Grainger & Grainger (No 3)

Case [2024] FedCFamC1F 470

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Grainger & Grainger (No 3) [2024] FedCFamC1F 470

File number(s): LEC 216 of 2022
Judgment of: SCHONELL J
Date of judgment: 1 August 2024
Catchwords:

FAMILY LAW – PARENTING – Relocation – Where the mother sought to permanently move to the United Kingdom with the child – Where the father opposed the relocation to the United Kingdom – Where the mother has unilaterally removed the child to the United Kingdom on a prior occasion – Where the High Court of Justice in the United Kingdom ordered the child be returned to Australia – Where the child has not spent time with the father since 2015 – Where final parenting orders were made in 2015 and again in 2019 – Where there is a complex and lengthy history involving high conflict between the parties – Where the Court determined that, on balance, the child’s best interests are met by permitting relocation

FAMILY LAW – PROPERTY – Where the mother sought enforcement of financial orders made in 2015 and to be made trustee for sale of the property – Where the father sought orders pursuant to s 79A(1)(c) setting aside the consent property orders and for the Court to make new orders pursuant to s 79 – Where the Court determined that previous property orders should be enforced and that the mother after a further 90 days be appointed as trustee of sale for the property.

Legislation:

Family Law Act 1975 (Cth)

Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”)
Cases cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Bailey & Bailey (No. 2) [2018] FamCA 632

Franklyn & Franklyn [2019] FamCAFC 256

McDonald and McDonald [1976] FamCA 29

Monticone & Monticone (1990) FLC 92-114

Morgan v Miles (2007) FLC 93-343; [2007] FamCA 1230

Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152

Rice & Asplund (1979) FLC 90-725

Rohde & Rohde (1984) FLC 91-592

Sayer v Radcliffe and Another (2012) 48 Fam LR 298 [2012] FamCAFC 209

U v U (2002) 211 CLR 238; [2002] HCA 36

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 226
Date of hearing: 2 – 4 July 2024
Place: Sydney
The Applicant: Litigant in person
Counsel for the Respondent: Mr Jackson
Solicitor for the Respondent: Mr Bawa, Justice Family Lawyers
Independent Children’s Lawyer: Mr Holmes, Holmes Donnely & 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

Intervener

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

1 AUGUST 2024

THE COURT ORDERS THAT:

1.All current parenting orders are discharged.

2.The child L born 2009 live with the mother.

3.Subject to the terms of this order, the mother shall have sole parental responsibility for major long term decisions for the child but shall advise the…

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AGLC
Grainger & Grainger (No 3) [2024] FedCFamC1F 470
Case
[2024] FedCFamC1F 470
Decision Date

CaseChat Overview and Summary

In the matter of Grainger & Grainger (No 3), the Federal Circuit and Family Court of Australia addressed a contentious parenting dispute and property settlement between Mr Grainger and Ms Grainger. The court was required to determine whether Ms Grainger should be permitted to relocate with their child to the United Kingdom and whether the 2015 property settlement should be enforced. The central issues included the child's best interests, the possibility of re-establishing a relationship between the child and the father, and the enforcement of prior property orders.

The Court considered the complex history of conflict between the parties and the child's apparent distress during past attempts at contact with the father. Despite the father's concerns about the mother's alleged interference in the child's relationship with him, the Court found little hope for restoring a relationship, whether the child relocated or not. The Court also acknowledged the mother's apparent happiness in the UK and the potential benefits for the child. Weighing these factors, the Court concluded that permitting the relocation was in the child's best interests, subject to certain video sessions with the father and paternal family. Additionally, the Court determined that the 2015 property orders should be enforced, with the mother appointed as the trustee for the sale of the property after a further 90 days.

The final orders included discharging all current parenting orders, granting sole parental responsibility to the mother with specific conditions for communication and contact with the father, and permitting the relocation to the UK on the condition of scheduled video sessions. The Court also ordered the enforcement of the 2015 property settlement, with the mother appointed as trustee for the sale of the property, subject to specific terms for the sale and division of proceeds.

Orders

Orders of the court

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

Intervener

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

1 AUGUST 2024

THE COURT ORDERS THAT:

1. All current parenting orders are discharged.

2. The child L born 2009 live with the mother.

3. Subject to the terms of this order, the mother shall have sole parental responsibility for major long term decisions for the child but shall advise the father in writing not less than fourteen (14) days prior to the decision coming into effect if she intends:

(a) To change the child’s surname; or

(b) To change the child’s school, once the current home schooling arrangements cease.

4. The child shall spend time with the father in accordance with her wishes.

5. The parents are to keep the other informed of their current email address, emergency telephone number, postal address (for gifts and correspondence to the child) and shall advise of any change within fourteen (14) days.

6. The mother shall advise the father within fourteen (14) days of the re-enrolment of the child into a public or private school, including the name of the school, upon the cessation of home schooling and this order shall be authority for the father to obtain information from the school as to the child’s progress.

7. The mother shall advise the father if the child suffers a serious injury, condition or illness requiring hospitalisation within forty eight (48) hours of such hospitalisation.

8. The father shall be permitted to send to the child a card and/or gift for the child’s birthday, Christmas or other significant milestone in the child’s life and the mother shall ensure that such cards and gifts are handed to the child without any adverse comment.

9. The mother shall encourage the child to respond by email to the father to thank him for the card or gift.

10. The mother shall no less than twice in each calendar year, provide the father by email with:

(a) A written summary of information concerning the child which shall include an update on the child’s health, education, hobbies and any activities/sports the child is attending as well as recent photographs of the child; and

(b) A copy of the child’s school reports when received.

11. The mother has permission to relocate the child’s residential address to the United Kingdom conditional upon the child spending three Microsoft Teams events of not less than ten minutes with the father and his parents. Such Microsoft Teams events to occur at a time agreed upon between the parties and failing agreement to occur at weekly intervals; the first such event to occur on the first Wednesday following compliance with Order 12 and to take place between 6.00 pm and 7.00 pm with the mother to initiate the Microsoft Teams event to the father. The father is to provide to the mother within 72 hours of the making of these orders by way of email, his contact details for the purposes of the Microsoft Teams event. The Microsoft Teams events are to occur on weekly intervals thereafter.

12. The ICL is requested to meet with the child and explain to the child the making of these orders.

13. Upon the ICL having explained the orders to the child, the ICL is discharged.

14. That, at the expiration of 90 days after the making of these orders, by way of enforcement of the orders made on 18 June 2015 (as varied on 23 May 2016) pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) and specifically referrable to orders 22 to 27 inclusive, the property located at T Road, Town O in the state of New South Wales, (“Town O property”) be sold and for the purposes of effecting that sale:

(a) The mother be appointed as Trustee for sale (“The Trustee”) at which point she shall have all the powers of a Trustee for Sale of real estate appointed pursuant to the laws of the state, including in addition, the Trustee is empowered to do all things, including signing all documents necessary to effect a sale of the Town O Property including but not limited to:

(i) Determining whether the sale is by private treaty or by auction;

(ii) Appointing and instructing a Listing Agent and Conveyancer to act on the sale;

(iii) Liasing with and instructing any third parties, including insurers of the Town O property, to resolve any outstanding claims and preparing the property for sale;

(iv) Determining the sale price, including the listing price from time to time, or the reserve price in the event of sale by auction; and

(v) Negotiating with the highest bidder in the event that the reserve price is not reached.

15. That in relation to the sale of the Town O property, the father shall:

(a) Co-operate in every way with the selling agent including:

(i) Making the key available;

(ii) Allowing inspection of the Town O property at all reasonable times requested; and

(iii) Complying with any requests made by the selling agent, relating to the sale of the Town O property.

(b) Be restrained from doing or saying anything to hinder or prevent a sale being effected;

(c) Ensure, at his expense, the Town O property, including the grounds, are in a neat and clean condition at the time of the inspection by the selling agent and prospective purchasers;

(d) Vacate the Town O property, at his expense, on or before completion of the sale so as to provide vacant possession to the purchaser of the property.

16. That pending the sale of the Town O property, the father be:

(a) Restrained from further encumbering the Town O property;

(b) Solely responsible for all outgoing, including mortgage repayments, council rates and water rates, maintenance levies etc relating to the Town O property.

17. That upon the sale of the Town O property, the proceeds of sale (including any deposit received) are to be applied in the following order and priority:

(a) In payment of agent’s selling commission and auction expenses relating to the sale;

(b) In payment of all conveyancing related legal costs and disbursements in relation to the sale;

(c) In repayment of such amount as is necessary to discharge the mortgage secured upon the Town O property;

(d) An amount equal to 70 per cent of the balance then remaining to the mother;

(e) In repayment of any strata levies outstanding in relation to the Town O property;

(f) In repayment of any amount owed by the applicant father to the Legal Aid Commission of NSW (“LAC”) and for the purposes of compliance with this order:

(i) Within seven days from the date of these orders, the solicitors for the mother write to the LAC asking them to confirm the amount owed to them by the father.

(g) The balance thereof to the father.

18. That the Trustee have liberty to apply to the Court for the making of any orders or the giving of any directions in relation to the trust created by these orders.

19. In the event that the father refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then the Registrar of the Court be appointed pursuant to s 106A of the Act to execute such deed or instrument in the name of the father and do all acts and things necessary to give validity and operation to these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I regard the following, amongst others, as relevant issues for consideration:(1)Is a change of primary care to the father in the child’s best interests;(2)Is there the possibility of a resumption of a relationship between the father and the child;(3)Is that possibility more likely if the child stays in Australia or is permitted to move to the UK;(4)The weight to be given to the child’s views;(5)Is a relocation to the UK in the child’s best interests.BACKGROUND The parties commenced cohabitation in early 2006, were married in mid-2006 and separated on a final basis in August 2010. The parties were divorced in early 2012. The parties’ only child was born in 2009, and is currently 14 years old. At the time of separation, the child was very young. On 17 December 2010, the father commenced proceedings in the Federal Circuit Court of Australia (as it was then known). December 2012 was the last time the father spent time with the child prior to the 2015 hearing. In June 2015, Tree J delivered reasons and made orders. In his judgment His Honour referred to the orders that had been made to enable the child to spend time with her father as follows: 144.An important aspect of the mother’s case is that the child strongly reacts adversely to the prospect of, and in consequence of, spending time or communicating with the father. The father does not dispute that behaviour, however says that it is influenced and caused by the mother and maternal grandmother. …145.The first Contact Centre utilised by the parties was at [Town E]. The father first spent time with the child on 29 June 2012 at that facility and last spent time with the child there on 15 December 2012. A subsequent attempt at having the child spend time with the father at that Centre on 4 January 2013 was abandoned, and no further attempts at contact at that Centre were attempted.146.Pursuant to the consent orders made at the commencement of the trial before me, the mother moved to [Town H], and renewed attempts at getting the child to spend time with the father commenced at the [FF Contact Centre] on 28 June 2013. They continued until 3 May 2014, when an attempt at having the child spend time with the father was abandoned, and thereafter the father agreed to suspend spending further time with the child. That is the last occasion (leaving aside the Family Report interviews) when he has attempted to spend time with the child.147.Turning firstly to the supervised time at the [GG Contact Centre], on the first occasion that the child spent time with the father, she was angry at separating from her mother, which anger lasted about 10 mins. Notwithstanding that, once the visit was underway, it went well. On 13 July and 3 August 2012 there were also separation issues, but the visits went well. Thereafter for the next five visits there were no separation issues recorded in the notes, and the visits went well. The last such visit was on 19 October 2012.…149.Thereafter, until the attempts at contact were abandoned, the child on each and every of the five subsequent visits at the [GG Contact Centre] had major separation issues. On 2 November, the child cried for the first hour of the visit when she spent time with the father. The next visit on 23 November was cancelled because of the child’s distress at separation. Likewise the attempted contact visit on 30 November was cancelled. The Contact Centre notes record:[The child] became distressed; crying (building to deep sobbing, requiring tissues to wipe tears and mucus from face); saying that she wanted to go with her mother and holding onto her mother’s legs and arms and asking her mother to cuddle and pick her up…150.The next visit was on 15 December 2012. The Contact Centre notes records:[The mother] gave verbal encouragement “its time to see daddy” but made no move to facilitate separation with physical cues.151.The child was demonstrating some distress and separation anxiety. However ultimately the child was persuaded to spend time with her father and appeared to spend reasonable time both with him and the paternal grandparents.…227.I am satisfied to the requisite standard that the mother and maternal grandmother want to sabotage the child’s relationship with the father, and paternal family generally. They firmly believe that there should be no such relationships, and not merely will not facilitate them, but will actively seek to destroy them.…231.On occasions when the father and this litigation is being discussed between the mother and maternal grandmother, I am satisfied that there is no risk whatsoever that any positive statement about the father would be made. I am satisfied the maternal grandmother and mother would only ever speak negatively of the father. Moreover, I am satisfied that even if he were mentioned, even in a benign context, their response would inevitably be a negative one. I have no doubt whatsoever that the child knows that both her mother and grandmother have the strongest possible negative views of her father, and this would only be reinforced by their inevitable anxiety at the child spending even supervised time with the father, and, on occasion, their hostile and aggressive behaviour to Contact Centre staff and others.…256.Weighing all of those matters in balance, I am not persuaded that the father presents as an unacceptable risk of sexual harm to the child.… 266.I am not satisfied that the child spending time with the father would significantly impair the mother’s ability to parent the child.

Evidence

Evidence Before The Court

There is no evidence that the child has contacted the father since January 2024. DR J'S EVIDENCE I have carefully read the report of Dr J and listened closely to her oral evidence. There was no challenge to her expertise or experience. I am satisfied she has a comprehensive understanding of the issues, and insight into the problems faced by the child. The report and her oral evidence was considered and insightful. She has the benefit of a longitudinal assessment having been engaged with the parties since 2017 including as stated earlier, having preparing a report in 2018 for the proceedings before Baumann J. For the purposes of her current report, Dr J interviewed, amongst others, the parties, the child, the child's psychologist and read the documents recorded in her report. At the commencement of her oral evidence, she acknowledged that she had read the trial affidavits. She advised that her views remained unaltered. In relation to the positions adopted by each party in respect of their competing applications, Dr J reports as follows:30.[The father] asserted that he continues to feel concerned for the manner in which [the child] is exposed to undermining forces and considers the only way forward and to remove her from the care of [the mother] and have her participate in therapy preferably with [Dr DD]. [The father] said that he would intend enrolling [the child] in a school nearby to where he lives. He commented that he has friends and family who would support him. He believes that would bring more balance into [the child]’s life.31.As per her Response, [the mother] proposed that the final parenting orders dated 11th February 2019 be enforced. She proposed that she and [the child] be permitted to relocate to the United Kingdom.32.[The mother] was adamant that she believes it is in the best interests of [the child] to live in the U.K. given the ease with which she had settled in. [The mother] asserted that property remains unresolved. The father reported to Dr J that little had changed since the orders were made in 2019. He told her that following that judgment he sent cards and gifts to the child approximately every six weeks as well as on special occasions and acknowledged that sometimes there was a lapse between her receiving a gift and sending a response. He advised Dr J that the mother had no regard for Court orders and was engaged in a systematic estrangement of the child from him and his family supported by her mother. He understood that the child was happy living in the United Kingdom but questioned the extent to which her views were a reflection of her own experience rather than that of her mother and maternal grandmother. Dr J reports the father was concerned about what he described as an enmeshed relationship between the mother, the maternal grandmother and the child. He indicated that he regarded the maternal grandmother as integral to the actions of the mother and heavily involved in the proceedings. He told Dr J that it was appalling the way they have used the child.

Decision

Reasons for decision

In view of that evidence, it seems that there is little hope of the restoration of a relationship between the child and the father whether the child is permitted to relocate or not. It is to be recognized and I am sure it will be communicated to the child by the ICL that the father did not propose as an alternative to his primary proposal that the child is not permitted to relocate.CONCLUSION If parenting disputes were to be resolved by punishing poor parental behaviour, then the result of my determination would be very different. However, they are not so determined. The Court is charged with deciding what is in the child’s best interests and sometimes as here the implementation of such mandate looks superficially like an endorsement of appalling conduct. In Baumann J’s 2019 judgment his Honour observed that little had changed in the parenting dynamic. His Honour observed:32.The dilemma now is frankly almost identical to that faced by Tree J when his trial finished although regrettably the situation is much more difficult for [the child] now (at age [9] years) then it was when she was six years old at the last visit in September 2015. … Those words ring prophetically true five years later when the child is now nearly 15. I am not satisfied that either of the fathers’ proposals are in the interests of the child for the reason earlier given. The alternate proposal for prescribed time and video attendance once in the UK will almost certainly be undermined and sabotaged by the mother and maternal grandmother. They were not supported by Dr J, and I have every confidence that the alternative arrangement would fail as every other order has and would just provide the possibility of further litigation. That would be the antithesis of what is in the child’s best interests. The father recognized that the maternal family appear unhappy in Australia and were apparently happy in the UK. I take account of the evidence of Dr J that there seemed to be benefits to the child of the mother’s apparent happiness when in the UK. I have also had regard to the mother’s right to live in a place of her own choosing. On balance for the reasons given I am satisfied that the child’s best interests are met by permitting the relocation to the UK. I am also satisfied consistent with the evidence of Dr J that there should be some video sessions between child and the father and paternal grandparents. The ICL submitted that the relocation should be conditional on there being three 10 minute video sessions between the child and the paternal family. The mother’s opposition was on the basis of it being conditional. I am satisfied that it is in the best interests of the child that these sessions occur, and I am also satisfied that they should occur before the departure from Australia. It will be the child’s only chance of holding an image in her mind of her father and paternal grandparents. The mother and maternal grandmother exert enormous influence over the child when it suits them to do so. They were able to make the child attend upon the ICL notwithstanding the child’s alleged refusal to attend, convince the child to return to Australia when she had said that she would not and convince her to board aircraft despite her apparent fear. I am confident that they will be able to make her attend upon the sessions.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.