Whittaker & Mobbs and Mobbs & Mobbs
[2019] FCCA 750
•8 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITTAKER & MOBBS and MOBBS & MOBBS & ORS | [2019] FCCA 750 |
| Catchwords: FAMILY LAW – Complex multi-party parenting dispute – both fathers failing or declining participation in the proceeding – substantive dispute between mother and maternal grandmother – amounts of time children to spend with grandmother strongly disputed but in fact small in scope – primary issue being mother’s fear grandmother may alienate the children – court not accepting likelihood of alienation – Independent Children’s Lawyer’s proposal adopted. |
| Legislation: Family Law Act 1975, s.60CC |
| Cases cited: Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR WHITTAKER |
| Respondent: | MS MOBBS |
| File Number: | MLC 3998 of 2016 |
| Applicant: | MS B MOBBS |
| First Respondent: | MS MOBBS |
| Second Respondent: | MR BENJAMIN |
| Third Respondent: | MR WHITTAKER |
| File Number: | DGC 4098 of 2017 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 21 & 22 January 2019 |
| Date of Last Submission: | 22 January 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 8 April 2019 |
REPRESENTATION
| The Applicant in proceedings MLC3998/2016 and proceedings DGC4098/2017: | No appearance In person |
| The Respondent in proceedings MLC3998/2016: | In person |
| The First Respondent in proceedings DGC4098/2017: | In person |
| The Second Respondent in The Third Respondent in Counsel for the Independent Children’s Lawyer in | No appearance No appearance Mr Howe |
| Solicitors for the Respondent: | McCormack & Co |
ORDERS BY CONSENT:
IN PROCEEDINGS MLC 3998 / 2016
That the child [X] born … 2015 live with the Mother and she shall have sole parental responsibility for the child.
That the child spend no time with the Father.
That the Father be at liberty to communicate with the child by way of cards, letters and gifts sent to the Mother and the Mother shall pass same on to the child provided they contain nothing inappropriate.
That the Father be at liberty to bring a further application for final parenting orders when he is able to demonstrate to the Court that he is drug-free and has addressed his criminal offending behaviours.
That the Mother ensure that the child attends upon a Maternal and Family Healthcare Nurse or a paediatrician for assessment and comply with all recommendations thereof.
That the Mother ensure that the child is forthwith enrolled in and attends an age-appropriate kindergarten.
THE COURT ORDERS:
IN PROCEEDINGS DGC 4098 / 2017
That the children [Y] born … 2005 and [X] born … 2015 spend time and communicate with the applicant Maternal Grandmother:
(a)For 3 nights in the First and Third School Term holidays commencing at the conclusion of [Y]’s time with Mr Benjamin and concluding at 5.00 pm on the third day thereafter;
(b)In respect of [Y] for 3 days in the Long Summer holidays to be spent in Victoria and then the following 7 days to be spent at the Maternal Grandmother’s home in New South Wales on dates to be agreed but in default of agreement the time shall commence at 12.00pm on the seventh day after the conclusion of [Y]’s week with her Father and conclude at 5.00pm on the tenth day thereafter;
(c)In respect of [X] for 3 days in the Long Summer holidays concurrent with the first 3 days of [Y]’s time in order (1(b) above until he attains the age of 6 and thereafter his time shall be concurrent with [Y]’s time in order 1(b) above;
(d)By video/audio calls once per month by agreement but in default of agreement between 5.00pm and 6.00pm on the first Sunday of every month;
(e)Otherwise as agreed between the Applicant and the First, Second and Third Respondents.
(f)By video/audio calls on the children’s birthdays.
The Maternal Grandmother shall be responsible for all of the costs of travel for time spent pursuant to order 1 above.
The Maternal Grandmother shall be at liberty to communicate with the children by way of letters, cards and gifts sent to the Mother’s address.
That the Applicant and First, Second and Third Respondents forthwith enrol in and complete a Post Separation Parenting Course.
That no party denigrate any other party to or in the presence or hearing of either child.
That the parties have leave to proceed undefended in respect of the Second Respondent.
Contact changeover takes place at Suburb C McDonalds.
That the Maternal Grandmother and the Mother communicate about the implementation of these orders by way of the MyMob computer application.
IT IS NOTED that publication of this judgment under the pseudonym Whittaker & Mobbs and Mobbs & Mobbs & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 3998 of 2016
| MR WHITTAKER |
Applicant
And
| MS MOBBS |
Respondent
DGC 4098 of 2017
| MS MOBBS |
Applicant
And
| MS MOBBS |
First Respondent
| MR BENJAMIN |
Second Respondent
| MR WHITTAKER |
Third Respondent
REASONS FOR JUDGMENT
Introductory
These reasons for judgment deal with two matters which were heard together due to their substantial overlap. As things stood right up to the commencement of the trial it appeared that this was a multiparty action involving two fathers, a mother and a grandmother. As things transpired one of the fathers, Mr Benjamin, elected not to participate in the proceeding at all. The other father, Mr Whittaker, who is presently incarcerated on remand for what appears to be a cocktail of offences involving drug use, motor vehicle offences and assault, evinced an intention not to participate. He had been brought to Court pursuant to a gaol order, but upon his attendance in Court he made it entirely clear that he did not wish to make any submissions and did not oppose the orders sought by the Independent Children's Lawyer.
Thus as things have transpired this is a dispute between the mother and the grandmother. Although it is a bitterly fought contest between two people who detest one another, the matters in issue are relatively confined.
The substantive dispute as things now stand is about how much time [Y], born … 2005, and [X], born … 2015, spend with the maternal grandmother. The Independent Children's Lawyer’s position, supported by the grandmother and by Mr Whittaker and not the subject of opposition from Mr Benjamin, is more extensive than that proposed by the mother.
The Independent Children's Lawyer proposes there be time spent with the grandmother for three nights in the First and Third Term School holidays and a further period of time in the Long Summer holidays. The mother seeks that this time be restricted to the June Term holidays and the Long Summer holidays.
In respect of [X], the Independent Children's Lawyer seeks three days in the Long Summer holidays concurrent with the first three days of [Y]'s time (which is seven days in the Long Summer holidays). For the reasons that follow I propose to make orders sought by the Independent Children's Lawyer.
The Proposals of the Parties in detail
The Independent Children's Lawyer proposes that [Y] spend time with the grandmother for three nights in the First and Third Term School holidays commencing at the conclusion of [Y]'s currently ordered time with Mr Benjamin. He also proposes that [Y] spend three days in the Long Summer holidays with the grandmother in Victoria and then seven days at the maternal grandmother's home in New South Wales (once again, following her time with Mr Benjamin).
In respect of [X], the Independent Children's Lawyer seeks that he spend three days in the Long Summer holidays concurrent with the first three days of [Y]'s time in Victoria with the grandmother until he attains the age of six, and thereafter his time would be the same as that of [Y]. Effectively, he proposes that [Y] and [X] spend three nights in the First and Third Term School holidays with the grandmother commencing at the conclusion of [Y]'s time with Mr Benjamin pursuant to the extant orders governing that time. He additionally seeks in respect of [Y] that she spend three days in the Long Summer holidays in Victoria with the grandmother and then seven days at the maternal grandmother's home in New South Wales, once again, following on from her time with Mr Benjamin. In respect of [X], he seeks that [X] spend three days in the Long Summer holidays concurrent with the first three days of [Y]'s time until he attains the age of six, and thereafter his time would be the same in the Long Summer holidays as that of [Y].
The mother, by way of contrast, seeks that there be time only in the June Term holidays and again in December. She further seeks that [X] spend two days with the grandmother (one night and two days) to increase by one day each year until he was 10. The mother also sought that telephone calls be between 7.30 or 8.00 pm rather than the 5.00 to 6.00 pm proposed by the Independent Children's Lawyer.
She further sought that any correspondence from the maternal grandmother be sent to her post office box, as she wishes to keep her address private.
The mother also expressed concern at the commencement of the proceeding that Court documents were being inappropriately disseminated, but, as I pointed out at the time, this is prohibited in any event.
Agreed or Uncontested Relevant Facts
The mother was born on … 1980, and Mr Whittaker was born on … 1984. Mr Benjamin was born on … 1975. Ms B Mobbs (the grandmother) is 57 and lives with her husband, Mr Mobbs, in Town D, New South Wales.
Mr and Mrs Mobbs are the registered foster carers of [Z], age 15, and [W], aged 12, who are in the process of adoption and who appear to have already taken the surname of Mobbs.
Additionally, there are two further children, [V], born … 2000, and [U], born … 2000, who live with the grandmother.
The circumstances in which [U] went to live with the grandmother are the subject of bitter dispute between the parties, but it seems common cause that [V] relocated at the age of 16 and went to live with the grandmother of her own volition.
From the history given by the mother to Dr E (who conducted psychiatric assessments of both Mr Whittaker and Ms Mobbs), it would seem that Ms Mobbs lived with her mother and father until she was 17, at which time she left home and formed a relationship with Mr F, who is some eight years older than her. That relationship continued for some four years and produced [V] and [U].
The dates of commencement of the relationship with Mr Benjamin are not, as far as I can see, indicated precisely, but according to Mr Benjamin's affidavit filed on 12 April 2013 it would seem to have lasted for 13 years.
The relationship between Ms Mobbs and Mr Whittaker was much briefer, being from mid-2014 till late 2015.
It seems uncontroversial that the relationship between Ms B Mobbs and Ms Mobbs was generally at least reasonably satisfactory until 2015. In around May 2015 [U] went to live with his grandmother. [U] was 15. Although the two parties had differing versions for the reasons that [U] moved home, they both agree that this is the reason for the deterioration in their relationship.
The relationship between Ms B Mobbs, [Y] and [X] has been largely sundered since then. In May 2016 Ms B Mobbs initiated proceedings in the Lismore registry of the Federal Circuit Court, but these appear to have been dismissed in December 2016. These proceedings have followed thereafter, although it should be noted that Mr Whittaker's application to see [X] predates that outcome, having been commenced in May 2016.
As if there were not enough players on the field already, it should be noted that there are a number of other relatives of both [Y] and, more particularly, [X] who live both in Queensland and in Victoria. One Mr G, who is [X]'s great maternal uncle, lives in Queensland, and his style as a correspondent leaves much to be desired.
The Parties' Affidavits
The affidavit material filed by Mr Whittaker is not now of any real moment, given that he has effectively abandoned his application. The affidavit material filed by Mr Benjamin likewise does not take the matter much further because he has elected not to participate in the proceeding also.
The affidavits of Ms B Mobbs and Ms Mobbs, both of whom have been self-represented throughout, suffer from predictable difficulties of composition. I have had careful regard to what the parties say in these affidavits, but in the end the confined nature of the dispute (at least in temporal terms) makes it inappropriate to dwell upon the material they have filed at any length. It should be noted that the proceeding has been interspersed with somewhat fraught interlocutory hearings. The recurring theme has been assertions made by Ms Mobbs that her mother and, indeed, other family members have attended Court to intimidate and/or taunt her as the case may be.
Before turning to the submissions and evidence made before the Court it is appropriate, however, to turn at least briefly to the two most recent Family Reports. It should be noted that a section 11F report prepared by Counsellor Ms H in May 2018 was severely critical of the mother. That report provoked a very extensive and emotion-laden response from Ms Mobbs.
The Family Reports - The Matter of Whittaker & Mobbs
Both Family Reports were prepared by Counsellor Ms J. Much of this report is now of little significance, given that Mr Whittaker has not participated in the proceeding. I note that Mr Whittaker had been found by the Department of Health and Human Services (“DHHS”) to be responsible for harm in relation to family violence and sexual harm to [V] and [Y] and that the mother had been found responsible for harm for illicit substance use (cannabis and opiates) and using [Y] to leverage parenting arrangements (paragraph 29).
I note that Ms Mobbs presented as emotional, described her family as toxic and was a poor historian (paragraph 37) and was not only self-focused and, it would appear, lacking in insight in relation to [X]’s responses to her own emotional wellbeing, but that the mother talked openly about the alleged breach of Intervention Order and police involvement in the presence of [X] and [Y] (paragraph 38).
At paragraph 63 – Ms J noted:
“Ms Mobbs seemed focused on the conflict with family members rather than recognising the immediate needs of [X], and this also seemed to be compounded by her own medical and health needs. Despite Ms Mobbs’ assertions that she has certain medical and health issues, information from her General Practitioner verified that these had been resolved by way of diagnosis and recommendation for Ms Mobbs to be linked with a specialist clinic. It is unknown whether the psychiatric assessment and conclusion made by the Skin and Cancer Clinic of Ms Mobbs’ ‘complex delusional beliefs’ extends to other aspects of her life and it may be useful to explore this further with Dr E who completed the psychiatric assessment in these Court proceedings.”
I note that the report writer was unable to recommend unsupervised time for Mr Whittaker owing to his drug use. It should also be noted that Dr E was not required for cross-examination, and the exploration posited by the Family Report has not taken place.
The Family Report in the matter of Mobbs & Mobbs & Benjamin & Whittaker
At paragraphs 42-45, Ms Mobbs reported on the time spent by [Y] and [X] with the grandmother in October 2018. This upset Ms Mobbs.
I note relevantly:
“42. Ms Mobbs talked about [X] being ‘very attached’ to her and that she is the only person he has, and so this made separation for her difficult. However, she seemed to lack insight into how her own anxiety may have contributed to this separation difficulty. Ms Mobbs appeared unable or unwilling to make positive comments about [Y] and [X]’s time with their grandmother, and reluctantly reported [Y] had a good time. She reported there were no other issues at changeovers.
43. Ms Mobbs alleged Mrs Mobbs had ostracised her from extended family members, was verbally abusive, and physically abused Ms Mobbs as a child. Ms Mobbs seemed evasive about these allegations. She initially denied being abusive to Mrs Mobbs, but acknowledged this when presented with this information by the writer. However, she appeared dismissive of this information. The material filed indicated vitriolic emails being sent by Ms Mobbs to Mrs Mobbs and [V]. Ms Mobbs seemed dismissive of the IVO against her (by [V]) and reported being unaware of its expiry. Ms Mobbs reported she obtained an IVO in June 2015 against Mrs Mobbs in order to regain care of [U] after he moved out of the family home. At interview she appeared to lack insight into what impact this may have had on [U] who had to move out of his grandparents’ home, due to the IVO prohibiting Mrs Mobbs to be in his presence, and subsequently what impact this may have had on her own relationship with [U].
44. Ms Mobbs described a poor relationship with Mrs Mobbs which [Y] and [X] were reportedly exposed to. She reported [Y] and [X] are also exposed to other adult information related to Court proceedings, and seem to attribute blame on Mrs Mobbs, Mr Benjamin, and [V] for sharing information with [Y]. Contrary to this, Ms Mobbs mentioned she suggested [Y] provided a statutory declaration in the proceedings relating to [U] (which she did) and appeared to lack insight into the inappropriateness of a then 11 year old child’s involvement in parenting arrangements about her own brother and exposing her at that time to the conflict between the family members.
45. Ms Mobbs appeared focused on [U]’s departure from her home, describing that Ms Mobbs ‘abducted’ and ‘alienated’ [U], and also believed Mrs Mobbs had been responsible for [V]’s departure. Ms Mobbs seemed unable or unwilling to consider [U] and [V]’s possible experience with their mother or the concerns reported about her own illicit substance use and the impact this may have had on her parenting. Ms Mobbs appeared to minimise her illicit substance use, reportedly using on three occasions with Mr Whittaker prior to [X]’s birth, and that her last use of cannabis was one year ago. Ms Mobbs reported she is attending counselling (two months on a fortnightly basis) at Suburb K Child and Family Service, with a counsellor who is also providing counselling (commencing 1 November 2018) to [Y]. She described the status of her mental health as stable, although identified her ‘biggest’ issue being anxiety. Ms Mobbs reported that she cried in the presence of the children and feels like she has ‘lost kids’ referring to her separation from [U] and [V].”
At paragraph 46, the report continued:
“Ms Mobbs reported no concerns about Mr Benjamin, describing they had a civil relationship in which they have in recent times being committed to achieve a co-operative parenting arrangement. Contrary to this, at interview and in the material filed, Ms Mobbs reported this relationship had faltered due to the current Court proceedings. Ms Mobbs appeared to resent Mr Benjamin, and Mrs Mobbs, for communicating with each other and facilitating [Y]’s time with [U] and [V] (as recent as 30 October 2018), resulting in periods of his time with [Y] being suspended.”
At paragraph 48, the report continued:
“Ms Mobbs reported that she seeks a ‘solution’ to the poor communication with Mrs Mobbs, and appeared unable or unwilling to acknowledge her role in this.”
I note that Ms B Mobbs presented as calm and cooperative and appeared resigned to her position of not being able to continue to support Ms Mobbs and was focused on having a relationship with [Y] and [X] as well as maintaining their relationships with siblings and other extended family members (paragraph 49).
At paragraph 52, the report notes:
“Mrs Mobbs reported [V] and [U] had difficult relationships with their mother reportedly due to her illicit substance use and associated unstable behaviours, but also due to Ms Mobbs’ difficulties managing [U]’s rebellious teenage behaviours. She described Ms Mobbs’ home as chaotic at that time (2015-2016). Ms Mobbs reported she learnt, through a verbal altercation between [U] and his mother, that he attempted to harm himself in response to his family situation and so she suggested he have a ‘break by staying with her for a short while. Ms Mobbs was reportedly against this and Mrs Mobbs expressed she was aware she had been accused by Ms Mobbs of abducting [U], citing this the reason for the further breakdown in their relationship. However, this arrangement occurred and eventuated into a permanent move, which at interview Mrs Mobbs reported was not the intention. It was unclear to the writer what active attempts have been made by Mrs Mobbs to support [U]’s time with his mother and siblings at that time.”
I note that Mr Benjamin was keen for [Y] to spend time with her extended maternal family members (paragraph 57).
At paragraph 67, Ms J recorded:
“There appeared to be an intractable relationship between Mrs Mobbs and Ms Mobbs, with unresolved issues related to [U] moving from his mother’s home to live with his maternal grandparents. Due to their polarised views, the two adults appeared currently unable to work together to achieve a co-operative relationship in which they could support [Y] and [X] maintain connections and relationships with adult siblings and extended maternal family members. Further, the deterioration of the relationship seemed to affect Mrs Mobbs and Ms Mobbs’ capacity to communicate about daily needs of [Y] and [X], often resulting in vitriolic communication. In light of this, there is a risk of [Y] and [X] being further exposed to the conflict and, particularly for [X], his needs not being adequately met.”
At paragraphs 78-79, Ms J noted:
“78. [Y]’s experience of disrupted relationships appeared significant for her based on her descriptions and also her father’s observations of this. [Y]’s apparent hesitation to continue these relationships seemed to be influenced by her awareness of her mother’s views of each family member and balancing this against her own emotional wellbeing while she lived with her mother.
79. [Y]’s relationship with her brother, [X], appeared to be of a caring role and they both appeared fond of each other. [X] often called out to [Y] and wanted to play with her, with [Y] responding to him without delay.”
I note that when observed with Ms Mobbs, the children appeared to be content (paragraph 81).
Ms J opined at paragraph 83:
“There are no risk factors that would cause harm to or prevent [Y] and [X] spending unsupervised time with their maternal grandmother. There is no information to indicate, as alleged by Ms Mobbs, that Mrs Mobbs misused prescription medication or that she was unable to meet the daily needs of [Y] and [X] over a short period of time. This assessment identified that [Y] had an existing relationship with her grandmother compared to [X] who was a baby when his mother and grandmother’s relationship broke down …”
At paragraphs 84-88, the report continued:
“84. Mrs Mobbs’ attempts to maintain contact with [Y] and [X], via [Y]’s father and [V] using social media, may appear as undermining Ms Mobbs’ parental role and relationships with other family members. Ms Mobbs appeared to minimise the extent of the conflict between her and Ms Mobbs and how this could in the future impact on spend time arrangements. She seemed to have assumed a role of explaining to [Y] what the issues are in the family with limited consideration given to [Y]’s emotional needs and feeling torn between her loyalties to her mother and other family members. However, [Y] presented as wanting to build trust with adults by seeking reassurance about the crux of the conflict. It is unlikely that her mother, father or grandmother would be able to be unbiased in their approach to supporting [Y] in this area. Furthermore, the concerns raised by Mrs Mobbs’ fostering agency about her lack of communication and co-operative relationship with them raises concern about how this could transfer to her communication and co-operative relationship with an already intractable relationship with Ms Mobbs. Nonetheless, Mrs Mobbs’ commitment to her grandchildren and remaining part of their lives is evident.
85. Ms Mobbs’ reported anxiety and separation difficulties may likely play a role in [Y] and particularly [X] spending time away from her. She presented as over bearing in her role to remain directly involved, and supervise, the time [Y] and [X] spend with their grandmother and siblings in the absence of significant risk factors, despite the children appearing to value these extended family connections. Ms Mobbs seemed focused on the conflict and her perception that Mrs Mobbs is an unsafe carer, rather than acknowledging the impact of this conflict on [Y] and [X] or the value of [Y] and [X]’s familial relationships. Ms Mobbs’ anxiety and separation from [X] may be a factor in this and highlight her emotional vulnerabilities and needs. Of concern, Ms Mobbs appeared to lack self-awareness and insight about her own role in the familial conflict. Ms Mobbs appeared to continue to be adversely affected by [U]’s departure from the family home, and this resentment seemed to be the primary factor in her current proposals to spend time, rather than the interests of [Y] and [X] and separating her own needs from their needs.”
At paragraphs 88-89, the report relevantly continued:
“88. … Ms Mobbs’ resentment of Mrs Mobbs, and other family members, appeared to run deep. Conversely, Mrs Mobbs’ apparent minimisation of this resentment and determined approach to spend time with [Y] and [X] seemed to increase Ms Mobbs’ anxiety. … Although Ms Mobbs presented to be somewhat supportive of future spend time arrangements, [Y] and [X]’s needs and interests did not appear to be at the forefront and it is likely that she (Ms Mobbs) will need support in order to foster the relationships [Y] and [X] have with other family members.
89. Based on the current information, there is a likelihood of Mr Benjamin and Mrs Mobbs’ time being suspended due to Ms Mobbs’ pattern of behaviour in response to oppositional views to hers, and this will in turn be damaging not only to [Y] and [X]’s relationships but also to their ability to develop skills to build relationships. However, it is important for [Y] and [X] to form and maintain familial relationships wherever possible.”
Ms J went on to recommend time. Those recommendations have been overtaken by the evidence in the case.
The submissions made and evidence given at Court
What follows is taken from my notes. It is not a transcript but records aspects of the matters put that I found significant.
The applicant, Ms B Mobbs
Ms B Mobbs made an opening. She said she had two other adult children and has two foster children, 13 and 15, who are in the process of being adopted. She has 13 grandchildren and one great grandchild. She worked until 2007 in customer service. Family is very important. She has tried to help the mother as much as she could. There were drugs and alcohol in the mother’s life, and these had caused irreparable damage. She has been a foster carer for in excess of 20 years and has no criminal history. She has to undergo checks for working with children in order to be a foster parent.
She wants to spend time with [Y] and [X] and wants them to meet their extended family, [V] and [U]. She said that [Y] was close to her and is confused by what her mother tells her. There have been many allegations, such as kidnapping of [U] and drugs, but she denies all these allegations. She sought the orders proposed by the Independent Children’s Lawyer but also that she be able to spend time with [Y] whilst in the care of Mr Benjamin. She indicated an intention to bring her two foster children, [Z] and [W], to Melbourne when she visits to see [Y] and [X].
Mrs Mobbs was sworn and adopted her affidavits as true and correct.
Under cross-examination by the Independent Children's Lawyer, Ms B Mobbs confirmed that when she saw the children for three nights in Victoria, she would be staying with one of her two daughters. It was likely to be with Ms L, who lives in Suburb M. She is not sure where the mother lives but thinks it is in Suburb C, some five to 10 minutes away. [Y] is a teenager with friends, but when she is with her, they are generally busy doing family things. [Y]’s friends could come over, but she would prefer this rather than [Y] going to them.
She had contact with [X] until May 2015, when he was a baby. Then she was not allowed to see him and has only seen him on social media. There had been a visit overnight at her daughter Ms L’s in the September School holidays. There are direct flights to Town D from Melbourne which take just over two hours. Her home is five minutes from the airport. She would seek to have changeover at McDonald’s in Suburb C. Mrs Mobbs confirmed that she would fly with the children when they came to see her.
Ms B Mobbs was extensively cross-examined by Ms Mobbs. She confirmed that she was retired and cares for children. This is not employment.
She confirmed that she was staying with Ms Mobbs when [U] was kicked out. She said, “You ordered me to get [U]. I needed to get him home. I asked him to come home, and he did. He came home.”
She had gone to her other daughter Ms N’s house and had hoped [U] would settle down. She flew home with [U] the following day. She was aware of Court orders and had supported Ms Mobbs in previous trials. She said “[U] told you he had tried to suicide, and you did nothing. I was there. I took him with me.”
[U] was 15 and almost 16 at the time and asked to come with her. There was a threat to kill himself if not. Ms B Mobbs said that she told Ms Mobbs, “Let him go. He will be sick of me in two weeks.” She tells [U] every time on Christmas and birthdays. She asks if he will send a card, but he says no. [U] will not discuss the mother with her.
When it was put that until May 2015 Ms Mobbs allowed her time with the children, Ms B Mobbs said “no”. It was hard for her to explain. She had access to the children until 2015 but had made reports to the DHHS before 2015. The children came for a holiday, and [V] cried from the minute she got to her home. She was crying about things in the grandmother’s home. She told DHHS but could not remember when.
She always tried to help the mother, but she always denied drugs. Ms Mobbs was asserted to have said that if Ms B Mobbs got between her and her children, she could consider herself dead. Ms B Mobbs said she was fearful of the mother and knew she could not disagree with her. She had even rung the hospital once and asked them to keep the mother there.
Ms Mobbs asked Ms B Mobbs what would happen if the children were in New South Wales and were upset with her. Ms B Mobbs said this would depend on the scope of it. If it was to do with drugs and alcohol, she would contact (Mr Benjamin) about [Y]. She would ring DHHS and take their advice. She has not said that Ms Mobbs was unfit. She said there was a problem with drugs and alcohol. She has seen her under the influence. She said that the mother was a very unwell person who needs help. She denied that Ms Mobbs helped her raise her children.
[Z] and [W] are in the process of being adopted. Their surnames have already been changed to Mobbs. There are no problems with the DHHS about adoption. [Z], however, will not interact with the DHHS. [U] lives on his own now and is 18.
Ms B Mobbs said that no more foster children will come into the home. She said she had always protected Ms Mobbs’ children from foster children. The two foster children rarely see their parents, and [Z] not at all because she does not want to. [W] sees her parents when they make themselves available once per year.
Mrs Mobbs confirmed that she obtained an Intervention Order after the incident with [U] against the mother. She denied a secret meeting. She had spoken to [Y] but did not remember whether there was an Intervention Order extant at the time. She had tried to have [U] returned to his mother, but he refused. She pointed out that he is six foot two tall.
When it was put to her that [X] being with her for three days to 10 days would be too much, Ms B Mobbs felt that this was okay. [X] is now three and would be six or seven by this stage.
When questioned about her daughter Ms L, it emerged that this person was adopted. The adoption had taken place as an adult, it would appear.
Ms B Mobbs said she had never had a relationship with her own mother. She said they did not discuss the Court case with the children in New South Wales. [W] and [Z] know only what [Y] tells them.
When questioned as to [Y]’s time with her, Ms B Mobbs said that [Y] seemed extremely excited about coming to Town D. When questioned how she would support [Y], who has a psychiatric appointment every 14 days, Mrs Mobbs suggested that she has no problems in communication and could use a Communication Book. She said she could not mediate with Ms Mobbs, as it cost too much to fly here, although she could do it if she happened to be here otherwise.
It should be noted that, unsurprisingly, the cross-examination of Ms B Mobbs by Ms Mobbs was problematic. Given the interpersonal dynamic, this is scarcely surprising. I had on occasion to limit the questions put by Ms Mobbs, as I think I may have pointed out to her, because this case is not a Royal Commission into her mother’s conduct generally but is rather confined to the particular matters at hand. Ms Mobbs’ questioning style sought to elicit guidance from the Court, which, of course, I was not permitted to give. My role, of course, was limited to ruling on the admissibility of the questions that Ms Mobbs herself formulated. It should be noted that I extended considerable latitude.
The opening and evidence of Ms Mobbs
Ms Mobbs said she had a great relationship with her family until the problem with [U]. Nothing has resolved since 2015. Her biggest concerns are the children. She has to protect the children. She had made mistakes in the form of the men she was with but should not be penalised for this. She has not abused her children. There has been nothing in the last three years. The children were affected by her abusive relationships, but she has had to change her life.
The issue she has is that the safety of her children has not been fully investigated. Her mother has a right to see the children. All she is asking for is a solution. There is no possibility of reconciliation. There are four children, and she has never had any trouble with the law.
She reported her sexual assault (an allegation of rape against Mr Whittaker). The DHHS left her with her children. She has been fighting the fathers and her family for four years. She fears sending her children away for long periods of time. She seeks only the June and December holidays. [Y] has a lot of problems, and her friends keep her happy. Her friends come once per week in the holidays. [Y] spends one week with the father, and there would only be four days left for her. The 10 days proposed for [Y] were okay.
In respect of [X], it is very difficult to know what to offer in the upcoming years. His father is in prison. Three days to ten days at 6 years is too much of an increase. She proposed three days in June and three days in December until [X] is 6, then to go to five days and to increase to seven days when he is 8. She sought an order that the grandmother accompany the children when they flew, and this is, as I understand it, uncontroversial. She seeks mediation, because Communication Books can be used as a tool.
Ms Mobbs was called and adopted her affidavits as true and correct.
Under cross-examination by counsel for the Independent Children's Lawyer, Ms Mobbs was taken to paragraph 89 of the Family Report (in Mobbs & Mobbs & Ors). She understood what the report writer meant but did not agree. There had been one contravention only. Things were working well with Mr Benjamin. She was upset since the grandmother organised a meeting in October 2018, which was a secret meeting.
She objects to the grandmother seeing [Y] when she is with her father. It creates an awkward situation. She is isolated from the family and is a very difficult situation. [Y] will struggle with socialising when her family exclude her (Ms Mobbs). [Y] was suicidal after meeting in August. It affects her relationship with Mr Benjamin and has torn her and Mr Benjamin apart.
Notwithstanding these answers Ms Mobbs went on to say that if her mother sought to see [Y] for the day while she was with Mr Benjamin then that would be okay. [Y] has a lot of issues.
I should interpolate that the mother’s answers to this section of the questioning in particular were prevaricating and non-responsive.
When asked what benefits the grandmother brings to the children Ms Mobbs said if she has been good then she is a great grandmother. She had to consider more than what the grandmother wants. She is hurt that the older two children do not live with her but this was not what makes her want to limit the grandmother’s time. Every time the children are exposed to the grandmother she cannot behave properly, ever since the Intervention Order. She has fought for four years for her children and it is not fair if she does not have them for more than four days. There has not been an investigation of the grandmother’s criminal history. The children need to be safe.
The mother agreed that [X] could spend three nights with the grandmother if there was time in the June holiday. When it was put that [X] could spend five days in New South Wales when he turns 6 Ms Mobbs said the extra two days would be okay. It could in fact be five days in New South Wales.
When questioned about [Y]’s time in New South Wales, Ms Mobbs said [Y] is 14. [X] is the only child not exposed to hostility. She said no one will communicate with us.
When cross-examined by Ms B Mobbs, Ms Mobbs admitted that when [V] left home she went to her boyfriend’s home in Town O and not to Mrs Mobbs.
In re-examination Ms Mobbs said she wants protection for her children. She said the children have lost everything. No one will speak to her and she had done nothing wrong.
The evidence of Ms J
Ms J’s two Family Reports were tendered as formal exhibits.
Under cross-examination by the Independent Children’s Lawyer’s counsel, Ms J accepted the orders proposed by the Independent Children’s Lawyer. These were not too far from her recommendations. Ms J opposed telephone time because there had been family violence during a phone call.
Ms J approved of the proposal that [X] spend three days in Melbourne in the Long Summer holidays and that this be extended to five days when he is 6 and seven when he is 8.
When asked whether [X] should spend one or two nights in the Term holidays Ms J preferred two nights. She said [X] needs that frequency to build his relationships.
When it was put that the Independent Children’s Lawyer proposes [X] spend three days in Victoria till 6 and then seven more days together with [Y], Ms J said her view was similar. As long as he goes with his sister she will be a comfort for him. [X] benefits from his sister being there.
Ms B Mobbs merely sought to correct a mistake in the Family Report that [V] had moved to the grandmother rather than to her boyfriend.
Ms Mobbs took issue with some of the matters asserted in the Family Report. Ms J said what she had written was based on the information provided to her and that there might be confusion. It was clear when the interview with [X] took place that he did not have a Dad. He needs to be safe. Current contact with his father would not be safe.
Ms J said [Y] sees time with the maternal grandmother and the family as important. The time proposed would not have a significant impact if it took place during two Term holidays. There are two older siblings and these have been a massive loss for [Y]. She has the rest of the year and weekends with her friends and her mother.
When it was put that the jump from three days to ten days would be too much, Ms J said [X] would cope with the jump if his sister was with him. By age 6 [X] will have been at school and separated from his mother for that. There were no separation difficulties when the interview took place. The biggest issue is the mother’s anxiety at separation from [X] and she should seek support. She stuck by the recommendation at paragraph 90(e) of her report which recommended Post Separation Courses.
Ms J was clear that there should be telephone time with the mother when the children were with the grandmother.
The final submissions of the parties – the Independent Children's Lawyer
Counsel submitted that the grandmother should facilitate phone contact between [X] and his mother at least once in the School Term Break and two times in the Long Summer holidays after [X] is 6. [Y] should be permitted to contact the grandmother by phone, or her mother, as the case may be, whenever she wishes.
Counsel submitted that the orders in Whittaker & Mobbs were agreed to by the mother and were also agreed to by Mr Whittaker. These could be made by consent. Counsel undertook to forward the minutes to the Court.
In the matter of Mobbs & Mobbs & Ors there was no question of shared parental responsibility and no question of shared residence. The grandmother seeks time with [Y] and [X]. [Y] is excited at the prospect of time with her grandmother and extended family. The one contact period so far has been unremarkable. The Family Report was clear, and the report writer supported the Independent Children's Lawyer’s proposal in cross-examination. The mother would have four days in the First and Third Term holidays and half the Long Summer holidays. This was enough time for [Y] to communicate with her friends. The maternal grandmother should encourage [Y] to stay in touch with her friends and should involve them in activities where possible.
Counsel pointed to paragraph 89 of the Family Report in Mobbs & Mobbs & Ors and noted the matters of concern set out in them. He submitted that clear, concise orders were required and it was important that the relationship with the family should be fostered where possible. Ms J had said twice per year, particularly for [X], was not sufficient. Three times per year was better.
This was not a criticism of the mother. She has had a stressful experience, with two older children estranged. It was submitted, however, the Court should not make orders on the mother’s emotions. Counsel relied on the report’s recommendations. The Independent Children's Lawyer expressed no view as to whether the time should be spent contiguously with that of Mr Benjamin and made no submission as to that.
Final submissions of the mother
Ms Mobbs said that her only concern was the children’s safety. She said there should be a gap between the time spent between the father and the grandmother. [Y] should come home for washing and the like. Phone calls should be after 6.00 pm (something agreed by all). It was important there be a relationship with the grandmother, but only one Term School holidays. It would be nice if the family could get over this. The orders proposed did not consider the mother’s interests enough. What she was offering was fair and reasonable.
The final submissions of Ms B Mobbs
Ms B Mobbs supported the submissions of the Independent Children's Lawyer. She is aware of the mother’s apprehensions. She will get the children to ring home every day and has no problems if they wish to do that. She denied talking of Court matters at home. She has three blended families to deal with.
Brief observations about the evidence
It should be noted that I have glossed over and largely ignored a whole series of vivid controversies between Ms B Mobbs and Ms Mobbs. I have noted but not commented in any detail upon the quite appallingly offensive text messages sent by Ms Mobbs to her mother and, indeed, to her daughter [V] on occasion. I share the doubts expressed by a number of players as to the mother’s assertions that she is drug-free. There is, however, nothing to be gained from further investigation of this issue, as there is no dispute in the case that the children will remain in her primary care.
Ms B Mobbs gave her evidence in a composed and straightforward way, but she was unable, in my view, to conceal an underlying hostility towards her daughter. She has plainly, to put the matter colloquially, given up on her completely.
The real driver of dispute in this case is Ms Mobbs’ fear that the grandmother will in some as yet unidentified fashion seek to alienate [Y] and [X] from her, as she perceived her to have done with [U] and [V].
It is clear that the issue of [U] going to live with Ms B Mobbs remains a source of great hurt to Ms Mobbs, although I entirely share Ms J’s observations as to the mother’s lack of insight as to her own contribution to this unfortunate development. The same can be said about [V]’s decamping to Ms B Mobbs’ home as well.
I should make it clear that I am not convinced that Ms B Mobbs significantly endeavours to foster a relationship between [U] and [V] and their mother. Nonetheless, they are at an age where they are well able to make decisions for themselves, and whatever criticisms may validly be made of Ms B Mobbs, there is no doubt that the volatile personality of Ms Mobbs, taken in conjunction with the extremely volatile relationship she had with the violent Mr Whittaker, must have contributed very significantly, at the very least, to the two elder children’s decision to decamp.
Having made these findings, it is appropriate to proceed as best one is able in these circumstances by reference to the statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental responsibility
There is no dispute in this case that Ms Mobbs should have sole parental responsibility for the two children with whom we are concerned.
The ‘spend time’ regime – the primary considerations
The consideration referred to in s.60CC(2)(a) does not apply as this is not a dispute between parents. It might be said to be engaged to an extent by the mother’s fear that time spent with her mother will impact deleteriously on her own relationship with the children. But I will return to this under the Additional Considerations heading below.
There is certainly a need to protect both children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. But at least for the present, Mr Whittaker is incarcerated, and the future of any relationship between him and [X] remains entirely unclear.
Additional considerations – section 60CC(3)(a)
[Y] is reported, most importantly by the objective evidence of Ms J, to be excited about the prospect of seeing her extended family and to visit New South Wales. Although Ms Mobbs has sought to downplay if not deny it, it seems clear from Ms J’s evidence, and that of Ms B Mobbs, which I accept in this respect, that suggestions that [Y] might not wish to see her grandmother are simply wrong. It should be noted that [X] is very young and has not, self-evidently, expressed any particular views.
Section 60CC(3)(b)
This has already largely been covered in the immediate paragraph. As Ms J observed at paragraph 81, [Y] has already formed a bond with her grandmother and had maintained contact with her siblings and grandmother via social media. [X]’s relationship with his grandmother is very much a work in progress.
Section 60CC(3)(c)
Plainly the mother has been the primary carer of these two children all their lives. While Ms B Mobbs quite obviously is not a parent, it should be noted in passing that she has strenuously sought to be involved in the lives of these two young children by prosecuting her case to judgment. She has had to attend Victoria on a number of occasions for interlocutory proceedings and family reports, all of which strongly suggests her desire to communicate and spend time with the children.
Section 60CC(3)(ca)
The mother may not have been an optimal parent, but she is the primary carer that they have had.
Section 60CC(3)(d)
This, of course, is at the kernel of this case. In one sense, however, it is implicit even in the mother’s proposal that both [Y] and more particularly [X], who is so much younger, should spend time with their grandmother. This places her concerns in perhaps a clearer light. The dispute is not whether the children should be separate from the mother for some time but for how often and how long.
The one thing that will be vividly brought into play if the orders proposed by the Independent Children's Lawyer are made, and probably even if those proposed by the mother are made, is that the anxiety of Ms Mobbs will be significantly increased at separation. As Ms J has observed and I have no difficulty in finding, having seen and heard the mother give her evidence, this case arises out of and is in truth all about Ms Mobbs’ fear that her mother will alienate these two children from her. I should make it clear that I do not have any anticipation that this will be the case.
Section 60CC(3)(e)
There are no practical difficulties or cost inhibitors in the regime proposed by the Independent Children's Lawyer. Ms B Mobbs has the funds to transport the children to Queensland when the occasion arises. There is nothing to suggest that her premises in Queensland are in any way inadequate to accommodate the children.
Section 60CC(3)(f)
I retain some doubt as to the mother’s capacity to provide for the emotional needs of the children. Her suspension of Mr Benjamin’s time as a response to Mr Benjamin facilitating a meeting between the children and their grandmother speaks for itself. The mother is a woman who had a very stressful personal life, but it has left clear marks upon her. She sees this dispute very much as being about herself and is not able, through lack of insight, to see the way in which her behaviour may adversely affect the childrens’ best interests. Nonetheless, it must be repeated again that she is the primary carer the children have had and will continue to have.
Ms B Mobbs needs to understand that whatever disdain she may feel for the childrens’ mother, it is her obligation to sustain and promote the childrens’ relationship with her. Her track record in relation to [U] and [V] is scarcely outstanding, but these are much younger children, and Ms B Mobbs will need to be careful to use her best endeavours to ensure that she does not trigger, through her conduct, the sort of concerns upon which the mother has acted in the past.
Section 60CC(3)(g)
[Y] is at an age where she is keenly attuned to the inter-familial conflict. She, nonetheless, still wishes to see her grandmother and siblings. It should be noted that the uncontradicted evidence suggests that her absence from [U] and [V] has been difficult for her. It appears that she and [X] have good relationships with [Z] and [W] also.
Both [Y] and [X] have been exposed to considerable and significant family violence, and this has plainly been a factor in their development.
The mother’s life has been, at times, chaotic, and she impressed me as having poor self-control and poor insight. Ms B Mobbs is a calm and mature woman, but as I have said, her attitude to her daughter is, while understandable, unfortunate.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
This subsection is important, but has already been canvassed significantly above. The mother’s attitude towards the responsibilities of parenthood is inadequate. She sees things entirely through the prism of her own immediate interest. She has made spectacularly poor choices of partner in the past, as she herself has said.
Section 60CC(3)(j)
Very regrettably, this case has been littered with family violence involving the children, but given Mr Whittaker’s incarceration, this appears to be less of an issue at this stage.
Section 60CC(3)(k)
There are all too many Intervention Orders between the various parties to this proceeding and/or third parties. They are, of course, important, but they are not of any great import given the nature of the dispute.
Section 60CC(3)(l)
It is plainly imperative to make final orders at this stage and bring this sorry saga to an end.
Section 60CC(3)(m)
In a sense, this brings us to the critical point. Should there be the slightly greater amounts of time proposed by the Independent Children’s Lawyer or the lesser amounts proposed by the mother?
In the end, in my view, the position is clear and my conclusion can be stated shortly. The Independent Children’s Lawyer proposes the greater amount of time. He is supported by Ms B Mobbs and not opposed by Mr Benjamin. More importantly, he is also supported by the family counsellor Ms J. The reasons given by Ms J for her agreement with the Independent Children’s Lawyer as described earlier are cogent, and I accept them. I should interpolate and say in passing that Ms J was an excellent witness who was giving evidence within her area of professional competence. She was not shaken in any way in cross-examination, and I found her answers to be considered and compassionate.
I accept that the mother may well struggle with any separation from [Y] and more particularly, perhaps, [X]. That is a matter that the post-separation counselling should assist. It is clear that it is to [Y] and [X]’s benefit to have a meaningful relationship, not only with their grandmother, but with the siblings and adopted siblings in her household (noting that [U] has, of course, now moved out).
For these reasons I propose to make the orders sought by the Independent Children’s Lawyer.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 8 April 2019
Key Legal Topics
Areas of Law
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Civil Procedure
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Equity & Trusts
Legal Concepts
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Abuse of Process
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Estoppel
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Res Judicata
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Stay of Proceedings
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