FAMILY COURT OF AUSTRALIA
| GRAINGER & GRAINGER | [2015] FamCA 276 |
| FAMILY LAW – CHILDREN – Parental Responsibility – Where a complex and lengthy history involving a high conflict separation between the parties – Where inconceivable that the parties could negotiate as required by section 65DAC(3) of the Family Law Act (Cth) in the event that equal shared parental responsibility was ordered – Where Court satisfied parental responsibility must follow the primary residence of the child – Where Court noted any other arrangement would be unworkable and not in the best interests of the child. FAMILY LAW – CHILDREN – With whom a child lives – Where competing proposals – Where mother alleges the father poses an unacceptable risk of harm to the child – Where child displays sexualised behaviours – Where child has experienced great distress at the prospect of spending time with or communicating with the father – Where father alleged the child’s sexualised behaviour pre-dated separation – Where Court satisfied the father was truthful in this regard – Where Court considered whether the father is an unacceptable risk of harm – Where Court unable to exclude the possibility that the child has been abused – Where child has on occasion identified the father in the course of making what might be disclosures of sexual abuse or mentioned his name in the context of sexualised behaviours – Where Court satisfied there is some risk attaching to the father in relation to sexual abuse – Where DoCS has not substantiated any of the notifications of risk – Where Court not persuaded that the father presents an unacceptable risk of sexual harm to the child – Where father alleges such distress is influenced and caused by the mother and maternal grandmother – Where both the Contact Centre and Family Report writer have at times been highly concerned about the child’s level of distress – Where Court noted considerable weight be given to the Family Report writer’s evidence that she was unable to determine whether or not the cause of the distress was sexual abuse or exposure to conflict –Where Court accepted the Family Report writer’s opinion that some of the child’s behaviours are typical of children who are sexually abused but that some of the behaviours overlap with symptoms of other traumatic incidences and are also typical of a child exposed to high conflict – Where Court unable to conclude on the balance of probabilities that the child’s distress and behaviours were the product of having been subject to sexual abuse or exposed to sexual activity or from being exposed to the mother and maternal grandmother – Where child has only ever lived with the mother - Where father has not spent time with the child since April 2014 –Where Court satisfied it is in the best interests of the child that the child should remain living primarily with the mother. FAMILY LAW – CHILDREN – With whom a child spends time – Where Court satisfied that the father is… |
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- AGLC
- Grainger & Grainger [2015] FamCA 276
- Case
- [2015] FamCA 276
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. Firstly, whether the father posed an unacceptable risk of sexual harm to the child, considering allegations of abuse and the child's disclosures. Secondly, the court had to assess the impact of the mother's genuine but unreasonable belief that the father had abused the child on her parenting capacity and whether this necessitated no contact orders. Thirdly, the court considered the weight to be given to the Family Report writer's evidence, given that cross-examination had not been concluded due to the author's death. Finally, the court had to determine the best interests of the child regarding residence, parental responsibility, and time spent with each parent, particularly in light of the child's distress and the history of conflict.
Tree J reasoned that while the court could not exclude the possibility that the child had been abused, and acknowledged some risk attaching to the father, it was not persuaded on the balance of probabilities that the father presented an unacceptable risk of sexual harm. The court gave considerable weight to the Family Report writer's inability to definitively determine the cause of the child's distress, noting it could stem from sexual abuse, other trauma, or exposure to conflict. The court found that the father's belief regarding the child's distress being influenced by the mother was truthful, and that the mother's belief of abuse, while genuine, did not render her parenting capacity so diminished as to warrant no contact. The court also determined that placing weight on the Family Report writer's opinions and recommendations adverse to the father would cause unfair prejudice, limiting its weight to matters of direct observation. Given the high conflict and the unworkability of equal shared parental responsibility, the court concluded that parental responsibility should follow the primary residence of the child.
Consequently, the court ordered that the mother have sole parental responsibility for the child, with specific provisions for informing and considering the father's input on major long-term issues, excluding relocation decisions that would significantly hinder contact. The child was ordered to live with the mother. The father was granted supervised time with the child at a contact centre, with provisions for the parties to engage a psychologist to assist in the transition. The court also made orders restraining both parents from denigrating the other to the child or discussing proceedings with the child, and requiring them to complete parenting courses. The father was granted liberty to apply to vary the time orders after a specified period of supervised contact and obtaining a psychologist's report.
Orders
Orders of the court
1.
That all previous parenting Orders be forthwith discharged.
2.
That the mother have sole parental responsibility for the child L Grainger born … 2009 (“the child”) save for any decision to relocate the child to live in a place that makes it significantly more difficult for her to spend time with the father pursuant to this parenting order.
3.
That when the exercise of her sole parental responsibility, as provided for in paragraph 2 hereof, requires the mother to make a decision about “major long-term issues”, as that term is defined in the Family Law Act 1975 (Cth), in relation to the child, save for the exclusion from that definition of decisions about the relocation of the child such that it makes it significantly more difficult for her to spend time with the father, the mother shall:
(a) inform the father in writing of the decision to be made;
(b) invite written input from the father;
(c) take the father’s input into account when making the decision that is to be made; and
(d) inform the father in writing of the decision she makes.
4.
That the child shall live with the mother.
5.
That the child shall spend time with the father as may be agreed in writing between the parties, or directed by the psychologist appointed under order 9 hereof, but failing such agreement or direction, on a supervised basis at the Interrelate Contact Centre at Town H (“the Contact Centre”) for not less than two hours per fortnight (or per week if the Centre can provide such time).
6.
That the parties forthwith do all such things and sign all such documents necessary to enrol with the Contact Centre, to the extent that they have not already done so, and share equally in all of the costs of the supervision of the child’s time with the father conducted at that Centre.
7.
That either or both of the paternal grandparents are at liberty to attend with the father when he spends time with the child.
8.
That the mother is restrained from:
(a) attending at the venue where the child is to spend time with the father, with the maternal grandmother;
(b) prolonging her departure from the venue after delivering the child;
(c) remaining at the venue when the child is spending time there with her father.
9.
That the parties shall engage with a psychologist (“the psychologist”) selected by the Independent Children’s Lawyer to meet with the child one hour prior to and immediately after the first six (or such other number as may be advised by the psychologist) occasions that she spends supervised time with the father at the venue and the Independent Children’s Lawyer shall provide such psychologist with copies of the Family Reports of Ms B (2), Ms M (1), the Report of Dr V and these Reasons for Judgment, but no other documents pertaining to the matter.
10.
That the parties shall instruct the psychologist referred to in paragraph 9 that he/she is not to discuss the child with third parties or to receive information from third parties, other than the manager of the venue.
11.
That the parties shall comply with the psychologist’s reasonable directions including, but not limited to:
(a) the preparation of the child for spending time with the father;
(b) the venue at which the child is made available to spend supervised time with the father (noting that the psychologist may wish to supervise such time themselves);
(c) activities which should be undertaken by the child when spending time with the father.
12.
That either party is at liberty to obtain a written report from the psychologist after no less than six sessions of supervised time have occurred between the father and the child.
13.
That the costs of the psychologist shall be shared equally by the parties.
14.
That the father is at liberty to apply to vary this order as to his time with the child (including any requirements for supervision), after six sessions of supervised time have occurred between the father and the child and he has obtained a written report from the psychologist and Certificates of Completion of the parenting courses referred to in paragraph 19 of these orders.
15.
That the mother shall authorise any school attended by the child to give the father information about the child’s educational and developmental progress and her involvement in school activities and to supply him, at his expense if necessary, with copies of school reports, photographs, certificates and awards obtained by the child.
16.
The mother shall authorise any medical practitioner who treats the child to give the father information about the child’s medical treatment.
17.
That the mother be restrained from:
(a) denigrating or criticising the father to the child or allowing any third party to denigrate or criticise the father within the presence or hearing of the child;
(b) discussing these proceedings with the child;
(c) other than as specifically provided in these orders, taking the child for counselling or psychological intervention or allowing others to do so unless recommended by the child’s school or general medical practitioner and after the mother has consulted with the father pursuant to paragraph 3 of these orders and has provided the father with the name, address and telephone number of the proposes counsellor or mental health professional.
18.
That the father be restrained from:
(a) denigrating or criticising the mother to the child or allowing any third party to denigrate or criticise the mother within the presence or hearing of the child;
(b) discussing these proceedings with the child.
19.
That the mother and father each complete a parenting course such as Triple P or 123 Magic and a Parenting Orders Course.
20.
That the mother and father shall keep the other parent informed at all times of their residential address and mobile telephone contact numbers and shall advise the other parent of any change to any of those details within 48 hours of such change.
21.
The Independent Children’s Lawyer shall:
(a) notify the parties of his selection of a psychologist pursuant to order 9 of these orders; and
(b) be discharged on 20 April 2016, or such other date as may be ordered.
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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