Grinnyway and Looper and Anor - [2013] FamCA 1018

FAMILY COURT OF AUSTRALIA

GRINNYWAY & LOOPER AND ANOR

[2013] FamCA 1018

FAMILY LAW – CHILDREN – Undefended hearing – with whom the children shall live and spend time – parental responsibility – children resident with maternal grandmother for the past two years – children to continue living with the maternal grandmother – maternal grandmother to have sole parental responsibility – need to protect the children from risk of harm posed by both parents – mother and father restrained from spending time or communicating with the children other than by post on special occasions – children to attend counselling for psychological trauma – maternal grandmother restrained from allowing the children to be in the presence of a particular member of the extended maternal family and from administering corporal punishment to the children.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) ss 4, 4AB

Aldridge & Keaton (2009) FLC 93-421
Allesch v Maunz (2000) 203 CLR 172
Dennett & Norman [2007] FamCA 57
Potts & Bims & Ors [2007] FamCA 394
Taylor v Taylor (1979) 143 CLR 1
Valentine & Lacerra [2013] FamCAFC 53

APPLICANT:

Ms Grinnyway

FIRST RESPONDENT:

Ms Looper

SECOND RESPONDENT:

Mr Birkan

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

2013

DATE DELIVERED:

20 December 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

2 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Coast Law

COUNSEL FOR THE FIRST RESPONDENT:

N/A

SOLICITOR FOR THE FIRST RESPONDENT:

N/A

COUNSEL FOR THE SECOND RESPONDENT:

N/A

SOLICITOR FOR THE SECOND RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr A. Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All former orders relating to the following children (“the children”) are discharged:
(a)       A Birkan, born … 2003;
(b)       J Birkan, born … 2005; and
(c)       K Birkan, … 2009.
The applicant maternal grandmother (“the applicant”) shall have sole parental responsibility for the children.
The applicant shall ensure the attendance of the children at any psychological counselling recommended by their existing counsellor for as long as the counsellor deems necessary.
The children shall live with the applicant.
The parties are restrained from causing or permitting the children to spend time with either the mother or the father.
Pursuant to s 68B of the Family Law Act the mother and father are restrained from entering upon or approaching within 100 metres of:
(a)The applicant’s residence; and
(b)Any school or pre-school attended by the children.
Subject to Order 8 hereof, the parties are restrained from causing or permitting the children to communicate with either the mother or the father.
The parties shall take all reasonable steps to ensure that the children are able to communicate with the mother and father in the following manner:
(a)By the mother and father being able to send letters, cards,…

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

Case: [2013] FamCA 1018
Decision Date

CaseChat Overview and Summary

This case, heard in the Family Court of Australia, involved an application by Ms Grinnyway (the maternal grandmother) concerning the parenting arrangements for three children, A Birkan, J Birkan, and K Birkan. The dispute centred on with whom the children should live and spend time, and who should hold parental responsibility, given the risks posed by both parents. The mother, Ms Looper, did not participate in the proceedings, and the father, Mr Birkan, withdrew from the proceedings prior to the final hearing.

The court was required to determine the most appropriate parenting orders that would protect the children from harm and promote their best interests. Specifically, the court had to consider whether the children should continue to live with the maternal grandmother, the extent of parental responsibility she should hold, and the nature and extent of any contact the children should have with their mother and father. The court also needed to address the children's need for psychological counselling and impose necessary restraints on the parties to ensure the children's safety.

Justice Austin applied the paramount principle that the best interests of the children are the primary consideration, as enshrined in the *Family Law Act 1975* (Cth). The court found that both parents posed risks of harm to the children, necessitating significant protective measures. Given that the children had resided with the maternal grandmother for approximately two years and she had demonstrated her capacity to protect them, the court ordered that the children live with her and that she have sole parental responsibility. The court also ordered that the children attend psychological counselling and imposed restraints on the parents, preventing them from spending time or communicating with the children, except for postal communication on special occasions. Further orders restrained the maternal grandmother from allowing the children to be in the presence of a specific extended family member and from administering corporal punishment.

The court ordered that all former orders relating to the children be discharged. The maternal grandmother was granted sole parental responsibility and ordered to ensure the children's attendance at psychological counselling. The children were to live with the maternal grandmother, and both parents were restrained from spending time or communicating with the children, save for postal communication on birthdays and Christmas. The parents were also restrained from approaching the maternal grandmother's residence or the children's schools. The maternal grandmother was further restrained from allowing the children to be in the presence of a particular individual and from administering corporal punishment. The Independent Children's Lawyer was discharged upon the expiration of the appeal period, and all outstanding applications were dismissed.

Orders