FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cornish & Gilholm [2021] FedCFamC1F 208
File number(s): MLC 12534 of 2019 Judgment of: MCEVOY J Date of judgment: 19 November 2021 Catchwords: FAMILY LAW – CHILDREN – Parental responsibility – With whom the child lives – Role of grandparents – Where the father alleges that the grandmother has subjected the child to emotional harm and seeks sole parental responsibility and for the child to live with him – Where the maternal grandmother seeks equal shared responsibility parental between herself and the father and for the child to live with her – Where the mother seeks equal shared responsibility between the three parties and for limited time with the child, initially supervised by the grandmother – Where the ICL supports the grandmother’s position – Where there has been significant involvement of child protective services – Where the child was removed from the care of the mother when he was about 7 months old and placed with the grandmother – Where the father had limited involvement with the child for the first three years of his life – Where the child was removed from the grandmother’s care and placed with the father when he about 3 years old – Where the mother and the grandmother allege the child has been neglected in the father’s care and this is denied by the father – Where the evidence from the child’s school and his treating medical practitioners raise no concerns and suggest the child is progressing well – Where it is found that the grandmother has subjected the child to emotional harm and that it is in the best interests of the child for the father to have sole parental responsibility, subject to an obligation to consult the mother and the grandmother, and for the child to live with him and spend four nights a fortnight with the grandmother and supervised time with the mother, moving to unsupervised time pending her engagement with mental health professionals and drug testing – Orders made substantially in the terms sought by the father. Legislation: Children Youth and Families Act 2005 (Vic), s.331
Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), s 4AB, Part VII, s 60B, s 60CA, s 60CC, Division 6 of Part VII, s 65C, 65DAC,
s 61C, s 61DA, s 64B, s 65D, s 65DAA, s 65DAB,
s 65DAC
Cases cited: A v A (1998) FLC 92-800
Aldridge & Keaton (2009) FLC 93-421
Banks & Banks (2015) FLC 93-637
Blakey & Blakey [2020] FamCA 647
Blann & Kenny [2021] FamCA 322
Blann & Kenny [2021] FamCAFC 161
Briginshaw v Briginshaw (1938) 60 CLR 336
Burton & Churchin (2013) FLC 93-561
Cimorelli & Wenlack [2020] FamCAFC 58
D & F [2001] FamCA 382
Donaghey & Donaghey (2011) 45 Fam LR 183
Donaldson & Ryder [2017] FamCA 920
Donnell & Dovey (2010) FLC 93-428
Guerra & Guerra [2021] FedCFamC1F 73
Hardie & Capris [2010] FamCA 1046
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- AGLC
- Cornish & Gilholm [2021] FedCFamC1F 208
- Case
- [2021] FedCFamC1F 208
- Decision Date
CaseChat Overview and Summary
The case of Cornish & Gilholm involved a dispute between the child's father, grandmother, and mother regarding the care arrangements for the child. The Children's Court of Victoria was tasked with determining the best living arrangements for the child, considering the evidence presented by all parties involved. The central legal issues revolved around the suitability of each party to care for the child and the potential risks of abuse and neglect posed by each party.
The court examined the evidence provided by the father, who was deemed honest and committed to the child's well-being, despite his conflict-avoidant nature. The grandmother was portrayed as resolute and committed to the child's care but was also forceful and potentially obstructive to the father's role in the child's life. The mother's involvement was limited, and her suitability to care for the child was not fully assessed. The court had to weigh these factors against the child's best interests, considering the emotional harm caused by the grandmother's conduct and the potential for the father to become marginalised if the child were to live with the grandmother.
After careful consideration, the court concluded that the father should have sole parental responsibility for the child, with an obligation to consult with the mother and grandmother on major decisions. The child was to live primarily with the father but spend four nights per fortnight with the grandmother and have supervised time with the mother. These arrangements were based on the father's proposal, the child's apparent well-being under the father's care, and the risk of the father becoming marginalised if the child lived with the grandmother. The court also noted that the mother could transition to unsupervised visits if she met certain conditions.
The court's final orders reflected these findings, granting the father sole parental responsibility and establishing a detailed schedule for the child's time with each party. The grandmother and mother were also required to comply with specific conditions to facilitate the child's relationship with the father and to ensure the child's safety and well-being.
The court examined the evidence provided by the father, who was deemed honest and committed to the child's well-being, despite his conflict-avoidant nature. The grandmother was portrayed as resolute and committed to the child's care but was also forceful and potentially obstructive to the father's role in the child's life. The mother's involvement was limited, and her suitability to care for the child was not fully assessed. The court had to weigh these factors against the child's best interests, considering the emotional harm caused by the grandmother's conduct and the potential for the father to become marginalised if the child were to live with the grandmother.
After careful consideration, the court concluded that the father should have sole parental responsibility for the child, with an obligation to consult with the mother and grandmother on major decisions. The child was to live primarily with the father but spend four nights per fortnight with the grandmother and have supervised time with the mother. These arrangements were based on the father's proposal, the child's apparent well-being under the father's care, and the risk of the father becoming marginalised if the child lived with the grandmother. The court also noted that the mother could transition to unsupervised visits if she met certain conditions.
The court's final orders reflected these findings, granting the father sole parental responsibility and establishing a detailed schedule for the child's time with each party. The grandmother and mother were also required to comply with specific conditions to facilitate the child's relationship with the father and to ensure the child's safety and well-being.
Orders
Orders of the court
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Background
Background to the litigation
Nonetheless, in the absence of agreement it is necessary for the Court to decide what arrangements are best for the ongoing care of the child, and to do so by reference to findings that are made on the evidence about the suitability of the parties to discharge particular roles. For the reasons that follow I have concluded that the grandmother’s conduct has caused emotional harm to the child. In all the circumstances I have formed the view that the father should have sole parental responsibility for the child, subject to an obligation to consult with the mother and the grandmother in relation to major long-term decisions. I have also concluded that the child should live with the father, but spend four nights per fortnight with the grandmother and supervised time with the mother. This is as the father proposes. The child’s time with the mother can move to unsupervised time, subject to her compliance with conditions. As will be seen, I have accepted that were the child to live with the grandmother she would be unlikely to promote him having a meaningful relationship with the father, and the father would likely become marginalised in the life of the child. I consider that for this reason, together with the fact that the child appears to be doing reasonably well in his father’s care and has been living with his father for several years, orders broadly in the terms sought by the father, together with some additional orders, should be made. BACKGROUND The child was conceived during a brief relationship between the mother and the father, but they separated prior to his birth. The State Department of Health and Human Services, now renamed the Department of Families, Fairness and Housing (“the Department”), became involved with the child in around February 2015 when the grandmother says that she contacted the Department because she was concerned for the mother and the child.[1] In or about March 2015,[2] an Interim Accommodation Order was made by the Children’s Court, placing the child in the grandmother’s care with neither parent assessed as suitable to care for the child. The father had limited involvement with the child in the first two years of his life, generally having contact with him only for a few hours each week, supervised by the grandmother.[3] [1] Case outline of Ms Roberts filed 28 January 2021 (Grandmother’s case outline); Affidavit of Ms Roberts filed 29 December 2020, paragraph 12 (Grandmother’s trial affidavit). [2] Note there is difference between the parties as to when this occurred: see Affidavit of Mr Cornish filed 18 December 2020, paragraph 12 (Father’s trial affidavit); cf Grandmother’s trial affidavit, paragraph 12-13; Affidavit of Ms Gilholm filed 5 January 2021, paragraph 10 (Mother’s trial affidavit); cf Grandmother’s case outline, p.2. [3] Transcript 1 February 2021, p.22 lines 9-10; Father’s trial affidavit, paragraph 14; Grandmother’s trial affidavit, paragraphs 10 and 14; Mother’s trial affidavit, paragraphs 8-10.
Evidence
Evidence Before The Court
In order to undertake this risk assessment it is necessary to assess the relevant facts – here the allegations of emotional and psychological abuse of the child which the father makes against the grandmother, together with the grandmother’s denials and her version of events more generally, as well as the allegations of neglect pressed by the mother and the grandmother and the father’s denials – and to conduct the fact finding exercise by reference to the civil standards of proof. If the parties’ denials of the allegations made against them are to be rejected, there must be reasons given for doing so: Napier v Hepburn (2006) FLC 93-303 at [79] (Bryant CJ and Kay J, with Warnick J agreeing at [113]); In the Marriage of Blanch (1999) FLC 92-837 at 84,745 (Lindenmeyer J). The assessment of whether there is an unacceptable risk of abuse involves making findings in relation to the allegations which are made and then, on the basis of those findings and giving due attention to all other relevant matters, making a prediction about the level of risk of harm posed to the child in the future. A decision about what is in the best interests of the child can then be made, having regard to the magnitude of the risk and the various matters required to be considered by Part VII of the Act.THE EVIDENCE Each of the parties gave evidence by way of affidavit and was cross examined. In addition to his trial affidavit filed on 18 December 2020 and his affidavit in reply filed 13 January 2021, the father gave evidence in chief and was cross examined on 1 and 2 February 2021 by the grandmother, the mother and counsel for the ICL. Although the father was somewhat nervous when giving his evidence, and at times seemed rather vague, he impressed as generally honest and mild mannered. He was also very conflict avoidant. It was clear that he had learnt to navigate around the mother’s outbursts and manage them, and he appeared to be respectful of her and of her importance in the child’s life as his mother. It was equally clear that the father had struggled to cope with the grandmother’s forceful personality, and that where possible he would avoid going head to head with her; no doubt in the knowledge that he would struggle to prevail in any contest. Nonetheless, the father was respectful of the child’s relationship with the grandmother, and clearly contemplated (and desired) that she remain an important part of the child’s life. Although understated in his presentation, the father demonstrated in giving his evidence and in his approach to the proceedings more generally that he was committed to the child and desirous of doing his best to parent the child as well as he could. Ultimately I regarded the father as a witness of truth, and I have generally been prepared to accept his evidence in relation to particular matters. In addition to her trial affidavit filed on 29 December 2020, the grandmother gave evidence in chief and was cross examined on 4 February 2021 by counsel for the father and counsel for the ICL. It must be said that the grandmother was a formidable person. In conducting her own case she was required to make submissions, cross examine witnesses, including expert witnesses, make objections to evidence, and engage with counsel for the father and counsel for the ICL. It seldom seemed that the grandmother was intimidated by any of this. She was resolute in her position that neither her daughter nor the father had the wherewithal to have the primary care of their child, and that his best interests demanded that he live with her. In one sense it is no doubt to the grandmother’s credit that she has been as committed to the care of the child as she has been, both prior to May 2017 when she was his principal carer, and subsequently when she has continued to play a significant and doubtless important role in caring for him in the face of a difficult dynamic.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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