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

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

2. That the mother have sole parental responsibility for X.

Upon application to the court

1. 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.

2. 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).

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

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

ROC 306 of 2011

MR PAYNTER

First Applicant

MS PAYNTER

Second Applicant

And

MS MCDONALD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the paternal grandparents Mr Paynter and Ms Paynter to spend time with their grandchild X born on (omitted) 2009.  X is 4 years old. The respondent is X’s mother Ms McDonald. Tragically X’s father Mr Paynter committed suicide on 1 August 2010. The father’s death has been traumatic and has had lasting consequences.

The applicant grandparents’ proposal

1. The grandparents seek to have overnight time with X as follows:

   a)For 4 consecutive days (including overnights) in June 2013;

   b)For 6 consecutive days (including overnights) in September 2013;

   c)For 7 consecutive days (including overnights) in December 2013;

   d)From March 2014 for up to one week 4 times a year.

2. The grandparents relied on the documents set out in part B of their case outline and their case outline.

The mother’s proposal

1. The mother’s primary position is that the applicants’ application should be dismissed. In the alternative she seeks orders which set out a graduated regime for contact which does not provide for X to travel to (omitted), where the paternal family lives, until she turns 8 years old.

2. She relies on her affidavit sworn on 30 April 2013 and her case outline which sets out the amended orders she seeks.

Background

1. The mother and X currently live in Darwin. The paternal grandparents live in (omitted), a small town in Queensland.

2. The mother and father commenced a relationship in May 2007. They lived in (omitted). In around August 2007 the mother was transferred by her employer to Darwin. The father moved to Darwin in March 2008.

3. The paternal grandparents do not know the mother well. They did not spend much time with the young couple when the parents were together. After X was born the grandparents spent little time with her. Since these proceedings were commenced the grandparents have spent supervised time and then some day time contact with X.

4. The paternal grandparents are Aboriginal. It is very important to them that X be exposed to and able to immerse herself in her Aboriginal culture. This is all the more important to them because X’s father is not able to provide this.

5. The mother does not dispute that X has a good time with her grandparents.

6. Currently the mother and grandparents live over 2,000 kilometres apart. This adds to the difficulties between these parties.

Agreed facts

1. The grandparents agree that X should live with the mother and that the mother should have sole parental responsibility for X.

2. They also agree that the mother and X should be able to move interstate. This will not impact on their time with X. The mother has indicated that she may move to Sydney if she can secure good employment as she has family support there.

3. The grandparents also agree to meet the costs of X spending time with them.

The grandparents’ evidence

1. The grandparents relied on the affidavits set out in their case outline. This includes their first affidavits which annexed the suicide notes of their son. One note was headed ‘mediation Ms McDonald’ the other was addressed to X. By relying on those affidavits those notes were in evidence for the hearing although their counsel sought to distance them from the notes saying they want to look forward. The applicants have been legally represented throughout these proceedings. It is most unfortunate that the grandparents saw fit to annex those notes. The mother did not know these notes existed until she read their affidavits.  I am at a loss to see how the grandparents thought annexing these notes would assist their cause.

2. At paragraph [32] of the grandfather’s affidavit sworn on 25 April 2013 he says that he knows of no instances where Mr Paynter’s friends have been disrespectful to the mother. He says he does not condone it. I do not accept that he is not aware of it. He and the grandmother are respected elders in their community. They can do more to ensure that Mr Paynter’s friends do not engage in this conduct. He also says he knows of ‘no valid reason’ why the mother objects to photos of X being on Facebook. It may assist in approaching a rapprochement with the mother if the grandparents simply accept the position. Given the mother’s evidence about other things she has seen on Facebook her position is understandable.

3. There is nothing in the grandfather’s affidavit that gives any indication that he realises he needs to change his attitude towards the mother. At paragraph [31] the grandfather says that the mother’s concerns about him badmouthing her are “ill-founded”. Given the rest of his evidence I disagree.

4. The maternal grandmother’s affidavit sworn on 25 April 2013 is in similar terms to the grandfather’s.

5. During cross-examination Mr Paynter was asked if he wanted to develop a relationship with Ms McDonald. He replied he did because he had to because of his granddaughter. He agreed that he probably told Mr V in 2011 that he did not have a relationship with the mother and  he did not want to develop a relationship with her.

6. He emphasised during his cross-examination that he wanted to move forward and hopefully build a relationship and not look backwards. He conceded that he had done nothing to develop a relationship with the mother. The difficulty with the grandfather’s evidence is that he thought it was important to annex material to his affidavit which places a real barrier to a relationship being developed. I am of the view that the grandfather was keen to say what he thinks the court wants to hear rather than truly wanting to move on.

7. He acknowledges that the mother is the most important person in X’s life and yet also acknowledges that he has done nothing about developing a relationship with the mother since 2011.

8. He claims that he can “read between the lines” that the mother is stressed as a single mother and needs help but the only help he offers is that X stays with his family for a week. This is really about what he wants.

9. As far as the grandfather is concerned it is all about the mother wanting to maintain control. He cannot see things from the mother’s perspective at all. His lack of insight and empathy only heightens the mother’s concerns. He also conceded that he has not in any way tried to find out what routine X has with her mother.

10. The grandparents rely on the family report in support of their case. At paragraph [27] of the family report Mr R records that Mr Paynter acknowledged that he still felt anger and bitterness towards the mother and was reluctant to have anything to do with her. He conceded in cross-examination that he still feels that way except that now he says he has got to have contact with her.

11. Mr Paynter said he told family members not to vent their anger on Facebook but denied saying that family members and others had struggled to manage their anger towards the mother and had acted in a hostile, negative manner towards her as was recorded by Mr R. I do not accept his evidence on this issue.

12. One of the concerning aspects of the grandfather’s evidence concerns the notes from the father he annexed to his affidavit. He proposed showing X the note addressed to her when she is grown up depending on the sort of person she is. He thought it was appropriate that he and his wife should make the decision about when X should be shown the note. I remain concerned about his lack of insight.

13. He acknowledged that note says terrible things about the mother and that the mother is the person X is closest to. He further acknowledged that it could have a major impact on X’s relationship with her mother. He feels that Mr Paynter left the note with him and his wife so they will decide when or if X should be shown the note. This highlights the grandfather’s lack of insight and insensitivity. It is concerning.

14. He consented to an order restraining him from showing the note to X before she turns 18 and from allowing anyone else to.

15. The grandfather says he annexed the notes to his affidavit because they were the truth. He accepted the father was not in his normal frame of mind. He was desperate. He was heavily intoxicated when he killed himself. When asked in cross-examination Mr R said he could not see any benefit to X being shown those notes even as an adult.

16. The grandfather had caps and t-shirts made up with the name ‘(omitted)’ which is the father’s nickname. X was returned to the mother’s care with one of these caps on. The mother was distressed by this. Again the grandfather could not appreciate why this would be.

17. Mr Paynter is quite rigid in his attitudes. In the witness box he also came across as a dominant personality.

18. The mother reached out and offered a meeting at the (omitted). The grandfather did not go. The grandmother went as did other paternal members of the family but they ignored the mother. Although young X would have picked up on this.

19. The grandmother was cross-examined. She attended the (omitted) and understood that the mother arranged that because the grandparents had not seen X in a long time and it was so X could feel comfortable. She acknowledged that she did not say hello or goodbye to the mother on that occasion.

20. She conceded that the last time they visited the mother said to X “go on have a lovely time with both your grandparents” and that the mother was very positive about X spending time with them.

21. She also conceded that she and the mother do not communicate and that she has not made an attempt to reach out to the mother.

22. The grandmother showed more insight than her husband. With respect to the notes Mr Paynter left she said that it would not benefit her to show her the notes.

The mother’s evidence

1. The mother’s proposal is that X does not spend time in (omitted) until she is 8 years old. The mother feels that by age 8 X will be able to express any worries or fears she has. Mr R disagrees with age 8 being a significant age. He expressed concern that resistance may have built up by then to spending time with people she does not really know. The difficulty with Mr R's statement is that it assumes that X will have not built up her relationship with the grandparents before travelling to (omitted).

2. The mother was cross-examined about her comments about X’s behaviour after she spent unsupervised time with the grandparents. She describes unsettled behaviour. That behaviour soon improved. I do not place any significance on this.

3. Exhibit A1 is a bundle of notes from the CatholicCare Contact Centre. The grandparents’ counsel was critical of the mother for saying to X “I’m sorry baby” when X clung to her. The mother said X had been crying for 15 minutes and she was comforting her. The mother says that on other occasions she has been positive about encouraging X to see her grandparents. I accept her evidence.

4. The mother also confirmed in cross-examination that X has a positive relationship with her paternal grandparents and that she positively encourages X. She was criticised by the grandparents’ counsel for stating that she does not know whether X is attached to her grandparents. She acknowledged they have a relationship. The concept of attachment is a complex social science. It is misconceived to criticise a layperson with respect to this.

5. The mother said she derived no comfort from what Mr R recorded at paragraph [27] of the report as she says the behaviour has not changed. She was also cross-examined about Skype. The mother is willing to use it but thought once a week would be too disruptive to her household.  I am of the view that Skype communication between X and her paternal grandparents is in X’s best interests once a fortnight. This enables regular contact to take place in between physical visits but also gives the mother, who is juggling employment and caring for X on her own, some breathing space.

6. The mother was also cross-examined about the importance of X's Aboriginality. She was critical of the paternal grandparents for being selective about their Aboriginality. I think this is misguided. Aboriginal culture is not homogenous. It will mean different things to different people. The Aboriginal history and family traditions of their particular family.

7. It was put to the mother that she could not supplant the paternal grandparents’ role in teaching X about her Aboriginal heritage. She says she can be supportive of it. She reads X story books about the dreamtime. She was asked about research she has done to find about Aboriginal culture in the (omitted) area. She said she hadn’t as X is only 4 years old.

8. The mother wants to move to Sydney where she has family support. This will not impact on the arrangements with the Paynters and in fact may make the travelling easier.

9. The mother became very upset during re-examination. It is clear that she had found it very difficult to deal with the paternal family blaming her for Mr Paynter’s death and the fact that those feelings have not dissipated in 3 years. She does not trust the paternal family. She is concerned that they may try to poison X against her. She took great offence at X being returned to her with a cap saying “(omitted)” on it, which she says is a nickname she gave Mr Paynter, with a picture of X on one side and Mr Paynter on the other. She says she knows from people in (omitted) that there are people wearing merchandise with pictures of Mr Paynter and X. She said it feels like a lynch mob. She found it particularly offensive as she had been making overtures to the grandparents.

10. The difficulty in this case is that the emotions are still so raw on both sides although almost 3 years have passed. It is clear that the mother is an anxious mother. What the grandparents see as the mother’s desire to control everything must be seen in that context. If the parties can improve their relationship the mother’s anxiety is likely to ease.

Expert Evidence

1. Mr R prepared a family report which was released on 7 June 2012. The report is limited by the fact that he only interviewed the paternal grandparents over the telephone. He was not able to observe the grandparents with X. Mr R has based his belief about there being an attachment between X and the grandparents based on what he had been told by the parties.

1. At paragraphs [14] and [15] of his report Mr R records the mother’s concerns about “the extreme antipathy and hostility” the Paynter family display towards her. She acknowledged that the grandparents love X. She was concerned about the Paynter’s having unsupervised time with X because of the negativity they have towards her. Clearly her concerns are that the paternal grandparents may speak badly of her to X.

2. Mr R was then cross-examined by the mother’s counsel. He was cross-examined about what a person might find disrespectful. Mr R defined conflict as being high degrees of overt and covert hostility, difficulty in communicating, high degree of negative ongoing attitude about one of the parents or a significant person. He agreed that this high conflict can negatively impact not just on children but adults as well.

3. He also acknowledged that it would be preferable for there to be some communication between the adults before the child moved between carers.

4. Mr R was asked about the note addressed to X from her father. Mr R stated that it would be more appropriate for the adults to tell X about their father. He expressed doubt that showing X the note even as an adult would serve a purpose other than to cause X distress to know how depressed her father was.

5. Mr R recommended that the costs of travel be shared equally. He said this was based on his understanding that everyone was working. The grandparents have offered to pay all of the costs of their spending time with X. In the circumstances where the mother is a single parent and does not receive any financial support from the father’s family this is appropriate. The father’s family is of course not under any legal obligation to provide the mother with financial support.

6. At one point counsel for the grandparents put to Mr R that the mother should “get over it a bit and go with the flow”. That was a most unfortunate choice of phrase and highly insensitive in the circumstances. It is clear that the grandparents have not taken this advice and have not made any overtures to the mother and have rebuffed hers.

7. Mr R did not change his recommendations. His recommendations included a graduated regime of unsupervised time for four visits in 2012 and early 2013 which would include the graduated introduction of overnight time. From April 2013 X would spend overnight time with her grandparents in (omitted). This regime has not happened.

8. The cases of Friscioni & Friscioni [2010] FamCAFC 108 and Hall & Hall (1979) FLC 90-713 the Full Court discussed the status of family reports in court proceedings. The Family Consultant is an expert but is not in a privileged position. The family report is just one piece of evidence. I am not bound to accept the recommendations in a family report.

9. I am of the view that Mr R underestimated the nature and the extent of the ongoing conflict and hostility between these parties. It was palpable in the courtroom as was the level of the mother’s distress. The mother deposed in her affidavit that she feels sick at the thought of X spending overnights let alone going to (omitted). The mother is X’s undisputed primary carer and her anxieties have to be taken into account as they impact on X. From my observations I think the mother will do her best to shield X from her anxieties but children are very perceptive and pick up on their parents’ feelings. I have adopted a contact regime which is quicker than the mother’s proposal and slower than the grandparents’ proposal because in my view the regime I have set out gives X the opportunity to strengthen her relationships with her grandparents whilst giving the mother time to prepare for X spending a long distance away from her. It is also hoped that the grandparents and the mother will be able to improve their relationship. I accept that the mother feels her attempts have been rebuffed. I think the grandparents will need to make the first move. There has been no improvement in this since the time Mr R interviewed the parties more than 12 months ago. 

Legal principles

1. In cases about children under Part VII of the Family Law Act 1975 the court must regard the best interests of the child as the paramount consideration: s.60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.

2. There are objects set out in s.60B that help to understand what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objects: s.60B(2).

3. The concept of best interests is explained in s.60CC. The primary considerations are set out in s.60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.

4. There are additional considerations set out in s.60CC(3). These include: the views of the child, the nature of the child’s relationship with parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; and family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.

5. At the core of Part VII of the Family Law Act 1975 is a presumption of equal shared parental responsibility. Thus s.61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (s.61DA(2)), or rebutted (s.61DA(4)).

6. If the presumption applies, the court is required to consider certain time arrangements as between parents and children: s.65DAA.  Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: s.65DAA (1) and (2).  Equal time means what it says, and substantial and significant time is explained in s.65DAA(3):

7. Another important concept used in s.65DAA is that of reasonable practicality.  That is explained in s.65DAA(5).

8. Grandparents receive specific mention in several sections of Part VII in recognition that grandparents are significant people in children’s lives. The mother’s counsel referred to several cases involving grandparents. Church & Overton [2008] FamCA 952. That case was somewhat different to the current case as the parents were together and the mother had been estranged from her grandfather for years. It is a different situation to the current case as in that case the parents and children were in an intact family. Sampson & Jacks [2008] FamCA 176 involved a similar case with intact parents not wanting the maternal grandparents to see their grandchildren.

9. The importance of Aboriginal culture is also specifically mentioned at s.60CC(3)(h). This is a relevant factor in this case which I discuss further below.

10. This is a case concerning a parent and two non-parents. In Yamada & Cain [2013] FamCAFC 64 the Full Court discussed this issue. Some of the provisions in Part VII only apply to parents. Section 60CC(2)(a) dealing with meaningful relationship is one of these sections. However it is possible to consider the importance of a child having a meaningful relationship with a non-parent pursuant to s.60CC(3)(m).

Application of legal principles to the facts of this case

1. The parties agree that I should make orders for X to live with her mother and that she should have sole parental responsibility for X. This is sensible on the grandparent’s part. Based on the evidence any attempt at joint decision-making would be impossible. As a result of this it is not necessary to consider the provisions of s.65DAA. In any event neither party is seeking an order for equal time or substantial and significant time. The distance between the parties would make such an order impracticable.

Primary considerations

1. I turn first to the primary considerations. I have some doubts as how strong the relationship is between X and her grandparents. She has spent limited time with them. Mr R’s report is of limited value in this regard as he did not observe X and her grandparents and has assumed that X is attached to her grandparents based on what he has been told. I accept that X enjoys spending time with her grandparents and that her grandparents are attentive and loving towards her.

2. I am satisfied that it is in X’s best interests for her to have a meaningful relationship with her paternal grandparents. This will allow X to connect with her paternal side of her family and will also give herself the opportunity to immerse in her Aboriginal culture. There is no doubt that she has a meaningful relationship with her mother.

3. The second primary consideration features in terms of whether X will be at risk of psychological harm in her paternal grandparents’ care. I have no doubt that the paternal grandparents love X and will look after her physically. I have some concerns about their capacity to protect X from psychological harm. This includes protecting X from any negative attitudes they and their extended family have towards her mother. This would be very damaging for X. I was very concerned about the grandfather’s evidence about the note addressed to X. He could not appreciate how harmful showing this letter to X at any age could be.  The paternal grandmother acknowledged that she could not see there being any benefit to X being shown that note. I am going to make an injunction restraining the paternal grandparents from showing the notes to X or allowing anyone else to until X is 18 years old. I hope the grandparents have listened to my concerns and will not show her the notes when she is an adult.

4. I have also considered the relevant additional considerations. I set these out below.

Sections 60CC(3)(a) – The child’s views

1. X is only 4. I have no evidence about her view. It is clear from the evidence that X enjoys spending time with her grandparents.

Section 60CC(3)(b) – The nature of the child’s relationship with the child’s parent and other significant persons including grandparents

1. The undisputed evidence is that X is well-cared for by her mother. The evidence also is that X enjoys her grandparents. There is insufficient evidence about the quality of that relationship as the report writer was not able to observe the grandparents. Having said that the grandparents have other children and grandchildren and there is nothing to suggest that they will not be able to enrich X’s life.

2. The role of the paternal grandparents in X’s life is even more important because they represent a connection with X’s father who X will never get to know. It will be important for X’s sense of identity and long-term development that she has the opportunity to be a part of the paternal side of her family as well as her maternal family.

Section 60CC(3)(d) – Likely effect of changes in child’s circumstances

1. X has spent limited time with her paternal grandparents both before and after the father died. They have spent overnight time with X since the father died. X is still very young. It is in her interests that there be a build up to day time contact leading to overnight time. Overnight time needs to be well established before she spends time in (omitted).

Section 60CC(3)(e) – The practical difficulties and expense of a child spending time

1. What makes it difficult in this case is the tyranny of distance and limited financial resources of the parties. The mother is solely responsible for X’s financial support. The grandparents have offered to be solely responsible for the costs of their spending time with X. The grandparents will have additional accommodation expenses until X is able to travel with them to (omitted). In the circumstances of this case this is appropriate.

Section 60CC(3)(f) – The capacity of the parents and any other person (including grandparents)

1. The mother has raised X on her own. The grandparents concede that she must be a good mother given what they see of X. There is nothing in the evidence to suggest that the mother is anything other than a loving and dedicated mother capable of looking after all of X’s needs. The mother is fairly anxious which is understandable in the circumstances.

2. I have previously expressed my concern about the paternal grandparents’ capacity to provide for X’s psychological and emotional needs. I will not repeat these here.

Section 60CC(3)(h) – The child’s right to enjoy her Aboriginal culture (including the right to enjoy that culture with other people who share that culture) and the likely impact of any proposed parenting order on that right

1. Ms Truman submitted that the mother gave more evidence about Indigenous cultural issues than the grandparents did. This is true. Mr Smith for the grandparents was critical of the mother for not researching paternal family’s Aboriginal culture. The idea that she is supposed to ‘google’ this information is unrealistic. The mother did show a lack of understanding about this issue in criticising the grandparents for being selective about their Aboriginal culture. I accept the mother’s evidence that she is supportive of X knowing about her Aboriginal culture but the paternal grandparents need to give her the tools to do this.

2. I have no doubt that the paternal grandparents will ensure that X is exposed to aspects of her Aboriginal culture which is important to the paternal family. For the first couple of years they will need to do this in the city in which the mother and X are living which I accept will be more difficult. After that they will be able to do this in their local community.

Whether it is preferable to make an order which would be the least likely to lead to further proceedings

1. The mother’s orders sought are framed in the alternative, initially seeking that the applicants’ application be dismissed. This was raised on the basis that the mother could be trusted to make arrangements for X to maintain a connection with her grandparents.

2. I am of the view that if there are no specific orders in place addressing the time the paternal grandparents can spend with X there were be further disputes between the parties and the possibility of further proceedings. For this reason I have also specified the dates when the paternal grandparents’ time should take place. I have scheduled these visits to take place during the school holidays. It is open to the mother and the grandparents to vary the dates by agreement. 

3. The grandparents seek to have weekly Skype or telephone contact. The mother conceded during cross-examination that she could facilitate weekly telephone contact. However I am of the view that this will be too disruptive to the mother’s household. Twice monthly Skype contact will enable the grandparents to maintain good contact with X in between face to face visits. This is where it is important to remember that this is facilitating a grandparent relationship not a parenting one.

Family Violence

1. As these proceedings were commenced before 7 June 2012 the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) does not apply.

2. The police records tendered as Exhibit R2 show that the father attended the mother’s home on 16 May 2010 when he was heavily intoxicated and damaged property. He again attended the mother’s home on 30 July 2010 and she called the police. The father told police he was suicidal. On both occasions the police took the father to a friends place. These documents are supportive of the fact that the father was very troubled in the weeks leading up to his death.

Conclusion

1. This is a tragic case that has taken its toll on all the parties. It is always tragic to lose someone to suicide. This has been devastating for his parents. They continue to suffer today. The mother also suffers.

2. When people break up they often behave badly. It is not surprising that the paternal grandparents only heard the father’s side and took his side. That’s what parents do. It is also not surprising that in the immediate aftermath of reading the notes from their son that the paternal grandparents felt anger and blame towards the mother. That is not to say that their reaction is reasonable but it is understandable. It is also understandable that the mother was also devastated by Mr Paynter’s death. Even though they had separated they had a child together and that child was now going to grow up without a father.

3. The mother and the paternal grandparents did not have much interaction before Mr Paynter died. Unfortunately this has meant that there was no established relationship between the mother and the grandparents to fall back on.

4. The most concerning aspect of this case is the fact that there is no sense that the bitterness and recrimination has lessened between these parties in the past 3 years.

5. It most regrettable that the grandparents saw fit to annex the two notes from their son to their affidavits. They were legally represented at the time. It is hard to fathom how they could have thought that this would assist their cause in seeking the mother to agree to their spending time with their granddaughter. The mother has to live with the fact that the father and his parents blame her for his death.  The mother’s evidence, which was unchallenged, was that the first time she knew of the notes was reading the grandparents’ affidavits.

6. It is to the mother’s credit that she has offered the grandparents time and that she has said that it is important for X that she knows her paternal family and her Aboriginal heritage. She could have run a case whereby she said that it would be too distressing to her and would compromise her parenting capacity to have the paternal family involved in X’s life.

7. It is clear that the paternal grandfather still feels very bitter and negative towards the mother. My impression was that he was giving lipservice to what he thought he had to in order to get what he wants. His comments with respect to having to have a relationship with the mother were telling.

8. The paternal grandmother has greater insight. Although she too candidly admitted that she has not done anything to improve the relationship with Ms McDonald.

9. As I said during the course of the hearing I have no doubt that the paternal grandparents love X dearly and want to ensure that she grows up knowing her paternal family and her Aboriginal culture. What the grandparents have failed to understand is that for this to work they need to develop a rapprochement with the mother.

10. I accept that the mother feels somewhat under siege. She made reference to comments she has seen on Facebook. I accept that the paternal grandfather does not use Facebook. The paternal grandmother says she does not take much notice of what is posted on Facebook. However I have no doubt that they are aware that there are extended family and friends who continue to make negative remarks about the mother. They were involved in the making of caps and t-shirts with pictures of Mr Paynter and X on it. The mother is aware of this. She referred to it as feeling like they were a lynch mob. Counsel for the grandparents was dismissive of this but I think it is understandable for the mother to feel this way. The grandparents must take some responsibility for creating the situation they find themselves in.

11. Due to the strength of negative feeling which continues to come through very strongly in (omitted), one solution which would have addressed the grandparents’ concern would have been to have the mother travel to (omitted) with X. X then could have had day time contact at the paternal grandparents’ home building up to overnights with the mother nearby in case X became distressed and also so the mother could be assured that things were going well.  However in the circumstances it would be unreasonable to expect the mother to travel to (omitted).

1. It is important for X’s sake that the grandparents deal with their feelings of bitterness and blame towards the mother. They are going to have to make a rapprochement with the mother. The mother will also have to deal with her strong feelings. She feels that she has reached out to the grandparents and has been rejected. The grandparents may need to make the first move. Hopefully the grandmother, who came across as having more insight, than the grandfather can help him change his attitude.

2. Given these dynamics I think it is important that there is a graduated regime which leads to overnights. I am also of the view that X is too young to go and spend time in (omitted) without her mother. It is not feasible for the mother to go with X given the issues I have discussed above. I am concerned based on the mother’s evidence and her presentation in the witness box that she will not be able to hide her anxiety from X about spending time with her grandparents in (omitted) if this was to happen straight away.

3. The mother will have time to adjust to the idea of X going to (omitted). The grandparents will have the opportunity to show some goodwill towards the mother.

4. The orders I have made which appear at the beginning of this judgment are not in line with either of the parties’ proposals but rather reflect a modified approach. I am of the view that the grandparents need to spend unsupervised time with X in Darwin, or any other city the mother and X are living in at the time for the next 18 months. This time will build up and will include overnights. By that stage X will have had several overnight visits with her grandparents and regular Skype contact. She will be almost 7 years old. By that stage she should be able to cope with the holiday visits to (omitted).

5. For these the reasons discussed above I make the orders which appear at the beginning of these reasons.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  2 August 2013