Paynter and Anor and McDonald - [2013] FCCA 1006

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAYNTER & ANOR & MCDONALD

[2013] FCCA 1006

Catchwords:
FAMILY LAW – Parenting – time with paternal grandparents – father deceased – young child – Aboriginal culture – poor relationship between mother and paternal family – distance – 2000 kilometres between mother’s home and paternal grandparents home – when child should spend time with paternal grandparents at their home.

Legislation:
Family Law Act 1975, Pt.VII, ss.60B, 60CA, 60CC, 61DA, 61DAA

Friscioni & Friscioni [2010] FamCAFC 108
Hall & Hall (1979) FLC 90-713
Church & Overton [2008] FamCA 952
Sampson & Jacks [2008] FamCA 176
Yamada & Cain [2013] FamCAFC 64

First Applicant:

MR PAYNTER

Second Applicant:

MS PAYNTER

Respondent:

MS MCDONALD

File Number:

ROC 306 of 2011

Judgment of:

Judge Harland

Hearing dates:

8 & 9 May 2013

Date of Last Submission:

9 May 2013

Delivered at:

Darwin

Delivered on:

2 August 2013

REPRESENTATION

Counsel for the Applicant’s:

Mr Smith

Solicitors for the Applicant’s:

Anne Murray & Co

Counsel for the Respondent:

Ms Truman

Solicitors for the Respondent:

Margaret Orwin Barrister & Solicitor

ORDERS

By consent

That the child X (“X”) born (omitted) 2009 reside with the mother Ms McDonald.
That the mother have sole parental responsibility for X.

Upon application to the court

That X spend time with the paternal grandparents in the city in which the mother and X are living in until 1 July 2016 as at times to be agreed and failing agreement at follows:
(a)From 1 September 2013 to 5 September 2013:
(i)On days 1 and 2 from 10.00am to 2.00pm;
(ii)On days 3-5 from 10.00am to 4.00pm.
(b)From 1 December 2013 to 7 December 2013 from 10.00am to 5.00pm each day.
(c)In 2014 for the first 7 days of each of the terms 1 to 3 school holidays:
(i)From 9.00am to 5.00pm on the first 4 days;
(ii)From 9.00am on day 5 to 5.00pm on day 7.
(d)From 2 to 9 January 2015 and each January thereafter from 9.00am on day 1 to 5.00pm on day 7.
(e)In 2015 for the first 7 days of the first, second and third school holidays:
(i)On days 1 to 7 from 9.00am to 5.00pm.
(f)From the January holidays in 2016 with the paternal grandparents may travel with X to (omitted) during their time provided that they give the mother 28 days written notice of their intention to do so together with details of their travel itinerary.
That the grandparents can communicate with the child as follows:
(a)By Skype on the first and third Monday of each month at 6.00pm (the time being according to the location where the child is residing);
(b)By Skype on the child’s birthday, Christmas Day and both the paternal grandparents birthdays each and every year at 6.00pm (the time being according to the location where the child is residing).
That the grandparents initiate all telephone and Skype contact as set out in order (4) above.
That the parties will do all acts and things to assist X…

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: [2013] FCCA 1006
Decision Date: 2 August 2013

CaseChat Overview and Summary

This matter came before Judge Harland concerning the parenting arrangements for a child, X, born in 2009. The parties involved were Ms McDonald, the mother, and the paternal grandparents, Mr and Mrs Paynter. The dispute centred on the time X would spend with the paternal grandparents and the terms of their communication and contact.

The court was required to determine the specific arrangements for X to spend time with the paternal grandparents, including the frequency, duration, and location of such time. Additionally, the court needed to establish the parameters for communication between X and the paternal grandparents, including the use of technology. The court also had to consider provisions for interstate travel with X, the responsibilities for travel costs, and the practical arrangements for collection and return of the child. Further issues included the requirement for each party to maintain functional communication equipment, the prohibition of denigration of a parent in the child's presence, and specific restrictions regarding sensitive materials related to the child's deceased father.

The orders made by the court were by consent in relation to the primary residence and parental responsibility of X, with X to reside with Ms McDonald and Ms McDonald to have sole parental responsibility. The court then made detailed orders regarding the time X would spend with the paternal grandparents, commencing from September 2013 and extending through the January 2016 holidays, with specific provisions for school holidays and interstate travel. Communication arrangements were also outlined, including scheduled Skype calls and the initiation of contact by the grandparents. The court also imposed restraints on the grandparents regarding the sharing of the mother's contact details and the showing of specific notes written by the father to X. Provisions were made for the practicalities of contact, including collection and return points, travel costs, and accommodation arrangements for X when staying overnight with the grandparents. The court also included a standard clause regarding the particulars of obligations and consequences of contravention under section 65DA(2) of the *Family Law Act 1975*.

Orders

Orders of the court

By consent

That the child X (“X”) born (omitted) 2009 reside with the mother Ms McDonald.

That the mother have sole parental responsibility for X.

Upon application to the court

That X spend time with the paternal grandparents in the city in which the mother and X are living in until 1 July 2016 as at times to be agreed and failing agreement at follows:

(a) From 1 September 2013 to 5 September 2013:

(i) On days 1 and 2 from 10.00am to 2.00pm;

(ii) On days 3-5 from 10.00am to 4.00pm.

(b) From 1 December 2013 to 7 December 2013 from 10.00am to 5.00pm each day.

(i) From 9.00am to 5.00pm on the first 4 days;

(ii) From 9.00am on day 5 to 5.00pm on day 7.

(d) From 2 to 9 January 2015 and each January thereafter from 9.00am on day 1 to 5.00pm on day 7.

(e) In 2015 for the first 7 days of the first, second and third school holidays:

(i) On days 1 to 7 from 9.00am to 5.00pm.

(f) From the January holidays in 2016 with the paternal grandparents may travel with X to (omitted) during their time provided that they give the mother 28 days written notice of their intention to do so together with details of their travel itinerary.

That the grandparents can communicate with the child as follows:

(a) By Skype on the first and third Monday of each month at 6.00pm (the time being according to the location where the child is residing);

(b) By Skype on the child’s birthday, Christmas Day and both the paternal grandparents birthdays each and every year at 6.00pm (the time being according to the location where the child is residing).

That the grandparents initiate all telephone and Skype contact as set out in order (4) above.

That the parties will do all acts and things to assist X to call the other party whenever X expresses a wish to do so.

That within 7 days of the date of these orders all parties provide to each other a postal and email address for themselves and advise the others of any change within 7 days of such change.

That within 7 days of the date of these orders all parties provide to each other their mobile telephone number and advise the others of any change within 7 days of such change.

That the paternal grandparents be restrained from providing the mother’s mobile telephone contact number to any person without the consent of the mother in writing first had and obtained.

10.

That for the purposes of the paternal grandparents spending time or communicating with the child:

(a) Unless otherwise agreed between the parties, collection and return of the child shall take place at the office of CatholicCare NT, (omitted) whilst the child remains living with the mother in Darwin, and thereafter at the location nominated by the mother and advised to the paternal grandparents in writing;

(b) Upon the child being permitted to travel interstate with the paternal grandparents , the paternal grandparents shall be solely responsible for their own costs of travelling between their residence and the child’s residence and the costs of transporting the child between their residence and the child’s residence;

(c) All parties shall ensure they possess the appropriate technological equipment to allow communication with the child via Skype and all shall keep such equipment in good working order;

(d) The child not share a bed with the paternal grandparents and provision be made for her own bed during times spent overnight with the paternal grandparents.

11.

That the mother shall telephone X every second day at 6.00pm whenever X is spending overnight time with the paternal grandparents and paternal grandparents shall ensure X is available to take the call.

12.

That the parties not denigrate each other to the child or in the presence or hearing of the child at any time and shall take all steps to remove the child from the presence of any person denigrating the other party.

13.

That the paternal grandparents be restrained from showing X any of the notes written by the father shortly before his suicide and from allowing anyone else to do so before X reaches the age of 18 years.

14.

That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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