Grafton & Gorecki (No 3)
[2024] FedCFamC1F 410
•19 June 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
On 29 June 2023, after a final hearing over three days in May 2023, I made a final parenting order in relation to the four children of Mr Gorecki (“the father”) and Ms Grafton (“the mother”), namely, W born in 2008, X born in 2010, and twins Y and Z born in 2012 (“the children”). The order made on 29 June 2023 (“the final order”) granted the father sole parental responsibility for the children and provided for them to live in a week about arrangement as between their parents.
What I am now asked to determine is to what extent, if at all, the final order should be varied or discharged.
For the reasons which follow, I do not propose to further vary or discharge the final order (noting that the final order was varied by consent on 7 February 2024 as set out in paragraphs 1 to 5 of the order made on that day), other than by extending, by way of permanent order, certain personal injunctions against the mother as set out in paragraph 15 of the order made on 7 February 2024. In my view, the proposed injunctions will enhance the implementation of the final order.
WHAT IS EACH PARTY SEEKING?
The father opposes any further variation or discharge of the final order, other than as already provided for in the 7 February 2024 order by consent, save for the interim order made by paragraph 15 of that order to be made as a final order. That provision enjoined the mother from doing certain things.
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 school
30. [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)
In September 2023, the father filed an Application–Enforcement and in November 2023 the mother responded by seeking substantial variation to the final order. Ultimately, the father’s Amended Application–Enforcement filed on 13 December 2023 was treated as an Initiating Application (as the order sought by him exceeded enforcement of the final order and the father conceded that a recovery order involving police was not in X’s best interests), and the mother’s Application in a Proceeding filed 27 November 2023 was treated as a Response to the Initiating Application.
On 10 November 2023, the parties agreed to obtain a report in relation to X from a jointly appointed expert, Ms O. The report is exhibit 1 in these proceedings.
After a further hearing on 14 December 2023, I made an order on 7 February 2024. By that order, the parties agreed to discharge paragraph 20(b) of the final order so that X could again change schools and commence to attend G School and required each parent to facilitate that change. The final order, in relation to the time X spent with the father, was suspended on an interim basis, with the order envisaging that X would resume the week about arrangements with her siblings from 5 July 2024.
It is common ground that X’s return to school has been successful and that her therapy is progressing well. The father is content to leave the final order in place although X is not spending significant time with him. The father does not intend to press for strict compliance of the final order in the foreseeable future. The mother contends that a failure to discharge the final order (at least in relation to X) will place her and X under unnecessary pressure. By way of example, the mother submits that she would not be able to “make plans” and X would not be sure of what is expected of her and that there is a need for certainty.
Paragraph 15 of the order made on 7 February 2024 is in the following terms:
15. 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 [final order], including during such period that that Order is suspended in relation to [X], 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 pursuant to this Order; 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 [final order] or on any day that [X] is in the father’s care pursuant to this Order, 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.
The reasons for imposing the interim injunctions on the mother are set out in my judgment delivered on 7 February 2024,[2] and for convenience, the following particular paragraphs are reproduced below:
[2] Grafton & Gorecki (No 2) [2024] FedCFamC1F 37.
26.In my view, the evidence now before me demonstrates just more of the same sort of conduct by the mother about which I was so critical in my previous reasons for judgment. The mother has continued to inappropriately empower [X] in decisions with which she should not be burdened. The extent of the mother’s communication with [X’s] school is oppressive and demonstrates a persistence of her past conduct with every educational facility the children have attended to date.
27.[Ms O] opined that the mother “may need to find better ways of managing [her] stress … because the sheer volume of correspondence she produces between herself, [the father] and all the professionals involved is quite overwhelming, and the tone of that correspondence is sometimes quite superior and confrontational”. My views of the mother, formed during the trial and strengthened by the evidence of her conduct since the trial, accord with [Ms O’s] opinion. For instance, in my reasons I made the following findings at [67]-[68]:
… I have come to the conclusion that the mother can be a very difficult person to deal with and that this is likely to have impacted on her relationships with others including the children’s schools, at times to the children’s detriment.
The mother repeatedly ignored directions from the Court e.g. during her cross-examination of the father the mother was repeatedly directed to ask one question at a time and to refrain from making statements rather than asking questions. Further, the cross-examination of the mother, by counsel for the father, was made much more difficult and lengthy as a direct result of the mother’s repeated obfuscation in response to questions. I do not suggest that the mother necessarily engaged in such conduct deliberately. Indeed, she appeared to have little insight into the impact of her conduct on others. At times the mother’s determination to do what she wanted rather than what was required of her became somewhat overwhelming.
28.In her communications with the school and [X’s] treating physicians the mother has repeatedly asserted that [X] does not even feel safe to be in the same room as the father. The mother also repeatedly insists that [X] be present at meetings and “heard” in relation to educational decisions. It is apparent from the evidence that the mother repeatedly defers to [X], in a way that abrogates her parental responsibility to make decisions or permit the father to make decisions as the parent with sole parental responsibility for major long-term issues.
29.I can only hope that the mother reflects upon [X’s] candid comments to [Ms O], [in] November 2023, which include the following:
(a) [X] described her father as a “nice, good Dad”;
(b)[X] said that her mother told her that her father is applying for a court order because he wants “power over her and us” but [X] finds this hard to believe as her experience of him is not like this;
(c) [X] said that her mother thinks she understands her but she does not;
(d) [X] said she finds decisions terrifying;
(e)Part of her feels she has to look after her mother … she [the mother] does not really have her own support system … her mother can get overwhelmed.
30.The mother should also reflect on [X’s] observed interaction with the father [in] November 2023:
[The father] came in and sat down opposite [X]. The atmosphere was immediately relaxed and playful … [X] … appeared to relish rehearing the stories and she laughed along with her father.
31.[X] and her father were assessed by [Ms O] to have a “warm and loving relationship … [t]hey interacted easily, sometimes playfully and sometimes on an intellectual level …”.
32.Although the father did not seek, at trial, to restrain the mother from involvement in the children’s school he now does so due to the ongoing nature of the mother’s lengthy, frequent, and at times counter-productive communication and interaction with [X’s] school. Again, this is more of the same from the mother. The mother resists the proposed injunction, and in particular, the reach of the proposed injunction to the “children’s” school. Historical interference in the children’s education by the mother, and as demonstrated in the further evidence in relation to [X’s] school in 2023, cause me to find that the restrictions sought by the father are entirely appropriate in the circumstances. …
The order made on 9 May 2024 listed the following matters for submissions:
(a)What further order, if any, should be made to vary or discharge the previous final [order];
(b)To what extent, if any, are any proposed orders sought by either party contrary to the principles of Rice & Asplund as set out in s 65DAAA of the Family Law Act 1975 (Cth) (as amended);
(c)Should the interim restraints against the mother set out at paragraph 15 of the Order of 7 February 2024 be made final or discharged.
WHAT IF ANY LIMITATIONS ARE THERE ON VARYING/DISCHARGING A FINAL PARENTING ORDER?
Notwithstanding the final order, s 65D(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that such an order may be varied or suspended in appropriate circumstances. However, it has long been the practice of the courts to apply a degree of caution when considering whether to do so, particularly when an order has been made recently. This approach has long been referred to as the ‘rule’ in Rice & Asplund.[3] The application of the rule is, of course, always informed by the best interests of the child,[4] and “is closely connected with the nature of, and degree of change sought to the earlier order”.[5] The best interests of a child will not generally be enhanced by seemingly endless litigation. In recent amendments to the Act, the rule in Rice & Asplund is now reflected in s 65DAAA which provides:
[3] (1979) FLC 90–725.
[4] Poisat & Poisat(2014) FLC 93–597 at [42].
[5] SPS & PLS (2008) FLC 93–363 at [48] (“SPS & PLS”).
(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
DISCUSSION
The father submits that the extension (by way of final order) of the interim injunctions against the mother is a minor change to the final order and nothing more than an “adjunct” to the final order reflecting what was intended by the order granting the father sole parental responsibility (since the amendments to the Act the term is now sole decision-making in relation to major long-term issues).
In particular, the father relies on [67]–[71] of my reasons delivered 29 June 2023, and [26]‑[28] and [32] of my reasons delivered on 7 February 2024 (which I incorporate into these reasons).
As noted in my reasons dated 7 February 2024 at [25], the mother largely conceded the facts relied upon by the father in support of the injunctions, and in my reasons dated 29 June 2023 at [70]–[71], the communication by the mother with the schools about which I was critical was sourced from material relied upon by the mother in her own case. In my reasons delivered on 29 June 2023, I found:
69. I can readily accept that the mother’s communication style and superior attitude when dealing with the principal and teachers at [R School] would have been confrontational and overbearing. That is not to say that the mother may not have had some legitimate cause to complain on occasion. The issue is how she went about that process. For example, attending at [R School’s] staff room to demand to see the children’s workbooks, and directly involving the children in what was clearly an unpleasant experience for all involved is regrettable to say the least. The mother’s own evidence is that it took quite some time for the children to recover. The mother’s communication with the children’s schools has been unhelpful at times and I reject the mother’s contention that the father was to blame for the deterioration in her relationship with [R School]. One need only compare the tone of the emails sent by each of them to the school to conclude that the mother was ultimately responsible for the poor relationship. In the end, the principal of [R School] had to refuse any future meetings with the mother. Such conduct by the mother, even if the mother had not already directly involved the children herself, is likely to have had a detrimental impact upon the children.
The father opposes any further change to the final order and submits that the mother is intent on re-litigating the parenting decision reflected in the final order.
The mother relies on a significant amount of material in support of her application to discharge the final order, some of which was available prior to the final hearing in May 2023. The mother not only takes issue with many of the findings made in the final reasons for judgment delivered on 29 June 2023, but is also, in my view, unfairly critical of the role played by the independent children’s lawyer at trial, and the process of the trial more generally. The mother’s recourse relating to the trial was to appeal. She did not do so.
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.
The final order will be varied as sought by the father i.e., by extending the operation of the personal injunctions against the mother. All remaining applications will be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 19 June 2024
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