FARRAND & MAHDI - [2020] FamCA 875

FAMILY COURT OF AUSTRALIA

FARRAND & MAHDI

[2020] FamCA 875

FAMILY LAW – CHILDREN – With whom a child spends time – Where the maternal grandmother has made an application for monthly time with the children – Where the children have been living with their father and have spent no time with the maternal grandmother for two years – Where the children’s mother is deceased – Where, following the mother’s death, the maternal grandmother made numerous allegations to the coroner and the police that the father was involved in the mother’s death – Where the maternal grandmother’s negative views of the father pre-dates the mother’s death – Where the maternal grandmother does not have the emotional capacity to protect the children from her negative views of the father – Where the father has not alienated the children against the maternal grandmother – Where it is likely that the father’s major depressive illness would recur if the children were to resume contact with the maternal grandmother – Where there is a complete lack of trust between the parties – Where the risk posed by the maternal grandmother cannot be ameliorated by supervision – Where the maternal grandmother will be restrained from contacting the children but will be permitted to send gifts and cards to the children on special occasions, with the father to be at liberty to vet them – Where the maternal grandmother’s application is dismissed.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
M & M (1988) 166 CLR 69

APPLICANT:

Ms Farrand

RESPONDENT:

Mr Mahdi

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

11658

2018

DATE DELIVERED:

16 October 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

10, 11 & 14 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Zufic

SOLICITOR FOR THE APPLICANT:

L & S Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Brasch QC

SOLICITOR FOR THE RESPONDENT:

Murdoch Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Order

All previous parenting Orders be discharged.
The Amended Application (as further amended with leave) filed by the applicant maternal grandmother, Ms Farrand, on 13 August 2020 be dismissed.
The maternal grandmother be restrained and an injunction hereby issues restraining the maternal grandmother from contacting or attempting to contact or to communicate with X born … 2011 and Y born … 2012 (“the children”) other than as provided by this Order.
The maternal grandmother be restrained and an injunction hereby issues restraining the maternal grandmother from contacting or attending any school at which the children attend, any outside of school hours care provider, and any medical and allied health practitioner on whom the children attend for treatment, about the children.
The maternal grandmother be restrained and an injunction hereby issues restraining the maternal grandmother from contacting or attempting to contact or to communicate with the respondent father, Mr Mahdi other than as provided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: FARRAND & MAHDI [2020] FamCA 875
Case: [2020] FamCA 875
Decision Date: 16 October 2020

CaseChat Overview and Summary

In the Family Court of Australia, Justice Carew considered an application by a maternal grandmother, Ms Farrand, for monthly time with her grandchildren, X and Y. The children had been living with their father, Mr Mahdi, and had not spent time with their grandmother for two years following the death of their mother. The dispute was significantly complicated by allegations made by the grandmother to the coroner and police concerning the father's involvement in the mother's death, allegations which the court noted predated the mother's passing.

The central legal issues before the court were whether it was in the children's best interests to resume spending time with their maternal grandmother, and if so, what orders would best protect the children and facilitate a positive relationship. The court was required to assess the impact of the grandmother's negative views of the father on the children, the father's capacity to protect the children from these views, and the potential for the father's mental health to be adversely affected by a resumption of contact.

Justice Carew reasoned that the maternal grandmother lacked the emotional capacity to shield the children from her deeply held negative views of the father, which posed a risk to the children's well-being. The court found that the father had not engaged in parental alienation and that the risk posed by the grandmother could not be mitigated through supervision. Furthermore, the court considered that a recurrence of the father's major depressive illness was likely if the children were to resume contact with the grandmother, given the complete lack of trust between the parties.

Consequently, the court dismissed the maternal grandmother's application for monthly time with the children. The orders made restrained the grandmother from contacting or communicating with the children, except for the liberty to send gifts and cards on special occasions, which the father was permitted to vet. The father was also ordered to provide an annual written update on the children's welfare to the grandmother.

Orders

Orders of the court

Order

1. All previous parenting Orders be discharged.

2. The Amended Application (as further amended with leave) filed by the applicant maternal grandmother, Ms Farrand, on 13 August 2020 be dismissed.

3. The maternal grandmother be restrained and an injunction hereby issues restraining the maternal grandmother from contacting or attempting to contact or to communicate with X born … 2011 and Y born … 2012 (“the children”) other than as provided by this Order.

4. The maternal grandmother be restrained and an injunction hereby issues restraining the maternal grandmother from contacting or attending any school at which the children attend, any outside of school hours care provider, and any medical and allied health practitioner on whom the children attend for treatment, about the children.

5. The maternal grandmother be restrained and an injunction hereby issues restraining the maternal grandmother from contacting or attempting to contact or to communicate with the respondent father, Mr Mahdi other than as provided by this Order.

6. The maternal grandmother be at liberty to post to each of the children a gift and a card on each of their birthdays, and at Christmas and Easter each year by posting same to the father’s address with the father to be at liberty to vet any gift or card received.

7. The father shall provide to the maternal grandmother a written update about the children’s welfare including a recent photograph of each child on one occasion each year commencing in 2021.

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

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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