Grainger & Grainger

In the matter of *Grainger & Grainger*, heard by Tree J, the court considered competing parenting proposals between the mother and father of a child, L Grainger. The dispute arose from a high-conflict separation, with the mother alleging the father posed an unacceptable risk of harm to the child, citing the child's sexualised behaviours and distress at the prospect of contact. The father, conversely, alleged the child's distress was influenced by the mother and maternal grandmother and sought increased time with the child.

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.