Thornton and Machey & Anor - [2012] FamCA 1057

FAMILY COURT OF AUSTRALIA

THORNTON & MACHEY AND ANOR

[2012] FamCA 1057

FAMILY LAW – CHILDREN – With whom the child spends time – where the child spends time with the mother one day each weekend graduating to the child spending every third weekend and half of school holiday periods with the mother over next two years – where a graduated scheme allows for the relationship between the mother and child to be restored – where the paternal family abandoned allegations that the child was at risk of sexual harm from the mother, her husband or the maternal half-sibling – where the father currently resides with the paternal grandmother

FAMILY LAW – CHILDREN – With whom the child lives – where the child lives with the paternal grandmother – where the child has a more significant and meaningful relationship with the paternal grandmother than with the parents – where there is a high risk of psychological harm to the child in removing her from the residence of the paternal grandmother – where the paternal grandmother and father both demonstrated some insight into the detrimental effect upon the child of not supporting her relationship with the mother – where there is an injunction restraining the child’s unattended interaction with the paternal great grandmother

FAMILY LAW – CHILDREN – Parental Responsibility – where the paternal grandmother, father and mother have equal shared parental responsibility – where it would benefit the child for the mother to be involved in major long-term decisions concerning her welfare despite the past conflict between the paternal family and the mother

FAMILY LAW – CHILDREN – Injunctions – parties restrained as to the names used by or in the presence of the child for the paternal grandmother, the father, the mother, and the mother’s husband

FAMILY LAW – CHILDREN – Name of child – orders made for the paternal grandmother to register the change to the child’s surname

Births, Deaths, and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65AA, 65DAA, 65DAC and 65DAE
Family Law Amendment Act 2000 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Marriage of L & T (1999) 25 Fam LR 590
McCall v Clark (2009) 41 Fam LR 483
MRR v GR (2010) 240 CLR 461
Potts & Bims & Ors [2007] FamCA 394
Re David (1997) 22 Fam LR 489

APPLICANT:

Ms Thornton

RESPONDENT:

Ms Machey

SECOND RESPONDENT:

Mr E

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

3235

2009

DATE DELIVERED:

14 December 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

26, 27, 28 & 29 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B. Kelly

SOLICITOR FOR THE APPLICANT:

Nash Allen Williams & Wotton Solicitors

COUNSEL FOR THE FIRST RESPONDENT:

Ms D. Burns

SOLICITOR FOR THE FIRST RESPONDENT:

Baker Love Lawyers

COUNSEL…

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: [2012] FamCA 1057
Decision Date

CaseChat Overview and Summary

The proceedings before the Family Court of Australia involved the paternal grandmother as the applicant, and the mother and father as respondents, concerning parenting arrangements for their child. The dispute arose following previous consent orders made in December 2010, which were quickly followed by controversy, leading the paternal grandmother to initiate these proceedings due to concerns about the child's alleged sexual abuse within the mother's household.

The court was required to determine several key issues, including with whom the child should live and spend time, the nature of parental responsibility, and the appropriateness of various injunctions. Specifically, the court considered the child's significant and meaningful relationship with the paternal grandmother, the risk of psychological harm if removed from her care, and the benefit of restoring the child's relationship with the mother through a graduated time-sharing scheme. The court also addressed the implications of abandoned allegations of sexual harm and the need for the mother's involvement in major long-term decisions.

In its reasoning, the court applied principles from the *Family Law Act 1975* (Cth) concerning the best interests of the child, including the importance of maintaining relationships and protecting the child from harm. The court found that the child had a more significant relationship with the paternal grandmother and that removing the child from her care posed a high risk of psychological harm. Consequently, the court ordered that the child live with the paternal grandmother and that the mother, father, and paternal grandmother share equal parental responsibility. A graduated time-sharing arrangement was established to facilitate the restoration of the child's relationship with the mother over a two-year period, and injunctions were imposed to protect the child from harmful discussions and to regulate the names used by or in the presence of the child. The court also ordered a change to the child's surname to "Machey-Thornton" and mandated therapeutic counselling for the child.

Orders