GRANT & GRANT - [2011] FamCA 298

FAMILY COURT OF AUSTRALIA

GRANT & GRANT

[2011] FamCA 298

FAMILY LAW - CHILDREN – Parental responsibility – meaningful relationships – where the children have grown apprehensive of or do not wish to spend time with the father – the children’s relationships with the father have deteriorated and are no longer meaningful – the father has anger issues – the father has propensity to behave aggressively towards the mother – the father’s behaviour has capacity to constitute family violence – where the father has undertaken psychological therapy and educational courses – the father has not shown real or genuine change – children at risk of psychological harm as a result of the father’s behaviour – where the mother remains willing and able to facilitate relationships between the children and the father – the mother inappropriately involved the children in the parties’ child support matters – the mother is aware this involvement was inappropriate – sole parental responsibility allocated to the mother

FAMILY LAW - CHILDREN – With whom a child spends time – where interim orders were in place for the children to spend supervised time with the father – Grant & Grant [2010] FamCA 534 – interim orders designed to assess the viability of final orders for the children to spend time with the father – review of interim orders – where the children only spent time with the father in accordance with interim orders on one occasion – views – where the children no longer wish to spend time with the father – supervised time – where appropriate supervisors are not available on an indefinite basis – no orders are made regarding the children’s time with the father – children’s time with the father is at the discretion of the mother – weekly telephone communication

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

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Grant

RESPONDENT:

Ms Grant

INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke, Legal Aid NSW

FILE NUMBER:

NCC

1053

2009

DATE DELIVERED:

05 May 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

29 March 2011

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, Barbara Garrick & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Scally, Legal Aid NSW

Orders

All former parenting orders in respect of the children L, born … May 2001, and G, born … September 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.
Each of the parties shall take all reasonable steps to ensure that the children communicate with the father…

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 & GRANT

Details

AGLC: GRANT & GRANT [2011] FamCA 298
Case: [2011] FamCA 298
Decision Date: 05 May 2011

CaseChat Overview and Summary

In *Grant & Grant*, the Family Court of Australia considered parenting orders concerning two children. The dispute centred on the father's relationship with the children, which had deteriorated significantly, with the children expressing apprehension and a lack of desire to spend time with him. The court also noted the father's anger issues and aggressive behaviour towards the mother, which had the capacity to constitute family violence. While the father had undertaken therapy and educational courses, the court found no evidence of genuine change. Conversely, the mother, despite inappropriately involving the children in child support matters, remained willing and able to facilitate a relationship with the father.

The primary legal issues before the court were whether to continue or vary existing interim orders for supervised time with the father, and how to allocate parental responsibility and determine the children's time with each parent, given the circumstances. The court was required to assess the children's best interests, considering their views, the father's behaviour, and the mother's capacity to facilitate a relationship.

Austin J reasoned that the children were at risk of psychological harm due to the father's behaviour. Despite the mother's acknowledged inappropriate conduct regarding child support, her willingness and ability to foster a relationship with the father were weighed against the father's demonstrated propensity for aggression and lack of proven change. The court found that the children's relationships with the father were no longer meaningful and that the father's behaviour posed a risk. The court also noted the practical difficulties in providing indefinite supervised time, particularly the unavailability of appropriate supervisors.

Consequently, all former parenting orders were discharged. The mother was granted sole parental responsibility for the children, and the children were ordered to live with her. The father was restrained from attending the mother's home and the children's schools. No orders were made for the children to spend time with the father; this decision was left to the mother's discretion as an incident of her sole parental responsibility. However, orders were made for weekly telephone communication and for the exchange of letters, cards, and gifts, with provisions for the mother to facilitate communication and for both parties to refrain from denigrating each other in the children's presence.

Orders

Orders of the court

All former parenting orders in respect of the children L, born … May 2001, and G, born … September 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.

Each of the parties shall take all reasonable steps to ensure that the children communicate with the father each Tuesday, between 7.00 pm and 8.00 pm, and for that purpose the father shall telephone the children on the mother’s landline telephone, and the mother shall ensure that the children are able to receive the father’s calls at that time and encourage them to each speak with the father.

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.

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.

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.

10.

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

11.

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.

12.

Any and all outstanding applications are dismissed.

Notation

(A) No order is made providing for the children to spend time with the father, or precluding the children from doing so. Whether the children spend time with the father, and the circumstances under which that should occur, will be decided by the mother as an incident of her sole parental responsibility for the children.

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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