Grafton & Gorecki

Case [2023] FedCFamC1F 452

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Grafton & Gorecki [2023] FedCFamC1F 452

File number(s): SYC 8351 of 2016
Judgment of: CAREW J
Date of judgment: 29 June 2023 
Catchwords:  FAMILY LAW – PARENTING – Order for sole parental responsibility to the father in circumstances where the father is less likely to place the burden of parenting decisions onto the children – Where there is likely to be a continuing risk posed by the mother of emotional and psychological harm to the children by inappropriately involving them in parenting decisions and in the conflict more generally – Where on balance an order for equal time, week about is in the children’s best interests -  Where such an arrangement is more likely to reduce the risk posed by the mother, both parties seek an order for equal time in relation to at least the two youngest children, the children have historically spent close to equal time in each household, and the independent children’s lawyer supports the arrangement -  Where the mother is restrained from relocating the children’s residence further than 15 kilometres from Suburb C Post Office – Where the mother is restrained from attending at medical or other allied health appointments for the children so as to remove the children from exposure to a source of potential conflict  
Legislation:

Evidence Act 1995 (Cth) ss 140

Family Law Act 1975 (Cth) ss 4, 4AB, 43, 65D, 64B, 60B(1), 60B(2), 60CA, 60CC, 60CG, 61C, 65DAC

Cases cited:

Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Eastley & Eastley [2022] FedCF1A 101

Isles and Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92–655

Number of paragraphs: 146
Date of hearing: 8 - 10 May 2023
Place: Heard in Sydney, delivered in Brisbane
Counsel for the Applicant: Ms Seric
Solicitor for the Applicant: Nolan Lawyers
The Respondent: Litigant in person
Counsel for the Independent Children’s Lawyer: Ms Rebehy
Solicitor for the Independent Children’s Lawyer: JLM Family Lawyers Pty Ltd

ORDER

SYC 8351 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GORECKI

Applicant
AND:

MS GRAFTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAREW J

DATE OF ORDER:

29 JUNE 2023

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

Parental responsibility

2.The father have sole parental responsibility for making decisions with respect to major long term issues as defined by s 4 of the Family Law Act 1975 (Cth) pertaining to the care, welfare and development of the four children of the marriage, namely:

(a)W born 2008;

(b)X born 2010;

(c)Y born 2012; and

(d)Z born 2012,

(“the children”).

3.In the exercise of his sole parental responsibility:

(a)the father shall notify the mother of the decision to be made and invite the mother’s input who may provide her input in a message to the father sent…

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Details
AGLC
Grafton & Gorecki [2023] FedCFamC1F 452
Case
[2023] FedCFamC1F 452
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Grafton & Gorecki was heard, addressing the dispute between the father and the mother regarding the care and living arrangements of their four children, W, X, and twins Y and Z. The father, who has recently been diagnosed with ADHD and another medical condition, sought a change in the children's living arrangements, arguing that the current setup was causing emotional and psychological harm, particularly to X, who had stopped spending time with him altogether. The mother, diagnosed with her own medical condition, proposed that the children should have the autonomy to choose their living arrangements by the time they turn 15 years of age.

The court was tasked with determining the appropriate living arrangements for the children that would best serve their interests, considering the parents' health conditions, the children's well-being, and the impact of the current arrangement on their mental health and social life. The court also had to consider whether the children should attend specific schools as per the mother's proposal and the overall configuration of the equal time or time with each parent arrangement for the children.

After reviewing the evidence and submissions from both parties, the court found that while it might be ideal to allow the children to choose their living arrangements as they grow older, doing so at this juncture could potentially cause more harm than good. The court recognised the risk of emotional and psychological harm to the children, particularly X, if they were to be involved in making such significant decisions prematurely. The court opted for a week-about arrangement with changeovers on Fridays, ensuring the children spend equal time with each parent, to provide stability and reduce the risk posed by the mother's involvement in the conflict. This arrangement also aligns with the Independent Children's Lawyer's recommendation and the parents' desire for an equal time arrangement. The court did not find sufficient grounds to order the children to attend particular schools as per the mother's proposal.

Orders

Orders of the court

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Background

Background to the litigation

The father is legally represented and his costs notice discloses that his legal costs are estimated to be about $183,000 including the costs for the trial. The father consents to paying his share of legal costs incurred by the ICL in the sum of $5,214 within 60 days. BACKGROUND As earlier noted the father and mother were in a de facto relationship from 2002 until 2016. They remained living under the same roof until 2017. The father has since married. Ms K is 48 years of age and employed full-time as a manager for L Organisation. The father and Ms K married in 2019. By all accounts the children have a close and loving relationship with Ms K. The father is 48 years of age. He was born in Country M and immigrated to Australia in 1981. He is a project manager by occupation and operates a business. The father was recently diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and another medical condition. There is no evidence as to what impact, if any, these conditions have on his daily life. The mother is 45 years of age. She is a qualified educator currently working pursuant to a temporary part-time contract in Suburb N, Sydney and also at other locations when available in a casual capacity, whilst also operating a short-term rental for a property owned by her in Suburb D, New South Wales. The mother has recently been diagnosed with a medical condition. There is no evidence as to what impact, if any, this condition has on her daily life. Both parties reside in an inner west suburb of Sydney near the Suburb C Post Office. These proceedings relate to the care of four children, namely, W born 2008, X born 2010, and twins, Y and Z born 2012. Until recently, all of the children were living with their parents in a shared care arrangement (six nights with the father and eight nights with the mother in each fortnight) such that they spent every Tuesday night and alternate weekends from Friday to Tuesday at their father’s home. This arrangement reflected a final order made by consent on 9 January 2018, and which also provided for the parents to have equal shared parental responsibility. Notwithstanding the order, X has not spent any time with the father since March 2023, except for a brief visit in April 2023 and for a medical appointment in April 2023. Currently, X is very much isolated. She is not attending school. She is not attending her extracurricular activities. She is not spending time with friends. She is not spending time with her siblings when they are living with the father. X’s mental health appears to be deteriorating, at least according to the mother. In mid-2018, the mother utilised the proceeds of her property settlement with the father to purchase a property in Suburb D, a one and a half to two hour drive from the suburb where both parents were then living (and continue to live). Despite the mother’s contention, during the trial, that it had never been her intention to relocate with the children to Suburb D, the evidence overwhelmingly establishes otherwise.[3] Indeed in the mother’s own trial affidavit she deposes that on 20 December 2019 at 9:20am she sent an email to the father “giving notice that I would need to move to the [Suburb D] residence with the children. I considered the distance was not ideal, but it was commutable and didn’t necessitate a change in time in care orders, though one could be considered if in the children’s best interests”. The email to which the mother refers informed the father of her intention to relocate to her Suburb D residence “as soon as possible” and expressed her concerns with the children’s then current school, R School and suggested that a change of school was necessary, and proposed one in Suburb D as well as S School. [3] For example: Email from the mother to the father dated 31 January 2019 in which she stated “I just wanted to let you know that I plan to move up to [Suburb D] around the start of April.”; Exhibit 13 is notes from P Psychology Ms Q, which include, “[…] Mother informed [Ms Q] that the father had started legal action to stop her from moving the kids to [Suburb D]”, “[…] spending every weekend with the mother in [Suburb D] which [W] described as a bit far away” (at that time, X described them having “three houses” and W complained about all four children living in the same room at the mother’s Sydney residence); Exhibit 22 is an email from the mother to the father dated 28 January 2020 referring to the delay in enrolling the children in S School because her then residential address in Sydney was not her permanent residential address.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The mother submits that children should be able to choose what their living arrangements are by the time they turn 15 years of age. Conclusion – children’s time with each parent The mother’s proposal directly empowers W and X (and Y and Z when they turn 15) to make the decision about what time they spend with the father. W is 15 years of age and in normal circumstances it might be accepted that his wishes should be given considerable weight. W currently lives with the father six nights per fortnight in a split week arrangement. The parties declined to obtain an updated family report at their cost so there is no independent evidence of W’s wishes. However, there is no evidence that W wants to reduce the time he currently spends with the father. Although somewhat dated, I note that W told the family report writer that he likes the time he spends with the father and that his home tends to be “calmer and more relaxed”. Further, W said there was “nothing he dislikes about being with his father”. There is no suggestion that W will do other than what is required in terms of any order made. X is 13 years of age and as she is not currently spending any time with the father it would seem that if an order is not made for her to do so, then it will not occur. Certainly removing mid-week changeovers would provide greater clarity and stability, and having changeovers on Fridays would mean that the children then have the weekend to settle in. I am satisfied that the father will ensure the children’s attendance at required appointments and activities and do not see what the mother says is a need for her to take the children to appointments and activities, as sufficient reason for the split weeks to continue. Given the history of conflict it may seem counterintuitive to order a week about or otherwise equal time arrangement. Both parents nevertheless seek an equal time arrangement (at least in relation to Y and Z). I accept that there is likely to be a continuing risk posed by the mother of emotional and psychological harm to the children by inappropriately involving them in parenting decisions and in the conflict more generally. Accordingly, I must be satisfied that any order I make will not increase that risk. I accept the submission made on behalf of the father, that to significantly reduce the mother’s time with the children, particularly with the older two children, may cause them to feel guilty or worried about the mother or to feel sorry for her. It may also cause the mother to feel resentful and exacerbate any risk. In my view, while it may seem counterintuitive, I consider that, on balance, the best interests of the children will be met by an equal time week about arrangement with changeovers on Fridays. In summary, such an arrangement is more likely to reduce the risk posed by the mother; both parties seek an order for equal time (at least for the younger two children); and all four children have historically spent close to equal time with each parent. I further note that such an arrangement is recommended by the ICL. SHOULD AN ORDER BE MADE FOR THE CHILDREN TO ATTEND PARTICULAR SCHOOLS?

Ratio Decidendi

Legal Principle Established

The fact is that since the mother empowered X to choose when she spent time with her father, she has not in fact seen him and her condition seems to have deteriorated alarmingly, if the mother is to be believed. I am reminded of the warning given by the family report writer, namely, that if a child is inappropriately empowered that may cause stress for the child because they are developmentally ill-equipped to manage that level of decision making. A different approach is required. WHAT CONFIGURATION OF EQUAL TIME OR TIME WITH EACH PARENT FOR SOME OR ALL OF THE CHILDREN SHOULD OCCUR? In relation to Y and Z, both parents agree that during school term they should live with each parent on an equal time basis but they disagree about the configuration of that time. The mother submits that until Y and Z turn 15 they should live with the father from after school Monday until before school Wednesday in week one and from after school Friday to before school Wednesday in week two, and with her at all other times. In relation to W (who is already 15), and when Y and Z turn 15, the mother submits that the children should live with the father each alternate weekend and that any time during the week with either parent should occur in accordance with their wishes. In relation to X, the mother contends that she should live with her and spend time with the father in accordance with her wishes. The father submits that all four children should live in a week about arrangement. The father’s submissions The father contends that the mother’s conduct has at times been unreasonable and demonstrates an “unhealthy enmeshment” of her own needs with those of the children. An order that leaves the decision of when W, and Y and Z (when they turn 15) see the father (other than on alternate weekends) and entirely leaves the decision of when X sees the father, is simply not going to work, as demonstrated by the fact that X is not currently seeing the father at all. Such an order would also continue to put further unnecessary pressure on the children. The father contends that the continued splitting of weeks as proposed by the mother is unnecessarily disruptive for the children and that living arrangements would be far simpler for the children if they spent each alternate week with each parent (including during most mid-year school holiday periods) with changeovers on Fridays. There would be no room for confusion. It would provide a stable and consistent routine. The father contends that he has taken X’s reported wish to primarily live in one environment into account but expresses concern about what he perceives to be pressure placed upon her by the mother in expressing a preference to live primarily with the mother. The father also contends that in his view it is not wise to separate the siblings and points to the apparent deterioration in X’s condition after ceasing to spend any time with him. It seems from the questions put to the father during cross-examination by the mother, that the factors precipitating X’s apparent preference to live primarily with the mother were that the mother could take her to sport on Monday nights (and the father agreed to X then staying overnight with the mother) and, that Y and X were to share a bedroom at the father’s home whereas previously Y had shared with Z and X had had her own room. The mother described the sharing of bedrooms as “[X] had to share her space with somebody for the first time in a long time”. I considered that to be an odd phrase to use given that Y was not just “somebody” but X’s little sister. The mother pointed to this “correlation” between the commencement of X wanting to spend more time with her mother and having to share a bedroom. The mother describes X feeling “uncomfortable” about the arrangement.