Austin and Anor and Dunne

[2016] FCCA 1015

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTIN & ANOR & DUNNE [2016] FCCA 1015

Catchwords:
FAMILY LAW – Parenting – where father committed suicide – where paternal grandparents seek orders whereby the young child aged less than 3 live with the paternal grandparents in Sydney and spend time with the mother who lives in (omitted) – where mother is seeking that the application be summarily dismissed – where oral application made for paternal grandparents to spend time with child – where oral application made for child’s name to be removed from airport to enable the mother to travel overseas with child – held that paternal grandparent’s initiating application be dismissed – where no evidence to support their claims – held that mother be permitted to travel overseas with child – held that paternal grandparents spend time with child for a day every two months.

Legislation:

Family Law Act 1975, ss.64B, 65DA

Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules2001, r.13.10

Cases cited:

Church & M Overton & Anor [2008] FamCA 953
Lindon v Commonwealth (No 2) (1996) 136 ALR 251
McDonald & Sandler [2012] FamCAFC 191

Applicants: MR AUSTIN AND MS AUSTIN

Respondent: MS DUNNE

File Number: BRC 11585 of 2015

Judgment of: Judge L. Turner

Hearing date: 19 April 2016

Date of Last Submission: 19 April 2016

Delivered at: Brisbane

Delivered on: 21 April 2016

REPRESENTATION

Counsel for the Applicants: Mr Galloway

Solicitors for the Applicants: Marsdens Law Group

Solicitors for the Respondent: Mr Cooper of Cooper Family Law

ORDERS

1. That the paternal grandparent’s Initiating Application filed on 3 December 2015 is hereby summarily dismissed.

2. That forthwith the child X (who may also be recorded as X) born (omitted) 2013 be removed from the Airport Watch List.

3. That the mother MS DUNNE born (omitted) 1987 and the child be permitted to travel outside the Commonwealth of Australia from 21 April 2016 to 16 May 2016.

4. That commencing Saturday 21 May 2016 the paternal grandparents spend time with the child on the third Saturday of every second month from 9:00am to 5:00pm with changeover to occur at McDonald's (omitted) and that time occur with the child at other such times as can be agreed upon between the paternal grandparents and the mother.

5. That the paternal grandparents file and serve within forty-two (42) days from the date hereof a fresh Initiating Application in respect to the spend time with arrangements only with respect to the child.

6. That in the event that the paternal grandparents choose not to commence proceedings in accordance with Order (5) then the spend time with Order as provided for in Order (4) shall, upon the expiration of forty-two (42) days from the date hereof, become Final Orders and will issue as such from the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11585 of 2015

MR AUSTIN AND MS AUSTIN

Applicants

And

MS DUNNE

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. The applicants are the paternal grandparents and the respondent is the mother of the child X, a little girl aged two years and eight months. 

2. This matter comes before the Court in tragic circumstances.

3. On the child’s second birthday X’s father took his life.

Issues

1. This has triggered a series of events; including the initiating application before the Court by the paternal grandparents seeking that X live with them.

2. The mother is seeking that the application by the paternal grandparents be thrown out.

3. Ancillary to the filed material is an oral application by the paternal grandparents to spend time with the child and an oral application by the mother for the airport watch to be lifted to enable the mother to travel with the child on 21 April 2016 to (country omitted) for a few weeks to visit family members.

Evidence

1. In considering these issues regard has been had to:-

   a)The material as marked on the court file.

   b)Notice of Risk.

   c)The oral and written submissions of the parties.

   d)The relevant legislation.

   e)The relevant authorities.

2. Both parties are legally represented.

3. Cross-examination did not occur.

4. A decision has been made based on the filed material and the submissions.

5. Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.

Agreed facts

1. Before considering the issues, it is useful to capture the agreed facts:-

   a)The paternal grandmother is aged 57 and lives in Sydney.

   b)The paternal grandfather is aged 56 and lives in Sydney.

   c)The mother is aged 28 and lives in (omitted), Queensland.

   d)In 2011 the mother moved from the (country omitted) to Australia.

   e)In 2011 the mother and father met.

   f)In 2012 the mother and father married at (omitted) in Queensland.

   g)In (omitted) 2013 X was born.

   h)For X’s first birthday in 2014 the parties visited the paternal grandparents in Sydney.

   i)In February 2015 the parents and X visited the paternal grandparents in Sydney.

   j)In February 2015 the parents and X travelled to the (country omitted).

   k)In March 2015 the father returned home alone to Australia and informed the paternal grandparents that the parents may be separating.

   l)In April 2015 upon the mother and child’s return to Australia the parents separated under the one roof.

   m)After separation, the paternal grandmother travelled to Brisbane from Sydney to stay with the parents.

   n)In April 2015 the mother took out a domestic violence order against the father.

   o)In May 2015 the paternal grandparents accompanied the father to the Magistrates Court in respect to domestic violence charges.

   p)After court, the police escorted the mother whilst the mother moved out of the former matrimonial home with X.

   q)From June 2015 the father commenced spending time with the child. 

   r)In July 2015 the paternal grandmother returned to Sydney.

   s)In July 2015 the father caused the police to conduct a child welfare check on X.  No concerns were raised by the police.

   t)In August 2015 the father caused the police to conduct another welfare check on X.  No concerns were raised by the police.

   u)On (omitted) 2015, on X’s second birthday, the father committed suicide.

   v)After the father’s death, the paternal grandparents commenced proceedings to make a claim over the father’s remains.

   w)In September 2015 the coroner ruled in favour of the paternal grandparents.

   x)From X’s birth until the death of the father the paternal grandparents travelled to Brisbane to spend time with X, although the frequency of the visits and the duration of the visits are unknown.

   y)The mother maintains it was for four visits only.

   z)In October 2015 the paternal grandparents had a three hour visit with X. 

   aa)This was the last time the paternal grandparents spent time with X.

   bb)In October 2015 X was ill and taken to hospital.

   cc)In October 2015 the paternal grandparents reported the mother to the Department of Community, Child Safety and Disability Services (DOCS) and the mother was interviewed.

   dd)No further action was taken by DOCS.

   ee)Since the father’s death the paternal grandparents and the mother are in dispute over the father’s estate.

   ff)In December 2015 the paternal grandparents commenced proceedings against the mother seeking the following orders:-

   i)On an interim basis, that:-

   ·The paternal grandparents and the mother have equal shared parental responsibility for the child;

   ·That the child live with the paternal grandparents;

   ·That the child spend time with the mother as can be agreed upon;

   ·That the mother be restrained from removing the child without prior written consent of the paternal grandparents;

   ·That the mother surrender the child’s passport to the Court; and

   ·For an airport watch list order.

   ii)On a final basis:-

   ·    The paternal grandparents and the mother have equal shared parental responsibility for the child;

   ·    The child live with the paternal grandparents;

   ·    The mother spend time with the child as agreed upon between the parties; and

   ·    The mother continue to receive medical treatment for her mental health and for the mother to take her prescription medication.

   gg)In December 2015 the paternal grandparents filed a Notice of Risk alleging:-

   i)That the mother did not adequately care for the child and that the child’s basic needs are not met;

   ii)The mother neglects the child, including the child not being properly supervised;

   iii)The mother has outbursts of rage and anger, which can be physical and verbally abusive; and

   iv)The mother does not respond to the child and considers the child to be an annoyance.

   hh)In February 2016, the mother filed her response, seeking that the paternal grandparents’ application be dismissed and that the airport watch list be lifted and that the names of the mother and the child would only be placed on the airport watch list by way of an order of the Court.

   ii)On 15 February 2016 the matter came before the Court for mention.

   jj)The matter was adjourned to enable the paternal grandparents to obtain and provide independent evidence in support of their allegations regarding the mother and evidence to support an order for the child to live with the paternal grandparents.

   kk)In February 2016 and March 2016 the paternal grandparents issued subpoenas to:-

   i)Queensland Police;

   ii)Dr S at (omitted) Medical Centre; and

   iii)Mr V.

   ll)The subpoenaed material was not relied upon by the paternal grandparents at the interim hearing.

   mm)At the interim hearing on 19 April 2016 the paternal grandparents did not pursue the interim application for a change of residence for X and instead made an oral application to spend time with the child on the first and third weekends in every month from 9 am Saturday to 5 pm Sunday, with the location of time to alternate between Sydney and (omitted).

   nn)The mother continues to pursue her application to have the paternal grandparents’ initiating application dismissed.

   oo)As for the spend time with arrangements, the mother’s preference is for no orders to be made but if orders need to be made then the mother’s proposal is that the paternal grandparents spend daytime periods with X from 9 am to 5 pm on the third Saturday of every second month, with changeover to occur at McDonald's (omitted) and otherwise at other times as agreed upon between the parties.

   pp)Further, the mother makes an oral application for the airport watch list order to be removed so as to enable the mother to travel with X to visit her brother and catch up with her mother in (country omitted) from 21 April 2016 to 16 May 2016.

The law

1. I will now turn to the law.

2. The power of the Federal Circuit Court of Australia to dispose of a matter summarily is contained in section 17A(2) Federal Circuit Court Act 1999, which provides that:-

   “The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of proceedings if (a) the first party is defending the proceedings or that part of the proceedings and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.”

3. Section 17A(3) provides that:-

   “For the purposes of the section, a defence or a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success.”

4. Rule 13.10 Federal Circuit Court Rules2001 provides that:-

   “The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceedings of the Court if the Court is satisfied that the party prosecuting the proceedings or claim for relief has not reasonable prospect of successfully prosecuting the proceeding or claim.” 

5. As discussed by the Full Court in McDonald & Sandler [2012] FamCAFC 191 at [76] the test in Lindon v Commonwealth (No 2) (1996) 136 ALR 251 “is not in doubt and has been variously but consistently expressed by judges of the High Court on a number of occasions in recent times”.

6. In Lindon v Commonwealth (No 2), Kirby J said at [258]:-

   “It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests.  This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided. To secure such relief the parties seeking it must show that it is clear on the face of the opponent’s documents that the opponent lacks a reasonable cause of action…..An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not alone sufficient to warrant summary termination.  Even a weak case is entitled to the time of a court.  Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.  Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.  If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts…..The guiding principle is, as stated in O 26, r 18(2), doing what is just.  If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”

7. The Full Court in McDonald & Sandler notes at [79] that “the relevant rules of the Federal Magistrates Court reflect the common law principles which emerge from the authorities to which reference has been made”.

8. The Full Court further comments at [81] “Although, as the authorities confirm, the circumstances in which an application may be summarily dismissed are not finite, pivotal to the making of the order for summary dismissal is acceptance of the proposition that the proceedings are doomed to fail or could not, on the applicant’s own material, possibly succeed.”

9. The Full Court explained at [82] that “however the test is formulated, an applicant for summary dismissal bears a heavy onus”.

Should the paternal grandparents’ application be summarily dismissed?

1. So the question arises, is the paternal grandparents’ application in this matter doomed to fail?

2. Certainly the grandparents have the ability to apply for a parenting order as provided for in section 65D(ba) Family Law Act 1975.

3. A parenting order is an order which, pursuant to section 64B(2) may deal with a person with whom a child is to live.

4. Therefore, under the legislation, the paternal grandparents are able to bring an application before the Court as to where X is to live.

5. But there must be merit in bringing such an application.

6. In the single Family Court decision of Benjamin J in Church & M Overton & Anor [2008] FamCA 953, which involved a grandfather pursuing time with the grandchildren of his three adult daughters, His Honour noted that:-

   “If a court is satisfied that an approach to the upbringing of a child by a parent or parents in whatever way is contrary to that child’s best interests then the Court should interfere by putting in place appropriate orders.  In the absence of substantive issues as to the child’s best interests, it is not the role of the Court to peer over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of the children.  A court should only intervene in this decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all.”

7. So in this matter are there substantive issues as to the mother’s parenting of the children which gives rise to concerns as to the child’s best interests?

8. Are these concerns that ultimately may give way to a change of residence for the child?

9. In order to answer this question and the preceding question as to whether the paternal grandparents’ application is doomed to fail, it is necessary to identify and consider each of the issues raised by the paternal grandparents in support of their application.

10. The first issue is the general lack of appropriating parenting of the child by the mother, including, as set out in the written submission of the paternal grandparents “That the respondent is not adequately caring for the child. That the child’s basic needs concerning health, nutrition and safety are not satisfied. The child was often left unsupervised and has been injured accordingly. The child is, at times, neglected by the respondent”.

11. This allegation is based on two premises:-

    a)The paternal grandparents’ discussions with the father; and

    b)The paternal grandparents’ observations of the mother and, in particular, during April 2015 the paternal grandmother’s observations when the parents had separated under the one roof.

12. The paternal grandmother went so far as to include in the paternal grandparents’ affidavit photographs of piles of clothes scattered around the house and accumulated egg cartons and bottles which was taken at a time when the mother, father and the paternal grandmother were living in the former matrimonial home.

13. But that is the extent of the evidence of the paternal grandparents.

14. The subpoenaed documents did not assist.

15. The mother is a first time mother and acknowledges having experienced difficulties with caring for a young child.

16. At [15] and [16] of her affidavit the mother stated that “I did have some lack of knowledge concerning suitability of food.  I sought help from the (omitted) Community Health Centre and did ask Ms Austin’s advice.  I thought that was perfectly natural.  My mother lives in the (country omitted) .  I also asked her advice as well.  From these advices I learnt such techniques as encouraging X to eat her food with her hands as this improves hand-eye coordination at infants”.

17. At [17] “In late 2014 I was referred to a sleep clinic by the (omitted) Community Health Centre.  At the time I was having difficulties getting X to have a daily sleep in her cot, which was distressing for a first time mother.  X and I stayed at the sleep clinic for a period of one week to assist with our problem” .

18. At [54] “X did have a little trouble transitioning from breast milk to solid food.  However, this is no longer the case.  X prefers fruit, is oppositional to eating vegetables but will do so once disciplined”. 

19. The independent evidence before the Court does not in any way support the paternal grandparent’s concerns.

20. The two welfare checks by police on X, conducted in July and August 2015 at the request of the father when the mother was living alone with the child, did not raise any concerns by the police as to the mother’s parenting of the child.

1. The DOCS investigations in October 2015 did not raise any concerns as to the mother’s parenting of the child.

2. If anything, the independent evidence supports that the mother is doing an excellent job in parenting X, despite the tragic circumstances.

3. The letter written by the child’s treating GP, Dr A of (omitted) Medical Centre, on 14 January 2016 it is noted:-

   a)“There has been no stage in the care of the child or through observations of myself directly, review of the clinical records or in any dealing with the child and her mother that I have any concerns whatsoever about in her capacity to effectively parent and/or care for the child now, in the foreseeable future or in any perceived change in circumstances, address, living arrangements or geographical location” 

   b)“The assertion that Ms Dunne is incapable of caring for X is nonsensical and, through observation, interview and routine medical care, I am unable to support any of the applicants’ alleged allegations”

   c)“In relation to the details requested:

   (1) I have enclosed a copy of the immunisation record from our records and a copy of the vaccination page from the Queensland Health personal health record.

   (2) X is a normal and healthy appearing talkative child with an apparent English vocabulary numbering in the likely hundreds of words, (language omitted) vocabulary with excellent comprehension of at least 50 words and working vocabulary of approximately 20 to 30 words”

   d)“X was observed today to indicate to her mother that she needed to ‘go potty’ and toileted today in the clinic – this without prompting.  I comprehend that she has independently instigated toilet training at her volition approximately three months ago”

   e)“Her current weight is 13.2 kg clothed and 85.5 centimetres tall.  She has adequate musculature, apparently normal coordination, social interaction and behaviour in my rooms today.  She had an unremarkable abdominal cardiovascular and chest exam today.  Her ear, nose and throat exam, too, was unremarkable.  She was first seen at this clinic on 29 August 2013 and by myself on 22 April 2015.  With the benefit of her medical record, she has no significant childhood illnesses and usual childhood illnesses and vaccination history”

   f)“In summary, X is an exceptional and well cared for child.  The assertion that X is poor cared for and Ms Dunne is unfit to parent is nonsensical and I can see no evidence in this case.”

4. In conclusion, put simply, apart from the grandparents’ view as to how a young child should be brought up, there is not one iota of evidence to support that the mother, in any way, has been derelict in her duty of parenting X.

5. This issue therefore does not amount to a substantive issue as to the child’s best interests and given the complete lack of evidence to support the paternal grandparents’ allegation, this issue is doomed to fail if pursued in court.

6. This is not a situation of a “weak” case but of no case.

7. In accordance with section 17A and rule 13.10, I find that the paternal grandparents have no reasonable prospect of successfully prosecuting the proceeding in respect to this issue.

8. The second issue is the mother’s mental health.

9. In written submissions the paternal grandparents allege that the child is “at risk of physical harm” and that “the respondent has outbursts of rage and anger” and “that the respondent has a history of depression and anxiety, with past diagnosis of bipolar disorder for which she is unmedicated”.

10. In respect to her mental health, the mother deposes at [44] to [45] of her affidavit that “At the age of 17 I was diagnosed with anxiety, which I was initially prescribed medication for.  I ceased taking the medication soon after the initial treatment as it did not react well with my body.  I found the best technique of managing my anxiety was through natural remedies, counselling and meditation.  I have not since taken medication for anxiety. My parents separated when I was aged 10, which resulted in feelings of depression.  This depression was further exaggerated upon residing in Australia and cohabiting with Mr Austin and dealing with a new child during times of domestic violence.  Although my circumstances with Mr Austin resulted in mental difficulties, this did not hinder my ability to adhere to my parental responsibilities for X nor did it affect my personal hygiene, household duties or social lifestyle.  I never experienced nor communicated suicidal thoughts during this time period.  Ms Austin knew of the state of my mental health, however, provided no advices.  My feeling of depression has ceased since final separation from Mr Austin.”

11. The paternal grandparents rely on three premises in support of the allegations:-

    a)The observation of the mother by the paternal grandparents.

    b)What the father has told the paternal grandparents.

    c)A photograph of an undated letter (although it appears to be around 2014) from (omitted) Medical Centre, headed, Annual GP mental health care plan for Ms Dunne.

12. The letter appears to the paternal grandparents’ only independent evidence on this issue.

13. The letter contains the following:-

    a)Under the heading “Assessment” and subheading, “Psychological History” it is noted “Chronic problems of anxiety, depression since age 17.  Outbursts of rage at times.  No specific trigger.  Mother has anxiety/depression and maternal uncle had schizophrenia”

    b)Under the heading “History of Presenting Complaint” it is noted “Gradual deterioration.  Now as bad as ever.  Been rages include violence against husband, punching, kicking, etc”

    c)Under the heading “Mental State Examination” it is noted “Well groomed teary at times. Sleeping poorly due to baby. Comfort eating. Maybe some low grade mania. Poor concentration. Thoughts rage of no trigger. Physical violent”

    d)Under the heading “Risk Status Co-morbidity it is noted “Husband? Parenting stressors”

14. Under the heading “Diagnosis/Formulation” it is noted “Chronic anxiety/depression? Bipolar disorder. Uncontrolled anger.”

15. Under the heading “Problem/Need Goal “In respect to anxiety/depression, it is recommended regular sleep.  Consider Cymbalta or Zoloft and psychologist and psychiatrist if needed.  In respect to anger issues, it is recommended look for early signs and remove from harm.  Punching bag, pillow, sprint.  Review date.  Four weeks to six months”

16. There is no evidence before the Court that the mental health issues experienced by the mother in 2014 in any way impacted on her parenting ability in respect to X or that her mental health has placed X at risk.

17. There is no evidence before the Court that the mother in 2016 suffers any mental health issues which may impact on her ability to parent and care for X.

18. Dr A, in his letter from (omitted) Medical Centre dated 14 January 2016  noted:-

    a)“It is my comprehension that Ms Dunne’s ongoing stressors centre largely around Family Court proceedings and ongoing animosity with her former parents-in-law and in her inability to finalise her deceased partner’s estate”

    b)“It is my comprehension that Ms Dunne’s previous mental stressors centred largely around the abuse suffered allegedly at the hand of Mr Austin. It is my belief that Ms Dunne was the subject of domestic violence and I believe that this ultimately led to her separation from Mr Austin in April 2015”

    c)“There are other stressors relating to Ms Dunne’s likely need for difficult discussions with X in relation to her father’s death”

    d)“In summary, Ms Dunne exhibits an appropriate level of stress and in keeping with her current circumstances, including the loss of her partner, ongoing court proceedings, unresolved issues relating to her deceased partner’s estate and the fractitious nature of her relationship with her former parents-in-law.”

19. The mother is undertaking counselling with Ms M, an accredited mental health social worker at (omitted) Therapy Centre and has completed, as at the date of the interim hearing, four sessions with Ms M.

20. Ms M, in a letter to Dr L, dated 11 January 2016, writes:-

    a)“Ms Dunne has had to contend with a series of complex legal processes, which have included being overruled as next of kin with respect to funeral arrangements for Mr Austin, property settlement issues and appropriate and safe arrangements with regard to contact between X and her paternal grandparents and other relatives”

    b)“Ms Dunne reports she is working hard to maintain normal routines for X and says that X appears to be coping well.  X accompanied the mother to the second counselling session, asked her mother to draw a picture of herself with mummy and daddy. Ms Dunne responded appropriately and drew a family picture for the child”

    c)“Intervention during counselling has included interpersonal psychotherapy to support Ms Dunne in processing her grief and adjusting to her loss” 

    d)“Psychoeducation has been provided on dealing with loss and grief, including giving herself time off from grief to re-engage with normal activity.  Ms Dunne has been introduced to stress management and arousal reduction strategies, including breathing and relaxation techniques”

    e)“Ms Dunne presents as an intelligent, resilient and articulate woman who appears to be coping very well with her current very challenging circumstances”

    f)“This is supported by her recent DASS 21 assessment, undertaken on 21 December 2015. Her scores were as follows – depression (2), anxiety (0) and stress (5). All scores are within the normal range”

    g)“Ms Dunne has engaged extremely well with counselling and it is recommended that she continue to have access to counselling with a review of her mental health care plan, given the recency of her loss, her grief and the ongoing stresses she is experiencing”.

    h)“Thank you again for referring this strong and resilient young woman”

21. None of the mother’s treating health professionals have raised any concerns as to the mother’s ability to parent X.

22. Again, as with the first issue, there is no basis for the paternal grandparents’ claim that X is at risk in the care of the mother due to the mother’s anger or mental health issues.

23. I find that if the paternal grandparents were to pursue this aspect of the action, it is doomed to fail.

24. In accordance with section 17A and Rule 13.10, I find that the paternal grandparents have no reasonable prospect of successfully prosecuting the proceeding in respect to this issue.

Overall conclusion as to the paternal grandparent’s proceedings

1. These two issues form the basis of the paternal grandparents’ case as to why a change of residency for the child should occur.

2. As findings have been made that the paternal grandparents have no reasonable prospects of successfully prosecuting the proceedings based on these issues then I find that this is one of those rare situations where it is appropriate for an order to be made summarily dismissing the paternal grandparents’ initiating application.

3. It is a shame it has come to this.

4. As to why the paternal grandparents have taken this course is a question that only the paternal grandparents can answer.

5. The mother has her own view, deposing at [7] of her affidavit that “I say that the applicants have treated me with disdain and disrespect, have accused me of having a hand in Mr Austin’s death and have made unfounded complaints to the police.  I have no trust in the applicant and reject their bona fides with respect to the application”. 

6. Whilst the true reasons may never be known, what is certain is the impact these proceedings have had on the mother, a young woman doing her best to raise an infant child in adverse conditions.

7. Concerns have been raised by Dr A as to the continuing effect it will have on the mother should proceedings remain on foot.

8. Dr A, in his letter of 14 January 2016, writes “Perpetuating her current circumstances and additional stresses associated and with the prolongation of any court proceedings is likely to compound Ms Dunne’s level of distress and ongoing application is likely to stress Ms Dunne and has risk for damage to this particular patient and hence the child.  I would not support any further action in this matter and pray that Ms Dunne would see a speedy resolution for her current circumstance so that she can effectively grieve for her loss and manage her daughter’s loss and heal the hurt felt all in the family.”

9. I therefore order that the initiating application for a change of residence file by the paternal grandparents is hereby dismissed.

10. I now turn to the oral applications.

Name of child to be removed from the airport watch list

1. The first oral application is that of the mother to have the name of the child removed from the airport watch list.

2. The name appears on the list as a consequence of the initiating application filed by the paternal grandparents.

3. The paternal grandparents require the name to remain on the list because, in essence, the paternal grandparents are of the view that the mother is a flight risk and will take the child to live in the (country omitted).

4. The mother disputes this and wishes to travel to (country omitted) from 21 April to 16 May with X so that X can spend time with the maternal uncle and the maternal grandmother.

5. The trip was booked in November 2015 and the mother has produced evidence of her airline tickets.

6. The paternal grandparents are critical of the mother not informing them prior to the interim hearing of her intention to travel.

Conclusion on the airport watch list

1. I find, having considered the evidence, that the paternal grandparents’ concerns as to the mother posing a flight risk for the child are baseless.

2. I make this finding based on the following:-

   a)The mother, who was born in the (country omitted), has been resident in Australia since 2011.

   b)The mother is an Australian resident.

   c)The mother has every intention of remaining in Australia.

   d)Even on the paternal grandparents’ own evidence, the mother cannot remain in the (country omitted) for more than three months on a visa.

   e)The mother is not travelling to the (country omitted) but to (country omitted) to spend time with the maternal extended family.

   f)The mother has provided proof of her travelling plans.

3. I therefore order the removal of the child’s name from the airport watch list and order that the mother be permitted to travel overseas with the child between 21 April and 16 May 2016.

Paternal grandparent’s time with child

1. The second and last oral application is for the paternal grandparents to spend time with the child.

2. Despite all the drama, the mother has and continues to be supportive of the paternal grandparents being part of the child’s life.

3. There has been legal correspondence exchanged about spending time with arrangements between the paternal grandparents and the child.

4. The mother deposes in her affidavit at [9] and [10] that “Notwithstanding, I acknowledge that X is entitled to a granddaughter relationship with the applicants. I have never suggested otherwise.  For these reasons, the Court can be confident that I will ensure that the granddaughter relationship is maintained, even if the Court dismisses the application, as I seek”.

5. Dr A notes in his letter dated 14 January 2016 “It has been made clear through discussions, specific questioning and collateral history that Ms Dunne is willing to support a form of relationship between X and her former parents in law.”

6. The mother proposes that the paternal grandparents spend a Saturday every two months with X with time to occur in Queensland.

7. The paternal grandparents propose spending time with the child every second weekend, with the location of time to alternate between Queensland and New South Wales.

Conclusion on time between paternal grandparents and child

1. I find that until such time as the Court is provided with some expert evidence as to the extent of the child’s relationship with the paternal grandparents and the ability for such a young child, in these tragic circumstances, to be able to cope with being away from the primary caregiver for extended period of times then I find that the proposal of the mother is reflective of the child’s best interests.

2. I make orders adopting this proposal on an interim basis.

3. A direction has been made enabling the paternal grandparents to file fresh proceedings in respect to spend time with arrangements.

4. In the event that the paternal grandparents choose not to do so, then the interim orders will become final.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Date:  9 May 2016