Grafton & Gorecki (No 3)

Case [2024] FedCFamC1F 410

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

Grafton & Gorecki (No 3) [2024] FedCFamC1F 410

File number: SYC 8351 of 2016
Judgment of: CAREW J
Date of judgment: 19 June 2024
Catchwords: FAMILY LAW – CHILDREN – Where a final order was made for the father to have sole parental responsibility and for the children to live in a week about arrangement between the parents – Whether the final order should be varied or discharged – Discussion of the principles in Rice & Asplund and s65DAAA – Where the mother largely concedes the facts relied upon by the father in support of the injunctions previously ordered – Where the father does not intend to press for time in strict compliance with the final order – Where the mother seems intent on re-litigating the decisions already made – Where the injunctions against the mother provide practical assistance to the implementation of the final order and are consistent with the findings made previously – Where the circumstances do not justify the re‑opening of parenting proceedings – Where the final order will be varied by extending the operation of the personal injunctions against the mother – Where all remaining applications are dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 65D, 65DAAA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Cases cited:

Defrey & Radnor (No 2) (2021) FLC 94–044

Grafton & Gorecki [2023] FedCFamC1F 452

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

Poisat & Poisat (2014) FLC 93–597

Rice & Asplund (1979) FLC 90–725

Roe & Creswick (2013) FLC 93–554

SPS & PLS (2008) FLC 93–363

Number of paragraphs: 26
Date of hearing: 13 June 2024
Counsel for the Applicant:  Ms Dart
Solicitor for the Applicant: De Saxe O’Neill Family Lawyers
For the Respondent: Litigant in person

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:

19 JUNE 2024

THE COURT ORDERS THAT:

1.The parenting Order made on 29 June 2023 be further varied (in addition to the variation contained in paragraphs 1 – 5 of the Order made on 7 February 2024) by the inclusion of the following permanent injunctions against the mother:

The mother is restrained by injunction from:

(a)Initiating contact with G School for the purpose of:

(i)Seeking or attempting to renegotiate the terms of any transition to school plan, school improvement plan, and/or partial attendance plan implementation in relation to X;

(ii)Convening a meeting with school staff, including the children’s teachers, outside parent-teacher interviews, other than with the prior written consent of the father; or

(iii)Raising a complaint or grievance with the school other than via the school principal or such other staff member nominated by them.

(b)Attending G School on any day that the children are in the father’s care pursuant to the Order made on 29 June 2023 other than:

(i)For the purpose of delivering X to…

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AGLC
Grafton & Gorecki (No 3) [2024] FedCFamC1F 410
Case
[2024] FedCFamC1F 410
Decision Date

CaseChat Overview and Summary

In Grafton & Gorecki (No 3), the mother sought to discharge the final parenting order in its entirety and replace it with an order for sole parental responsibility to be vested in her and for the children to live in a week about arrangement subject to their wishes from the age of 15. The court was required to decide whether the final order should be varied or discharged. The court needed to consider the principles in Rice & Asplund and section 65DAAA of the Family Law Act 1975 (Cth), whether the mother’s concession on the facts relied upon by the father justified the injunctions previously ordered, whether the father intended to press for time in strict compliance with the final order, whether the mother seemed intent on re-litigating the decisions already made, whether the injunctions against the mother provided practical assistance to the implementation of the final order, and whether the circumstances justified the re-opening of parenting proceedings. The court also had to consider the overarching purpose of civil litigation as set out in section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The court found that the circumstances did not justify the re-opening of parenting proceedings. While the mother largely conceded the facts relied upon by the father in support of the injunctions previously ordered, the court found that the injunctions against the mother provided practical assistance to the implementation of the final order and were consistent with the findings made previously. The court further found that the mother seemed intent on attempting to re-litigate decisions already made, which would see a continuation of the proceedings and all that entails. The court was not persuaded that the material relied upon by the mother would lead to a different result. Further parenting proceedings would not be in the children’s best interests. The court also found that the father did not intend to press for time in strict compliance with the final order at this time, and that varying the final order in this respect was not in X’s best interests. The court further found that the order sought by the mother in her Further Amended Response to Initiating Application seemed consistent with the father’s approach. The court varied the final order by extending the operation of the personal injunctions against the mother and dismissed all remaining applications.

Orders

Orders of the court

1. The parenting Order made on 29 June 2023 be further varied (in addition to the variation contained in paragraphs 1 – 5 of the Order made on 7 February 2024) by the inclusion of the following permanent injunctions against the mother:

The mother is restrained by injunction from:

(a) Initiating contact with G School for the purpose of:

(i) Seeking or attempting to renegotiate the terms of any transition to school plan, school improvement plan, and/or partial attendance plan implementation in relation to X;

(ii) Convening a meeting with school staff, including the children’s teachers, outside parent-teacher interviews, other than with the prior written consent of the father; or

(iii) Raising a complaint or grievance with the school other than via the school principal or such other staff member nominated by them.

(b) Attending G School on any day that the children are in the father’s care pursuant to the Order made on 29 June 2023 other than:

(i) For the purpose of delivering X to school or collecting X at the completion of the school day if she is in the mother’s care; or

(ii) With the written consent of the father; or

(iii) For the purpose of attending a school event to which parents are generally invited such as school assemblies or parent teacher interviews.

(c) Collecting X from G School on any day that X is in the care of the father pursuant to the Order made on 29 June 2023, or from otherwise permitting, facilitating, encouraging, or acquiescing to her leaving school on such days.

(d) This Order serves as sufficient authority for the father to authorise and direct G School that he is the parent to be contacted at first instance with respect to any matters concerning the children.

2. All remaining applications are otherwise dismissed.

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).

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

Background

Background to the litigation

By a Further Amended Response to the Initiating Application filed on 13 June 2024 (the day of the hearing), the mother seeks to discharge the final order in its entirety to be replaced by, among other things, an order that she have sole parental responsibility, and that the children (other than X) live in a week about arrangement subject to their wishes from the age of 15. BACKGROUND It will be helpful to firstly set out some background to this dispute. In my reasons delivered on 29 June 2023,[1] I set out a chronology which for convenience is reproduced below: [1] Grafton & Gorecki [2023] FedCFamC1F 452.12. … the father and mother were in a de facto relationship from 2002 until 2016. They remained living under the same roof until 2017. 13. 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]. 14. 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. 15. 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.16. Both parties reside in [a] suburb of Sydney near the [Suburb C] Office. 17. These proceedings relate to the care of [the children]. 18. 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.19. 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. 20. [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. 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]. 21. The father, through correspondence from his lawyers, advised the mother that he did not consent to the relocation or to the proposed change of school. 22. [In] January 2020, the parties attended mediation with [Ms T] of Counsel, at which time an agreement was reached for [W] to attend [G School, Suburb C Campus] and for [X], [Y] and [Z] to change schools to [S School] for the first term in 2020. [G School] is a […] school with [multiple] campuses [including a campus] at [Suburb C] and a […] campus […] at [Suburb H]. 23. For reasons which are disputed between the parties, the enrolment forms to [S School] were not submitted on time. 24. As a result, the father urgently recommenced proceedings by filing an Initiating Application on 17 February 2020. An interim order was made on 11 March 2020 restraining the mother from relocating with the children or residing with the children in a residence beyond a radius of 10 kilometres from the [Suburb C] Post Office and directing that the parties do all things necessary to enrol [X], [Y] and [Z] at [S School]. 25. The matter was transferred to this Court on 29 April 2021 given its “wide ambit”. At the hearing on 29 April 2021, it appears the mother notified the court she was not intending to relocate with the children, and a notation was included to this effect.26. Despite relocation with the children no longer being an issue for determination, each party seeks an injunction prohibiting the prospect of relocation further than a particular radius from the [Suburb C] Post Office. The father seeks to restrain the mother from relocating with the children without his consent, and the mother seeks to restrain both parents from relocating with the children without the other’s consent. 27. In 2021, there was a further dispute about schooling in relation to [X], which was ultimately resolved by a consent order made on 27 September 2021.28. After attending an appointment [in early] 2023, [W] was ‘flagged’ by his paediatrician as having “likely inattentive ADHD”. It is common ground that [W] became disengaged with his schooling from first term last year and that in the third term last year he rarely attended school. [W] is attending school this year but the parents disagree about whether a change of school is the answer to what has been a history of disengagement. 29. [X] attended upon [Dr U], paediatrician, [in early] 2023, and was diagnosed with ADHD. [In] May 2023, [Dr V], a child and adolescent psychiatrist, opined as follows:…[X] presents with school refusal and impaired functioning with working diagnoses of generalised anxiety disorder, social anxiety disorder, obsessive‑compulsive traits, and major depression. Our treatment recommendations at this stage include: - ongoing engagement and assessment of [X] and her family- psychological therapy - psychiatric input - liaison with other health professionals including her paediatrician and GP - liaison with school30. [Z] has [a disability], for which he receives ongoing occupational and speech therapy. This condition appears to have only a limited impact on his day to day life.(Footnote omitted)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The mother’s submissions certainly demonstrate her ongoing disappointment with the final order, and I agree with the father that the mother seems intent on attempting to re-litigate decisions already made. Despite contending that the proceedings need to be finalised in the best interests of the children, the mother’s approach would see a continuation of the proceedings and all that entails. CONCLUSION In considering what if any variation is made to a final order, I am mindful of the observations of Warnick J (sitting as an appeal judge) in SPS & PLS that “the force of the rule will likely vary according to the nature and degree of change sought to a previous order”.[6] I accept the father’s submissions in relation to the variation sought by him. The detrimental impact of the mother’s interference in the children’s education was a fact determined by me in the reasons for judgment delivered on 29 June 2023. The injunctions against the mother provide practical assistance to the implementation of the final order and are consistent with findings made by me.[6] SPS & PLS (fn 4) at 82,450. Reasoning adopted in many subsequent cases e.g., Roe & Creswick (2013) FLC 93–554 at [35]; Defrey & Radnor (No 2) (2021) FLC 94–044 at [18]. The children have been the focus of litigation since 2017. The litigation must come to an end at some point. While I understand parenting proceedings are often very difficult for all concerned, I am not persuaded that the circumstances justify re-opening the parenting proceedings nor that the material relied upon by the mother would lead to a different result. Further parenting proceedings would not be in the children’s best interests. The Court also has a duty to apply the overarching purpose of civil litigation in this Court as set out in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), namely, to resolve disputes according to law as quickly, inexpensively, and efficiently as possible. I am also mindful of the objectives of the overarching purpose including the just determination of all proceedings, the efficient use of judicial and administrative resources and the disposal of proceedings in a timely manner. I should record that I did give some thought to discharging the final order in so far as it relates to X’s time to be spent with the father given that X is not currently spending time with the father pursuant to the order. However, on balance, having regard to X’s statement to Ms O in November last year that she found decisions terrifying, and the father’s concession that he is content to work with X in therapy and not press strict compliance with the final order at this time, I am not persuaded that variation of the final order in this respect is in X’s best interests. I further note that the order sought by the mother in her Further Amended Response to Initiating Application sought an order that the parents work towards X spending the same time with the father as her siblings, which seems consistent with the father’s approach.

Ratio Decidendi

Legal Principle Established

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