GRAINGER & GRAINGER

[2017] FamCA 352

FAMILY COURT OF AUSTRALIA

GRAINGER & GRAINGER [2017] FamCA 352

FAMILY LAW – INTERIM – PARENTING – What time a child should spend with a parent – Where there has been a final determination of the matter – Where there have been significant changes since separation – Where one parent has not seen the child for a lengthy period of time – Where one parent has relocated with the child

M v M (1988) 166 CLR 69

Family Law Act 1975(Cth)

APPLICANT: Ms Grainger

RESPONDENT: Mr Grainger

INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

FILE NUMBER: SYC 8552 of 2015

DATE DELIVERED: 25 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 23 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Laurence

SOLICITOR FOR THE APPLICANT: Fay Frischer Solicitor

ADVOCATE FOR THE RESPONDENT: Self

ADVOCATE FOR THE INDEPENDENT CHILDREN'S LAWYER : Mr Holmes

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

Orders Pending Further Order

1. The orders made 20 April 2015 and 18 June 2015 are suspended pending further order.

2. The mother is to forthwith obtain from her General Medical Practitioner a referral for a “mental health care plan” which will involve the family attending upon Dr J, consultant psychologist, for family therapy.

3. Within 48 hours of the mother obtaining a referral to Dr J as provided above, she is to provide a copy of such referral to the Independent Children's Lawyer and the father by email.

4. In anticipation of receiving the abovementioned referral, each of the mother and father are to forthwith make the earliest available appointment to see Dr J for the purpose of her conducting therapy to promote the child L born … 2009 (the child) being able to spend time with the father.

5. The Independent Children's Lawyer is to send to Dr J a copy of this order together with a copy the Child Responsive Program Memorandum dated 10 March 2017 and the orders of the Court made 18 June 2015.

6. The parties are to follow the recommendations of Dr J as to the time the father is to spend with the child and the circumstances and places in which such time might be spent.

7. The parents are to each pay one half of the fees charged by Dr J for her services.

8. The father is to have an adult person (being not a relative of his) accompany him when he spends time with the child on the first three (3) occasions he spends time with her, unless he is otherwise supervised. That person is to be an observer only and a potential witness in the Court, should it be alleged by the mother that something untoward occurred on any of those times.

9. The hearing of the parties’ parenting Application for final orders is expedited and the matter is to be listed before a trial Judge for a first day event as soon as that can be accommodated in the Court.

10. The mother is not to change the child’s residence without giving the father at least 28 days’ notice of her intention to do so.

11. Neither party is to remove the child the child from Australia AND it is requested that the Australian Federal Police give effect to this order.

12. Until further order, the name of the child L born … 2009 (a female) be placed upon the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

13. Each party and the Independent Children's Lawyer has leave to re-list the matter before Justice Le Poer Trench (if he be available) on short notice (48 hours) to the Court and the other parties.

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

FILE NUMBER: SYC 8552/2015

Ms Grainger

Applicant

And

Mr Grainger

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

1. This determination addresses applications made by the father Mr Grainger in his Further Amended Response to Initiating Application filed 26 April 2017. The application is opposed by the mother. The order she seeks is contained in her Amended Initiating Application filed 18 May 2017. Both parents seek parenting orders, both interim and final, in relation to their child L born in 2009.

Background

1. The parties have conducted a final hearing before Justice Tree of this Court, which gave rise to a lengthy judgment and final orders ultimately  made on 18 June 2015. Those orders provided for a process of re-introduction of the child to her father with the assistance of a psychologist. Those orders contemplated a relatively swift development of the time and circumstances in which the child was to spend with her father. The orders were not implemented as required and each parent has a case to put as to why that occurred.

2. Circumstances have changed since June 2015 in a number of significant ways which directly affect the child and the parties. Some of those circumstances are as follows.

3. The mother, who was residing in H Town at the time the orders were made has left that place and taken the child with her. The mother’s case is that it became necessary to change her residence to the Sydney area because she has been diagnosed with cancer and is required to undergo treatment at D Hospital (Sydney). Having obtained temporary accommodation through friends, both she and her mother (Ms S) now reside near F Town, however, she may have to move when her current lease arrangement expires. Her counsel informed the Court that one of the options would be a possible move to G Town, which is a town further west of F Town. The father says such moves illustrate the difficulty the mother is imposing upon his ability to spend time with the child. That submission is largely based upon the father living near Lismore, on the far north coast of NSW and having limited means. The cost of travel for the father to spend time with the child is a real issue in this case.

4. The father’s search for funds to be able to conduct his proceeding has led to a further dispute between the parties as the mother says the father has created a “Go Fund Me” website which identifies the child and/or the parties.

5. The father has not had any face-to-face time with the child since 2015 and that time was, it seems, part of evidence gathering for the hearing.

6. The judgment of Justice Tree is extensive and he canvassed and determined all the relevant issues of fact. At the heart of the decision the judge had to determine if the child faced an “Unacceptable risk” (see M v M (1988) 166 CLR 69). He determined that issue in the negative. As such, the allegation of the mother that the father had sexually assaulted/interfered with the child was not established. That was an important determination. The father has had no time with the child since the order of June 2015 was made.

7. Since residing in Sydney the mother has had the child assessed for autism and has annexed a copy of a report received by her to her affidavit sworn 17 May 2017. The report is based upon an assessment conducted on 2 March 2017. The report finds that the child meets the criteria to be diagnosed with autism spectrum disorder and she is assessed to be at level 2. That level means she is in need of substantial support. The report then provides detail of what support is necessary.

8. The mother in her affidavit sets out detail of difficulty the child faces by attending school and she has now taken steps to “home school” the child.

9. On 10 March 2017 a Family Consultant of this Court saw the parents. She did not conduct an interview with the child. Again, an extensive “Child Responsive Program Memorandum” was provided by the Family Consultant. Of particular note is the recording of the mother’s stated view that she still believes the child was sexually assaulted by the father. Such belief is held notwithstanding the determination of Justice Tree.

10. The father seeks interim orders be made which would temporarily change residence of the child to him for a continuous period of 12 weeks. During that period he proposes the mother would have telephone/Skype contact with the child only.

11. The Independent Children's Lawyer has proposed a regime where the child is to commence spending time with the father forthwith in compliance with the orders made by Justice Tree.

12. The mother seeks an order which would require the father to exercise supervised time with the child every fortnight. Apart from opposing the supervision the father says that due to his impecunious circumstances he could not travel to Sydney on a fortnightly basis.

13. The mother also seeks an order which would enable her to remove the child from Australia for the purpose of visiting the UK. She has close relatives who are elderly and unwell and she is concerned that if she does not travel soon she may not be able to see them. The father opposes the mother removing the child from Australia.

14. The father is a full-time student and is attending a University close to where he lives.

15. There are property orders which have been made however the one property which the parties have needs to be sold and it has not been sold as yet. The father says the sale is unlikely to generate any significant funds for either of the parents.

16. In the alternative to the above the mother proposed that the parties attend upon a qualified psychologist to assist in the implementing of the child becoming familiar with her father and spending time with him. Clearly, the mother does not agree to unsupervised time. Further, if the mother’s evidence proves to be correct, she anticipates the child will not agree to spend time with the father.

DETERMINATION

1. The driving consideration is the best interests of the child as is required to be implemented by the Family Law Act. There has already been a determination following a lengthy hearing that the child’s best interests required her to have a relationship with her father and to spend time with him.

2. I am satisfied that there have been significant changes which have occurred since the conclusion of the evidence taken by Justice Tree and that accordingly a further determination is required. The determination required at this time is an interim determination of one aspect of parenting orders, namely, how to implement the ability for the child to know her father and should it be in her best interests, to then spend time with her. The best interests which need to be considered initially is whether the child is capable of tolerating (i.e. that she will not completely resist being in the presence of her father in a safe and protected environment) a relationship with her father.

3. Practical considerations suggest that making orders which require the parties and the child to work with Dr J towards establishing a relationship with her father is in her best interests. Dr J is well known to the Court. Her credentials are set out in the affidavit filed by the Independent Children's Lawyer. She will see the parties under a “mental health plan” and thereby make it affordable for them. She was formerly employed as a Family Consultant in the Court and is well experienced in dealing with families experiencing the difficulties as seen in this case. The Court has every confidence that she would not allow a circumstance to arise which endangered the child in any way.

4. The cost of the services to be provided by Dr J can be shared between the parents.

5. I conclude it is necessary to expedite the final hearing in this case. I conclude the facts dictate the Court moves cautiously at this time in framing orders which require the child to spend time with the father. I accept that may of necessity have to change if at the final hearing the Court is met with having to determine whether one of the parents will have a restricted role in the life of the child.

6. For those reasons I determine the interim orders should be made as being in the best interests of the child.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 25 May 2017.

Associate: 

Date:  25 May 2017