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 of 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

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

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The father is restrained from attending:

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

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

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

6. 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.

7. 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.

8. 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.

9. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Grant 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 NEWCASTLE

FILE NUMBER: NCC 1053 of 2009

Mr Grant

Applicant

And

Ms Grant

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 5 May 2011, final parenting orders were pronounced in respect of the parties’ two children and reasons simultaneously published to explain the orders, bringing to an end all outstanding proceedings before the parties.

2. The orders caused the marginalisation of the father in the children’s lives. Provision was made for the mother to have sole parental responsibility for the children and for the children to live with her. The orders restrained the father from attending the mother’s home or the children’s schools and only allowed weekly telephonic communication between him and the children. Whether the children spent any time with the father and the conditions under which that may occur was left entirely to the unilateral decision of the mother as an incident of her sole parental responsibility for the children.

3. Fresh proceedings were commenced by the father on 24 August 2012, when he filed an Initiating Application seeking orders that introduced a structured regime under which the children would spend time with him. The impetus for the fresh application was the father’s belief in his successful rehabilitation from a variety of afflictions that formerly impaired his parenting capacity.

4. While the father may have worked to improve his condition, time has moved on. The children are older and their relationships with him have deteriorated over the past few years. An updated Family Report revealed the children were resistant to restoration of their relationships with the father. Commendably, the father realised the children’s maturity required that considerable weight should be reposed in their views and he discontinued his Application.

5. The mother, however, pressed ahead with her application for the orders set out in her Amended Response, which proposed the variation of the orders made in May 2011 in some relatively limited ways.

6. The father was served with the mother’s Amended Response.[1] The procedural orders made on 20 September 2013, which forewarned of the prospective determination of the mother’s application in his absence, were also sent by the Court to the father’s last known address for service. The father did not appear at the final hearing. In view of the father’s voluntary withdrawal from the proceedings, as foreshadowed, the mother’s application was heard and determined on an undefended basis.

   [1] Notation A made on 20 September 2013

Application and evidence

1. The mother petitioned the Court for the orders set out within her Amended Response filed on 26 August 2013.

2. The mother’s proposal entailed four changes to the existing final orders made on 5 May 2011, which were:

   (a)The express restraint of the father from spending any time with the children, in lieu of merely a notation that the mother would unilaterally determine if, when and how the children would spend time with the father;

   (b)The children’s weekly telephone communication with the father to occur on Wednesday in lieu of Tuesday evenings, and on the children’s mobile telephone in lieu of the mother’s landline telephone;

   (c)The mother’s relief from having to provide to the father, and keep him appraised of, any of her contact details other than her email address and mobile telephone number; and

   (d)The express restraint of the father from allowing the children to have any contact with his brother Mr D Grant.

3. In support of her proposal the mother relied upon:

   (a)Her affidavit filed on 22 October 2013; and

   (b)The updated Family Report dated 1 August 2013.

4. In the absence of the father, the mother was not required for cross-examination and the mother did not require the Family Consultant for cross-examination. Consequently, the unchallenged evidence of both the mother and Family Consultant is accepted.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461 and are familiar to the parties because they have been cited in the reasons previously delivered in adjudication of the parties’ disputes (see Grant & Grant [2010] FamCA 534; Grant & Grant [2011] FamCA 298).

9. For present purposes, however, there are other salient considerations. In order to thwart the prospect of endless or repetitive litigation over children,  principles evolved to permit the dismissal of parenting proceedings if there have been no material changes in circumstances and no revelation of some previously unknown feature of material relevance since litigation was last finalised in respect of such children (see Rice v Asplund (1979) FLC 90-725 at 78,905; SPS v PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 at [48]).

10. The determination of whether there has been a change of sufficient magnitude to warrant review of existing orders may be made either by preliminary inquiry or by more comprehensive hearing (see Marsden v Winch at [46-47]; Miller v Harrington (2008) FLC 93-383 at [80-83]), but at whichever stage the determination is made, application of the Rice v Asplund principle is merely a manifestation of the principle that the subject child’s best interests are the paramount consideration (see Marsden v Winch at [55]; Miller v Harrington at [101]).

11. Relevantly, the Rice v Asplund principle need not impede the determination of an application for only small and discrete alterations to existing orders which require only a short and narrow enquiry (see SPS v PLS at [83]).

Best interests of the children

1. Because only a short and narrow enquiry is required to determine the mother’s proposal for only small and discrete alterations to existing orders, it is unnecessary to laboriously refer to each of the criteria prescribed by s 60CC of the Act. The children’s best interests only need be considered in the context of the discrete changes proposed.

2. Significantly, the process of deterioration of the children’s respective relationships with the father, identified in the last proceedings,[2] has continued unabated. There is no respite in sight.

   [2]Grant & Grant [2011] FamCA 298 at [43]-[51]

3. The eldest child recently persistently told the Family Consultant that she did not want to spend any time with the father, even in a supervised setting. She only reluctantly agreed to briefly see the father under the observation of the Family Consultant. She does not often think of the father and has even told him directly that she does not wish to see him.[3]

   [3] Family Report, paras 61-71

4. Similarly, the youngest child repeatedly informed the Family Consultant she did not wish to spend any time with the father. She had previously given the father mixed messages over the telephone, sometimes telling him she did want to see him and other times telling him she did not.[4] It is understandable how she would have experienced pressure to placate the father by assuring him she wanted to see him if, as the mother contended, the father pestered the children during telephone calls about whether they were prepared to visit him.[5] The youngest child has the impression the father is unpredictable and she does not feel safe in his care.[6] Like her sister, the youngest child was reluctant to even see the father under the observation of the Family Consultant.[7]

   [4] Family Report, paras 74-76, 78, 81, 91

   [5] Mother’s affidavit, paras 13-14

   [6] Family Report, para 77

   [7] Family Report, paras 72, 82, 83

5. When the children were observed by the Family Consultant together with the father they appeared anxious and did not engage with him, other than to maintain courtesy. In response to the father’s direct question, the children informed him they were uncomfortable in his presence. The father was only able to prolong the conversation for a few minutes before he chose to bring their meeting to an end.[8] The children both subsequently reported to the Family Consultant they felt awkward,[9] which is how they presented.

   [8] Family Report, paras 84-89, 97

   [9] Family Report, para 91

6. The children are now aged 12 and 11 years respectively.[10] There is no reason to suspect their maturity is not commensurate with their chronological ages. Although the Family Consultant did not offer any express opinion about the youngest child’s maturity, she said the eldest child presented as “reasonably mature” and her views appeared to be informed by her own adverse experiences with the father rather than be influenced by the mother.[11]

   [10] Family Report, para 2

   [11] Family Report, para 70

7. The Family Consultant opined how the children’s relationships with the father have “ambivalent features” and warned of the prospect that the children may become “quite resistant” if forced to spend time with the father contrary to their wishes.[12]

   [12] Family Report, paras 97, 100

8. The Family Consultant recommended that “no orders should be made for the children to spend time with the father”,[13] which it should be noted is not the same thing as the mother’s proposal for an injunction that expressly precludes the children’s from spending time with the father. The former permits but does not oblige interaction between the children and the father, whereas the latter forbids it.

   [13] Family Report, para 107

9. The stage has been reached where the findings most probably available are that the children derive only limited benefit from their relationships with the father and that such benefit is satisfactorily obtained by their maintenance of only weekly telephone communication with him (s 60CC(2)(a)). The children are of such an age and maturity that substantial weight must be accorded to their views not to spend time with the father (s 60CC(3)(a)), which views are not contaminated by the mother’s influence (s 60CC(3)(m)).

10. The orders made in May 2011 do not expressly preclude the children from spending time with the father.[14] In response to that situation the father has exerted some pressure upon the children in the hope of convincing them to express a desire to visit him,[15] which tends to demonstrate an impaired level of insight on the father’s part (s 60CC(3)(f),(i)). The children are understandably anxious about being caught between the expectations or hopes of the parties. Orders should be made which relieve them of that pressure.

    [14] Notation A made on 5 May 2011

    [15] Mother’s affidavit, para 16

11. Those considerations lead most reliably to the conclusion that an injunctive order is required to abate any expectations of the father or the children that they might ultimately have to spend time with him.

12. In such circumstances, there has been a change in circumstances since orders were last made that warrants adjustment of those orders.

Conclusions and orders

1. For reasons explained in the previous proceedings, the mother should have sole parental responsibility for the children.[16] Nothing about that aspect of the evidence has changed.

   [16]Grant & Grant [2010] FamCA 534 at [144-145]; Grant & Grant [2011] FamCA 298 at [86]

2. Since there is no allocation of equal shared parental responsibility, there is no need to consider the alternate residential regimes prescribed by s 65DAA of the Act. The children should remain resident with the mother.

3. For the reasons explained above, an order should be made precluding the parties from allowing the children to spend time with the father. Such an order was not eventually the subject of any controversy because the father withdrew from the proceedings knowing the mother sought such an order. He therefore did not resist it and realised such an order could be made in his absence.

4. The remaining three changes to the existing orders proposed by the mother are easily determined.

5. Firstly, the mother wants the children to communicate with the father by telephone on Wednesdays instead of Tuesdays. The parties agreed to that change and implemented it some six months ago because of one child’s participation in an extra-curricular activity on Tuesdays.[17] In addition, the mother wants that communication to occur via the children’s own mobile telephone. That arrangement was also voluntarily implemented by the parties because the father purchased a mobile telephone for the children’s use.[18] Orders are therefore made confirming those arrangements.

   [17] Mother’s affidavit, para 5; Family Report, para 30

   [18] Mother’s affidavit, para 18; Family Report, para 30

6. Secondly, the mother wants to be relieved of the obligation to keep the father appraised of her residential address and landline telephone number. That desire springs from the father’s unnecessary attendance at the mother’s home in March 2012,[19] in clear breach of the orders made in May 2011,[20] and his occasional verbal abuse of the mother over the telephone.[21] The Family Consultant was supportive of the mother’s proposal.[22] There was no rational basis for the father’s insistence to the Family Consultant that he should know where the children live and know the mother’s landline telephone number.[23] The evidence demonstrates the mother’s proposal is reasonable and such orders are therefore made.

   [19] Mother’s affidavit, para 7; Family Report, para 41

   [20] Order 4(a) made on 5 May 2011

   [21] Mother’s affidavit, para 17

   [22] Family Report, para 106

   [23] Family Report, para 28

1. Thirdly, the mother wants the father restrained from allowing the children any form of interaction with the paternal uncle, Mr D Grant. The paternal uncle was convicted of and sentenced to imprisonment for a sexual assault, but he was released in November 2011. The father lived with the paternal uncle, at least for a short time, after November 2011.[24] There is no good reason why the children should have any association with the paternal uncle, particularly since the father reported during the previous proceedings that that he had no positive support from any member of his family[25] and reported during these proceedings that he had no relationship with the paternal uncle.[26] The injunction sought by the mother is therefore made, just as the Family Consultant recommended.[27]

   [24] Mother’s affidavit, paras 20-22; Family Report, paras 8, 27

   [25]Grant & Grant [2011] FamCA 298 at [72]

   [26] Family Report, para 27

   [27] Family Report, para 111

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 November 2013.

Associate:

Date:  18 November 2013