Grier & Grier

Case [2023] FedCFamC1A 32

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Grier & Grier [2023] FedCFamC1A 32

Appeal from: Grier & Grier [2022] FedCFamC2F 967
Appeal number: NAA 185 of 2022
File number: BRC 11873 of 2018
Judgment of: MCCLELLAND DCJ
Date of judgment: 23 March 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final orders changing the children’s residence from mother to father following adverse findings regarding the mother’s insight and parenting capacities – Where the primary judge found that the children were at risk of psychological and/or emotional harm in the primary care of the mother – Primary judge’s findings that the mother involved the children in the dispute and did not support the children’s relationship with the father were open on the evidence – Finding that the mother failed to comply with Court orders open on the evidence – Where primary judge adequately identified and weighted relevant evidence in ordering a change of the children’s residence to the father – No merit in any of the grounds advanced – Appeal dismissed – Appellant to pay respondent’s costs in fixed sum.
Legislation:

Family Law Act1975 (Cth) ss 4, 43, 60CC, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r.12.17
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

de Winter v de Winter (1979) FLC 90-605

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236

Grier & Grier (No 2) [2021] FamCAFC 91

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Maclean & Greenwood (2022) FLC 94-117; [2022] FedCFamC1A 200

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255

Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 96
Date of hearing: 16 February 2023
Place: Heard in Brisbane (via videolink), delivered in Sydney
Counsel for the Appellant: Ms Wilson
Solicitor for the Appellant: Cate & Co Lawyers and Associates
Counsel for the Respondent: Mr Jordan
Solicitor for the Respondent: Wilsons the Family Lawyers
Counsel for the Independent Children's Lawyer: Ms Lyons
Solicitor for the Independent Children's Lawyer: Forest Glen Lawyers

ORDERS

NAA 185 of 2022
BRC 11873 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS GRIER

Appellant
AND:

MR GRIER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

23 March 2023

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.Within 28 days of the date of these orders, the appellant is to pay the costs and disbursements of the respondent in the fixed sum of $13,533.24.

Note:   The form…

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AGLC
Grier & Grier [2023] FedCFamC1A 32
Case
[2023] FedCFamC1A 32
Decision Date

CaseChat Overview and Summary

In the matter of Grier & Grier, the appellant mother sought to appeal orders made by the Federal Circuit and Family Court of Australia concerning the care and contact arrangements of her two children with the respondent father. The children, aged eight and six, had primarily lived with their mother since the parents' separation in 2018. The appeal contested the primary judge's decision to order the children to return to their father's care and to relocate within a specified radius of a particular town. The mother also challenged the restraining orders placed on the father regarding contact with the paternal grandmother. The appeal hinged on whether the primary judge had appropriately considered the best interests of the children as per section 60CC of the Family Law Act 1975 (Cth) and if the findings made were reasonable and adequately weighed the impact on the children's relationship with their mother.

The court examined several legal issues, primarily whether the primary judge had correctly applied the relevant considerations in determining the children's best interests, if the findings were reasonably open, and if the judge had appropriately balanced the impact of the orders on the children's relationship with their mother. The court also considered whether the mother's relocation and the restraining orders were justified under the circumstances. The appeal grounds contended that the primary judge failed to sufficiently recognise the significance of the children's primary attachment to their mother and had not adequately weighed the implications of the orders on their relationship.

The court found that the primary judge had appropriately considered the mother's role as the primary carer and recognised it as a significant factor in the children's best interests. However, the judge concluded that the benefits of maintaining the mother's primary care were outweighed by her propensity to prioritise her needs over the children's best interests. The court upheld the primary judge's findings as reasonable and based on credible evidence, noting that such findings were not easily disturbed unless clearly erroneous. The restraining orders were deemed necessary given the allegations of inappropriate conduct by the paternal grandmother. The court found no merit in the appeal and dismissed it, ordering the appellant to pay the respondent's costs and disbursements in the sum of $13,533.24.

Orders

Orders of the court

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Background

Background to the litigation

The appellant mother seeks to appeal those orders on several grounds which, by way of broad summary, contend that the primary judge failed to have regard to the relevant considerations her Honour was required to consider in determining what orders were in the best interests of the children as set out in s 60CC of the Family Law Act1975 (Cth) (“the Act”). It is also contended that the primary judge made findings that were not reasonably open to her and that her Honour failed to give sufficient weight to the impact that the orders would have on the nature and quality of the children’s relationship with the mother. BACKGROUND The appellant mother is 38 years old and originally from South Australia. She has resided in Town A since 2010 and is currently employed as a fitness professional. Since June 2020, the mother has been in a relationship with Mr D, who is 67 years of age and owns a business. The respondent father is 51 years old and lives in Town A. He is a self-employed repair technician and conducts a business on leased land outside of Town E. He has one adult child from a previous relationship. The children who are the subject of the appealed orders are child X, aged 8 and child Y, aged 6. The parties commenced to cohabit in August 2010, were married in 2013 and separated in 2018. The children have primarily lived with the mother since separation. There has been a history of reports being made to the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) and Queensland Police regarding disclosures made by the children in relation to the father and the paternal grandmother. None of those reports have been found to be substantiated. The father commenced proceedings in 2018 in the Federal Circuit Court of Australia (as it was then known). The matter was originally heard in 2019 and 2020 by a judge of the Court who, unfortunately, passed away prior to delivering final judgment. The matter was then listed for further hearing on 4–7 May 2021 but it was adjourned due to a dispute as to whether an updated report should be obtained from the family report writer who had prepared earlier reports. That issue was the subject of appeal before Tree J,[1] who dismissed the mother’s appeal and ordered that the parties attend upon the family consultant for the purposes of having an updated family report prepared for the purpose of the substantive proceedings. [1] Grier & Grier (No 2) [2021] FamCAFC 91. The mother relocated to City F with the children in January 2022, resulting in the father filing an Application for a Recovery Order on 25 January 2022. On 1 March 2023, the children were ordered to return to the father’s care by a senior judicial registrar. The mother was also ordered to relocate to a location within 20 kilometres of Town A. As a result of the mother contending that one of the children had disclosed sexual abuse alleged to have been perpetrated by the paternal grandmother to her, the senior judicial registrar made orders restraining the father from bringing the children into contact with the paternal grandmother.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This ground of appeal is therefore without merit. CONCLUSION Having determined that each of the mother’s grounds of appeal are without merit, the appeal must be dismissed. Both the mother and the father indicated that they would seek an order for costs in the event that they were successful in the proceedings. The ICL did not seek an order for costs in respect to the appeal. I am satisfied that an order for costs, pursuant to s 117 of the Act, is justified in this case. The appeal has been wholly unsuccessful, with the Court finding that each ground of appeal is without merit. The mother has not contended that her financial circumstances militate against an order for costs being made. Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) empowers the Court to make an order for costs of a specific amount. That amount, however, must be one that is fair, reasonable and proportionate to the nature of the proceedings and the issues in dispute. In this matter, the father has sought an order for costs and disbursements assessed on a party/party basis in the sum of $13,531.24. Those costs, which have been assessed at the appropriate scale, are marginally less than the costs assessed by the mother on the same basis. Although, it is to be noted that the mother has incurred some additional costs in respect to considering the judgment and in drafting the Notice of Appeal. Nevertheless, having regard to the items identified in the father’s schedule of costs and cross comparing those costs to those sought by the mother, I am satisfied that the costs sought by the father are fair, reasonable and proportionate. I therefore make an order for the mother to pay the costs and disbursements of the father in the fixed sum of $13,533.24.

Ratio Decidendi

Legal Principle Established

Appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]. The difficulty in challenging findings of fact extends to “findings of secondary facts”, which are based on “inferences from primary facts”: FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 at [203] referring to Lee v Lee (2019) 266 CLR 129 at [55].CONSIDERATION Ground 1 This ground contends that the primary judge erred in “failing to find that the meaningful relationship with each parent was the result of the conduct of each parent.” In circumstances where I found this ground to be ambiguous, I sought clarification from counsel for the mother. Specifically, I sought clarification as to whether this ground of appeal related to either of the following:[2](a)was it contended that, in circumstances where the children had a good relationship with the father, the primary judge should have inferred that the mother had encouraged that relationship, or (b)was it contended that the primary judge failed to have regard to the fact that the children’s primary relationship and their primary attachment figure was their mother? [2] Transcript 16 February 2023, p.7 lines 17–26. Counsel for the mother clarified that the mother’s contention was the latter of those. That is, I should construe this ground of appeal as being a submission that the primary judge failed to give consideration or adequate consideration to the fact that, at the time of the orders made by the trial judge, the children’s primary relationship was with their mother, who was their primary attachment figure. Viewed in that light, as clarified by counsel for the mother, this ground of appeal is without merit for the following reasons. At [44] of the reasons for judgment, the primary judge notes that:…it is unchallenged that the mother was the children’s primary carer during the relationship, a care arrangement both parents viewed to be in the best interests of the children and one they continued following their separation. This is a significant consideration for the Court in its assessment of the parties’ proposals, particularly given the young ages of the children and where the proposal of the mother would continue a care regime with which they were familiar.(Emphasis added) No challenge was made to that finding which, appropriately, the primary judge noted to be a “significant consideration” (emphasis added), particularly given the young ages of the children. Having noted the significance of that connection between the children and their mother, the primary judge nonetheless concluded at [127] that, for reasons which she explained in her judgment in great detail, “the benefits afforded to the children of maintaining [the mother’s primary care] of them” were overridden by the mother’s “propensity towards elevating her adult needs over the children’s best interests”, which the primary judge found was a situation that was likely to continue. The finding by the primary judge in that respect was also repeated at [176].