time at a contact centre, the time spent by [X] with her becomes unconditional and for more lengthy periods. This then would accentuate the concerns I have as to the grandmother’s vitriolic and critical attitude towards the father.
The relationship between Ms Sykes and [X]’s mother, Ms Morgan, is of concern. I am not satisfied on the evidence, as claimed by Ms Sykes in her affidavit, that Ms Morgan positively supports the application for time between [X] and the grandmother. The evidence does not provide me with any satisfactory explanation as to the breakdown of the relationship between Ms Sykes and Ms Morgan. Yet, Ms Sykes, subject of course to any possible injunctive orders, might intend bringing Ms Morgan into contact with [X]. Given the family’s general negative attitude towards the father and their tendency to attribute blame to him in respect of Ms Morgan’s emotional health difficulties, such a possibility may well be inconsistent with [X]’s best interests.
The father puts his proposals in the alternative. In final submissions, and despite the aforementioned statements in the father’s affidavit, his counsel argues for no direct contact for [X] and the grandmother. In the alternative, he argues for the proposal suggested by Ms J of ongoing supervised time on an indefinite basis but limited to an hour or so on six occasions per year.
On balance, I am not satisfied that a regime as suggested by Ms J, and supported by the independent children’s lawyer, is in [X]’s best interests. Supervision and formal contact centre facilities are unfortunately a necessary forum for the operation of some parenting orders. It is, however, far from an ideal environment. It must necessarily send a message to a child as to some deficiency or concern in the adult subject to the supervision. In the matter before me I am not satisfied that unsupervised time is appropriate and I maintain real doubts as to the ability of Ms Sykes to desist from her criticism of the father. Whilst mindful of the benefits of connection and identity espoused by Ms J, I am satisfied that for a child as young and potentially vulnerable as [X], these connections could be maintained by written communications.
Consequently, I do not intend to order direct time between [X] and the grandmother. There will be communication however and by way of card, gift or letter at Christmas and on the child’s birthday and on no more than four other occasions each year. The grandmother should be able to include photographs of herself and her direct family members. Further, and mindful of the comments in the father’s latest affidavit, I am of the opinion that it is appropriate to leave any direct contact between [X] and the maternal grandmother (or any other member of that family) within the discretion of the father.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 15 February 2012
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