Grant and Grant - [2013] FamCA 893

FAMILY COURT OF AUSTRALIA

GRANT & GRANT

[2013] FamCA 893

FAMILY LAW – CHILDREN – Best interests – injunctions – undefended hearing – variation of existing final orders sought by the mother – father voluntarily withdrew his application for variation of existing final orders upon hearing the children’s views – only several discrete issues in contention – day changed for telephone communication – mother relieved from disclosing her address to father – father restrained from spending time with the children – father restrained from allowing the children to have any interaction with their paternal uncle, who had previously been imprisoned for sexual assault

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DAA, 65DAC, 65DAE

Goode & Goode (2006) FLC 93-286
Grant & Grant [2010] FamCA 534
Grant & Grant [2011] FamCA 298
Marsden v Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) FLC 93-383
MRR v GR (2010) 240 CLR 461
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Mr Grant

RESPONDENT:

Ms Grant

FILE NUMBER:

NCC

1053

2009

DATE DELIVERED:

18 November 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

5 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Ms Garrick, Brennan Garrick Lawyers

Orders

All former parenting orders in respect of the children L, born … 2001, and G, born … 2002, (“the children”) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The father is restrained from attending:
(a) The home of the mother and children, and
(b) The schools at which the children are enrolled.
The parties are restrained from causing or permitting the children to spend time with the father.
The father is restrained from causing or permitting the children to be in the personal presence of, or from having any interaction or communication with, the paternal uncle Mr D Grant.
Each of the parties shall take all reasonable steps to ensure that the children communicate with the father by telephone on Wednesdays between 7.00 pm and 8.00 pm by the father telephoning the children on the mobile telephone provided by him to them.
Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:
(a)By the father being able to send letters, cards, and/or gifts to the children on or about the dates of their birthdays, the father’s birthday, Father’s Day, and Christmas Day, and
(b)By the mother promptly sending to the father:
(i)Written acknowledgement of receipt of the father’s written communication, and
(ii)Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to…

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 Grant and Grant

Details

AGLC: Grant and Grant [2013] FamCA 893
Case: [2013] FamCA 893
Decision Date: 18 November 2013

CaseChat Overview and Summary

The case of *Grant and Grant* concerned parenting orders made by Justice Austin in the Family Court of Australia. The dispute involved the mother and father of two children, L and G, born in 2001 and 2002 respectively. The court's orders addressed the future arrangements for the children, including their living situation, parental responsibility, and communication with both parents.

The central legal issues before the court were how to best provide for the children's welfare and development in light of the circumstances, and what specific orders were necessary to achieve this. This included determining the extent of each parent's responsibilities, the nature and limitations of contact between the children and their father, and measures to protect the children from negative influences and ensure their well-being. The court also considered the role of the paternal uncle, Mr D Grant, in relation to the children.

Justice Austin's reasoning led to orders discharging all previous parenting arrangements. The mother was granted sole parental responsibility, and the children were ordered to live with her. The father was significantly restricted, being restrained from attending the mother's home and the children's schools, and from causing or permitting the children to spend time with him. Furthermore, the father was restrained from facilitating any interaction between the children and his brother, Mr D Grant. The orders established a framework for limited, supervised communication between the children and their father, primarily through scheduled telephone calls and the exchange of written correspondence. The court also imposed obligations on both parents to refrain from denigrating each other in the children's presence and to keep each other informed of important matters concerning the children, including medical emergencies and school reports. The orders also mandated the exchange of contact details and incorporated a Fact Sheet detailing the obligations and consequences of contravention.

Orders

Orders of the court

All former parenting orders in respect of the children L, born … 2001, and G, born … 2002, (“the children”) are discharged.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

The father is restrained from attending:

(a) The home of the mother and children, and

(b) The schools at which the children are enrolled.

The parties are restrained from causing or permitting the children to spend time with the father.

The father is restrained from causing or permitting the children to be in the personal presence of, or from having any interaction or communication with, the paternal uncle Mr D Grant.

Each of the parties shall take all reasonable steps to ensure that the children communicate with the father by telephone on Wednesdays between 7.00 pm and 8.00 pm by the father telephoning the children on the mobile telephone provided by him to them.

Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

(a) By the father being able to send letters, cards, and/or gifts to the children on or about the dates of their birthdays, the father’s birthday, Father’s Day, and Christmas Day, and

(b) By the mother promptly sending to the father:

(i) Written acknowledgement of receipt of the father’s written communication, and

(ii) Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.

Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

10.

The mother shall notify the father of any medical emergency, illness or injury suffered by the children warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.

11.

The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms.

12.

Each party shall forthwith inform the other, and keep each other informed, in writing, of their respective mobile telephone number and email address.

13.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

14.

Any and all outstanding applications are dismissed.

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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