Tulach & Grunswell (No. 2)
[2021] FamCA 374
•11 June 2021
FAMILY COURT OF AUSTRALIA
Tulach & Grunswell (No. 2) [2021] FamCA 374
File number(s): NCC 2875 of 2018 Judgment of: CLEARY J Date of judgment: 11 June 2021 Catchwords: FAMILY LAW – CHILDREN – Where mother and father proposed consent orders about the younger subject child -Where orders not made until evidence tested – Parental Responsibility – Best Interests of the child – With whom the child shall live and spend time – Where there are cross allegations of family violence – Where separation of siblings has occurred, resulting in them living a sizeable distance from each other – Where shared care would result in ongoing psychological harm – Ordered that the maternal grandmother have sole parental responsibility for the elder subject child – Ordered the elder subject child live with the maternal grandmother and spend time with the mother.
FAMILY LAW – CHILD ABUSE – Allegations – Where allegations were raised by the mother that the father had sexually abused the elder subject child, mother’s first child from an earlier relationship – Where the maternal grandmother considers that the father poses a risk of sexual harm to the mother’s first child – Where the maternal grandmother pleaded guilty to making a false statement to police regarding the whereabouts of the father – Where evidence relating to child abuse or family violence is inconsistent – Where the allegations of sexual abuse are not substantiated – Where the evidence does not suggest a risk of sexual harm to either child from the father – Where the elder child is at risk of psychological harm due to adult conflict and ongoing investigations into allegations of sexual harm – Ordered by consent that the parents have shared parental responsibility for the younger child – child shall live with the mother and spend time with the father
Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA Number of paragraphs: 327 Date of hearing: 4-7 May 2021 Place: Newcastle Counsel for the Applicant: Mr Taylor Solicitor for the Applicant: PME Robinson & Co. Counsel for the First Respondent: Ms Carty Solicitor for the First Respondent: Stevens Family Law & Mediation Counsel for the Second Respondent: Not Applicable Solicitor for the Second Respondent: Winder Lawyers - Mr Haricharan Counsel for the Third Respondent: Not Applicable Solicitor for the Thirs Respondent: Not Applicable Solicitor Advocate for the Independent Children's Lawyer: Ms Karagiannis Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 2875 of 2018 BETWEEN: MS TULACH
Applicant
AND: MR GRUNSWELL
First Respondent
AND: LEGAL AID NSW
Independent Children’s Lawyer
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
11 JUNE 2021
THE COURT ORDERS THAT:
1.That all prior parenting orders made in this Court and in the Federal Circuit Court with regard to X COOKSON born … 2013 (“X”) and Y GRUNSWELL born … 2017 (“Y”), together referred to as “the children”, are discharged.
THE CHILD Y
2.Orders are made by consent of the Applicant mother and First Respondent father in accordance with a document signed on 4 May 2021 and titled “Minute of Orders sought by the Applicant Mother and First Respondent Father” being Orders 1 to 16 inclusive ONLY of that document:
1.The Applicant, Ms Tulach, and the First Respondent father, Mr Grunswell, have equal shared parental responsibility for Y Grunswell (“Y”) born … 2017.
2.Y shall live with her mother, Ms Tulach.
3.Y shall spend time with her father, Mr Grunswell, as agreed between the parties in writing, but failing agreement as follows:
a.Weekend time:
i. From the date of these orders for a period of 6 months, for seven (7) hours each Saturday, as agreed but failing agreement from 10.00 am until 5.00 pm;
ii. Then, for a further 6 months, each alternate weekend from midday Saturday until midday Sunday;
iii. Then, for a period of 6 months, each alternate weekend, from the conclusion of school or preschool (or 3.00 pm if school or preschool attendance is not required) on Friday until 5.00 pm Sunday;
iv. Then, for a period of 12 months, each alternate weekend, from the conclusion of school or preschool (or 3.00 pm if school or preschool attendance is not required) on Friday until the commencement of school or preschool on Monday (or 9.00 am if school or preschool attendance is not required);
v. Thereafter:
1. During school terms each alternate weekend, from the conclusion of school (or 3.00 pm if school attendance is not required) on Thursday until the commencement of school on Monday (or 9.00 am if school attendance is not required); and
2. For half of all school holidays following Terms 1, 2 and 3, being the first half of school holidays commencing in odd numbered years and the second half of school holidays commencing in even numbered years;
3. For half of the school holidays following Term 4 each year:
a.For 2024 and 2025, on a week-about basis, commencing the first week of school holidays commencing in odd numbered years and the second week of school holidays commencing in even numbered years and continuing each alternate week thereafter;
b.From 2026 onwards, for the first half in odd numbered years and the second half in even numbered years;
c.The first half of school holidays commences at the conclusion of school on the last day of the preceding school term and ends at 12.00 noon on the middle day if the school holiday is an odd number of days and at 9.00 am on the first day after the middle midnight if the school holiday is an even number of days;
d.The second half of school holidays commences at the conclusion of the first half and the second half concludes at the commencement of school on the first day of following school term;
b.On Father’s Day, from 9.00 am until 5.00 pm;
c.On Y’s birthday, if Y is not already spending time with the father, for a period of three (3) hours as agreed between the parents, but failing agreement:
i.Between 3.00 pm and 6.00 pm if falling on a school day; and
ii.Between 9.00 am and 1.00 pm if falling on a non-school day;
d.On the father’s birthday:
i. Between 3.00 pm and 6.00 pm if falling on a school day; and
ii. Between 9.00 am and 5.00 pm if falling on a non-school day;
e.For Christmas:
i. In 2021 and each odd numbered year thereafter, from 4.00 pm Christmas Eve until midday Christmas Day;
ii. In 2022 and each even numbered year thereafter, from midday Christmas Day until midday Boxing Day.
4.Notwithstanding any other order herein, Y’s time with her father is suspended, and Y will spend time with her mother, during the following times:
a.On Mother’s Day, from 9.00 am until 5.00 pm;
b.On Y’s birthday, if Y is not already spending time with the mother, for a period of three (3) hours as agreed between the parents, but failing agreement:
i. Between 3.00 pm and 6.00 pm if falling on a school day; and
ii. Between 9.00 am and 1.00 pm if falling on a non-school day;
c.On the mother’s birthday:
i. Between 3.00 pm and 6.00 pm if falling on a school day; and
ii. Between 9.00 am and 5.00 pm if falling on a non-school day;
d.For Christmas:
i.In 2021 and each odd numbered year thereafter, from midday Christmas Day until midday Boxing Day;
ii.In 2022 and each even numbered year thereafter, from 4.00 pm Christmas Eve until midday Christmas Day.
5.In order to facilitate Y living with or spending time with the parents pursuant to these orders, each parent shall, including by a representative, return Y to the other parent at B Town McDonalds Restaurant at the end of Y’s time with each parent, unless:
a.The time ends at the beginning or end of Y’s school day, in which case Y shall be transported to school by the parent whose time is ending, or their representative, and collected from school by the parent whose time is beginning, or their representative; or
b.The parties agree to some other arrangement for transporting Y between them, and to and from school, from time to time.
6.Each parent must facilitate the reasonable and uninterrupted communication of the other parent with Y by means of telephone, email or internet-based communication (including Facetime) during the times Y lives with or spends time with the parents, and in any event such communication will occur no less frequently than 2 times per week.
7.Each parent shall forthwith take all steps necessary to authorise Y’s school to send copies of all correspondence, reports, school photograph application forms, permission forms, invitations and notices of any school or sporting activities to both parents.
8.Each parent shall notify the other parent of any serious injury or illness, medical treatment or prescription, or hospital admittance of Y as soon as practicable and within 24 hours of becoming aware of the event.
9.Each parent at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by Y and the identity of any treating professional.
10.Each parent must provide such consents and authorities as may be required by any medical practitioner treating Y to allow the provision to the other parent of any medical report or reports in relation to Y.
11.Each parent must at all times keep the other informed as to all sporting, religious, cultural and education events which come to the notice of that parent and which from time to time involve Y, or which relates to the activities of Y and at which parents may attend, and each parent be so at liberty to attend.
12.The parent must keep each other informed of their current residential address, home telephone number, mobile telephone number and email address and shall provide to the other not less than 24 hours’ notice of any change of address or telephone number.
13.Both parents are hereby restrained from changing the place of residence of Y from within four local government areas without the express written consent of the other parent.
14.Each of the parents is restrained from discussing these proceedings or any other litigation involving the parents in the presence or within the hearing of Y.
15.Each parent is restrained from denigrating the other parent or any member of the other parent’s household or extended family in the presence or within the hearing of Y or allowing any other person to denigrate the other parent or any other member of the other parent’s household or extended family in the presence or within the hearing of Y.
16.Each of the parents are restrained from consuming alcohol to the extent that it would place that parent above the legal blood alcohol content for driving a motor vehicle on a public road in New South Wales, or from consuming any illicit substance whilst responsible for the care of Y.
17.Omitted intentionally.
THE CHILD X
3.That the Second Respondent maternal grandmother have sole parental responsibility for X, and shall:
a.Advise the mother in writing (which includes email and text) of the matter which requires a decision and of the proposal of the maternal grandmother in that regard;
b.Invite the written response of the mother within a defined period of time to be reasonable in the circumstances;
c.Genuinely consider the response of the mother and take her views and proposals, if any, into account before coming to a decision; and
d.Promptly advise the mother in writing of the decision taken.
4.That X live with the maternal grandmother.
5.That X shall spend time with the mother as agreed between the maternal grandmother and the mother but failing agreement as follows:
a.During each term school holiday period for a period of 7 days commencing on a Saturday of the period at 2.00 pm and concluding on the following Saturday at 1.00 pm [such period to coincide with Y living with her mother not spending time with Mr Grunswell];
b.During the holiday period after the end of Term 4, for a period of two weeks commencing on a Saturday at 2.00 pm and concluding on the Saturday two weeks later at 1:00pm, to include Christmas day in alternate years, [such period of two weeks to coincide with Y living with her mother not spending time with Mr Grunswell];
c.The mother shall confirm in writing (including email and text) her intention to have X spend time with her not less than 7 days prior to each proposed visit and in the event that the mother does not confirm, that period of time shall not take place.
6.Unless otherwise agreed in writing changeovers shall take place at the Truckstop C Town and the period of time shall commence at changeover.
7.That X shall have telephone communication with the mother each Saturday from 4.00 pm by Facetime/Skype/telephone communication, with the maternal grandmother to initiate Facetime/Skype/telephone communication to the mother’s device, and the parties to exchange details which permit Facetime/Skype/telephone communications within 7 days following the making of these orders, and advising within 48 hours of any change to these details.
8.That the mother is at liberty to supply cards and gifts to the maternal grandmother for X through post to the maternal grandmother’s postal address, with the maternal grandmother to provide these to X.
9.The maternal grandmother shall authorise the school which X attends to provide to the mother, at her own expense if any, copies of X’s school reports, school newsletters and applications for school photographs in the event that the mother advises the school and/or the maternal grandmother that she wishes to receive that information.
10.The maternal grandmother and mother must advise each other and keep each other advised of their current address and contact telephone numbers (including both landline and mobile telephone number if applicable) and advise the other of any changes to these details within 7 days of such change occurring.
11.That the registry manager be requested to provide a copy of these orders to Community Services, Department of Communities and Justice within 7 days, including a copy of her Honour’s reasons for judgment.
12.Leave is granted to the maternal grandmother to provide a copy of the final orders (but not reasons) to the principal of X’s school.
13.Upon delivery of judgment in this matter the parties shall arrange for X to meet with [which may be an electronic meeting] the Independent Children’s Lawyer and the Family Consultant at the Newcastle Registry of the Family Court of Australia to have explained to her the effect of these orders and, any relevant questions answered.
14.That the mother and the maternal grandmother are each restrained from bringing X into contact with Mr Grunswell and from permitting any other person to do so.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tulach & Grunswall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J:
INTRODUCTION
These are applications for parenting orders with respect to two children, X aged seven years nine months and Y aged almost four years at date of trial.
The applicant is the mother of both children but the circumstances and relationships of each child are quite different.
Presently X lives with the maternal grandmother in D Town in Western NSW and Y lives with the mother in E Town north of Newcastle. The distance between the two households is about 700 kilometres, eight hours of driving.
The Applicant Mother - Ms Tulach
The mother is 31 years of age. She currently lives in the E Town area, NSW. Her hope and intention is to move to the F Town area, NSW.
The mother is not in paid employment. She is a homemaker. She would like to obtain paid employment.
Her household consists of herself and the younger subject child, Y.
The mother denies a current relationship.
The First Respondent Father - Mr Grunswell
The First Respondent (“Mr Grunswell”) is the father of Y. He is 36 years of age. He lives in the F Town area.
Mr Grunswell is in paid employment as the manager of a community service business, previously two businesses, owned by his parents. At trial he was intending to cease that employment and instead to run his own retail business.
His household consists of himself only.
Mr Grunswell denies a current relationship.
The Second Respondent Maternal Grandmother – Ms B Tulach
The Second Respondent maternal grandmother is 66 years of age. She is the grandmother of both subject children. She lives in her own house in D Town. She is not in paid employment but maintains an interest in her previous area of work. She receives a Centrelink pension and Centrelink support payments for X.
Her household consists of herself and the elder subject child, X.
The maternal grandmother denies a current relationship.
The Third Respondent – Mr Cookson
Mr Cookson was joined as a party because his details appear as father on the Birth Certificate of X. He has not been a participant in the proceedings. He has played no role in the life of the child X.
APPLICATIONS
The Mother
The mother had proposed orders for each of the two children in accordance with her Amended Application of December 2020 as follows:
For X:
- That the mother have sole parental responsibility;
- That the child live with her;
-That the child spend time with the maternal grandmother for six hours on the last Saturday of each calendar month in the local area of the mother and have a telephone call each Sunday afternoon;
-That both the mother and the maternal grandmother be restrained from having contact or communication with Mr Grunswell;
-That the maternal grandmother have CDT testing four times per year;
-Other specific orders and restraints.
For Y:
-That the mother and Mr Grunswell have equal shared parental responsibility;
-That the child live with the mother;
-That the child spend time with Mr Grunswell supervised by Ms G until November 2021, thereafter supervised unless otherwise agreed. Telephone calls twice weekly;
-Mr Grunswell to be restrained by injunction from approaching the mother’s home and Y’s school and from approaching or remaining in the presence of X.
(Court’s emphasis)
After discussions on the first day of trial [4 May 2021] the mother proposed through an agreed minute[1] that Y would start unsupervised time with Mr Grunswell straight away. There was a proposal for a graduated program leading to substantial and significant time.
[1] Exhibit 6.
The mother and Mr Grunswell agreed to impose a restraint on each of themselves from leaving Y in the unsupervised care of the maternal grandmother.[2]
[2] Exhibit 6 – proposed Order 17.
Analysis
There was no change of proposal with regard to the orders sought about X.
As a result, the effect of the mother’s proposals were that both the mother and the maternal grandmother would be restrained from allowing X to come in contact with Mr Grunswell and also that the mother and Mr Grunswell would be restrained from allowing Y to spend unsupervised time with the maternal grandmother.
Thus the position of the mother is that she places no trust and confidence in Mr Grunswell in respect of X but does so for his relationship with Y; and places no trust and confidence in the maternal grandmother in respect of Y but does so for her relationship with X.
The Court has come to the conclusion that this position of the mother is logically inconsistent and ultimately untenable.
Mr Grunswell - the Father (of Y)
Mr Grunswell proposed final orders for Y (only) in accordance with his Response filed 12 November 2018 as follows:
-That the parties have equal shared parental responsibility;
-That the child live with the father;
-That the child spend alternate weekends, half school holidays and other special times with the mother.
On the first day of trial, as discussed above [in relation to the proposals of the mother] the father came to an agreement with the mother, conceding residence to her with substantial and significant time for the child with him.[3]
[3] Exhibit 6.
The Maternal Grandmother
The maternal grandmother proposed orders for X (only) in accordance with her Amended Response filed 30 June 2020 as follows:
-That the maternal grandmother have sole parental responsibility for the child;
-That the child continue to live with her;
-That the child spend time with the mother in D Town for six hours on the last Saturday of each calendar month and have a weekly telephone call;
-That in the event the mother failed to attend for three consecutive occasions then time would be as agreed at the discretion of the maternal grandmother;
-There were other specific orders and restraints.
The Independent Children’s Lawyer
In her Case Outline document[4] the Independent Children’s Lawyer (“ICL”) stated that she was not in a position to formulate orders for consideration.
[4] Exhibit 3.
Prior to submissions the ICL tendered a Minute of Order[5] which proposed orders in the alternative, depending on whether or not the Court found that Mr Grunswell represented a risk of sexual harm to either of the children:
[5] Exhibit 27.
If he was not a risk:
-That both children live with the mother;
-That the mother have sole parental responsibility for X;
-That the mother and Mr Grunswell have equal shared parental responsibility for Y;
-That Mr Grunswell spend time with Y in accordance with the agreement between himself and the mother;[6]
-That X spend holiday time and communicate with the maternal grandmother;
-Other specific orders and restraints.
[6] Exhibit 6.
If he was found to be a risk:
-That Y spend short supervised time with Mr Grunswell four times per year only.
The ICL was inclined towards the view that the mother was mistaken about abuse of X by Mr Grunswell and that she had been pressured in that regard by the maternal grandmother.
It was strongly submitted that the two children siblings should be brought back together and raised by the mother.
THE TRIAL
This trial had been listed for three days commencing Monday 14 December 2020.
On that day the two parents were represented by solicitor and counsel. The ICL had briefed counsel.
The second respondent maternal grandmother was unrepresented. She had expected to have legal representation. Her application for adjournment of the trial was granted for the reasons given at that time.
A further four days commencing 4 May 2021 were allocated.
On the first day of this trial, negotiations took place. All parties were legally represented. An agreement was reached between the mother and the father about parenting arrangements for Y.
The maternal grandmother did not support or oppose the orders being made.
The ICL did not consider it appropriate to support the orders proposed for Y until the evidence had been tested. The mother has until recently alleged that Mr Grunswell was sexually abusive towards X. In those circumstances the approach of the ICL was understandable and in my view proper.
The proposed consent orders were not made by the Court, to enable the evidence about past allegations of abuse by Mr Grunswell of X to be fully explored. The orders were made an exhibit.[7]
[7] Exhibit 6.
The trial commenced and concluded within time.
HISTORY OF RELEVANT EVENTS
X was born in 2013
At the time of X’s conception and birth the mother was living with her partner Mr Cookson in Adelaide SA. When X was born she was given his surname.
The mother asserts that Mr Cookson is not the biological father of X. The father of the child is said to be another named individual who the mother alleges sexually assaulted her in late 2012. The mother did not make a report to police. Apparently no DNA testing was undertaken to determine the paternity of X.
The mother also asserts that Mr Cookson was sadistic towards her and inflicted injury on her during sexual intercourse. Further, that he began to physically assault her when she was holding the infant X.
In an interview in March 2019, when X was five years old, she told the interviewer: “I did have a Dad but he went all crazy. My mum told me about him a long time ago”.
This is the extent of the information before this Court about X’s paternity and of X’s knowledge of it.
When X was about three months old, in October 2013, the mother separated from Mr Cookson. The mother asked the maternal grandmother to travel to Adelaide and transport herself and X back to the Newcastle area so they could live with the maternal grandparents. The maternal grandmother did so.
In December 2014 when X was about 16 months old, the maternal grandmother, the mother and X moved into a rental property at Suburb H near F Town.
In December 2015 when X was about two and a half years old the mother met and began a relationship with Mr Grunswell [the father of Y]. He was the manager of a community service business which the mother was enquiring about.
By Australia Day 2016 the relationship was sufficiently established that the mother and X spent the weekend with Mr Grunswell at his home.
The mother describes this relationship as “on again/off again”. Mr Grunswell stayed with the mother in the maternal household several days per week.
The mother, Mr Grunswell and the maternal grandmother all clashed over the appropriate way to parent X. It is probably the case that Mr Grunswell liked structure and clear firm rules. He describes himself as having taken on “a father figure role for X”. The mother wanted to please Mr Grunswell and also had difficulty herself managing X .The maternal grandmother thought Mr Grunswell should mind his own business since X was not his child.
The maternal grandmother did not enjoy the presence of Mr Grunswell in the home but accepted the mother’s right to invite him.
The maternal grandmother bought a property in D Town at this time. She invited the mother to live there too. The mother declined.
By Easter 2016 the mother and X were living with Mr Grunswell in a rented property near F Town.
After about three months the mother and X moved out “because [Mr Grunswell] had become very controlling and insisted on dictating how I brought X up.”[8] The mother was clear to say that Mr Grunswell had locked X in her bedroom at bedtime and was “upsetting her with his controlling behaviour.”
[8] Affidavit of the mother filed 30/10/2020, par 24.
The mother, X and Mr Grunswell moved into a property, with Mr Grunswell’s sister, Ms G, her husband and their three children.
The maternal grandmother was worried about the way X was being treated by the mother and Mr Grunswell and also the mother’s willingness to defer to Mr Grunswell about X’s care.[9]
[9] Affidavit of the maternal grandmother filed 6/11/2020, par 15.
During the following three months X attended child care at the centre managed by Mr Grunswell. The maternal grandmother spent time with X whenever the mother allowed it. The evidence of the maternal grandmother about that was “[Ms Tulach] [the mother] kept telling me that I couldn’t see X because [Mr Grunswell] thought I was a bad influence.”[10]
[10] Affidavit of the maternal grandmother filed 6/11/2020, par 21.
On 9 June 2016 the maternal grandmother moved back to live in her house in D Town with her elder daughter Ms J who had been living there. I do not consider that the move back represented any lack of interest in or concern about X and the mother by the maternal grandmother.
By about July 2016 the mother no longer wished to live with Mr Grunswell.
In August 2016, at the request of the mother, the maternal grandmother, the mother and X then moved into an apartment in Suburb K in the F Town area, close to where Mr Grunswell was living. The maternal grandmother described X as “very clingy when we moved into the Suburb K Unit. She wouldn’t sleep in her own room as she was terrified of ‘the bad thing’ that she believed was standing just inside her bedroom door”.[11]
[11] Affidavit of the maternal grandmother filed 6/11/2020, par 28.
The relationship between the mother and Mr Grunswell was a volatile one. The mother asserts and Mr Grunswell concedes that he was drinking heavily. Mr Grunswell asserts and the mother denies, that the mother too drank to the point of being drunk. The maternal grandmother also gave evidence of the mother “drinking a huge amount at this time.”[12]
[12] Affidavit of the maternal grandmother filed 6/11/2021, par 29.
Mother becomes pregnant with Y
In September 2016 the mother became pregnant to Mr Grunswell with the younger child Y.
The mother and Mr Grunswell had not planned to have a child. The mother described the pregnancy as a failure of contraception and, at least initially, it was unwelcome news to the father Mr Grunswell.
The mother telephoned the maternal grandmother on a great many occasions and complained about Mr Grunswell’s behaviour, his drinking and indifference to the complications of her pregnancy.
In relation to X, she told her mother that Mr Grunswell was cruel to X, “still shutting her in her room at night, not letting her have drinks or go to the toilet at night”. I note that this complaint was raised by the mother in her Notice of Risk filed in September 2018. I accept that the mother did accuse Mr Grunswell of this conduct, at least to her mother, in 2016.
The maternal grandmother also gave evidence that at that time, in late 2016, the mother reported “she [the mother] had seen him [Mr Grunswell] looking up X’s nightie on two occasions prior to bedtime and that X had no underpants on”. The maternal grandmother commented that the mother did nothing about this and thought underpants were unnecessary.
Mr Grunswell in cross-examination denied such conduct at any time with X.
In November 2016 Mr Grunswell proposed marriage to the mother and she accepted.
In December 2016 the maternal grandmother travelled from D Town with her daughter Ms J and grandson Z to F Town for Christmas. They stayed in an Airbnb accommodation. X stayed with them for the eight days of their stay.
An incident of intoxication and violence January 2017
On 2 January 2017 the maternal grandmother returned X to the mother, at the home she shared with Mr Grunswell, in anticipation of her own return to D Town.
Later that night, an ugly incident unfolded. The mother was at home with X and a friend of the mother’s. On all accounts the mother was heavily intoxicated. She yelled insults into Mr Grunswell’s face when he arrived home. Mr Grunswell describes the mother as having smashed some glasses on the floor then accusing him of having done it.[13] There was yelling and accusation. The mother stumbled and fell through the hedge. The father left, drove to the home of his sister [Ms G] and asked her to accompany him home. She agreed.
[13] Affidavit of Mr Grunswell filed 30/10/2020, par
Ms G, went into the parties’ house to look for X who said to her, “Mummy broke the glasses on the floor. Mummy said I can eat ice-cream for dinner”. It was at that point that Ms G to her great credit rang the maternal grandmother to tell her that the mother was “drunk and smashing things”.[14] Ms G was not challenged about this evidence.
[14] Affidavit of Ms G filed 12/11/2018, par 21 (on page 5).
The maternal grandmother immediately drove to the home of the mother and Mr Grunswell. She assessed the mother as drunk and took the mother and X to her home.[15]
[15] Affidavit of the maternal grandmother filed 6/11/2020, par 35.
On 5 January 2017 the maternal grandmother travelled back to D Town with the mother and X.
Two days later the mother, with X, drove back to her home with Mr Grunswell.
In late January 2017 the mother rang the maternal grandmother for help. She described problems with her pregnancy. The maternal grandmother drove to the mother’s home. Mr Grunswell would not allow her to stay there. The maternal grandmother rented an onsite caravan and lived there for about two months. X stayed with her in the caravan. The mother stayed with Mr Grunswell.
The maternal grandmother described X at this time as quite unwell, with severe constipation and faecal overflow. Her condition gradually improved with a change of diet.
On or around 4 March 2017 the mother, then six months pregnant, called off the relationship with Mr Grunswell. She moved into a cabin in the same caravan park as her mother.
Mr Grunswell did not accept the mother’s decision to end the relationship. The mother alleges that what followed was his harassment of her through telephone calls, texts and unannounced visits.
In mid-March 2017 the maternal grandmother returned to D Town.
In late-March 2017 Mr Grunswell was arrested and taken to L Town Police Station. He was charged with Stalk/Intimidate Intend Fear and with Use Carriage Service to menace harass offend.
The mother and Mr Grunswell returned to conducting an “on again/off again” relationship.
In mid-2017 the mother again ended the relationship with Mr Grunswell. She asked her mother to return from D Town, to rent another property together with herself and X. To use the words of the maternal grandmother about herself, she did return “for X”. She found a short term rental in E Town for herself, the mother and X.
The maternal grandmother needed to return to D Town for a short time. She took X with her rather than leaving her in the care of the mother. The mother was in regular telephone contact telling the maternal grandmother that she had not touched alcohol. On her return the maternal grandmother found the unit in disarray and empty bottles everywhere.
Y was born 2017
The mother and Mr Grunswell reconciled. He was present at the birth of their child Y in mid-2017, as was the maternal grandmother.
Soon after, the mother and Mr Grunswell again separated although the relationship continued.
Court events and orders for Mr Grunswell - 18/10/2017
On 18 October 2017 Mr Grunswell was sentenced in respect of the two charges. He received Bonds S10 and S19B without recognizance, given 18 months to attend for counselling, educational development, drug or alcohol rehab. To be supervised by NSW Probation Service.
Also on that date, a Final Order (“ADVO”) was made at L Town Local Court for a period of 12 months against Mr Grunswell.[16]
[16] Exhibit 29.
Separation of parents
In June 2018 the mother ended the relationship with Mr Grunswell. He describes himself as surprised and devastated.
In late-June 2018 the mother invited Mr Grunswell to come to her home to celebrate Y’s first birthday. He did so. The mother, the maternal grandmother and both children were present. It was a strained but uneventful visit.
Four days later, on 2 July 2018, the mother applied to vary the 2017 ADVO by extending the time period by a further 12 months. The grounds given were harassment, intimidation and “threatening to take my child from me.”
There is no evidence before me that the order was extended.
The mother expressed concern to police that the Mr Grunswell was following her in his car. The next month the mother reported that he had approached her and harassed her about reconciling. Police did not initiate action.
In August 2018 the maternal grandmother made a statement to police about having seen Mr Grunswell’s car outside the maternal home. The police made their own enquiries and were satisfied that both Mr Grunswell, and separately his vehicle, had been elsewhere at the relevant time.
The grandmother was arrested, charged and later pleaded guilty to making a false statement.
The first allegation/accusation against Mr Grunswell - 12/08/2018
On or about 12 August 2018 the mother alleges that X said these words to her, “go away before I stick my finger in your wee-wee”. The conversation came late at night after the mother had been, to use her words, “struggling to get X to go to bed for some hours. She refused repeatedly. She was kicking and hitting me and screaming incoherently and kept waking Y”. The mother asked the child “Has anyone ever said that to you before?” After the question was repeated the child responded “[Mr Grunswell]”.
X interviewed by the Department of Family and Community Services - 4/09/2018
On 4 September 2018 Family and Community Services interviewed X, observed sibling Y, spoke with the children’s mother, viewed Facebook material posts and reviewed Police material.[17]
[17] Magellan Report dated 20/05/2019, page 2.
The outcome decision was that “[X] (only), was being psychologically harmed.”
The Magellan reporter[18] conducting a retrospective analysis of this and a later interview, noted “It is not detailed who caused the harm, when this harm occurred and what evidence this conclusion is based on”.
[18] Magellan Report dated 20/05/2019,
The narrative of the report went on to say: “While [X] made no disclosures of physical/sexual harm from Mr Grunswell she was firm in her disclosure that Mr Grunswell had said he was ‘going to put his fingers in her wee-wee’. X also exhibited escalated anxiety around the possibility of running into Mr Grunswell by accident, in the street or at the shops.
Proceedings in Federal Circuit Court [Y] commence - September 2018
On 13 September 2018 the mother filed an Initiating Application for parenting orders in relation to Y.
The orders proposed objectively reflect that the mother held fears about Y spending time with Mr Grunswell. In addition to orders for sole parental responsibility and residence, the mother sought a restraint as follows on both an interim and final basis:[19]
That the father be restrained by injunction pursuant to Section 68B of the Family Law Act 1975 (Cth) from:
a approaching or entering the mother’s home;
b:coming within 100 metres of any educational institution attended by the child from time to time;
capproaching or remaining in the presence of the child’s sister X Cookson.
[19] Initiating Application of the mother filed 13/09/2018
There was a Notice of Risk[20] raising concerns about the Mr Grunswell’s behaviour towards the mother but also three specific matters relating to X:
1.The mother’s older child said words to the effect of “go away before I stick my finger in your wee wee” When asked if anyone has ever said that the (sic) her, the child replied “Yes… [Mr Grunswell] did..”
2.The father gave the child [X] Sudafed against the mother’s wishes, telling her it was necessary to get the child into a routine.
3.The father would insist the child [X] be locked in her room, despite her significant distress. He would insist she sit in ‘time out’ even when the child needed the toilet, leading to her urinating herself. He would verbally denigrate the mother if she went against his wishes.
[20] Notice of Risk filed by the mother on 13/09/2018, par 2(b).
Analysis
In the proceedings before me the mother attributed blame to the maternal grandmother for influencing her against Mr Grunswell.
She gave evidence that when she had the chance to clear her head and think carefully she realised that there was no problem for X around Mr Grunswell, the problem was her mother, making her complain about him and think badly of him.
In considering that evidence for it to be true it must be the case that either the mother raised untrue allegations of sexual and other abuse of X to please or placate the maternal grandmother, who did not particularly like Mr Grunswell, or that the mother believes that the maternal grandmother told X what to say and put pressure on X to repeat those things to the mother.
The mother did not allege either of those possibilities. Rather her evidence was generalised blame of the maternal grandmother.
On the evidence before me the mother has, at least since X was born, relied on her mother, emotionally and for accommodation. The maternal grandmother has been the first resort when difficulties have arisen for the mother, first with Mr Cookson and later with Mr Grunswell. Nevertheless, the mother has moved away, lived with partners and readily ignored the fears and advice of the maternal grandmother.
It is difficult to accept, in the absence of medical or other evidence, that the application in the terms set above, does not reflect the free will of the mother in making it.
Child Dispute Conference [Y] - 14/11/2018
The parties attended for a Child Dispute Conference. “The mother described the risk of sexual harm in the father’s care as being her primary concern”.[21]
[21] Child Dispute Conference Memorandum dated 14/11/2018, par 3.
The mother denied abusing alcohol while pregnant in quite a vehement way, “I had high risk pregnancies and would never jeopardise the pregnancy through drinking.” The evidence supports a finding that she did on 2 January 2017 at least.
Interim orders in respect of Y were made in the Federal Circuit Court (“FCC”) as follows:
·Child to live with mother;
·Spend no time and have no communication with the father;
·Father restrained from approaching mother or child;
·Consideration of ongoing investigation into sexual abuse allegations (in relation to X) and whether the matter should be transferred to the Magellan List;
·ICL appointed for Y.
After these orders were made Mr Grunswell saw Y once in person and once by video call initiated by the mother. The mother regularly telephoned Mr Grunswell. These calls were affectionate and inconsistent with a belief that Mr Grunswell had hurt or even frightened X. For instance the mother asked Mr Grunswell to look after X as well as Y if she and her mother went to gaol for making false statements about him.[22]
[22] Affidavit of Mr Grunswell filed 30/10/2020, par 95.
She told him “not everything in my affidavit was true”, she asked him for money. She said that X had “started throwing a tantrum” and yelled at her “Kiss my wee-wee”.
On 11 December 2018 the mother went alone to visit Mr Grunswell. This was the night before X was to be interviewed again. The mother reports Mr Grunswell said “I’ve not done or said anything to X!” The mother called Mr Grunswell a “paedophile” then walked to her car took out two beers and gave him one of them, which he declined.[23]
[23] Affidavit of Mr Grunswell filed 30/10/2020, par 107.
This unchallenged evidence is a revelation of the mother’s attitude to X’s situation. Her child was to be interviewed the next day about possible abuse by Mr Grunswell. The mother was in her own way letting Mr Grunswell know she did not believe there was a problem and that their relationship was intact. She explained that she had wanted to see him at Court but her lawyers would not let her leave the safe room.
Police interview X - 12/12/2018
On 12 December 2018 the child X was interviewed by police.[24] She identified that she was there “because [Mr Grunswell] said something”. She denied knowing who “[Mr Grunswell]” was. She reported that Mr Grunswell said he would “kiss my wee-wee and stick the finger in my wee wee.”
[24] Exhibit 8.
She denied that anything like that had happened between her and Mr Grunswell and that she would tell someone if it did.
She also stated in her own way that she did not want to be interviewed again, “I’ve been here one day, when did I come here again, I don’t want to come here again.”
On 17 December 2018 a provisional ADVO was put in place for the protection of X from Mr Grunswell.
On 19 December 2018 the mother alleges that X said to her “[Mr Grunswell’s] finger went in my wee-wee.” If true this would be a serious criminal assault.
At Christmas 2018 while swimming, X is alleged by the mother to have said to her “[Mr Grunswell] used to tickle my wee-wee under the water in the pool”.
On 26 December 2018 the mother rang Mr Grunswell to say, “I still love you and I’m trying to protect you”.
Mr Grunswell became aware that the mother had been contacting clients of the community service centre where he worked. He asked her not to do it. He went to see F Town police about what could be done about it.
It is unclear whether the mother understood the implications of her behaviour or was simply driven to say and do inconsistent things as the mood took her.
On 10 January 2019 the mother took Y to visit Mr Grunswell at his home. She asked Mr Grunswell if he would be okay to look after Y while she went out to the car. He said “Actually no. I don’t want you to be able to falsely accuse me of more stuff”.
In January 2019 the mother alleges that X said to her “[Mr Grunswell] wanted me to touch his wee-wee … he touched the front of mine when you rocked Y to sleep”.
Later that month the mother reports a further allegation from X, “[Mr Grunswell’s] wee-wee went into my wee-wee”. If true this would of course be a most serious criminal assault.
The mother contacted the Department of Community and Justice (“DCJ”) (then FACS).
During January 2019 the mother had long video calls with Mr Grunswell at least one while “fully naked”.
In some calls the mother was accusatory.
During one call the mother called out to X “hey [X] what did you say to me about [Mr Grunswell] today?” Mr Grunswell heard X say “Nothing”. Mr Grunswell spoke sharply to the mother:
What you are putting this (sic) into her head is abusing her you know.
Mother:You know what? You fit the same mould, the fucking paedophile blaming other people. Just saying.
[Father]:Look it just simply did not happen [Ms Tulach] okay, I have had enough of it, I really have, it is not me, I am sick of getting accused of stuff I have not done. It is disgusting.
Mother:You are a narcissist, you are a sociopath, just wake up.
I conclude that during that conversation the mother was in a mood to believe in wrong doing by Mr Grunswell.
There is an obvious risk to X in future that these issues could be raised again when the mother had doubts about Mr Grunswell or felt angry with him for some reason. The potential harm to the child is obvious.
Mother moves to D Town
On 2 February 2019 the mother, X, Y and the maternal grandmother moved back to live in D Town. X was enrolled in kindergarten there.
In mid-February 2019 the mother was charged with a mid-range PCA driving offence.
On 27 February 2019 the maternal grandmother was sentenced to a two year bond for the false statement about Mr Grunswell.
X is interviewed for third time - 15/03/2019
On 15 March 2019 X was interviewed again at great length at D Town Police Station.[25]
[25] Exhibit 9.
It is apparent from the second longer interview that the interviewer had not known of the prior interview, nor of the shorter interviews conducted in the D Town Police Station earlier in 2018.
The results of interview were not conclusive. Statements of concern were made by the child. Charges were not laid.
However I accept the evidence of the family consultant that X herself believes that Mr Grunswell has abused her and is a risk to her.
Application to FCC by the father of Y – April 2019
On 23 April 2019 Mr Grunswell filed an Application in a Case proposing supervised time for Y with himself and a restraint on the mother establishing a residence for Y outside of the Newcastle area.
On 14 May 2019 the mother filed a Response to an Application in a Case in her original terms, of no time or communication for Y with Mr Grunswell, and a restraint on his approaching X.
Magellan Report - 20/05/2019
The Magellan Report provided an analysis of the two notification reports (of many) which had proceeded to secondary assessment.
Orders about Y - 4/06/2019
On 4 June 2019 interim orders about Y were made, by consent, for supervised time with her father for two hours per week at M Town Contact Centre until Suburb S Contact Centre became available.
This development appears to have been a turning point for the mother in her attitude to Mr Grunswell.
On 18 June 2019 the AVO proceedings for the protection of X were listed.
By that date the mother had made 22 reports to DCJ regarding the alleged abuse of X by Mr Grunswell. A child protection counsellor perceived the number of reports together with an even greater number of telephone calls by the mother to be psychological abuse perpetrated by the mother against X. She made a report regarding psychological harm to the DCJ helpline.
In July 2019 DCJ closed the case with regard to X.
On 27 August 2019 the mother attended at M Town Community Health. She reported a difficult relationship with X and that X wanted to stay with the maternal grandmother.[26]
[26] Supplementary Family Report dated 10/11/2020, par 180.
In August 2019 the mother moved from D Town with Y to live in rented premises in E Town. X remained with the maternal grandmother.
The mother asserted during her oral evidence that it was at this time that she had come to realise that her mother, the maternal grandmother, “might be stirring this up”. She was referring to the allegations of sexual abuse of X by Mr Grunswell.
One likely possibility based on the evidence is that the mother changed her allegiance at this time away from the maternal grandmother back to Mr Grunswell. In that sense she gave up on pursuing allegations of abuse and moved to re-establish at least a working parental relationship with Mr Grunswell. The evidence of Mr Grunswell is that the personal, intimate relationship between them was also restored.
From September 2019 the mother began allowing time for Y with Mr Grunswell in her presence. A few hours on the weekend at the beach or a park. This continued for six months. There were daily video calls between the child and Mr Grunswell coordinated by the mother.
The mother was actively encouraging the relationship between Y and Mr Grunswell. The logical inference is that the mother no longer believed, if she ever had, that Mr Grunswell had abused X.
On 4 November 2019 the maternal grandmother was contacted by police from JIRT at L Town and advised her that the ADVO for the protection of X would be discharged from the following day. The maternal grandmother asserts that the reason given was because X was in her care and would be safe.
On that same day the mother arrived in D Town and attended X’s school assembly.
The maternal grandmother had not known she was coming.
The mother had sought police assistance in removing X from the care of the maternal grandmother. Police declined to do so and repeatedly advised the mother to get legal advice.
On 6 November 2019 when the maternal grandmother returned home with X from school the mother was there and had packed X’s clothes in her car. The mother stated that she was taking X. One explanation is that having sorted out her relationship with Mr Grunswell the mother was ready to bring X back into her household and expected the maternal grandmother to agree. The maternal grandmother did not agree. There was an argument. X became frightened, police were called and “diffused the situation.”[27]
[27] Affidavit of the maternal grandmother filed 6/11/2020, par 61.
On 7 November there was another incident. The mother appeared and called for X to go with her. The maternal grandmother put the child in her car. The mother took her out. The mother began calling out that X was being kidnapped. I accept as highly likely that X began crying and screaming as alleged by the maternal grandmother. A local bystander intervened and asked X who she wanted to go with. X indicated the maternal grandmother. The maternal grandmother took X home.
The mother left without the child.
The maternal grandmother took legal advice.
Proceedings in FCC [X] commence - December 2019
On 11 December 2019 the maternal grandmother applied to the FCC, sitting at Dubbo, for parenting orders in respect of X.
On 13 December 2019 the mother and father and Y were interviewed by a family consultant. X was not then a subject child and was not present at interview. Her circumstances were discussed given references to her in the Magellan Report.
Interim orders by consent [X] - 17/12/2019
On 17 December 2019 at Dubbo, interim orders were made by consent in respect of X including an order that she live with the maternal grandmother and spend defined time with the mother. The two parties to the orders were the mother and the maternal grandmother.
The decision by the mother to consent to these orders must objectively reflect the confidence of the mother that the maternal grandmother would care for X. It may also have been an acknowledgment that with her grandmother in D Town, was where X wanted to be.
Family Report [Y] – 24/12/2019
On 24 December 2019 a Family Report was released. The family reporter clearly identified the issues for determination.
The central issue was whether the Mr Grunswell posed a risk of sexual harm to Y.
If he did:
(1)Would it be safe for Y to spend time with him;
(2)Would the mother be protective in the longer term given that unsupervised time was occurring at the time of interview.
If he did not:
(1)How to interpret the multiple allegations raised by the mother and her expressed beliefs about sexual harm to X from the father [Mr Grunswell];
(2)Are these allegations factitious and/or malicious, and if so, psychological harm has been perpetrated against X;
(3)Complaints to police by mother.
In January 2020 the mother is reported to have made a raft of allegations to police against the maternal grandmother:
·That while working as a nurse she gave too much morphine to end of life patients;
·That she perpetrated a workplace fraud regarding an injury to a colleague;
·That she had kidnapped the mother’s six year old child [X].
There is no evidence before me that there was substance in those complaints nor that any charges in that regard were brought against the maternal grandmother.
The most likely explanation was that the mother felt upset and angry with the maternal grandmother, over X, and acted to cause discomfort and embarrassment for her.
Family Report - 4/05/2020
In April 2020 the mother, the maternal grandmother and Mr Grunswell were interviewed for a Family Report. Due to COVID-19 Health restrictions the parties were interviewed by telephone and the children were not interviewed or observed with the parties.
Neither the mother nor Mr Grunswell had undertaken the CDT testing ordered by the Court with the consent of both parties. Both conceded ongoing drinking.
Both the mother and the maternal grandmother expressed concerns about the mental health of the other. The mother also expressed a strong belief that X needed counselling.
At this interview the mother stated that she did not believe Mr Grunswell was a risk to X. The mother told the family consultant that in hindsight she did not think “[Mr Grunswell] had ample amounts of time to inflict this abuse on X.”[28]
[28] Family Report dated 4/05/2020, par 95.
The mother expressed her view that the maternal grandmother created the allegations against Mr Grunswell and coached X to make disclosures to DCJ.[29] The mother conceded that the maternal grandmother had not made any reports to DCJ, she, the mother, had made them. Further, that the maternal grandmother had asked her not to make some of the reports she did.
[29] Ibid.
The mother reported that she recorded all her telephone calls to X and the maternal grandmother.
X was not seeing her mother at all. Neither of the adults wanted to travel for COVID-19 health reasons but also because X did not want to see her mother unless the mother stayed in the maternal grandmother’s house. The mother did not want to stay there. I infer that X was worried that her mother would remove her from her grandmother.
On 26 May 2020 an order was made for a Supplementary Family Report where the mother, the maternal grandmother and the two subject children were to be interviewed face to face.
In July/August 2020 the mother travelled to D Town and spent time with X after a period of about seven-eight months of not seeing her.
In September/October 2020 both the mother and Mr Grunswell undertook CDT testing and produced results within normal range.
Supplementary Family Report - 10/11/ 2020
For this report, X, now a subject child, was seen for the first time by the family consultant. She described her memories of living with the mother and maternal grandmother together.
X had lived with both women for most of her life; from about October 2013 (aged three months) until August 2019 when she had just turned six. She reported that this time was “horrible.” She reported multiple fights and arguments between them which involved screaming and yelling. She had seen her mother throw something and break objects in “our house.” She expressed anger at her mother.
She also remembered Mr Grunswell as “horrible”; “[Mr Grunswell] does weird stuff and locks me in a room.” She reported she had no sleep and no food. She then stated “that’s the disgusting stuff”.
It is impossible to know what “weird stuff” and “disgusting stuff” referred to. By then X had been interviewed by police and JIRT several times. Acutely aware of that, the family consultant asked no further questions about Mr Grunswell.
What is clear is that the joyful, affectionate relationship that Y has with her father [Mr Grunswell] is not at all similar to X’s relationship with him.
Time for X with mother - November 2020
On 28 November 2020 there was a visit for X at a mid-point town, C Town. On the morning of departure the parties went to the local swimming pool. The mother alleged that X had pushed her sister down behind her in the swimming pool and the mother had raced to pull Y out of the water. The mother believed that X was attempting to hide her sister so she and the mother would not leave. The maternal grandmother saw nothing unusual.
On 14 December 2020 the trial was adjourned as discussed earlier in these reasons.
Orders were made by consent for some of the visits for Y with Mr Grunswell to be supervised by the paternal aunt.
On 24 December 2020 there was a four day visit by the mother to D Town.
In early January 2021 X spent time with the mother and Y in the mother’s home in E Town.
In February 2021 the mother came to see X in D Town. She was highly critical of the state of cleanliness, hygiene and order of the home of the maternal grandmother.
On 30 April 2021 the mother made an appointment for a paediatric assessment of X at the N Hospital. The maternal grandmother did not consider that it was necessary or desirable for X to see a paediatrician.
The matter was approached by the mother as a fait accompli for the agreement of the maternal grandmother. It did not bode well for equal shared parental responsibility ongoing.
Interestingly, the family consultant expressed the view that X did not presently require counselling. She went on to say that parents often wanted counselling for children when they themselves really needed it, not the children. I infer that the family consultant was suggesting that this case could be an example of that proposition.
If I am right about that it concurs with my view that the mother appears to struggle in her relationships. She loves her children but can be quite erratic in her behaviour especially when affected by alcohol. She has a tendency to blame others for her own feelings and actions. The mother referred to “giving in to X” when she drove a car while over the limit, because X wanted to go out.
EVIDENCE
The documents relied on were as follows:
The Applicant Mother (of Y and X)
(a)Initiating Application filed 13/09/2018;
(b)Amended Initiating Application filed 10/12/2020;
(c)Notice of Risk filed 13/09/2018;
(d)Affidavit of Ms Tulach filed 30/10/2020;
(e)Affidavit of Ms Tulach filed 10/12/2020;
(f)Affidavit of Ms Tulach filed 8/04/2021;
(g)Affidavit of Ms O (maternal aunt) filed 1/12/2020;
The First Respondent Father (of Y)
(h)Response filed 12/11/2018;
(i)Notice of Risk filed 12/11/2018;
(j)Affidavit of Mr Grunswell filed 30/10/2020;
(k)Affidavit of Mr Grunswell filed 26/03/2021;
(l)Affidavit of Ms G (paternal aunt) filed 12/11/2018 (lodged 9/11/2018);
(m)Affidavit of Ms G (paternal aunt) filed 26/03/2021;
The Second Respondent Maternal Grandmother (of Y and X)
(n)Amended Response to Initiating Application filed 30/06/2020;
(o)Notice of Risk filed 17/12/2019;
(p)Affidavit of Ms B Tulach filed 6/11/2020;
(q)Affidavit of Ms J (maternal aunt) filed 10/11/2020;
Reports
(r)Child Dispute Conference Memorandum 14/11/2018;
(s)Family Report dated 24/12/2019;
(t)Family Report dated 4/05/2020;
(u)Supplementary Family Report dated 10/11/2020;
(v)Magellan Report dated 20/05/2019;
(w)Magellan Report - Alternate Assessment – dated 10/12/2019.
ORAL EVIDENCE
The Applicant Mother
The mother presented as bright, articulate and engaging. She grew up in D Town with her two parents and the two older children of her mother [the maternal grandmother].
The applicant mother was sexually assaulted at approximately 11 years of age. The assault took place when the mother and her family were living in D Town. The mother reports that she suffered from the reactions and opinions of local people.
As her siblings had done the mother went to boarding school for her secondary education and there may have been some pastoral care arranged there. My impression was that the mother considers that there are unaddressed consequences for her resulting from that assault.
The mother has through her life relied on the willing assistance of both her parents. When her relationship with Mr Cookson became untenable in 2013 the mother reports:
I organised for my mother to come to Adelaide, where I was then living with [Mr Cookson], to collect me and [X] and we returned to my parents’ home at [Suburb P] (a suburb of Newcastle), I continued to share houses with my mother on and off for the next seven years until 2019. [X] and I also shared homes with my father [Mr Tulach] from time to time during this period.[30]
[30] Affidavit of the mother filed 30/10/2020, par 5
The mother, during the relationship with Mr Grunswell, complained to him about how she was treated by her mother and older sister. He became indignant on her behalf. Partly as a result of what the mother told him and partly by his own observation of what he perceived to be domineering conduct by the maternal grandmother. He asserted that the maternal grandmother had “total control over [Ms Tulach’s life]”.[31]
[31] Affidavit of Mr Grunswell filed 30/10/2020, par 43.
The mother also complained bitterly to her mother by telephone and in person about Mr Grunswell’s treatment of both herself and X.[32] The maternal grandmother became concerned and increasingly protective towards the mother and the children, especially X.
[32] Affidavit of the maternal grandmother filed 6/11/2020, pars 17 & 32.
By date of trial the mother and Y had been living by themselves for one year and nine months. The mother expressed the hope of moving closer to where Mr Grunswell lives in order for the agreed parenting arrangement for Y to work smoothly.
Given the history of breaking up and reconciling, and the fact that neither has disclosed any new partner, the two parents of Y could restore their relationship to good effect or further conflict. That may not happen. It is impossible to know.
Maternal Aunt – Ms O
Ms O provided a Medical Certificate[33] to the effect that she was unfit to travel interstate for the purpose of a Court appearance. She was not required for cross-examination so her evidence is unchallenged.
[33] Exhibit 7.
Ms O is the child by an earlier marriage of the mother’s father. She is the mother’s older half-sister. She is aged 40, is married and does not have children herself.
The mother and Ms O met briefly for the first time when the mother was about ten years old. In more recent years they have got back in touch and developed a close and confiding relationship through “almost daily video calls.”[34]
[34] Affidavit of the Ms O filed 1/12/2020, par 38.
Ms O has developed since 2019 a close bond with the younger child Y whom she described as “a beautiful soul and a delightful little human”.
Ms O has spoken to X by video chat but the relationship has not been positive. She describes her observations of X during those calls as follows:
[X] would be lashing out at her mother, swearing spitting and her behaviour I personally find appalling. [Ms Tulach] has told me that [X] text’s (sic) her calling her a bitch and to fuck off, and much more. All of these were texts made from [Ms B Tulach’s] phone.
(Court’s emphasis)
The tone and contents of Ms O’s affidavit is warmly supportive of the mother and Y and sharply critical of the maternal grandmother and X. The majority of the affidavit consists of statements said to have been made by the mother to Ms O, (about what third parties had said and done), during telephone conversations between them.
Accordingly, I can accept that the mother made the reported statements to Ms O but can attribute little weight to the statements themselves.
There is a deep rift in the maternal extended family and Ms O is firmly onside with the mother and Y.
The Respondent Father - Mr Grunswell
Mr Grunswell has maintained a relationship with his daughter Y in a committed way. The evidence is of a warm and loving relationship for the child with him and the extended paternal family including grandparents in Q Town and the paternal aunt’s family living close by.
Mr Grunswell set out a comprehensive denial of any wrong doing in relation to X.[35] He holds the view that someone has encouraged X to make allegations.[36] He leans towards the theory that it is the maternal grandmother who has done so. He was also aware that the mother questioned X on the topic which he saw as abusive.
[35] Affidavit of Mr Grunswell filed 30/10/2020, pars 72-81.
[36] Affidavit of Mr Grunswell filed 30/10/2020, par 80.
The Paternal Aunt - Ms G
Ms G was not required for cross-examination so her evidence is unchallenged.
Ms G, being the older sister of Mr Grunswell is the paternal aunt of Y. She is aged 41, is married, and has three children between the ages of 15 and 11 years.
Ms G works full time at the community service business where Mr Grunswell has worked. I accept her evidence that she has a close affectionate relationship with her brother as he has with her and her family.
Ms G met the mother and X (aged two and a half years) in March 2016, about two months after Mr Grunswell and the mother became a couple. They were warmly welcomed by Ms G, her husband and their children.
The evidence of Ms G throws light on an aspect of the mother’s behaviour and personality. During the period when the mother, Mr Grunswell and X were sharing a house with the G family, the mother regularly complained about the maternal grandmother’s treatment of her:[37]
[Ms Tulach] often said to me that her mother tried to control her and parent [X], undermining [Ms Tulach’s] authority as [X’s] mother.
[Ms Tulach] would say words to the effect of “[X] is allowed to do whatever she wants at Nanny’s house”, and “At Nanny’s house I cannot keep a routine, when I tell [X] it is bedtime, my mother tells her she can stay up”.
[Ms Tulach] also told me her car was financed by her mother and that even though she makes the regular car payments, her mother would not sign the car over into her name, threatening to take it away if [Ms Tulach] didn’t follow her mother’s rules.
[37] Affidavit of Ms G filed 12/11/2018, pars 18-20.
Ms G went on to say, quite carefully in my view, that she “became worried about Ms Tulach due to the manner in which she described to me her relationship with her mother”.[38]
[38] Affidavit of Ms G filed 12/11/2018, par 21.
Ms G also reported that the mother caused conflict between herself, her brother and her husband “on multiple occasions”. She gave an example, which may have happened more than once in a similar way, of the mother complaining about the G children to Mr Grunswell, who passed the comments on to her:[39]
[Ms Tulach] told me that your children are out of control they don’t listen to [Ms Tulach] [the mother] and they have been really rude.
[39] Affidavit of Ms G filed 12/11/2018, par 22.
Ms G described herself as returning home feeling angry with her children only to be met by the mother saying the children had been “great, playing with [X]”. She responded that Mr Grunswell had told her that the mother had called to say the children had been naughty. The mother had looked at her with a puzzled expression on her face.[40]
[40] Affidavit of Ms G filed 12/11/2018, par 23.
Such behaviour by the mother has the hallmarks of childish mischief making, and also a tendency to lie without cause.
After the separation of the mother and Mr Grunswell, which Ms G considered took place in June 2018, Ms G made efforts to maintain the relationship with Y and the mother and X. When Ms G and her father attended the mother’s home with presents for Y’s first birthday, the mother grabbed X’s arm to pull her inside, shut the door and did not respond to knocking.[41]
[41] Affidavit of Ms G filed 12/11/2018, pars 30 & 31.
In November 2018 Ms G was confident that her brother, Mr Grunswell was a loving and concerned father. She did not consider that his time with Y needed to be supervised but was willing to take on that roll.
Ultimately, Ms G did assume that role pursuant to Court orders from December 2020. By then Y was three and a half years old. She describes visits where Y was happily playing and talking with Mr Grunswell, relishing her time with him.
The observations of Ms G are consistent with the wish of Mr Grunswell, and also now the mother, for Y to spend substantial and significant time with her father.
The Maternal Grandmother
The maternal grandmother is 66 years and receives an aged pension. She is living in D Town, the town where she raised her three children including the mother. She is a member of a community advisory service and has been a technician. She participates at the Service on Saturday mornings. X goes with her and likes to sit with her.
The maternal grandmother has some health problems. She is medicated for depression, has “blood pressure issues” and has had surgery on her left hand. To the proposition that her health was not very good the maternal grandmother responded simply “I think I’m ok”.
Since the mother and X returned to NSW in 2013 to live with the maternal grandmother, the latter has been closely involved with X. I also accept that she supported the mother with any assistance she needed to care for X. She would not have travelled to South Australia to bring the mother and X back to her home if she was not committed to helping the mother.
She nursed, cuddled, fed X and got up to her when she woke in the night. She has been a constant presence in X’s life.
The entry of Mr Grunswell into the mother’s life in 2016 created difficulties for X. The maternal grandmother found Mr Grunswell overbearing in his attitude to managing X. She returned to D Town alone to avoid conflict with the mother about it. There were occasions when the mother travelled back with the maternal grandmother and the children to D Town to live there, changing her mind and returning to Mr Grunswell.
My impression was that the maternal grandmother did not want conflict with the mother but she did want to ensure that X had a stable life and felt safe.
The Maternal Aunt – Ms J
Ms J was required by the mother for cross-examination.
She is the daughter of the maternal grandmother and an elder step-sister to the mother.
Ms J has been a lawyer since August 2020. She is 38 and has one child, Z, aged nine years.
Ms J disclosed that she had lived in R Town since January 2020 but did not give her residential address. She readily agreed with the proposition that she did not want the mother to know it. She was then asked what she [the mother] would do if she did know it? Ms J’s answer was “make false police reports”.
That line of cross-examination was not pursued.
Ms J had given evidence in her affidavit that in January 2020, days before she was offered employment with a child protection agency, she had been contacted by Family Support Service in relation to a report that her son Z “had been doing inappropriate things” to X.[42]
[42] Affidavit of Ms J filed 10/11/2020, pars 41-45.
The inclusion of this incident together with her oral response to why she did not give her home address suggests that Ms J suspects that the mother was responsible for the report.
Between 2013-2016 Ms J lived in close proximity to the mother and maternal grandmother in F Town and Newcastle.
In April 2016 she moved with her son to live in D Town.
In January 2020 she moved with her son to R Town in the Central West of NSW where she now lives and works.
She presented as an honest witness, conscious of her professional obligations in that regard.
She also presented as strongly supportive of the maternal grandmother and X. She was highly critical of the mother in many respects. In particular with respect to her use of alcohol to the detriment of Y as a toddler in April 2019[43] and X in an incident where the mother rang, sounding intoxicated, expressing fear and horror about having run X over with the car, later ringing back to say she had not.[44]
[43] Affidavit of Ms J filed 10/11/2020, par 31.
[44] Affidavit of Ms J filed 10/11/2020, par 30.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(1)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(2)Children are protected from physical and psychological harm;
(3)Children receive adequate and proper parenting to help them achieve their full potential; and
(4)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Parental Responsibility
The mother and Mr Grunswell have agreed to share parental responsibility for Y.
Presently, by interim consent order, the mother and maternal grandmother share equally in parental responsibility for X.
The evidence strongly supports a finding that that arrangement has not worked. The mother has felt antagonised. She expected the maternal grandmother without any prior consultation to present X for an appointment she had made for her with a paediatrician in Newcastle.
The formal proposal of the mother is that the maternal grandmother spend supervised time with X in future if X lived with her.
For long term decisions to be made in a timely way the maternal grandmother will have sole parental responsibility. In addition to progression to high school, and medical attention as required, there will be the issue of when, if at all, X returns to living with her mother.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
X has one parent in her life. Her mother. However her primary attachment is assessed by the family consultant to have been the maternal grandmother. She has taken a parental role, exclusively so since August 2019.
It is unlikely that X will know with certainty who her father is. If she does it is unlikely that she will develop a relationship with him or even meet him. Based on the evidence of the mother, it would not be safe for her to do so during childhood.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The family consultant made this observation about the mother:
The mother appeared self–focused throughout her interview and expressed no anxiety or ambivalence regarding the serious allegations of sexual abuse with respect to [X]. She alternated between statements such as “I believe my child [X]” to “the father deserves to see his child [Y]” and “[Y] has a right to see her father”. The mother’s ability to maintain two opposing hypotheses regarding the potential risk for children in the care of the father was of concern to the Family Consultant throughout the interview.[45]
[45] Family Report dated 24/12/2019, par 111.
The holding by the mother of these two inconsistent positions concerned the ICL and has troubled this Court.
There are several possibilities.
One is that the mother believes that Mr Grunswell sexually assaulted X and treated her unkindly but that she believes he would not behave in the same way with his own child.
Another is that the mother knows with certainty that no sexual abuse of X took place because she, the mother, fabricated those allegations and then instructed X to repeat them in interview and that is the basis for her confidence about Mr Grunswell.
Another explanation is that the maternal grandmother fabricated the allegations and persuaded the mother to raise them on many occasions over more than a year in time. For this to be the case the mother and/or the maternal grandmother must have instructed X in what to say or repeatedly told her what had allegedly been done to her until she accepted it had happened.
The mother at no time suggested such collusion. Her evidence was that her mother had “stirred things up” and she had been somehow misled into believing her stories.
The first complaint by X was made in August 2018. She is alleged to have threatened her mother with the statement, “I’ll put my finger in your wee-wee”. When asked by her mother if anyone had said that to her she nominated “[Mr Grunswell]”. It is a childish threat which she could have heard at preschool or made up. However it attracted the attention of her mother. Slowly, likely as a result of questioning and discussion between adults at home, the story evolved to be that Mr Grunswell had put his finger there and ultimately that he had “put his wee-wee in my wee-wee.” Throughout, the child was being formally interviewed as well as questioned. Perhaps as this went on the child herself became increasingly convinced and fearful as she now is. It seems the most likely explanation but there is no certainty.
Until June 2019 the mother had been adamantly opposed to Mr Grunswell seeing Y at all. After that date when supervised time began the mother became increasingly positive about Mr Grunswell and increasingly negative about the maternal grandmother.
The evidence is clear that the mother trusted the maternal grandmother mother to care for X. In August 2019 the mother and Y moved back to live close to Mr Grunswell. In December 2019 the mother consented to orders pending further order that X continue to live with the maternal grandmother.
It is unlikely that the mother would have chosen to cease living in her mother’s household and to leave X living there if she thought X was not safe
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
The child Y
Y was almost four years at date of trial. She is too young to hold and express a view but her observed behaviour reflects her feelings and reactions.
She was observed twice by the family consultant, first in December 2019 and again in November 2020. Each time the comment was made that no concerns were raised about her behaviour or presentation throughout the day.
On the first occasion when told she would be seeing Mr Grunswell, Y, aged two, separated easily from her mother and when she saw the father “screamed ‘Daddy’ and ran quickly towards him and jumped into his arms.”[46] She showed no anxiety or worry in her interactions with her father and hugged and kissed him goodbye. She was “ecstatic upon reunion with the mother.”[47]
[46] Family Report dated 24/12/2019, par 203.
[47] Family Report dated 24/12/2019, par 202.
On the second occasion a strong, warm relationship between the mother and Y was identified.[48]
[48] Family Report dated 24/12/2019, pas 152-154.
An observation of the two children together took place. By then the two children had not lived together for more than a year. X was observed to be excited and boisterous and ultimately Y was hurt by rough play and sought comfort from her mother.
The child X
X was seven years nine months at date of trial.
She lived with a high level of conflict, mostly over her, between her mother, the maternal grandmother and Mr Grunswell between January 2016 until 2019.
Her life has been calmer and more certain since she started school at D Town Primary School in 2019.
She became a subject child in the proceedings in this Court after 4 March 2020 when the dispute over her between the mother and maternal grandmother was consolidated with the dispute over Y between the mother and Mr Grunswell.
The family consultant had recommended in her second Family Report (dated 4/03/2020) that X be observed and interviewed face to face. A supplementary report was ordered.
On 2 November 2020 X was observed and interviewed. Her school records were available, “The school reported no concerning behaviours exhibited for X including sexual problematic social or academic.”[49] I give significant weight to that report.
[49] Supplementary Family Report dated 10/11/2020, par 167.
X is reported to have presented as a “shy and quiet child who was a very polite and respectful in interview”.[50]
[50] Supplementary Family Report dated 10/11/2020, par 141.
She did express her views and I take them into account and give them some weight. The analysis, set out below, of whether or not X was aligned with an adult is one reason for giving reasonable weight to the views of X. The other is that X was happily willing to express her views generally:
[X’s] presentation was not consistent with alienation or alignment. She was able to recall positive and recent memories about spending time with the mother, did not speak in an overt and negative manner regarding the mother and presented in a shy and polite manner, which is highly inconsistent with children who have been deliberately alienated. She did exhibit anger towards the mother in the context of family violence between the mother and maternal grandmother.[51]
[51] Supplementary Family Report dated 10/11/2020, par 151.
X is reported to have “exhibited a strong wish to remain living with the maternal grandmother whom [X] referred to as ‘Nan’. [X] wanted the judge to know that she wanted to remain living with Nan”.[52]
[52] Supplementary Family Report dated 10/11/2020, par 149.
She also reported that “she was happy to spend time with her mother for a few hours each time she saw her but did not wish to return to living with her mother. She wanted to stay in D Town, with her friends, Nan and her dog.”[53]
[53] Supplementary Family Report dated 10/11/2020, par 150.
X is reported to have spoken about living with the maternal grandmother “with a big smile evident”. She reported that the maternal grandmother helps her and they have fun together.[54]
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
[54] Supplementary Family Report dated 10/11/2020, par 144.
An observation was undertaken by the family consultant of the mother and both subject children in November 2020.
The behaviour of the two children together “became dysregulated” It was noted that “the mother was unable to, or chose not to” intervene and give directions to X. The family consultant chose to step in and ask X not to run in the child care room after the children fell over and Y was crying.
In her oral evidence the family consultant, who has long experience in this work, said she saw behaviour by X towards her mother that she had not seen from a child before.
It appears that X displayed real anger towards the mother, not defiance or naughtiness, for instance as a way of showing off to a stranger:[55]
[X’s] behaviour appeared to have an undercurrent of anger. She demonstrated angry behaviour at times, throwing objects deliberately at the mother, moving the puppet theatre and slamming a teddy into the couch (next to where the mother was sitting) on multiple occasions.
[X] exhibited unusual behaviour during the observation, including making weird faces at the mother (contorting her face with a wide mouth and a grimace), lying on the floor, growling and demonstrating frenzied behaviour (for example, repeatedly running around the room at high speed with a shopping trolley).
[X] exhibited very little regard for the mother during this observation session and the mother appeared distressed and unsure of herself during the observation session. [Y] was observed to imitate some of [X’s] behaviour and [Y] became louder and erratic in her play, compared to the observation with the mother. At one point in imaginative play, when []Y was being the daughter and [X] was playing the mother, [Y] asked [X] “Can I help, Mum?” and [X] responded, “You can help by banging your head on there”, referring to the board against the wall. The mother softly stated, “Don’t’” to [X].
[Y] became hurt as a result of the rough play, and [Y] sought comfort from the mother during this time. [X] also attempted to provide comfort to [Y] but she quickly turned her behaviour to the mother. [X] held the mother’s nose and the mother responded with comments regarding [X] had her nose and attempted to turn this into a game of “who’s got my nose”. [X] did not participate in the game, stated, “She [the mother] can’t breathe” and then attempted to grab the mother’s eye, resulting in the mother closing her eye and moving [X] away from her face. The touch between the mother and [X] appeared fraught with emotion, with an undercurrent of anger for [X] and uncertainty and worry for the mother.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
[55] Supplementary Family Report dated 10/11/2020, pars 158-161.
The mother has at all times wanted to maintain parental responsibility for X. She was confident for X to live with the maternal grandmother for a few months in 2019 while she focused on sorting out arrangements for Y with Mr Grunswell. The mother has been restricted by cost of travel, and COVID-19 restrictions, as has the maternal grandmother.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The maternal grandmother receives total Commonwealth benefits of about $1,240 per fortnight for herself and X.
The mother does not contribute financially to the maintenance of X.
In the event that the mother finds paid employment as she hopes to do, she may send money to her mother for the benefit of X. If she does not do so the proper course is for the maternal grandmother to make an application for Assessment of Child Support.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
A change of residence for X to living with her mother and sister would mean separation from the maternal grandmother. Further, it will be the first time she has lived with her mother without the maternal grandmother being a member of the household or living close by.
The family consultant made the following observation and recommendation:[56]
[X] has been living in the care of the maternal grandmother’s primary care since the second half of 2019 and prior to the current dispute over the living arrangements, the mother does not seem to have raised any child protection concerns relating to [X] in the care of the maternal grandmother and has willingly left [X] in the primary care of the maternal grandmother on multiple occasions.
[X] appears to have a close and positive relationship with the maternal grandmother, and probably has done so for a number of years. The risk to [X] in the care of the maternal grandmother, appears based upon the fluctuating relationship between the mother and the maternal grandmother and exposure to conflict and perhaps family violence. There is also a concern the maternal grandmother may have exposed [X] to a negative view of the mother and a negative view of the father. Despite this, [X’s] behaviour continues to be regarded as positive with no issues of concern living in the sole care of the maternal grandmother and it is recommended this continue.
[56] Supplementary Family Report dated 10/11/2020, pars 210 & 211.
The practical difficulty and expense of a child spending time with and communicating with a parent
There are immense logistical difficulties in this case. Neither the mother nor the maternal grandmother can readily afford the cost of a 1600 km round trip between households. There is the additional expense for the mother of hotel accommodation when she comes to D Town or a midpoint town.
The only practical course and one endorsed by the family consultant is for X to travel to spend time each school holiday and otherwise have regular video calls. The orders provide for the children to be together at holiday times.
The mid-point of C Town suggested by the ICL is a practical one.
It may be in time if the relationship between X and her mother stabilises that the maternal grandmother moves back closer to the F Town area so X can spend more time with her mother and her sister. That will be a matter for her sole discretion.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The Mother
It is significant in my view that on 12 August 2018, 10:00pm at night, the mother was having the utmost difficulty getting her then five year old daughter into bed. The child made what was effectively a childish threat to her mother “Go away before I stick my fingers in your wee-wee” in the context of her kicking and hitting her mother.
There appears to have been no consideration by the mother of her own need for help and guidance. In her affidavits she blames Mr Grunswell for treating X cruelly and she blames her mother for over indulging the child. There appears to be no reflection on the disrupted life X had had up to age five as a result of the mother’s own choices.
There is a litany of complaint by the mother about the maternal grandmother in her affidavits and oral evidence, blaming her for all that had happened about X including the assertion that it was the maternal grandmother who was responsible for the allegation that Mr Grunswell had sexually abused X.
The mother has been profoundly ambivalent, accusing Mr Grunswell of being abusive a” paedophile” and other times exonerating him, accusing her mother of dominating her and coaching X to make complaints but other times relying on her for emotional support and accommodation.
It is X who has suffered. She has found the arguing and yelling of her mother, grandmother and Mr Grunswell “horrible”. She has been repeatedly interviewed by police and DCJ about events said to have taken place and has done her best to cooperate. At least once she has been exposed to her mother, drunk and aggressive, smashing glasses and fighting with Mr Grunswell.
Mr Grunswell
To his credit Mr Grunswell consulted his doctor about his level of alcohol use, abstained for a period of months and has not drunk heavily since early 2017.
Mr Grunswell has maintained a steady focus on his relationship with his daughter Y. He expressed the realistic view, that after all that has happened he cannot have a relationship with X. In cross-examination he appeared to be conscious of how difficult it may be for the two children, as sisters, for Y to have a loving relationship with the man X believes or accepts has mistreated her. He expressed the view that he would need professional guidance to explain the situation to Y.
The Maternal Grandmother
The maternal grandmother presented as a somewhat solitary figure. Her marriage to the mother’s father broke down about 12 months after the mother and X moved back home to live in 2013.
However she is well known in the town and at X’s school.
It is most likely that there will be visiting between the maternal grandmother and X with the maternal aunt [Ms J] and her son Z in R Town and in D Town.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
There has been an ADVO for the protection of the mother for 12 months. It expired in October 2018. In July 2018 the mother unsuccessfully applied to vary and extend the order.
Mr Grunswell against whom the order was made, accepted professional help in changing his perspective and behaviour in pursuing the mother after she ended the relationship.
The mother is no longer concerned about Mr Grunswell in that way. She is confident that they will have a good working relationship as parents of Y in future.
There was a provisional order put in place for the protection of X in late 2018. That order was not made final and was subsequently discharged in 2019.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
As she grows up X may wish to be reunited with her mother and sister. It is hard to predict. The family consultant assessed X as having her primary attachment with her maternal grandmother. No doubt that is a hurtful fact for the mother to accept. However it came about from the maternal grandmother meeting the child’s needs as an infant and providing an emotional place of safety for her through the turbulent years of her infancy.
The Court is confident that the maternal grandmother will allow X to spend more time or go to live with her mother if she considers that it is X’s genuine unpressured wish to do so and is in her best interests. If it comes at all, that moment is likely to be when the parenting orders for Y with her have been working well and without incident for some time and when X is less agitated and angry around her mother.
The Court is not confident that if X were to return to living with her mother now that she would be permitted to spend liberal time with the maternal grandmother, even less confident that X would be permitted to return to living with her.
CONCLUSION
Keeping the two subject children together was a priority for the ICL and it is understandable. The two children love each other. But they have not lived together in the same household for almost two years. They have the same mother but each has a different family.
Y has a close loving relationship with her mother, her father and the whole extended Grunswell family.
X will benefit from retaining the stability she presently has and from being exposed to Y spending increasing periods of time with Mr Grunswell, of whom X feels frightened.
The maternal side which they share, is divided along quite separate lines.
I have concluded that the allegations raised by and on behalf of X have not been substantiated by police or DCJ. The evidence does not support a finding that Mr Grunswell represents a risk of sexual harm to either of the subject children. That is not to say that harm has not been done. It has, mainly to X, through adult conflict and sometimes drunken misbehaviour. Even more so, from too much casual questioning by maternal family members to satisfy adult fears, and too many official interviews conducted for the same reason. Protective measures have been put in place for X who is anxious and angry.
The orders made by the Court are designed to provide a safe and stable arrangement for X to allow her to recover.
Orders are made accordingly.
I certify that the preceding three hundred and twenty-seven (327) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 11 June 2021
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