FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Grossmann & Myles [2023] FedCFamC2F 1492
File number(s): MLC 1762 of 2021 Judgment of: JUDGE HARLAND Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – parenting – allegations of family violence – allegations of sexual abuse of the children – mother’s mental health – mother’s time to be supervised or in substantial attendance – whether the parties should exercise equal shared-parental responsibility – mother’s lack of insight into the children’s needs – mother’s non-compliance with orders – importance of children maintaining their Country B culture Legislation: Family Law Act 1975 (Cth) ss.60B(1), 60B(2), 60CA, 60CC, (60)CC(2), 60CC(3), 64, 65D Cases cited: Isles & Nelissen [2022] FedCFam1A 97
Oberlin & Infeld [2021] FamCAFC 66
Division: Division 2 Family Law Number of paragraphs: 252 Date of last submission/s: 4 September 2023 Date of hearing: 3, 4, 11 August 2023 Place: Melbourne Counsel for the Applicant: Mr Ambrose Solicitor for the Applicant: Trapski Family Law Counsel for the Respondent: Mr Radich Solicitor for the Respondent Marcou and Associates Pty Ltd Counsel for the Independent Children's Lawyer: Mr Eley Solicitor for the Independent Children's Lawyer: Bowlen Dunstan and Associates ORDERS
MLC 1762 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GROSSMANN
Applicant
AND: MS MYLES
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the children, X born in 2014 and Y born in 2017 (‘the children’) provided that the father:
(a)Actively seeks the mother’s input in respect of any major long-term decisions in relation to the children prior to making any major long-term decisions in accordance with order 3; and
(b)Keeps the mother informed of all major long-term decisions made for the children.
3.For the purpose of order 2 herein, before any long-term decisions are made in respect of the children, save in the event of a medical emergency:
(a)The father shall advise the mother by AppClose of his proposal relating to the children;
(b)If the mother wishes to comment on the father’s proposal (or if she has any proposal she wishes to make relating to the children on this issue) she shall, within seven (7) days after the date of the Father’s AppClose message, advise the father via AppClose of her view;
(c)Upon receipt of any comment or proposal by the mother, the father shall give consideration to the mother’s views;
(d)After the father has considered the mother’s comments, he shall make a decision and advise the mother in writing (including via AppClose) of the outcome forthwith after making that decision; and
(e)If the mother does not respond by AppClose as provided for in order 3(b), the father shall be entitled to presume that the mother does not wish to be involved and he may decide the issue.
4.The children live with the father.
5.The children spend time with the mother as follows:
(a)In week one and…
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CaseChat Overview and Summary
The court decided that the father should have sole parental responsibility for the children, with specific conditions to ensure the mother's involvement in major long-term decisions. The children would live with the father, but would spend time with the mother under supervised conditions. The court also outlined specific times when the children would not spend time with the mother, and mandated the use of a parenting app for communication between the parents. Furthermore, the court restrained the mother from removing the children from school and attending their extra-curricular activities. Both parents were required to keep each other informed of certain details regarding the children and were prohibited from exposing the children to parental conflict. The court acknowledged inconsistencies with a previous family violence order but determined that these orders did not put the children or any party at risk. The Independent Children's Lawyer was discharged, and all other pending applications were dismissed.
Orders
Orders of the court
1. All previous parenting orders be discharged.
2. The father have sole parental responsibility for the children, X born in 2014 and Y born in 2017 (‘the children’) provided that the father:
(a) Actively seeks the mother’s input in respect of any major long-term decisions in relation to the children prior to making any major long-term decisions in accordance with order 3; and
(b) Keeps the mother informed of all major long-term decisions made for the children.
3. For the purpose of order 2 herein, before any long-term decisions are made in respect of the children, save in the event of a medical emergency:
(a) The father shall advise the mother by AppClose of his proposal relating to the children;
(b) If the mother wishes to comment on the father’s proposal (or if she has any proposal she wishes to make relating to the children on this issue) she shall, within seven (7) days after the date of the Father’s AppClose message, advise the father via AppClose of her view;
(c) Upon receipt of any comment or proposal by the mother, the father shall give consideration to the mother’s views;
(d) After the father has considered the mother’s comments, he shall make a decision and advise the mother in writing (including via AppClose) of the outcome forthwith after making that decision; and
(e) If the mother does not respond by AppClose as provided for in order 3(b), the father shall be entitled to presume that the mother does not wish to be involved and he may decide the issue.
4. The children live with the father.
5. The children spend time with the mother as follows:
(a) In week one and each alternate week thereafter, each Sunday from 10.30am until 1.30pm;
(b) In week two and each alternate week thereafter, from the conclusion of school on Thursday (or 3.30pm if the children are not attending school on that day) until 6.00pm;
(c) On each of the children’s birthdays, if the children are not otherwise spending time with the mother on those days:
(i) If the children are attending school on that day, then from the conclusion of school until 6.00pm; and
(ii) If the children are not attending school on that day, then from 10.00am until 2.00pm.
(d) On Mother’s Day if the children are not otherwise spending time with the mother on that day from 10.30am until 1.30pm;
(e) On Christmas Day:
(i) In even numbered years, from 10.00am until 2.00pm; and
(ii) In odd numbered years, from 2.00pm until 6.00pm.
(f) For Easter:
(i) In even numbered years, on Easter Monday from 10.30am until 1.30pm; and
(ii) In odd numbered years, on Easter Sunday from 10.30am until 1.30pm.
(g) At such further or other times as agreed between the parties in writing.
6. Unless otherwise agreed between the parties, the time the children are to spend with the mother pursuant to order 5 shall be supervised by the maternal grandmother.
7. The time the children spend with the mother shall be suspended at the following times (and the children shall spend time with the father at such times) as follows:
(a) For Father’s Day;
(b) For Christmas:
(i) In odd numbered years on 25 December from 10.00am until 2.00pm;
(ii) In even numbered years on 25 December from 2.00pm until 6.00pm;
(c) For Easter:
(i) In odd numbered years on Easter Monday form 10.30am until 1.30pm; and
(ii) In even numbered years on Easter Sunday from 10.30am until 1.30pm.
8. The parents shall communicate about the children through the parenting app AppClose or other parenting application as agreed in writing, except in the case of an emergency where they are permitted to communicate by telephone and/or text message.
9. The mother be restrained by injunction from:
(a) Removing the children from school except as otherwise provided for in these orders; and
(b) Attending the children’s extra-curricular activities, including but not limited to the sports training and associated events.
10. Each parent is authorised to obtain from the children’s school any information usually disseminated to parents such as school reports, newsletters, photographic order forms and the like, at his/her expense.
11. Each parent is authorised to attend school events and functions that parents are ordinarily invited to attend, such as sports days, parent-teacher interviews, concerts and the like.
12. The parents keep each other informed of the following:
(a) The parents’ contact telephone numbers and email addresses and notify each other at least 48 hours prior to any change, or as soon as practicable; and
(b) All serious illnesses and/or injuries suffered by the children or either or them and/or all medical emergencies relating to the children or either of them, together with the names of and contact details for the medical and/or dental practitioners treating the children.
13. The parents by themselves, their servants and/or agents be and are hereby restrained by injunction from:
(a) Abusing. insulting, belittling, rebuking or otherwise denigrating the other party in the presence of the children or either of them and/or allowing anyone else to do so;
(b) Discussing these proceedings to or in the presence of the children or either of them and/or allowing anyone else to do so; and
(c) Exposing the children or either of them to parental conflict.
14. The parents are at a liberty to provide a copy of these orders to the children’s school, medical and allied health practitioners and extra-curricular activity providers.
15. To the extent that these orders are inconsistent with paragraphs 3 and 5 of the family violence order made in late 2023 at the Court at Suburb C, these orders are intended to prevail to the extent of any inconsistency in accordance with section 68Q of the Family Law Act 1975 (Cth).
16. The Independent Children’s Lawyer be discharged 30 days after the date of these orders.
17. All extant applications be dismissed.
AND THE COURT NOTES THAT:
A. Order 15 is inconsistent with the family violence order made in the Court at Suburb C in late 2023 in that:
a. Order 3 of the family violence order prohibits the mother from communicating with the father and the children by any means except through My Family Wizard Application; and
b. Order 5 of the family violence prohibits the mother from remaining within 200 metres of the property D Street, Suburb C, VIC, or any other place where the father and the children live, work, or attend school/childcare.
B. The Court is satisfied that the orders do not subject the children or any party to any unacceptable risk of harm.
C. In accordance with section 68P(3) of the Family Law Act 1975 (Cth), the Court will provide a copy of these orders to:
a. Victoria Police;
b. The Department of Families Fairness and Housing; and
c. The Registrar of the Court at Suburb C.
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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