Grainger & Grainger - [2023] FedCFamC1F 490

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Grainger & Grainger [2023] FedCFamC1F 490

File number(s): LEC 216 of 2022

Judgment of: BAUMANN J

Date of judgment: 29 March 2023

Catchwords: FAMILY LAW – PARENTING – Where the mother sought leave to remove child from the Commonwealth of Australia for the purpose of attending the funeral of a relative – Where the child has not spent substantial time with the father during her life and therefore not being a suitable candidate to care for the child – Where the mother has unilaterally removed the child to the United Kingdom on a prior occasion – Where the High Court of the United Kingdom ordered the child be returned to Australia – Where the mother is prepared to deposit $20,000 into trust as security – Where the child has specific care requirements – Orders made permitting the mother and child to return to the United Kingdom for a short period of time to allow for participation in funeral ceremonies

Legislation: Family Law Act 1975 (Cth) s 60CC

Cases cited:
Banks & Banks (2015) FLC 93-637

Grainger & Grainger [2019] FamCA 56)

Division: Division 1 First Instance

Number of paragraphs: 46

Date of hearing: 29 March 2023

Place: Brisbane

Counsel for the Applicant: Mr Cooper

Solicitor for the Applicant: Hodgson Lawyers

Counsel for the Respondent: Mr Jackson

Solicitor for the Respondent: Justice Family Lawyers Sydney

Solicitor for the Independent Children’s Lawyer: Holmes Donnelly & Co Solicitors
ORDERS

LEC 216 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GRAINGER

Applicant

AND:
MS GRAINGER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BAUMANN J

DATE OF ORDER:

29 MARCH 2023

UPON THE UNDERTAKING OF THE RESPONDENT MOTHER THAT SHE WILL:
A.Do all acts and things necessary to facilitate the child, L born 2009 (“the child”) being returned to the Commonwealth of Australia before 5.00pm on 17 April 2023 local Sydney time.
B.Will not do any act or thing to initiate, participate or otherwise engage in, directly or indirectly, any type of proceedings or part thereof, including inquiry, examination and/or legal proceedings whether civil or criminal, in relation to the child in any jurisdiction other than these proceedings in the Australian jurisdiction.
C.Will not facilitate, support or otherwise allow by any means the child to do any act or thing to initiate, participate or otherwise engage in, directly or indirectly, any type of proceedings or part thereof, including inquiry, examination and/or legal proceedings whether civil or criminal, any jurisdiction other than these proceedings in the Australian jurisdiction.

THE COURT ORDERS:
1.That the mother be permitted to remove the child from the Commonwealth of Australia only as set out within these Orders.
2.That for the purposes of s 65Y(2) of the Family Law Act 1975 (Cth), the mother be permitted to travel with the child from the date of these Orders until 5.00pm on 17 April 2023 (AEST) time for the purposes of travel to the United Kingdom.
3.That for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grainger & Grainger

Details

AGLC: Grainger & Grainger [2023] FedCFamC1F 490
Case: [2023] FedCFamC1F 490
Decision Date

CaseChat Overview and Summary

The case Grainger & Grainger, heard by Baumann J in the Federal Circuit and Family Court of Australia, concerns an application by the mother to remove her child from Australia to attend the funeral of a deceased relative in the United Kingdom. The father opposed the application, citing the mother's history of breaching previous court orders by taking the child to the UK and keeping her there for an extended period. The mother proposed to deposit $20,000 as security and provide a return flight itinerary for the child. The central legal issue for the court was whether it was in the best interests of the child to travel to the UK for the funeral. The court considered factors under section 60CC(2) and 60CC(3) of the Family Law Act 1975, focusing on the child's relationship with the deceased relative, the mother's bond with the child, and the child's specific care requirements. Baumann J concluded that the child should be permitted to travel with the mother for a limited period, provided the mother deposited $20,000 as security, provided a return flight itinerary, and gave an undertaking not to engage in any legal proceedings in the UK on the child's behalf.

Baumann J allowed the mother to travel with the child to the UK for the funeral, subject to conditions. The mother must deposit $20,000 into the father's solicitor's trust account, provide a fully paid return flight itinerary, and file an undertaking with the court prohibiting her from initiating legal proceedings in the UK regarding the child. The child must return to Australia by 5:00pm on 17 April 2023. If the mother fails to return the child by this date, the father and the Independent Children’s Lawyer have leave to urgently relist the matter. The court's decision was based on the unique circumstances of the funeral, the mother's previous breaches of court orders, and the need to balance the child's best interests with the mother's wishes.

Orders