GRAINGER & GRAINGER

[2014] FamCA 801

FAMILY COURT OF AUSTRALIA

GRAINGER & GRAINGER [2014] FamCA 801

FAMILY LAW – CHILDREN – With whom a child spends time – Where father sought to spend supervised time with child on the child’s birthday – Where a complex and lengthy history involving a high conflict separation between the parties which has not abated over time – Where child in recent time has experience great distress at the prospect of spending time with or being in the presence of the father – Where Court noted there was a real risk of further aberrant behaviour on the part of the child in the event the father was permitted to spend the time sought with the child – Where Court satisfied the risk of harm outweighs the benefit of the attempt at reintroduction of the child to the father – Where Court declined to order the additional time between the father and the child.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Grainger

RESPONDENT: Ms Grainer

INDEPENDENT CHILDREN’S LAWYER: Mr Dooley

FILE NUMBER: LEC 612 of 2010

DATE DELIVERED: 11 September 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 11 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mason

SOLICITORS FOR THE APPLICANT: David Hunter Law

SOLICITOR FOR THE RESPONDENT: Ms Banks

SOLICITORS FOR THE RESPONDENT: Susan Green Solicitor

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

1. The mother is to enrol in and complete the first available Parenting Orders Program or an equivalent course identified as appropriate by the Independent Children's Lawyer and advised by him to the mother’s solicitor;

1. The mother use her best endeavours to ensure that the maternal grandmother likewise enrols in and completes the first available Parenting Orders Program or equivalent course as identified by the Independent Children's Lawyer.

1. The mother and the father are to seek assistance in relation to communication about the child L born … 2009 and her wellbeing by using a Family Consultant and meet with that person on at least a three monthly basis from one month after the mother completes her Parenting Orders Program and that such counselling be reportable.

1. The identity of the Family Consultant referred to in Order 3 be determined by the Independent Children's Lawyer in consultation with both parties.

1. In the event that any party wishes to cross-examination or further cross-examination the Family Report Writer,  Ms B, that the parties have liberty to apply.

1. The trial of this matter is to resume before the Honourable Justice Tree in Brisbane in the first half of 2015 on a date and time to be advised to the parties.

1. On or before 28 days prior to the trial date as advised to the parties, each party is to make file and serve any additional material upon which they intend to rely upon at the resumed hearing.

AND IT IS ORDERED BY CONSENT THAT:

1. Order 2 of the consent Orders made 6 June 2013 be forthwith discharged.

AND IT IS FURTHER ORDERED THAT:

1. The applications made by paragraphs 10 to 12 of the father’s Application in a Case filed 26 February 2014 be dismissed.

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).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER:  LEC 612 of 2010

Mr Grainger

Applicant

And

Ms Grainger

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me there is an application seeking, in substance, that on the birthday of L (the child the subject of these proceedings), the father spend time with her either supervised by one or both of his parents or at the H Contact Centre.  The time that he seeks to spend with the child is two hours.  That application is opposed by the mother and the Independent Children’s Lawyer.

2. This matter has a complex and lengthy history.  It arises in the context of a high‑conflict separation between the child’s parents, which conflict, unfortunately, does not appear to have abated over time.  The child has, in recent times, experienced great distress at the prospect of spending time with or, indeed, even being in the presence of, her father. 

3. Most recently, in June of this year, Ms M, the expert witness retained to provide assistance to the court as to the reasons for the child’s distress, attempted to effect some form of reintroduction between the child and the father, the outcome of which is contained at paragraphs 7.65 through to 7.80 of her subsequent report.  Relevantly, the child demonstrated great reluctance to even go into the room in the company of Ms M, where the father was.  Attempts by the mother to pick her up and calm her did not bear fruit.  The child, according to Ms M, appeared to become more agitated and screamed and ran away from the mother. 

4. When the child was brought into the room in her mother’s arms, she had her face buried in her mother’s shoulder, refused to be removed from her mother’s arms and stated that she wanted to go outside.  She did not acknowledge the father.  She remained unsettled and crying and, according to Ms M, not wanting to be in the room, in consequence of which the mother took her back to the waiting area and the father departed. 

5. Thereafter, the child’s behaviour continued and Ms Ms identifies that the child started yelling and became very angry and hid behind a chair and started glaring at the adults and hissing like a cat.  She would not let her mother or grandmother touch her, and although the maternal grandmother grabbed her and tried to hold her and calm her, the child continued to scream and wriggle and started purposely scratching the grandmother’s arms with force.  This led to the abandonment of Ms M’s plan to effect reintroduction of the child to the father.

6. The cause of the child’s behaviour has, notwithstanding Ms M’s assistance, not been able to be determined by her.  However, it is plain from paragraph 7.66 of her report that whether it be the cause or not, a precursor to the child’s behaviour was the mother’s agitation and, further, that she said, seemingly in the child’s presence, that she was fearful of Mr Grainger, being the father, and that it would be very difficult for her to see him. 

7. I should say that Ms M is critical of both parents in other aspects of her report, but particularly recommends, and indeed I have ordered, that the mother attend Post‑Orders Parenting Programs and that both parents seek assistance from a Family Consultant in relation to communication about the child. 

8. The foundation of the father’s case, in which he advises me he ultimately wishes to argue that the child should change from her mother’s care to the father’s, is that the mother will not facilitate a meaningful or, indeed, perhaps any relationship, between the child and her father.  However, as I raised with Mr Mason, who appears as counsel for the father, given that that is the foundation upon which the father’s case is based, and given that there is no evidence which would suggest, if it be that the mother lacks insight and is determined to thwart the father’s attempts to re‑establish a relationship with the father, there is no reasonable basis for concluding that a further attempt at reintroduction of the child to the father would achieve with any outcome different to that which occurred when Ms M was involved.

9. True it is that Mr Mason points to a birthday visit, albeit a day after the child’s birthday, last year, which appeared to go swimmingly.  But since then, further attempts at reintroducing the child to the father have not been successful, of which the recent attempt by Ms M is but the latest.  I do not accept that merely because a birthday event went fine on the last year, that it is likely to go well this year. 

10. I am extremely troubled, as indeed it appears was Ms M, that the perpetuation of the exposure of the child to her parents’ conflict is likely to effect real psychological harm to her.  That, of course, is one of the primary considerations under section 60CC of the Act and one which the court is obliged to give real weight to.  I acknowledge, of course, that additionally the court is obliged to consider the benefit of a meaningful relationship between the child and each of their parents. 

11. However, in circumstances where there is a real risk in the short term to the child of being forced to yet again, in the context of high conflict between the parents, be reintroduced to the father, in my view, the risk of harm outweighs the benefit of the attempt at reintroduction of the child to the father.  I can well understand the father desiring to spend time with the child.  However, his desire is not determinative or, indeed, a matter which should be given any particular weight, given the real risk of further aberrant behaviour on the part of the child in the event that his wishes were acceded to. 

12. I therefore decline to order the additional time between the father and the child on the child’s birthday, and I dismiss paragraphs 10 to 12 of the father’s Application in a Case listed before me today. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 September 2014.

Associate: 

Date:  11 September 2014