Grafton & Gorecki (No 2) - [2024] FedCFamC1F 37

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

Grafton & Gorecki (No 2) [2024] FedCFamC1F 37

File number: SYC 8351 of 2016

Judgment of: CAREW J

Date of judgment: 7 February 2024

Catchwords: FAMILY LAW – CHILDREN – Where a final parenting order was made for week about time and the father to have sole parental responsibility – Where one of the children has spent very little time with the father and has remained largely absent from school since the final order – Where the father filed an application for enforcement and the mother filed an application in a proceeding respectively seeking variations to the final parenting order in relation to the child – Where the applications were treated as an initiating application and response to initiating application pursuant to further order – Consideration of the Rice & Asplund principles – Where the mother has systematically flouted the spirit if not the actual terms of the final parenting order – Where provisions of the final parenting order be suspended on a temporary basis and substitute provisions be made in relation to the child’s time with the father.

Legislation:

Family Law Act 1975 (Cth) ss 65D(2), 65DA(2), 62B

Cases cited:

Grafton & Gorecki [2023] FedCFamC1F 452

Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Number of paragraphs: 43

Date of hearing: 14 December 2023

Place: Brisbane

Counsel for the applicant: Ms Dart

Solicitor for the applicant: De Saxe O’Neill Family Lawyers

Counsel for the respondent: Ms Lawson

Solicitor for the respondent: Barker Evans
ORDER

SYC 8351 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GORECKI

Applicant

AND:
MS GRAFTON

Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

7 FEBRUARY 2024

THE COURT ORDERS BY CONSENT THAT:
1.Paragraph 20(b) of the final Order made on 29 June 2023 be discharged from the conclusion of Term 4, 2023.
2.The child, X, born 2010 shall attend G School commencing from Term 1, 2024.
3.Each parent shall do all acts and things necessary to comply with any transition to school, or partial attendance plan developed by G School Suburb C Campus, the Home School Liaison Officer and/or the New South Wales Department of Education in conjunction with X’s treating clinicians.
4.Both parents have leave to provide a copy of the Child Impact Report authored by Ms O and dated 30 November 2023 to:
(a)Any treating medical practitioners and allied health practitioners attended by X from time to time;
(b)Any psychologist or psychiatrist she attends; and
(c)The principal of G School.

5.Both parents shall use their best endeavours to ensure X’s attendance at any meetings requested by School or the New South Wales Department of Education.

IT IS FURTHER ORDERED
Continued operation of the parenting order made on 29 June 2023
6.Other than as provided in this Order, the Order made on 29 June 2023 remains in full force and effect.

Release of the Reasons for Judgment

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.

Continue reading Grafton & Gorecki (No 2)

Details

AGLC: Grafton & Gorecki (No 2) [2024] FedCFamC1F 37
Case: [2024] FedCFamC1F 37
Decision Date: 7 February 2024

CaseChat Overview and Summary

The case of Grafton & Gorecki (No 2) was heard in the Family Court of Australia and involved a dispute between the parents regarding the implementation of a final parenting order. The order in question granted the father sole parental responsibility and stipulated specific time arrangements for one of the children, X. However, X had spent very little time with her father and had been largely absent from school since the order was made. The father subsequently filed an application for enforcement, while the mother sought variations to the final parenting order. The court had to decide on the appropriate legal principles to apply, specifically considering the Rice & Asplund principles, and determine whether the mother had systematically disregarded the spirit and terms of the order.

In making its decision, the court considered the conduct of the mother in relation to the implementation of the final parenting order. The court found that the mother had not only flouted the spirit but also the actual terms of the order, leading to significant issues for the child. The court emphasised the importance of both parents fully complying with the order and supporting the child's welfare. The court recognised the need for additional measures to ensure that X would spend time with her father and attend school as required by the order. The court also noted the need for the mother to demonstrate her support for the parenting order and to relieve X of any undue pressure to make decisions about her treatment or time spent with her father.

The court ultimately decided to suspend the provisions of the final parenting order until a specified date and implement substitute provisions relating to X’s time with her father. Additionally, the court ordered further restraints on the mother's contact with the children's school. The court largely adopted the order sought by the father and emphasised that the outcome for X depended on the mother's ability to comply with the order and support her daughter's welfare. The matter will be further mentioned before the court to determine any further hearings required.

The final orders of the court included the suspension of the final parenting order provisions until a specified date, the implementation of substitute provisions for X’s time with her father, and additional restraints on the mother's contact with the children's school. The court also ordered that both parents use their best endeavours to ensure X attends any meetings requested by the school or the Department of Education.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Both parents sought the inclusion of a provision in the order, by consent, requiring both parents to “use their best endeavours to ensure [X’s] attendance at any meetings requested by G School [Suburb C] or the Department of Education”. On the understanding that this refers to a request by the school or the Department of Education that X attend any such meeting, then I am content to make that order.CONCLUSION Provisions of the final parenting order made on 29 June 2023 will be suspended until 5 July 2024 and substitute provisions made in relation to X’s time with her father. Additional restraints will be ordered against the mother in relation to her contact with the children’s school. I have largely adopted the order sought by the father. A good outcome for X is in the mother’s hands, in that she should fully comply with not only the provisions of the order but also the spirit of the order. However difficult it may be for the mother to step back it is imperative that she do so for X’s sake. It is also imperative for the mother to demonstrate to X her support for the parenting order. X must be relieved of any expectation that she needs to make decisions about her treatment, her attendance at school, or whether she spends time with her father. The matter will be further mentioned before me for the purpose of hearing submissions as to what, if any, further hearing is required in this matter.

Ratio Decidendi

Legal Principle Established

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File number:	SYC 8351 of 2016
Judgment of:	CAREW J
Date of judgment:	7 February 2024
Catchwords:	FAMILY LAW – CHILDREN – Where a final parenting order was made for week about time and the father to have sole parental responsibility – Where one of the children has spent very little time with the father and has remained largely absent from school since the final order – Where the father filed an application for enforcement and the mother filed an application in a proceeding respectively seeking variations to the final parenting order in relation to the child – Where the applications were treated as an initiating application and response to initiating application pursuant to further order – Consideration of the Rice & Asplund principles – Where the mother has systematically flouted the spirit if not the actual terms of the final parenting order – Where provisions of the final parenting order be suspended on a temporary basis and substitute provisions be made in relation to the child’s time with the father.
Legislation:	Family Law Act 1975 (Cth) ss 65D(2), 65DA(2), 62B
Cases cited:	Grafton & Gorecki [2023] FedCFamC1F 452 Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363
Number of paragraphs:	43
Date of hearing:	14 December 2023
Place:	Brisbane
Counsel for the applicant:	Ms Dart
Solicitor for the applicant:	De Saxe O’Neill Family Lawyers
Counsel for the respondent:	Ms Lawson
Solicitor for the respondent:	Barker Evans

SYC 8351 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GORECKI Applicant
AND:	MS GRAFTON Respondent

ORDER MADE BY:	CAREW J
DATE OF ORDER:	7 FEBRUARY 2024