Crowley & Picton

[2022] FedCFamC1F 459

Federal Circuit and Family Court of Australia

(DIVISION 1)

Crowley & Picton [2022] FedCFamC1F 459

File number(s):

WOC 1073 of 2019

Judgment of:

SCHONELL J

Date of judgment:

30 June 2022

Catchwords:

FAMILY LAW – CHILDREN – Where final orders had been made in 2017 for the child to have no contact with the father – Where the paternal grandmother sought orders for time with the child – Where the mother sought a dismissal of the paternal grandmother’s application – Where the paternal grandmother failed to comply with Court orders and directions – Where the paternal grandmother failed to appear on two occasions despite having notice that if she did not appear on the second occasion the matter would proceed on an undefended basis – Paternal grandmother’s application for time with the child dismissed – Where the mother also sought to restrain the paternal grandmother from approaching or contacting the child – Where there is a high degree of conflict between the paternal grandmother and mother – Where there is an unacceptable risk that contact with the paternal grandmother would result in the child being exposed to harm – Restraint orders made.  

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68 , 69

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.25 10.26, 10.27

Cases cited:

Malcolm & Monroe (2011) FLC 93-460; [2011] FamCAFC 16

Picton & Crowley [2022] FedCFamC1F 69

Division:

Division 1 First Instance

Number of paragraphs:

43

Date of hearing:

10 June 2022 

Place:

Sydney

The Applicant:

No appearance

Solicitor for the Respondent:

Venus & Smart

Solicitor for the Independent Children's Lawyer:

Ark Law Lawyers

ORDERS

WOC 1073 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS Q CROWLEY

Applicant

AND:

MS PICTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	30 JUNE 2022

THE COURT ORDERS THAT:

1.The Initiating Application filed 23 September 2019 is dismissed.

2.The applicant paternal grandmother Ms Q Crowley spend no time with the child X (“the child”) born in 2009.

3.Ms Q Crowley be restrained from approaching or contacting the child or the respondent mother Ms Picton.

4.Ms Q Crowley be restrained from approaching any school attended by the child from time to time or any place at which the child attends a regular activity.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crowley & Picton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SCHONELL J:

1. These are proceedings that involve a child, X, born in 2009 and aged 13 years.  Unfortunately for X, there has been litigation involving him for a significant part of his life. 

2. The respondent mother (“the mother”) states that she and X’s father were in what she describes as an “on and off relationship” between 1992 and 2010 (mother’s affidavit filed 10 January 2020, paragraph 4).  There are three children of the relationship of which X is the youngest. The other two children are now over 18.

3. The present application is by the applicant paternal grandmother (“the paternal grandmother”) who seeks orders in her Initiating Application filed 23 September 2019 for time with X each second weekend for a period of “at least four hours”. The mother has always opposed time between the paternal grandmother and her Response to the Initiating Application sought its dismissal.

4. As it was, the paternal grandmother has not appeared before the Court on two occasions nor complied with directions, and the mother seeks that her Application be dismissed and that the mother’s Response be determined on an undefended basis. The mother’s position is supported by the Independent Children’s Lawyer (“the ICL”).

5. For the purposes of the application, I have read the following documents:

   (1)Initiating Application of paternal grandmother filed 23 September 2019;

   (2)Affidavit of paternal grandmother filed 23 April 2021;

   (3)Amended Response to Initiating Application filed 27 May 2022;

   (4)Affidavit of mother filed 10 January 2020;

   (5)Child Inclusive Conference Memorandum dated 19 August 2021;

   (6)Judgment of McClelland DCJ dated 17 February 2022;

   (7)Case Outline of mother; and

   (8)Case Outline of the ICL.

   Background

6. The mother says proceedings between her and X’s father commenced in or about 2013.  Those proceedings were finalised by Rees J on 12 October 2017. Notwithstanding her Honour’s judgment, further litigation ensued between the parties that was finally determined by McClelland DCJ in a judgment delivered on 17 February 2022, where his Honour dismissed a Review Application filed by the father against orders made by a senior registrar that dismissed all of the father’s applications for parenting orders. 

7. The following history of the litigation is extracted from McClelland DCJ’s judgment in Picton & Crowley [2022] FedCFamC1F 69, which records as follows:

   3.The relevant final orders were made by Rees J on 12 October 2017. By way of summary, her Honour found that the numerous complaints made by the father and paternal grandmother regarding the welfare of the child whilst in the care of the mother were not substantiated. While the parenting capacity of both parents was a concern, her Honour ultimately made orders for the child to live with the mother and spend no time with the father. Orders were also made restraining the father from coming into contact with the mother or the child. The decision explains that a significant concern of the Court was the prospect of the child being adversely impacted by the entrenched conflict between the parents.

   …

   6.As a related issue, I have found that the conduct of the father in the period subsequent to her Honour’s orders have, in my view, confirmed the wisdom and foresight of Rees J’s analysis of the parties’ dispute. Having regard to the conduct of the father in the period since the final orders were made, in the exercise of its discretion, the Court should reject the father’s application for the re-opening of the final parenting orders made on 12 October 2017. Permitting the litigation to be re-opened would not be in the child’s best interests.

   …

   25.The judgment of Rees J was subject to an appeal, with the decision of the Full Court being delivered on 30 May 2018. The appeal was dismissed.

   26.Significantly, the Full Court in determining the appeal rejected an application by the father to adduce a transcription of JIRT interviews with the child. It was determined that the evidence, if it had been called during the trial, would not have changed the outcome of the proceedings.  The father, in these proceedings, renewed his application to rely upon recordings of those interviews. The father’s application in that respect was dismissed for reasons provided in transcript dated 23 November 2021.

   Relevant events in the period subsequent to the judgment of Rees J

   27.Following the Full Court decision, events have occurred that are relevant to this judgment.

   28.On 23 August 2018, Mr O, the adult son of the parties and older brother of the child filed a separate application in the Federal Circuit Court of Australia (as it was then known) seeking orders for the child to spend alternative weekends and school holidays with him. At the time, Mr O was living with the father.

   29.On 3 October 2018, Mr O’s application was transferred to the Family Court of Australia (as it was then known).

   30.On 5 December 2018, police attended the mother’s home to undertake a welfare check after a report of domestic violence and drug use. No action was taken consequent to the police attendance.

   31.On 25 December 2018, the police were called to the mother’s residence as a result of a dispute that arose in circumstances where the paternal grandmother attempted to deliver a Christmas present to the child. No police action was taken in respect to that incident.

   32.In 2019, the paternal grandmother visited the child while he was in the playground at school. The school reported that this caused him distress.

   33.In late 2018 or early 2019, the father commenced legal proceedings against the child’s general practitioner, Dr YY, alleging malpractice on the part of the doctor.

   34.In 2019, the father engaged lawyers to make a complaint to the Commissioner of Police in respect to police failing to further investigate the father’s allegations that the mother had caused an injury to the child’s neck.

   35.On 16 January 2019, the mother, the father, and Mr O attended a court-based Child and Family Meeting with Family Consultant ZZ.

   36.On 22 February 2019, during the course of an interim proceeding before the acting Senior Registrar, the solicitor for Mr O discontinued the proceedings commenced by him.

   37.At some stage subsequent to July 2018, Mr O’s gun licence was revoked,  however there is insufficient evidence before the Court to determine the circumstances in which that occurred.

   38.On 13 June 2019, the child was awarded Victims Compensation in respect to a neck injury which it was found that he had sustained. 

   39.On 23 September 2019, the paternal grandmother commenced separate proceedings in the Federal Circuit Court of Australia (as it was then known) seeking orders for the child to spend time with the paternal grandmother on alternate weekends.

   40.On 4 November 2019, the application by the paternal grandmother was transferred to the Family Court of Australia (as it was then known).

   41.On 6 November 2019, the father filed his current application and supporting affidavit seeking orders that the child spend time with him, on the grounds that there had been a significant changes in circumstances since the final orders of Rees J in October 2017.

   42.On 9 January 2020, the mother filed her response to the application for final orders and a supporting affidavit. That application was for the father’s application for both final and interim parenting orders to be dismissed.

   43.On 10 August 2020, the father and Mr O attended AB Town Police Station and provided witness statements alleging that the child had been assaulted. No action was taken by the police.

   44.On 19 October 2020, Ms AC sent a letter to the Law Enforcement Complaint Commission on behalf of the father.

   45.On 2 November 2020, the matter was listed before a Senior Registrar, at which time it was adjourned until 10 December 2020.  The matter was subsequently listed on that date and adjourned for a further occasion until 6 April 2021.

   46.On 6 April 2021, consequent upon the Senior Registrar’s appointment as a judge of the Federal Circuit Court, the matter was heard by another senior registrar who adjourned the matter until 6 June 2021. That date was, however, subsequently vacated.

   47.On 20 April 2021, the paternal grandmother filed a Notice of Child Abuse, Family Violence or Risk.

   48.On 6 May 2021, the paternal grandmother filed an Application in a Case seeking interim parenting orders.

   49.On 27 July 2021, the child attended a Child Inclusive Conference with a family consultant, during the course of which the child advised the family consultant that he did not wish to see his father.

   50.On 19 August 2021, the father filed an Amended Application in a Case and affidavit in support.

   51.On 26 August 2021, the interim hearing before the senior registrar took place and orders were made dismissing all extant applications, including the father’s application for final and interim orders. 

   52.On 10 September 2021, the father filed his application for review of the senior registrar’s orders.

   (Footnote omitted)

8. As stated earlier, on 17 February 2022, McClelland DCJ dismissed the father’s applications for parenting orders.

9. As his Honour records, the paternal grandmother had filed her own Application for time with X on 23 September 2019. The mother filed a Response to that Application on 9 January 2020 seeking its dismissal.

10. The paternal grandmother in her affidavit contended that X was at risk of harm in the care of the mother. The allegations raised in the affidavit all relate to incidents that occurred prior to the determination by Rees J.

11. The mother in her affidavit gives the following relevant evidence:

    5.Early in my relationship with [Mr Crowley] I always had the feeling that [Ms Q Crowley] did not approve of or like me.

    6.When I first met [Ms Q Crowley] I was 4 months pregnant and I overheard her say to [Mr Picton] “It’s probably not even your baby”

    …

    9.There are three children of our relationship, namely;

    (i)[Mr O] born […] 1993 and currently 26 years of age (“[Mr O]”),

    (ii)[Mr J] born […] 1997 and currently 22 years of age (“[Mr J]”) and,

    (iii)[X] born […] 2009 and currently 11 years of age (“[X]”).

    10.When I was pregnant with [X] I recall [Ms Q Crowley] saying “You shouldn’t be having this baby. None of us are happy about it”

    11.[Ms Q Crowley] was not very involved with any of my children. I can only remember [Ms Q Crowley] and her husband […] coming to one or two school events. They rarely babysat unless they had made some sort of plans that involved taking the children on an outing.

    12.[Ms Q Crowley] has previously taken me to court over [Mr O] and [Mr J] for her “grandparents rights” as she called it.

    13.I recall taking [Mr O] and [Mr J] around to [Ms Q Crowley’s] place one time and she started verbally abusing me. She turned the hose on me and then tried to wrap the hose around my neck. She pulled my hair and then went inside and trashed her own house.

    …

    18.During the years that [Mr Crowley] and I were in court over [X] [Ms Q Crowley] was always there in his support and the pair of them took [X’s] to various doctors trying to get a diagnosis that I had done something to [X’s] neck.

    19.[Ms Q Crowley] constantly belittled me for my parenting and made out I was a slut even though she rarely came to my house.

    …

    21.Just before [X] was due to start kindergarten [Ms Q Crowley] and [Mr Crowley] apparently told the child care centre that I was dead and that they had full custody. This enabled them to enrol [X] in [N Town] Day Care and subsequently [N Town] Public School.

    …

    36.On 23 September 2019 [Ms Q Crowley] commenced proceedings number […] seeking to spend time with [X] on alternate weekends. On 4 November 2019 Registrar […] transferred the proceedings to the Family Court in Sydney.

    37.I am concerned that if the Court makes orders for [X] to spend time with his paternal grandmother that she will allow [Mr Crowley] to be present.

    38.[Ms Q Crowley] and [Mr Crowley] attend all court events together and are united in making attacks on my character when addressing the court.

    39.Two days after [Ms Q Crowley’s] matter was transferred to the Family Court [Mr Crowley] filed an application with the Family Court seeking time with [X] on the grounds that there has been a significant change in circumstances since October 2017.

    40.Since [Mr Crowley] lost his appeal against the orders of Judge Rees he has made numerous attempts to make contact with [X] despite the strong restrictions imposed by the orders.

    …

    43.I feel as if I have to spend all my time looking over my shoulder to keep [X] safe, whether it be from [Mr Crowley], [Ms Q Crowley] or [Mr O].

12. On 6 May 2021, the paternal grandmother filed an Application in a Case seeking specific time with X.  Orders were made by the Court in relation to that Application on 2 December 2021 as follows:

    PENDING FURTHER ORDERS, THE COURT ORDERS THAT:

    1.That the application in a case filed by the Applicant Paternal Grandmother, [Ms Q Crowley] born […] 1952 (“the Paternal Grandmother”) on the 6th May 2021 is dismissed.

    2.That the child, [X] born […] 2009 (“the child”) spend no time with the Paternal Grandmother.

    3.That the Paternal Grandmother be restrained from approaching or contacting the child or the mother.

    4.That the Paternal Grandmother be restrained from approaching any school attended by the child from time to time or any place at which the child attends a regular activity.

    5.        That all outstanding interim applications are dismissed.

    6.        That the application for expedition is refused.

    7.That the matter be placed in the Final Hearing list and the parties will be advised by the Registry of a first day of Less Adversarial Trial in the future.

13. The paternal grandmother did not file a Review Application.

14. On 4 April 2022, I made directions for the parties, which were then the mother, the paternal grandmother and ICL, to prepare a joint chronology and a list of issues with the matter listed for directions before me on 19 May 2022.

15. The paternal grandmother did not comply with the directions.

16. The paternal grandmother did not appear on 19 May 2022. 

17. On 19 May 2022, I made the following orders and directions:

    1.I stand this matter over to 9.30 am on Friday, 10 June 2022 via Teams link.

    2.The respondent mother is to file and serve on or before Friday, 27 May 2022 any Amended Response and affidavit she wishes to rely upon.

    3.In the event that there is no appearance by the applicant on 10 June 2022 the court will deal with the respondent’s Response on an undefended basis.

18. When the matter was called before me on 10 June 2022, the paternal grandmother did not appear. The matter was called three times outside the courtroom and there was no appearance by the paternal grandmother.

19. The paternal grandmother had emailed the Court on 10 June 2022 at 8.16 am. The email did not seek an adjournment nor did it say that the paternal grandmother would not appear.

20. I am satisfied that the paternal grandmother had been given notice of the listing on 10 June 2022 and that it was appropriate that the matter proceed in her absence.

21. Section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) sets out the overarching purpose of the family law practice and procedure provisions. Section 67(1) and (2) provide as follows:

    67.      Overarching purpose of family law practice and procedure provisions

    (1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

    (a)       according to law; and

    (b)       as quickly, inexpensively and efficiently as possible.

    Note 1:           See also paragraphs 5(a) and (b).

    Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.

    (2)Without limiting subsection (1), the overarching purpose includes the following objectives:

    (a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);

    (b)the efficient use of the judicial and administrative resources available for the purposes of the Court;

    (c)the efficient disposal of the Court’s overall caseload;

    (d)the disposal of all proceedings in a timely manner;

    (e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

1. Section 68 of the FCFCOA Act identifies that the parties are to act consistently with the overarching purpose:

   68.      Parties to act consistently with the overarching purpose

   (1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

2. Pursuant to s 69 of the FCFCOA Act, the Court has power to give directions about practice and procedure:

   69 Power of the Federal Circuit and Family Court of Australia (Division 1) to give directions about practice and procedure in a civil proceeding

   (1) The Federal Circuit and Family Court of Australia (Division 1) or a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of a civil proceeding, before the Court.

   (2)       Without limiting subsection (1), a direction may:

   (a)       require things to be done; or

   (b) set time limits for the doing of anything, or the completion of any part of the proceeding; or

   (c) limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or

   (d)       provide for submissions to be made in writing; or

   (e)       limit the length of submissions (whether written or oral); or

   (f) waive or vary any provision of the Rules of Court in their application to the proceeding; or

   (g)       revoke or vary an earlier direction.

   (3) If a party fails to comply with a direction given by the Federal Circuit and Family Court of Australia (Division 1) or a Judge under subsection (1), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.

   (4) In particular, the Federal Circuit and Family Court of Australia (Division 1) or Judge may do any of the following:

   (a)       dismiss the proceeding in whole or in part;

   (b) strike out, amend or limit any part of a party’s claim or defence;

   (c)       disallow or reject any evidence;

   (d)       award costs against a party;

   (e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.  

3. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provide for dismissal of an application in the circumstances of non-compliance. In that respect, Pt 10.6 provides:

   10.25   Application of Part 10.6

   Nothing in this Part is intended to limit the court’s powers in relation to contempt or sanctions for failure to comply with an order.

   10.26 When a party is in default

   (1) For the purposes of rule 10.27, an applicant is in default if the applicant fails to:

   (a)       comply with an order of the court in the proceeding; or

   (b) file and serve a document required under these Rules; or

   (c)       produce a document as required by Division 6.2.2; or

   (d) do any act required to be done by these Rules; or

   (e)       prosecute the proceeding with due diligence.

   (2) For the purposes of rule 10.27, a respondent is in default if the respondent fails to:

   (a) give an address for service before the time for the respondent to give an address has expired; or

   (b)file a response before the time for the respondent to file a response has expired; or

   (c) comply with an order of the court in the proceeding; or

   (d) file and serve a document required under these Rules; or

   (e) produce a document as required by Division 6.2.2; or

   (f) do any act required to be done by these Rules; or

   (g) defend the proceeding with due diligence; or

   (h) prosecute with due diligence any application the respondent has made in the proceeding.

   10.27   Orders on default

   (1)       If an applicant is in default, the court may order that:

   (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

   (b) a step in the proceeding be taken within the time limited in the order; or

   (c) if the applicant does not take a step in the time referred to in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

   (2)       If a respondent is in default, the court may:

   (a) order that a step in the proceeding be taken within the time limited in the order; or

   (b) give judgment or make any other order against the respondent; or

4. As stated earlier, the paternal grandmother sent an email to the Court at 8.16 am on 10 June 2022. Ignoring the pejorative comments throughout much of it, she says in the last two paragraphs:

   Shortly after my Interim Hearing in August 2021 all files on my Commonwealth Courts Portal were deleted and when I complained about all files being deleted I was then locked out of the Court Portal, I twice complained about this but I was not given access to the portal.

   I was unable to as much as file my information / proof of [Ms Picton’s] guilt. I was denied any form of justice.

5. Notwithstanding what is recorded in those paragraphs, there is no explanation provided as to why she has not appeared on two occasions or for that matter complied with my directions by emailing the documents required in my directions of 4 April 2022 to the other parties. I am satisfied that the paternal grandmother has failed to comply with the overarching purpose of the family law practice and procedure and is in default of the obligations imposed by the Rules. In those circumstances, I dismiss her Application filed 23 September 2019.

6. The mother seeks orders as set out in her Amended Response filed 27 May 2022 as follows:

   1.That the Paternal Grandmother spend no time with the child [X] born [..].] 2009 (“the child”).

   2.That the Paternal Grandmother be restrained from approaching or contacting the child or the mother.

   3.That the Paternal Grandmother be restrained from approaching any school attended by the child from time to time or any place at which the child attends a regular activity.

7. The mother’s solicitor advised the Court that the paternal grandmother was served with the Response on 27 May 2022. I am satisfied that the paternal grandmother has notice of the orders sought by the mother and that if she did not appear today the matter would proceed on an undefended basis. The orders that are sought are in essence a continuation of the interim orders made 2 December 2021.

8. In relation to the orders sought against the paternal grandmother, I have had regard to the matters I have referred to earlier as well as noting the following matters arising out of McClelland DCJ’s judgment, where his Honour records:

   14.Her Honour found that neither the father nor the paternal grandmother are capable of shielding the child from the parental conflict. At [277]–[280], Rees J stated:

   The paternal grandmother has demonstrated no concern with breaching court orders. To the contrary, she was adamant that such breaches as had occurred were required in [X’s] interests.

   I cannot be satisfied that the paternal grandmother is capable of shielding [X] from her unrelenting negative views of the mother. It was the evidence of the Family Consultant in 2014 that [X] had been exposed to the paternal grandmother’s views of the mother.

   In addition, [Dr H] expressed in her report, outlined later in these reasons, that “Far from shielding the child from their acrimony, there is every indication [the father and paternal grandmother] denigrate the mother to the child and attempt to align him with them against her.” 

   I do not accept that this circumstance would change if orders are made for [X] to resume spending supervised time with his father. The orders which have been made in these proceedings, which would have had the effect of shielding [X] from his paternal grandmother’s attitudes towards his mother, have been disregarded by the paternal grandmother and I am unable to assume that any other order which could be crafted would be any more effective.

   (Citations omitted)

   …

   24.In her judgment, Rees J noted at [112] and from [126]–[127] that the child had personal challenges which impacted upon his ability to regulate his behaviour. These personal challenges related to the child being diagnosed with ADHD and possibly autism. At various places in her judgment, Rees J referred to evidence from the child’s school that he also experienced learning difficulties. Having regard to those matters, significantly, at [487] of her judgment Rees J stated:

   [The child] is a vulnerable child who has suffered behavioural and educational problems. He needs to have every possible opportunity to grow up and reach his full potential. He cannot achieve that goal if all of his energies are expended on weathering the storms of the conflict between his parents.

   …

   116.Police notes regarding an event which occurred on 10 October 2018 record the following:

   It is quite clear that [the paternal grandmother] and [the father] attending the location and remaining in the location was the cause of the police being called as soon as they arrived.  Due to the distance between [LL Town] and [U Town] in heavy traffic, police were not able to arrive at the premises any sooner, being delayed by an accident on the way to this address.  [The paternal grandmother] and [the father] chose to remain at the location rather than leave when asked to do so by [the mother] and the son [Mr J]. Instead, the parties chose to drive and park the car 20 m down the road, which deliberately inflamed the situation, causing [Mr J] to drive up to them and again asked them to leave the area and causing an explosive argument.

   117.The police notes of the incident also record concerns held by the police that the paternal grandmother was “present and had sat waiting over an hour for police after the victim told her to leave.” The notes further recorded that the father “was at the location on and off but not sighted by police on the day.” The notes record the assessment by police that the paternal grandmother “lied to police about [the father] ever being present at the location initially.”

   118.Police notes of an incident which occurred on 25 December 2018 record police arriving at the premises of the mother, with the paternal grandmother sitting in the car outside the premises. The notes explained that she had attended the premises for the purpose of delivering a present to the child. The notes record that the mother made the complaint to police as a result of the attendance of the paternal grandmother. Police records determined that the paternal grandmother also complained to the police that her grandson Mr J had swerved towards her in his car. As will be discussed, the police subsequently viewed video footage of the incident and found that, although Mr J had crossed double yellow lines to drive his car in proximity to where the grandmother’s car was located, there was no intent to cause injury. The police notes record the paternal grandmother “started ranting about [the mother] and [Mr J] having bipolar and [the child] not being safe to live at the address with [the mother]”. The notes further record the police cautioning the paternal grandmother that her interaction with them was being recorded on police body cameras, with the police having “tried to keep [the paternal grandmother] on track as she was deliberately trying to deflect the reason why she was hanging around and again complained about [Mr J] driving at her and swearing at her.” The notes further record that the paternal grandmother “continued to ramble about bipolar, drugs and [Mr J] driving at her and police needed to remove the child.”

   119.Police notes of an event which occurred on 27 December 2018 record the police attending upon the paternal grandmother. The paternal grandmother showed footage of what she alleged was the Christmas Day of 2018 incident when Mr J had deliberately driven at the paternal grandmother in his car. Having watched the video recording, police formed the view that Mr J had committed a traffic offence by crossing double yellow lines but that it did not appear that “it was done with the intention of causing harm”. The notes record that the police invited the paternal grandmother to make a complaint regarding Mr J committing a traffic offence and that the paternal grandmother “refused to do so unless she was going to be getting an apprehended violence order”. The notes record the father “became abusive towards police, making threats to go to the Commissioner of police and media because that’s what their lawyer had advised them following the incident on Christmas Day 2018 at U Town.”

   120.Police notes of an event that occurred on 23 May 2019 record the mother complaining about the paternal grandmother attending AG School to visit the child. Police notes describe the incident as occurring at approximately 9:00 am on that day as follows:

   the grandmother approached [the child] and handed him some presents and cash as she has not been allowed to see him for a number of years.  The grandmother asked [the child] where they were living, [the child] refused to answer and became distressed.  Teachers from the school recognised this and requested the grandmother leave to which she complied.  The principal contacted the mother and advised of the incident, in turn due to family court orders the mother contacted police. Police from [CC Town] failed to attend the school and the job was disseminated to the job to [AJ Town] police.  Shortly after police attended the home address of the mother and [the child] and was supplied with the version above.  Police spoke to the principal who advised she would issue the grandmother with a banning notice to which police agreed.

   121.The police notes are confirmed in a letter from the Principal of AG School to the paternal Grandmother dated 23 May 2019: see page 20 of ICL’s tender bundle (Exhibit “A”).

9. I have also had regard to the Child Inclusive Memorandum dated 27 July 2021 and, in particular, include herein paragraphs 23-27:

   23.[X] (aged 12 years) has reportedly been diagnosed with ADHD and Autism Spectrum Disorder (stage 1). He is in a mainstream class at school.

   24.The mother informed the Family Consultant that [X] was somewhat displeased about being interviewed as he has already spoken with the ICL and some other people and told them his views.

   25.[X] presented as a polite, but quiet and somewhat serious young boy (his presentation seemed consistent with his diagnosis of ASD), although he was observed to laugh and smile appropriately at various points during the interview. Interview with [X] was brief because he spoke little, and he also confirmed that he had already spoken with the ICL and told her that he does not wish to see his father.

   26.[X] said that he likes school and particularly likes art and library classes. He said he has one really good friend at school. Outside of school he said that he likes playing video games […].

   27.[X] described a close and loving relationship with his mother. He said that she is nice and cares about him and he could not identify any difficulties in their relationship or anything he disliked about his mother. 

   THE LAW

10. Section 64B of the Family Law Act 1975 (Cth) (“the Act”) sets out what is a parenting order. I am satisfied that the order that the mother seeks, namely that the child spend no time with the paternal grandmother, is an order within the description of s 64B(2)(b).

11. The objects of the Act are set out in s 60B. Those objects are as follows:

    60B      Objects of Part and principles underlying it

    (1) The objects of this Part are to ensure that the best interests of children are met by:

    (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b) 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); and

    (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d) parents should agree about the future parenting of their children; and

    (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

    (3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

    (a)       to maintain a connection with that culture; and

    (b) to have the support, opportunity and encouragement necessary:

    (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

    (ii) to develop a positive appreciation of that culture.

    (4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

    Note: The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (

12. Section 60B(2)(b) deals with the right of a child to spend time on a regular basis with people who are significant to their care, welfare and development such as grandparents. Such right, however, is subject to the child’s overall best interests.

13. Section 60CA of the Act provides that in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. Section 60CC sets out the list of matters that the Court must have regard to in determining what is in a child’s best interests. Not all of the provisions are relevant to grandparents. So, for example, in addressing the primary considerations, whilst s 60CC(2)(a) relates to the meaningful relationship between children and their parents, s 60CC(2)(b) is much wider and talks about the need to protect the child from being subjected to harm.

14. Section 60CC(3) sets out the additional considerations in determining what is in the child’s best interests. Again, not all of the subsections are relevant in determining this particular matter. So, for example, s 60CC(3)(c), (e), (g) and (i) do not have application, being parts that specifically relate to a parent. That said, I recognise what the Full Court in Malcolm & Monroe (2011) FLC 93-460 observed:

    97. In summary, to the extent that it is asserted that some of the considerations listed in s 60CC of the Act precludes consideration of those factors in relation to persons other than a parent, for the reasons outlined above by the respective Full Courts in Mulvaney & Lane and Aldridge & Keaton, this assertion or submission is rejected. Even if the literal interpretation of the s 60CC factors which specifically refer to “parents” … must only relate to parents (in the strict sense) a submission that we do not accept, s 60CC(3)(m) would permit and, indeed, almost require a consideration of the matters set out above in relation to persons who are other than parents.

    98. The paramount consideration before the Federal Magistrate was determining what orders could be made in the best interests of the L. This in turn meant that he was to give consideration to the relevant s 60CC factors in relation to all of the relevant people in her life. We are satisfied that he did so.

1. I have read all of the documents relied upon and accept the mother’s evidence.

2. I am satisfied based on the mother’s evidence and the earlier findings of Rees J and McClelland DCJ that the mother has been subjected to demeaning and denigrating conduct and family violence perpetrated by the paternal grandmother over a long period of time. This has taken the form of physical assaults, verbal and emotional abuse, as well as conduct and behaviour which is disrespectful and has had no regard or respect for her role as a primary carer of X. My findings are reinforced by the content of the paternal grandmother’s affidavit and her email to the Court demonstrating her continuing unrelenting criticism of the mother. I note in particular, the findings of McClelland DCJ, that in 2019 the paternal grandmother visited the child while he was in the playground at school and that the school reported that this caused him distress, as well as Rees J’s finding that the paternal grandmother demonstrated no concern with breaching court orders and that she was incapable of shielding X from her unrelenting negative views of the mother.

3. Whilst ordinarily it is in the best interests of a child to maintain a relationship with as many persons as possible who love the child and have an interest in the welfare of the child, in particular grandparents, that is only appropriate where it aligns with the child’s best interests. 

4. This is one of those cases where the high degree of conflict and the conduct of the paternal grandmother to the mother over a long period of time, both undermine her parenting capacity and must undoubtedly be stressful to the child.

5. I am comfortably satisfied based on the mother’s evidence, the grandmother’s evidence, and the findings of Rees J and McClelland DCJ, that any contact between the paternal grandmother and X would expose him to an unacceptable risk of harm. It would only serve to undermine his relationship with his mother and upset and distress his mother. Any contact between X and his paternal grandmother would be contrary to his best interests.

6. I have considered each of the relevant s 60CC(3) considerations. I find that the risk posed by being exposed to the paternal grandmother is one that is unacceptable. There is no matter on the material before me that provides any foundation for the proposition that it is in the best interests of X to have any contact with her, no matter how fleeting.

7. This pernicious and insidious conduct must stop. The mother should be free and uninhibited in her parenting of X to the maximum extent possible provided by the law, and X should be free to spend the remainder of his childhood, to the extent possible, protected from such behaviour.

8. As a necessary adjunct, I regard it as consistent with X’s best interests that that X be protected from further conflict by the restraining orders as proposed and in those circumstances, I will make the orders as sought by the mother.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       30 June 2022