Maynard and Marchand and Anor - [2018] FCCA 2954

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYNARD & MARCHAND & ANOR

[2018] FCCA 2954

Catchwords:
FAMILY LAW – Parenting – high conflict between the maternal grandmother and the mother – co-operative parental alliance between separated parents – seven year old child with Autism Spectrum Disorder – whether maternal grandmother should have time with child.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC

Cases cited:

Aldridge v Keaton (2009) 235 FLR 450
Church & Overton and Anor [2008] FamCA 965

Applicant:

MS MAYNARD

First Respondent:

MS MARCHAND

Second Respondent:

MR MARCHAND

File Number:

HBC 588 of 2017

Judgment of:

Judge Baker

Hearing dates:

3-4 October 2018

Date of Last Submission:

4 October 2018

Delivered at:

Hobart

Delivered on:

19 October 2018

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Solicitors for the Applicant:

N/A

Counsel for the First Respondent:

Mr Trezise of Counsel

Solicitors for the First Respondent:

AC Family Legals

Counsel for the Second Respondent:

Self-Represented

Solicitors for the Second Respondent:

N/A

Counsel for the Independent Children's Lawyer:

Mr Turnbull

Solicitors for the Independent Children's Lawyer:

Ogilvie Jennings

ORDERS

Ms Marchand (‘the mother’) and Mr Marchand (‘the father’) have equal shared parental responsibility for the child [X] (‘[X]’) born 2011.
[X] live with the mother.
[X] spend time with the father at times agreed with the mother.
Ms Maynard (‘the grandmother’) be at liberty to send [X] a Christmas Card and a birthday card each calendar year provided such card(s) is child focused, does not in any way denigrate the mother or father, does not seek to influence [X] with any of the grandmother’s views regarding time [X] should spend with the grandmother, or the grandmother’s religious or political views.
The grandmother shall forward cards to the father’s address and the father shall use his reasonable discretion to determine if the cards are provided to [X].
The father shall retain for [X] all cards and the letters which have been sent by the grandmother and shall retain for [X] all cards that will be sent to him by the grandmother.
The father and grandmother shall keep each other advised of their postal addresses.
The mother and the father shall not denigrate the grandmother in the presence or within the hearing of [X].

IT IS NOTED that publication of this judgment under the pseudonym Maynard & Marchand & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 588 of 2017

MS MAYNARD

Applicant

And

MS MARCHAND

First Respondent

And

MR MARCHAND

Second Respondent

REASONS FOR JUDGMENT

Introduction

The separated parents of a seven year old autistic child, [X] born 2011 (‘[X]’), oppose the maternal grandmother’s application to spend time with [X]. The parents have a co-operative parental alliance. They have agreed about his living arrangements since they separated in November 2014.
The grandmother and her daughter have an acrimonious relationship. The grandmother has admitted that she physically and emotionally abused her daughter during her childhood. The mother has no…

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.

Continue reading Maynard and Marchand and Anor

Details

AGLC: Maynard and Marchand and Anor [2018] FCCA 2954
Case: [2018] FCCA 2954
Decision Date: 19 October 2018

CaseChat Overview and Summary

The dispute before Judge Baker in the Federal Circuit and Family Court of Australia concerned parenting arrangements for a seven-year-old child diagnosed with Autism Spectrum Disorder. The primary parties were the child's parents, Ms Marchand (the mother) and Mr Marchand (the father), and the child's maternal grandmother, Ms Maynard. The proceedings were characterised by high conflict between the mother and the grandmother, contrasted with a co-operative parental alliance between the separated parents.

The court was required to determine whether the maternal grandmother should have time with the child, and to establish appropriate orders regarding the child's living arrangements, time with each parent, and communication between the child and the grandmother. A key consideration was the impact of the inter-familial conflict on the child, particularly given the child's Autism Spectrum Disorder.

Judge Baker made orders for equal shared parental responsibility between the mother and father, with the child to live with the mother. The child was to spend time with the father at times agreed with the mother. Regarding the grandmother, the court granted her liberty to send child-focused Christmas and birthday cards annually, provided they did not denigrate either parent, seek to influence the child regarding time with the grandmother, or express the grandmother's religious or political views. The father was to receive these cards and exercise his discretion in providing them to the child, while also retaining all cards sent by the grandmother for the child's future. The court also ordered that the parents not denigrate the grandmother in the child's presence.

Orders

Orders of the court

Ms Marchand (‘the mother’) and Mr Marchand (‘the father’) have equal shared parental responsibility for the child [X] (‘[X]’) born 2011.

[X] live with the mother.

[X] spend time with the father at times agreed with the mother.

Ms Maynard (‘the grandmother’) be at liberty to send [X] a Christmas Card and a birthday card each calendar year provided such card(s) is child focused, does not in any way denigrate the mother or father, does not seek to influence [X] with any of the grandmother’s views regarding time [X] should spend with the grandmother, or the grandmother’s religious or political views.

The grandmother shall forward cards to the father’s address and the father shall use his reasonable discretion to determine if the cards are provided to [X].

The father shall retain for [X] all cards and the letters which have been sent by the grandmother and shall retain for [X] all cards that will be sent to him by the grandmother.

The father and grandmother shall keep each other advised of their postal addresses.

The mother and the father shall not denigrate the grandmother in the presence or within the hearing of [X].

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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