Children – belligerent grandfather’s time with child reduced from fortnightly to monthly on appeal by parents

In Sarti and Anor & Sarti (No.3) [2020] FamCAFC 319 (17 December 2020) Ryan J, sitting in the appellate division of the Family Court of Australia, allowed the separated parents’ appeal from interim parenting orders made for a grandfather to spend time with his grandson each fortnight.

The parents had implemented a week-about arrangement for the child between them and a monthly arrangement for the grandfather. The father and the grandfather had a strained relationship; the grandfather foreshadowed court proceedings in “antagonistic” correspondence ([8]); and there was an incident between the mother and the grandfather at the child’s pre-school which left the mother “very rattled”, “threatened, anxious and upset” ([7]).

The grandfather relied upon a report of a general practitioner as to his suffering from inoperable liver cancer which was such that he had three months to live.

Ryan J said (from [26]):

“ … [T]he grandfather has a track record of belligerent refusal to abide reasonable requests by the parents (…)

[27] Had the … judge noticed … that the grandfather’s behaviour towards the parents … created tension between the parents, the finding … that the grandfather’s behaviour was unlikely to negatively impact on the child would not have been made. (…)

[36] It is appropriate to give some weight to the parents’ decision to cease the child’s contact with the grandfather and their reasons for so doing. It was a carefully considered and reasonable exercise of their parental authority. [T]here is evidence which shows that the child enjoyed his time with his grandfather … . But for the fact of their pre-existing relationship, greatest weight would have been given to the parents’ decision on the issue. … [N]otwithstanding the risks arising from the effect … on the parental relationship, it is in the child’s best interests for him to resume his relationship with his grandfather. (…)

[38] … Once every four weeks is an arrangement with which the child is familiar and the parties have shown they can manage. (…)”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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