GRAINGER & GRAINGER

[2018] FamCA 75

FAMILY COURT OF AUSTRALIA

GRAINGER & GRAINGER [2018] FamCA 75

FAMILY LAW – CHILDREN – Parenting Order – Interim – Where the father sought orders for the mother to contribute to the costs of the expert report and orders that he be notified of the child’s medical treatment – Where the mother consented to the order that the father be notified of the child’s medical treatment – Where the issue of costs of the expert report is to be determined at final hearing – Where the father withdrew his application to join the maternal grandmother.

FAMILY LAW – COSTS – Where the mother sought indemnity costs against the father in relation to the interim application – Where the father was unsuccessful – Where this is a complex matter and the father is self-represented – Application for a costs order is dismissed.

Family Law Act 1975 (Cth) s 117(2A)

Grainger & Grainger [2015] FamCA 276
Grainger & Grainger [2017] FamCA 352
Hawkins v Roe (2012) 47 Fam LR 526

APPLICANT: Mr Grainger

RESPONDENT: Ms Grainger

INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

FILE NUMBER: SYC 8552 of 2015

DATE DELIVERED: 20 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 16 February 2018

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Fay Frischer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

Orders

IT IS ORDERED

1. That the application of the father filed 21 December 2017 seeking a contribution to the costs of the expert’s report be adjourned to the substantive hearing.

IT IS NOTED

1. That the application of the father filed 21 December 2017 seeking joinder of the maternal grandmother as a party to the proceedings is withdrawn and dismissed.

BY CONSENT IT IS ORDERED

1. That the mother shall notify the father of any medical or psychological intervention for the child and authorise any medical practitioner who treats the child to give the father information about the child’s medical treatment.

2. That the mother and the father attend a family dispute resolution practitioner for shuttle mediation following the release of the report of Dr J.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grainger & Grainger has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8552 of 2015

Mr Grainger

Applicant

And

Ms Grainger

Respondent

REASONS FOR JUDGMENT

1. Mr Grainger (“the father”) and Ms Grainger (“the mother”) are the parents of L (the child) who was born in 2009.

2. The parents separated in 2010 and litigation in relation to the child commenced shortly thereafter. They were then living in northern New South Wales.

3. There was a final hearing in Brisbane before Justice Tree over six days in 2015 and judgment was delivered on 20 April 2015. The orders provided that the mother have sole parental responsibility for the child and that the father have limited time with her at a contact centre. The orders also provided for significant intervention by professionals directed to attempting to put in place an arrangement for the child to spend unsupervised time with the father.

4. In order for the complexity of the matter to be appreciated, the issues identified by the trial judge in the 2015 hearing were as follows:

   (a)What is the cause of the child’s relevant utterances, distress and behaviours;

   (b)Is the father an unacceptable risk of sexual harm to the child;

   (c)Does the mother genuinely believe the father is a risk of harm such as to impair her parenting capacity if there is contact;

   (d)What risks to the child do the mother’s primary orders pose, and particularly, what would be the impact of the loss of her relationship with her father and paternal family;

   (e)What is the likely effect on the child if she were to move from the mother’s care to the father’s care.

5. The trial judge concluded that the child should live with the mother and spend time with the father. He specifically found, at paragraphs 319 – 320 of his Reasons:

   The father is not an unacceptable risk of harm to the child.  Unless there are orders permitting the father to spend time with the child, the mother is likely to actively impede the development of any relationship between the child and the father.  As it is, even if there are such orders, the mother is likely to attempt to sabotage the development or rehabilitation of any relationship between the father and the child in any event.  Particularly, she is likely to exploit every opportunity for review of orders, and engineer circumstances so as to cause any orders for the father to spend time with the child to fail.

   The great unknown is how the child will respond to the prospect and reality of again spending time with the father.

6. His Honour also stated, at paragraph 326 and following:

   I am satisfied that the mother, and particularly the maternal grandmother, have in the past sabotaged the supervised time which the father has spent with the child, or at least was intended to spend with the child.  The examples of the maternal grandmother’s behaviour in 2013 could be construed no other way.  She was attempting to cause the then imminent time with the father to fail.

   That behaviour must stop.  Whilst the mother will have great difficulty in accepting that I have rejected her argument that the father presents an unacceptable risk of sexual harm to the child, she will need to.  This child cannot grow up with the belief that her father sexually abused her, or presents an unacceptable risk of sexual harm to her.  The evidence simply does not reasonably support such a conclusion.

   I am satisfied that there should be orders that the father spend time with the child, as that would be in her best interests.  There are only two sets of competing proposals on the table.  The first is the mother’s alternative orders, which I assess as being deliberately engineered to ensure that she can cause the regime to fail.  I have little doubt that she and the maternal grandmother would seek to manipulate the child’s presentation to psychologists in a way which would preclude them from recommending the commencement of time, or alternatively if time was starting to be spent, undermine it to the point where they recommended its suspension.  That regime of orders cannot possibly be in the best interests of the child.  The only other regime of orders is that of the Independent Children's Lawyer.  It has the disadvantage that it is likely that the orders may only be short-lived, assuming the father exercises his liberty to apply.  That means that this litigation is probably not really at an end, even though the orders which I make will be final.

   However there is one advantage to that.  Subject to any appeal, the parties will be bound by the findings of fact which I have made in these proceedings.  They will not free to re-litigate the matters that have been determined in them.  The mother will be bound by a finding that the father is not, on the facts before me, at this point adjudged an unacceptable risk of sexual harm.  She will also be bound by the finding that unless the father has a meaningful relationship with the child, she is presently herself a real risk of substantial harm to the child, because she is intent upon destroying the relationship between the father and the child. (Emphasis added).  

7. In early 2016, the mother moved with the child to Sydney. She has since moved again and she now lives in G Town in a house provided by her mother, the maternal grandmother.

8. The father brought further proceedings in Sydney which were heard by Justice Le Poer Trench on 23 May 2017. An Independent Children’s Lawyer (“ICL”) appeared for the child. By that time, the mother was living in F Town and the child was being home schooled. The father had spent no time with the child pursuant to the 2015 orders of Justice Tree.

9. The parties were ordered to engage in family therapy with Dr J, a psychologist, and follow her recommendations in relation to the child spending time with the father.

10. The matter came before me as Docket Judge for the first day of the trial on 2 November 2017. Directions were made for the filing of affidavits by 15 December 2017 and the preparation of a report by Dr J. The matter was listed for call over and the allocation of hearing dates on 2 February 2018.

11. When the matter came before the Court at the call over, the father had filed an Application in a Case seeking, inter alia, to join the maternal grandmother as a party to the proceedings. The matter could not be set down for hearing until that application was determined and the application was listed for hearing on 16 February 2018.

12. The father sought the following orders in his interim application:

    1.That the parties share equally in the costs of the family report ordered by Justice Rees on 2^nd November. If the father has paid the full cost in the interim then the mother shall reimburse the father half of the psychologist’s fees for the report;

    2.That the mother shall notify the father of any medical or psychological intervention for [the child] and authorise any medical practitioner who treats [the child] to give the father information about the child’s medical treatment;

    3.That the parties be compelled to engage in family dispute resolution to discuss the best interests of [the child];

    4.That the maternal grandmother … be joined as a party to these proceedings.

13. On 16 February 2018, the father appeared for himself, the mother was represented and the ICL appeared. The mother and the ICL opposed all applications save for Order 2 sought by the father, which was consented to by the mother.

14. The father withdrew the application to join the maternal grandmother.

15. The mother and the ICL each filed a Case Outline document. The father prepared written submissions.

COSTS OF THE REPORT

1. The father has paid the costs so that the report can be prepared.

2. The issue of contribution to those costs by the mother is not urgent and does not need to be decided on an interim basis. The mother is on notice that the application will be pursued at trial and she will need to file any evidence that she considers relevant to that issue in her trial affidavits.

3. I do not propose to determine this application at this time.

MEDICAL TREATMENT

1. The mother consents to the order sought by the father. She filed a Response on 25 January 2018 specifying her consent. There is therefore no issue to determine.

2. The issue of involvement of treating professionals for the child is likely to be agitated at the final hearing and therefore it is appropriate if the information is also provided to the ICL.

FAMILY DISPUTE RESOLUTION

1. The parties are presently in the process of obtaining a report from Dr J. Interviews were conducted last week. The report will be available in approximately six weeks.

2. The mother in her Response stated her willingness to engage in shuttle mediation after Dr J’s report has been released.

3. In his Case Outline, the ICL stated:

   For the avoidance of doubt, the ICL sees the final case as a very stark choice for the trial judge. In other words, it is highly likely that one parent will leave this litigation with most/all responsibilities for the child and the other parent little, but more likely no time with, or parental responsibility for, [the child] at all. There, presently, is no middle ground for this child. Indeed, the parents have been so cautioned by His Honour Le Poer Trench J, as to this potential scenario …

4. I accept that the ICL’s prognosis is likely to be accurate and I have grave doubts that any form of mediation is likely to be of assistance in those circumstances.

5. However, the father has proposed mediation and the mother agrees. Orders will be made in the terms proposed by the mother.

COSTS

1. Both the mother and the ICL seek an order for costs. The mother seeks indemnity costs. To avoid further appearance, the parties were asked to make their submissions in relation to costs at the conclusion of the interim hearing.

2. The application falls to be determined in accordance with the provisions of s 117(2A) of the Family Law Act 1975 (Cth).

3. The father is a student in receipt of a means tested allowance. He is alleged to also have a job at a local newspaper but there is no evidence of his income from employment. The mother is also in receipt of a means tested pension. The ICL is funded by the Legal Aid Commission.

4. Although the father would argue that the whole of the substantive proceedings are brought about as a result of the mother’s failure to comply with the orders of Justice Tree, and the subsequent failure of the orders made by Justice Le Poer Trench, the present application appears to have been brought about by the father’s perception that he is not being provided with information about his daughter’s progress.

5. The father, in written submissions, stated:

   … It is now evident that no contact will be able to occur between father and child before the final hearing while she continues to reside with the mother and maternal grandmother.

6. There is some force in that submission.

7. It is not clear why, in circumstances where the mother filed a document indicating her consent to both the provision of medical information and a form of mediation, it was necessary for the matter to be pursued today. In the normal course of litigation, it would be expected that a Consent Minute would have been filed.

8. The only contentious matter which was pursued was the application for contribution to the costs of Dr J’s report which was not dealt with.

9. To that extent, the father has been unsuccessful.

10. I have not been made aware of any offers of settlement.

11. I am conscious that these are parenting proceedings of some complexity in which the father represents himself. I am also conscious that Justice Tree, in a fully contested hearing, and Justice Le Poer Trench in an interim hearing, each made orders directed to providing a mechanism for the child to spend time with her father. Why that outcome has not been able to be achieved will be a matter for evidence at the final hearing and will be a significant factor in the final determination, but it cannot be determined in this application.

12. The general rule that each party pays his or her own costs is not often displaced in parenting matters. In Hawkins v Roe (2012) 47 Fam LR 526, the Full Court considered the categories in which costs orders might be made in a parenting matter in the following terms:

    [147] While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

13. I do not consider that this is such a case.

14. It is therefore not necessary to consider the mother’s application for indemnity costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 February 2018.

Associate:

Date:  20 February 2018