Grainger and Grainger - [2019] FamCA 56

FAMILY COURT OF AUSTRALIA

GRAINGER & GRAINGER

[2019] FamCA 56

FAMILY LAW – CHILDREN – Where final parenting orders were made in 2015 for the child to live with the mother and spend supervised time with the father with provision for the father to apply to vary the time with orders – where in 2016 the father sought to vary the final orders – where the child has not spent any substantial time or communicated with the father since September 2015 – where the Court finds the child’s persistent opposition to spend time with the father a significant issue – orders made for the child to live with the mother and spend no prescribed time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA

Grainger Grainger [2015] FamCA 276
Bondelmonte v Bondelmonte [2017] HCA 8

APPLICANT:

Ms Grainger

RESPONDENT:

Mr Grainger

FILE NUMBER:

SYC

8552

2015

DATE DELIVERED:

11 February 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Baumann J

HEARING DATE:

13, 14 & 15 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr N Ford

SOLICITOR FOR THE APPLICANT:

Fay Frischer Solicitor

THE RESPONDENT APPEARED IN PERSON

INDEPENDENT CHILDREN’S LAWYER:

Mr D Holmes, KD Holmes Solicitors

Orders

That all previous parenting orders be discharged.
That the child, L born … 2009 (“the child”) shall live with the mother.
That subject to the terms of this Order, the mother shall have sole parental responsibility for major long term decisions for the child but shall advise the father in writing not less than fourteen (14) days prior to the decision coming into effect if she intends:
(a)to relocate the child’s residence outside the F Town, New South Wales; or
(b)change the child’s surname; or
(c)intends to change the child’s school, once the current home schooling arrangements cease; or
(d)to travel overseas with the child.
That the parents are to keep the other parent informed of their current email address; emergency telephone number; postal address (for gifts and correspondence to the child) and shall advise the other parent of any change to those particulars within fourteen (14) days.
That the mother shall advise the mother within fourteen (14) days of the re-enrolment of the child into a public or private school, upon the cessation of home schooling and this order shall be authority for the father to obtain information from the school as to the child’s progress.
That the mother shall advise the father if the child suffers a serious injury, condition or illness requiring hospitalisation within forty eight (48) hours of such hospitalisation.
That the father shall be permitted to send to the child a card and/or gift for the child’s birthday, Christmas or other significant milestone in the child’s life and the mother shall ensure that such cards and gifts are handed to the child without any adverse comment.
That the mother shall encourage the child to respond by email to the father to thank him for the card or gift.
That the mother shall,…

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 Grainger and Grainger

Details

AGLC: Grainger and Grainger [2019] FamCA 56
Case: [2019] FamCA 56
Decision Date: 11 February 2019

CaseChat Overview and Summary

In *Grainger and Grainger*, Baumann J of the Federal Circuit Court of Australia considered parenting and property matters between the parents of a child, L. The dispute concerned the future living arrangements and decision-making responsibilities for L, as well as the variation of existing property orders.

The court was required to determine the primary residence of the child, L, and the extent of parental responsibility to be allocated to each parent, particularly concerning significant long-term decisions. Additionally, the court needed to address the father's involvement in the child's life, including communication, travel, and education, and to consider the variation of previously made property orders.

Baumann J ordered that all previous parenting orders be discharged. The child, L, was to live with the mother, who was granted sole parental responsibility for major long-term decisions. However, the mother was required to consult the father in writing at least fourteen days prior to making decisions regarding relocation outside F Town, New South Wales, changing the child's surname, changing the child's school after home schooling ceased, or travelling overseas with the child. The court also made detailed provisions for communication between the parents regarding the child's contact details, school progress, and any serious illness or hospitalisation. The father was to be permitted to send gifts and cards to the child, and the mother was to encourage the child to respond. The mother was permitted to travel overseas with the child and to apply for and renew the child's passport, provided she informed the father of travel dates and destinations fourteen days in advance. The Independent Children's Lawyer was directed to provide certain documents to the Department of Family and Community Services and was subsequently discharged, with liberty to seek costs. Finally, existing property orders were varied.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the child, L born … 2009 (“the child”) shall live with the mother.

That subject to the terms of this Order, the mother shall have sole parental responsibility for major long term decisions for the child but shall advise the father in writing not less than fourteen (14) days prior to the decision coming into effect if she intends:

(a) to relocate the child’s residence outside the F Town, New South Wales; or

(b) change the child’s surname; or

(d) to travel overseas with the child.

That the parents are to keep the other parent informed of their current email address; emergency telephone number; postal address (for gifts and correspondence to the child) and shall advise the other parent of any change to those particulars within fourteen (14) days.

That the mother shall advise the mother within fourteen (14) days of the re-enrolment of the child into a public or private school, upon the cessation of home schooling and this order shall be authority for the father to obtain information from the school as to the child’s progress.

That the mother shall advise the father if the child suffers a serious injury, condition or illness requiring hospitalisation within forty eight (48) hours of such hospitalisation.

That the father shall be permitted to send to the child a card and/or gift for the child’s birthday, Christmas or other significant milestone in the child’s life and the mother shall ensure that such cards and gifts are handed to the child without any adverse comment.

That the mother shall encourage the child to respond by email to the father to thank him for the card or gift.

That the mother shall, without the prior consent of the father, be permitted to remove the child from the Commonwealth of Australia for a holiday and for the purpose of overseas travel, shall have parental authority to make application and renew the child’s Australian passport.

10.

That not less than fourteen (14) days prior to the child’s intended travel overseas, the mother shall advise the father by email, the scheduled dates for departure and return and the countries to be visited.

11.

That the Independent Children’s Lawyer (“ICL”) shall have liberty, and is directed to provide to the New South Wales Department of Family and Community Services a copy of the family report prepared by Dr J and a copy of these Reasons.

12.

That upon complying with Order 11, the ICL is discharged, subject to the ICL having liberty to make any application for costs seeking a contribution by the father and/or the mother.

Property orders

13.

That pursuant to Rule 17.02(e) of the Family Law Rules 2004, Order 1 made by the Court on 25 May 2017 is varied to provide for the words “(save for the property orders 22 to 30)” to follow “18 June 2015”.

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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