Van Hoffen and Gratton and Anor

[2009] FamCA 925

FAMILY COURT OF AUSTRALIA

VAN HOFFEN & GRATTON AND ANOR [2009] FamCA 925

FAMILY LAW – CHILDREN – With whom a child spends time – Time with Paternal Grandmother

Family Law Act 1975 (Cth)

APPLICANT: Ms van Hoffen

FIRST RESPONDENT: Mr Gratton

SECOND RESPONDENT: Mrs Gratton

INDEPENDENT CHILDREN’S LAWYER: Ms Shea

FILE NUMBER: SYC 5427 of 2007

DATE DELIVERED: 15 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Murphy J

HEARING DATE: 15 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Graeme J Peters Solicitors

SOLICITOR FOR THE RESPONDENT:

Mr Mara

Adamson Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Shea
Legal Aid NSW

Orders

IT IS ORDERED

1. That the paternal grandmother, Mrs Gratton, shall spend supervised time with the child, …, born … June 2003, on the same days and at the same times as the father’s supervised visits with the child in accordance with the orders made by this Court on 10 September 2009 (annexed hereto and marked with the letter “A”).

2. That in the event that the father fails to attend visits with the child in accordance with the orders of 10 September 2009, or if the father’s time with the child is suspended in accordance with order 9 made on 10 September 2009, then the paternal grandmother shall spend supervised time with the child in the absence of the father on the days and times otherwise scheduled by the contact service for the father’s visits. 

3. That within 14 days the mother and the paternal grandmother shall do all acts and things necessary, including signing all necessary documents, to facilitate the implementation of these orders.

IT IS FURTHER ORDERED

1. Pursuant to section 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Van Hoffen & Gratton and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5427 of 2007

MS VAN HOFFEN

Applicant Mother

And

MR GRATTON

First Respondent Father

and

MRS GRATTON

Second Respondent Paternal Grandmother

EX TEMPORE

REASONS FOR JUDGMENT

1. On 10 September 2009, I made parenting orders by consent between the parents of the subject child, now aged 6. 

2. Those orders were made within the context of a complex family dynamic which was outlined in some detail in a family report prepared by Professor Q and filed as part of the Independent Children’s Lawyer’s case. 

3. In very broad terms, the report writer described a number of psychosocial issues that can be seen to be directly relevant to the Family Law Act’s Objects, Principles and Considerations and the assessment of the child’s best interests within that rubric. 

4. Ultimately, by consent (including the agreement of the Independent Children’s Lawyer) it was ordered that the mother have sole parental responsibility (the presumption of equal shared parental responsibility having, inferentially, been rebutted by reason of the child’s best interests). It was ordered, that the father spend time with the child in the first 12 months post-order every three months at the N Contact Centre and, thereafter, four times a year at that same centre.

5. At the time of the making of those orders, the paternal grandmother, who had been interviewed by Professor Q, sought leave to intervene in the proceedings. That was not opposed.  At that time, leave was given to file a handwritten application for orders and the hearing of that application was adjourned to today. 

6. Subsequently, the grandmother filed an affidavit in support of that application and further material was also filed by the mother directly relating to that application.

7. Both the paternal grandmother and Professor Q were cross-examined in the proceedings before me today. 

8. The decision to be made today is governed by a statutory obligation contained in section 60CA of the Act which provides:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

9. The determination of that case occurs within a statutory framework that, unsurprisingly, is directed predominantly towards parental duties, rights and responsibilities.  However, that a decision about a child’s best interests might include orders being made in favour of people other than parents is recognised specifically in the Act.  For example, section 65C of the Act permits applications to be made by non-parents who are “concerned with the care, welfare and development of a child” and by grandparents. 

10. In the latter respect, the applicable principles within which a decision about the best interests of the child needs to be made, includes a principle contained in section 60B(2)(b), that:

    Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).

11. So too, the statutory considerations include specific reference to the potential for a role - and a significant role if consistent with the best interests of a child - of grandparents.  For example, section 60CC(3)(b) directs that the court consider: The nature of the relationship of the child with (relevantly) “other persons (including any grandparent or other relative of the child).” 

12. So too, subparagraph (f) of that sections refers specifically to:

    The capacity of ... any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.

13. Here, that legal background is given light and shadow by the very difficult and troubling intra-familial issues to which I have previously referred.  Within that troubling context, a number of matters relevant to the instant application are common ground. 

14. First, the grandmother has not had any form of contact with the child, (including telephone, cards, letters, presents and the like) since February 2007.  Her only contact with the child, then, in almost 2½ years, has been for the purposes of the interview or interviews conducted by Professor Q.

15. Secondly, it is common ground that, until last Thursday, the paternal grandmother had not sought any orders on her own account to spend time or otherwise communicate with the child. 

16. Thirdly, the grandmother’s prior position in these proceedings can be seen to have been supportive of the father, including, up until last Friday, supporting a regime where she would supervise time between the father and the child. 

17. That position has now changed.  The grandmother gave evidence before me that she considers it important for the child that time between the child and her father should be supervised.  It seems that the basis for that position is what the grandmother described, in broad terms, as increasingly troubling behaviour on the part of the father. 

18. Her assertion that the father’s behaviour has become worse can be seen to be underscored by her position in these proceedings now by which she seems to accept the time otherwise ordered by consent between the parties and, in particular, an apparent acceptance of the need for that time to be as curtailed as what the orders provide for, and for it to be supervised.

19. It is said on her behalf that her reason for not previously seeking orders on her own account is that her position was “wrapped up in” the position of the father and, in particular, her position in attempting to facilitate time between the child and the father - specifically by putting herself forward as a supervisor of that time. 

20. The essential position of the mother, as put to the grandmother by her counsel in the witness box, is that the grandmother’s application was a “back door way” of facilitating time between the father and the child.  It is relevant to observe that the orders previously made by consent provide for significantly curtailed time between the father and the child.

21. Submissions made on behalf of the mother were, ultimately, more circumspect.  Those submissions were grounded in the nature of the relationship between the child and the grandmother and what is said to be a degree of risk associated with orders as proposed by her. 

22. The Independent Children’s Lawyer does not support the application by the grandmother.  Her position, too, can essentially be seen to be grounded in the nature of the relationship between the grandmother and the child and the nature of a risk said to be associated with time spent between the two of them in accordance with her proposals.

23. Section 60CC of the Act, dictates of course, how a court is to determine what is in a child’s best interests.  A primary consideration set forth in that section at subparagraph 2(b) is:

    The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

24. Whatever might be community or other perceptions of family violence, the term is, for the purposes of proceedings in this Court, defined in section 4 of the Act to mean:

    Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

25. Here, the grandmother gives troubling evidence about the behaviour of the father which, she says, is confined to times when he is affected by alcohol.  It is accepted by her that he has a very significant alcohol problem. 

26. It is plain, on the evidence, that he has suffered from psychotic disorders in the past.  The grandmother attributes those psychotic disorders to his abuse of alcohol.  Whether that correlation is correct or not, it seems abundantly plain that the father has abused alcohol, and continues to abuse alcohol, in a way that his mother finds to be profoundly troubling. 

27. So, too, the evidence - including evidence tendered by the Independent Children’s Lawyer from records of a community centre through which the father’s ongoing treatment is monitored - again presents a troubling picture.  The grandmother accepted, for example, that, during the time that the father was residing with her, she had found up to 40 empty bottles of alcohol and she said, in evidence, that he hid the alcohol “in some very unusual places.”

28. It is accepted that the grandmother sought and obtained an Apprehended Violence Order against her own son.  As I remarked during the course of the proceedings, it might be thought to be reflective of the level of perceived threat and concern that a mother would (understandably on the facts known here) take out such an order on her own son. 

29. The evidence in that respect is that a temporary order, obtained on 6 July, contained a condition that the father was not to consume alcohol within a specified period of time prior to being with his mother.

30. Despite this order, the day after it was made, the grandmother gave evidence of the father drinking with a friend of hers in her home.  When asked about it she said– words to the effect that she “was not sure whether [the father] knew about the order at that time.”  But, of course, she did; she had applied for it. 

31. It was submitted, on behalf of the mother, that I should take account of this incident as indicative of the grandmother’s attitude towards court orders.  In my respectful view, it is, in fact, more indicative of the findings I should make about the nature and extent of any risk or potential risk posed to the child by the orders sought by the paternal grandmother. I shall return to that topic in a moment.

32. The protection of the child from the potential for harm, including emotional harm, can be seen to be at the centre of the orders made by me last Thursday.  I repeat: those orders were made by consent. 

33. The evidence before me, including from the reporting consultant psychiatrist, Dr Q, convinces me that a measure of stability for the child has been achieved in the period since the parties separated.  I assess this to be a particularly important matter in coming to a conclusion about the child’s best interests.

34. That matter can be seen as having clear resonance in a number of the additional considerations mandated to be taken into account by the Court in section 60CC of the Act. 

35. The evidence of Dr Q before me today was that she had four primary concerns emanating from the orders sought by the paternal grandmother.  Those concerns encapsulate, neatly enough, matters that are reflected in the statutory Considerations to which I must have regard in arriving at an ultimate decision about the child’s best interests.

36. Dr Q said that her first concerns about separate arrangements for the grandmother was that she assessed that there was not a significant relationship between the child and her paternal grandmother. 

37. Secondly, the doctor had concerns about a past history of drug abuse and intra-familial violence. 

38. Thirdly, the doctor had concerns about the capacity of the mother to deal with her son.  The doctor said, “I do not think she could set limits” on the son’s behaviour and would have significant difficulty in controlling, or attempting to control, that behaviour particularly when he was agitated. 

39. The fourth concern identified by Dr Q was the impact on the mother’s state of health, in particular, her emotional health, in circumstances where the orders sought by the paternal grandmother were made.

40. I propose to deal with each of those concerns by reference to the matters necessary to be considered by me within the Act. 

41. Section 60CC(3)(b) requires me to take into account the nature of the relationship of the child with, relevantly, the paternal grandmother.  Dr Q makes observations of that relationship in her report.  The grandmother contends in her affidavit, specifically paragraphs 6 through 12, for a relationship between she and the child borne of the time that she says was spent between she and the child in the past.  Some of that time, at least, is denied by the mother. 

42. I specifically asked Dr Q that, if the paternal grandmother had been a significant loved object for the child during the timeframe identified by the paternal grandmother in the affidavit to which I have just made reference, what would Dr Q have expected to see during her interviews with the parties and the child.  Dr Q told me that she would expect to see greater signs of overt (not her words) affection passing between the child and the grandmother.  She said that she would expect to have seen “more physical interaction” between the two.

43. It needs to be observed, I think, particularly in light of the submissions made on behalf of the paternal grandmother by her solicitor, that all family reports are, by definition, a snapshot.  They involve, almost universally, opinions expressed in somewhat artificial surroundings where, understandably, parties are nervous, are attempting to be, as it were, on their best behaviour and where all of the parties are acutely aware of the fact that the things said and done by them are likely to find their way into a report that will be looked at carefully by a court.

44. Those matters need, as it seems to me, to be properly borne in mind in all cases where opinions are expressed by any expert– on the basis of the sort of interaction just described. 

45. I am not, however, persuaded that the lack of overt affection observed by Dr Q is explained by those circumstances.  I accept her evidence that there are not the signs of the sort of relationship that one would expect to see if the paternal grandmother had erstwhile occupied a period of significant emotional importance for the child.

46. I emphasise that that is in no sense to necessarily criticise the paternal grandmother.  Relationships of all sorts, whether with grandparents, parents or other people significant to the care, welfare and development of children are borne of the circumstances within which those relationships exist. 

47. However, it seems to me to be an important consideration in this case because of what I assess to be the measure of stability which the child has attained since these parties separated, and the necessity for the child to deal with the fact of her father’s significant mental health issues, and other issues, as she grows into adulthood and, ultimately, has the capacity and maturity to seek to have such relationship with her father as she may choose.

48. The second and third matters referred to by Dr Q can, I think, be conveniently dealt with together.  Although the paternal grandmother’s past drug use (including an admitted heroin addiction many years ago) was the subject of significant cross-examination during the course of the hearing before me, it seems to me that I do not need to make specific findings about that or about any risk associated with that. 

49. Ultimately, the relatively narrow parameters of the application made by the paternal grandmother, mean that other issues, are much more significant and important to the child’s best interests.

50. Associated with the issue of the father’s familial past is, what, in my view, is a very important issue: the capacity or otherwise of the paternal grandmother to set limits upon the father’s behaviour, or a capacity to control or deal with that behaviour in circumstances where it becomes extremely difficult.

51. It seems to me that the grandmother’s position is, in fact, a position of recent occurrence. I find that, of itself, somewhat troubling.  I am not prepared to find that the grandmother’s application is a “back door way” of the father seeking greater, or different, time with the child to that otherwise provided for in the consent orders made last week. 

52. However, I am extremely concerned about the apparently spasmodic and changing, nature of the relationship between the father and his mother (by which I mean the grandmother’s evidence about the times when the father lived with her and left her household and returned to her household and the apparently peripatetic nature of his current movements.

53. This leads me to be concerned about the father presenting to his mother in an apparently stable state and his mother as it were “giving him the benefit of the doubt” only to see that situation disintegrate. I am troubled about the prospect of the father having additional time, facilitated by his mother, in those circumstances.

54. Moreover, it seems to me that a consideration of the nature and extent of the relationship between the grandmother and the child over the last 2½ years or so, points to the orders proposed by her, representing for the child a very significant change. 

55. The Act requires me to take into account the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from, in this case, her mother.  I consider this to be an extremely important matter in the determination of this current application.

56. As a broad proposition, orders that provide for the child the least amount of disruption to her current stability as possible are in her best interests. 

57. Obviously, that consideration, just like all other considerations, needs to be balanced against a number of other matters not the least of which is, of course, the primary consideration of the child having the benefit of such meaningful relationship with her father as the circumstances here permit consistent with her best interests.

58. Similar considerations, in my view, apply to the position of the paternal grandmother.  The role of an extended family in any child’s life - particularly a young child’s life - might be seen to be axiomatically important. 

1. Whilst that may be true, the facts and circumstances of particular co-parenting relationships, and particular extended family relationships give rise to a number of different possible permutations as to what might be in a child’s best interests within that underlying general benefit. 

2. Here, it seems to me that there is a risk to the child’s well-being in the Orders sought arising from how the grandmother is likely to react if the father was to present himself during a period of time.

3. I have not, in the analysis so far, referred to the fourth of the matters referred to by Dr Q - that is, the impact on the mother’s state of health and, in particular, her emotional health if orders were made as sought by the grandmother. 

4. In that context, a proposition put forward, as it were, by Dr Q and, essentially, supported by the Independent Children’s Lawyer was also rejected by the mother. 

5. Dr Q said that she could see some advantages for (and little disadvantage in) the child seeing her paternal grandmother on those occasions when the father would otherwise see the child in accordance with the orders made last week by consent.

6. The mother opposes orders whereby the father and the paternal grandmother would see the child together and her counsel referred me to that passage of her affidavit where she deposes:

   I feel physically sick to the stomach with worry and do not expect relief from this feeling unless [the paternal grandmother’s] application is declined.  I feel that the worry I have for [the child’s] wellbeing will continue to cause me lack of sleep and regular anxiety and my ability to continue to be a stable carefree parent will, once again, be compromised as it was when I was under the influence of the father’s control and intimidation.

7. Further, in that respect, the mother relies upon an affidavit by Mr C who is a psychologist and who has been seeing and treating the mother from 6 October 2005 up to the present time. 

8. It is said, on behalf of the paternal grandmother, that little weight should be attached to the opinion of that psychologist by reason of the fact that he has not seen either the father or the paternal grandmother, and has relied completely on what the mother has said to him.

9. So much is true.  However, the same psychologist has, in fact, been seeing the mother now for nearly three years and has had ample opportunity to discuss with her numerous of the issues to which she refers. 

10. The grandmother does not seem to doubt that the mother is suffering from some form of – to use neutral language - “emotional disturbance”. But, the report of Dr C presents a troubling picture, even accepting that many of the comments made by the psychologist might well be thought to be matters more within my province than his. 

11. For example, he says: 

    [The mother] would view unsupervised access [to] the grandmother as a backdoor method of [the father] seeking to obtain unauthorised access to his daughter and facilitating carrying out one or more of the above scenarios thus [the mother] would regard unsupervised access with the grandmother as catastrophic and the very worst case scenario;  she would be immediately and significantly re-traumatised, and become significantly anxious, stressed and fearful for the safety of her daughter, and require further professional help;  she would also have the job and distress of having to restore any damage done to her daughter if damage occurred [the mother] would also take on deep and significant guilt and self blame for not sufficiently protecting her daughter leading to cycles of depression, hopelessness, helplessness and internal rage and could become suicidal.

12. I acknowledge that the mother is in a somewhat precarious emotional state.  In that respect, I note that the relationship with the father commenced when she was 15 years of age and that she makes a number of significant allegations against him.  Plainly, whether or not each and all of those specific allegations against the father are made out, he is a man who has had in the past a continues to have very significant psychological and social problems and she was present with him for a period of 10 years when, as is plain on the evidence, that symptomatology would have been at times, florid.

13. In my view, I should take into account, pursuant to section 60CC(3)(m) of the Act, the circumstance to which I have just referred. The mother is the child’s undoubted primary carer and her capacity to provide for the child’s day to day needs as her primary carer is a significant matter in assessing the child’s best interests.

14. However, those considerations must, like all other considerations directly relevant to an assessment of the child’s best interest, be balanced against other considerations equally relevant. 

15. Ultimately, any parenting orders by a court are designed, in the absence of agreement between parents (and those otherwise concerned with the care, welfare and development of children), to provide for what shall occur until such time as children become adults and/or sufficiently capable of arriving at their own mature decisions about the nature of the relationship that they shall have with each of their parents and those other significant adults.

16. Here, as the consent orders made last week reflect, the child ought have the opportunity to know, and have a relationship with, her paternal grandmother just as she ought have the opportunity to know, and develop a relationship with, the father despite the father’s many and varied significant problems, provided she is safe and the time is in her best interests. 

17. In a similar vein, and balancing the considerations earlier referred to, it seems to me to lead to a conclusion that the paternal grandmother ought be able to avail herself of time at a contact centre otherwise ordered by consent with respect to the father.

18. I have listened to the arguments made on her behalf that, although she is in favour of the grandmother doing so by herself, (for example, if the father should not avail himself of those periods of time as it seems to be common ground is at least a possibility) there should not be such time in the event that the two of them were there together.

19. It seems to me that the contact centre (which axiomatically deals with these sorts of issues among many others), is a place in which the child can feel safe when with either her father or her grandmother and at which the mother, properly viewing the circumstances pertaining to such time, can have some confidence that the child’s best interests are being cared for. 

20. To that extent, it seems to me, despite concerns emanating from her emotional health, that on balance, I should make an order facilitating that time, either when the father is present or, in his absence, alone.

21. The intent of the orders to be made is, then, that if the father avails himself of his ordered time, the two of them can spend the time together with the child.  If the father does not turn up, on any or all occasions, then that time is for the grandmother exclusively.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date:  24 September 2009