FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Horton & Reid [2024] FedCFamC2F 1705
File number(s): ADC 1480 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 2 December 2024 Catchwords: FAMILY LAW – PARENTING – Final hearing – Three children aged almost 15, 12 and 10 years – Where the applicant is the maternal grandmother and the first respondent is the mother – Where the second respondent father has not engaged in the proceedings to date – Where the applicant maternal grandmother seeks time spending with the children – Applicant maternal grandmother alleges the children are at risk in the first respondent mother’s care – Where the first respondent mother opposes the application – Views of the children – Consideration of best interests – Where the Court considers that time spending with the applicant maternal grandmother is not in the best interests of the children – Orders for cards and gifts. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 64B, 64C, 65D
Family Law Amendment Act 2024 (Cth)
Cases cited: Cao & Cao (2018) FLC 93-880
Fitzwater v Fitzwater [2019] FamCAFC 251
Fox & Percy (2003) 214 CLR 118
Housing Commission of New South Wales v Pastoral Company Pty Ltd [1983] 3 NSWLR 378
Illes & Nelisson [2022] FedCFamC1A 97
Keane & Keane [2021] FamCAFC 1
Kozma & Bielen [2022] FedCFamC2F 1250
Division: Division 2 Family Law Number of paragraphs: 133 Date of hearing: 20, 21, 22 November 2024 Place: Adelaide Counsel for the Applicant: Self-represented Counsel for the Respondent: C. Harris Solicitor for the Respondent: Phoenix Family Law Solicitor for the Independent Children's Lawyer: S. Lewis-Dermody ORDERS
ADC 1480 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HORTON
Applicant
AND: MS REID
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
2 DECEMBER 2024
THE COURT ORDERS BY CONSENT THAT:
1.The mother have sole parental responsibility for the children X born in 2009, Y born in 2012 and Z, born in 2013 (‘the children’).
2.The children live with the mother.
AND THE COURT FURTHER ORDERS THAT:
3.All previous parenting orders be discharged.
4.The children spend time with the father as agreed between the mother and father in writing.
5.The children spend time with the maternal grandmother on times and dates as agreed between the mother and the maternal grandmother in writing.
6.The time referred to in paragraph 5 herein shall be subject to the children’s wishes and with the mother to facilitate such time if sought by any or all of the children to her.
7.The maternal grandmother is at liberty to send the children cards, letters and gift vouchers of equal value up to four (4) times each year, to be posted to the mother’s postal address being PO Box …, Suburb B in the State of South Australia and the mother is to…
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CaseChat Overview and Summary
The court analysed the evidence presented, including the views of the children and the maternal grandmother’s allegations. It was noted that the children did not wish to spend time with their grandmother, which was a significant factor in the court's consideration. The court assessed the risk factors and the dynamics of the family, concluding that the proposed time spending with the grandmother was not in the children’s best interests. The court also noted the need to protect the children from exposure to discussions of family violence and coercive control, which led to restrictions on communication between the grandmother and the children regarding these sensitive topics.
The court ordered that the children continue to live with their mother, who would have sole parental responsibility. It was stipulated that the children would spend time with their father and grandmother as agreed in writing between the parents. The court also allowed the grandmother to send cards, letters, and gift vouchers to the children, to be managed by the mother. Restrictions were placed on the grandmother’s interactions with the children, particularly prohibiting discussions about family violence and coercive control, and use of social media to discuss the family or legal proceedings. The Independent Children's Lawyer was tasked with explaining the court's orders to the children and providing them with the grandmother's contact details. The court further discharged the existing applications and restrained both parties from using social media to discuss the family and legal proceedings.
The final orders discharged the Independent Children's Lawyer after meeting with the children, required the mother to keep the grandmother updated on any changes in address, and mandated that the children be provided with their grandmother's contact information. The court's orders were aimed at maintaining the safety and welfare of the children while managing the dynamics between the parties involved.
Orders
Orders of the court
ADC 1480 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS HORTON
Applicant
AND:
MS REID
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
2 DECEMBER 2024
THE COURT ORDERS BY CONSENT THAT:
1. The mother have sole parental responsibility for the children X born in 2009, Y born in 2012 and Z, born in 2013 (‘the children’).
2. The children live with the mother.
AND THE COURT FURTHER ORDERS THAT:
3. All previous parenting orders be discharged.
4. The children spend time with the father as agreed between the mother and father in writing.
5. The children spend time with the maternal grandmother on times and dates as agreed between the mother and the maternal grandmother in writing.
6. The time referred to in paragraph 5 herein shall be subject to the children’s wishes and with the mother to facilitate such time if sought by any or all of the children to her.
7. The maternal grandmother is at liberty to send the children cards, letters and gift vouchers of equal value up to four (4) times each year, to be posted to the mother’s postal address being PO Box …, Suburb B in the State of South Australia and the mother is to ensure that such items are passed onto the children.
8. The maternal grandmother is restrained and an injunction is hereby granted restraining her from raising, evidencing, conversing with or discussing these Court proceedings and any documents arising therefrom and the topics of family violence, coercive control or alienation with any or all of the children during any time spending or in compliance with paragraph 7 herein.
9. The mother do keep the maternal grandmother updated as to any change in the postal address referred to in paragraph 7 herein.
10. The maternal grandmother and the mother be restrained and injunctions are hereby granted restraining each of them from:
(a) Posting on, using or engaging on any social media platform, regarding each of the parties, the children, their relationships and any legal proceedings; and
(b) Encouraging any third party to refer to each of the parties and the children and any legal proceedings involving the parties and the children by the use of social media.
11. Within twenty-eight (28) days from the date of these Orders, the Independent Children’s Lawyer shall meet with the children to explain these Orders and to provide them with a copy of the maternal grandmother’s email address.
12. The appointment of the Independent Children’s Lawyer be discharged following her meeting with the children as provided for in paragraph 11 herein.
13. All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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