Grantham & Birchmore - [2011] FamCA 486

FAMILY COURT OF AUSTRALIA

GRANTHAM & BIRCHMORE & ORS

[2011] FamCA 486

FAMILYLAW – CHILDREN – With whom a child lives/spends time – Interim hearing – Where father has brain injury – Agreement reached for the child to spend regular time with the father supervised by his parents – Intervention by paternal grandparents in parenting proceedings – Paternal grandparents sought orders to spend time with the child – Where child has a good relationship with paternal grandparents – Where there needs to be a balance between time child will spend with paternal grandparents, father and the mother – Orders for paternal grandparents to spend time with child made in terms of the Independent Children’s Lawyer’s minute of order.

FAMILYLAW – CHILDREN – Application by father for injunction restraining the mother from leaving the child in either of the mother’s brothers sole care – Where evidentiary foundation for proposed restraint is lacking – Application refused.

FAMILYLAW – PROPERTY – Interim distribution – Compensation payment – Whether court should make a “dollar for dollar” interim costs order – “dollar for dollar” order not made – Where quantum of interim payments unlikely to exhaust mother’s final property settlement – Where mother has other assets to rectify any maladjustment – Orders made for interim payment in the mother’s favour.

FAMILYLAW – CAPACITY – Whether the father has capacity to conduct the parenting proceedings – Where the father has a Case Guardian in financial proceedings – Definition of a person with a disability under the Family Law Rules 2004 considered – Ordered that the father obtain expert opinion about his capacity to continue to conduct the parenting proceedings.

Family Law Act 1975 (Cth)

Family Law Rules 2004

Felice & Felice [2011] FamCA 162
Kennon & Kennon (1997) FLC 92-757

APPLICANTS:

Mr Grantham and NSW Trustee & Guardian

1st RESPONDENT:

Ms Birchmore

2nd RESPONDENT:

Mr L

3rd RESPONDENT:

Ms M

INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

FILE NUMBER:

SYC

6258

2010

DATE DELIVERED:

23 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

11 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Levy

SOLICITOR FOR THE APPLICANTS:

York Family Law

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Richards

SOLICITOR FOR THE 1^ST RESPONDENT:

Vizzone Ruggero & Associates

COUNSEL FOR THE 2^ND & 3^RD RESPONDENTS:

Ms Hausman

SOLICITOR FOR THE 2^ND & 3^RD RESPONDENTS:

Moylan Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Tiyce as agent Rafton Family Lawyers

It is ordered

BY CONSENT AND PENDING FURTHER ORDER

That the child N born … 2005 (“the child”) shall live with the mother.
That the child shall spend time with the father as follows:
(a) from 4.00 pm until 6.00 pm each Wednesday;
(b) each Sunday from 9.00 am until 7.00 pm;
(c)during any NSW school holiday period on the Wednesday of any school holiday week from 9.00 am until 7.00 pm.
That the father’s time with the child shall be personally supervised by 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.

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Details

AGLC: Grantham & Birchmore [2011] FamCA 486
Case: [2011] FamCA 486
Decision Date: 23 June 2011

CaseChat Overview and Summary

This matter concerned parenting and property proceedings before Ryan J. The father, who has a brain injury, had reached an agreement with the mother for the child to spend regular supervised time with him, with supervision provided by his parents (the paternal grandparents). The paternal grandparents subsequently intervened in the parenting proceedings, seeking orders for time with the child, with whom the child shared a good relationship. The court was required to balance the time the child would spend with the paternal grandparents, the father, and the mother. In relation to the father's capacity to conduct the parenting proceedings, given he had a Case Guardian in financial proceedings, the court considered the definition of a person with a disability under the *Family Law Rules 2004* and ordered the father to obtain expert opinion on his capacity. The father also sought an injunction restraining the mother from leaving the child in the sole care of either of her brothers, but this application was refused due to a lack of evidentiary foundation.

The court's reasoning in the parenting proceedings involved balancing the competing interests of the parties and the child's best interests. The court ultimately made orders for the paternal grandparents to spend time with the child, in terms of the Independent Children’s Lawyer’s minute of order. In the property proceedings, the court considered an application for an interim distribution, specifically a "dollar for dollar" interim costs order, which was not made. The court reasoned that the quantum of interim payments was unlikely to exhaust the mother's final property settlement and that she had other assets available to rectify any maladjustment. Consequently, interim payments were ordered in the mother's favour.

Orders