T and W-H - [2001] FMCAfam 28

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & W-H

[2001] FMCA fam 28

CHILDREN – Contact – Best interests – Wishes of child – Orders for no contact between Children and Maternal Grandmother

Applicant:

L W

Respondent:

K W-H

File No:

ZB 2153 of 2001

Delivered on:

4 April 2001

Delivered at:

Brisbane

Hearing Date:

21 March 2001

Judgment of:

Rimmer FM

REPRESENTATION

Counsel for the Children:

Mr W Hodges

Solicitors for the Children:

Streeting Haney,
Solicitors, of Surfers Paradise, Queensland

The Applicant in person

The Respondent in person

ORDERS

That the orders of Justice Gunn made on 10 September 1997 be discharged.
That the CHILDREN, M A W (aka W-H), born 5 June 1989 and I-L D W-H, born 20 March 1994 live with the RESPONDENT MOTHER.
That the RESPONDENT MOTHER have sole responsibility for the long-term and day to day care, welfare and development of the CHILDREN.
That the APPLICANT MATERNAL GRANDMOTHER be permitted to send birthday cards and gifts to the CHILDREN for birthdays, Christmas and Easter in each year.
Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and Annexure B to these orders.
That all applications be removed from the Pending Cases List.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

ZB2153 of 2001

L W

Applicant

And

K W-H

Respondent

REASONS FOR JUDGMENT

The proceedings

These Proceedings involve an application for parenting orders by the applicant grandmother L H (now known as L W) who seeks contact with her grandchildren, M A W (aka W-H) born 5 June 1989 and I-L D W-H, born 20 March 1994. These are the children of the daughter, the respondent K W-H (now known as K W). Ms W opposes the application and seeks that there be no orders made for the children to have contact with the maternal grandmother.
The application originally filed on 14 July 2000 by Ms W was for residence of the children. This application was amended by the filing of a fresh application which was received by the court by way of facsimile and filed by leave on the morning of the hearing. In that application Ms W now seeks contact only with the children in the following terms:
a)The grandmother have telephone contact with the children once per week after 7.00 pm on a day to be agreed upon by the parties and on Christmas Eve and on the children’s birthdays;
b)That she have contact during school holidays as follows:
i)June/July school holidays from the first Saturday to the last Sunday in each year;
ii)in the Christmas school holidays from the first Sunday to the fourth Sunday in the 2001 holidays;
iii)from the Saturday before the last four weeks to the last Sunday for the 2002 Christmas holidays and alternating between the two halves in the years thereafter;
c)That the grandmother pay the costs of bringing the children to her in T and the mother pay the costs of having the children returned at the conclusion of contact;
d)That the mother not prevent the children from having contact with their grandmother should they wish to do so;
e)That the mother allow the children to receive presents and to keep them;
f)That the mother provide an address and telephone number for contact at all times even if she is to go away on holidays.
Ms W filed a response on 19 December 2000 seeking residence of the children and that they have no contact with Ms W.

Short history

The applicant grandmother was born on 1 February 1939. She is aged 62 years and is of Danish heritage. The respondent mother was born on 16 March 1971 and is now aged 30 years of age.
There are two children who are the subject of these proceedings, M A W (aka W-H) born 5 June 1989 and I-L D W-H, born 20 March 1994. The children are known as and will be referred to in these reasons as “M” and “L”.
The child M was born as a result of a relationship between the mother and his father M J T. This relationship ended in October 1990. The child, L was born as a result of a relationship between the mother and her father P J M. This relationship ended in October 1993.
Neither of the father’s of subject children are respondents to these proceedings. Neither father is exercising any regular contact with the children.
The children have lived all of their lives with their mother, Ms W, although in the early years of their lives, the mother and children lived for various periods with the maternal grandmother, Ms W, in South Australia.
Ms W and the children came to live on the Gold Coast in Queensland in 1996. Ms W commenced a defacto relationship with her present husband S W in March 1997. They married in October 2000. They currently live with the children in rented accommodation in N on the Gold Coast.
The children attend M H State Primary School where M is in grade 7 and L is in grade 2. Their mother cares for them on a full time basis and is available to provide for their care before and after school.

Previous litigation, agreements and orders

Ms W and Ms W have had ongoing litigation since mid-1996. At that time these parties resided in South Australia. Orders were made after a contested hearing between the mother and the maternal grandmother about residence, contact and relocation by the mother. At that time the mother had relocated to Queensland with the children. There was a Child Representative for M and L in the proceedings. Two separate family reports were prepared for the proceedings, one dated 3 July 1997 by Keith Stephens, Child and Family Counsellor at LSC South Australia and one by Pamela Pope, Consulting Psychologist dated 20 October 1997. Both those reports raised some serious concerns about the pressure placed upon the children by Ms W and the emotional harm which flowed from this for the children. On 10 December 1997,orders were made by Justice Gunn in the Family Court in Adelaide. These orders provided:
(1)That until further order, the other party do have contact with the infant children, I-L D W-H born 20 March 1994 and the said M A W (aka M A W-H) as follows:
(a)
Each Queensland Christmas school holiday period from

27 December in each year commencing in 1997 and concluding on the 24 day of January 1998;
(b)During the Queensland July school holiday period from the first Saturday hereof to the last Saturday thereof and on conditions.
(2)That the contact to be taken by the other party commencing in December 1997, that she shall collect the children from the mother at McDonald‘s at W in the state of New South Wales at the commencement of contact and return them thereto at 5.00 pm at the conclusion thereof.
(3)That the other party shall collect the children for each contact period from the home of the mother in Queensland and return them thereto at the conclusion of contact.
(4)That the other party have telephone contact with the said children each Friday between the period of 7.00 pm South Australian time to 8.00 pm South Australian time and on the children’s birthdays at the same times.
On 20 May 1998, Ms W filed an application for contravention of a child order. Justice Murray in Adelaide made a finding that Ms W had not breached the order and adjourned the hearing to July 1998. These proceedings do not appear to have gone any further.
As a result of earlier orders, the mother continued to reside with the children on the Gold Coast. In March 1999, the maternal grandmother relocated and commenced residing in T, North Queensland. Shortly after that the parties had come to some amicable arrangement in relation to ongoing contact and the grandmother had contact with M and L in July 1999 in T.
In September 1999, it is agreed between the parties that the child, M went to reside with Ms W in T. Ms W’s evidence is that she was having trouble managing M’s behaviour and he was both being bullied and bullying others at school. She said the arrangement for M to live with Ms W was to be for one school term only.
At the conclusion of that school term Ms W alleges that M did not want to return to his mother and step father. She states that he wished to remain residing with her and Mr W in T. Her evidence is supported by the other witnesses Ms W relied upon. I have no doubt that M did express a desire to stay with Ms W at T at that time. As Ms W was seeking not to return M in accordance with his alleged wishes to remain with her, in December 1999, the parties attended a Legal Aid Conference. The parties reached agreement M would return and agreed to vary contact orders made on 10 December 1997. The agreement provided that Ms W have contact to the two children during the June/July and Christmas school holidays each year. This agreement was not made into orders of the Court. In December 1999, the child, M, returned to reside with his mother.
On 16 January 2000, Ms W filed a contravention application in Innisfail Magistrates Court and alleged Ms W failed to provide contact to Ms W in accordance with the agreement reached at the Legal Aid Conference. This application was dismissed as that agreement was not a binding Court order.
In June/July 2000 the children had holiday contact with Ms W in T. At the conclusion of that contact Ms W refused to return the children. She alleged that the children did not wish to return to their mother and step father and further that each of them, but particularly M, had made serious allegations of emotional and physical abuse against their mother.
On 14 July 2000 Ms W filed an application in the Family Court in Townsville seeking interim and final residence of the children. On

18 July 2000 Ms W filed an interim ex parte application in the Magistrates Court at Southport seeking residence of the children and a recovery order for their return. The Magistrate made orders in terms of Ms W’s application. The Police executed the recovery order and obtained the return of the children to their mother with some difficulty.
On 26 July 2000, Ms W filed an amended interim application seeking that the orders made in the Magistrates Court at Southport be set aside. This was heard on 4 August 2000 by Justice Bell of the Family Court of Australia at Cairns. The matter was transferred to the Family Court at Brisbane and a children’s representative was appointed for the children.
On 19 December 2000 the matter was adjourned to allow for the preparation of a family report. A family report was completed by Mr Terrence Bourne, Social Worker and on 19 December 2000, Registrar Spelleken of the Family Court made an interim order that the contact between the children and Ms W be suspended except for telephone contact and the matter be adjourned for further interim hearing to

12 January 2001.
On 12 January 2001, Registrar Spelleken discharged the orders made by Justice Gunn on 10 September 1997 and further ordered that the children reside with their mother and have telephone contact with Ms W on one occasion each week. The matter was transferred to the Federal Magistrates Court and allocated for this final hearing.

Issues before the court

The relevant issues appear to be:
·The nature of the relationship between Ms W and Ms W and the impact of their continued conflict on the children.
·The capacity of Ms W to support Ms W’s role as the parent of the children and any impact upon the children if she is likely to undermine Ms W as their parent.
·The effect on the children of refusing them contact with the grandmother.
·The effect on Ms W of establishing contact, including contact by telephone and letters.

The maternal grandmother’s proposals

Ms W proposes she have contact with the children for a part of each of the Christmas and June/July school holidays, that the parties share the costs of travel for such contact and that the children have telephone contact once each week and be permitted to receive presents and letters from her.

The mother’s proposals

Ms W proposes orders that will terminate the children’s relationship with their maternal grandmother. She does not wish the court to make orders that provide any physical contact nor contact by telephone or letter.

The children’s representative’s proposals

Prior to submissions the Children’s Representative informed the Court that the orders proposed on behalf of the children were that there be no orders for contact between the children and their maternal grandmother, either by way of any orders for physical contact, telephone contact or contact by letters.

The evidence

Ms W relied on two affidavits setting out her evidence in chief by facsimile 17 March 2001. She filed a chronology on that same date by facsimile. This was a sworn document and she relied upon its contents as evidence. She relied on the affidavits of three other witnesses. These were an affidavit of Y G filed on 19 March 2001, an affidavit of J S filed on 4 August 2000 and an affidavit of L W, her defacto husband, filed on 4 August 2000. Ms W gave oral testimony and was cross-examined. Mr W also gave oral testimony and was cross-examined.
Ms W relied on three affidavits setting out her evidence in chief, the first being an affidavit filed on 18 July 2000 in the Southport Magistrates Court in support of the recovery order, the second being an affidavit filed on 14 December 2000 in the Family Court and a further affidavit sworn on 14 December 2000. Ms W gave oral testimony and was cross examined. She annexed to her affidavit in chief and relied upon two experts reports that had been prepared and relied upon by the children’s representative in the proceedings for residence, contact and relocation in Adelaide in 1997. These are the reports referred to earlier of Mr Stephens and Ms Pope.
The Children’s Representative relied on two affidavits of the expert Mr Terrence Bourne, Social Worker. The first affidavit annexed the report of Terrence John Bourne filed 19 December 2000. The second affidavit annexed the report of Terrence John Bourne filed on 8 March 2001. Mr Bourne gave oral testimony and was cross examined by both parties.

Relevant law

Residence, contact and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. “Regular” carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
Ms W has been a significant person in the lives of the children, the real question posed is whether there is detriment to the children in continued contact with her or whether their best interests will be served by a continued relationship with her despite Ms Ws objections and concerns.

Evaluation of evidence of the witnesses

The maternal grandmother : Ms L W

Ms W was cross-examined about a number of relevant issues. In particular by Counsel for the Children’s Representative about whether or not she now realised it was possible that M may have been lying to her when he made the allegations of abuse by his mother. Ms W stated that M told her of these matters voluntarily and without any questioning by her.
She outlined in detail the allegations she says that M made to her and these included allegations that his mother would lie or sit on the couch and demand that M get things for her. That she would insist that M clean up and wash up without any assistance. That if he did something wrong, his mother would yell at him, go red in the face and he would not be allowed to talk to his mother, his step-father or his sister as punishment. She alleges that M said that this punishment lasted often for periods of a day, for two days and even for a whole week.
Ms W further gave evidence that M informed her that his mother had hit him with a belt but that he had deserved it because he was naughty. She indicated that when she questioned M about what he had done to deserve this, he said he had fought with his young sister, he had kicked his sister, for lying and for talking back to his mother. The allegations in her oral evidence were somewhat different from those deposed to in her affidavit filed on 14 July 2000. In that affidavit she sets out that M alleged that he had been hit with a belt and a wooden spoon, that he would be stood in a corner for over two hours and would not be allowed to move. That he would be grounded and sent to his room for a week and not allowed to leave or talk to anybody, only being allowed to leave to eat, go to the toilet and school. In paragraph 25 of that affidavit she set out that M alleged that S W would use pressure points to attempt to punish him and grab him around the back of the neck.
When questioned about whether M had told her when it was in fact that he had been hit with a belt, she said that M said it occurred between the time he was returned to his mother in December 1999 and when he had contact with his grandmother in June/July 2000. She said also M had informed her that his step-father, S W, also hit him hard with his hand.
In answer to questions by Counsel for the children’s representative, Ms W stated that when M first told her these things in November 1999 she endeavoured to contact her daughter and discuss it with her. She said her daughter refused to discuss it. It appears when these allegations arose again in June/July 2000 she did not return the children because of concerns for their safety. Instead she filed an application for residence of the children. Ms W gave evidence that she was aware that her daughter felt that she was undermining her position as the children’s mother and admitted that she could see why her daughter would feel that way. She said when she read Mr Bourne’s report where the children, particularly M, retracted the allegations, she felt there was no point in continuing with an application for residence.
It was clear from the grandmother’s evidence that she still believes that M has been abused by his mother and she does not believe that M has the capacity to lie to her or manipulate her in any way. She does not accept Mr Bourne’s assessment that M has not been abused by his mother and step father. She stated in evidence she has abandoned her residence application because she knows that given Mr Bourne’s report, she will not be successful in a residence application. In paragraph 40 of Mr Bourne’s first report Ms W stated that she was sad that she could not ask M “if he wanted her to keep spending all her money on fighting to keep him safe”. She did not agree with Mr Bourne that this was not a fair question to ask an eleven year old child. She does not accept Mr Bourne’s assessment that M has exaggerated his problems at home and manipulated the poor relationship between his mother and grandmother given he knows he will get his grandmother’s support against his mother.

Ms W maintains that she has never questioned the children about their mother. She agreed that if they have raised matters with her about their mother or her treatment of them she has certainly discussed it in detail with them. She felt that the children trusted her, particularly M, and opened up to her in a manner that he might not do with any other person.
Ms W was referred to paragraph 44 of the first report of Mr Bourne by Counsel for the children and in particular where it is set out that Mr Bourne had told her Ms W believed that M was a manipulator and she had responded with the words “Oh, Yes”. Ms W stated that she had misunderstood the question put to her by Mr Bourne and that she had believed at the time that she was answering a question as to whether her daughter was a manipulator, not M ,and it was to this proposition that she replied “Oh, Yes”. This was put by Ms W to Mr Bourne when he was cross examined and he said he believed that the proposition put to her had been clear and had been clearly answered by Ms W as a reference to M, not his mother, however he conceded it was possible that there may have been a misunderstanding. In re-examination, Mr Bourne was referred to his notes taken contemporaneously with the interviews for the report. It was clear from the content of his notes that he was discussing with Ms W the question of M’s personality and the propensity that M may have to manipulate the conflict and animosity between his mother and his grandmother. I accept that Mr Bourne’s notes and report reflect the true position.
The Children’s Representative further referred Ms W to paragraph 29 of the second report where the report writer, Mr Bourne, found that the child M was exaggerating his problems at home when discussing them with his grandmother. Clearly Mr Bourne and Ms W agree that M has shared his feelings of unhappiness with life at home with Ms W and that M has taken advantage of his grandmother’s unfailing protective reaction to these matters. Again, Ms W found it difficult to concede this could be true. However, after a number of questions, Ms W very reluctantly conceded that that proposition was possible. It was clear that she found such a possibility difficult to believe.
Ms W stated that she is now totally estranged from each of her three adult children. She has two sons in addition to her daughter who is the respondent in these proceedings. Both sons are married and have children. Ms W’s evidence was that she has had no contact with her sons or their families for a number of years. Ms W said that she has had no contact with her oldest son, D, for about seven years. This came about she says as a result of her taking Ms W’s side in a dispute between her son and Ms W. Ms W’s view was that she had made a choice to support her daughter and as a result had alienated her son. In relation to her second son, she gave evidence that she had not seen him since 1988. She admitted that he lived in South Australia some three to four hours drive from where she lived up until she departed to live in T in 1999. She says this arose as a result of her son assaulting Ms W. Again she said she chose to support her daughter which resulted in alienation between herself and this son. Ms W alleges that her estrangement from the sons is as a result of her continued interference in their lives, which Ms W denies.
The Children’s Representative asked Ms W whether or not she had ever taken any steps to smooth things over with her son, to build bridges or mend any problems in their relationship. Her evidence was that she had not done so as she believed that given that she had supported her daughter against her sons, there was no possibility that this could occur. She does not accept it has occurred because of her interference in their lives as her daughter alleges. This evidence demonstrates clearly the entrenched family conflict between Ms W and all three of her children which in her daughter’s case now impacts upon the welfare of M and L.
Both in her affidavits and in her oral testimony Ms W states her daughter, the respondent, at the age of 12 was diagnosed as a creative psychopath. She said in layman’s terms this means her daughter is unable to accept responsibility for anything that she does and blames other people for all the things that are wrong in her life. It was her evidence that she had not informed her daughter of this particular diagnosis, preferring to inform her daughter that she had a borderline personality disorder. She agreed with the children’s representative that making such statements about her daughter for the first time when she is now aged 30, may be seen in a very unfavourable light by her daughter. Notwithstanding that acknowledgment, she would not resile from her belief about the truth of this diagnosis.
I must say that I was concerned at the lack of insight demonstrated by Ms W in relation to any responsibility that she herself must take for the poor relationship she has with any of her three children. She is entrenched in her conflict with them and did not demonstrate any capacity to find a way to try and address the problems. It is clear she is saddened by this and wishes things were different. Neither she or Ms W have taken any steps to address it. This has lead to an extreme absence of trust between Ms W and Ms W that now impacts upon M and L and has done so in a damaging way during the last two occasions of physical contact in late 1999 and mid 2000.
It is tragically clear from Ms W’s evidence she is unable to shift her views about her daughter or entertain any possibility that what she believes about her daughter might be incorrect or that Ms W may have changed as a parent over the years of her maturity. She said she only believes what she sees herself. As Ms W had problems coping and functioning well as a young parent in her late teens and early twenties and then required Ms W’s assistance when M and L were young, Ms W cannot see that her daughter may have made progress as a parent over the years as she has stabilised her life.
This remains her view despite the assessment of Mr Bourne in his family report that the children, M and L are now well parented by their mother. Ms W said she was unable to accept this assessment unless she saw evidence of it directly herself. Her evidence was that she prayed to God that what Mr Bourne had observed in the mother was correct but she still had very grave and real doubts that this was the case.
In answer to questions which I myself put to her as to whether she saw any good in her daughter as a parent to the children, she replied that she was sure that her daughter would fight for her children but that despite the fact that she loved her children, that she loved them like a child loves a toy. When I asked her if she could explain what she meant by that, she said that while her daughter loved M and L, it was only when she wanted them around her and at other times she ignored and neglected them. She conceded she has not seen her daughter with M and L for many years since they were very much younger. It is little wonder with that entrenched belief, that Ms W sees herself as a “protector” of the children against their mother. It puts into perspective the numerous applications to the Courts over the years since 1996 and the two recent occasions when she has refused to return, firstly M and then both children, to their mother.
It was clear from her evidence that Ms W was rigidly fixed in her view that she does not accept that she may influence M and L’s expression of wishes to her that they wanted to live with her. I am satisfied at least M has said to her he wishes to live with her. This is supported by the evidence of her de facto partner L W and her other witnesses. Ms W was adamant that the wishes of the children were expressed independently and not influenced by the children’s awareness of her hope that they will live with her. She saw nothing in her way of dealing with the children that may influence or pressure them in their wishes when on contact.
Under cross-examination by the Children’s Representative it was apparent that Ms W has had discussions with M about her belief that it would be best for him to go back and do his schooling at the T Primary School. After a number of questions were put to her by the Children’s Representative she finally conceded that it was possible that this would place pressure on M to live with her, given that he could only attend the T School if he could live with his grandmother as M currently attends school on the Gold Coast while living with his mother and step-father. She finally conceded that this may be seen as placing pressure on the children.
Ms W did not agree with the findings of the family report writer that her open hearted approach with the children was not helpful to them. She did not agree with his professional assessment that this inadvertently placed pressure on the children because they knew clearly what their grandmother’s feelings were in relation to their mother’s capacity to properly parent them and they knew clearly Ms W’s own desire to have them live with her. She did not agree that this was consistent with the assessments made by the earlier reports of Mr Stephens and Ms Pope.
After her evidence I am satisfied that many of the bases of

Mr Bourne’s assessments of Ms W were quite different to the evidence she gave to the Court. In particular, her capacity to see that M was capable of manipulation and exaggeration of the complaints of his mother and his home life to his grandmother. It was also clear that Ms W had a very unshaken belief that her daughter was not capable of appropriate care of the children and had in all likelihood physically and emotionally abused them and would continue to do this. I was satisfied that she lacked the necessary insight to be able to discern what was appropriate to discuss with the children about their mother or to see that it was damaging and undermining of her daughter’s role as their resident parent to just believe and take at face value everything M said about his mother and his wish to stay with her during and after contact occasions. I accept that she firmly believes that it is the children’s right to be heard and to have their wishes listened to, despite their ages and level of maturity.
I was satisfied Ms W did not accept Mr Bourne’s assessment that the children are living in a safe environment with their mother or that this is likely to be true given Mr Bourne’s observations that the children were well adjusted, well behaved, respectful and polite children. I was also satisfied that she does not appreciate the emotional harm to the children, particularly M of allowing this manipulation to occur when it is clear that the children have strong attachments to both their mother as their primary carer and herself.
I accept after hearing the evidence of Ms W that she has a genuine and deep love for her two grandchildren, M and L. I accept that she has great motivation to protect them from any harm and that she misses them and wishes to have regular contact with them. It is a real tragedy that these are the only grandchildren with whom she has any relationship at all.

The mother, K W

The mother was cross-examined by Ms W and counsel for the Children’s Representative. Ms W’s cross-examination of her daughter was not particularly helpful. She sought to traverse with the mother, incidents which went right back to the mother’s childhood. In fact it was necessary for the Court to rule that many questions were irrelevant in this regard.
The mother gave evidence that at the time M went to live with his grandmother for the last term of 1999 she was having great difficulty managing M’s behaviour as a result of his unhappiness at school. She said M was having difficulty managing bullying which was occurring at his school by an older boy, difficulty with his peers and friendships and also difficulty accepting his mother’s discipline. She felt some time out with his grandmother would assist. I am satisfied that she then called upon her mother to assist her with M, who at that time was a difficult child to manage. I am also satisfied that the parties did have an agreement that M would be returned to his mother at the conclusion of the school year in 1999.
In her evidence the mother displayed genuine concern and fragility as to the effect that her mother was having upon her parenting of M and L. She believes that her mother will not return the children at the conclusion of contact if there is any suggestion that the children do not wish to return. I accept, in this regard, she is traumatised by the last two times that this has in fact occurred. She believes it would be difficult to get her children back. I accept that her lack of trust in her mother has been reasonably caused by the events that occurred in December 1999 with M’s return and in July 2000 when she was required to obtain a recovery order for the return of both children after contact. I further accept that the mother believes that the children’s wishes now are that they wish to stay with her on the Gold Coast and that at this stage, the children, particularly L has great difficulty in managing her fears that her grandmother will not return her to her mother after contact. I accept the mother bases her belief on what the children have said to her.
I also accept that she perceives that the children are highly aware of the conflict between she and her mother and that this in part comes from the fears that she herself holds that they will not be returned after contact with their grandmother.
Unlike her mother, the respondent mother was able to express positively how Ms W felt about the children and the positive things Ms W bought to their lives. She said that she is sure that her mother loves the children and she knows that she can be a very good grandmother to them. She says that it is because of other things as outlined in her evidence and her mothers evidence that she continues to hold very real fears and concerns of her mother undermining her role as the children’s mother. It is clear she sees that as damaging her relationship with the children and the children themselves know that they will not be returned after contact should they make the slightest complaint about the treatment they receive in their mothers household.
I accept that these fears are genuine and understandable given the history between the parties. I accept that Ms W feels that she is the parent and that she is required to discipline the children, provide for their day to day needs and that when the children see this beside the fun and good times they have with their grandmother on contact they know they can manipulate their grandmother by saying bad things about her and telling their grandmother that they wish to live with her. Her belief that this will be interpreted by her mother as true is supported by Ms W’s evidence. I accept that Ms W firmly believes that the children are questioned by their grandmother about every aspect of their lives with her including what food they are given, what discipline is meted out to them, what tasks they are required to perform, what day to day mundane things such as what clothing she provides for them, what housing she provides for them and the nature of their relationship with Mr W. This places great stress upon Ms W in undertaking her role as their parent.
I found Ms W honest in the evidence that she gave to the Court. I accept her evidence particularly in relation to how she disciplines the children and that such discipline is appropriate for children of M and L’s ages. It was apparent from her oral evidence that she is extremely proud of the progress that M has made at school and with friends recently, particularly since contact with Ms W has ceased. She spoke glowingly and her face lit up when giving her evidence particularly about how settled he has been this year. It is not clear on the evidence if this is due to the fact that M has not been involved in the ongoing conflict between his mother and grandmother or whether this is a sign he is growing more mature.
Ms W conceded readily that she would prefer that there be no contact whatsoever but she accepts that if a Court order was made, she would comply with it. I am satisfied that in the past, the mother has complied with Court orders to the best of her ability and that it is true that she would do so if an order were made by the Court for continuing contact between Ms W and the children. She believes however that contact is disruptive and not in their best interests. She particularised her concerns in her evidence saying her mother simply cannot hide her feelings from the children, she does not like where they are living and seriously questions, with the children’s knowledge, whether she is good mother to them.
I accept from the mother’s presentation in the witness box that she feels threatened as a parent by the potential of her mother to undermine her role as the children’s mother. It was clear she feels, with some justification, that despite the progress she had made since she moved to Queensland in 1996, that her mother would not believe or trust that she had made progress as a parent. She was sure that her mother would continue to hold the view that she constituted a danger to the children. From Ms W’s evidence, I accept this is a reasonable view for Ms W to hold.
The family report writer concludes that the mother is in a stable relationship with her husband, Mr S W and that they provide a safe and stable home for the children. I am satisfied that the children are being parented well by Ms W and the children’s primary bonding and loyalty is to their mother.
Ms W is of the view that her mother’s actions over the past six to seven years demonstrates that she has no understanding of the real impact that doing these things has on the children. I accept that Ms W really now believes that Ms W is not able to appreciate that this creates for the children, particularly an eleven and a half year old boy as M is, an opportunity to be manipulative and untruthful about his life with his Mum.
I am also satisfied that Ms W now believes that her mother’s depth of feeling about protecting the children and the nature of the discussions that she has with them, particularly M, demonstrates that her mother lacks the capacity to see that many of her actions and many of the discussions she has with the children, places pressure on the children. While I am sure this has not been done by Ms W unintentionally, I am satisfied that Ms W and Mr Bourne are right, that it has provided M with an opportunity to manipulate his grandmother against his mother in order to get what he wants.

Mr Terrence Bourne, social worker

Mr Bourne has prepared two reports, one dated 14 December 2000 and one dated 6 March 2001. Both reports relate to information obtained, observations made and assessments made during the interviews and telephone contacts had in November/December 2000. The second report addresses the matters for consideration under s68F (2) of the Family Law Act with some particularity.
The report writer says in paragraph 47 of his first report that the maternal grandmother’s bonding and depth of feeling arises as a result of her presence at both the children’s birth and the input that she has had in the early years of their life in assisting the mother in parenting at a time when the mother was having difficulties in parenting the children on her own. They lived for not insignificant periods with the grandmother and have otherwise had frequent contact with her. It is also Mr Bourne’s assessment that the maternal grandmother has not been malicious and has acted with the best of intentions in doing what she believed was necessary to protect the welfare of these children in retaining M in December 1999 and both children in 2000 and in bringing a residence application. I find this is so.

Mr Bourne found that Ms W was affected adversely by the continued dispute between she and her mother about her children. He said she saw her mother as controlling and that Ms W wanted to be given the same rights as any other parent to get on with parenting their children. Mr Bourne was of the view that Ms W is depressed by the dispute and presented as crying, with flat affect and pessimism.
Mr Bourne assessed that the children’s allegation to their grandmother that they were being abused by their mother and step father was based on the children’s hearsay. It was unsubstantiated for the most part by any other evidence. Some things were admitted and appropriately explained by consistent versions of the children, their mother and step father to him. He notes correctly they have never been serious enough to warrant any action by either the welfare department or the Police. It is clear that in particular M when discussing these allegations with Mr Bourne had retracted or given another milder explanation to Mr Bourne as to what had really occurred. M did not admit to telling his grandmother any worse than he told Mr Bourne.
Mr Bourne assesses that both children have a strong attachment to Ms W and that they wish to continue to see her as they have in the past. Mr Bourne has assessed in his report that Ms W is a person concerned for the protection needs of the children despite the cost, financial or emotional to the mother and herself. He says that in a decision regarding contact the question to be determined is would

Ms W retain the children ever again should a future “one off” abuse allegation occur or be said by the children to have occurred? He discussed this question with Ms W in his interview with her. He sets out that conversation at paragraph 69 of his first report as follows:
“I asked Mrs H (Ms W) if she had contact visits and heard allegations of abuse from them again what would she do in the future? She replied “It would be fruitless to do anything. I would just have not to believe it.” Do you think you could do this? Mrs H went into deep thought and replied “I think so, it seems that M has been lying to me.”
At the hearing Ms W’s evidence was unequivocal in her statement to the court that she does not believe M has or will lie to her. She only grudgingly conceded he may exaggerate things but her belief is that M is a truthful boy who does not manipulate her in any way. When it was put to Mr Bourne the hearing the evidence Ms W had given, he indicated that Ms W’s change from that set out in the report was of concern to him. He then revised his view that she would be able to assess the appropriate action to take if the situation arose again while the children were on contact or if allegations were again raised by the children.
Mr Bourne stated that this would cause him concern, particularly in relation to M as he was approaching adolescence, where the potential for a differing of views about house rules and discipline between M and his mother and step father were highly likely and completely necessary as he grew successfully to adulthood and tested boundaries. Mr Bourne stated in his oral evidence that if M, as he was going through this phase of his life, was able to successfully manipulate and enlist his grandmother against his mother, there was a real risk of a total breach in the relationship between the child and his mother.
Mr Bourne said he had based his assessments of Ms W in this regard from her statements to him set out in paragraph 44 where he believed Ms W had acknowledged Mathew’s capacity to manipulate and her statement to him set out in paragraph 69 when she acknowledged that M had been lying to her. In light of Ms W’s oral evidence Mr Bourne said he would have grave concerns that Ms W would be able to return the children to their mother if such allegations were raised again. He doubted her capacity to act appropriately if M enlisted her support in his disputes over discipline with his mother.

Section 68F(2) determining the best interests of the child

The children’s wishes, ages and level of maturity

Both these children wish to live with their mother. Mr Bourne reports that M was not consistent in his loyalty to Ms W in relation to contact. When waiting to meet his grandmother he persistently asked his mother if he could leave with her rather than remain and see Ms W. Clearly this may have been because M did not wish to deal with the conflict. In private interview M stated he did wish to have contact with his grandmother. L followed M’s lead in relation to his wishes that things continue to be the same, that is, live with their mother and see their grandmother twice a year in school holidays. The mother’s evidence is that both children have told her clearly they do not wish to have contact with Ms W, particularly L, who she says is concerned her grandmother will not return her after contact.
I am satisfied that these children have divided loyalties. They have positive memories about contact with their grandmother but are under pressure because they see the impact of the conflict on their mother. They have loyalty to both. Their wishes have to be seen in this context. L is only quite young being just seven years of age and her wishes are not really significant. Everyone seems to report L largely agrees with her older brother, rather than express her own views and wishes. I accept that M has not always been consistent in his wishes about contact with Ms W. Therefore his wishes should not be a determining factor when put beside other important factors.

Nature of the children’s relationships with their mother and grandmother

I am satisfied after both Ms W’s and Ms W’s evidence that there is on-going, intractable conflict between Ms W and Ms W. This affects the relationship of the children with their mother and their grandmother. I am satisfied by the history of repeated litigation in the Courts coupled with the fact that Ms W has retained M and then both children in two separate incidents, that the mother has lost trust in her mother and the relationship between them has been irreparably harmed. The children are placed under pressure from this ongoing conflict which is damaging to their emotional welfare.
Mr Bourne raises the issue of whether future contact between Ms W and the children is going to seriously affect Ms W’s parenting ability. It was his assessment that she appears to be emotionally and physically at her wits end from continued legal dispute over her children. He opined that her depression is reactive to the dispute and that an end to the litigation and conflict would relieve her of this, which was a more efficient and speedy remedy than medication. From my observations of Ms W I accept that assessment. This is detrimental the children’s welfare.
I am satisfied that while Ms W says she can understand how her daughter must feel in this situation, that she lacks real insight into the effect upon her daughter of her actions. Ms W displayed a lack of appreciation of the damage she has done to her relationship with her daughter. Her allegation that Ms W has a serious psychiatric disorder is based solely on a diagnosis made when Ms W was 12 years old. She has produced no independent medical evidence of the original diagnosis. There is only her evidence about this. She states her daughter is a creative psychopath. She admitted she has never told her daughter of this diagnosis. That she holds these beliefs about her daughter based on scant evidence, which even if it was true, is now very outdated. That she does so despite the fact that her daughter is now thirty years of age and Mr Bourne’s assessment that Ms W is functioning well as a mother.
I am satisfied from both Ms W’s and Ms W’s evidence that during the earlier years of these children’s lives, that Ms W did have difficulty parenting the children as a single parent and perhaps was not as diligent a parent as the welfare of the children required. I am also satisfied that she called upon her mother to assist her with the parenting of the children at that time but that this ended in 1996. It is very sad for both mother, daughter and the children that Ms W finds it impossible to change her view of her daughter as while this remains the case, the breach in the mother/daughter relationship seems irreparable. Mr Bourne’s evidence is that this is so. I agree with him.
I accept that the children, more particularly in M’s case, have strong bonds with both their mother and grandmother. I am also satisfied that the children have enjoyed contact occasions with Ms W in the past. I am satisfied that despite this, the grandmother has demonstrated that she lacks the capacity to understand the impact of her actions upon the children and how those action may undermine their relationship with their mother.
I am satisfied Mr Bourne has changed somewhat from the recommendations in his report and confirms that there is a real risk that the relationship between the children and their mother will suffer as a result of Ms W’s continued interference. This is a significant factor in the Court’s decision despite the children’s expressed wishes to continue contact with Ms W and their attachment to her.

Changing the children’s circumstances

If the court orders that there be no contact between Ms W and the children this will represent a change in the children’s circumstances. Ms W has been a significant person in the children’s lives. The question is whether their will be damage to the children’s emotional development if there is no continued contact. If this is so, is this outweighed by the damage they may suffer from the continued need to have divided loyalties, the risk of the disruption emotionally if their grandmother retained them again after contact? Is it also outweighed by the effect upon them of being parented by a stressed and depressed mother who is fearful that her relationship with her children is being undermined and that the children will not be returned to her by Ms W?
Mr Bourne sets out that there are sufficient hardships for M in his upcoming adolescence without him having to deal with the serious division that exists between his mother and grandmother. Mr Bourne was stronger in his oral evidence about the damage to both children in their development tasks given that Ms W has indicated in her oral evidence that she does not accept that M could lie to her and that she did not and does not agree that Mathew can manipulate her. He gave oral evidence that this would certainly strengthen any argument that these children should only have one consistent set of family rules and that their was a risk that when with their grandmother she would not have the capacity to support the mother’s family rules should complaints be made about them to her by the children during contact. He also stated that M’s need for a relationship with his grandmother was less as he is developing his male identity.
Mr Bourne’s evidence is that given L’s age that all things considered she would be better off without having to deal with the deep division her mother has with her grandmother as she goes through her middle years. These matters formed the basis of the Children’s Representative’s submissions to the Court ordering that there be no orders made for contact.
I am not satisfied that the benefits of continuing the children’s contact as proposed by Ms W outweigh the risks to the children and their mother. In coming to this conclusion, I have taken into account that this will mean that these children will have no continuing relationship with their grandmother.

The practical difficulty and expense of contact

This was an issue in this matter. However I am satisfied that there should be no physical contact between the children and Ms W and therefore it is not necessary to address each parties proposals or determine the issue.

Meeting the children’s needs

The children are doing well in their schooling and are assessed by Mr Bourne as being settled and well cared for. The mother evidence, which I accept, is that M has developed appropriate peer friendships and enjoys their company. Mr S enjoys a good relationship with them.
Ms W now makes no claim for residence in spite of her continued criticisms of the Mother. I am satisfied that their physical, intellectual and emotional needs are well met by their mother and step father. I am satisfied that there is no unacceptable risk of abuse to the children from their mother or step father.
While I accept that Ms W loves her grandchildren very much, I am satisfied from her evidence she did not demonstrate she has the capacity to meet the children’s emotional needs. She was unable to understand the impact of her actions upon the children, in particular the damage done to the children in continuing to believe Ms W has abused them when all objective evidence would not support such a view. I find that Ms W lacks the capacity to understand that M does indeed exaggerate his woes in his mother’s household to Ms W. M is able to manipulate a crisis between his mother and grandmother because of this and because he is aware of his grandmother’s fierce need to protect him against his mother who he knows she sees as having great failings as a parent.
I am satisfied that the grandmother can meet the children’s physical and intellectual needs.

The children’s maturity, sex and background

I have already made many findings that are relevant to this sub-heading and will not repeat them. The children’s heritage is Anglo/Danish on their mother’s side. Their maternal grandmother is Danish. She has made submissions that the mother does not have the capacity to promote their Danish heritage and that it is important to the children to do so. The mother gave evidence that she is half Danish and will make the children aware of their heritage from all relevant aspects. Clearly these children would be enriched by direct knowledge of their Danish heritage and the loss is a detriment to their welfare. However there are other matters of greater significance to their welfare that have a greater importance in this matter.

Achieving finality

This is a significant factor in this matter. These parties and through them, these children, have been part of ongoing litigation both in South Australia and Queensland since 1996. While there is never any guarantee that there will be finality achieved in matters that concern the parenting orders for children who are as young as these children are, I am satisfied that the issues that arise for consideration have been fully addressed in these reasons already and I will not repeat them. I must balance the need for finality with other relevant factors. I am satisfied that there does need to be an end to the stress placed upon the mother and children from repeated retention of the children after contact by Ms W, enforcement applications of which there have been two since 1996 and residence/contact applications of which this is the second since 1996.

Conclusions

This is a family unit that has experienced continued and sustained family conflict between the children’s mother and their maternal grandmother. The children have had a significant relationship with

Ms W. They have a strong attachment with her. They live with their mother and will continue to do so.
The children are placed under pressure by Ms W by their awareness that there is significant ongoing conflict between their mother and grandmother. M uses this to manipulate his grandmother to “protect him” when he does not wish return from contact with his grandmother. There have been two occasions when either M or both children have been retained by Ms W after contact. The resulting legal action for their return and now this application has escalated Ms W’s fears that her mother undermines her parenting role with the children and increased their entrenched conflict. The result of this has been that the children have been placed under greater pressure and their loyalties have been divided. Their mother and primary carer, is now assessed in the family report, as under extreme stress and is suffering from reactive depression.
This is not likely to change for these parties or the children while contact continues and there is a risk that it may indeed get worse as M goes into and through adolescence when he is challenging the boundaries set by his mother.
I have considered carefully the impact upon the best interests of M and L of losing a significant relationship with their grandmother. I am satisfied that the greater detriment flows to the children’s best interests from having their mother impaired in her parenting capacity and being subjected to continued divided loyalty between their mother and grandmother.
Mr Bourne has concluded that Ms W’s open hearted approach to the children is not helpful to them. This is so. He has concluded that the mother is the primary carer of the children and her relationship with the children is more important to their emotional development than any damage that may be sustained by losing their relationship with their grandmother. I accept that this is so. Mr Bourne has concluded that given the negative impacts and risks of the children having contact with their grandmother whilst acknowledging the children’s rights, wishes and the benefits to be gained from contact that contact be significantly reduced given the impact upon the mother and children, given she is their central parenting figure. I accept this but do not accept that direct contact is in their best interests.
The mother and the children’s representative oppose any orders for contact either physical contact, by telephone or letters, cards and presents. While I am satisfied that direct contact between the children and their grandmother is not in their best interests, for the reasons I have detailed, I do not accept that there should not be an exchange of cards and gifts by Ms W for the children at significant times such as the children’s birthdays, Easter and Christmas. I propose to order that the grandmother be permitted to send such cards and gifts at those times. This will ensure that the children still maintain some sense of connection with their grandmother into the future and that she does not just disappear from their lives altogether.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Rimmer FM

Associate:

Date: