Tindale & Anor and Biggs
[2013] FamCA 272
•19 April 2013
FAMILY COURT OF AUSTRALIA
| TINDALE AND ANOR & BIGGS | [2013] FamCA 272 |
| FAMILY LAW – CHILDREN – interim – where final consent orders were made in December 2012 – where the maternal grandparents seek orders to spend time with the children and seek that the children spend additional time with the mother – where it was held there has been a significant change in circumstances – where it was in the best interests of the children to make interim orders for time and other communication with the maternal grandparents |
| Family Law Act 1975 (Cth) |
| Church & S Overton and Anor [2008] FamCA 952 Treloar & Nepean [2009] FamCAFC 206 |
| APPLICANTS: | Mr Tindale and Ms Tindale |
| RESPONDENT: | Mr Biggs |
| FILE NUMBER: | SYC | 2399 | of | 2011 |
| DATE DELIVERED: | 19 April 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 21 March 2013 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANTS: | Litigants in person |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
PENDING FURTHER ORDER, IT IS ORDERED THAT:
Orders 3, 4, 5, and 12 made on 10 December 2012 are suspended.
The maternal grandparents are to spend time with R born … February 2008 and S born … November 2009 (“the children”) on the last Sunday of every month from 9.00am to 1.00pm.
In order to facilitate Order 2, the children are to be collected from and delivered to the father’s home.
If the father elects for changeovers to be supervised by a nanny or supervision service, the father is to bear the cost of such service.
In the event that the mother provides written notice to the father that she has skype facilities at C Centre, the father is to facilitate skype communication between the mother and the children on two occasions each week at a time agreed by the parties.
The father is to facilitate skype communication between the children and the maternal grandparents on one occasion each week at a time agreed by the father and the maternal grandparents.
The father invite the maternal grandparents to significant school and extra curricular events involving either or both the children.
The father pass onto the children any age appropriate cards or letters addressed to the children from the maternal grandparents and any age appropriate gifts accompanying those cards or letters.
Both the father and the maternal grandparents are restrained from denigrating or criticising the other party or any member of the other party’s family in the presence or hearing of the children, and each party shall use their best endeavours to ensure that any other person(s) also refrains from such conduct in the presence or hearing of the children.
Except as provided in Order 5, the application by the maternal grandparents for orders in favour of the mother is stood over generally but will be dismissed if the mother files an application for new interim orders on her own behalf.
The application by the father for orders for the children to spend time with the mother is stood over generally to be dealt with at the same time as any application filed by the mother seeking further interim parenting orders.
Liberty granted to all parties to restore the matter on 14 days notice.
The father is to file and serve a financial statement within 21 days and it is noted that the issue of the appointment of an Independent Children's Lawyer will be dealt with in chambers.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tindale and Anor & Biggs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2399 of 2011
| Mr Tindale and Ms Tindale |
Applicant
And
| Mr Biggs |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The maternal grandmother and the maternal step grandfather (“the maternal grandparents”) bring an interim application to spend time with and communicate with S born in November 2009 and R born in February 2008 (“the children”). The father seeks that final consent orders which were made between the parents in this matter on 10 December 2012 be suspended and new limited interim parenting orders be made for the children to spend supervised time with their mother.
BACKGROUND
The father has sole parental responsibility for the children. The children live with him. The orders provided for a staged increase of time that the mother spent with the children.
The central feature of the proceedings between the mother and the father related to difficulties emanating from the mother’s use and abuse of alcohol. On three separate incidents, the mother’s blood alcohol reading was in excess of 0.3.
Prior to the parents’ separation in April 2011, the mother was admitted to hospital by ambulance on one occasion and admitted to a psychiatric hospital on multiple occasions as a result of her use of alcohol.
In May 2011 I made interim orders providing for the mother to have supervised time under the supervision of her mother and step-father.
The mother relapsed in September 2011 and was taken by ambulance to hospital and thereafter was admitted to a psychiatric hospital for further rehabilitation.
The children’s time with their mother was initially supervised by Supervision Agency D and then by Supervision Agency E.
In March 2012 the court received a family report from Dr L.
In March 2012 the mother relapsed and was again admitted to hospital.
In April 2012 the mother attempted to take her own life by hanging and then lacerating her wrists.
The mother was affected by alcohol when the children were spending supervised time with her on 30 May 2012.
After the father and mother entered into final consent orders on 10 December 2012, the children’s time with their mother was suspended by the professional supervisor in late December 2012 when the mother was adjudged to have been intoxicated and/or under the influence of drugs. That afternoon ambulance officers attended the mother’s home but the mother refused to be taken to hospital. She was however admitted to hospital at 3am the next day.
The mother disappeared from hospital sparking a police and public search.
The mother was found and had two periods of supervised time with the children until mid January 2013, when she admitted herself to C Centre to participate in a twelve month inhouse program. The father has taken the children to see their mother at C Centre on 3 February 2013, 23 February 2013 and 16 March 2013.
The father currently takes the children to see their mother at C Centre once every three weeks for a period of about three hours.
APPLICATIONS
The maternal grandparents filed an amended Application in a Case on 21 February 2013.
In that application, they seek that the children spend time with them as follows:
17.1.From March to May 2013 on the last Saturday or Sunday of each month from 8.30am to 5pm;
17.2.From the commencement of June 2013 on the third weekend of each month from 8.30am Saturday to 5pm Sunday;
17.3.That contact visits be unsupervised;
17.4.If a contact visit should fall on the same day as the mother’s contact visit, then the maternal grandparents are to convey the children to and from the contact visit with their mother;
17.5.That the maternal grandparents may communicate with the children by skype, phone or mail.
The maternal grandparents also want an order that they be invited to significant school and extra curricular events involving either or both of the children.
The maternal grandparents also seek an order be made in favour of the mother for the children to have contact with their mother during her stay at C Centre as follows:
19.1.Visits to commence Saturday 23 March 2013 or Sunday 24 March 2013 and then every Saturday or Sunday from 8am to 12pm;
19.2.A phone call between the children and the mother at least twice a week and also on birthdays;
19.3.A letter from the children to their mother once weekly;
19.4.The mother to receive copies of the children’s school/preschool reports as soon as practicable after they have been provided.
The father, by way of a response filed 18 March 2013, sought that the orders sought by the maternal grandparents in their amended application filed 21 February 2013 be dismissed. The father sought interim orders to the following effect:
20.1.That the final orders made 10 December 2012, so far as they provided for the children to have time with their mother until 1 June 2013, be suspended;
20.2.That the children spend time with their mother from 8am to 12pm every third Sunday with the next scheduled visit to take place on 7 April 2013;
20.3.The children otherwise spend time with their mother in accordance with any recommendations made by the children’s treating psychologist, Ms A.
The father also sought that the children’s time with the mother be supervised by Supervision Agency E who would be responsible for facilitating the children’s travel to and from C Centre.
Somewhat unexpectedly, the mother appeared in person (with two workers from C Centre) at the interim hearing on 21 March 2013. She indicated that she supported her parents’ application that the children spend time with her parents every month on an interim basis.
MATERIAL RELIED UPON
Both parties have filed and relied upon a considerable volume of material. The maternal grandparents have provided a document entitled “List of Documents and Chronology”. The father has provided a chronology and list of documents. In addition, the maternal grandparents and the father each tendered a considerable number of documents from subpoenaed material.
RICE & ASPLUND
All parties are seeking that there at least be some interim variation to the final consent orders that were entered into by the parents on 10 December 2012. The mother’s twelve month voluntary admission to C Centre in January 2013 is a significant change in circumstances. It is appropriate that I reconsider the consent orders made on 10 December 2012.
HISTORY OF THE MATERNAL GRANDPARENTS’ INVOLVEMENT IN THE LITIGATION
On 4 May 2012, after the mother’s suicide attempt in April 2012, the maternal grandparents sought to become parties to the proceedings and sought orders regarding the children in their favour. On 20 June 2012 interim orders were made which relevantly provided:
3. The application by the maternal grandparents filed 4 May 2012 be adjourned generally.
4. The maternal grandparents be at liberty to have that application relisted before me after the expiration of six months and should they wish to make that arrangement they should contact my chambers after the expiration of five months by email at …@familycourt.gov.au.
5. In the event the maternal grandparents do not seek to relist the matter pursuant to order 4, their application will be dismissed after the expiration of six months from the date of these orders.
6. The court notes that during the adjourned period the husband has no objection to the presence of the maternal grandparents or either of them during such times or parts of times that the wife has with the children as may be agreed between them and the wife.
Prior to 10 December 2012 the maternal grandparents had asked for their application to be relisted.
CREDIT AND RELIABILITY OF THE MATERNAL GRANDPARENTS
The lawyer for the father points to the lack of transparency and frankness of the maternal grandparents when they swore their affidavits on 2 May 2012. It is asserted there was no mention in those documents of the very significant event that had occurred in April 2012 which involved the mother relapsing and attempting suicide by lacerating her wrists and hanging. This incident was only revealed through documents produced under subpoena on an urgent basis by the NSW Police Service. It was said that this was in the context of the maternal grandparents putting themselves forward as potential supervisors for the mother’s time with the children. The father submits as a result of this I could not be confident that the maternal grandparents would care for the young children in this case. He submits I would not be confident they would keep him informed of any difficulties that the children had arising during the course of the visits and I would not be confident that the children would be kept by the maternal grandparents in a safe emotional and physical environment. The father fears that the maternal grandparents will not refrain from making derogatory comments about the father. I am unable to accept on an interim basis an asserted non disclosure by the maternal grandparents in their May 2012 affidavits (in respect of which there has been no testing) would entitle me to reach the suggested conclusions.
THE MATERNAL GRANDPARENTS’ INVOLVEMENT IN THE CHILDREN’S LIVES
The maternal grandparents assert that they visited the children on 16 occasions between the end of June 2012 and the middle of January 2013 (a visit of approximately once every two weeks). The lawyer for the father said that she did not think visits had occurred that frequently and she asserted the maternal grandparents had seen the children approximately once per month during that period.
The maternal grandparents spent time with the children on 30 June 2012, 25 August 2012, 29 September 2012, 31 October 2012, 15 December 2012, 24 December 2012 (according to the father) and for additional periods according to the maternal grandparents. Those times were 15 September 2012, 19 September 2012, 6 October 2012, 20 December 2012, 11 January 2013, 15 January 2013. These are the 12 dates identified by the maternal grandparents, although they say that they spent time with the children on four other occasions.
On 20 December 2012 the children visited the maternal grandparents’ home for a whole day; the supervisor’s report is very positive.
Exhibit 8 says:
We arrived around 9:00am and were greeted by [the maternal grandmother] and [the maternal step grandfather] who absolutely adore [R] and [S]. The love and affection shown throughout the entire visit was obvious. I wholeheartedly believe [R] and [S] to be in great care when they are with their grandparents.
….
[The maternal grandmother] is very warm and proactive as is [the maternal step grandfather] in being part of their grandchildren’s lives. Their house is very clean and safe for children.
On 28 January 2013 the children spent two hours with the maternal grandparents unsupervised at Fox Studios. The maternal grandparents spent time with the children and the mother at C Centre on 23 February 2013 (a belated celebration of R’s birthday and for that purpose the maternal grandparents say that C Centre allowed a joint visit).
The maternal grandparents feel that it is unfair to intrude on the mother’s time with the children when she only gets three hours every three weeks.
The lawyer for the father referred to Benjamin J’s decision in Church & S Overton and Anor [2008] FamCA 952. His Honour in that case talked about three general categories of situations which might involve grandparents:
34.1.The first category is grandparents who are trying to obtain some time with their grandchildren in circumstances where the children’s parents – both of them – don’t want that to happen.
34.2.The second is a situation where orders are needed because a parent is capriciously interfering with the need of children to have a relationship with grandparents normally in circumstances where the parent on that side of the family is out of action for some reason or other.
34.3.The third category is one where grandparents have taken over the role of primary caregivers in circumstances where both the parents are no longer able to fulfil that role.
In the three categories that his Honour has identified, this case is more closely related to the second category. Here, whilst the father may not be acting capriciously, the effect of his application is to severely restrict the opportunity for the children to spend time with the maternal grandparents.
THE RELATIONSHIP BETWEEN THE FATHER AND THE MATERNAL GRANDPARENTS
The documents demonstrate that there is a level of animosity between the father and the maternal grandparents.
The father says he has significant concerns about the maternal grandparents. The father refers to his affidavit sworn 10 May 2011 in which he says he detailed the aggressive and inappropriate manner in which the grandparents have acted towards him in the presence of the children. Having read the paragraphs to which the lawyer for the father referred, I am unable to conclude that those paragraphs establish a systemic attitude of aggression and inappropriate behaviour by the maternal grandparents towards the father, although I acknowledge that the father in that affidavit at paragraph 18 says, “I have found my interactions with [the maternal grandmother] to be hostile, she exhibits an aggressive manner to me”. At paragraph 16 of his affidavit he says, “She [referring to the maternal grandmother] has aggressively and repeatedly blamed me for difficulties that [the mother] has been encountering”. The father did not however in that affidavit go on to give any examples that might support his assertions. I do take into account though that it appears to be the attitude that the father does not consider the maternal grandparents as allies with him as he exercises his responsibilities for parenting the children. I do note that the father does not refer specifically or indeed generally to any aggressive or inappropriate behaviour by the maternal grandparents towards him since May 2011.
In the report of 13 February 2013, Ms A, the children’s treating clinical psychologist, indicates that she has reviewed the written material (she has not spoken to the maternal grandparents as far as I am aware) and opines that, “I am aware of the acrimonious relationship between [the father] and the maternal grandparents, as evidenced from the documents I have been forwarded”. As I discussed above having read the documents I have been referred to, I cannot find anything other than general statements made by the father in that regard.
Further, the father says that there was a series of disclosures by the children as to negative comments made about the father in the children’s presence. On one occasion R continually ignored the father and said to him “Nanny said no questions daddy, no questions.” R later told the father that she would not talk to him because “Nanny told me not to.” Approximately three weeks later, R repeatedly said to the father “Nanny said you are not nice and no [sic] answer questions. No questions daddy.” She then said “Nanny said I was not going to live with daddy and I was going to live at Nanny’s house…” Ms M, the nanny the father employs, deposes that R has said to her “Nanny said Daddy is bad.”
The father alleges that the maternal grandparents have been “derailing” the children’s visits with their mother. He says the maternal grandparents have encouraged the supervisors not to supervise properly. Annexure L to the father’s affidavit of 30 April 2012 is a bundle of supervision reports from Ms H. Ms H supervised contact on 12 February 2012. She observed:
[The mother’s] parents were also at the party, and although there appeared to be no inappropriate behavior [sic] I noticed that [the maternal grandmother] was very intense with both children but [R] in particular, by hovering around her and constantly trying to be in physical contact with her.
On a supervised visit on 18 April 2012, Ms H comments:
It was also worth mentioning that Nanny and Poppy seemed to dominate this visit…
On another supervised visit on 21 April 2012, Ms H says:
Nanny was constantly touching [R] on her head, shoulders and back. [R] didn’t seem to mind this until Nanny decided that [R] should put her hair up. [R] didn’t want this and there was no apparent need for it but Nanny kept insisting until [R] left the room and went to her bedroom.
…
Nanny came over to me and we started talking. She asked what I do and I told her about my part-time job and my study at [university]. As soon as she found out that I was studying Psychology, her persona seemed to change. She became quite derogatory towards me saying things like “I have nothing positive to say about that” and “I have only ever had negative experiences with Psychologists”….She told me…all psychologists rely on are “personal attitudes” and “their own biases” and that Psychologists don’t seem to have or follow any Code of Ethics. By this stage I had realised that she was getting quite heated and she seemed to be having a personal dig at me so I just replied with noncommittal responses such as “I see” and “alright” in an attempt to diffuse the situation… The other thing that concerned me about this conversation was the passive-aggressive way she was behaving towards me. When we began talking we were both sitting down but as soon as she began telling me her view she stood up and over me, as I continued to sit as to not escalate the situation.
…
…the children and [the mother] began to run around the park. When I realised they were going further than I had initially anticipated I got up and before I could head over Nanny said to me “you can see them from here” and “you don’t need to go over.”
…
… I just thought it should be mentioned that throughout the visit, Nanny is really intense with the children. She seems to dominate the visit, being loud, full-on and always talking, as though to occupy the children’s attention at all times. [S] seems to be somewhat fearful or intimated by Nanny and tries to stay away from her. I feel that the visits are quite draining for the children with Nanny there as they aren’t able to have any quite [sic], down-time, like they are when it is just [the mother].
I have most but probably not all of the supervision reports from Supervision Agency E. As set out in the previous paragraph, whilst there is some earlier criticism about the maternal grandmother being “over involved”, that criticism seems to be historical in nature and is not a recurring theme in any of the more recent reports. There have been a significant number of occasions when the maternal grandparents have been present with the children and with professional supervisors. There is no systemic pattern in the professional supervisors’ reports of undue interference by the maternal grandparents either with the mother’s time with the children or with the father’s role with the children.
The father in the past has suggested that the maternal grandparents did not properly supervise the children’s time with the mother but I am unable to say that is so.
The lawyer for the father asserted that the grandparents lacked insight and there are continual references throughout their affidavits to things being the fault of the father. It is asserted that their attitude towards the father is quite clear in this case and the court cannot be satisfied given the nature of that relationship, that they would foster the father’s relationship with the children, support it or encourage it in any way, shape or form.
The lawyer for the father makes the point that in twelve affidavits filed by the maternal grandparents, they do not make one positive comment about the father in terms of him being primary carer for the children in circumstances where the mother’s illness has required him to take on that role. The maternal grandparents’ affidavits criticise the father in relation to the extent he has facilitated time between the children and the maternal family. The maternal grandparents are also critical of the supervisors, and comment that “it is sad indictment on the quality of the supervisors accepted by [the father] to protect the children” given that they have “all failed to provide a safe environment and have not protected the children by failing to carry out effective supervisions.” The maternal step grandfather says that R has commented that she can not come to their house again. The maternal step grandfather deposes “it is clear that [the father] is attempting to colour the children’s view of us.”
The maternal grandmother was formerly employed in the education field for 38 years. The maternal step grandfather is a former senior public servant. I am not prepared to accept the invitation to find that they have no insight as to the difficulty that the father faces in bringing up two young children in circumstances where their mother suffers from a serious illness.
The lawyer for the father made the unusual submission that the fact that the maternal grandparents have brought these proceedings is evidence of their lack of insight as to what is in the best interests of the children given the stress that these proceedings place upon the mother and the effect it has on her ability to recover. I do not place a great deal of weight on that submission.
The maternal grandparents have not abandoned the notion of attempting to have an amicable relationship with the father. In oral submissions the maternal grandmother told me that they thought that they had turned a corner when in December 2012 the mother and the father sat with them and during that time the father was very charming and agreeable. He had allowed the maternal grandparents to go to a concert for R. They attended the maternal grandmother’s birthday party all day (with a supervisor) and the maternal grandparents had two hours of unsupervised time with the children arranged through the paternal aunt.
In the context of this case however, I have to give significant weight to the fact that the father is the children’s primary carer. The father is the parent who provides stability for the children and who no doubt has struggled over time in attempting to deal with the mother’s serious illness and the impact it has had upon his capacity to fulfil his role as primary caregiver.
I have no doubt that the maternal grandparents love their daughter unconditionally and also love the children unconditionally.
There is no doubt that there have been occasions whereby there has been high conflict between the mother and her parents (almost certainly caused on occasion by the mother’s illness and the effect that substances the mother has consumed has had upon her). The maternal grandmother explained, and I accept, that “sometimes when people are intoxicated, the easiest targets are the people they love most who will forgive them and love them unconditionally”.
There is a risk that sometimes the decision to do what is best for their daughter might colour what might be best for the children.
The father on the other hand has a more dispassionate attitude to the issues caused by the difficulties with the mother’s health and has in my view a better ability to focus on what is best for the children as his primary concern whilst acknowledging at all times the need so far as it is possible in that context to do things that are protective of the mother’s health.
EVIDENCE OF Ms A
Ms A is a clinical psychologist specialising in infant child and family psychology who has been providing treatment to R since June 2012 and treatment to S since February 2013. She has met with R on 23 occasions (the most recent of which was 13 March 2013) and with S on three occasions (the most recent of which was 11 March 2013).
Ms A has prepared a number of reports. In these proceedings the father relies upon the two most recent reports dated 21 January 2013 and 14 March 2013.
The maternal grandmother fears that the father, in adopting the position he has in this litigation, wishes to “airbrush” the mother out of the children’s lives. I do not accept that there is a basis for those fears.
The father seems to me to have at all times adopted a fairly facilitative approach to the children’s involvement with their mother. It should not be underestimated the difficulty that the father faces (even with employed help) in raising two young children in circumstances where he also has to cope with the reactions to their mother’s illness.
In Ms A’s first report of 21 January 2013, she recommends that the children’s time with their mother at C Centre be once every three weeks as an ideal which could be reviewed once R got used to school, which she commenced this year. She suggested that that time happen on Sunday mornings rather than Sunday afternoons so that R could rest at home on a Sunday afternoon prior to her starting her school week.
Ms A acknowledges that because the children have been primarily with their father and because he has engaged her services and paid her fees, she has had little to do with the mother and I infer nothing to do with the maternal grandparents. Her most recent report however makes it clear that she has had the advantage of reading a substantial amount of the documentation that has been generated in this matter, although I am unable to agree with the opinion she has formed about the relationship between the father and the maternal grandparents.
In her most recent report dated 14 March 2013, Ms A provides an opinion about the proposal of the maternal grandparents both in relation to their own time with the children and the children’s time with the mother. At page 15 of her paginated affidavit sworn 15 March 2013, Ms A says, in relation to the children’s time with their mother:
In most instances, I would advocate reasonable and regular contact with a non-custodial parent. Indeed, I supported recognition of [the mother’s] importance to the children in my earliest report. Given, however, the history of attempts around contact, the distance required for contact to take place, the trauma experienced by the children, the age of the children, the other demands in their young lives, including the fact that [R] has only just transitioned to a 5 day a week school commitment, as well as the importance of the presence of a stable figure for them as much as feasible (their Dad in particular), I maintain my position at this point. I do suggest a review after another few months, and it may then be appropriate if the children are managing to increase this to fortnightly, but always with consideration of the children’s management of the arrangement.
In relation to the proposal by the maternal grandparents for the children to spend time with them, Ms A does not make any direction observation or comment about supervision (her ultimate recommendation is that the maternal grandparents see the children the same time as they see their mother which time would be supervised but I am unable to say from what Ms A says as to whether or not she expresses any view one way or the other about any need for supervision of the children with the maternal grandparents). Recent supervisors’ reports would not indicate any need for supervision (see in particular the report of 20 December 2012). Ms A’s central theme is that the children be provided with as much stability as possible. In regards to the maternal grandparents’ proposal that the children spend time with them one day a month from 8.30am until 5pm, Ms A comments that this “seems extremely long, and in combination with the proposed frequency of visits with [the mother] does not offer much opportunity to the children to have relaxing time or to socialize with friends”. I have some difficulty with that statement. The proposal is for time on one weekend a month in circumstances where at the moment the children are only seeing their mother on part of a day every three weeks. I would have thought there is sufficient time on the other day of a weekend for “relaxing” and “socialising with friends”. Ms A’s fundamental point is that “ANY changes in the current arrangements should occur gradually, phased from short contacts and slowly extending once it is clear that it is working well for the children”.
Overall, Ms A summarises the children’s needs as follows:
61.1.To have as much reliability and predictability in their weekly routine as possible.
61.2.To have as few changes, variations and settings for them to move between as possible.
61.3.For their vulnerability to be protected by ensuring they are not exposed to emotionally volatile situations.
61.4.A consistent person (where possible) should be present to manage handovers and access.
Ms A stresses that it is important to keep in mind that the facts of this case are not “typical”. The experience of trauma for the two children must be kept in mind in making arrangements external to their home environment which has become a “more important stable base for them”.
The lawyer for the father says that Ms A points to some “very concerning behaviour” on the part of S (I am not sure that Ms A elevates it to that level).
Ms A, having read the material, is clearly of the view that minimal contact between the father and the maternal grandparents is optimal. The father submits that I should err on the side of caution and not make orders that would place these children at risk of further emotional/psychological damage.
The maternal grandparents do not accept the recommendations of Ms A. The maternal step grandfather asserted that Ms A acted upon a report by the nanny service dated 29 December 2012 which was “a doctored document”. I attempted to explore that proposition as much as I could. On 1 January 2013, Supervision Agency E sent the father an initial supervision report in relation to the mother’s relapse on 29 December 2012. On 20 January 2013, the father emailed the service and asked them to include in the report details about S’s distress when he returned to the father’s home after the mother’s most recent relapse. The father said that information was important for Ms A. The father conceded he requested additional information and the nanny service then expanded upon their initial report. However the father was unable to confirm whether Ms A received the initial report or the altered report. What he told me about the process was in the following terms:
And the importance of that response was asked for by [Ms A] because the trauma the children expressed straight afterwards was left out to [sic] the report or some of it was left out of the report and [Ms A] said that that actually is the most important thing in assessing the children’s wellbeing is what their reaction was immediately after.
I am unable to tell whether the psychologist had the unaltered report or the altered report and I would have difficulty drawing an inference one way or the other.
There is no doubt that the father encouraged the nanny service to tell a full story about S’s distress and that that was something that was done by the father after a conversation with Ms A.
It is understandable that Ms A, as the children’s treating psychologist in the circumstances of this case, has interacted with the father in discussing with him what approaches he might take to best minimise the traumatic effect of the mother’s relapses upon the children (the actual events and subsequent absence of the mother from their lives).
The father relies upon the authority of Treloar & Nepean [2009] FamCAFC 206 in relation to how I should treat Ms A’s report on an interim basis. In that case, the Full Court emphasised the importance of having regard to the recommendations from the independent expert when determining parental responsibility and the time each party should spend with the child in the interim. Whilst I acknowledge the children’s treating psychologist is not an independent expert, in the context of this interim hearing, I do take heavily into account the opinions expressed by Ms A. I have already indicated that having read the same material she has, I am unable to reach the same conclusion that she has based on that material in relation to the relationship between the father and the maternal grandparents. In addition however, I have had the opportunity of hearing from the maternal grandparents directly, an opportunity which Ms A has not had.
THE RELATIONSHIP BETWEEN THE MOTHER AND THE MATERNAL GRANDPARENTS
Looking at the maternal grandparents’ stand alone application, the relationship between the maternal grandparents and their daughter, particularly when looking at interim orders, is of some but not critical relevance.
The mother appeared at the hearing supporting her parents’ position.
Given the emphasis placed upon this issue by the lawyer for the father, I will shortly discuss the information I have about the relationship between the applicants and the mother.
The lawyer for the father described the relationship between the father and the maternal grandparents as “destructive” and also referred to the relationship between the maternal grandparents and the mother as “destructive”. In relation to the latter, that is an ungenerous characterisation of the clear concern that the maternal grandparents show for their daughter who everybody acknowledges has a serious illness.
The maternal grandmother concedes that she has often had difficulties in her relationship with her daughter but on the other hand she has had a significant involvement in R’s life, particularly up until 2010.
It is asserted that the maternal grandparents may expose the children to “controlling behaviour” (whatever that might mean). It is said that it was controlling behaviour that made the mother escape from the maternal grandparents in December 2012 and subsequently go missing for a period of six days. The lawyer for the father made some criticism of the maternal grandparents for the part they played when the ambulance was called (exhibit 14). I am unable to say that the maternal grandparents did anything inappropriate on that occasion.
The father points to a note in the most recent documents produced by the NSW Police Service (exhibit 12) about the maternal grandmother threatening the hotel manager and security staff (who were present when the maternal grandparents attempted to put the mother into their car) for “going to the media and defaming them on facebook and other social media sites”. The maternal grandmother gave some explanation about that issue but it has not yet been fully explored and I am not able to say whether or not the maternal grandmother acted inappropriately in circumstances which I accept must have been very traumatic for her.
The father’s solicitor pointed to evidence that there had been a violent altercation between the mother and the maternal grandmother. The father’s solicitor referred to notes produced under subpoena from the hospital (exhibit 11) which record the mother “was tearful and spoke of the triggers to relapse – violent arguments with her mother…” The solicitor for the father also refers to an affidavit filed by Ms F which annexes file notes she took during a telephone conversation with Mr G on 23 September 2011 and a draft affidavit she prepared for Mr G. Mr G is said to be a friend of the mother. Ms F’s file notes record that Mr G told her that on 21 September 2011 he observed bruises on the mother’s arms. Mr G told Ms F that when he questioned the mother as to the origin of the bruises, the mother said to him “my mo[ther] has beaten the shit out of me”. Mr G said he asked the maternal grandmother whether that was true and the maternal grandmother replied “no, she is beating me.” Ms F’s file notes are second hand hearsay evidence. I am careful about the weight I give that evidence. The lawyer for the father also asserted that the most recent documents produced by the hospital (exhibit 13) evidenced the fractured nature of the relationship between the mother and her parents.
All that information however has to be seen in the context of the mother having suffered a serious relapse in her health and in those circumstances resisting what appeared to be reasonable attempts by the maternal grandmother to obtain medical assistance for her difficulties.
The father also raises the possibility that the maternal step grandfather was abusive towards the mother as a child but I have nothing to indicate the maternal step grandfather is an unacceptable risk to the children.
Any notion that the maternal grandparents have been derelict in protecting the children from their mother during a relapse is without foundation. On one occasion supervision was actually being provided by the paternal grandmother. It is true however that the maternal grandparents have proactively involved themselves in attempting to obtain medical assistance for the mother once they became aware that she had relapsed.
THE MATERNAL GRANDPARENTS’ APPLICATION FOR THE CHILDREN TO SPEND MORE TIME WITH THEIR MOTHER
The lawyer for the father raised the issue as to whether or not there was jurisdiction and power for the court to make an order in accordance with the maternal grandparents’ request in favour of the mother having additional time with the children. Section 65D FLA provides that power.
The mother has relapsed on four occasions. Exhibit 8 is a letter from C Centre which indicates at the current time the mother can only see the children fortnightly for four hours, although the mother told me on 21 March 2013 that she thought that she was only two or three weeks away from being at the next level (level 2). Level 2 seems to allow for full day visits and overnight stays.
The mother has foreshadowed that she might make an application seeking that the children spend one full day with her once a fortnight at C Centre and then move to an overnight arrangement on Saturday and Sunday with the night included on a fortnightly basis (the mother in fact would like to see the children every week but acknowledges the difficulties in making out a case before me on the evidence I have, particularly from Ms A). She says she acknowledges in her heart it would be better for them to come and see her once a fortnight.
The mother has also said she may be able to obtain legal aid to be legally represented. As at the date of the delivery of these reasons, the mother has yet to file an application.
I find it is appropriate to give the mother the opportunity to make her own application rather than to deal with the one made by her parents on her behalf. I will however make an order that if skype facilities are available in C Centre, that the mother be able to skype the children twice each week.
I have some fears that the mother may not be able to pursue her application given her current medical difficulties. When she appeared before me on 21 March 2013, although she had received a copy of the father’s most recent affidavit she had not been able to bring herself to read through it. The mother is also mindful of the fact that she wants to keep things as simple as possible for herself while she goes through the recovery process to which she has committed herself.
CONCLUSION
The father in paragraph 66 of his most recent affidavit indicates that these proceedings have not only put stress upon him financially but also psychologically and emotionally in circumstances where he suffers from stress and anxiety. I am mindful of the need to protect him in his role as the children’s primary carer and not subject him to any undue stress and anxiety.
I am of the view that it is in the children’s best interests to spend some unsupervised time with their maternal grandparents in the interim.
The father points to supervision report dated 18 March 2013 (exhibit 10) which commented upon the children’s tiredness after spending time with their mother. On that day, the supervisor arrived at the father’s home at 7.15am and returned the children at 1.15pm. On the days they visit their mother, the children have approximately two hours of travel time.
I take into consideration the age of the children, and I find it is appropriate for the maternal grandparents to spend time with the children once a month on Sundays from 9.00am until 1.00pm.
The maternal grandparents live in Suburb J in the Outer West of Sydney and there is an issue relating to the transportation of the children. It is appropriate the maternal grandparents provide that transportation. This may mean less travel time for the children if on a particular day the maternal grandparents decide to take the children out for an activity during the time they spend with the children rather than take them back to Suburb J.
In relation to changeovers, that can be done via a nanny or a supervision service should the father wish to pay for it, otherwise notwithstanding any level of animosity between the father and the maternal grandparents (and I am far from convinced that that is beyond redemption), the changeovers should be at the father’s home with the maternal grandparents picking up and redelivering the children.
What I am doing is putting in place an interim arrangement. It may be that if the children’s time with their mother becomes more frequent and extensive, it might be appropriate at that time to eliminate the children’s time alone with their maternal grandparents on the basis that the maternal grandparents can see the children when they are with their mother.
Ms A warned about a too extensive change happening when R was settling into school in her first year. I await information as to what proposal the mother makes in relation to the children’s time with her.
Ms A makes it clear that C Centre should be only every three weeks in her opinion with the possibility of moving to fortnightly after a number of months.
The orders sought by the maternal grandparents in their favour in relation to skype communication and the provision of other communication with the children was not specifically mentioned in submissions. There is no reason why that communication should not take place and I will order it on an interim basis.
Ms A seemed to enthusiastically support electronic communication between the mother and the children, particularly by using skype. I have no evidence as to the mother’s ability to participate in skype with the children but I will make an order in those terms to facilitate that.
The maternal grandparents also sought that they be able to communicate with the children by mail. I will make an order that the father pass on to the children any age appropriate cards, letters, or gifts from the maternal grandparents.
The maternal grandparents sought that they be invited to attend the children’s significant school or extra-curricular events. I accept that is an appropriate order to make.
As I have said, given the mother’s foreshadowed application, I do not believe it is appropriate in the context of this interim hearing to deal with the grandparents’ application for the children to spend time with the mother. I will stand over their application generally, and will dismiss it if the mother files an application for new interim orders on her own behalf. I will also stand over the father’s application for the children to spend time with their mother.
The father is currently facilitating time with the mother in accordance with the recommendations of the children’s treating psychologist. It is appropriate given the terms of the final orders that are still extant that those orders be suspended. I do not intend to make any order for the mother to have interim time with the children pending her making an application in that regard, given that the father is facilitating the children’s time with their mother. Liberty will be granted to all parties to restore the matter on 14 days notice should any party believe that is necessary.
The father resists the grandparents delivering the children to C Centre. I am unable to say in the context of an interim hearing whether the maternal grandparents’ proposal is a viable arrangement. I do not have any evidence as to whether there would be any other persons apart from the maternal grandparents who would be present at C Centre when the children were having time with their mother.
I will make a mutual non denigration order as some means of emphasising to the father and the maternal grandparents that they need to have an ability to control any negative feelings they have towards one another.
It is my view that an Independent Children's Lawyer should be appointed in this matter. The father objected to the appointment of an Independent Children's Lawyer on the basis of his financial position. I do not have in evidence a financial statement from the father. I will make a direction that the father file a financial statement. The father suggests that his financial circumstances might not allow an order to be made against him for the payment of the Independent Children's Lawyer’s fees. That is something I will take into account after he has filed a financial statement. It goes without saying that any order for the appointment of an Independent Children's Lawyer does not automatically have attached to it an order that the father pay the cost or part of the cost of the Independent Children's Lawyer, although that may be the result if he has the financial capacity to do so.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 19 April 2013
Associate:
Date: 19.4.13
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